DEMARIO TURNER, Appellant v. THE STATE OF TEXAS, Appellee

 
AFFIRMED and Opinion filed June 23, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-00616-CR
............................
DEMARIO TURNER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 194th Judicial District
Dallas County, Texas
Trial Court Cause No. F06-35040-UM
.............................................................
OPINION
Before Chief Justice Thomas and Justices Moseley and Lang
Opinion By Justice Moseley
        A jury convicted Demario Turner of aggravated robbery with a deadly weapon and assessed punishment at eighteen years' confinement and a $2,000 fine. In seven points of error, Turner contends: the trial court deprived him of his constitutional right to counsel by compelling him to proceed to trial with appointed counsel; the trial court denied his right to self-representation by requiring him to have counsel; the trial court erred in overruling his Batson objections to two prospective jurors; the trial court abused its discretion in shackling him and erred in denying his motion to quash the panel based upon the visibility of the shackles on him; and the evidence is factually insufficient to support his conviction of aggravated robbery with a deadly weapon. For the reasons set forth below, we overrule Turner's points of error and affirm the trial court's judgment.
 
I. BACKGROUND
 
        On October 8, 2006, around 9:00 p.m., Diana Medrano called 911 after seeing five men standing outside the home of her neighbors, Bobby and Sylvia Cadenhead. Two of the men were taking weapons from the trunk of a car.
        Shortly after 9:00 p.m., armed men robbed the Cadenheads' home. Bobby, Sylvia, and Bobby's brother, Robby Cadenhead, were in the house at the time of the robbery; and all were held down on the floor with guns to their heads. The robbers took Bobby's gold necklace and wallet off of his person, and Sylvia's purse off of her person. They also removed other property, including a flat-screen television, in pillow cases. During the robbery, an intruder with a shotgun said “Look out 'B,' look out” several times, and Robby observed Turner looking out the blinds and walking around the house, armed with a handgun at all times.
        Shortly thereafter, a police officer arrived at the scene, responding to Medrano's call. One of the intruders shouted, “Police,” and they all fled. Turner was chased down on foot by a police officer. Turner resisted, but was ultimately handcuffed. No weapon or stolen property was found on Turner or in the surrounding area. At the scene, Robby identified Turner as one of the intruders. Later, Robby identified Turner from a photographic lineup. Bobby and Sylvia were unable to identify Turner as one of the intruders.
        Turner was charged with aggravated robbery with a deadly weapon and was appointed counsel on October 16, 2006. The day of trial, March 19, 2007, Turner attempted to fire his counsel. The trial court said he must proceed with his appointed counsel unless he hired a new lawyer who was ready to try the case by the time trial began that day.
        During voir dire, Turner made two Batson objections that were overruled. During voir dire, Turner was brought in wearing shackles. He contended that the panel could see him in shackles and requested the panel be quashed. This request was denied.
 
II. RIGHT TO COUNSEL/SELF-REPRESENTATION
 
        In his first and second points of error, Turner contends that he was denied his constitutional right to counsel and right to self-representation when the trial court compelled him to proceed to trial with his appointed counsel.
A. Standard of Review and Applicable Law
        An appellate court reviews a trial court's ruling on a motion to substitute counsel under an abuse of discretion standard. Carroll v. State, 176 S.W.3d 249, 256 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd). Similarly, an appellate court reviews a factual issue, such as whether a defendant has elected to represent himself, under an abuse of discretion standard. DeGroot v. State, 24 S.W.3d 456, 457 (Tex. App.-Corpus Christi 2000, no pet.). A trial court abuses its discretion when its decision is so clearly wrong as to lie outside the zone within which reasonable persons might disagree. Howell v. State, 175 S.W.3d 786, 790 (Tex. Crim. App. 2005).
        A trial court has essentially three options when confronted with an accused who makes an eleventh hour request for change of counsel. Burgess v. State, 816 S.W.2d 424, 428 (Tex. Crim. App. 1991). First, at its discretion the court can appoint, or allow the accused to retain, new counsel. Id. Second, should the trial court deny new counsel, and the accused unequivocally asserts his right to self-representation under Faretta, persisting in that assertion after proper admonishment, the court must allow the accused to represent himself. Id. at 418-19 (citing Faretta v. California, 422 U.S. 806, 819 (1975) (right to self-representation under the Sixth Amendment)). Third, unless the trial court allows new counsel, it must compel an accused who will not waive counsel and does not unequivocally assert his right to self-representation to proceed to trial with the lawyer he has, whether he wants to or not. Id. at 429.
B. Discussion
        Here, as in Burgess, Turner made his request for change of counsel the day of trial, certainly at the “eleventh hour.” See id. at 427-28. The trial court exercised its discretion and allowed Turner to retain new counsel if counsel were present and ready for trial when the jury was picked later that day. See id. at 428. When no new counsel was hired, the trial court properly compelled Turner to proceed to trial with his appointed counsel. See id. at 429.
        Turner argues that compelling him to proceed to trial with his appointed counsel denied him his right to self-representation. The right to self-representation does not attach until it has been clearly and unequivocally asserted. Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986); see Burgess, 816 S.W.2d at 418-19. Here, Turner did not unequivocally assert his right to self-representation. At no point did he mention or refer to his right to proceed pro se. Therefore, the trial court's decision to compel Turner to proceed to trial with his appointed counsel was not so clearly wrong as to lie outside the zone within which reasonable persons might disagree. See Howell,175 S.W.3d at 790. Discerning no abuse of discretion, we overrule Turner's first two points of error.
 
