Manor, Michael v. The State of Texas--Appeal from 23rd District Court of Brazoria County

Affirmed and Memorandum Opinion filed August 15, 2006

Affirmed and Memorandum Opinion filed August 15, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00387-CR

____________

MICHAEL MANOR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 47,454

M E M O R A N D U M O P I N I O N

Appellant, Michael Manor, was convicted by a jury of possessing a cellular telephone while being an inmate at a Texas Department of Criminal Justice (TDCJ) correctional facility, a third-degree felony. Tex. Pen. Code Ann. ' 38.11(j) (Vernon Supp. 2005). He received a forty-year sentence pursuant to statutory enhancements for repeat and habitual felony offenders. Id. ' 12.42(d) (Vernon 2003). He appeals, challenging the legal and factual sufficiency of the evidence, the trial court=s denial of his Batson challenge,[1] and the trial court=s refusal to give a jury instruction on the voluntariness of his tape-recorded statement. We affirm.

Appellant slept on the top bunk in a cell he shared with Lamont Navajo. On February 21, 2004, two correctional officersCTimothy Moffett and Harold HaleyCreceived an anonymous tip about contraband in appellant=s cell. After midnight, Officer Haley entered appellant=s cell, turned on the light, and stood in front of the toilet to prevent any attempt to flush contraband. Officer Moffett stood at the cell door and told appellant and Navajo to get up and submit to a strip search. Appellant immediately climbed down from the top bunk and leaned over to pick up his belongings so the officers could search him. During this process, a cellular phone fell to the floor. Officer Moffett testified the phone fell from the top bunk, and Officer Haley testified the phone fell from appellant=s person as he leaned over, after descending from the bunk. Neither officer saw the phone on appellant=s person. Navajo was still lying on his bunk when the phone fell, acting as though he was trying to hide something. A second cellular phone was found on Navajo=s person, and a third was found in his boot.

Appellant testified he had used a different cellular phone earlier that night, but that the phone he allegedly dropped was not his, he did not drop it, and it was not on his bunk.[2] He also testified he used this same phone sometime around Thanksgiving of the previous year. Appellant gave a tape-recorded statement to TDCJ Internal Affairs Officer Jorge Delgado on February 23, 2004, in which appellant admitted to using and possessing this phone.

Legal and Factual Sufficiency of the Evidence

In his first and second points of error, appellant claims the evidence is legally and factually insufficient to show he possessed a cellular phone. We address these points together.

In a legal sufficiency review, we look at the evidence in a light most favorable to the verdict 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 n.12 (1979); Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993). In a factual sufficiency challenge, we view the evidence neutrally, setting aside the verdict only if (1) the evidence supporting the verdict, if taken alone, is too weak to sustain the finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484B85 (Tex. Crim. App. 2004). We must defer to the jury=s findings and resist intruding upon the jury=s role as the sole judge of witness credibility and of the weight to be given to the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

A TDCJ correctional facility inmate commits an offense if he possesses a cellular telephone. Tex. Pen. Code Ann. ' 38.11(j). APossession means actual care, custody, control, or management.@ Id. ' 1.07(39). Appellant was indicted for possessing a cellular phone Aon or about@ February 21, 2004. However, the jury was charged that the State need not prove the exact date alleged in the indictment; instead, the State may prove the offense, if any, was committed at any time within the three-year statute of limitations before the indictment was retuned on September 9, 2004.

Appellant admitted he used this phone (the same cellular phone that he allegedly dropped on February 21, 2004) sometime around Thanksgiving of 2003. This is within the applicable period of limitations, and is prior to the filing of the indictment in this case. Viewing the evidence in a light most favorable to the verdict, we find there is legally sufficient evidence to support appellant=s conviction. Even when the evidence is cast in a neutral light, we find the evidence supporting conviction is not too weak to support guilt beyond a reasonable doubt, and the evidence contrary to the verdict is not so significant that guilt beyond a reasonable doubt could not be found at trial. We overrule appellant=s first and second points of error.

  Batson  Challenge

In his third point of error, appellant claims the trial court erred by denying his Batson v. Kentucky challenge. 476 U.S. 79, 86 (1986). Following voir dire, counsel for the State and appellant presented their peremptory strikes. The State struck Juror Number Eight, a black man. Defense counsel pointed out that appellant is also black, and made a Batson challenge to the prosecutor=s strike. See id. (holding the use of peremptory challenges to exclude potential jurors on the basis of race violates the Equal Protection Clause of the Fourteenth Amendment); see also Ladd v. State, 3 S.W.3d 547, 563 (Tex. Crim. App. 1999) (declaring that the use of peremptory challenges to exclude persons from jury due to race violates the Equal Protection Clause of the Fourteenth Amendment).

Once a party raises a Batson challenge, the trial court must engage in a three step process. First, the party opposing the peremptory strike must make a prima facie showing of racial discrimination. Purkett v. Elem, 514 U.S. 765, 767 (1995); Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999). This shifts the burden of production to the party making the strike to present a race neutral explanation. Purkett, 514 U.S. at 767. If a race neutral explanation is tendered, the burden of persuasion shifts to the challenging party to argue the reason given is merely a pretext for purposeful discrimination. Id. The trial court must assess the credibility of the strike=s proponent and the persuasiveness of the justification offered. Ladd, 3 S.W.3d at 563. Because the trial court=s decision turns largely on an evaluation of credibility, the appellate court must give that decision great deference, and must not disturb the trial court=s decision unless it is clearly erroneous. Hernandez v. New York, 500 U.S. 352, 353 (1991); Robinson v. State, 851 S.W.2d 216, 226 (Tex. Crim. App. 1991).

