STEPHEN BAIRD, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed June 26, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00702-CR
No. 05-06-00703-CR
 
No. 05-06-00704-CR
No. 05-06-00705-CR
............................
STEPHEN BAIRD, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F05-19436-KV, F05-19437-KV,
F05-19438-KV, and F05-19439-KV
.............................................................
OPINION
Before Justices Morris, Wright, and FitzGerald
Opinion By Justice FitzGerald
        Appellant Stephen Baird pleaded guilty to four counts of aggravated robbery. A jury assessed punishment at 30 years for each offense, the sentences to run concurrently. Baird raises ten issues in this Court. We find no reversible error, and we affirm the judgments of the trial court.
Trial Court Jurisdiction
        In his first issue, Baird argues the trial court erred in denying his motion to dismiss for want of jurisdiction. Baird was sixteen years old at the time of the robberies. He was certified to stand trial as an adult, and jurisdiction was transferred from juvenile court to criminal district court. Following the transfer, Baird moved to dismiss the causes, arguing the decision to transfer a defendant from the juvenile system to the adult system results in an increase in the maximum penalty to which the defendant is exposed. The motion asserted that such a determination must be made by a jury and proven beyond a reasonable doubt, citing Apprendi v. New Jersey, 530 U.S. 466 (2000). The trial court denied the motion, and Baird appeals. However, Baird concedes this Court has recently decided this issue against him, in State v. Lopez, 196 S.W.3d 872 (Tex. App.-Dallas 2006, pet. ref'd). Lopez concludes that the transfer process itself is not associated with any increase in penalty, and thus a jury need not find the facts allowing such a transfer. Id. We decline Baird's invitation to revisit this issue.   See Footnote 1  We decide Baird's first issue against him.
Batson Challenge
        In his second issue, Baird argues the trial court erred in denying his challenge to the State's use of a peremptory strike on one prospective juror. See Batson v. Kentucky, 476 U.S. 79 (1986). To prevail on a Batson challenge, a defendant must initially establish a prima facie showing of racial discrimination in the State's exercise of the peremptory strike. The burden then shifts to the State to articulate a race-neutral explanation for its questioned strike. Once the prosecutor has articulated a race-neutral explanation, the burden shifts back to the defendant to show that the explanation is really a pretext for discrimination. The trial court then determines whether the defendant has carried his burden of proving racial discrimination. Mathis v. State, 67 S.W.3d 918, 924 (Tex. Crim. App. 2002). The trial court's determination is accorded great deference; we will not overturn the determination unless it is clearly erroneous. Chamberlain v. State, 998 S.W.2d 230, 236 (Tex. Crim. App.1999).
        After voir dire, counsel for Baird contended that the prosecutor exercised peremptory strikes on six African-American panel members for racially motivated reasons. The trial court determined those six individuals were in the strike range and required explanations for the strikes. In the single case Baird appeals, that of Juror 15, the prosecutor asked a series of questions concerning rehabilitation as a goal of punishment. The prosecutor explained his strike in this manner:
 
With regards to 15, she was - when I talked to her about punishment, she was going on and on about depends on his age, his peer pressure, whether he's the leader, whether he's the peer pressure, depends on how many chances he had. And I even when I talked to her specifically about what if he's had more chances, she was more and more inclined to think - and she was really concerned about giving him lots of chances with regards to that. And peer pressure may be a possible defense in this case because, as the Court is aware, there are multiple parties charged with this offense. And I think the defendant even indicated that he's trying to foist off the gun element on to one of his cohorts.
 
