Steven Charles Hill v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-98-296-CR

STEVEN CHARLES HILL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 23248CR

O P I N I O N

A jury found Steven Charles Hill guilty of burglary of a habitation. He plead true to enhancement paragraphs and the jury set punishment at eleven years in prison. Hill filed a motion for new trial which was overruled by operation of law. He perfected his appeal. We will affirm the trial court s judgment.

BACKGROUND FACTS

Early on the morning of October 31, 1997, Officer Bobby Milam of the Waxahachie Police Department observed two males, each carrying an air compressor. The officer turned his vehicle around to investigate but found only one man with an air compressor, whom he identified as Lester Johnson. He arrested Johnson on an outstanding warrant. The other man was no longer at the scene. The officer searched the scene and found the other air compressor behind a nearby house. Hill entered a plea of not guilty. Johnson entered a plea of guilty and agreed to testify against Hill.

THE APPEALHill appeals two issues. First, he claims that the trial court erred when it denied his motion to reinstate two jurors whom he alleges were struck for racial reasons. Second, he claims that the trial court erred in overruling his objection to the State s argument which he alleges was outside the record.

BATSON CHALLENGES AND REINSTATEMENT OF POTENTIAL JURORS

Background

In his first issue, Hill alleges the State impermissibly struck two jurors based on race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). After the parties had made their peremptory strikes, Hill objected that the State had struck Juror No. 9, and Juror No. 24, both of whom are the same race as the defendant. Hill argued that such strikes left no members of his race on the jury panel.

During a discussion of whether Hill had made a prima facie showing of discrimination, the prosecution pointed out that these two jurors were not the only African-American members on the prospective panel. The prosecution argued that she had calculated both sides as potentially exercising ten strikes each, accepting twelve jurors, thus potentially leaving Juror No. 32, an African-American female on the panel, while she chose to strike Juror No. 34 who had two brothers in jail pending DWI or drug charges. // Thus, she had potentially left at least one person of Hill s race on the jury, while using a strike to eliminate another prospective juror. //

The prosecutor articulated specific reasons for striking the two African-American females. Juror No. 9 initially stated that she knew someone who had been a victim, witness, or accused, but later stated that this could be error. The prosecutor did not believe her, stated that her answer caused concern, found her voir dire to be hostile, and found that she would not make eye contact. The prosecutor opted to strike her from the panel. Juror No. 24 testified on voir dire that she had cousins who were currently being prosecuted, thus she was struck for the same reasons as Juror No. 34.

Hill responded to these reasons for the strikes by arguing that other members of the venire had family members with a criminal history, and stated that No. 9 was not hostile. The prosecutor again stated that No. 9 was hostile and that the other members of the venire who had family members with a criminal history did not have pending criminal matters. The court found that the race-neutral reason for striking Juror No. 24 was acceptable and that Juror No. 9 was visibly hostile and evasive, thus also supporting a race-neutral reason for the strike. The court denied the Batson motion.

Standard Of Review

We review the record of the Batson hearing and the voir dire examination in the light most favorable to the trial court's ruling. Adanandus v. State, 866 S.W.2d 210, 223 (Tex. Crim. App. 1993). We will not disturb a trial court's ruling on a Batson issue unless it is "clearly erroneous." Id.

Batson Challenges

In Purkett v. Elem, 514 U.S. 765, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995), the United States Supreme Court delineated the three-step process for how a Batson challenge is to be properly determined. Step one: the opponent of a peremptory challenge must make out a prima facie case of racial discrimination, essentially a burden of production. Then, in step two, the burden of production shifts to the proponent of the strike to respond with a race-neutral explanation. If a race-neutral explanation is proffered, then the third step occurs: the trial court must decide whether the opponent of the strike has proved purposeful racial discrimination. This is the step regarding the burden of persuasion. The Supreme Court stressed that the "ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. Purkett, 514 U.S. at 767-68, 115 S. Ct. at 1770-71.

