VINCENT DEWAYNE ADAMS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed April 18, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00108-CR
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VINCENT DEWAYNE ADAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F05-50591-TH
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OPINION
Before Justices Wright, Bridges, and Mazzant
Opinion By Justice Wright
        Vincent Dewayne Adams appeals his conviction for capital murder. After the jury found appellant guilty, the trial court assessed the mandatory life sentence. In five issues, appellant contends: (1) the evidence is legally and factually insufficient to support his conviction; (2) the trial court erred by denying his objections to the State's use of peremptory challenges; (3) the trial court erred by denying his motion for mistrial; and (4) the trial court erred by overruling his hearsay objection. We overrule appellant's issues and affirm the trial court's judgment.
 
Background
        Michael Grant Lewis (Lewis) testified that because he was concerned about his younger brother, Ladaryle Lewis (Ladaryle), Lewis checked on Ladaryle several times a week. The last time Lewis saw his brother was on a Friday evening. Ladaryle was happy because he was expecting an unemployment check the following day. That night, Lewis and Ladaryle made plans for Ladaryle to come to dinner on the following Sunday. On Saturday, Lewis's friend, Ree Johnson, went by Ladaryle's apartment to check on him, but there was no answer. On Sunday, Ladaryle did not come for dinner as expected so Lewis went to Ladaryle's apartment twice to check on him. There was no answer either time. Early Monday morning, Lewis checked again. When Ladaryle still did not answer, Lewis called 911 and was told to file a missing persons report. A few hours later, Lewis again called the police and asked for an officer to come to the apartment for a welfare check. While Lewis was waiting for the police, Johnson found Ladaryle's apartment key hanging on the balcony in front of the building. According to Lewis, the key had not been there on his previous visits to the apartment. Lewis and Johnson used the key and went into the apartment. Lewis saw that it had been “ransacked.” Lewis found Ladaryle on the kitchen floor “laying in a pool of blood” with multiple stab wounds. There was a knife nearby on the floor.
        Jerweral Davis testified he knew both appellant and Ladaryle. According to Davis, Ladaryle would give Davis “money, weed, drink, food, place to stay, whatever” in exchange for sex. On the Saturday night before Ladaryle's body was found, Davis saw appellant in an apartment complex near Ladaryle's. Davis told appellant he was going to Ladaryle's apartment to “get some drink and smoke, and [appellant said he was] fixing to go over there and try to get some money.” When they arrived at the apartment, Ladaryle let appellant inside and Davis left.
        Detective Robert Ermatinger, a homicide detective with the Dallas Police Department, testified he was assigned to investigate Ladaryle's murder. Detective Ermatinger was in Ladaryle's apartment with the crime scene investigator when he found, among other things, a receipt showing Ladaryle had cashed a check on Saturday afternoon in the amount of $306.00. Detective Ermatinger spoke with Johnson, who told him about Ladaryle's friends, including Davis and appellant.
        Detective Ermatinger arranged for police officers to find Davis and appellant. After Davis was arrested, Detective Ermatinger interviewed Davis, who told Detective Ermatinger that appellant had approached Davis on a previous occasion about “jacking” Ladaryle for his money. Thereafter, Detective Ermatinger's partner, Detective Kenneth Penrod, interviewed appellant. During that interview, appellant gave a statement in which he admitted killing Ladaryle. Appellant claimed he went to Ladaryle's apartment and drank with him. Eventually, appellant passed out on Ladaryle's couch. Later that night, he awoke as Ladaryle sexually assaulted him. Appellant began shouting and hitting Ladaryle. Appellant found a knife on the table nearby and “just started stabbing him.” He stayed in the apartment that day “thinking about it.” Later, appellant gave a second statement in which he added that after staying in the apartment all day, he went through Ladaryle's pockets and took ten dollars and some change. He then “looked everywhere” in Ladaryle's apartment but was unable to find more money. He left the apartment with the key, but returned the next day and searched again. When he still did not find more money, he left the apartment, locked the door, and left the key “on some bushes downstairs.”