The trial court concluded this was a racially neutral reason for the strike. Baird did not question the prosecutor and offered no evidence of pretext. The trial court denied his Batson motion.
        On appeal, Baird argues the State mischaracterized Juror 15's responses and that the prosecutor's “purposeful discrimination was abundantly clear.” We disagree. Our review of the record establishes that the above quote is a fair summary of the issues raised by Juror 15 in response to the prosecutor's inquiry concerning rehabilitation. A potential juror's belief in rehabilitation as a major goal of punishment is a racially neutral reason to exercise a peremptory strike. See Adanandus v. State, 866 S.W.2d 210, 224 (Tex. Crim. App. 1993). We cannot conclude the trial court erred in denying Baird's motion to strike. We overrule Baird's second issue.
Confrontation Challenge
        In his third issue, Baird argues the trial court erred by overruling his Sixth Amendment objection to the State's introduction of the statement of Tramel Jones, a non-testifying co-defendant, concerning details of an extraneous offense. The State offered evidence of Baird's participation in more than twenty aggravated robberies. Joshua Daniel, a victim of one of the extraneous-offense robberies, testified but could not identify his assailants. Following that testimony, the State offered the complained-of statement, which identified Baird as the gunman in both Daniel's case and one of the charged cases. Baird objected on both hearsay and confrontation grounds. Jones's statement was made during police interrogation, and there was no opportunity for cross-examination by Baird.
        The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. This procedural guarantee bars the admission of testimonial statements of a witness who does not appear at trial unless the witness is unavailable to testify and the defendant had a prior opportunity to cross-examine him. Crawford v. Washington, 541 U.S. 36, 59 (2004). If the trial court did admit a non-testifying accomplice's statement in violation of the Confrontation Clause, it would be constitutional error, and we could affirm the judgment only if we determined beyond a reasonable doubt that the error did not contribute to the punishment assessed by the jury. See Tex. R. App. P. 44.2(a).         In this case, even if we assume error in admitting the statement, we conclude the error did not contribute to the punishment assessed by the jury. Jones's statement did contain the only evidentiary connection between Baird and the victim's robbery. But that robbery was not one for which Baird was tried. Instead, it was one of close to twenty other robberies linked to him, but not charged. It was certainly not the only evidentiary connection between Baird and the charged robbery it addressed. Given the assortment of witnesses that affirmatively linked Baird to the robbery ring and its many victims, we conclude that one improvidently addressed extraneous offense could not have affected the jury's punishment deliberation in any measurable amount. We decide Baird's third issue against him.
Evidentiary Issues
        In Baird's fourth through ninth issues, he complains of evidentiary rulings by the trial court. We review a trial court's decision to admit evidence under an abuse of discretion standard. See McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). If the trial court's decision was within the “bounds of reasonable disagreement,” we do not disturb the ruling. See Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). In the punishment phase of the trial, the scope of relevant evidence is extremely broad. See Tex. Code Crim. Proc. art. 37.07 § 3(a)(1).
Witness's Unconnected Family Misfortunes
        Jose Payan testified briefly at trial concerning an attack he suffered at the hands of a group that included Baird. Payan had been driven to court on the day he testified by an investigator with the prosecutor's office. When he was asked about that arrangement, Payan testified his father was “in a wheelchair right now, after we had an accident - .” Baird objected to relevance; the trial court overruled the objection. The witness continued his response:
 
A.        He's paralyzed right now, so he couldn't drive. And my mom can't see from one eye.
 
 
 
Q.        Now, Jose, when did that happen to your dad?
 
 
 
A.        Two years ago over the summer -
 
Baird renewed his relevance objection, and the trial court overruled it again. The witness completed his response:
 
A.        While we were coming back from Mexico.
 
 
 
Q.        (By [the prosecutor]) Happened in a car wreck?
 
 
 
A.
 
Yes.
 