Specifically, the Texas Court of Criminal Appeals has held that once the State proffers race-neutral explanations for its peremptory strikes, the burden is on the defendant to convince the trial court that the prosecution's reasons were not race-neutral. See Camacho v. State, 864 S.W.2d 524, 529 (Tex. Crim. App. 1993); Tompkins v. State, 774 S.W.2d 195 (Tex. Crim. App. 1987). Thus, while the burden of production shifts from the defendant in step one to the State in step two, the burden of persuasion never shifts from the defendant. Magee v. State, 994 S.W.2d 878, 889-894 (Tex. App. Waco 1999, no pet. h.)

Application

After Hill challenged the basis of the State s strikes (step one), the State offered a racially-neutral explanation (step two), and Hill argued why the evidence supported a finding of discrimination (step three). The court then ruled on the ultimate issue of intentional discrimination. Thus, the only question we must address is whether appellant met his burden of establishing racial discrimination.

Although Hill asserted that the strike was motivated by race, the State gave racially-neutral reasons for its strike: a suspicious juror information card, a hostile, evasive demeanor in one juror as well as pending criminal charges against a family member in another juror. Hill responded to the State's assertions, however the trial court was not persuaded that the assertions were a sham or pretext. Id. We hold that Hill did not meet the ultimate burden of proving that the State's strike was racially motivated, thus the trial court ruling was not clearly erroneous. Id. We overrule issue one.

ARGUMENT OUT SIDE THE RECORD

During trial, the State called Lester Johnson to testify concerning the events of the night in question. Johnson stated that he took one compressor and that another individual was with him at the time. When asked about the identity of the other individual, he replied that the man s name was Bob. He admitted that his original statement to the police was that the man s name was Steve. He testified that he never identified the individual as Steve Hill, but stated that the officer questioning him suggested the last name. He admitted that he signed a sworn statement naming the individual as Steve Hill. He also testified that when he signed his written statement, he was lying. The written statement was not introduced into evidence.

During closing argument, the prosecutor argued that Johnson lied about the statement. The prosecutor stated, His statement to the police officers shortly after the incident states that Steven Hill was with him, that they both entered the building, took the air compressor, and left with it. Hill did not object to this argument. Later, the prosecutor argued that the testimony of two other witnesses corroborates what Lester Johnson told the police when he first talked to them in his written statement. Defense counsel objected to this argument as outside the record because the written statement was not in evidence. The objection was overruled by the trial court. It is this ruling of which Hill now complains.

Jury Argument

There are four permissible areas for jury argument: (1) summations of the evidence; (2) reasonable deductions from the evidence; (3) responses to opposing counsel s argument; and (4) a plea for law enforcement. Lagrone v. State, 942 S.W.2d 602, 619 (Tex. Crim. App. 1997), cert. denied, __ U.S. __, 118 S. Ct. 305 (1997). Counsel has wide latitude in drawing inferences from the evidence that are reasonable, fair, legitimate and made in good faith. Holmes v. State, 962 S.W.2d 663, 675 (Tex. App. Waco 1998, pet. ref d, untimely) (citing Sterling v. State, 830 S.W.2d 114, 120 (Tex. Crim. App. 1992)). It is well settled that the prosecutor may argue his opinions concerning issues in the case so long as the opinions are based on the evidence in the record and do not constitute unsworn testimony. Allridge v. State, 762 S.W.2d 146, 156 (Tex. Crim. App. 1988) (citing McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1986), cert. denied, 479 U.S. 871, 107 S. Ct. 239, 93 L. Ed. 2d 164 (1986)).

Application

During argument, counsel may draw from the facts in evidence all inferences that are reasonable, fair, and legitimate. Allridge, 762 S.W.2d at 156. In this case, the prosecution argued that a written statement not in evidence corroborated two other witnesses identification of Hill as Johnson s friend. While the written statement was not admitted into evidence, Johnson himself testified to having made the written statement and testified regarding the statements contained in it, namely that it identified Steve Hill as the man who committed the crime with him. It is reasonable to assume that the trial court took this argument as reference to Johnson s statements, rather than an attempt to actually put the specter of the contents of the written statement into the minds of the jury. We hold that the prosecutor's argument was a summation of the evidence in the record. Lagrone, 942 S.W.2d at 619. Hill s second issue is overruled.

CONCLUSION

Having overruled all of Hill s complaints, the trial court s judgment is affirmed.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed on January 26, 2000

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