Crew v. State

Full title: TRANDY GERMAINE CREW, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 31, 2009

No. 05-08-00959-CR (Tex. App. Aug. 31, 2009)

Opinion

No. 05-08-00959-CR

Opinion Filed August 31, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause No. F-0668002-I.

Before Justices MOSELEY, O'NEILL, and MURPHY.

MEMORANDUM OPINION

Opinion By Justice O'NEILL.

A jury convicted appellant Trandy Germaine Crew of capital murder, and the trial court imposed a life sentence. In his first issue, appellant claims the trial court erred by overruling his Baston objections because the State engaged in purposeful race discrimination when exercising its peremptory strikes. In his second issue, he contends the trial court abused its discretion by admitting his confession because the police used deception and trickery to obtain it. We affirm the trial court's judgment. Because the facts are well-known to the parties and appellant does not challenge the legal or factual sufficiency of the evidence, we recite only those facts necessary for our analysis. Tex. R. App. P. 47.1.

Batson Challenges

In his first issue, appellant asserts the trial court abused its discretion by overruling his Batson challenges because the State struck three potential jury members who were African-American, and its reasons for exercising peremptory challenges were pretextual. The State responds it provided race-neutral reasons for its strikes; therefore, the trial court ruled correctly. The Texas Code of Criminal Procedure and the Unites States Constitution prohibit the use of peremptory challenges to exclude prospective jurors on the basis of race. Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 2006); Batson v. Kentucky, 476 U.S. 79, 85 (1986). Batson entails a three-step analysis. The opponent of the peremptory strike bears the initial burden of making out a prima facie case of racial discrimination. Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App.), cert. denied, 129 S. Ct. 92 (2008); Greer v. State, 05-08-00146-CR, 2009 WL 1591694, at *1 (Tex. App.-Dallas June 9, 2009, no pet. h.). If he carries his burden, the burden of production shifts to the proponent of the strike to come forward with a race-neutral reason for the strike. Watkins, 245 S.W.3d at 447. This step does not demand a persuasive or even plausible explanation; rather, it requires an explanation devoid of inherent discriminatory intent. Bausley v. State, 997 S.W.2d 313, 315 (Tex. App.-Dallas 1999, pet. ref'd). If a race-neutral explanation is proffered, the trial court must then decide, as a question of fact, whether the opponent of the strike has proved by a preponderance of the evidence that the strike was a pretext for purposeful racial discrimination. Watkins, 245 S.W.3d at 447. We skip the first step in the analysis if the trial court proceeded immediately to the second step by inquiring as to the striking party's race-neutral reasons. Id. We must overturn the trial judge's ruling on a Batson challenge only if the ruling was clearly erroneous. Id. at 447-48. A ruling is clearly erroneous if, after a review of the entire record, we are left with the definite and firm conviction that a mistake has been committed. Greer, 2009 WL 1591694, at * 1. This standard is highly deferential to the trial court. Id. If the trial court's decision is plausible in light of the record viewed in its entirety or if the judge chose between two permissible views of the evidence, we may not reverse even if we are convinced we would have decided the matter differently. Id. However, if the trial court erroneously overruled even a single Batson objection, we must reverse and remand for a new trial. Id. Appellant does not challenge the State's race-neutral reasons; therefore, we proceed to the third Batson step and the ultimate question: whether the trial court clearly erred by failing to find the State's proffered reasons for using its peremptory strikes against African-American jurors were pretexts for race discrimination. However, before deciding the ultimate question, we must determine the parameters of our review. The State urges us to consider the entire voir dire record, which may include other examples that support its stated reasons for the strike but were not specifically called to the trial court's attention, because the court essentially had such information before it in considering and reaching its conclusion regarding pretexts for racial discrimination. Appellant argues we may only look to the prosecutor's stated reasons to the trial court during the Batson hearing and may not consider other possible reasons in the voir dire record. Appellant relies on the Supreme Court's statement in Miller-El v. Dretke, 545 U.S. 231 (2005) that a prosecutor must state his race-neutral reasons as best he can and "stand or fall on the plausibility of the reasons he gives." Miller-El, 545 U.S. at 252. He contends we may not look to other portions of the record to support the race-neutral reasons. However, the Texas Court of Criminal appeals has held that when analyzing the record for error, the reviewing court should consider the entire voir dire record. Watkins v. State, 245 S.W.3d 444, 448 (Tex. Crim. App. 2008). It need not limit itself to arguments or considerations the parties specifically called to the trial court's attention "so long as those arguments or considerations are manifestly grounded in the appellate record." Id. Further, this Court has repeatedly relied on the Watkins standard for reviewing Batson challenges. See Greer, 2009 WL 1591694, at *1 (holding we review the entire record to determine if the judge's decision is plausible); Bobo v. State, 05-08-00580-CR, 2009 WL 824759, at *9 (Tex. App.-Dallas March 31, 2009, no pet.) (mem. op., not designated for publication) (same). Thus, although we agree with Miller-El's reasoning that a prosecutor is limited to the reasons for a particular strike given to the trial court, the trial court may look at the entire record of the Batson hearing in deciding whether appellant met his burden of proof. As such, we will review the entire voir dire record and arguments of counsel to determine whether the trial court ruled accordingly. Appellant challenges the State's use of a peremptory strike on juror number six, M.W. During the Batson hearing, the State cited M.W.'s lack of intelligence as its race-neutral explanation for striking her. The prosecution may legitimately strike a veniremember because of low intelligence. Allen v. State, 811 S.W.2d 673, 676-77 (Tex. App.