Ophelia Combs v. The State of Texas--Appeal from County Court at Law No 2 of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-92-268-CR

OPHELIA COMBS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law No. 2

McLennan County, Texas

Trial Court # 921068 CR2

O P I N I O N

Ophelia Combs appeals her conviction for the misdemeanor offense of theft. After the jury found her guilty, the court assessed punishment at sixty days confinement. In her first of four points, Combs argues that the court erred in failing to instruct the jury about alibi witnesses. Second, she contends that the court erred in overruling her objection to the racial composition of the jury. In her third and fourth points she asserts that the State committed fundamental error in both voir dire and the jury argument. We affirm.

On March 8, 1992, at about 5:30 p.m., a woman was seen shoplifting meat from a grocery store. Ophelia Combs was identified at trial as the woman seen walking out of the store with a basket full of meat without paying for it. The State's theory was that Combs went to a church function at three o'clock p.m. on that same day, left the service to go to the grocery store, stole the meat, then returned to church.

Reverend Willie Tompkins, the pastor of the church Combs attended the day of the offense, testified that he saw her at church, but that he did not know when she left the church. Edith Brooks testified that she sat behind Combs at church that day, but that she, too, did not know when Combs left the church. Rometers Mason testified that she picked up Combs, they went to the 3:00 p.m. service, and returned Combs to her home at 7:00 p.m.. However, she also admitted that Combs could have left the church during the service and returned before the end of the service.

After the close of evidence, Combs requested an instruction concerning an alibi "defense." The court denied the request.

ALIBI

In her first point, Combs contends that the court erred in refusing to give an affirmative charge on alibi when the issue was raised by the evidence. Regardless of whether the evidence raised alibi, we adopt the logic and holding in Villarreal v. State, 821 S.W.2d 682 (Tex. App. San Antonio 1991, no pet.).

Alibi is not a statutory or an affirmative defense but is merely a denial of an element of the state's proof. Id. at 684-85. The prosecution must prove beyond a reasonable doubt the presence of the accused at the time and place of the crime, when that is essential to guilt, and an alibi is but a rebuttal or denial of that fact. Id. at 685. When evidence negates the existence of an essential fact of the state's proof, rather than seeks to justify or excuse the otherwise culpable conduct, the accused is not entitled to an instruction on the negating evidence. Id.

Here, the charge required the jury to find beyond a reasonable doubt that Combs committed the alleged offense. The charge then added: "If you do not so find and believe, or if you have a reasonable doubt thereof, then you will find the Defendant not guilty." Combs' rights were adequately protected by the charge, and the court did not err in refusing the requested charge on alibi. See id. at 686. The first point is overruled.

Batson

In her second point, Combs contends that the court erred in overruling her Batson objection. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 1989). Combs, who is black, objected to the empaneling of the jury on the ground that the State had used its peremptory challenges to strike both blacks and an Hispanic from the jury panel: Albert Washington (number 13), Beulah Banks (number 6), and Tony Rodriguez (number 5). After listening to the prosecutor's reasons, the court impliedly found that the strikes were not racially based and overruled the objection. The standard of review of the trial court's ruling is the "clear error standard." See Vargas v. State, 838 S.W.2d 552, 554 (Tex. Crim. App. 1992) (citing Hernandez v. New York, __ U.S. __, 111 S. Ct. 1859, 1871, 114 L. Ed. 2d 395 (1991)). The standard is applied by reviewing the record, including the voir dire, the racial makeup of the venire, the explanations of the prosecutor, and the appellant's rebuttal and impeaching evidence. "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Whitsey v. State, 796 S.W.2d 707, 721 (Tex. Crim. App. 1990) (on rehearing) (citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948)).

The State first argues that Combs never made a prima facie showing of racial discrimination. That issue became moot after Combs made her Batson objection, the prosecutor stated his reasons for the strikes, and the court ruled on the objection. See Hill v. State, 827 S.W.2d 860, 865 (Tex. Crim. App. 1992).

The prosecutor said that she struck Albert Washington because he was a former client of the defense attorney. Combs, however, argued that Washington indicated that he could be fair and impartial. The reason behind a peremptory strike does not have to rise to the level of a challenge for cause to be considered legitimately race-neutral. Batson, 106 S. Ct. at 1723. Striking Washington because of his prior relationship with the defense attorney is a facially race-neutral reason and is directly related to the case being tried. See Batson, 106 S. Ct. at 1724.

The State struck Rodriguez, the prosecutor said, because he had "previous problems" with the District Attorney's Office and with the prosecutor personally when she handled his most recent case. This explanation is a facially race-neutral reason and is directly related to the case being tried. Id.

According to the prosecutor, Banks was struck because of her association with Reverend Tompkins, a witness for the defense. A defendant may, on appeal, rely on a comparative analysis of jurors to show disparity between the treatment of jurors of different ethnicities to support the argument that the prosecutor's reasons for striking jurors were pretextual. Young v. State, 826 S.W.2d 141, 146 (Tex. Crim. App. 1991). Combs attempts to show disparate treatment between Banks and juror number twelve. She argues that Banks, who is black, knew Tompkins and was struck, but that juror number twelve also knew Tompkins but was not struck.

Banks explained her friendship with Tompkins in the following way: "Willie worked with my sister and for Vic Feazell [a former district attorney] in the District Attorney's office awhile back, plus he's a minister and a family friend." Juror number twelve said that Tompkins was a friend of his son and had come to his house "a couple of times." The State contends that there is a difference between the degree of friendship with Tompkins as described by the two jurors. Banks describes her friendship as recent and personal, while juror number twelve identified Tompkins as a friend of his son who had been to his house "years ago." Thus, the court could have reasonably found that the relationship between Banks and Tompkins was significantly different from Tompkins' relationship with juror number twelve. Because of the significant difference, we hold that Combs has failed to show disparate treatment between the two jurors. The court's ruling on the Batson objection is not clearly erroneous. Point two is overruled.

In her third point, Combs argues that the State's attorney made an improper jury argument by commenting on her failure to testify. Any complaint about argument by the prosecution at the guilt-innocence stage of trial, wherein comment was allegedly made upon Combs' failure to testify, has not been preserved by an objection. See Tex. R. App. P. 52(a); Craig v. State, 480 S.W.2d 680, 682 (Tex. Crim. App. 1972). We overrule point three.

Finally, in point four Combs contends that the prosecutor committed fundamental error when she told the venire panel during voir dire that punishment would be assessed by the court and not the jury. However, because Combs never objected to the statement or obtained an adverse ruling, nothing is preserved for appellate review. See Tex. R. App. P. 52(a). We overrule the fourth point and affirm the judgment.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 4, 1993

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