Opinion
No. 05-08-01251-CR
Opinion Filed October 15, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F-0757141-T.
Before Justices BRIDGES, O'NEILL, and MURPHY.
OPINION ON RECONSIDERATION ON PETITION FOR DISCRETIONARY REVIEW
We withdraw our August 13, 2009 opinion and vacate the judgment accompanying that opinion. This is now the opinion of the Court. See Tex. R. App. P. 50. On September 15, 2007, Sang Lee was robbed at gunpoint and shot while closing a local Metro PCS store. Two men were involved in the robbery, but only one had the gun. Lee was unable to identify either robber. Following a release of a video recording of the robbery, investigators received tips leading to the identification of Kendrick Rayon Peters as the shooter. "Wanting to take full responsibility for [his] actions," Peters pleaded guilty to a jury, who assessed punishment at thirty-five years' confinement and a $2500 fine. In three points of error, Peters asserts he is entitled to a new trial because the State improperly struck an African-American female from the jury because of her race, the State failed to disclose favorable evidence, and the effect of the State's acts is cumulative error. We affirm the trial court's judgment.
Jury Selection
It is well-settled that the State's purposeful use of peremptory strikes in a racially discriminatory manner violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. See Harris v. State, 996 S.W.2d 232, 234-35 (Tex. App.-Houston [14th Dist.] 1999, no pet.). Under Batson v. Kentucky, 476 U.S. 79 (1986), the defendant bears the burden of persuasion to establish by a preponderance of the evidence that the strike was indeed the product of purposeful discrimination. See Batson, 476 U.S. at 93 n. 18; Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App.), cert. denied, 129 S.Ct. 92 (2008). Upon a defendant's prima facie showing that the State exercised its peremptory strikes on the basis of race, the State must come forward with a race-neutral explanation for striking the jurors. Watkins, 245 S.W.3d at 447 (citing Purkett v. Elem, 514 U.S. 765, 767 (1995)). Once a race-neutral explanation is tendered, the trial court must resolve the fact question of whether the defendant has satisfied his burden of persuasion. Id. We will reverse the trial court's ruling on appeal only if the ruling is clearly erroneous. Id. In reviewing the court's ruling, we examine the entire record without limiting ourselves to arguments or considerations specifically addressed so long as the considerations are grounded firmly in the record. Id. at 448. A trial court's conclusion that the race-neutral explanation is genuine is afforded great deference. Id. Peters's first point of error stems from the State's peremptory strike of Gina Harris, an African-American. Peters objected to the strike at trial. The State responded it struck Harris because she had "multiple issues"-she "waffled both ways" on the issue of punishment and had an uncle who is a felon and "has had a bad experience with law enforcement." Peters did not cross-examine the prosecutor as to the State's explanations, but noted Harris had "made it clear that she could be fair." The trial court overruled the objection. Citing Davis v. State, 964 S.W.2d 352, 355 (Tex. App.-Fort Worth 1998, no pet.) and Hunter v. State, 896 S.W.2d 397, 399-400 (Tex. App.-Fort Worth 1995, no pet.), Peters acknowledges in his appellate brief that the reasons the State provided for striking Davis "ha[ve] been held to constitute" racially-neutral reasons justifying a strike. Peters urges, however, that because Harris stated she could be impartial the reasons were not racially-neutral as applied to Harris and the court erred in overruling the Batson objection. Peters confuses the issue, however. Whether Harris could be fair is a question addressed in determining a strike for cause. See Tex. Code Crim. Proc. Ann. art. 35.16(a)(10), (b)(3), (c)(2) (Vernon 2006) (statutory allowances for strikes for cause) (Vernon 2006); see also Smith v. State, 907 S.W.2d 522, 529 (Tex. Crim. App. 1995) (noting that the purpose of the provisions on strikes for cause is to ensure a fair and impartial jury). Peremptory challenges, however, are made "without assigning any reason therefor." See Tex. Code Crim. Proc. Ann. art. 35.14. The sole inquiry in a Batson challenge to peremptory strikes is whether the strike was the product of purposeful discrimination. Watkins, 245 S.W.3d at 447. No inquiry is required as to whether the stricken juror could be fair in spite of the perceived "objectionable" trait. Viewing the record as a whole, we conclude the trial court's ruling on Peters's Batson challenge was not clearly erroneous. The State's reasons for striking Harris were race-neutral, and nothing in the record suggests the strike was pretextual. We overrule Peters's first point of error.Failure to Disclose Exculpatory Evidence
