Opinion
No. 05-16-00971-CR
05-30-2017
DARRON ANTOINE DEWAYNE TAYLOR, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1575260-R
MEMORANDUM OPINION
Before Justices Fillmore, Whitehill, and Boatright
Opinion by Justice Fillmore
A jury found appellant Darron Antoine Dewayne Taylor guilty of aggravated robbery with a deadly weapon, found an enhancement paragraph alleged in the indictment true, and assessed punishment of forty years' confinement. In two issues, Taylor contends the trial court erred (1) in overruling his objections that the State's use of peremptory challenges against two prospective jurors violated Batson v. Kentucky, 476 U.S. 79 (1986), and (2) in denying his request pursuant to article 38.14 of the code of criminal procedure for an accomplice-witness instruction in the punishment charge and overruling his objection to the punishment charge for failing to include an accomplice-witness instruction. We modify the trial court's judgment to reflect Taylor pleaded not true to the enhancement paragraph alleged in the indictment and to reflect the jury found the enhancement paragraph to be true. As modified, we affirm the trial court's judgment.
Background
Because Taylor has not challenged the sufficiency of the evidence to support the conviction, we recite only those facts necessary to address his complaints on appeal.
Taylor was indicted for an alleged aggravated robbery of the One Love convenience store on December 10, 2014, during which the owner and operator of the store was shot. The indictment alleged a prior juvenile conviction as an enhancement. Taylor pleaded not guilty to the aggravated robbery and not true to the enhancement paragraph. A jury found Taylor guilty of aggravated robbery as charged in the indictment. See TEX. PENAL CODE ANN. §§ 29.02, 29.03 (West 2011). The jury also found the enhancement paragraph alleged in the indictment true and assessed punishment of forty years' confinement. Taylor's motion for new trial was overruled by operation of law, and he filed this appeal.
Batson Challenge
In his first issue, Taylor, who is black, contends the trial court erred in overruling his objections that the State's use of peremptory strikes against two black male prospective jurors, venire member number 7 (Jonathan Miles) and venire member number 35 (Johnny Brazile), violated Batson. See Batson, 476 U.S. 79. Taylor contends the trial court erred in denying his Batson challenge because the State's proffered reasons for exercising those peremptory strikes were pretexts for racial discrimination, and the "discriminatory intent in these two strikes is inherent."
The party exercising a peremptory strike typically does not have to explain its rationale for the strike unless the strike is challenged under Batson. Nieto v. State, 365 S.W.3d 673, 675 (Tex. Crim. App. 2012); see TEX. CODE CRIM. PROC. ANN. art. 35.14 (West 2006) ("peremptory challenge is made to a juror without assigning any reason therefor"). In Batson, the Supreme Court held that the State violates the Equal Protection Clause of the Fourteenth Amendment to the federal constitution when it excludes a venire member based on his or her race. Batson, 476 U.S. at 89; see U.S. CONST. amend. XIV.
A Batson challenge to the State's use of a peremptory strike generally gives rise to a three-step analysis. Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003). First, the opponent of the strike must establish a prima facie case of racial discrimination. Nieto, 365 S.W.3d at 675-76. Second, if the opponent makes the requisite showing, the burden shifts to the proponent of the strike to articulate a reason for the strike that is race-neutral on its face. Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008). The ultimate plausibility of the race-neutral explanation for exercising a strike is then considered under the third step of the analysis, "in which the trial court determines whether the opponent of the strike has satisfied his burden of persuasion to establish by a preponderance of the evidence that the strike was indeed the product of purposeful discrimination." Blackman v. State, 414 S.W.3d 757, 765 (Tex. Crim. App. 2013). Although the burden of production shifts after the opponent makes a prima facie case, the burden of persuasion remains with the opponent of the strike to establish purposeful discrimination. See Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999); see also TEX. CODE CRIM. PROC. ANN. art. 35.261(a) (West 2006). "Whether the opponent satisfies his burden of persuasion to show that the proponent's facially race-neutral explanation for his strike is pretextual, not genuine, is a question of fact for the trial court to resolve in the first instance." Watkins, 245 S.W.3d at 447.
