TONY WILSON, AKA STEPHANIE ANTONIO MCFADDEN, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed November 6, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01263-CR
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TONY WILSON, AKA STEPHANIE ANTONIO MCFADDEN, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F88-84607-LH
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O P I N I O N
Before Justices Whitham, Baker and Ovard
Opinion By Justice Whitham
        Appellant appeals a conviction for robbery. We find no merit in any of appellant's four points of error. Accordingly, we affirm.
        In his first two points of error, appellant contends that the trial court erred in overruling his objection to the State's peremptory challenge of potential jurors Helen Butler and Jeff Davis. Appellant argues that the State's reasons for striking two black prospective jurors from the panel available for jury service are no more than facially legitimate, concealing a discriminatory motive. Specifically, appellant maintains that the prosecutor's stated reasons for exercising peremptory challenges of prospective jurors Butler and Davis are merely facially neutral explanations which amount to a "frivolous attempt to comply with the dictates of Batson." Accordingly, appellant insists that the trial court erred in overruling his objections to the State's use of its peremptory challenges against the two prospective jurors.
        In order to raise a Batson question, the accused must first demonstrate that the prosecutor's conduct (including any statements by him), during voir dire and in the exercise of the State's peremptory challenges, establishes a prima facie case of purposeful discrimination. The elements of such a prima facie case were set out in the Court of Criminal Appeals' first opinion in Keeton v. State, 724 S.W.2d 58 (Tex. Crim. App. 1987). In order to invoke the protections set forth in Batson, a defendant must establish purposeful discrimination by showing that:
        1.        He was a member of a cognizable racial group;
 
        2.        the prosecutor had exercised peremptory challenges to remove from the venire members of the defendant's race (peremptory challenges constitute a jury selection practice which permits those to discriminate who are of mind to discriminate); and
 
        3.        the facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen on account of their race.
Keeton v. State, 724 S.W.2d at 65; see also Batson v. Kentucky, 476 U.S. 79 (1986). The second part of the Batson hearing was summarized in Glenn v. State, 754 S.W.2d 290 (Tex. App.--Houston [14th Dist.] 1988, no pet.). Under Batson, once the defendant makes a prima facie showing of purposeful discrimination in the selection of the jury, the burden shifts to the State to come forward with a racially neutral explanation, related to the particular case, for challenging black jurors. Once the prosecutor has articulated racially neutral explanations, the other side can attempt to show that such explanations are merely pretextual. Keeton v. State, 749 S.W.2d 861, 865 (Tex. Crim. App. 1988) (citing with approval State v. Antwine, 743 S.W.2d 51 (Mo. 1987)). Glenn, 754 S.W.2d at 290. While the State must go forward with its explanations only when a prima facie case of purposeful discrimination has been established by the defendant, when a prima facie case is established and the State then attempts to rebut it by presenting such explanations, the ultimate burden of persuasion (by preponderance of the evidence) remains on the party asserting that the Batson violation occurred. Tompkins v. State, 774 S.W.2d 195, 201-02 (Tex. Crim. App. 1987), aff'd by an equally divided court, ___ U.S. ___, 109 S. Ct. 2180 (1989); see also Stanley v. State, 542 A.2d 267, 272 (Md. 1988), citing Batson, 476 U.S. at 94, n.18. Following the delivery of the Supreme Court's opinion in Batson, the Texas Legislature enacted Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon Supp. 1989), which codified the procedure outlined in Batson.
        The role of the appellate court in reviewing the determinations of the trial court at a Batson hearing were also discussed by the Court of Criminal Appeals in Keeton. Basically, the Court of Criminal Appeals rejected the standards of review utilizing by some other state courts and the federal courts. Specifically rejected were the "clearly erroneous" standard used in the federal courts and adopted by the Alabama Supreme Court in Ex parte Branch, 526 So. 2d 609 (Ala. 1987) and the Georgia Supreme Court in Gamble v. State, 257 Ga. 325, 357 S.E.2d 792, 793-94 (Ga. 1987). Also rejected was the "manifest abuse of discretion" standard applied by the Indiana Supreme Court in Stamps v. State, 515 N.E.2d 507 (Ind. 1987). Keeton v. State, 749 S.W.2d at 869-70. Instead, in Texas, appellate focus, as well as that of the trial judge, should be on whether purposeful discrimination was established. We consider the evidence in the light most favorable to the trial judge's rulings and determine if those rulings are supported by the record. If the record supports the findings of the trial judge, they will not be disturbed on appeal. See Keeton, 749 S.W.2d at 870. This standard of review (light most favorable to the decision below) has also been utilized by at least one of our sister states, e.g., Tatitano v. Commonwealth, 358 S.W.2d 590 (Va. App. 1987).
        In the present case, the trial court made no formal, specific rulings regarding the precise basis for its decision overruling appellant's Batson motion. Nevertheless, on this record, we need not have this information. Moreover, for the purposes of this opinion, we assume, but do not decide, that appellant made out a prima facie case of purposeful discrimination. Thus, we reach the principal issue of appellant's first two points of error; whether the explanations provided for the exercise of the State's peremptory challenges against Butler and Davis were sufficient to rebut that prima facie showing. The prosecutor's explanations for striking Butler and Davis from the jury panel were as follows:
        Your Honor, the State struck No. 16, Helen Marie Butler, primarily because she stated that she had a son who was sent to the penitentiary. I also struck her -- that was the primary reason I struck her.
 