III. BATSON OBJECTIONS
 
        In his third and fourth points of error, Turner contends that the trial court erred in overruling his Batson   See Footnote 1  challenges concerning prospective jurors 34 and 41 because the State's peremptory strikes were based on race.
A. Standard of Review and Applicable Law
        An appellate court must apply a clearly erroneous standard of appellate review to a trial court's ruling on a Batson claim. Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). This is a highly deferential standard because the trial court is in the best position to determine whether the State's facially race-neutral explanation for a peremptory strike is genuinely race- neutral. Id. The appellate court must examine the record in the light most favorable to the trial court's ruling, and a ruling will only be found clearly erroneous when, after searching the record, the appellate court is left with the definite and firm conviction that a mistake has been committed. Bausley v. State, 997 S.W.2d 313, 315 (Tex. App.-Dallas 1999, pet. ref'd). If the trial court's ruling is supported by the record, including voir dire, the State's explanation of the peremptory challenges, and appellant's rebuttal, then the trial court's ruling is not clearly erroneous. Id.
         A Batson inquiry entails a three-step process for evaluating objections to a peremptory challenge. Hernandez v. New York, 500 U.S. 352, 358 (1991) (plurality op.). First, the defendant must make a prima facie showing that the State exercised its peremptory challenge on the basis of race. Id. Second, if the defendant makes the requisite prima facie case, the State must come forward with a racially-neutral explanation for the contested challenge. Purkett v. Elem, 514 U.S. 765, 766-67 (1995) (per curiam). A racially-neutral explanation means only an explanation that, on its face, does not deny equal protection. Id. at 767-69. The State's explanation does not have to be persuasive or even plausible, and as long as the discriminatory intent is not inherent, the State's explanation will be deemed race-neutral. Bausley, 997 S.W.2d at 316 (citing Purkett, 514 U.S. at 768). Third, if the State presents a racially-neutral explanation for its challenge, the defendant must go forward with his burden of proving by a preponderance of the evidence that the explanation given by the State is a sham or pretext for discrimination. Keeton v. State, 749 S.W.2d 861, 868 (Tex. Crim. App. 1988). The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the challenge. Purkett, 514 U.S. at 767-69. B. Discussion
        At trial, Turner made Batson objections to the State's peremptory strikes of prospective jurors 34 and 41. The State then offered race-neutral explanations for both strikes. Concerning prospective juror 34, the State explained that she was struck because her questionnaire answers demonstrated a bias against the State. The prospective juror stated that police officers could be unfair due to a person's race and that prosecutors will prosecute whether fair or unfair. Turner responded by merely saying that there was nothing in the record showing prospective juror 34 had a bias; however, the record shows the prospective juror made those statements concerning the fairness of police officers and prosecutors in her questionnaire.
        Concerning prospective juror 41, the State explained that he would not be a strong, resolute juror because he stated, based on his religious preference, he would have difficulty sitting in judgment of another as well as in considering the maximum sentence for aggravated robbery. Also, the State noted prospective juror 41's answers to questions seemed to change based on who had asked the question. Turner made no response to this explanation.
        Thus, the trial court was not clearly erroneous in overruling Turner's Batson objections to prospective jurors 34 and 41 and in impliedly finding Turner failed to prove by a preponderance of the evidence that the State's explanations were a sham or pretext for discrimination. See Gibson, 144 S.W.3d at 534; Bausley, 997 S.W.2d at 315; Keeton, 749 S.W.2d at 868. We overrule Turner's third and fourth points of error.
 
