Charles Edward Johnson v. State

Court of Appeals of Texas

Charles Edward Johnson v. State

DecidedJuly 25, 2007

Docket12-06-00288-CR

StatusPublished

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Charles Edward Johnson v. State, (Tex. Ct. App. 2007).

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Opinion

NO. 12-06-00288-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CHARLES EDWARD JOHNSON, ' APPEAL FROM THE 241ST

APPELLANT

V. ' JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ' SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Charles Edward Johnson appeals from his conviction for possession of a controlled substance, cocaine, in an amount of one gram or more but less than four grams. In two issues, Appellant claims that the trial court erred in denying his Batson^{^[1]} motion and that the evidence was legally and factually insufficient to support the conviction. We affirm.

Background

On June 30, 2005, Appellant was seen driving away from a known drug house in Tyler, Texas. Two City of Tyler police officers stopped Appellant after they observed him turning without using a signal. Appellant drove into a convenience store parking lot. When the officers approached Appellant=s vehicle, they noticed that Appellant was extremely nervous. Appellant exited the vehicle pursuant to the officers= request, and an officer conducted a Terry^{^[2]} search of Appellant=s person. No weapons or contraband were found during the Terry search. The officers then requested Appellant=s consent to search the vehicle, but Appellant refused.

Another officer arrived with a trained police dog. The dog walked around the vehicle and alerted to an area near the location where the officers searched Appellant. Upon further inspection, the officers observed and recovered a small quantity of crack cocaine wrapped in plastic lying on a tire mark from Appellant=s vehicle. The officers concluded that the crack cocaine was not there when Appellant drove into the parking lot because it was not crushed, as it would have been if Appellant had driven over it.

The officers then searched Appellant=s vehicle. The officers did not find any contraband in the vehicle, but they did find a piece of plastic tied in the way contraband is tied into the corner of a plastic bag. Video cameras in the police cars captured the stop of Appellant=s vehicle and the subsequent events. Appellant is not seen disposing of any contraband in the video of the stop, and no contraband is seen falling from Appellant=s clothing during the Terry search. No officer saw Appellant dispose of any contraband either before or during the stop.

Appellant was charged with possession of a controlled substance. After voir dire examination, the State used its peremptory strikes to strike the six African Americans who could have served on the jury. Appellant, who is African American, made a Batson motion complaining of the State=s strikes. After an evidentiary hearing, the trial court denied the motion.

The case then proceeded to trial. The jury found Appellant guilty and assessed punishment at ten years of imprisonment and a fine of $5,000. This appeal followed.

Batson Motion

In his first issue, Appellant contends that the trial court erred in denying his Batson motion. Specifically, Appellant alleges that the State engaged in purposeful discrimination when it used its peremptory challenges to excuse six AfricanBAmerican individuals from the venire.

Applicable Law

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution forbids a prosecutor from challenging potential jurors solely on the basis of their race. U.S. Const. Amend. XIV; Batson, 476 U.S. at 89, 106 S. Ct. at 1719.^{^[3]} A defendant who makes a Batson challenge must first make a prima facie showing that the prosecutor has used a peremptory challenge to remove a potential juror on account of race. Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770, 131 L. Ed. 2d 834 (1995). A defendant may establish a prima facie case solely on evidence concerning the prosecutor=s exercise of peremptory challenges at trial. Batson, 476 U.S. at 96, 106 S. Ct. at 1723. To establish such a case, the defendant first must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant=s race. Id.^{^[4]} He must also show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. Id.

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NO. 12-06-00288-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CHARLES EDWARD JOHNSON, ' APPEAL FROM THE 241ST

APPELLANT

V. ' JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE ' SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Charles Edward Johnson appeals from his conviction for possession of a controlled substance, cocaine, in an amount of one gram or more but less than four grams. In two issues, Appellant claims that the trial court erred in denying his Batson^{^[1]} motion and that the evidence was legally and factually insufficient to support the conviction. We affirm.

Background

On June 30, 2005, Appellant was seen driving away from a known drug house in Tyler, Texas. Two City of Tyler police officers stopped Appellant after they observed him turning without using a signal. Appellant drove into a convenience store parking lot. When the officers approached Appellant=s vehicle, they noticed that Appellant was extremely nervous. Appellant exited the vehicle pursuant to the officers= request, and an officer conducted a Terry^{^[2]} search of Appellant=s person. No weapons or contraband were found during the Terry search. The officers then requested Appellant=s consent to search the vehicle, but Appellant refused.

