Lester Davis v. The State of Texas--Appeal from 12th District Court of Madison County

IN THE

TENTH COURT OF APPEALS

No. 10-93-227-CR

LESTER DAVIS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 12th District Court

Madison County, Texas

Trial Court # 8778

O P I N I O N

A jury found Lester Davis guilty of delivery of a controlled substance (cocaine) and assessed punishment of ninety-nine years' imprisonment and a $10,000 fine. See Tex. Health & Safety Code Ann. 481.102(3)(D), 481.112(a) (Vernon 1992). In the first of "five" points of error, // Davis claims the State unlawfully exercised three peremptory challenges based on the race of the venire. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 01712, 90 L. Ed. 2d 69 (1986). In points "two" and "three," he argues the court erred in admitting evidence relating to an extraneous offense. Finally, in points "four" and "five," he challenges the sufficiency of the evidence to support his conviction and alleges a fatal variance between the allegations of the indictment and the proof adduced at trial. We will affirm.

Seven members of the venire were black. Davis peremptorily challenged two of them and the State struck the other five. Of the five strikes, Davis concedes that the State articulated race-neutral reasons for two of the challenges. However, he contends that the State failed to carry its burden of rebutting his prima facia case of discrimination against the others.

Batson prohibits the use of preemptory challenges based on race. Id. 476 U.S. at 89, 106 S. Ct. at 1719. Under Batson, the intent to discriminate is a "pure issue of fact, subject to review under a deferential standard." Hernandez v. New York, 500 U.S. 352, ___, 111 S. Ct. 1859, 1869, 114 L. Ed. 2d 395 (1991); Vargas v. State, 838 S.W.2d 552, 554 (Tex. Crim. App. 1992). Thus, on appeal, "[t]he overriding standard is . . . whether the trial judge's decision was supported by the record so that it is not clearly erroneous." Vargas, 838 S.W.2d at 554. For us to conclude that the court's decision was clearly erroneous, we must be left with a "definite and firm conviction that a mistake [has] been committed." See Hernandez, 500 U.S. at ___, 111 S. Ct. at 1871; Vargas, 838 S.W.2d at 554.

As the appellate court, we view the record in the light most favorable to the court's ruling. See Adanandus v. State, 866 S.W.2d 210, 224 (Tex. Crim. App. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1338, 127 L. Ed. 2d 686 (1994). We consider the racial makeup of the venire, the voir dire direct examination, the prosecutor's explanations, and the defendant's impeaching and rebuttal evidence. See Chambers v. State, 866 S.W.2d 9, 23 (Tex. Crim. App. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1871, 128 L. Ed. 2d 491 (1994). Because "the exclusion of even one member . . . from the jury panel for racial reasons invalidates the entire jury selection process," we must consider the State's articulated reasons for striking each individual juror, which we will now do. See Emerson v. State, 851 S.W.2d 269, 274 (Tex. Crim. App. 1993) ("Emerson II").

The first challenged strike was exercised on juror number one. According to the State, it struck this juror because she "had known [Davis] since he was a kid, considered herself a close acquaintance. She hesitated to say that she could consider the maximum punishment, and she was hesitant to sit in the punishment phase on this defendant." The juror was a cousin of the two jurors whose removal from the panel by the State's peremptory strikes Davis does not challenge. Her responses during voir are similar to those of her cousins. If fact, she adopted her cousins' expressed hesitancy to sit in judgment of Davis, both for guilt-innocence and punishment. A friendly relationship with the defendant's family is a race-neutral reason for exercising a peremptory strike. Chambers, 866 S.W.2d at 25. Admitted difficulty with the range of punishment is also an accepted reason for challenging a juror. Green v. State, 839 S.W.2d 935, 939 (Tex. App. Waco 1992, pet. ref'd).