        After hearing this and other evidence, the jury found appellant guilty of capital murder. This appeal followed.
 
Sufficiency of the Evidence
        In his fourth and fifth issues, appellant contends the evidence is legally and factually insufficient to support his conviction. Appellant does not dispute that he killed Ladaryle. Rather, he claims the theft of Ladaryle's property was an afterthought and unrelated to Ladaryle's murder and that the State failed to prove the necessary nexus between Ladarlye's death and the theft of property. After reviewing the record, we disagree.         When reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). When reviewing a challenge to the factual sufficiency of the evidence, we view the evidence in a neutral light to determine whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Jones v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App. 1996); Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.). The fact finder may draw reasonable inferences and make reasonable deductions from the evidence. Smith v. State, 895 S.W.2d 449, 452 (Tex. App.-Dallas 1995, pet. ref'd). Additionally, both standards apply to all of the evidence, whether properly or improperly admitted. See Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999) (legal sufficiency); Young v. State, 976 S.W.2d 771, 773 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd) (factual sufficiency).
        To support appellant's conviction for capital murder, the State was required to prove that appellant intentionally caused Ladarlye's death while in the course of committing or attempting to commit robbery. See Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon Supp. 2006). For a murder to qualify as capital murder under section 19.03, the killer's intent to rob must be formed before or at the time of the murder. Herrin v. State, 125 S.W.3d 436, 441 (Tex. Crim. App. 2002); Alvarado v. State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995). Proof of a robbery committed as an afterthought and unrelated to a murder does not support a conviction for capital murder. Alvarado, 912 S.W.2d at 207. However, if there is evidence from which the jury could rationally conclude beyond a reasonable doubt that the defendant formed the intent to obtain or maintain control of the victim's property either before or during the commission of the murder, then the State has proven that the murder occurred in the course of robbery. Id.; Robertson v. State, 871 S.W.2d 701, 706 (Tex. Crim. App. 1993). The jury may infer the requisite intent from the conduct of the defendant. Alvarado, 912 S.W.2d at 207; Robertson, 871 S.W.2d at 706.
        Here, the record shows that appellant told Davis he was going to get money from Ladaryle the night he was killed and that a month before Ladaryle was murdered, appellant told Davis that he planned to “jack” Ladaryle. The day he was killed, Ladaryle received and cashed an unemployment check and appellant knew about the check. Ladaryle's apartment was ransacked and when his family cleaned the apartment, they did not find any money from the check. Finally, although appellant claims he killed Ladaryle because he was sexually assaulting appellant, appellant was known to have had sex with Ladaryle in exchange for money and other things, making appellant's explanation for killing Ladaryle less likely. After reviewing the record under the appropriate standards, we conclude a rational jury could have found beyond a reasonable doubt that appellant formed the intent to obtain control of Ladaryle's property either before or during the commission of the murder and could have rejected appellant's claim that he decided to rob Ladaryle as an afterthought. Thus, we conclude the evidence is legally and factually sufficient to support appellant's conviction for capital murder. We overrule appellant's fourth and fifth issues.
 
Peremptory Challenges
 
        In his first issue, appellant contends the trial court erred by overruling his objections to the State's use of peremptory challenges. Under this point, appellant contends we must reverse his conviction because the State engaged in purposeful discrimination when it struck all four minority jurors from the jury panel.         When reviewing a Batson   See Footnote 1  challenge, we examine the record in the light most favorable to the trial court's ruling. See Keeton v. State, 749 S.W.2d 861, 870 (Tex. Crim. App. 1988). We reverse the trial court's ruling only when it is clearly erroneous. See Esteves v. State, 849 S.W.2d 822, 823 (Tex. Crim. App. 1993); Harris v. State, 827 S.W.2d 949, 955 (Tex. Crim. App. 1992). If the trial court's ruling is supported by the record, including the voir dire, the prosecutor's explanation of his peremptory challenges, appellant's rebuttal, and any impeaching evidence, then the trial court's ruling is not clearly erroneous. See Hernandez v. New York, 500 U.S. 352, 364 (1991); Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992).