-Dallas 1991, pet. ref'd); see also Partida v. State, 133 S.W.3d 738, 742 (Tex. App.-Corpus Chrisit 2003, no pet.) ("Intelligence is a race neutral reason for a challenge."). However, the record should clearly reflect the veniremember's lack of intelligence. See Chivers v. State, 796 S.W.2d 539, 542 (Tex. App.-Dallas 1990, pet. ref'd); see also Allen, 811 S.W.2d at 677 (noting low intelligence must be inferable from the record). Whether a veniremember is intelligent enough to serve as a juror for a particular case is a subjective evaluation by the party exercising the strike. Holt v. State, 912 S.W.2d 294, 299 (Tex. App.-San Antonio 1995, pet. ref'd). Because of the clues that voice inflection, expression, and appearance provide, great deference must be given to the trial judge's impressions in this area. Id. The capability of a juror to understand the complexities of a particular case is relevant. Id. at 300. A juror must be capable of intelligently considering the evidence and following the court's instructions. Id. Here, the State explained during the Batson hearing that it thought M.W. was not intelligent based on her response in a question asked on the jury questionnaire. Specifically, she answered the question of whether or not she believed the criminal justice system was too harsh, too lenient, or appropriate as "appropriate." When asked to further explain her answer in her questionnaire, she answered "I don't know what I mean by appropriate." The State explained, "I just felt from the answer, Judge, she didn't seem to be an intelligent juror in terms of giving an answer to something. . . ." Further, the trial court observed for itself M.W.'s answers to questions during voir dire, which supported the State's strike for low intelligence. For example, the prosecutor explained a scenario in which a person and his friend agreed to rob a bank; however, in the course of the robbery, the person shot and killed someone. When the prosecutor asked M.W. what crime the two men agreed to commit, she answered capital murder rather than robbery. The prosecutor returned to her a short time later and asked another question about the same scenario; however, she failed to provide any answer. In another instance, the prosecutor asked several veniremembers how many floors were in the building as a way to illustrate how people have different perspectives of the same situation. When asked if she knew how many floors were in the building, M.W. said "no," whereas the other veniremembers at least provided an answer, even though some answered incorrectly. Based on these answers, the State and the trial court could infer she was not capable of intelligently considering the evidence and following the court's instructions. We held in Chivers that the State's offered reason of low intelligence was pretextual and not supported by the record because the State had no basis for its conclusion. Chivers, 796 S.W.2d at 542. In that case, at no point did the prosecution address the veniremember with individualized questions so as to ascertain his level of intelligence. Id. We concluded the State's failure to ask any meaningful questions weighed heavily against the legitimacy of any race-neutral explanation. Id. Unlike Chivers, the State engaged M.W. with individualized questions that allowed it and the trial court to observe her answers, voice inflection, and overall demeanor to assess her intelligence. Thus, the State met its burden of providing a race-neutral explanation that is firmly rooted in the record. Once the State provided its race-neutral explanation for the strike, appellant made no further argument against the explanation such as questioning the prosecutor or offering his own evidence of impermissible motive. See, e.g., Satterwhite v. State, 858 S.W.2d 412, 424 (Tex. Crim. App. 1993) (holding appellant failed to carry his burden of showing racial discrimination when he failed to cross examine prosecutor or offer his own evidence). Thus, on the record before us we cannot say the trial court's decision to overrule appellant's Baston challenge was clearly erroneous. Accordingly, we overrule appellant's challenge to juror number six, M.W. We now turn to appellant's contention that the State used pretext in striking juror number fourteen, B.J. The voir dire record shows the State did not question B.J. However, during the Batson hearing it used a peremptory strike against her based on an answer in her jury questionnaire. Question number fourteen asked her to rank the objectives of punishment in order of their importance, and she ranked punish those convicted as third most important to her. Because of the possibility of the jury finding appellant guilty of a lesser-included offense and then assessing punishment, the State was concerned about her ability to punish him. The State also pointed out that it struck a Hispanic man, juror number thirty, for the same reason. Appellant responded to the State's race-neutral reason by arguing that two jurors on the panel also chose punishment as the number three objective to question fourteen, but the State did not strike them. He also noted one veniremember the State kept indicated on his questionnaire that cops were crooked and dirty. He continued to argue "we just feel that treating some people one way and treating some people the other way is depriving my client of a due process and a fair trial." The only specific juror number he provided to the trial court during his response was juror number forty-seven, who also ranked punishment third in response to question fourteen. In its brief, the State invites us to conduct a comparative analysis between B.J.'s responses and the responses of other veniremembers. Bolstering its argument that it did not use racial pretext in striking B.J., the State also presents other reasons based on B.J.'s questionnaire that set her apart from the others; however, these reasons were never presented to the trial court. Additionally, the questionnaires were never introduced into evidence. Under the facts of this case, we decline the State's invitation to conduct a comparative analysis based on arguments raised in its brief from the questionnaires but not specifically raised