ALVIN DARNELL PAYNE, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion Filed November 9, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00079-CR
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ALVIN DARNELL PAYNE, Appellant
V.
THE STATE OF TEXAS, Appellee
 
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On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. F88-87047-JL
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OPINION PER CURIAM
Before Justices McClung, Lagarde and Ovard
        Alvin Darnell Payne appeals his conviction for burglary of a building. Punishment, enhanced by two prior convictions, was assessed at thirty-five years' confinement.
        Appellant's attorney has filed a brief in which appellant's attorney has concluded that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why, in effect, there are no meritorious grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). A copy of counsel's brief has been delivered to appellant and appellant has been advised that he would be given the opportunity to examine the appellate record and that he had a right to file a pro se brief. No pro se brief has been filed. Counsel has raised four arguable points of error, claiming that the trial court erred in (1) allowing the State to use its peremptory strikes in a racially discriminatory fashion; (2) allowing evidence of extraneous offenses; (3) overruling appellant's objection to comparison testimony; and (4) charging the jury on the law of parties. We affirm the judgment of the trial court.
        In his first point of error, appellant claims that the trial court incorrectly found that appellant failed to make out a prima facie case of racially discriminatory use of peremptory strikes. See Batson v. Kentucky, 476 U.S. 79 (1986). The record reflects that the parties agreed that appellant is black; nine venirepersons were black. Of these nine venirepersons, five were seated on the jury and one was selected as an alternate. Of the three remaining venirepersons, the State said that one was struck because she did not appear to pay attention to the State's attorney during voir dire, and she did not make eye contact with the State's attorney; she appeared to pay more attention to defense counsel. Another black venireperson was struck because she had seven children and did not appear to be a "State's oriented juror". The third black venireperson challenged was struck because she had her eyes closed during voir dire, and the State's attorney believed that she was not paying attention. Appellant neither cross-examined the State's attorney, nor offered any evidence in rebuttal of the State's articulated reasons for its strikes. The trial court then found that appellant had failed to make out a prima facie case of racial discrimination. It also found that even if appellant had made out a prima facie case, the State had offered racially neutral reasons for its peremptory strikes. The court also noted that three additional jurors were Hispanic.
        A prima facie case is the minimum quantum of evidence necessary to support a rational inference that the allegation is true. Dewberry v. State, No. 1231-87, slip op. at 3 (Tex. Crim. App. Sept. 13, 1989) (not yet reported). The party with the burden of proof must produce at least this much evidence to avoid a finding that the allegation is not true as a matter of law. Dewberry, slip op. at 3; Tompkins v. State, 774 S.W.2d 195, 201 (Tex. Crim. App. 1987), aff'd, 109 S. Ct. 2180 (1989). In the present cause, the fact that the State used three peremptory challenges to strike black venirepersons could be seen as sufficient to make out appellant's prima facie case. As a result, we disagree with the trial court's determination that appellant failed to make out a prima facie case of racial discrimination in the exercise of its peremptory challenges.
        However, the court also found that the State presented racially neutral reasons for striking the three black venirepersons. In reviewing the trial court's findings, this Court must consider the evidence in the light most favorable to the trial court's rulings, and must determine whether the rulings are supported by the record. Whitsey v. State, No. 1121-87, slip op. at 6-7 (Tex. Crim. App. May 10, 1989); Keeton v. State, 749 S.W.2d 861, 870 (Tex. Crim. App. 1988). Utilizing this standard, we hold that the record amply supports the findings of the trial court. The State utilized only three of its ten peremptory challenges to strike black venirepersons; five blacks sat on the jury, and a sixth remained as an alternate. The State offered as its reasons for its peremptory challenges that one venireperson did not pay attention to the State's attorney, one did not appear to be State-oriented, and one did not pay attention at all during voir dire. Courts of this State have recognized that "body English" is sufficiently neutral to rebut a prima facie case of discriminatory peremptory challenges. Grady v. State, 730 S.W.2d 191, 195 (Tex. App.-Dallas 1987), vacated on other grounds, 761 S.W.2d 2d 19 (Tex. Crim. App. 1988); Chambers v. State, 724 S.W.2d 440, 442 (Tex. App.--Houston [14th Dist.] 1987, no pet.). Appellant neither cross-examined the prosecutor, nor offered evidence in rebuttal. The trial court chose to believe the reasons proffered by the State. We conclude that the trial court's findings were supported by the record. Compare Allen v. State, 751 S.W.2d 931, 935 (Tex. App.--Houston [1st Dist.] 1988, no pet.). Appellant's first point of error is overruled.
        In his second arguable point of error, appellant claims that the trial court erred in allowing evidence of extraneous offenses. The record reflects that the complainant testified that his warehouse had been broken into before on numerous occasions. Appellant objected to "any testimony about extraneous offenses"; the court overruled his objection, but instructed the jury not to consider the testimony given as any evidence of appellant's guilt.
        We first note that the evidence complained of by appellant does not appear to be an "extraneous offense" as defined by the courts of this State. An extraneous offense is any act of misconduct which is not shown in the charging instrument and which is alleged to have been committed by the accused. McDonald v. State, 692 S.W.2d 169, 173 (Tex. App.--Houston [1st Dist.] 1985, pet. ref'd); Gomez v. State, 626 S.W.2d 113, 114 (Tex. App.--Corpus Christi 1981, pet. ref'd). In the present cause, the evidence showed only that the complainant's warehouse had been broken into prior to the burglary of which appellant was accused. Neither party intimated that the earlier burglaries were the work of appellant. As a result, we conclude that the evidence was not inadmissible on the claim that it constituted an "extraneous offense".
        However, even if the evidence constituted an "extraneous offense", the trial court's instruction to disregard the testimony as any evidence of appellant's guilt cured any potential error. Cf. Barber v. State, 511 S.W.2d 937, 941 (Tex. Crim. App. 1974) (jury charge containing instruction limiting consideration of extraneous offenses is proper to prevent consideration of offenses as evidence of guilt of accused). Appellant's second arguable point of error is overruled.
        In his third arguable point of error, appellant claims that the trial court erred in overruling his objection to what he characterizes as "comparison testimony". He objects to the following cross-examination of appellant:
    Q: As I understand what you are saying, you were never on the dock of the building?
    