 
Baird went on to describe his injuries and what was taken from him that day: a wallet (with $30 inside), a bracelet, a ring, and a rosary.
        On appeal, Baird argues the prosecutor was attempting to link the attack on Payan and his father's injury. Our review of the record does not support that interpretation of the testimony. Instead, we understand the quoted exchange as the prosecutor's effort to explain the witness's contact with the State's investigator. Once the witness disclosed the fact of the injuries, the prosecutor resolved quickly that the injuries were caused by an automobile accident, and he did not return to the subject. We find no error in the admission of this testimony under these circumstances. We overrule Baird's fourth issue.
Probation Officer's Testimony
        In his fifth issue, Baird complains the trial court erroneously admitted “speculative testimony” from witness Moses Kearney concerning Baird's conduct while at a juvenile facility, Brookhaven Boys' Ranch. Kearney's testimony referred to recurrent misconduct, but Baird argues Kearney lacked personal knowledge of Baird's time at the Brookhaven facility, making his testimony unreliable and speculative.
        Kearney is a juvenile probation officer for Dallas County; he works in court assessment, making recommendations on appropriate actions for the courts to take with regard to individual juveniles. Kearney testified he first had contact with Baird in 2001, when Baird was placed on probation after his first referral. Kearney took over personal responsibility for Baird's case after a later referral, which was for aggravated robbery.   See Footnote 2  Because of the serious nature of the offense, the juvenile board concluded Baird should be incarcerated. However, the court did not follow that recommendation and ordered Baird placed at the Brookhaven rehabilitative facility. Baird continued on probation after he left Brookhaven. While he was on probation, he committed the offenses at issue in this appeal. Kearney and the juvenile board were responsible for the inquiry leading to his certification to stand trial as an adult.
        The record establishes that the persons responsible for overseeing Baird's participation in the juvenile justice system made significant decisions as a group. Kearney was involved in those decisions throughout Baird's presence in the juvenile system. While he may not have observed Baird's misconduct at Brookhaven in person, the juvenile board monitored Baird's progress, and Kearney was part of the monitoring process. There was no hearsay objection at trial: thus, to the extent some of Baird's information was obtained through reports of others, any complaint is waived. We find no error in admitting Kearney's testimony. We overrule Baird's fifth issue as well.
Impeachment by State of Its Own Witness
        In his sixth issue, Baird argues the trial court erroneously allowed the State to call a witness for the sole purpose of impeaching that witness. Witness Jasterion Oliver wrote a statement acknowledging his participation in an aggravated robbery with Baird. Oliver later pleaded guilty to that robbery; it was not one of the four robberies with which Baird was charged. During a pretrial hearing, Oliver testified that he had been forced to write his statement by an investigator, and he testified the substance of the statement was not true. Nevertheless, the prosecutor called Oliver at trial and, when Oliver testified differently from his statement, the prosecutor impeached him with the statement. Baird objected to “improper impeachment,” stating the prosecutor had called Oliver, knowing what his testimony would be, for the express purpose of impeaching him.
        The rules of evidence allow a witness's credibility to be attacked by any party, including the party who called the witness to testify. Tex. R. Evid. 607. Baird acknowledges this rule. However, he cites commentators who warn of the risk of putting evidence before the jury in the form of impeachment material, when that material would otherwise not be admissible. We agree that in some circumstances that could be a concern. In the circumstances of this trial and this witness, however, we do not see error. The prosecutor called Oliver to testify to facts that were in his statement and that formed the basis of his own guilty plea. Despite the last-minute recantation, the prosecutor was entitled to assume Oliver would tell the truth at trial. See Parson v. State, 193 S.W.3d 116, 125 (Tex. App.-Texarkana 2006, pet. ref'd) (“When the [S]tate has statements and prior sworn testimony of a sequence of events, even in light of its suspicion that the witness might testify differently, it may still assume that the witness will testify truthfully and that prior sworn testimony was also truthful.”) When Oliver contradicted his statement, the prosecutor was entitled to confront him with that statement, as well as his guilty plea, so the jury could evaluate the witness's truthfulness. See id. The trial court did not err in allowing the State to call Oliver and to impeach his credibility. Baird's sixth issue is not well-founded.
Extraneous Offenses
        In Baird's seventh, eighth, and ninth issues, he charges the trial court erroneously admitted evidence of three uncharged robberies which could not be proven beyond a reasonable doubt. In the punishment phase of a trial, evidence of an extraneous crime is admissible if the State's evidence shows beyond a reasonable doubt that the defendant committed the crime or could be criminally responsible for the crime. Tex. Code Crim. Proc. art. 37.07 § 3(a)(1). Unlike the guilt-innocence stage, which requires the jury to find the defendant guilty of each element of an offense, the punishment phase requires only that the jury find the extraneous act is attributable to the defendant beyond a reasonable doubt. Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005).
        Baird's seventh issue concerns an aggravated robbery against Delbert Jackson. Jackson's name arose in the testimony of Investigator Shawn Hanley, who prepared and administered a series of photo line-ups in his investigation of the robberies ultimately attributed to Baird. The prosecutor walked Hanley through a total of ten line-ups one by one. Each line-up included the photographs to be viewed, the form statement read by Hanley to the witness viewing the line-up, and information identifying that witness and the witness's conclusions. When the prosecutor reached the exhibit marked as number 17 (which was the seventh line-up shown to Hanley), the following exchange took place:
 