        Once a defendant makes a prima facie showing of purposeful discrimination, the State must then provide a race-neutral explanation for striking the prospective jurors in question. See Miller-El v. Dretke, 545 U.S. 231, 239 (2005); Batson, 476 U.S. at 96-98; Harris, 827 S.W.2d at 955. This step of the process does not demand a persuasive or even plausible explanation; rather, the State's reason for the strike will be deemed race neutral unless a discriminatory intent is inherent in the prosecutor's explanation. Purkett v. Elem, 514 U.S. 765, 768 (1995). If the State provides a race- neutral explanation for its strikes, the defendant must rebut the State's explanation or show that the explanation was merely a sham or pretext. See Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991). To meet this burden, the defendant may call witnesses and introduce evidence just as in any other evidentiary hearing. Johnson v. State, 959 S.W.2d 284, 290 (Tex. App.-Dallas 1997, pet. ref'd). The defendant has the ultimate burden of persuasion to establish that the allegations of purposeful discrimination are true. See Purkett, 514 U.S. at 768; Williams v. State, 767 S.W.2d 872, 874 (Tex. App.-Dallas 1989, pet. ref'd) (en banc).
        In response to appellant's objections, the prosecutor explained why he struck each individual. He stated he struck juror 7 because juror 7 said he would have to hear evidence of the defendant lying before he would judge his credibility. The prosecutor struck juror 14 because he was young, unemployed, and because “on his questionnaire he said most people he admires I don't know way west. And the president-he called the president not less than a month ago a racist pig, not less than a month ago in the news.”   See Footnote 2  The prosecutor explained he struck juror 16 because he had a friend who had been convicted of two counts of murder. Finally, the prosecutor said he struck juror 35 because she was sleeping during voir dire, singing to herself, and “blurting out” answers to questions asked of other members of the venire. The trial court determined, and appellant did not challenge, that these were race-neutral reasons for striking the prospective jurors.
        After the State offered race-neutral explanations for striking the prospective jurors, the burden then shifted to appellant to rebut the State's explanations or to show the explanations were merely a sham or pretext. Appellant did not cross-examine the prosecutor or offer any evidence showing the prosecutor's reasons were a pretext or a sham. Although on appeal appellant contends the record does not support the State's reasons given at trial, the State's explanation about prospective juror 14 was “ludicrous,” and that the record shows the stricken jurors would have been “thoughtful, fairminded” jurors, the trial court viewed the prospective jurors, heard their answers to the prosecutor's and appellant's questions and gauged their responses. After the prosecutor offered his reasons for striking the prospective jurors, appellant did not in any way attempt to rebut the prosecutor's explanations. After examining the record in the light most favorable to the trial court's ruling, we cannot conclude appellant met his burden to rebut the State's explanations or to show the explanations were merely a sham or pretext. Thus, we cannot conclude the trial court's ruling was clearly erroneous.
        Under this issue, appellant also contends the record shows disparate treatment. In his briefing on this issue, appellant cites to Young v. State, 826 S.W.2d 141 (Tex. Crim. App. 1991), and generally explains the law. Appellant does not, however, direct this Court to specific jurors who were treated differently than prospective jurors 7, 14, 16, or 35. Nor does he analyze or apply the law regarding disparate treatment to the facts in this case.
