Marion Edward Johnson v. The State of Texas--Appeal from 361st District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-94-036-CR

MARION EDWARD JOHNSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 361st District Court

Brazos County, Texas

Trial Court # 22,282-361

O P I N I O N

A jury found Marion Johnson guilty of possession of a controlled substance, and the court assessed punishment of twenty years' imprisonment. See Tex. Health & Safety Code Ann. 481.102(3)(D), 481.115 (Vernon 1992). In his first point of error, Johnson claims that the court erred by overruling his Batson objection to the State's peremptory strikes. See Batson v Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). In a second point he challenges the sufficiency of the evidence supporting his conviction. We will affirm.

The State struck four black veniremembers. According to the undisputed statements of the defense, these were the only blacks among the first thirty-five members of the panel. When challenged, the State explained that it had struck all members of the venire whose relatives had been charged with or convicted of an offense, including all four of the challenged strikes.

Batson prohibits the use of peremptory challenges based on the race of the veniremen. See id. Under Batson, the intent to discriminate is a "pure issue of fact, subject to review under a deferential standard." Hernandez v. New York, 500 U.S. 352, ___, 111 S. Ct. 1859, 1869, 114 L. Ed. 2d 395 (1991); Vargas v. State, 838 S.W.2d 552, 554 (Tex. Crim. App. 1992). Thus, on appeal, "[t]he overriding standard is . . . whether the trial judge's decision was supported by the record so that it is not clearly erroneous." Vargas, 838 S.W.2d at 554. For us to conclude that the court's decision was clearly erroneous, we must be left with a "definite and firm conviction that a mistake [has] been committed." See Hernandez, 500 U.S. at ___, 111 S. Ct. at 1871; Vargas, 838 S.W.2d at 554.

As the appellate court, we view the record in the light most favorable to the court's ruling. See Adanandus v. State, 866 S.W.2d 210, 224 (Tex. Crim. App. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1338, 127 L. Ed. 2d 686 (1994). The record we review includes the racial makeup of the venire, the voir dire direct examination, the prosecutor's explanations, and the defendant's impeaching and rebuttal evidence. See Chambers v. State, 866 S.W.2d 9, 23 (Tex. Crim. App. 1993). Undisputed statements by the attorneys in support of their positions in a Batson hearing constitute "valid proof." See Emerson v. State, 820 S.W.2d 802, 804 (Tex. Crim. App. 1991).

Applying these standards to this case, the State asserted that it struck the veniremembers because of its concerns about their relatives' exposure to the criminal justice system. The record demonstrates that each of the challenged panelist had relatives who were charged with or convicted of an offense. This is a race-neutral reason for exercising peremptory challenges. See Sims v. State, 768 S.W.2d 863, 865 (Tex. App. Texarkana 1989), pet. dism'd, improvidently granted, 792 S.W.2d 81, 82 (Tex. Crim. App. 1990). The defense did not attempt to cross-examine the prosecutor or put rebuttal evidence before the court; thus, there is nothing in the record which objectively contradicts the prosecutor's reasons. See Vargas, 838 S.W.2d at 557. "Absent some other evidence which rebuts the State's race-neutral explanation, we will not disturb the trial court's finding that the State's explanation is legitimate . . . ." Chambers, 866 S.W.2d at 25. Thus, we cannot conclude that the trial court's decision was clearly erroneous. Point one is overruled.

In point two, Johnson claims that the evidence is insufficient. To obtain a conviction for possession of a controlled substance, the State had the burden of proving that (1) Johnson exercised care, control and management over (2) what he knew to be contraband. See Martin v. State, 753 S.W.2d. 384, 387 (Tex. Crim. App. 1988). In resolving the sufficiency-of-the-evidence issue, we view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988); Eaglin v. State, 872 S.W.2d 332, 336-37 (Tex. App. Beaumont 1994, no pet.). // The jury is entitled to reject the defensive evidence and credit the state's witnesses' version of the events. See Lackey v. State, 819 S.W.2d 111, 116 (Tex. Crim. App. 1989).

Viewed in the light most favorable to the State, the evidence shows that two Bryan police officers approached Johnson as he sat in a car in an area reportedly the site of ongoing drug trafficking. He became excessively nervous when the police began to question him. The officers saw him pick up a plastic cup and place it, upside down, on the floorboard hump between the passenger's and driver's seats. The officers discovered that there were several outstanding warrants for Johnson's arrest on traffic violations. After he was arrested, Johnson attempted to distract the officers from further investigation of the car. His attempts were unsuccessful, and the officers discovered a Tylenol bottle under the cup Johnson had placed on the hump. Inside the bottle the police found several rocks of "crack" cocaine.

We conclude that this evidence is sufficient to allow a rational trier of fact to find that Johnson exercised care, custody and control over the Tylenol bottle, knowing that the substance it contained was contraband. See Moreno, 755 S.W.2d at 867; Eaglin, 872 S.W.2d at 336-37. Thus, the evidence is sufficient to support his conviction. See Martin, 753 S.W.2d. at 387. Point two is overruled.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed September 21, 1994

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