Anthony Warren Bradley v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-93-252-CR

ANTHONY WARREN BRADLEY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 93-564-C

O P I N I O N

Anthony Warren Bradley appeals his conviction for aggravated robbery. The jury found Bradley guilty and assessed punishment, enhanced by one prior felony conviction, at twenty-eight years in prison and a $1500 fine. We affirm.

In point one Bradley contends that the trial court erred in submitting a charge to the jury on the law of parties because the evidence was legally insufficient to support a conviction for aggravated robbery as a party to the offense. In reviewing the legal sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. // Specifically, Bradley argues that there was insufficient evidence to establish that he knew the primary actor's intent to commit the offense or that he aided or assisted the primary actor in the commission of the offense. //

Forrest Reel testified that on June 1, 1993, after purchasing a cup of coffee at a convenience store, he walked out of the store, and, as he put the cup of coffee on top of his car, he noticed a white Honda Civic moving slowly through the parking lot. Reel also testified that the two people in the car were "looking around real suspicious like they were looking for something." As they were peering intently past Reel into the store, a man wearing a ski mask and carrying a gun "came up behind [him] real quick" and demanded all his money. According to Reel, when he turned around he realized that the man looked "stoned." Fearing that he would be killed regardless of whether he gave the robber his money, Reel then grabbed his assailant's arms, pushing his hand up to keep the gun away from his face. As they struggled for the gun, a shot was fired, and Reel pushed the man to the ground. As they continued to struggle, the Honda Civic backed up and hit Reel in the shoulder. Although the jolt pushed Reel forward, he was able to gain control of the gun. The masked man then jumped on the back of the Honda Civic, which began to move forward. When he fell off, however, the driver of the car stopped to allow the robber to get into the back seat before driving away.

At trial, Reel positively identified Bradley as the driver of the Honda Civic. While mere presence at the scene of the offense will not suffice, we may consider all circumstantial evidence of the events occurring before, after, and during the offense. // Furthermore, evidence that a defendant drove the getaway car after a robbery has been held sufficient to convict the driver as a party to the offense. //

Viewing the evidence in the light most favorable to the verdict, we find that any rational trier of fact could have found beyond a reasonable doubt that Bradley knew the primary actor's intent to commit robbery and that Bradley aided or assisted the primary actor in the commission of the offense. Accordingly, we overrule point of error one.

In point two Bradley contends that the trial court erred in denying his motion to suppress evidence of the pretrial identification by Forrest Reel as well as his in-court identification of him because it was tainted by the pre-trial identification procedure conducted when he was apprehended. Bradley claims that the pre-trial identification was impermissibly suggestive because Reel was transported in a police car to the arrest scene, where a handcuffed Bradley was being detained with two other suspects.

At the hearing on Bradley's motion to suppress, Reel testified that he was fifteen to twenty feet from the driver of the Honda when it pulled up behind his car at the convenience store. He also testified that he had a particular reason to look at the driver and passenger of the Honda because of the way they were looking into the store. According to Reel, the lighting in the parking lot was very good, and he got a good look at the driver. Shortly after the robbery, Reel provided a description of the Honda and driver to Waco Police officers. About fifteen minutes later the officers took Reel to another convenience store where three people were standing behind the Honda. Reel testified that the officers asked him if they were the individuals involved in the robbery. Reel said that they were. According to Reel, his identification was based on his recognition of them "as being the people that had robbed me earlier."

Although a pretrial confrontation may be "unnecessarily suggestive and conducive to irreparably mistaken identification," the admission of identification testimony does not violate due process so long as the identification possesses sufficient aspects of reliability. // To determine the reliability of the identification, the totality of the circumstances must be reviewed and the following factors should be considered: (1) the opportunity to view, (2) the degree of attention, (3) the accuracy of the description, (4) the witness' level of certainty, and (5) the time between the crime and the confrontation. // Under the circumstances of this case, we hold that, because the pretrial identification procedure was neither unnecessarily suggestive nor lacking in sufficient "aspects of reliability," it did not taint Reel's in-court identification of Bradley. // Accordingly, we overrule point of error two.

