Hightower, Tommy Lee v. The State of Texas--Appeal from Crim Dist Ct of Dallas Co of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

TOMMY LEE HIGHTOWER, )

) No. 08-01-00263-CR

Appellant, )

) Appeal from the

v. )

) Criminal District Court

THE STATE OF TEXAS, )

) of Dallas County, Texas

Appellee. )

) (TC# F-0070536-NH)

)

O P I N I O N

This is a murder case. Tommy Lee Hightower was convicted of the murder of Teowonka D. Warren (AWarren@) and sentenced to 50 years in prison. He brings four issues.

Warren and a friend, Virnor Williams, left a night club in South Dallas and got into a street fight with Appellant and several gang members. Warren was hit on the head with a beer bottle and fell face first on the street. He was shot once in the back and died at a local hospital.

Appellant first complains that the State improperly exercised three peremptory challenges on three African-Americans. The trial court found that strikes were based on race neutral reasons and denied the Batson Challenge. Batson v. Kentucky, 476 U.S. 79,106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

The familiar three-step test required to prove race discrimination in the exercise of a peremptory challenge is: (1) the opponent of a peremptory challenge must make out a prima facie case of racial discrimination; (2) the burden of production shifts to the proponent of the strike to come forward with a race neutral explanation for the strike; and (3) the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination. Regarding the second step, the Supreme Court in Batson stated that the prosecutor Amust articulate a neutral explanation related to the particular case to be tried@ and give a A>clear and reasonably specific= explanation of his >legitimate reasons= for exercising the challenges.@ Batson v. Kentucky, 476 U.S. at 98 n.20, 106 S. Ct. at 1724 n.20.

The record reflects that there were five African-Americans on the panel. The State used all ten of its peremptory strikes and struck three of the African-Americans. The two remaining African-Americans were selected for the jury. Appellant objected, noting that Appellant is African-American. The trial judge initially found that striking three of five African-Americans was a prima facie case of racial discrimination that required the State to explain its justification for striking those three prospective jurors.

The State stated that the basis for striking the first potential juror, Ms. Thompson, Number 14, was that:

[S]he stated that we would--we would have to have very credible evidence and cases where I believe when I was talking about either the one eye-witness or on the issues of motive, it was early on in my time to speak, so I think it might have been maybe with the motive issue. I just wrote that down. She was taking a hard line with me on that topic and I just felt that she was not going to be favorable to the State.

Appellant contends that the explanation was pretextual and that Ms. Thompson made only one statement that was not consistent with the proffered explanation. As the State points out, in fact, that much earlier in the voir dire, Ms. Thompson, in response to how do you feel about the presumption of innocence question posed to the panel, Ms. Thompson replied:

I contend that a person is innocent until proven guilty, but I do believe that I do have to have adequate evidence to prove that person=s guilt in order for me to make a fair decision. I do not make a decision otherwise, and as someone said send someone to the pen for life unless I do have evidence.

While this does not exactly match-up with the prosecutor=s statement, neither is it so wide of the mark, and Appellant made no effort to rebut nor cross-examine the prosecutor. Ramirez v. State, 976 S.W.2d 219, 225 (Tex.App--El Paso 1998, per ref=d). We also note that early in the voir dire, there were a number of panelists that did answer the prosecutor=s questions about motive and there were at least three prospective jurors that stated essentially that they would take a Ahard line@ on motive. Each of those panelists were struck by the State. We find that the State gave a clear and reasonably specific explanation that was race neutral with respect to this peremptory strike.

The reason given for the second strike, Mr. Steele, Number 32, was that he was a postal worker and the prosecutor Anever had luck with postal workers to begin with and I=ve constantly struck them from my trials whenever I=m picking a jury.@

Occupation and a prosecutor=s experience are racially neutral reasons for striking a prospective juror. See Tompkins v. State, 774 S.W.2d 195, 205 (Tex.Crim.App. 1987), aff=d, 490 U.S. 754, 109 S. Ct. 2180, 104 L. Ed. 2d 834 (1989). Appellant made no attempt to impeach or rebut the prosecutor about this statement. See Ramirez, 976 S.W.2d at 225.

