Cecil Keith Hayes v. State

• Court: Court of Appeals of Texas
• Decided: May 1, 2003
• Docket: 11-02-00244-CR
• Status: Published

Opinion

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Cecil Keith Hayes

Appellant

Vs.                   No. 11-02-00244-CR B Appeal from Dallas County

State of Texas

Appellee

The jury found appellant guilty of aggravated robbery and sentenced him to confinement for ten years.  Appellant appeals.  We affirm.

Appellant stuck a gun in the victim=s ribs and told her he would count to three and pull the trigger if the victim refused to hand over her purse.  When the victim refused, appellant shoved her against the car door and banged her head against the car window.  Appellant hit the victim in the head with his fist and choked the victim with his elbow.  Finally, appellant placed the gun between the eyes of the victim=s granddaughter.  At that point, the victim let go of her purse.  The sufficiency of the evidence is not challenged.

In his first point, appellant, an African-American, argues that the court erred in overruling his Batson^[1] objections to the State=s peremptory challenges to five African-American veniremembers.  Appellant contends that the State=s challenges to these veniremembers were racially motivated.  The use of peremptory challenges to exclude persons from the petit jury because of race violates the equal protection clause of the 14th Amendment to the U.S. Constitution.  Batson v. Kentucky, supra; Ladd v. State, 3 S.W.3d 547, 563 (Tex.Cr.App.1999), cert. den=d, 529 U.S. 1070 (2000).  The party objecting under Batson must make a prima facie showing of discriminatory motives.  If the objecting party makes a prima facie showing, then the burden shifts to the other party to come forward with a race-neutral explanation.  The objecting party may rebut the race-neutral explanation.  The trial court must then decide whether the objecting party has proven purposeful discrimination.  Because the trial court=s decision frequently turns on an evaluation of credibility, we give the court=s decision great deference and will not disturb it unless it is clearly erroneous.  Herron v. State, 86 S.W.3d 621, 630 (Tex.Cr.App.2002).

The State offered the following race-neutral explanations and reasons for striking the veniremembers: 

(1) Juror No. 15 (Madkins).  The juror indicated that rehabilitation was the primary purpose of punishment and the juror was unemployed. The prosecutor stated that she struck every person who considered rehabilitation to be the primary purpose for punishment.

(2) Juror No. 17 (Randolph Wilson).  The juror believed rehabilitation was the primary purpose of punishment; the juror was sleeping; and the juror had a bulging disc which could cause the juror discomfort while listening to the testimony.

(3) Juror No. 36 (Marcus Wilson).  The juror recently completed deferred adjudication for an assault charge, and the juror also believed that rehabilitation was the primary purpose of punishment.

(4) Juror No. 61 (McNeely).  The juror card filled out by the juror was incomplete; the juror had all gold teeth in his mouth; the juror wore sunglasses throughout the voir dire even though the courtroom was well lighted; and the juror was equivocal about whether he would hold it against appellant if appellant did not testify.  When the prosecutor asked the question to the entire row of veniremembers, the juror was shaking his head Ayes.@  But when the prosecutor asked the question directly to the juror, the juror replied Aoh, no, no.@  The prosecutor stated that the juror=s Abody language@ was inconsistent with some of the answers he was giving.

(5) Juror No. 66 (Brown).  The juror was an unemployed single parent of an eight-month-old baby, and the juror had an appointment to receive some type of governmental assistance the following morning.  If the juror missed the appointment, it would take three weeks to reschedule another appointment.  The prosecutor stated  to the court that it seemed Athe absolute right thing to do@ to strike the juror.

The prosecutor pointed out to the trial court that the State did not strike two African-Americans who were selected to serve on the jury.  The reasons given by the prosecutor were race-neutral.  See Adanandus v. State, 866 S.W.2d 210, 224-25 (Tex.Cr.App.1993), cert. den=d, 510 U.S. 1215 (1994)(rehabilitation is a primary goal for punishment); Satterwhite v. State, 858 S.W.2d 412 (Tex.Cr.App.1993)(failure to complete juror card); Earhart v. State, 823 S.W.2d 607 (Tex.Cr.App.1991)(unemployment); Ivatury v. State, 792 S.W.2d 845, 848 (Tex.App. - Dallas 1990,  pet=n ref=d)(sleeping during voir dire); Anderson v. State, 758 S.W.2d 676, 680 (Tex.App. - Fort Worth 1988, pet=n ref=d)(trouble with the law); Chambers v. State 724 S.W.2d 440, 442 (Tex.App. - Houston [14th Dist.] 1987, pet=n ref=d)(body language).

