Henry Cabrera v. The State of Texas--Appeal from 40th District Court of Ellis County

AFFIRMED

JUNE 28, 1990

NO. 10-89-051-CR

Trial Court

# 16,814

IN THE

COURT OF APPEALS

FOR THE

TENTH JUDICIAL DISTRICT

AT WACO

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HENRY CABRERA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 40th Judicial District Court

Ellis County, Texas

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O P I N I O N

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A jury convicted Appellant of murder and assessed his punishment at ninety-nine years in prison. See TEX. PENAL CODE ANN. 19.02 (Vernon 1989). He complains that the court erred when it: (1) refused to "shuffle" the names on the panel of prospective jurors; (2) denied his Batson // motion; and (3) denied his motion for a mistrial after the prosecutor improperly impeached a character witness at the punishment stage. The judgment will be affirmed.

On February 6, 1989, approximately seventy prospective jurors appeared in the trial court. The court informed the jurors that initially two cases had been set for trial, but that one of the cases had settled. Therefore, the court planned to keep the first fifty jurors and dismiss the remaining jurors, who would have served on the other case. However, Appellant requested that the panel be shuffled before any jurors were dismissed. He complains in point one that the court erred when it refused to shuffle the panel before dismissing the jurors who would have served on the other case, and instead shuffled only the first fifty jurors.

Article 35.11 of the Code of Criminal Procedure provides that upon demand the court "shall cause the names of all the members of the general panel drawn or assigned as jurors in such case" to be shuffled. TEX. CODE CRIM. PROC. ANN. art. 35.11 (Vernon 1989) (emphasis added). However, a defendant is not entitled to have all the names of persons summoned for jury service shuffled, but only the names of the prospective jurors who make up the assigned jury panel from which his jury is to be selected. Latham v. State, 656 S.W.2d 478, 480 (Tex. Crim. App. 1983). Here, the panel from which the jury was to be selected consisted of fifty prospective jurors. The remaining persons, who would have potentially severed on another jury, were dismissed because the other case settled. Point one is overruled.

At the conclusion of the voir dire examination, but before the jury was sworn, Appellant made a Batson motion. He met his burden of showing that: (1) he is a member of a cognizable racial group; and (2) the prosecutor exercised a preemptory challenge to exclude a member of that racial group from the jury. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 1723, 90 L. Ed. 2d 69 (1986). The prosecutor explained her reasons for striking the juror as follows:

In my capacity as Prosecutor, I elected to exercise a peremptory strike on juror number five, Richard Thomas Carrillo. My reasons for doing that were when he was questioned by the defense counsel, he seemed to misunderstand the burden of proof and made references to shadow of a doubt, which indicated to me that he did not understand the law applicable in this case.

Also, the fact that during the time that I was questioning him and the time -- well, no. During the time that I was questioning and as I watched him throughout all of it, he would not make eye contact with me or others. And it appeared he was trying to avoid making eye contact with anyone. And in my opinion, I exercised that strike because I was afraid that he would not be able to fairly and impartially consider the facts in this case.

In point two, Appellant argues that the court erred when it denied his Batson motion.

When reviewing the decision below, the evidence must be considered in the light most favorable to the court's rulings, and as long as those rulings are supported by the record, they will not be disturbed on appeal. Keeton v. State, 749 S.W.2d 861, 870 (Tex. Crim. App. 1988). This is because the trial judge is in a better position to observe the behavior and statements of the veniremembers and the attorneys. Glenn v. State, 754 S.W.2d 290, 292 (Tex. App.--Houston [1st Dist.] 1988, no pet.). Once a defendant establishes a prima facia case, the burden shifts to the state to give "clear and reasonably specific" explanations of "legitimate reasons" for its peremptory challenges. Whitsey v. State, No. 1121-87, slip op. at p. 9 (Tex. Crim. App., May 10, 1989) (pending on rehearing).

The presence of any of any of the following factors suggests that a peremptory challenge was exercised impermissibly:

1. The reason given for the peremptory challenge is not related to the facts of the case;

2. There was a lack of questioning to the challenged juror or a lack of meaningful questions;

3. Disparate treatment--persons with the same or similar characteristics as the challenged juror were not [stricken];

4. Disparate examination of the members of the venire, i.e., questioning a challenged juror so as to evoke a certain response without asking the same question of other panel members; or

5. An explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically.

Id. However, the state may exercise its peremptory challenges on the basis of the prosecutor's past experience or "hunches," as long as the motive is not racial discrimination. Keeton, 749 S.W.2d at 865.

Here, Appellant has failed to demonstrate to the court below or to this court the existence of any factor which would suggest that the prosecutor used her challenges impermissibly. The prosecutor explained that the juror was inattentive, would not make eye contact, and apparently did not understand the burden of proof. Considering the evidence in the light most favorable to the court's ruling, the court did not err when it overruled Appellant's Batson motion. Point two is overruled.

During the punishment phase of the trial, the prosecutor questioned Henry Thompson, Appellant's character witness, as follows:

Q Mr. Thompson, are you aware of the facts of this offense?

A Yes, ma'am.

Q Okay. Are you familiar with any other incidents like this?

A (Witness shakes head negatively.)

Q You don't know of anybody else that ever got shot in this kind of circumstance?

A (Witness nods affirmatively.)

Q It was your girlfriend, wasn't it. You think the one that shot her should have gotten off free?

A No.

Q Do you think [Appellant] ought to get off lightly?

A I don't know.

Q You don't know? Well, you didn't think the one that killed your girlfriend should have gotten off light, did you?

Appellant objected: "What has happened in his life obviously has nothing to do with the character of the witness." The court sustained the objection and instructed the jury to "disregard," but denied Appellant's motion for a mistrial. Appellant's third point is that the court erred when it denied his motion.

Appellant's complaints on appeal that specific instances of conduct cannot be used to attack the credibility of a witness and that the impeachment prejudiced the jury are waived because they were not raised at trial. See Crocker v. State, 573 S.W.2d 190, 205 (Tex. Crim. App. [Panel Op.] 1978). Furthermore, any error which results from the asking of an improper question or from the admission of improper testimony may usually be cured by a withdrawal of the testimony and an instruction to disregard the same, unless the evidence was "clearly calculated to inflame the minds of the jury and [was] of such character as to suggest the impossibility of withdrawing the impression produced on their minds." Carey v. State, 537 S.W.2d 757, 759 (Tex. Crim. App. 1976). Point three is overruled because any error was cured when the court sustained the objection and instructed the jury to "disregard."

All points have been overruled. The judgment is affirmed.

BOB L. THOMAS

DO NOT PUBLISHChief Justice