Q.        State's Exhibit 17, it's an individual named Delbert Jackson. Who is he?
 
 
 
A.        He is a victim in an aggravated robbery.
Q.        Was he able to pick out the defendant?
 
 
 
        [Defense Counsel]: Your Honor, I object to these, because I don't think they can be proven beyond a reasonable doubt.
 
 
 
        The Court: Overruled.
 
 
 
A.        He was unable to pick anybody out.
 
The prosecutor did not question Hanley further about Jackson. Nor did the prosecutor offer Jackson's line-up, Exhibit 17, into evidence. Thus, to the extent Baird complains that the trial court improperly admitted evidence of the Jackson robbery, his complaint must fail. No such evidence was admitted. If Baird's complaint is that the prosecutor's question created an inference that Baird was involved in Jackson's robbery, we cannot see how such an inference - given all the direct evidence at trial - could have affected Baird's substantial rights. We overrule Baird's seventh issue.
        In his eighth issue, Baird charges the trial court erroneously admitted evidence of the robbery of Joshua Daniel. As we discussed in relation to Baird's third issue, Daniel could not identify his assailant, but Baird's co-defendant Tramel Jones gave a statement implicating Baird in a charged robbery and the Daniel robbery. Baird argues that - because Jones's statement was inadmissible on confrontation grounds - there was no competent evidence linking Baird to the Daniel robbery. We concluded above that even if there had been confrontation error in admitting the co-defendant's statement, the error did not affect Baird's punishment. We conclude here that even if evidence of the Daniel robbery was improperly admitted because the State did not offer evidence connecting it to Baird beyond a reasonable doubt, that evidence did not affect Baird's substantial rights. As we have pointed out, Baird pleaded guilty to four robberies, and the State offered evidence implicating him in many others. Baird received only thirty-year sentences for each offense, when the jury could have assessed his punishment at up to 99 years or life. We conclude any error in admitting this evidence was not reversible, and we overrule Baird's eighth issue as well.
        In his ninth issue, Baird complains of the erroneous admission of evidence of the robbery of Jose Flores. Flores testified at trial to what he remembered of his attack, but he could not identify his assailant. Jasterion Oliver, whose testimony was discussed under Baird's sixth issue above, did implicate Baird in the Flores robbery. But because Oliver had tried to recant his statement, and was nonetheless called to testify by the State, Baird argues there is insufficient evidence linking Baird to the Flores robbery. We disagree. We concluded above that Oliver's testimony was not improper impeachment. The jury could certainly have believed Oliver's original statement and the testimony underlying his own guilty plea and rejected his recantation. In that event, the State's evidence could have proved Baird's connection with the Flores robbery beyond a reasonable doubt. We overrule Baird's ninth issue.
Cumulative Error
        Baird's tenth and final issue argues the cumulative effect of all the errors cited warrants a reversal. “It is conceivable that a number of errors may be found harmful in their cumulative effect.” Chamberlain, 998 S.W.2d at 238. But our review of the record does not establish such errors in the proceedings below. We overrule Baird's tenth issue.
Conclusion
        We have decided each of Baird's issues against him. Accordingly, we affirm the judgments of the trial court.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
 
 
 
Footnote 1 Baird charges that the facts of his own case establish that the transfer procedure does not constitute due process or fair treatment. Baird points to his IQ, and to his reading and spelling levels, and claims he was not legally competent to stand trial. However, no such concern was raised in the trial court. Nor do Baird's claims establish that the transfer procedure is inherently unfair.
Footnote 2 The referral is alternately called Baird's second and his third. His second referral was for a probation violation, but it was dismissed, leading to the confusion in the record.