Appellant does not dispute the State=s reasons or contend that they are not race-neutral.  Appellant argues in his brief that the prosecutor engaged in disparate treatment of the minority veniremembers.  Appellant fails to cite to any portion of the voir dire examination that would support a claim of disparate questioning or treatment.  The State=s race-neutral explanations were not rebutted by cross-examination or other evidence.  The trial court=s ruling was not clearly erroneous.  Appellant=s first point of error is overruled.  See Pondexter v. State, 942 S.W.2d 577 (Tex.Cr.App.1996), cert. den=d, 552 U.S. 825 (1997).

Appellant contends in his second point of error that the trial court erred in overruling his motion to suppress three written confessions.  Appellant urges that his confessions were involuntary because the detectives did not honor his request for an attorney and because the detectives promised  not to file all the cases they had against appellant if he would cooperate with them.

When an accused requests counsel, all interrogations must cease unless an attorney is present.  Miranda v. Arizona, 384 U.S. 436 (1966).  Also, certain promises made to an accused by persons in authority that would likely influence the accused to speak untruthfully can render a confession involuntary.  See Janecka v. State, 937 S.W.2d 456, 466 (Tex.Cr.App.1996), cert. den=d, 522 U.S. 825 (1997).  At a suppression hearing, the trial court is the trier of fact and assesses the witnesses= credibility and the weight to be given to the testimony.  We afford almost total deference to a trial court=s findings of historical fact that are supported by the evidence.  Herron v. State, supra at 627.  Furthermore, we defer to a trial court=s application of law to fact rulings if they turn on an evaluation of credibility and demeanor.  Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App.1997).

At the pretrial suppression hearing, the State presented the testimony of police officers William Ellstrom, Walter Hughey, and David Westfallen.  Appellant testified that he requested an attorney and that he was told that other cases would not be filed against him if he cooperated with the officers and helped them clear the books.  The officers refuted appellant=s testimony.  The trial court made oral findings and conclusions in the record.  The trial court found beyond a reasonable doubt that appellant never asked for an attorney or never asked to terminate the interview.  The trial court found that, after being advised of his rights, appellant intelligently, knowingly, and voluntarily waived those rights.  The court expressly found that no promises were made and no agreements were made not to file other cases in exchange for appellant=s statements.  The findings of the trial court are supported by the record; therefore, the trial court acted within its discretion in holding that the confessions were admissible.  Appellant=s second point of error is overruled.  Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Cr.App.1996).

In his final point of error, appellant complains that the trial court erred at the punishment stage of the trial by admitting the testimony of Terri Coplin.  Appellant contends that an extraneous offense was not proved beyond a reasonable doubt. Specifically, appellant cites Harrell v. State, 884 S.W.2d 154, 160 (Tex.Cr.App.1994), and argues that the trial court erred in its initial determination that a jury could reasonably find beyond a reasonable doubt that appellant committed the extraneous offense against Coplin.  The court in Mitchell v. State, 931 S.W.2d 950, 953 (Tex.Cr.App.1996), held that a trial court=s threshold determination of admissibility under TEX. CODE CRIM. PRO. ANN. art. 37.07, ' 3(a) (Vernon Supp. 2003) is based on relevancy, not on reasonable doubt determination, and is reviewed by this court under an abuse of discretion standard.  The court stated:

Consequently, we find that the trial court is deemed the authority on the threshold issue of admissibility of relevant evidence during the punishment phase of a trial, while the jury, as the Aexclusive judge of the facts,@ i.e. finder of fact, determines whether or not the burden of proof for those offenses presented has been satisfied by the party offering the evidence.

At the hearing to determine the admissibility of several extraneous offenses, on direct examination, Coplin identified appellant as the person who had robbed her while she was in her car.  On cross-examination, Coplin admitted that she could not Aabsolutely positively@ say that appellant was the man who robbed her.  Coplin stated that she did not get a good look at the man, but that A[i]t just [felt] like him.@  She stated that appellant looked Afamiliar@ to her and that she felt Alike he certainly could be the man that robbed@ her.  Although not unequivocal, Coplin=s identification testimony made it Amore probable@ that appellant was the robber; and, thus, the evidence was relevant.  See TEX.R.EVID. 401.  The trial court instructed the jury not to consider the extraneous offenses unless the jury found that the State proved them beyond a reasonable doubt.  The trial court=s decision to admit the evidence was not an abuse of discretion.  Appellant=s final point of error is overruled.

The judgment of the trial court is affirmed.

AUSTIN McCLOUD

SENIOR JUSTICE

May 1, 2003

Do not publish.  See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

McCall, J., and McCloud, S.J.^[2]

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^[1]Batson v. Kentucky, 476 U.S. 79 (1986).

^[2]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.