Davis next challenges the State's strike of juror number eighteen. The State challenged this juror because:

she was having a conversation with Mr. Lester Davis' stepfather during preliminary questions to the jury. . . . And [the juror] claims that she was not related to any of Mr. Davis' family although Mr. Davis' stepfather said she was related and was a cousin, and he called her retarded. And that was the reason that we struck her because at least the defendant's stepfather said that [the juror] was kin to him and that he talked to her during jury selection.

Prior to voir dire, Davis' stepfather was examined under oath regarding his contact with juror eighteen. When asked if he had talked to the juror, he stated, "Oh yeah, that's my cousin. She's retarded. She's old and I asked her did she want to go home." However, during voir dire, when asked if she was related to Davis, the juror stated, "No, my husband was." A family relationship with the defendant is a race-neutral reason for exercising a peremptory challenge. Moss v. State, 850 S.W.2d 788, 792 (Tex. App. Houston [14th Dist.] 1993, no pet.). Communication with individuals associated with the defense team by a juror is also a neutral reason for a strike. Emerson II, 851 S.W.2d at 272. We consider the defendant's stepfather so closely related to the defendant as to be the equivalent of a member of the defense team.

Finally, Davis challenges the strike of juror number twenty-eight. In articulating race-neutral reasons for the strikes, the prosector stated:

And [the juror] was struck because she knew the defendant by sight. She's a young woman twenty-eight years old. . . . We also struck her because of her demeanor. When I questioned her she appeared to give curt -- I detected very curt answers to my questions. . . . I detected through her body language, through her demeanor and the way that she looked at me when I questioned her that she was hostile to the State although she didn't verbally express that hostility.

We have accepted age as a race-neutral basis for a strike. See Ybarra v. State, 775 S.W.2d 409, 410 (Tex. App. Waco 1989, no pet.). Hostility towards one side is clearly a race-neutral reason for striking a juror. See Alexander v. State, 866 S.W.2d 1, 8 (Tex. Crim. App. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1869, 128 L. Ed. 2d 490 (1994). The State's unchallenged assertions are "valid proof" of the juror's expressions of hostility. See Emerson v. State, 820 S.W.2d 802, 804 (Tex. Crim. App. 1991) ("Emerson I").

Once the state has specified race-neutral reasons for its strikes, the burden shifts to the defendant to attempt to convince the court that the state's articulated reasons are pretextual covers for purposeful racial discrimination. Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App.), cert. denied, 501 U.S. 1239, 111 S. Ct. 2875, 115 L. Ed. 2d 1038 (1991). Here, the defense attempted to impeach the State's recollection of the statements of the jurors during voir dire. Having examined the record, we conclude that the court's overruling of the Batson objection was not clearly erroneous. See Hernandez, 500 U.S. at ___, 111 S. Ct. at 1871; Vargas, 838 S.W.2d at 554. Point one is overruled.

In points "two" and "three," Davis complains that the court admitted evidence of an extraneous offense. By point "two," he argues that the State failed to prove that the extraneous offense occurred, while in point "three" he contends that the court erred in admitting evidence of the extraneous offense because it was not relevant and any relevance it did possess was outweighed by its "inflammatory and prejudicial potential."

At trial, the State sought to call an undercover police officer who had purchased cocaine from Davis four days after the offense charged in the indictment. Outside the presence of the jury, the State offered the evidence under the identity exception to the propensity rule. See Tex. R. Crim. Evid. 404(b). Initially, Davis' attorney responded, "That [the extraneous offense] won't go to identity, Judge." After a discussion between the State and the judge, Davis' attorney agreed with the judge's comment that "[t]he issue in the case is identity," stating, "Sure it is; no question about it." At this point, however, the discussion became sidetracked on the issue of an audio tape in the defense's possession. After four pages of discussion, the court returned to the issue of the admissibility of the extraneous offense:

THE COURT:

He's made his offer so I'm kind of confused now as to what your response is to his offer.

[DEFENSE COUNSEL]:

My response to his offer is that it is -- the probative value of admitting it into evidence at this time shows that this man has a conviction for a drug sale four days later certainly is prejudicial to my client as far as the issue of identity is concerned. They have failed to identify him, especially in light of the evidence we're going to put on.