In the case of the third prospective juror struck, Ms. Crawford, Number 44, the State questioned her literacy from the way she filled out her juror card and alluded to her having a felon nephew, and concluded that she was not qualified to follow the charge. In particular, he pointed out a number of purportedly odd responses on her questionnaire. The trial court also noted these failings. The State also mentioned that Ms. Crawford had a nephew with a felony conviction. Each reason is racially neutral and legitimate reasons to exercise a peremptory strike, and because the Appellant did not cross-examine the prosecutor or attempt to rebut the neutrality of the reasons given, he has failed to meet his burden of proving a pretext. See Ramirez, 976 S.W.2d at 225. Issue One is overruled.

In Issue Two, the Appellant asserts that the State knowingly asked an improper question of a witness in order to elicit a harmful answer. We find nothing in this record that supports this assertion. The prosecutor on redirect asked the police officer a question that should have been answered yes or no, but instead the officer enumerated criminal activities of Appellant=s gang before there was an objection. The objection was sustained by the trial court and he instructed the jury to disregard the testimony. Appellant made a motion for mistrial which was denied by the trial court.

The denial of a motion for mistrial is reviewed under the standard of abuse of discretion. See Trevino v. State, 991 S.W.2d 849, 851 (Tex.Crim.App. 1999). A trial court does not abuse its discretion when its decision is at least within the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991)(Opin. on reh=g). We presume the jury followed the trial court=s instruction to disregard. Wesbrook v. State, 29 S.W.3d 103, 116 (Tex.Crim.App. 2000). AOnly offensive or flagrant error warrants reversal when there has been an instruction to disregard . . . .@ Id. at 116.

Here, the officer=s statement was simply not so offensive or so flagrant that the trial court=s immediate instruction to the jury to disregard and the instruction of the officer to just answer yes or no cured the error. Issue Two is overruled.

In Issue Three, the Appellant complains that the evidence is factually insufficient. When conducting a review of the factual sufficiency of the evidence, we consider all of the evidence but we do not view it in the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). As in the case of legal sufficiency review, we consider all of the evidence weighed by the jury, including both admissible and inadmissible evidence. We review the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997). A defendant challenging the factual sufficiency of the evidence may allege that the evidence is so weak as to be clearly wrong and manifestly unjust, or in a case where the defendant has offered contrary evidence, he may argue that the finding of guilt is against the great weight and preponderance of the evidence. See Johnson, 23 S.W.3d at 11. Although we are authorized to set aside the fact finder=s determination under either of these two circumstances, our review must employ appropriate deference and should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any evidence presented at trial. See Johnson, 23 S.W.3d at 7. We are not free to set aside a verdict merely because we feel that a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis, 922 S.W.2d at 135; Arzaga v. State, 86 S.W.3d 767, 777-78 (Tex.App.--El Paso 2002, no pet.).

The record in this case reveals that the Appellant, the victim, Olivia Humphrey, and Lashameka Foster were all family-related or acquaintances. They were regulars at the ASomething Nice@ club in South Dallas. When the club closed in the early morning hours of January 23, 2000, the victim got into a fight with the Appellant and four or five others, all members of the Tre-5-7 Crips gang. When questioned at the shooting scene, two cousins, Olivia and Lashameka, denied seeing the person who shot the victim. Four days later, the lawyer for Olivia=s boyfriend contacted Detective Crum with information on the identity of the shooter. Olivia would identify the shooter in exchange for favorable consideration of her boyfriend=s drug charges. Olivia met with the detective and named the Appellant as the shooter.

Olivia Humphrey did not testify at trial, but her cousin Lashameka Foster did. Lashameka testified that she saw Appellant shoot the victim one time in the back when the victim was laying face down on the street. On cross-examination, Lashameka admitted that she had previously testified that the victim was standing when he was shot in the back.