The trial court held a Batson hearing, wherein the prosecutor explained he struck Juror Number Eight because he had his eyes closed during voir dire and because he was once on a jury in a case that resulted in a mistrial.[3] Michael Holm, an investigator with the TDCJ Special Prison Prosecution Unit, testified he witnessed Juror Number Eight A[n]ot paying attention, not B just unconcerned@ several different times during voir dire. Appellant=s attorney testified he did not watch Juror Number Eight every minute of voir dire, but he did not see this juror being inattentive. Defense counsel then argued the State did not meet its burden of showing a race-neutral reason for the strike. The record does not indicate the race of the other veniremembers who were struck, or the race of the selected jurors.

A prospective juror=s inattentiveness may be a sufficiently race neutral reason to justify the use of a peremptory challenge. Tate v. State, 939 S.W.2d 738, 745 (Tex. App.CHouston [14th Dist.] 1997, pet. ref=d), overruled on other grounds by Sarmiento v. State, 93 S.W.3d 566 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d); Woods v. State, 801 S.W.2d 932, 937 (Tex. App.CAustin 1990, pet. ref=d). After fully reviewing the record of the voir dire examination and the Batson hearing, we find the State satisfied its burden of producing a race-neutral reason for the strike. The defense, however, did not satisfy its burden of persuasion that the State=s reasoning was merely a pretext for purposeful discrimination. We can discern no clear error in the trial court=s denial of appellant=s Batson objection. Appellant=s third point of error is overruled.

  Jury Instruction on Voluntariness of Appellant=s Statement

Appellant, in his fourth point of error, argues the trial court erred by failing to instruct the jury they could disregard appellant=s statement if they found it was involuntarily rendered. Tex. Code Crim. Proc. Ann. arts. 38.22 ' 3, 38.23(a) (Vernon 2005).

The Texas Code of Criminal Procedure provides that, if the evidence raises a fact issue about the voluntariness of a statement, the jury shall be instructed not to consider that evidence if the jury believes or has a reasonable doubt the evidence was obtained in violation of the law. Id. arts. 38.22 ' 6, 38.23. A fact issue about whether evidence was legally obtained may be raised Afrom any source, and the evidence may be strong, weak, contradicted, unimpeached, or unbelievable.@ Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004) (quoting Wilkerson v. State, 933 S.W.2d 276, 280 (Tex. App.CHouston [1st Dist.] 1996, pet. ref=d)). If there is no factual dispute over how the evidence was obtained, the instruction is not necessary. Id.

Officer Delgado received a tape-recorded oral statement from appellant on February 23, 2004. Although Officer Delgado read appellant his rights prior to asking any questions about this offense,[4] defense counsel complained at trial that each of appellant=s verbal responses to questions about whether appellant understood his rights were inaudible. Defense counsel argued: AThe tape speaks for itself, Judge. Whether or not [appellant] made the proper waivers and whether those waivers were clear on the tape is the only issue that I see.@ The tape shows Officer Delgado read appellant seven warnings and asked whether appellant understood these warnings. Officer Delgado instructed appellant to initial each warning to indicate he understood his rights. He also explained that, if appellant chose to speak with him, he should sign and initial the waiver form to indicate that he knowingly, intelligently, and voluntarily waived his rights. The record contains appellant=s written waiver. His initials appear next to each warning or right, and his signature is at the bottom of the form below a statement that, by signing, he voluntarily waived these rights. The date and time next to appellant=s signature show appellant waived these rights prior to giving his oral statement.

There is no evidence contradicting Officer Delgado=s testimony that appellant knowingly, intelligently, and voluntarily waived his rights. We, therefore, find no fact issue on voluntariness for the jury=s consideration. See Garza, 126 S.W.3d at 86B87 (finding appellant raised no fact issue at trial to require article 38.23 jury instruction when his testimony did not differ significantly from that of police officers and that Avague suggestions@ or Amere insinuations@ by defense counsel that a fact exists do not create a fact issue). We find the trial court did not err in refusing this jury charge, and we overrule appellant=s fourth point of error.

The trial court=s judgment is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed August 15, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Batson v. Kentucky, 476 U.S. 79, 86 (1986).

[2] Appellant testified he needed to use the phone to call his father, who was in renal failure. He said his mother could not write to him about his father=s health because she was blind in one eye. Appellant said that, although he had placed a phone call request through the prison, it takes ninety days to process these requests and he had not yet received a response.

[3] The record shows Juror Number Eight spoke three times during voir dire. He responded to a direct question from the prosecutor, he asked how prisoners can obtain cellular telephones and, later, he asked defense counsel to repeat a question she had just asked of another venire member.

[4] Officer Delgado read appellant the Miranda warnings as required by law. Tex. Code Crim. Proc. Ann. Art. 38.22 '2(a); Miranda v. Arizona, 384 U.S. 436, 444B45 (1966).