Mack Edward Johnson v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-94-035-CR

MACK EDWARD JOHNSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 93-381-C

O P I N I O N

Mack Johnson was tried on an indictment that charged aggravated robbery of a Circle K convenience store clerk, using a metal rod as a deadly weapon. See Tex. Penal Code Ann. 29.03 (Vernon 1994). He pled not guilty, but a jury found him guilty and, because it also found that he had been convicted of two prior felonies possession of a controlled substance and unauthorized use of a motor vehicle, assessed life in prison. See id. 12.42 (Vernon 1994). He asserts two points of error: (1) the prosecutor's injection of his personal opinion into the final argument on guilt-innocence and (2) error in failing to sustain his Batson challenge.

The primary evidence against Johnson was a videotape taken during the occurrence. During the rebuttal argument at the guilt-innocence stage, the prosecutor said:

To start things off, I would like to respond to a couple of things [defense counsel] says. He says that he has looked at this tape. Well, I can guarantee you that nobody has looked at that video tape more or any closer than I have. And you will notice that I am here prosecuting Mack Edward Johnson for the aggravated robbery he committed on April 4, 1993. Note that. Okay? Thank you.

Although no objection was made at trial, Johnson's brief suggests that the argument was "nothing more than a thinly disguised attempt to inform the jury that he believed [Johnson] was guilty, which was a fact that he, as the state's attorney, was in the best position to determine." He further says it interjected the prosecutor's personal opinion that the videotape conclusively established guilt and that he, the prosecutor, has particular expertise in establishing identity from videotapes.

The State notes that, during the argument that preceded its rebuttal, Johnson's counsel said:

I have looked--in the course of investigating this case, I have looked at that video a number of times, and I have yet to be able to tell the person who perpetrated that is the defendant from that video. . . . I don't think from the video that you can tell that the defendant actually is the perpetrator of this offense from the video.

Later, counsel returned to the videotape: "I cannot say that with any certainty who that is. And I think if you look at that, you may see there are similarities, but you cannot make a positive identification from that video."

Proper jury argument falls within one of the following categories: (1) a summary of the evidence; (2) a reasonable deduction from the evidence; (3) an answer to the opponent's argument; or (4) a plea for law enforcement. Harris v. State, 827 S.W.2d 949, 963 (Tex. Crim. App.), cert. denied, U.S. , 113 S. Ct. 381, 121 L. Ed. 2d 292 (1992). In the absence of an objection at trial, improper jury argument is waived. Briddle v. State, 742 S.W.2d 379, 389 (Tex. Crim. App. 1987), cert. denied, 488 U.S. 986, 109 S. Ct. 543, 102 L. Ed. 2d 573 (1988). An exception exists when the prosecutor's argument is so prejudicial that an instruction to disregard would not have cured the harm. Id. For an improper argument to rise to a level mandating reversal, the argument must be "extreme or manifestly improper, or inject new and harmful facts into evidence." Kinnamon v. State, 791 S.W.2d 84, 89 (Tex. Crim. App. 1990).

Here, the State's argument was in answer to argument that had been made by Johnson's counsel. Thus, under Harris, the argument was proper. See Harris, 827 S.W.2d at 963. We overrule point one.

Johnson's second point complains of the court's overruling his Batson // motion after the State struck the only black juror on the panel. During the hearing on the motion, one prosecutor testified that the juror had a burglary charge pending, and another prosecutor testified that a vehicle owned by the juror had been involved in a drive-by shooting. The juror testified, however, that he was innocent of any charges and that he would not penalize the State because he had pending charges. The essence of Johnson's point is that other jurors, who were accepted by the State, also had had "clashes with the law."

The State's position is that, because of the allocation of the burdens in a Batson hearing, this challenge ultimately fails because Johnson did not prove, by a preponderance of the evidence, that the State's explanations were a pretext for discrimination. See Williams v. State, 804 S.W.2d 95, 97 (Tex. Crim. App.), cert. denied, 501 U.S. 1239, 111 S. Ct. 2875, 115 L. Ed. 2d 1038 (1991). In support of its position, the State points out that, when the court's ruling was made, the evidence consisted of only the juror's voir dire answers and the prosecutors' testimony. Thus, it says, Johnson failed to meet his burden of proof.

A single peremptory strike can run afoul of the Batson doctrine. Linscomb v. State, 829 S.W.2d 164, 166 (Tex. Crim. App. 1992). Johnson was not required to ask the trial court to conduct a comparative analysis in order to have us consider the point; it is not a new or different legal theory. See Young v. State, 826 S.W.2d 141, 146 (Tex. Crim. App. 1991). We review the record in the light most favorable to the ruling and will not disturb the ruling unless it was "clearly erroneous." 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). Our review includes the racial makeup of the venire, the voir dire examination, the prosecutors' explanations, and any rebuttal and impeaching 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).

Another juror, who was still serving a probated sentence for driving while intoxicated, was also struck by the State. Still other jurors were, as Johnson states, "involved closely in criminal cases." Two had sons who had been arrested; another, a husband; another, a sister (whose case was still pending); still another, a son currently held in a drug rehabilitation center after committing theft. All of these jurors also said that they could set this factor aside.

The State apparently drew a distinction between potential jurors who had themselves been arrested and those whose relatives had been arrested. Because the record supports that distinction and because the court had the advantage of observing the behavior and statements of the venire members and the attorneys, we defer to the court's finding. See Whitsey v. State, 796 S.W.2d 707, 716 (Tex. Crim. App. 1989). In short, we cannot say that the ruling was "clearly erroneous." See Adanandus, 866 S.W.2d at 224. We overrule point two.

We affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed June 21, 1995

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