Opinion
No. 05-03-01551-CR
Opinion Filed May 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-02191-KP. Affirm.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
OPINION
A jury found Herbert Earl Willis guilty of possession of cocaine with intent to distribute it and assessed his punishment at twenty-two years' imprisonment. Willis brings eight points of error on appeal, asking this Court to review the juror-selection process and the sufficiency of the evidence to support his conviction. We have done so, and we affirm the trial court's judgment.
Background
The fundamental facts of the State's case were presented at trial by four police officers. Their testimony established that on the night in question, Dallas police were conducting surveillance on the house at 3303 Pine Street because they had received a report from a neighbor that drugs were being sold there. The officers arrived around midnight: the first officers on the scene watched the front of the house, and back-up officers arrived to watch the back of the house. Once all the officers were in place, they watched as five people arrived at the house, walked around to the back, made hand-to-hand exchanges at the back door, and left. They could actually see the exchanges, even though it was dark outside, because the house was lit up inside. The officers observed six such exchanges over a period of twenty to twenty-five minutes of watching the house. Based on their training and experience, the officers believed this kind of activity was consistent with drug sales. The officers posted in front of the house followed the sixth person, a woman, around the house to a sliding-glass and burglar-barred back door. One of those officers, Samuel McDonnald, testified he saw the woman standing outside the door. He also saw a man he identified as Willis standing inside the doorway with his hands through the bars. Willis was looking at his hands, which were holding two bags. The bags, in turn, appeared to Officer McDonnald to hold crack cocaine. As the officers approached, Willis tried to shut the glass door and retreated into the room. Officer McDonald kept the door from closing with his flashlight and called to Willis to get on the floor. Instead of doing so, McDonnald testified, Willis threw the two bags backward on to a coffee table and fled toward the front of the house. Three of the officers pulled the burglar bars open and entered the house through the back door. They recovered and safeguarded the two bags on the coffee table, which tests indicated did contain crack cocaine. The officers found Willis in a front room of the house and arrested him. Willis had $370 in his pocket when he was arrested. Three of the officers that testified identified Willis during trial as the man accepting cash in exchange for something that looked like crack cocaine with the individuals who came to the back door. The fourth officer did not see the individual's face at the back door, but he identified the man's height, race, hair style and clothes, all of which were consistent with the description of Willis when he was apprehended. The officers gave consistent descriptions of the house itself. The front door was barricaded from the inside, something the officers testified was often done to keep people out of a drug house. The officers found a digital scale — a type often used to weigh narcotics — in the same room where McDonnald first saw Willis with his hands through the burglar bars. The house had no running water; the toilet did not work; it was sparsely furnished. According to the officers, ten people were in the house. There were eight women, but only two men, including Willis. The second man was discovered naked and engaged in a sex act with one of the women when the officers entered a room in the front of the house. The descriptions of the man did not resemble Willis in any manner. Latasha Franklin, Willis's cousin, testified that she rented the house on Pine Street at the time and she was present on the night in question. She testified only eight people were there and four of them were men. She stated that the woman at the back door at the time of the raid was her sister, Helen Lawrence. Franklin testified she gave Willis a key specifically to let Lawrence into the house. Willis was "playing with [Lawrence] at the door" when the police came and kicked the glass out of the back door. Franklin testified she did not know of anyone selling drugs at her house. Lawrence also testified for the defense. She acknowledged she was a cocaine user and a prostitute. She said she wanted to get into the house to get some drugs, but that she bought her drugs from a man known as "E" or Emmanuel. (The man found naked in the bedroom was later identified as "E.") Lawrence stated she was high at the time the police asked her questions. But she testified Willis had only a flashlight in his hands when he was playing with her at the door, not any drugs. Willis's girlfriend, Dequesha Bell, also testified. She said she came to the Pine Street house with Willis for the first time that night. She did not know any of the other people there that night. She testified that when Lawrence came to the door, Willis was trying to do something with the burglar bars to let her in, but he could not, so he had gone back into the house to get his cousin when the police arrived. Bell said she never saw Willis with drugs, and Lawrence just wanted to get into the house. A jury heard the evidence and was instructed to find Willis guilty if he himself possessed the cocaine with intent to deliver it or if he acted as a party with the intent to promote or assist "E" to possess the cocaine with intent to deliver it. The jury found Willis guilty, and he appeals the judgment entered by the trial court on that verdict.Batson Inquiry
In his first four points of error, Willis complains the trial court erred in overruling his objection to the State's discriminatory use of its peremptory challenges during jury selection. Specifically, Willis urges the prosecutor improperly struck four venirepersons on account of their race and in violation of principles set down by the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986). Batson dictates a three-step process for evaluating an objection to peremptory strikes. Hernandez v. New York, 500 U.S. 352, 358 (1991). First, the defendant must make a prima facie showing of discrimination. Purkett v. Elem, 514 U.S. 765, 768 (1995). The burden of production then shifts to the prosecutor to articulate a race-neutral explanation for the strikes. Id. A race-neutral explanation need not be persuasive or even plausible, but only a reason based upon something other than race. Id. If the prosecutor gives a race-neutral explanation, the trial court must decide whether the defendant has proven purposeful discrimination. Id. The ultimate burden of persuasion rests with, and never shifts from, the defendant. Id. at 769. The trial court's determination is accorded great deference and will not be overturned on appeal unless it is clearly erroneous. See Chamberlain v. State, 998 S.W.2d 230, 236 (Tex.Crim.App. 1999); Whitsey v. State, 796 S.W.2d 707, 727 (Tex.Crim.App. 1989). In other words, a reviewing court must not reverse a trial court's Batson decision unless the reviewing court is left with a firm conviction that a mistake has been made. Whitsey, 796 S.W.2d at 721 (quoting Anderson v. Bessemer City, 470 U.S. 564, 573-574 (1985)). Willis is an African-American male. In the Batson hearing, he alleged that the State struck five venirepersons of color. The State was then required to articulate its reasons for striking four of those potential jurors. The defense conceded at the hearing that the reason given by the State for striking one of those potential jurors was race-neutral. However, the defense was not satisfied by the reasons given for the remaining three potential jurors:* Juror 20 was stricken because she is a legal assistant, who walked into the courtroom with a book that appeared to be about legal research;
* Juror 21 was stricken because her criminal history report included a 1995 theft;
* Juror 22 was stricken because her husband is retired from the Air Force, and the prosecutor believed that defense counsel's voir dire stories about being a fighter pilot seemed to align the juror inappropriately with the defense.We agree with the trial court that each of these reasons is race-neutral. See, e.g., Davis v. State, 822 S.W.2d 207, 211 (Tex.App.-Dallas 1991, pet ref'd) (venireperson's occupation may serve as race-neutral explanation for striking venireperson); see also Vargas v. State, 838 S.W.2d 552, 555 (Tex.Crim.App. 1992) (striking venirepersons who had been arrested previously or had relatives arrested or convicted of crimes); Straughter v. State, 801 S.W.2d 607, 614 (Tex.App.-Houston [1st Dist.] 1990, no pet.) (challenge to juror may be based upon manner in which juror reacts to defense counsel). Willis did not rebut the reasons the State gave for exercising its peremptory strikes; the record contains no evidence tending to show that the race-neutral reasons proffered by the State were pretextual. The record in this case does not leave us with a firm conviction that a mistake has been made. See Whitsey, 796 S.W.2d at 721. Accordingly, we conclude the trial court's decision to overrule Willis's Batson challenge was not clearly erroneous. We decide Willis's points of error addressing these three prospective jurors against him.