IV. TURNER'S APPEARANCE DURING VOIR DIRE
 
        In his fifth and six points of error, Turner contends that the trial court abused its discretion by shackling him during voir dire and that the trial court erred in denying Turner's motion to quash the panel based on the visibility of Turner's shackles. During voir dire, but outside the presence of the jury panel, Turner moved to quash the panel based on his allegation that the panel could see that he was shackled. The trial court ruled that the panel could not see the shackles and denied the motion.
        Turner's fifth point of error claims the trial court abused its discretion by shackling him. The State contends that Turner failed to preserve this point of error for review. The general requirement for preservation of error is set forth in Texas Rule of Appellate Procedure 33.1(a). See Tex. R. App. P. 33.1(a). Succinctly, rule 33.1(a) requires “a timely, specific objection and a ruling by the trial court” to preserve a complaint for appellate review. Id.; see Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). Additionally, the complaint on appeal must comport with the objection at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Dixon v. State, 2 S.W.3d 263, 265 (Tex. Crim. App. 1998).
        Here, Turner did not object to the trial court's decision to shackle him. Turner only stated that he believed the panel could see him in the shackles and he moved to quash the panel. Thus, his complaint about the use of shackles on appeal does not comport with a timely and specific objection about the use of shackles at trial; therefore, this point of error is not preserved. See Tex. R. App. P. 33.1(a); Mendez, 138 S.W.3d at 341; see also Wilson, 71 S.W.3d at 349; Dixon, 2 S.W.3d at 265. We overrule Turner's fifth point of error.
        Turner's sixth point of error claims that the trial court erred in denying his motion to quash because the panel saw Turner in shackles during voir dire. However, in the absence of evidence that the jury actually saw the shackles, no reversible error exists. Long v. State, 823 S.W.2d 259, 283 (Tex. Crim. App. 1991).
        During voir dire, Turner alleged the panel could see him in shackles and moved to quash the panel. However, the trial court ruled that the panel could not see Turner in shackles and denied the motion to quash. The trial court's decision was not so clearly wrong as to lie outside the zone within which reasonable persons might disagree. See Howell, 175 S.W.3d at 790; see also Long, 823 S.W.2d at 283. Discerning no abuse of discretion, we overrule Turner's sixth point of error.
 
V. FACTUAL SUFFICIENCY OF THE EVIDENCE
 
        In his seventh point of error, Turner contends that the evidence at trial was factually insufficient to support his conviction of aggravated robbery with a deadly weapon.
A. Standard of Review and Applicable Law
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether the fact-finder was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Evidence that is legally sufficient under a Jackson v. Virginia, 443 U.S. 307, 319 (1979), analysis, may be factually insufficient if the evidence is “so weak” that the verdict “seems clearly wrong or manifestly unjust,” or the verdict is “against the great weight and preponderance of the evidence.” Watson, 204 S.W.3d at 414-15 & 417; see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). A verdict is clearly wrong and manifestly unjust if the jury's finding “shocks the conscience” or “clearly demonstrates bias.” Garza v. State, 213 S.W.3d 338, 344 (Tex. Crim. App. 2007) (citing Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997)).
        We measure the factual sufficiency of the evidence against a hypothetically correct jury charge authorized by the indictment. See Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002); Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001); Malik v. State, 953 S.W.2d 234, 236-40 (Tex. Crim. App. 1997).
        The State was required to prove beyond a reasonable doubt that Turner, in the course of committing theft, and with the intent to obtain or maintain control of Bobby Cadenhead's property, intentionally or knowingly threatened or placed him in fear of imminent bodily injury or death, and used or exhibited a deadly weapon. See Tex. Penal Code Ann §§ 29.02-29.03 (Vernon 2003). The jury was instructed it could find Turner guilty under the law of parties. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. Id. § 7.01 (Vernon 2003). A person is criminally responsible for an offense committed by another if, with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a) (Vernon 2003).
B. Discussion
        As described in more detail above, the record includes evidence that armed men entered the home of Bobby and Sylvia Cadenhead, put guns to their heads, made them get down on the floor, and took property from their persons and their home. Neither Bobby nor Sylvia clearly identified Turner as one of the armed men. However, Robby, who was also forced to the ground at gunpoint, clearly saw Turner in the house during the robbery, armed with a handgun. The intruder with the shotgun held against Bobby's head said several times “Look out 'B,' look out.” Robby testified he interpreted this statement to be an order for one of the other intruders to keep a look out and he observed Turner looking out the window several times. When Turner was caught by the police later that evening, Robby identified him as one of the robbers. Robby also identified Turner out of a police lineup without hesitation.
        Turner contends the evidence was factually insufficient to support his conviction of aggravated robbery with a deadly weapon because there is no fingerprint, DNA, or weapons evidence physically linking him to the crime. Given the absence of such physical evidence, Turner argues that the testimony of the State's key witness, Robby, is insufficient on its own to support the conviction because Robby's past controlled substance and marijuana possession convictions make him an non-credible witness.
        The jury was in the best position to determine the credibility of the witness and the weight to give his testimony. See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We may not substantially intrude on the jury's role as the sole judge of the weight and credibility given to witness testimony. See id.; Dumas v. State, 812 S.W.2d 611, 615 (Tex. App.-Dallas 1991, pet. ref'd). Evaluating all of the evidence under the factual sufficiency standard, we cannot say the evidence is so weak that the verdict seems clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. See Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414-15. We overrule Turner's seventh point of error.
 
VI. CONCLUSION
 
        Having overruled Turner's seven points of error, we affirm the trial court's judgment.
 
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070616F.U05
 
Footnote 1 Batson v. Kentucky, 476 U.S. 79 (1986).