        The second reason -- and this really didn't quite have much effect although it did influence me a little bit, under religious preference she put COGC and I"m always a little bit leery of something I don't know about, and I really don't know what they stand for. I'm guessing they stand for Church of God's children.
 
        And I think that if it is the Church of God's Children that Bob -- I'm receiving a shake of the head from the bailiffs, so evidently I'm not even right on that, but again I struck No. 16 primarily because of the fact that her son had been to the penitentiary.
 
        I struck Juror No. 26 [Davis] because of a number of reasons. First and foremost, I propounded the question to the jury, have you yourself or a close family member ever been accused of any criminal offense.
 
        The State has learned from the Dallas County computer system that a male with his same name and his date of birth has been convicted of two DWI's in 1983 and 1986. I struck him mainly because of that reason, the fact that he did not speak up when I asked him that question.
 
        I also struck him because he is unemployed, he's 63 years of age, and also just by looking at him throughout the voir dire phase, he seemed extremely bored to me throughout and unresponsive throughout the voir dire phase of this trial.
In response to the State's explanation of its strikes of Butler and Davis, appellant's counsel repeated his bare contention that the State, nevertheless, had used those strikes solely on the basis of its racial motivation. Appellant's counsel asked the court to order the jurors reinstated and placed back within the pool of jurors from which the jury could be selected and that the State be given its two strikes back and allowed to strike any other two people as they so desired. We express no opinion on the propriety of the relief sought by appellant. The court denied the request and the motion.
        We conclude that the record demonstrates that the trial court had been presented with sufficiently neutral purposes to have a reasonable basis to deny appellant's request and motion. We reach this conclusion because, concerning his use of a strike against Butler and Davis, the prosecutor offered neutral and legitimate explanations. Therefore, the State used an approved exercise of its peremptory challenges of both prospective jurors. Hence, we conclude that, viewed in a light most favorable to the decision below, the action of the trial court is supported by the record. We overrule appellant's first and second points of error.
        In his third point of error, appellant contends that the State failed to sustain its burden of proof that the grand jury exercised due diligence in attempting to ascertain the nature of the weapon used in the offense. In his fourth point of error, appellant contends that a fatal variance exists between the allegation of the indictment that the nature of the weapon used in the offense was unknown to the grand jury and the proof adduced at trial. Appellant briefs these two points together telling us that the two points involve the same issues of law and fact.
        The State alleged the object appellant used to inflict the injuries upon the complaining witness was unknown to the grand jury. The appellant points to the complaining witness' testimony wherein he stated that his injuries may have been inflicted upon him by use of a brick, rock or bottle and argues that this testimony "raises the issue of whether the Grand Jury exercised diligence in attempting to ascertain the nature of the object used." Appellant asserts that the due diligence of the grand jury became part of the State's burden of proof because it was shown at trial that the grand jury, in making its determination that the object was unknown, did not go beyond the testimony of one officer who stated that the complaining witness did not identify the object. Given these circumstances, appellant claims a variance arises between the proof adduced and the allegation in the indictment.
        Specifically, complainant stated to the jury that he could not tell what was used to hit him. He merely guessed that the object used could have been "something like" a brick, a rock or a bottle. In response to appellant's sole question on cross-examination as to the object used in the offense, complainant stated without equivocation that he had no idea of what the assailant used to hit him. Officer Hulsey testified at trial that when he received the details of the offense from the complainant, the complainant said that he was unsure of the identity of the object used to inflict his injuries. Hulsey did not state that any object was found at the scene of the offense; nor did appellant take an opportunity upon cross-examination to inquire into the identity of the weapon with the officer on the stand. The State did not introduce into evidence any object or objects which may have been the weapon itself or similar to the weapon used in the offense. Lisa Blue, a member of the grand jury which handed down the indictment, testified that the grand jury received the testimony of Officer Johnson. Johnson informed the grand jury that complainant did not know the identity of the object used by his assailant. After reviewing the transcript of Officer Johnson's testimony before the grand jury, Ms. Blue stated that she did not recall an object being suggested to the grand jury as that used in the offense. With this testimony, it was determined by the grand jury that the identity of the object used to inflict the injuries on Clark was unknown.
        When an indictment alleges that the manner and means utilized to inflict an injury is unknown, and the evidence at trial does not show what type of object was used, a prima facie showing exists that the object was unknown to the grand jury. Washington v. State, 677 S.W.2d 142, 145 (Tex. App.--Dallas 1984, no pet.) (citing Cunningham v. State, 484 S.W.2d 906, 911 (Tex. Crim. App. 1972)). See Gragg v. State, 214 S.W.2d 292, 294 (Tex. Crim. App. 1948). Appellant insists that the grand jury's acceptance of Johnson's testimony, without further inquiry, demonstrates the State's failure to sustain its burden of proof on the issue of the grand jury's diligence in ascertaining the identity of the weapon used and reveals the fatal variance between the proof and the allegations in the indictment. We conclude that a review of the record indicates that if the grand had been in possession of all the evidence presented at appellant's trial, they still could not have ascertained the identity of the object used to inflict the injury. We reach this conclusion because nothing was developed in the trial to suggest that by additional investigation the grand jury could have ascertained the object the accused used in the commission of the offense. We conclude, therefore, that there is a prima facie showing that the identity of the object was unknown to the grand jury, thereby supporting such averment in the indictment. Washington, supra. Under such circumstances, a question of variance in the proof and the allegation need not be considered. Cunningham, supra.
        With regard to whether an "issue" has been raised as to the "unknown" allegation in the indictment, in Polk v. State, 749 S.W.2d 813 (Tex. Crim. App. 1988), the Court of Criminal Appeals stated the general rule as follows:
                The issue . . . is not whether the grand jury exercised due diligence. Instead, the preliminary issue that must be raised by the evidence is whether or not the ["unknown"] allegation . . . was actually unknown. In other words, the issue is whether or not the identity of the allegedly unknown [fact] was known or with the exercise of reasonable diligence capable of being known. Consequently, grand jury due diligence must be proven by the State only after the evidence reveals that the . . . identity was known or capable of being discovered. If the identity . . . was unknown or incapable of being discovered then evidence of a grand jury's diligence in trying to discover that which remains unknown, would be a time consuming exercise of selfserving futility .
 
