WILLIE OLIVER EVANS,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00916-CR
 
 
WILLIE OLIVER EVANS,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES MCCLUNG, ROWE, AND BURNETT
OPINION BY JUSTICE BURNETT
JUNE 15, 1989
 
 
 
 
 
 
        Willie Oliver Evans appeals his conviction for aggravated robbery. The jury assessed punishment, enhanced, at 45 years' confinement and a $5000 fine. In two points of error, Evans contends that 1) the state improperly struck black venirepersons during jury selection and 2) the trial court erred in failing to suppress the in-court identification testimony of witness James Armstrong. We disagree and for the reasons discussed herein, affirm the judgment of the trial court.
        On October 10, 1987, James Armstrong was working as an attendant at a Mobil station in north Dallas. His roommate and fellow employee, Antonio Sirls, was also present. At approximately 3:00 a.m., a black man with a light beard and mustache, dressed all in black, entered the station, walked to the back, and got a canned soda. The man, who was later identified as Evans, then walked toward the cash register where Armstrong was talking with Sirls. As Evans approached the check out stand, he told Armstrong that he wanted the money out of the register. Evans then pulled a black, snub-nosed revolver from his back pocket and pointed it at Armstrong. Armstrong opened the drawer of the cash register to get the money out, believing that he would be shot if he failed to comply. Evans took the money, approximately fifty-five dollars, from the cash register drawer and placed it in a plastic bag. Evans suggested that he should shoot Armstrong, increasing Armstrong's fear that he would be killed. After the bag was filled with money, Evans forced Armstrong and Sirls into a storage area in the rear of the station. After about five minutes, the victims looked through the peep hole in the door and when they did not see Evans, they left the storage room and called the police.
        Approximately four months after the robbery, Armstrong was walking through his apartment complex which was located about one block from the Mobil station. A friend directed his attention to someone moving out of the complex. Armstrong recognized this person as Evans. The apartment being vacated was several buildings removed from Armstrong's apartment, but in the same complex. Armstrong called the police and gave them this additional information including the license plate number of the car and truck that Evans was using to move. Dallas police officer Lee Bollinger responded to the report and arrested Evans after determining that Evans matched the description of the robbery suspect.
        In his first point of error, Evans maintains that the State improperly struck black venirepersons during jury selection. Although eight of the thirty-two members of the jury panel were black, only one black ultimately served on the jury. Of the potential black jurors who did not serve, Evans struck one potential black juror and the State struck the remaining six.
        In Batson v. Kentucky, 106 S. Ct. 1712 (1986), the Supreme Court held that once a prima facia showing of racial discrimination has been made by a defendant, the burden shifts to the state to demonstrate a racially neutral explanation for challenging the jurors. Henry v. State, 729 S.W.2d 732 (Tex. Crim. App. 1987). In the instant case, the court allowed the State to offer explanation for striking the six black venirepersons without ruling on whether or not Evans had established a prima facia case of racial discrimination.
        Although Evans had specifically objected only to venireperson nineteen, the prosecutor offered the following explanations for his strikes:
1) Herbert Washom, a black male, was a musician in a jazz or rock band and was thus a "free thinker". Also, Washom had difficulty remembering what had occurred with regard to a murder he had witnessed in the past.
2) Juror nineteen, a black female, volunteered that she was a minister. The prosecutor felt such a person might be sympathetic and forgiving towards the defendant.
3) Kenneth Blackman omitted a lot of information on his jury information card. He had negative body posture, crossed his arms and starred at the floor, during jury questioning. The prosecutor testified that "he looked like a deadbeat and wouldn't be someone who wanted to be on a jury."
4) A.D. Phillips was disabled, had been convicted of driving while intoxicated three times, and had a son who was a convicted felon.
5) Willie Gilling, a black female, had three D.W.I. convictions and was "terse and short" during jury questioning.
6) Finally, juror thirty, a black male, did not completely fill out his jury information card and would not directly respond to questions. The prosecutor "didn't feel like he really liked [him] or wanted to be on [the] jury."
After the prosecutor was cross-examined by Evans, the trial court again overruled Evans' objection to the jury's composition.
        Assuming, without so deciding, that Evans presented a prima facia case of racial discrimination, we must now determine whether the trial court properly concluded that the prosecutor's explanations were racially neutral and not merely pretexts for racially motivated peremptory challenges. See Whitsey v. State, No. 1121-87 (Tex. Crim. App. 1988) (not yet reported). In Keeton v. State, 749 S.W.2d 861 (Tex. Crim. App. 1988)(Keeton II), the court discussed a nonexclusive list of factors which weigh against the legitimacy of a race-neutral explanation. The presence of any one of those factors tends to show that the State's reasons are not supported by the record or are an impermissible pretext. Those factors, which we employ in our analysis today, are as follows:
        1) the reason given for the peremptory challenge is not related to the facts of the case;
        2) there was a lack of questioning to the challenged juror or a lack of meaningful questions;
        3) disparate treatment - persons with the same or similar characteristics as the challenged juror were not struck;
        4) disparate examination of members of the venire, i.e., questioning a challenged juror so as to evoke a certain response without asking the same question of other panel members; and
        5) an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically.
 
 
Keeton II, 749 S.W.2d at 866. The record from the Batson hearing in this case does not indicate that any of these criteria were violated. We hold that in the light most favorable to the trial judge's ruling and in the context of this case, the explanations given by the State were racially neutral. We overrule Evans' first point of error.
        In his second point of error, Evans contends that the trial court improperly failed to suppress Armstrong's in-court identification of Evans. In support of his contention, Evans asserts that the pretrial photographic array was impermissibly suggestive, the pretrial description differs from Evans' actual description, and that although Evans lived in Armstrong's apartment complex, Armstrong did not immediately notify police and, thus, the in-court identification was tainted.
        As a general rule, unless it is shown by clear and convincing evidence that a witness' in-court identification of a defendant was tainted by improper pretrial procedures, the in-court identification is admissible. Jackson v. State, 628 S.W.2d 446, 448 (Tex. Crim. App. 1982). When a witness' in-court identification is challenged, the reviewing court must determine how independent the witness' ability to reconstruct an accurate image of the criminal may be, in comparison with the pretrial identification and the appearance of the defendant at trial. Id. As stated in Turner v. State, 614 S.W.2d 144, 146 (Tex. Crim. App. 1981), the test for determining the independence of the in-court identification is:
        1) the prior opportunity to observe the alleged criminal act,
        2) the existence of any discrepancy between any pre-lineup description and the defendant's actual description,
        3) any identification prior to lineup of another person,
        4) the identification by picture of the defendant prior to the lineup,
        5) failure to identify the defendant on a prior occasion, and
        6) the lapse of time between the alleged act and the lineup identification.
 
 
Although Evans asserts that the photographic array was suggestive, he offers no reason why this is so and we find no reason in the record.
        Evans also contends that the description given by Armstrong of a black man with a light beard and mustache differs from Evans' actual appearance because Evans has a goatee and mustache. We do not agree that this is a substantial difference.
        Evans further argues that Armstrong had ample opportunity to recognize him at the apartment complex and failed to do so. Thus, Evans contends that the in-court identification was not of independent origin. However Armstrong had ample opportunity to view Evans during the robbery. Armstrong unequivocally testified at the pretrial hearing on the Motion to Supress that his in-court identification was of independent origin.
        We hold that the court did not improperly admit Armstrong's in-court identification. We overrule Evans' second point of error.
        The judgment of the trial court is affirmed.
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-00916.F
 
 
 
 
File Date[01-02-89]
File Name[880916]