Brian Leslie Vaughn v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

No. 04-00-00224-CR
Brian Leslie VAUGHN,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 1999-CR-2641
Honorable Mark Luitjen, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: May 30, 2001

AFFIRMED

Brian Vaughn appeals his conviction and sentence for murder. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Vaughn was indicted for the murder of his father. At trial, Vaughn entered a plea of not guilty. A jury found Vaughn guilty and sentenced him to thirty-three years imprisonment in the Institutional Division of the Texas Department of Corrections.

At the time of the murder, Vaughn was sixteen years old and living at home with his parents and his younger brother. The night of the murder, Vaughn's mother left for work between 10:00 p.m. and 10:30 p.m., leaving Vaughn, Vaughn's brother, and their father at home. Some time during the night, after everyone had gone to bed, someone shot and killed the boys' father while he was asleep in his second floor bedroom.

At trial, Vaughn testified he had not gone to sleep yet when he heard what he thought sounded like a pop or gun shot go off inside the house. Frightened, he went to his brother's bedroom, woke him up, and brought him back to his own bedroom while he investigated the noise. Vaughn then went to his father's bedroom, which was locked. He called out to his father but there was no response. Vaughn could, however, hear his father snoring. No longer alarmed, Vaughn returned to his bedroom where he assured his brother it was safe for him to return to his own bedroom. Some time later, Vaughn noticed his father's snoring had taken on a "bubble sound" and he became concerned. Once again Vaughn put his brother back in his bedroom while checking the house for intruders. Vaughn then allegedly called the police before leaving the house quickly with his brother.

Taking a path in back of the family's home, Vaughn and his brother walked to the home of Mr. and Mrs. Floyd, who lived a short distance away. When they arrived at the Floyds' house, it was 1:24 a.m. Vaughn explained to the Floyds that his father was in his bedroom with the door locked and he had been shot and was not moving or breathing. Confused, Mrs. Floyd asked how he knew this if the door was locked and he was unable to get into the room. Vaughn explained that his father normally snored but was doing nothing now - not snoring, not responding. Vaughn also told the Floyds he had already called the police and an ambulance. However, he did not actually telephone 911 and report the shooting until a short time later, at 1:49 a.m., after he returned home from the Floyds' house.

The first police officer to respond and arrive at the Vaughn's residence was Deputy Edward Olivares. Vaughn told Olivares his father was locked in his bedroom and bleeding from his head. Olivares forced the bedroom door open. Inside the bedroom, police found Vaughn's father lying in bed covered by a blanket that was covered with broken glass from a balcony door. It looked as if he was sleeping, but upon closer inspection, it became apparent to Olivares that Vaughn's father had been shot in the head and was no longer alive. Next to the bed was a large rock that someone had thrown through the glass door from outside. The police recovered the bullet that killed Vaughn's father and the bullet casing from the bedroom but found no gun.

Legal & Factual Sufficiency

In his third and fourth points of error, Vaughn argues the circumstantial evidence used to convict him is legally and factually insufficient. We disagree.

Standard of Review

"The fact that [Vaughn] was convicted upon circumstantial evidence does not, in itself, require reversal of the conviction under either our legal or factual sufficiency analyses. When reviewing a case comprised wholly of circumstantial evidence, the standard of review is the same as it is for reviewing cases in which direct evidence exists." King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000). In assessing the legal sufficiency of the evidence, we look at all the evidence in the light most favorable to the verdict to determine whether "any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). We review all evidence the jury was allowed to consider, even evidence improperly admitted. Rodriguez v. State, 819 S.W.2d 871, 873 (Tex. Crim. App. 1991). In reviewing for factual sufficiency, we examine all of the evidence introduced at trial to determine if the verdict '"is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.'" Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). We ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson, 23 S.W.3d at 11; see Clewis, 922 S.W.2d at 131.

Discussion

Although the State relied on circumstantial evidence to prove Vaughn murdered his father, the State showed Vaughn had both motive and opportunity to murder his father. See Harris v. State, 727 S.W.2d 537, 542 (Tex. Crim. App. 1987). Vaughn's mother admitted that she and her husband were having problems with Vaughn's low school grades and he had been fighting with his father about using the family car. In fact, Vaughn's father was so concerned about his son taking the car without permission that he had resorted to hiding the car key under his mattress at night. Vaughn's own testimony places him at home with his father the night of the murder and Vaughn's brother testified he heard Vaughn and his father yelling at each other earlier that night. Vaughn admitted he had a disagreement with his father over his decision to quit playing basketball.