* * *
                The real question then is whether the ["unknown" allegation] . . . later became known. Only then does the State assume the additional burden of proving grand jury due diligence in making such a determination.
Polk, 749 S.W.2d at 817 (emphasis in original).
        We conclude that the issue on review is not as appellant would have it. The first inquiry is whether the evidence introduced at trial established the nature of the object which was used to injure the complainant. Washington, supra. The issue for this Court is not whether Johnson's testimony is a sufficient basis for the grand jury's decision to indict the appellant with this "unknown" allegation. We must ask the preliminary question whether or not the "unknown" allegation was actually unknown. Given the complainant's testimony that he did not know and had no idea what object was used in the attack, the fact that he also ventured a mere guess that the object used was "something like" one of three blunt instruments, does not constitute evidence of its identity. Absolutely nothing in this record indicates that the identity of the weapon became known or with exercise of reasonable diligence was capable of being known. Consequently, we conclude that the State was not required to prove due diligence in the grand jury because it bears this burden "only after the evidence reveals that the identity was known or capable of being discovered." Polk, 749 S.W.2d at 817; see Salazar v. State, 711 S.W.2d 720, 725 (Tex. App.--Corpus Christi 1986, pet. ref'd). Under the circumstances, we need not make the next inquiry as to whether the grand jury was aware of this fact and whether it used reasonable diligence to ascertain the identify of the object used. Washington, supra. We conclude, therefore, that the State had made a prima facie showing that the identity of the object was unknown to the grand jury. Thus, the "unknown" averment in the indictment was supported and no question of variance in the proof was raised. We conclude that the evidence is sufficient to prove the grand jury did not know and could not have determined the exact identity of the weapon used to commit the offense. We overrule appellant's third and fourth points of error.
        Affirmed.
 
 
                                                          
                                                          WARREN WHITHAM
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
 
881263.U05
 
 
File Date[11-06-89]
File Name[881263]