Willie Charles Connor v. The State of Texas--Appeal from 77th District Court of Limestone County

IN THE

TENTH COURT OF APPEALS

No. 10-96-233-CR

WILLIE CHARLES CONNOR,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 77th District Court

Limestone County, Texas

Trial Court # 8568-A

O P I N I O N

Appellant Connor appeals from his conviction for Failure to Appear, for which he was sentenced to 9 years in the Institutional Division of the Texas Department of Criminal Justice and a $5,000 fine.

Appellant was on probation for 8 years for forgery. // The court modified the terms of his probation to require him to attend the Substance Abuse Felony Program (SAFP). The judge's order released Appellant overnight to take care of personal matters, but ordered him to report the next day to the jail at 5:00 p.m. Appellant did not report. He was arrested three weeks later and was indicted for failure to appear as ordered. Trial was to a jury which found Appellant guilty and assessed his punishment at 9 years in prison and a $5,000 fine.

Appellant appeals on 8 points of error.

Point 1 asserts the trial court erred in refusing to dismiss the jury panel in response to Appellant's Batson challenge.

The State peremptorily struck Jurors 18, 20 and 23. Appellant moved to dismiss the jury panel on the ground that the three jurors struck by the State were minority members of the jury panel. The State responded that Juror 18 was struck because he had been tried for DWI three times, for failure to appear two times and on two motions to revoke; that he had been handled seven or eight times; and that he had lied on his juror information form when he checked that he had not ever been accused. The State responded that Juror 20 was seen talking with the defendant prior to voir dire. The State responded that the prosecutor had known Juror 23 a long time and was real hesitant as to whether he could be fair in the case.

The trial judge found that systematic exclusions of minority people had not been shown and that the State had presented race-neutral reasons for the challenges to Jurors 18, 20 and 23.

It is constitutionally impermissible to exercise a peremptory strike on the basis of race. Batson v. Kentucky, 476 U.S. 79 (1986). To raise a Batson challenge, the opponent of the strike must make a prima facie showing of the State's discriminatory use of the strike. Purkett v. Elem, 115 S. Ct. 1769, 1790 (1995); Emerson v. State, 851 S.W.2d 269, 273 (Tex. Crim. App. 1993). Once the opponent makes a prima facie showing, the proponent of the strike has the burden to produce a race-neutral explanation of the strike. Purkett, at 1770, 1771. If a race-neutral explanation is given, the opponent of the strike must prove purposeful racial discrimination. Id. When the State's explanation is race-neutral on its face, the burden of persuasion shifts back to the accused to establish by a preponderance of the evidence that the reasons given were merely a pretext for the State's racially-motivated strike. Salazar v. State, 818 S.W.2d 405, 409 (Tex. Crim. App. 1991); Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991). At a minimum, this requires some effort be exerted by the accused to rebut the explanation by the State. Calderon v. State, 847 S.W.2d 378, 382 (Tex. App. El Paso 1993).

A reviewing court must consider the evidence in the light most favorable to the trial court's ruling. Salazar, at 408. Here, the State established a racially-neutral explanation for its challenge of each of the three jurors. The trial court found each reason constituted a racially-neutral explanation.

Appellant did not rebut the explanations given by the State and has failed to demonstrate that the trial court's ruling was clearly erroneous. Vargas v. State, 838 S.W.2d 552, 555 (Tex. Crim. App. 1997). Unless we are left with a firm conviction that a mistake has been made, the trial court's ruling should not be disturbed. Vargas, at 554. We do not believe the trial court's ruling to be erroneous.

Point 1 is overruled.

Point 2 asserts the evidence conclusively establishes that the order to appear was incident to community supervision and therefore cannot support a conviction for failure to appear. Tex. Penal Code, 38.10(b).

The court's order for Appellant to appear was contained in an order modifying probation. Appellant is mistaken in his assertion that it was incident to community supervision.

Point 2 is overruled.

Appellant's point 3 asserts there is no evidence that Appellant intentionally failed to appear.

Appellant's point 4 asserts the underlying order was legally too vague and unclear to support a failure to appear charge or conviction.

Appellant's point 5 asserts there is a variance between the indictment and the evidence.

Appellant, at the time of hearing, was incarcerated in the Limestone County jail and had been for some time. Appellant was present at the motion to revoke his probation on November 21, 1995. After the judge modified his conditions of probation to require him to participate in the Substance Abuse Felony Punishment Facility, the court, in response to a request by Appellant, added in his own hand to the prepared order: "Defendant shall be released from custody on 11/21/95 and must report to the Sheriff's office at 5:00 p.m. 11/22/95 to return to custody.

Appellant's indictment stated that on or about 22 November 1995:

. . .after being lawfully released from custody on condition that he subsequently report to the Limestone County jail intentionally and knowingly failed to appear in accordance with the terms of his release, to-wit: Defendant was ordered by the court to return to jail and the defendant did then and there fail to appear on the 22nd day of November 1995, in the County Jail of Limestone County, Texas, and the offense for which [Appellant's] was required is a felony.

Appellant was in the county jail before he was released on a one-day furlough by the judge. He knew where the jail was and to where he was to return.

Appellant did not return to the Sheriff's office or the jail on November 22, 1995, or until he was arrested three weeks later. Appellant intentionally failed to appear; the underlying order is not vague and unclear, but specific and clear; and there is no variance between the indictment and the evidence.

Points 3, 4 and 5 are overruled.

Point 6 asserts the trial court erred by not allowing the jury to consider probation because Appellant's felony convictions had not become final and were still on appeal.

Appellant is mistaken. His felony convictions were final; it was the revocations of Appellant s felony probations which were on appeal. The trial court correctly overruled his request that the jury be charged on probation. Franklin v. State, 523 S.W.2d 947 (Tex. Crim. App. 1975; Branch v. State, 704 S.W.2d 331 (Tex. App. Corpus Christi 1995).

Point 6 is overruled.

Point 7 asserts the trial court erred in allowing evidence of prior convictions at the punishment phase for the reason the convictions were not final and were on appeal.

The trial court did not err. Article 37.07, Texas Code of Criminal Procedure, sec. 3(a) provides that evidence may be offered by the State after a finding of guilty of any extraneous crime regardless of whether he has been finally convicted of the crime. Moreover, Appellant s convictions were final and, as noted, in our discussion of Point 6, it was the revocation of the probation which was on appeal.

Point 7 is overruled.

Point 8 asserts the trial court erred in admitting evidence of a prior misdemeanor conviction because the conviction was obtained through direct contact between himself and the State s attorney while he was represented by counsel.

Appellant asserts the contact is a violation of Disciplinary Rule 4.02(a) and that he did not intelligently waive his right to counsel. Disciplinary Rule 4.02(a) provides:

In representing a client, a lawyer shall not communicate or encourage another to communicate about the subject of the representation with a person, organization or entity of government.

The preamble of Disciplinary Rules states: These rules are not designed to be standards for procedural decisions. The rules attempt to induce ethical behavior by stating minimum standards of conduct below which a lawyer may be subjected to disciplinary action. Delta Air Lines v.. Cooke, 908 S.W.2d 632-33 (Tex. App. Waco 1995). Appellant s complaint based on an alleged disciplinary-rules violation is without merit.

Point 8 is overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed July 23, 1997

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