to the trial court. When a trial court is faced with determining Batson issues, it considers all the evidence and arguments before it. This may or may not include the jury questionnaires. See Watkins, 245 S.W.3d at 448 (holding trial court need not limit itself to arguments or considerations the parties specifically called to the trial court's attention "so long as those arguments or considerations are manifestly grounded in the appellate record"). In a recent opinion of this Court, we conducted a comparative jury analysis using jury questionnaires. Greer, 2009 WL 1591694, at *3. However, in that case we determined the review of the questionnaires was appropriate because it was apparent from the record that both parties and the trial court regarded them as evidence, and the trial court repeatedly made reference to their contents during the Batson hearing. Id. at *2. Similarly, we noted we may consider counsel's factual allegations during the hearing as evidence if they were considered by the trial court without objection. Id.; see also Emerson v. State, 820 S.W.2d 802, 804 (Tex. Crim. App. 1991). As noted above, however, in this case neither party offered the questionnaires into evidence nor did the trial court make reference to any of them during the hearing. Thus, under the facts before us, to the extent the parties referenced specific jury questionnaires to the trial court during the Batson hearing and made unobjected-to factual allegations, we will consider them in our analysis. We will not, however, look to juror questionnaires not specifically referenced by the trial court during the hearing or admitted by the trial court as evidence. In determining whether B.J. was struck based on pretext we consider the State's reason that she ranked punishment third to question number fourteen. Courts have concluded that strikes based on a prospective juror's ranking of punishment, deterrence, and rehabilitation are legitimate race-neutral reasons for using peremptory strikes. See, .g., Harris v. State, 996 S.W.2d 232, 236 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (prospective juror's belief that rehabilitation is main purpose of punishment is race-neutral reason); see also Bougere v. State, 05-08-00900-CR, 2009 WL 1533011, *2 (Tex. App.-Dallas 2009, no pet. hist.) (mem. op., not designated for publication). Thus, the State provided an adequate race-neutral explanation, which the trial court accepted. Based on appellant's argument to the trial court, as stated above, we cannot say the trial court's decision to overrule appellant's Batson challenge was clearly erroneous. See, e.g., Snyder v. Louisiana, 128 S. Ct. 1203, 1212 (2008) (noting the question presented at the third stage of a Baston inquiry is whether the defendant has shown purposeful discrimination). Although we may consider defense counsel's factual allegations during the hearing as evidence because the State did not object to them, even considering these statements, we conclude the trial court's ruling was not clearly erroneous. We acknowledge defense counsel's specific reference to juror number forty-seven; however, when showing disparate treatment between minority prospective jurors who answered similarly to non-minority prospective jurors the State did not strike, the defendant must show more than the mere fact that the objectionable characteristic of a stricken juror was also possessed by an accepted juror of a different race. Cantu v. State, 842 S.W.2d 667, 668 (Tex. Crim. App. 1992). This is so because different jurors may possess the same objectionable characteristic but in differing degrees, causing the prosecutor to challenge one juror but not another. Id. Further, counsel's general statements, without detail, that two jurors on the panel answered similarly, did not satisfy his burden. He needed to show the trial court something more than the fact that the objectionable characteristic of juror fourteen was also possessed by an accepted juror of a different race. Id. at 689; see also Bobo, 2009 WL 824759, at *3. This he failed to do. Further, he failed to provide the trial court any specific details about the two jurors, such as their juror numbers, who answered similarly. Without this basic information, we cannot say the trial court was aware of the specific jurors to which appellant was referring. Given the highly deferential standard we must apply and based on the information before the trial court at the time, the trial court chose between two permissible views of the evidence, and we cannot say the ruling was clearly erroneous. Thus, we overrule appellant's argument as to juror number fourteen, B.J. Appellant's final Batson challenge involves juror number nineteen, W.T. The State questioned her during voir dire; however, none of its questions or her answers related to the State's later proffered reason for using a peremptory strike. Similar to B.J., the State asserted during the Batson hearing it struck W.T. because she ranked punishment third for question number fourteen. Further, she answered "no" to question number three, which asks "Do you think the criminal justice system is fair to all citizens of Dallas County?" She explained, "I feel sometimes depending on one ['s] ethnic background it may be a little unfair." The State asserted it did not want a juror who believes before ever hearing any evidence that the system is unfair to certain ethnic backgrounds. Again, these are acceptable race-neutral reasons. Harris, 996 S.W.2d at 236. Appellant then gave the same response argument he provided for B.J. In fact, he responded simultaneously to both of these challenges. Because we concluded above that appellant failed to show the State engaged in purposeful discrimination, the trial court's ruling was also not clearly erroneous on the State's challenge of W.T. Further, appellant failed to challenge in any way the State's second proffered reason for striking W.T. based on her belief the system sometimes treats people differently based on ethnicity. Without presenting evidence or argument to overcome this race-neutral explanation, we cannot say the trial court clearly acted erroneously. Thus, we overrule appellant's final challenge to juror number nineteen, W.T. Having considered appellant's Batson challenges, we conclude the trial court's rulings were not clearly erroneous. We overrule appellant's first issue.