Moreover, the State's evidence contradicted Vaughn's defense that Vaughn's father was murdered by a unknown third party who entered the home from the second floor balcony of the victim's bedroom. The bedroom windows were locked and the screens were intact. Other than a broken glass door leading from the balcony to the bedroom, there were no signs of burglary and nothing was taken from the family's home. Because broken glass from the balcony door was found on top of the blanket covering the victim, investigating officers concluded the glass door had not been broken by an intruder throwing a large rock to enter the home. Rather, it was more likely broken after the victim had been shot by someone wanting to make it look as if an intruder had broken into the house through the glass door and shot Vaughn's father. Hand prints matching Vaughn's and no others were found on the glass balcony door. Finally, although it was raining the night of the murder, police found no mud or footprints in the backyard on the ground next to the house, on the tree growing next to the balcony or on the balcony itself.

In addition, the State presented evidence that Vaughn's conduct on the night of the murder was suspicious. Unlike his mother and brother, Vaughn was very calm and showed no emotion in response to his father's death. The Floyds noticed Vaughn had changed his shirt before returning to pick up his brother at their house the night of the murder. Vaughn told the Floyds, Deputy Olivares, and a 911 operator his father had been shot and was bleeding from his mouth and that he was not breathing or moving. At the time, though, Vaughn had no way of knowing these things unless he had actually been inside the locked room with his father. And while Vaughn's hands did not show traces of gun shot residue when tested, Vaughn admitted to the testing officer that he had washed his hands. This and other evidence cast doubt on Vaughn's credibility and could have caused the jury to disbelieve Vaughn's version of what happened the night of the murder. We therefore hold that the evidence is legally and factually sufficient to support the jury's verdict. Vaughn's third and fourth points of error are overruled.

Batson Challenge

In his first point of error, Vaughn contends the trial court reversibly erred in denying his Batson challenge to the State's peremptory strike of Red Ray Crawford, an African American member of the venire panel.

Standard of Review

In reviewing a Batson point of error, we examine the evidence presented at the Batson hearing to determine whether the state was racially motivated in using a peremptory challenge against a member of the venire panel. Pondexter v. State, 942 S.W.2d 577, 581 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 825 (1997). In doing so, we examine the evidence "in the light most favorable to the trial court's ruling," and "we will not disturb the trial court's finding that the State's explanation is legitimate" unless it is clearly erroneous. Id. (quoting Chambers v. State, 866 S.W.2d 9, 25 (Tex. Crim. App. 1993)). A trial court's finding is clearly erroneous if we are left with a "definite and firm conviction that a mistake has been committed." Vargas v. State, 838 S.W.2d 552, 554 (Tex. Crim. App. 1992) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). We review the trial court's finding on the issue of discriminatory intent with great deference because the trial court is in the best position to assess the credibility of the State's explanation. Mandujano v. State, 966 S.W.2d 816, 819 (Tex. App.-Austin 1998, pet. ref'd) (citing Hernandez v. New York, 500 U.S. 352, 365 (1991)).

Applicable Law

After the defendant makes a prima facie showing that the State used a peremptory strike in a discriminatory manner, the burden of production shifts to the State to provide a race-neutral explanation for striking the juror. Pondexter, 942 S.W.2d at 581. In reviewing the State's reasoning, we look at the "facial validity" of the explanation offered and "[u]nless discriminatory intent is inherent in the [State's] explanation, the reason offered will be deemed race neutral." Hernandez, 500 U.S. at 360. Once the State provides a race-neutral explanation, the defendant must rebut the State's explanation to show that the State's purported reasons are a mere pretext and racially motivated. See Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999).Discussion Vaughn argues the State failed to provide a plausible explanation for its strike of Crawford. According to Vaughn, the State's explanation was insufficient to rebut his prima facie showing of racial discrimination because a venire person's "disability, prior DWI, or involvement in social service organization is not a basis upon which to exercise a peremptory strike" when the venire person has not been questioned about these matters by the State. We disagree.