In his second point, Peters asserts the court erred in denying him a new trial when confronted with a Brady violation. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding government's suppression of favorable and material evidence violates due process). The evidence Peters claims to be exculpatory is that Lee had not identified and could not identify the shooter. See Crutcher v. State, 481 S.W.2d 113, 116-17 (Tex. Crim. App. 1972) (witness's description of burglar, which did not match appellant's age or physical appearance, was material evidence the State should have disclosed); contra Frank v. State, 558 S.W.2d 12, 14-15 (Tex. Crim. App. 1977) (evidence that an eyewitness to robbery was unable to identify the appellant as the robber was not material where State's case included both eyewitnesses who identified appellant and others who did not). This information was disclosed during the State's case-in-chief, prompting Peters to move for a new trial. Peters argued the State's failure to disclose Lee's inability to identify Peters sooner "affected [his] strategy for an open plea before the jury." Peters did not testify in support of his motion, but argued that the video recording of the robbery did not show Peters's face, his co-defendant did not testify, no DNA evidence affirmatively linked Peters to the robbery, and the individuals who provided the tips that led to Peters's identification as the shooter were not eyewitnesses to the offense. Peters also emphasized that the prosecution report referred to the shooter as "Suspect Peters," leading Peters to believe Lee had identified him. The trial court denied the motion. Peters maintains on appeal that the State's disclosure at trial of the information about Lee "heavily impacted his trial strategy." Had he known about Lee, Peter argues, he would not have "chosen" to concede guilt but would have "contest[ed] guilt, which would certainly have been viable given the now-known true state of evidence." Peters maintains the court's failure to grant him a new trial in light of this was error warranting reversal. We review a trial court's ruling on a motion for new trial under an abuse of discretion standard. State v. Herndon, 215 S.W.3d 901, 906 (Tex. Crim. App. 2007). Under this standard, we will reverse the trial court's ruling only if we conclude the trial court acted arbitrarily or without reference to any authority. Id. at 907. Under Brady and the due process clause of the Fourteenth Amendment to the United States Constitution, a prosecutor has an affirmative duty to disclose evidence material and favorable to the defense. Michaelwicz v. State, 186 S.W.3d 601, 613 (Tex. App.-Austin 2006, pet. ref'd) (citing Brady, 373 U.S. at 87-88). Such evidence should be disclosed prior to trial, but disclosure during trial satisfies the due process requirement if the defendant is able to put the evidence to effective use and is not prejudiced. See Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999) (to prevail on appeal on a Brady claim when disclosure of material evidence occurs during trial, an appellant must show the State's tardy disclosure prejudiced him); State v. DeLeon, 971 S.W.2d 701, 706 (Tex. App.-Amarillo 1998, pet. ref'd) (noting the State satisfies requirement of disclosing material evidence if the defendant receives it in time to put it to effective use or is not prejudiced). Although Peters argues the disclosure about Lee "heavily impacted his trial strategy" and he would not have pleaded guilty had he known about Lee, no record was made in support of this argument and the evidence shows the opposite. The trial court held two hearings outside the jurors' presence to determine Peters's new trial motion. Both Lee and the investigating officer testified at the hearings, but Peters did not. Peters did thereafter testify in his defense and readily admitted his guilt and his desire to take responsibility for his actions. Seeking probation, he also read a prepared statement to the jury expressing his regret and showing why he should receive probation:I take the stand today in my defense, not saying that I'm not guilty but to take full responsibility for my actions. On the record yesterday during trial the victim Sang Lee said he could not identify me and said he, being Sang Lee, picked out the wrong person during the phone line-up but, I Kendrick — but I accept full responsibility knowing there was no physical evidence to convict me because the victim Sang Lee plainly stated that he did not know who it was. I know that I was wrong from robbing the store and even after a firearm but I did not intentionally knowing the gun was going to go off strike the victim Sang Lee. I panicked and ran out the store not knowing the victim Sang Lee was shot because I didn't see any blood. All I seen was the glass shattering. I truly apologize for the victim Sang Lee for the pain and suffering he's been in.(emphasis added). Peters testified he wrote this statement the previous night, without counsel's help, because that is how he "really" felt. When asked by the State if he referenced Lee's inability to identify him in his prepared statement because he was "upset about that fact," Peters responded that Lee "didn't have to identify [him]" and that he was taking full responsibility because he was "sorry that it ever happened." The testimony shows Peters accepted full responsibility for his actions knowing Lee could not identify him. Together with Peters's failure to present any evidence he would have changed any trial strategy, Peters's testimony shows he was not prejudiced by the late disclosure. Peters does not complain on appeal that his testimony was unwillingly given or the product of undue influence. Nor does he claim he was unable to examine any witness relating to the disclosure. On this record, we conclude Peters's argument is no more than a bare assertion unsupported by the record. We conclude the trial court did not abuse its discretion in denying Peters's motion for new trial. We overrule Peters's second point of error.