        Rule 38 of the rules of appellate procedure provides that a brief to the court of appeals shall contain, among other things, “a clear and concise argument for the contentions made, with appropriate citations to authorities and the record.” Tex. R. App. P. 38.1 (h); see Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996) (interpreting former rule 74). The failure to adequately brief an issue, either by failing to specifically argue and analyze one's position or provide authorities and record citations, waives any error on appeal. See Lawton v. State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995); Narvaiz v. State, 840 S.W.2d 415, 430 (Tex. Crim. App. 1992); Robinson v. State, 851 S.W.2d 216, 222 n.4 (Tex. Crim. App. 1991). Thus, we do not discuss appellant's disparate treatment claim in this case. We overrule appellant's first issue.
 
Mistrial
        In his second issue, appellant contends that Davis's testimony about appellant being the “type of person that go out and rob” should have resulted in a mistrial. According to appellant, we must reverse his conviction because the trial court's instruction to disregard the evidence was insufficient to cure the harm. We cannot agree.
        Immediately after the State asked Davis why he thought appellant “had some slick stuff up his sleeve” and was “trying to ride up on” some sort of scheme, appellant objected to hearsay. Before the trial court ruled on appellant's objection, Davis answered that it was “[b]ecause of the type of person that go out and rob.” Appellant then asked for a hearing outside the presence of the jury. At the hearing, he complained about Davis's testimony violating his motion in limine and asked for a mistrial. The trial judge denied appellant's request for a mistrial. Thereafter, the jury was called back into the courtroom and was instructed to disregard the complained-of testimony.
        We review a trial court's denial of a motion for a mistrial under an abuse-of-discretion standard. See Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A mistrial is an extreme remedy for prejudicial events that occur at trial and should be exceedingly uncommon. Hudson v. State, 179 S.W.3d 731, 738 (Tex. App.-Houston [14th Dist.] 2005, no pet.) (citing Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996)). A mistrial is required only when the impropriety is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999); Herrero v. State, 124 S.W.3d 827, 836 (Tex. App.-Houston [14th Dist.] 2003, no pet.). Generally, a prompt instruction to disregard will cure error regarding extraneous offenses. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000); see also Whitaker v. State, 977 S.W.2d 595, 600 (Tex. Crim. App. 1998) (instruction cured error when witness testified that appellant was physically and mentally abusive toward her); Paster v. State, 701 S.W.2d 843, 848 (Tex. Crim. App. 1985) (instruction rendered testimony concerning appellant's involvement in two extraneous murders harmless); Herrero, 124 S.W.3d at 836 (instruction cured error when witness stated he was testifying in exchange for government protection from death threat by appellant).
        After reviewing the record, we conclude the trial court did not abuse its discretion in denying appellant's motion for a mistrial because the improper testimony was not clearly calculated to inflame the jurors' minds nor was it of such a character as to suggest the impossibility of withdrawing the impression left upon the jury. The trial court's instruction to disregard was prompt and unequivocal, and was fully sufficient to cure any harm from any impression left upon the jury. Thus, we conclude the trial court properly denied appellant's motion for mistrial. We overrule appellant's second issue.
Hearsay
        In his third issue, appellant contends the trial court erred by admitting Johnson's testimony that a month before Ladaryle was killed, Davis warned Johnson that appellant had told Davis he intended to rob Ladaryle. We need not determine the propriety of the trial court's ruling because even assuming it was erroneous, it was not reversible error. Prior to the complained-of testimony, Detective Ermatinger testified without objection that Davis told him appellant had previously asked Davis to help appellant rob Ladarlye. Because the trial court admitted the same evidence without objection, there is no harm. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling); Zarco v. State, 210 S.W.3d 816, 833 (Tex. App.-Houston [14th Dist.] 2006, no pet.)(same). We overrule appellant's third issue.
        Accordingly, we affirm the trial court's judgment.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060108F.U05
 
 
Footnote 1 Batson v. Kentucky, 476 U.S. 79 (1988).
Footnote 2 Juror 14's questionnaire lists the people he admires most as his grandmother, Kanye West, and the President. In a footnote citing to a Washington Post article, the State asserts that Kanye West “two months prior to trial, stated on live television that President Bush hated black people.”