To be sufficient, the State's explanation for exercising a peremptory strike "need not rise to the level justifying exercise of a challenge for cause." Batson v. Kentucky, 476 U.S. 79, 127 (1986). Even an explanation that is seemingly "silly or superstitious" will satisfy this step of the Batson process. Purkett v. Elem, 514 U.S. 765, 767 (1995). At the hearing, the State came forward with several reasons for striking Crawford. The State explained that its main reason for striking Crawford was because he answered the State's voir dire questions with riddles, making it "hard to ascertain exactly what his opinions or feelings were about the questions that were being asked of him." In recalling something Crawford said about a catfish on a shirt, the judge agreed that he too had difficulty understanding Crawford. The other reasons offered by the State were related to Crawford's eye and back injuries and resulting unemployment, a prior DWI, and his association with Meals-on-Wheels. The State explained it was their experience that persons involved in social service programs such as Meals-on-Wheels tended to be more lenient on punishment. Because no discriminatory intent is inherent in this explanation, we conclude the reasons provided were race-neutral and sufficient to sustain's the State's burden at this stage. Therefore, Vaughn had the burden of persuading the court otherwise. Purkett, 514 U.S. at 768 ("[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.").

For rebuttal, Vaughn argued: (1) the State had not struck other non-African American jurors charged with misdemeanors; (2) the State could not strike Crawford based on his prior DWI because it was outside the ten-year rule; and (3) Crawford's injuries did not make him any less qualified than the rest of the venire. The second and third of these arguments are insufficient to rebut the State's race neutral explanation. Disagreement with the State's reasons for striking Crawford does not prove the State was racially motivated in striking him. See Mandujano, 966 S.W.2d at 821 (defendant's response that he did not believe prosecutor's explanation for peremptory challenge was held to be insufficient). Vaughn's first argument also fails because the State showed that it had in fact struck a non-African American member of the panel who, like Crawford, had been charged with a crime. Cf. Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 926 (1993) (holding that when the State has offered several race-neutral reasons for its challenge, the fact that there were other acceptable jurors possessing one or more of the objectionable attributes is insufficient to establish disparate treatment). Finally, we note that Vaughn did not dispute or attempt to rebut the State's main reason for challenging Crawford, which was accepted by the trial court as facially plausible and race-neutral. See e.g., Ford, 1 S.W.3d at 693-94; Yarborough v. State, 947 S.W.2d 892, 896 (Tex. Crim. App. 1997). Because Vaughn did not meet his burden of persuasion to successfully challenge the State's peremptory strike of Crawford at trial, we conclude the trial court's ruling is not clearly erroneous. We therefore overrule Vaughn's first point of error.

Specific Instances of Conduct

In his second point of error, Vaughn argues the trial court reversibly erred in allowing the State to introduce evidence of specific instances of misconduct during the guilt/innocence phase of the trial. Specifically, Vaughn contends it was error for the trial court to admit evidence that he and his father had been fighting about the family car and evidence that Vaughn had run away recently, taking the car without his parent's permission. In response, the State argues the evidence was admissible as evidence of motive. Alternatively, the State urges the error, if any, in admitting the evidence was harmless because similar evidence was subsequently admitted without objection. We agree with the State.

"[I]t is well settled that an error in admission of evidence is cured where the same evidence comes in elsewhere without objection; defense counsel must object every time allegedly inadmissible evidence is offered." Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984). Here, Vaughn objected to the introduction of extraneous conduct when the State questioned Vaughn's mother about arguments Vaughn had with his father regarding his use of the family car, the father's subsequent resort to hiding the car key under his mattress at night to prevent Vaughn from taking the car without his knowledge, and an incident in which Vaughn had run away from home and taken the family car without permission. However, when the same or similar testimony was later elicited from Vaughn's mother and brother by the State, Vaughn raised no objection despite the court's earlier denial of Vaughn's request for a running objection and the court's cautioning Vaughn to "make your objections at the time the questions are asked. The ruling is limited to that one question." Thus, without deciding the issue of whether the court erred in admitting the evidence, we hold the error, if any, was cured and therefore harmless. Vaughn's second point of error is overruled and the judgment of the trial court is affirmed.

Sarah B. Duncan, Justice

Do not publish