[THE STATE]:

Failed to identify him?

[DEFENSE COUNSEL]:

Yeah.

[THE STATE]:

That's whole purpose of [the extraneous offense witness].

[DEFENSE COUNSEL]:

Lester Davis wasn't the one that sold the cocaine because Angela Hall sat right down there in jail -- I've got her subpoenaed. She's going to testify that he wasn't the one that sold the cocaine.

THE COURT:

Bill, that's all final argument.

[DEFENSE COUNSEL]:

That's the evidence.

THE COURT:

Which you can put on later. But there's no question under the case law this case is still a good case you're telling me?

[THE STATE]:

Yes, Sir.

THE COURT:

You have put it into issue, I guess, through your cross-examination of their witnesses.

[DEFENSE COUNSEL]:

That's our whole case. He didn't sell the cocaine.

THE COURT:

I think it comes in under this case.

[DEFENSE COUNSEL]:

Please note my exception, Your Honor.

To preserve a complaint for appellate review, the aggrieved party must have presented to the court a timely objection "stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context." Tex. R. App. P. 52(a); also Tex. R. Crim. Evid. 103(a)(1). "As regards specificity, all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it." Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).

Davis' complaint, that the court erred in admitting the evidence without sufficient proof that the offense actually occurred, is waived by his failure to object on this specific basis during the bench conference concerning the State's offer. See Tex. R. App. P. 52(a). Davis' complaint regarding the evidence's relevancy and prejudicial effect is also waived by failure to object specifically enough for the court to understand the basis of his objection. See id.; Lankston, 827 S.W.2d at 909. Even after the court specifically stated that it was "confused," Davis' attorney failed to clearly object on relevancy or unfair-prejudice grounds. See Montgomery v. State, 810 S.W.2d 372, 387-90 (Tex. Crim. App. 1991) (on rehearing). Thus, points "two" and "three" are overruled.

In point "four" Davis attacks the sufficiency of the evidence to support his conviction. In resolving the sufficiency-of-the-evidence issue, we view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988); Reeves v. State, 806 S.W.2d 540, 543 (Tex. Crim. App. 1990). The jury is entitled to reject the defensive evidence and credit the state's version of the events. Lackey v. State, 819 S.W.2d 111, 116 (Tex. Crim. App. 1989). "[T]he evidence is not rendered insufficient simply because [Davis] presented a different version of the events." See Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

Davis argues that the evidence is insufficient under the reasonable-hypothesis test. However, this standard was specifically rejected in Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). Additionally, the reasonable-hypothesis standard, when it existed, applied to reviews of convictions based on circumstantial evidence. See Carlsen v. State, 654 S.W.2d 445, 449 (Tex. Crim. App. 1983) (on rehearing), overruled by Geesa v. State, 820 S.W.2d 154, 161 (Tex. Crim. App. 1991). In this case, Robert Guard, a police officer, testified that he purchased three rocks of cocaine from Davis on May 17, 1990, in Madisonville. An investigator for the District Attorney's office testified that the substance purchased was tested in a laboratory and found to contain .39 grams of cocaine. The lab report itself was introduced into evidence by stipulation. This direct evidence linking Davis to the sale of .39 grams of cocaine is sufficient to support his conviction. Point "four" is overruled.

Finally, in point "five," Davis claims that there is a fatal variance between the allegations in the indictment and the proof at trial. The indictment alleged that Davis delivered cocaine to Robert Guard by actual transfer. The proof at trial showed that Davis handed the cocaine to a confidential informant, who immediately passed the drugs to Guard. Guard testified that he handed Davis the money to pay for the drugs. "[A]n actual transfer or delivery, as commonly understood, contemplates the manual transfer of property from the transferor to the transferee or to the transferee's agents or to someone identified in law with the transferee." Heberling v. State, 834 S.W.2d 350, 354 (Tex. Crim. App. 1992). Thus, the proof at trial was within the allegations of the indictment. Point "five" is overruled.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed November 2, 1994

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