The trial court's ruling on a Batson challenge should not be overturned unless we determine the ruling was clearly erroneous. Blackman, 414 S.W.3d at 765 (citing Herron v. State, 86 S.W.3d 621, 630 (Tex. Crim. App. 2002)); Nieto, 365 S.W.3d at 676. The clearly erroneous standard is highly deferential because the trial court is in the best position to determine whether the proponent's explanation for a peremptory strike is genuinely race-neutral. Nieto, 365 S.W.3d at 676; Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). The trial court must focus on the genuineness of the asserted non-racial motive, rather than its reasonableness. Nieto, 365 S.W.3d at 676. We defer to the trial court's ruling in the absence of exceptional circumstances. Id. In determining whether clear error occurred, we look to the entire record of the voir dire and need not limit our review to the specific arguments brought forth to the trial court by the parties. Id. Our review of the record is conducted in the light most favorable to the trial court's ruling. Davis v. State, 329 S.W.3d 798, 815 (Tex. Crim. App. 2010).
At the conclusion of voir dire, Taylor raised his Batson challenge based on the State's peremptory strikes of three black venire members and an Ethiopian venire member in the strike zone: black venire members Sheria Jones (number 2), Miles (number 7), and Brazile (number 35), and Ethiopian venire member Helen Ayalew (number 12). With regard to the first step in the analysis of Taylor's Batson challenge, the trial court did not state specifically on the record that it found Taylor made a prima facie showing of race discrimination based on those four peremptory strikes by the State. Rather, after Taylor's argument that those strikes were based on race discrimination, the trial court proceeded to the second step in the analysis of the Batson challenge by requesting that the State respond with any race-neutral reasons for the exercise of the peremptory strikes. We assume, therefore, that Taylor satisfied the first-step obligation to make a prima facie case of purposeful discrimination. See Watkins, 245 S.W.3d at 447; see also Simpson, 119 S.W.3d at 268 ("If, as here, the State offers a race-neutral explanation before any inquiry on the prima facie case, the issue of a prima facie case is moot.").
The State then proceeded to offer race-neutral reasons for its strikes of the two venire members that are complained of on appeal. With regard to Miles, the State explained the basis of its peremptory challenge as follows:
I frankly thought he was going to be a good juror until I asked him about punishment and he, one, took a long time to answer if he could do a life sentence or not. And then I followed up with him asking what factors he would look for in punishment, he said murder even though this is not a murder, and I don't have an extraneous murder to put on. I don't think that he would be a good juror for me in this particular case.With regard to Brazile, the State explained the basis of its peremptory challenge as follows:
[A]lthough he appeared to be a pleasant enough man, had a - a continuous sexual assault of a child case dismissed in the '90s, and I just make it my general rule that I don't put anybody who had any kind of dealings with a child sex case on a jury even though it was dismissed. That's not something that I want, especially given the fact that it was dismissed and he might have thought that he was wrongfully accused. And given the nature of that, I don't feel like he would be appreciate [sic] for the jury.The State provided facially race-neutral explanations for peremptory challenges to prospective jurors Miles and Brazile. See e.g., Chambers v. State, 866 S.W.2d 9, 24 (Tex. Crim. App. 1993) (holding inability to consider full range of punishment, which included death penalty, a race-neutral reason for strike); Dorsey v. State, 940 S.W.2d 169, 175 (Tex. App.—Dallas 1996, pet. ref'd) (holding that family members convicted or charged with offense a race-neutral reason for strike).
Thus, the burden shifted back to Taylor, as the party opposing the use of those peremptory challenges, to prove by a preponderance of the evidence that the State's proffered reasons for the challenges were not genuine but were instead pretexts for purposeful racial discrimination. See Watkins, 245 S.W.3d at 447. But Taylor's counsel responded to the trial court that there was nothing further "he wanted to put on the record." Because Taylor's counsel did not question the prosecutor or provide the trial court with any evidence concerning the State's proffered race-neutral explanations, the State's explanations for the strikes, race-neutral on their face, are not rebutted on the evidence before us. "[A] party's failure to offer any real rebuttal to a proffered race neutral explanation can be fatal to his claim." Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002); see also Chamberlain v. State, 998 S.W.2d 230, 236 (Tex. Crim. App. 1999) (noting the absence of "real rebuttal," court could not hold that trial court abused its discretion in finding opponent of State's peremptory strikes carried its burden); Stewart v. State, 176 S.W.3d 856, 859 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (in light of appellant's failure to offer any rebuttal of State's reasons for striking jurors, appellate court "cannot say that the trial court's ruling was clearly erroneous").
Taylor acknowledges on appeal that he provided no "further explanation as to why [the State's] explanations were a pretext for discrimination" after the trial court overruled his Batson challenge.
See also Moss v. State, No. 05-05-00483-CR, 2006 WL 3742892, at *2 (Tex. App.—Dallas Dec. 21, 2006, no pet.) (not designated for publication) (if prosecutor's explanations have not been rebutted by appellant, we deem trial court's ruling there was no purposeful discrimination on the basis of race as not clearly erroneous).