There were a number of other State witnesses, however, none of their testimony provided any proof that Appellant was the shooter. Appellant did not testify and rested his case without putting on any witnesses.

Appellant essentially challenges the credibility of Lashameka Foster and the motives of Olivia Humphrey. As noted above, we should not intrude upon the fact finder=s role as the sole judge of the weight and credibility of the evidence presented at trial. While Lashameka=s testimony might appear quite incredible from the cold record before us, the jury obviously believed her. We simply cannot say that the evidence is so weak as to be clearly wrong and manifestly unjust. Issue Three is overruled.

In his fourth and last issue, the Appellant complains about a series of photographs illustrating Tre-5-7 gang graffiti that was photographed from 1991 to 1993, and which were admitted over objection during the punishment phase. Officer Quigg identified the photos and testified that he determined that the Appellant was a member of the gang in 1997. Appellant contends that the photos are not relevant because they were taken years before the gang affiliation of the Appellant was known and Warren=s death. He also complains that they are more prejudicial than probative.

Admissibility of photographs over challenges are within the sound discretion of the trial judge. See Sonnier v. State, 913 S.W.2d 511, 518 (Tex.Crim.App. 1995). Rule 403 of the Texas Rules of Criminal Evidence favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Montgomery, 810 S.W.2d at 376. The trial court=s decision will not be disturbed on appeal unless it falls outside the zone of reasonable disagreement. Jones, 944 S.W.2d at 651.

We must first determine if the photograph is probative of some relevant fact. Reese v. State, 33 S.W.3d 238, 241 (Tex.Crim.App. 2000). In general, evidence that has a bearing on the defendant=s personal responsibility and moral guilt is admissible during the punishment phase. Stavinoha v. State, 808 S.W.2d 76, 79 (Tex.Crim.App. 1991).

Here, the essence of the challenge is that because the photographs were taken years before Appellant was known to be a gang member and years before the instant crime they are not relevant. Though after the admission of the photographs, we note that Appellant testified that he joined the gang in 1993. They were relevant.

Once a defendant objects to photographic evidence on the basis of Rule 403, Texas Rules of Evidence, the trial court must weigh its probative value against its potential for unfair prejudice. Jones v. State, 982 S.W.2d 386, 394 (Tex.Crim.App. 1998). An appellate court reviewing the trial court=s decision may reverse it only for an abuse of discretion, i.e., only when the trial court=s decision was outside the zone of reasonable disagreement. Id. at 394. An abuse of discretion occurs when the probative value of the photograph is small and its inflammatory potential great. Id.

Texas courts have recognized that the First Amendment does not bar admission of a defendant=s gang membership at the punishment phase of trial. See Anderson v. State, 901 S.W.2d 946, 953 (Tex.Crim.App. 1995). A defendant=s affiliation with a gang may be relevant and admissible at the punishment stage of a trial for its bearing on the character of the accused. See id. at 950; Beasley v. State, 902 S.W.2d 452, 456 (Tex.Crim.App. 1995). The evidence must show the purpose of the gang to which defendant belongs so that the fact finder can conclude whether membership in this gang is a positive or negative character trait of the defendant. See Anderson, 901 S.W.2d at 950. In Beasley, the Court of Criminal Appeals held that it is not necessary to link the accused to the bad acts or misconduct generally engaged in by gang members, so long as the fact finder is (1) provided with evidence of the defendant=s gang membership, (2) provided with evidence of character and reputation of the gang, (3) not required to determine if the defendant committed the bad acts or misconduct, and (4) only asked to consider reputation or character of the accused. See Beasley, 902 S.W.2d at 457. The evidence in the record here shows that: (1) Appellant was a member of a gang; (2) the gang was involved in criminal activities; (3) the jury was not required to determine if Appellant committed the bad acts or misconduct of the gang; and (4) the jury was only asked to consider the reputation or character of the accused. The trial court did not abuse its discretion in admitting the photographs. We overrule Issue Four, and affirm the judgment of the trial court.

June 30, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)