Waiver of Right to Counsel

In his second issue, appellant claims the police used deception and trickery to induce him into waiving his right to counsel and giving a statement. He specifically argues the police lied to him when they said his interview was not being recorded when in fact they were recording the interview. Because the police improperly obtained his confession, he asserts the trial court abused its discretion by admitting it into evidence. The State responds appellant has waived his argument or alternatively, his statement was voluntary. During trial, the State stipulated that Detective Paul Ellzey told appellant the interview was not being recorded, which was untrue. The court held a brief hearing outside the presence of the jury, and appellant testified he would not have talked to the police had he known Detective Ellzey was recording it. In fact, he claimed he would have asked for his attorney. The trial court overruled appellant's objection to playing the videotape. The parties then discussed the logistics of playing portions of the videotape because the tape also contained audio statements of other witnesses. The State suggested calling Detective Ellzey to the stand to testify about appellant's statements. Appellant then objected to Detective Ellzey's testimony as well. Specifically, defense counsel stated, "Well, I'm going to — I am going to have — I would have an objection to asking the detective to simply recount his recollections of what was said to him." The court never ruled on this objection. After further discussion, defense counsel stated the following:

Judge, I'll tell you what I'm going to do for time's sake and for — because I think with my understanding of what the Court's going to allow, I think it would probably accomplish the same, is I will at this time withdraw my objection to them going into the factual statements that Defendant Crew made to Ellzey if they wish to inquire from him in those regards. . . . I'm going to agree to let him do it orally in lieu of you doing both of them. But if we're going to still do the redaction and play it all, I'm going to still raise my other objection. . . . I want the record to reflect that this is a compromise with also strategic reasoning behind it, but this is a compromise, and I'm reaching because I believe that we'll accomplish the goals.

We agree with the State that appellant has waived his issue. To preserve a complaint for appellate review, a party must make a timely, specific objection in the trial court, and the trial court must rule or refuse to rule on the objection. Tex. R. App. P. 33.1; Delapaz v. State, 228 S.W.3d 183, 195 (Tex. App.-Dallas 2007, pet. ref'd). We first note the videotape was not shown to the jury, but only entered into evidence for record purposes. Thus, appellant cannot show the trial court abused its discretion regarding the videotape because the issue is moot. Although appellant originally objected to Detective Ellzey's testimony, he later withdrew his objection. By withdrawing his objection, even for strategic purposes, he waived his argument. See Rotondo v. State, 860 S.W.2d 575, 578 (Tex. App.-El Paso 1993, no pet.) (holding issue waived when counsel withdrew previous objection). Detective Ellzey then testified in detail about appellant's confession without any further objection from appellant. Thus, appellant waived his argument and has left nothing for our review. We overrule his second issue.

Conclusion

Having overruled appellant's issues, we affirm the trial court's judgment.