Taylor has not shown that the stated reasons provided by the State for exercising peremptory strikes of venire members Miles or Brazile were pretexts for discrimination. Viewing the record in the light most favorable to the trial court's ruling, Davis, 329 S.W.3d at 815, the record does not demonstrate that the trial court clearly erred by finding that the reasons proffered by the State for exercising peremptory challenges to two black venire members were race-neutral. We resolve Taylor's first issue against him.
Accomplice-Witness Jury Instruction
In his second issue, Taylor argues the trial court erred by denying his request pursuant to article 38.14 of the code of criminal procedure for inclusion of an accomplice-witness instruction in the punishment charge and in overruling his objection to the punishment charge for failing to include an accomplice-witness instruction.
Calvin Kennedy had been previously convicted and assessed a thirty-seven year sentence for the December 10, 2014 robbery of the Stop at SK convenience store and pleaded guilty to and was assessed a fifteen-year sentence for the December 10, 2014 robbery of the One Love convenience store. In testimony during the previous proceedings against him, Kennedy stated that he, Taylor, and an individual identified as "G" participated in the Stop at SK convenience store robbery, and the One Love convenience store robbery forty-five minutes later, and that Taylor selected both convenience store locations to rob. Following the jury's finding Taylor guilty of aggravated robbery as charged in the indictment, the State called Kennedy as a witness against Taylor in the punishment phase of trial to testify regarding the extraneous offense robbery of the Stop at SK convenience store. Based on Kennedy's testimony, Taylor requested an accomplice-witness instruction and objected to the trial court's failure to include the instruction in the punishment jury charge.
We review alleged jury charge error in two steps. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). We first determine whether error exists in the charge. Id. Second, if there is error, we review the record to determine whether the error caused sufficient harm to warrant reversal. Id.; Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
Article 38.14 of the code of criminal procedure, sometimes referred to as the accomplice-witness rule, see Phillips v. State, 463 S.W.3d 59, 67 (Tex. Crim. App. 2015), provides that a conviction may not be based upon an accomplice's testimony unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. TEX. CODE CRIM. PROC. ANN. art. 38.14. However, the accomplice-witness rule is not applicable to extraneous offense evidence offered during the punishment phase of a noncapital case. See Megas v. State, 68 S.W.3d 234, 242 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (article 38.14 does not apply to accomplice-witness testimony offered to prove extraneous offenses during punishment phase of noncapital murder case); Goodman v. State, 8 S.W.3d 362, 365 (Tex. App.—Austin 1999, no pet.).
See also Lampkins v. State, No. 05-11-00063-CR 2012 WL 3031348, at *1 (Tex. App.—Dallas July 26, 2012, no pet.) (mem. op., not designated for publication) (accomplice-witness rule not applicable to extraneous offense evidence offered during punishment phase of noncapital case).
The accomplice-witness rule does not apply to Kennedy's testimony at the punishment phase of Taylor's trial regarding Taylor's participation in the extraneous offense of robbing the Stop at SK convenience store forty-five minutes before the robbery of the One Love convenience store. See Megas, 68 S.W.3d at 242. We conclude the trial court did not err by denying Taylor's request for an accomplice-rule instruction in the punishment charge or by overruling Taylor's objection to the lack of an accomplice-rule instruction in the punishment charge. See id. We resolve Taylor's second issue against him.
Modification of Judgment
The trial court's judgment reflects "N/A" as Taylor's plea and the jury finding to the first enhancement paragraph. However, the record reflects Taylor pleaded not true to the enhancement paragraph, and the jury found the enhancement paragraph to be true. Accordingly, we modify the section of the judgment titled "Plea to 1st Enhancement Paragraph" to state "Not True" and the section of the judgment titled "Findings on 1st Enhancement Paragraph" to state "True." See TEX. R. APP. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd).
Conclusion
We modify the trial court's judgment to reflect Taylor pleaded not true to the enhancement paragraph of the indictment and to reflect the jury's finding of true to the enhancement paragraph. As modified, we affirm the trial court's judgment.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 160971F.U05
JUDGMENT
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-1575260-R.
Opinion delivered by Justice Fillmore, Justices Whitehill and Boatright participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to reflect Darron Antoine Dewayne Taylor pleaded "not true" to the enhancement paragraph in the indictment and to reflect the jury found the enhancement paragraph to be "true." As MODIFIED, the judgment is AFFIRMED. Judgment entered this 30th day of May, 2017.