    A: No.
 
    Q: Never up there?
 
    A: From what I seen that night, in order to be on the dock there, I think the door has to be open because it is all in the same line.
 
    Q: From what you recall about the building?
 
    A: Yes.
 
    Q: [The complainant], of course, it being his building, would probably have a better understanding of that building, don't you think?
The record also reflects that the complainant testified that he first saw appellant standing on the dock of the warehouse. Appellant claims that it was error for the State to question him as to whether the complainant or he would have a better recollection of whether he was standing on the dock at the time the complainant first saw him.
        The scope of cross-examination is subject to the sound discretion of the trial court. Easterling v. State, 710 S.W.2d 569, 579 (Tex. Crim. App. 1986). Where there is an irreconcilable conflict between the testimony of the prosecution and the testimony of the defendant, considerable latitude should be allowed in cross-examination of the defendant. Reyes v. State, 741 S.W.2d 414, 421 (Tex. Crim. App. 1987).
        In the present cause, appellant had presented as a defense a claim that he was an innocent bystander. He claimed to have approached a group of men for a cigarette shortly before the complainant had arrived; when the complainant arrived, the men fled, and the complainant beat him over the head with a gun. His testimony was in direct conflict with that of the complainant, who testified that he first saw appellant on the dock of the warehouse. Appellant said that it would have been impossible for him to be on the dock when the doors were closed. We see no error in allowing the State to impeach appellant by asking him whether he or the complainant would know more about the building. Appellant's third arguable point of error is overruled.
        In appellant's final arguable point of error, he claims that the trial court erred in charging the jury on the law of parties when there was insufficient evidence to support this claim, and when the State had not given notice in its indictment that it would be relying on the law of parties. The record reflects that the complainant saw three men walking quickly away from his warehouse. He then saw appellant jump down from the dock of the warehouse; he stopped appellant until police arrived. Inside the warehouse, a cement mixer that weighed approximately 1200 pounds had been moved to the door of the warehouse. The complainant testified that the mixer could not be moved by one man.
        The trial court may charge on the law of parties and apply the law to the facts if the evidence supports such a charge, even if there is no such allegation in the indictment. Williams v. State, 676 S.W.2d 399, 401 (Tex. Crim. App. 1984); McMillan v. State, 696 S.W.2d 584, 585 (Tex. App.--Dallas 1984, no pet.). In the present cause, the evidence showed that appellant was apprehended outside the warehouse; he had first been seen jumping from the dock. Other men had been seen leaving the scene of the offense. In addition, a machine had been moved inside the warehouse; the machine could not be moved by one person. There was no evidence actually showing that appellant had been in the warehouse; however, there was sufficient evidence to show that he was guilty as a party. Compare Pitts v. State, 569 S.W.2d 898, 900 (Tex. Crim. App. 1978) (parties charge justified in aggravated robbery where no evidence appellant used deadly weapon, but evidence that deadly weapon used by accomplice). We conclude that the trial court did not err in submitting a charge on the law of parties. Appellant's fourth arguable point of error is overruled.
        The judgment is affirmed.
 
                                                          PER CURIAM
 
Do Not Publish
Tex. R. App. P. 90
 
 
File Date[11-09-89]
File Name[890079F]