In point three Bradley contends that the trial court erred in denying his Batson motion. Bradley's attorney objected to the prosecutor's use of peremptory challenges against the first two members of the venire, Eng Nio Oei and Cynthia Elaine Young, arguing that they were "stricken by the State for no reason other than ethnicity." Once the party raising a Batson challenge makes a prima facie showing that the opposing party has exercised its peremptory strikes with a discriminatory purpose, the burden shifts, requiring the non-movant to articulate neutral explanations sufficient to overcome the inference of discrimination. //

The trial court may not merely accept the specific reasons given at face value, but must determine, considering the demeanor and credibility of the challenged party, whether the facially neutral explanations are pretextual. // Bradley's sole argument in support of his Batson point is that "the reasons given by the prosecutor were not sufficiently race neutral."

Our review of the trial court's decision on the Batson issue is based on the "clear error" standard. // We apply this standard by reviewing the record, including the voir dire, the racial makeup of the venire, the prosecutor's neutral explanations, and the appellant's rebuttal and impeaching evidence. // Furthermore, undisputed observations by the attorneys in support of their positions in a Batson hearing constitute "valid proof." //

Although we may consider the objective factors discussed in Keeton v. State, // the overriding standard is still whether the trial court's decision is supported by the record so that it is not clearly erroneous. // A finding is "clearly erroneous" when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. //

The prosecutor offered the following explanation for striking Oei from the panel:

As far as juror number one, Oei, the only reason we struck her had nothing to do with oriental, and in fact I think there was another lady that was oriental out there, that was not struck by us, but she just appeared to me to be having trouble with the concept when I talked to her. I didn't feel like I was communicating very well with her, and I discussed that with [co-counsel] Martinez, and that was his impression of her also, and we both independently had the same idea, she didn't seem to be understanding, and that was the reason she was struck.

Although the record of the voir dire examination rarely indicates which prospective juror was responding to the prosecutor's questions, it does reflect at least one occasion when he asked Oei whether she could consider assessing either the minimum or the maximum punishment. Her initial response was, "I'm not sure." Lack of understanding or confusion is a characteristic that has verbal as well as nonverbal components, so that such a trait may not be readily apparent from reading the voir dire transcript. // Because a juror's ability to understand the legal concepts introduced by the attorneys during voir dire directly relates to her ability to follow the instructions of the court and apply the law to the facts of the case, the concern articulated by the prosecutor regarding Oei's lack of understanding is a sufficiently neutral explanation. // Furthermore, Bradley's attorney did not cross-examine the prosecutor or otherwise offer any evidence to show that his reasons for striking Oei were a pretext. //

With regard to the use of a peremptory strike against Young, the prosecutor stated:

If I could respond, first to juror number 2, your Honor, she went back in chambers and said that her husband has been convicted, and is currently in the Texas Department of Corrections. She said she thought it was something like Aggravated Assault. We have run a record on all the jurors that we could find, and their husbands, and our record on her indicates that her spouse has not only been convicted, but for five arrests, and one of those was for Agg. Robbery. He had an arrest for resisting, and his parole was revoked in '91, and while she said that she could be fair, we felt like having a husband in that situation, that in our opinion, it would probably be weak on punishment, and that is the reason that she was struck.

The arrest or conviction of a veniremember's relative is a race-neutral explanation for striking that venireperson. // When asked whether her husband's conviction would have any effect on her ability to serve as a juror, Young responded, "I have no problem with it, because if you do the crime, you pay the time." The trial court could have reasoned, however, that the prosecutor struck Young because of an intuitive feeling that, despite her response, she could be influenced, even subconsciously, by her husband's prior conviction or criminal background. // Again, defense counsel did not challenge the prosecutor's characterization of Young at the Batson hearing, nor did he attempt to cross-examine the prosecutor or otherwise impeach his explanation by offering rebuttal evidence. As a result, there is nothing in the record that objectively contradicts the prosecutor's statements or the trial court's express finding that the prosecutor's reasons were race neutral. //

The court in Emerson found that, because the record reflected that the prosecutor did not strike white veniremembers with the same or similar characteristics relied upon in striking the minority veniremembers, the prosecutor's race-neutral explanations were pretextual and the trial court's findings were not supported by the record. // Unlike Emerson, however, the appellant in this case does not complain that the classifications used by the prosecutor to strike Oei and Young were not uniformly applied to the non-minority veniremembers. // Because there is nothing in the record to show that the prosecutor's stated reasons were pretextual, we overrule point of error three.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 10, 1994

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