Robert Lee Fisher v. The State of Texas--Appeal from 283rd District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-95-150-CR

ROBERT LEE FISHER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 283rd District Court

Dallas County, Texas

Trial Court # F94-53021-T

O P I N I O N

Appellant Robert Lee Fisher was charged by indictment with the offense of aggravated robbery, a first degree felony under 29.03, Tex. Penal Code Ann. (Vernon 1994). Appellant pleaded not guilty and trial was before a jury. The indictment also contained an enhancement paragraph showing Appellant had a prior felony conviction. Appellant pleaded not true to the prior conviction.

The jury found Appellant guilty as charged in the indictment, found the enhancement paragraph to be true, and sentenced Appellant to 15 years' confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant's counsel filed an Anders brief, to which the State responded. The court allowed Appellant's counsel to withdraw, after which Appellant filed a pro se brief asserting one point of error contending Batson errors were committed concerning the State's peremptory challenges to three members of the jury panel. More specifically, Appellant contends that the prosecutor improperly struck veniremembers No. 6 (Frank Bradford, Jr.), No. 20 (Richard Harris), and No. 24 (Marie Jamison) based on their race. In the Batson hearing conducted by the trial court, the court ruled that the prosecutor gave race-neutral reasons for the three strikes in question. We agree with the trial court's action, and thereby overrule Appellant's point of error and affirm the trial court's judgment.

The Equal Protection Clause of the U.S. Constitution limits a prosecutor's privilege to peremptorily strike potential jurors. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69. The Texas Legislature has codified Batson in Art. 35.261, Tex. Code Crim. Proc. Ann.S (Vernon 1989). Our Court of Criminal Appeals has held that the correct standard of review for claims that peremptory strikes were used in a racially-discriminatory manner is the "clearly erroneous" standard. Hill v. State, 827 S.W.2d 860, 865 (Tex. Crim. App. 1992).

The State's reason for striking a particular juror need not rise to the level of a challenge for cause; it need be only race-neutral. Tompkins v. State, 774 S.W.2d 195, 200 (Tex. Crim. App. 1987), aff'd, 490 U.S. 754, 109 S. Ct. 2180, 104 L. Ed. 2d 834 (1989).

Appellant's first complaint regards venireperson No. 6, Frank Bradford, Jr. In response, the prosecutor explained that Bradford was struck when the parties' theory was explained to him. Bradford did not feel that a person without the gun was as guilty as the person with a gun. Bradford stated that if someone didn't have a gun but was acting as a party to an aggravated robbery, he should only be charged with robbery because that person probably didn't know that the person with the gun had a weapon. On questioning from defense counsel, Bradford said he could find a person guilty of aggravated robbery if the accused knew there was to be a firearm used in the robbery.

Appellant also asserts that venireperson No. 24, Marie Jamison, was struck by the prosecutor for reasons based on race. The prosecutor struck Jamison because she agreed with several people who did not feel that someone who did not have a weapon was as guilty as a person with a weapon in an aggravated robbery case. Upon being questioned by defense counsel, Jamison said she had no problem with following the law if the State proved that another person had a firearm in an aggravated robbery, and the defendant was a party to it.

Appellant complains that venireperson No. 20, Richard Harris, was struck based on his race. The prosecutor responded that when asked by defense counsel if he could follow the law concerning parties, and the difference between aggravated robbery and robbery based on who had the weapon, Harris shrugged and said, "If it's proven, I suppose so." When Harris had been questioned by defense counsel, Harris was asked if he could follow the law of parties, if it was proved to him that Appellant was a party to aggravated robbery, and Harris said, "If it was proven, I suppose so." Defense counsel pursued with the question, "If it's proven, you can do it, can't you, sir?" and Harris replied, "Yes."

In Green v. State, 839 S.W.2d 935, 939 (Tex. App. Waco 1992, pet ref'd), this court held that striking someone who expresses doubt about considering the full range of punishment is race-neutral even if that venireperson is ultimately rehabilitated. The facts in the case at bar are similar to Green. In our case, all three venirepersons expressed doubt about assessing the full range of punishment, or even finding Appellant guilty of aggravated robbery based on their answers: Bradford and Jamison said a party would not be as guilty as the person with the gun, and Harris said he "supposed" he could follow the law of parties if the difference between robbery and aggravated robbery was proven to him based on who had the weapon. Although it may be argued that all of the venirepersons were rehabilitated, the strikes by the prosecutor were race-neutral because of the jurors' initial doubt.

Since the prosecutor's explanations were race-neutral and Appellant did not rebut the explanations, the trial court's findings were not clearly erroneous. Williams v. State, 804 S.W.2d 95 (Tex. Crim. App. 1991), cert. denied, 501 U.S. 1239, 111 S. Ct. 2875, 115 L.Ed 2d 1038.

Judgment of the trial court is affirmed.

JOHN A. JAMES, JR.

Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Justice James (Retired)

Affirmed

Opinion delivered and filed June 5, 1996

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