Another officer arrived with a trained police dog. The dog walked around the vehicle and alerted to an area near the location where the officers searched Appellant. Upon further inspection, the officers observed and recovered a small quantity of crack cocaine wrapped in plastic lying on a tire mark from Appellant=s vehicle. The officers concluded that the crack cocaine was not there when Appellant drove into the parking lot because it was not crushed, as it would have been if Appellant had driven over it.

The officers then searched Appellant=s vehicle. The officers did not find any contraband in the vehicle, but they did find a piece of plastic tied in the way contraband is tied into the corner of a plastic bag. Video cameras in the police cars captured the stop of Appellant=s vehicle and the subsequent events. Appellant is not seen disposing of any contraband in the video of the stop, and no contraband is seen falling from Appellant=s clothing during the Terry search. No officer saw Appellant dispose of any contraband either before or during the stop.

Appellant was charged with possession of a controlled substance. After voir dire examination, the State used its peremptory strikes to strike the six African Americans who could have served on the jury. Appellant, who is African American, made a Batson motion complaining of the State=s strikes. After an evidentiary hearing, the trial court denied the motion.

The case then proceeded to trial. The jury found Appellant guilty and assessed punishment at ten years of imprisonment and a fine of $5,000. This appeal followed.

Batson Motion

In his first issue, Appellant contends that the trial court erred in denying his Batson motion. Specifically, Appellant alleges that the State engaged in purposeful discrimination when it used its peremptory challenges to excuse six AfricanBAmerican individuals from the venire.

Applicable Law

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution forbids a prosecutor from challenging potential jurors solely on the basis of their race. U.S. Const. Amend. XIV; Batson, 476 U.S. at 89, 106 S. Ct. at 1719.^{^[3]} A defendant who makes a Batson challenge must first make a prima facie showing that the prosecutor has used a peremptory challenge to remove a potential juror on account of race. Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770, 131 L. Ed. 2d 834 (1995). A defendant may establish a prima facie case solely on evidence concerning the prosecutor=s exercise of peremptory challenges at trial. Batson, 476 U.S. at 96, 106 S. Ct. at 1723. To establish such a case, the defendant first must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant=s race. Id.^{^[4]} He must also show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. Id.

Once the defendant has made a prima facie showing, the burden shifts to the state to come forward with a race neutral explanation for its strikes. Batson, 476 U.S. at 97B98, 106 S. Ct. 1723B24. If the state offers race neutral reasons for the strikes, the defendant is afforded the opportunity to rebut those explanations. Shuffield v. State, 189 S.W.3d 782, 785 (Tex. Crim. App. 2006). The defendant carries the burden to prove purposeful discrimination. Id.

Although a prima facie case of discrimination can be supported by the differential of strikes made by the prosecution among various races and ethnic groups, the critical step in the analysis of a Batson challenge is the prosecutor=s reason for any disparate striking of potential jurors based on similar responses to questions posed to the venire panel. See MillerBEl v. Dretke, 545 U.S. 231, 241, 125 S. Ct. 2317, 2325, 162 L. Ed. 2d 196 (2005) (AIf a prosecutor=s proffered reason for striking a black panelist applies just as well to an otherwiseBsimilar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson=s third step.@). The credibility of the prosecutor=s reasons for disparate striking of jurors can be measured by Athe prosecutor=s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.@ MillerBEl v. Cockrell, 537 U.S. 322, 339, 123 S. Ct. 1029, 1040, 154 L. Ed. 2d 931 (2003).

We will only disturb a trial court=s ruling on a Batson motion if it is Aclearly erroneous.@ Guzman v. State, 85 S.W.3d 242, 254 (Tex. Crim. App. 2002). Generally, a fact finder=s decision is clearly erroneous when it leaves an appellate court with a Adefinite and firm conviction that a mistake has been committed.@ Id. (citing United States v. Fernandez, 887 F.2d 564, 567 (5th Cir. 1989)). The clearly erroneous standard is an especially rigorous one where the findings are based primarily on oral testimony and the trial judge has viewed the demeanor of the witnesses. Fernandez, 887 F.2d at 567; see also Alexander v. State, 866 S.W.2d 1, 8 (Tex. Crim. App. 1993).

We review the evidence in the light most favorable to the trial court=s ruling and afford great deference to that ruling. See Jasper v. State, 61 S.W.3d 413, 422 (Tex. Crim. App. 2001). Furthermore, a claim that the proffered race neutral reasons for strikes are pretextual presents a question of fact, not law, and the trial court is in the best position to evaluate such claims. See Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004).

Analysis

At trial, Appellant objected that the State had struck the six AfricanBAmerican members of the prospective jury panel. The State responded that it had legitimate, race neutral reasons for the strikes. Appellant then responded that one of the race neutral reasons proffered by the State (having a family member charged with a crime) was not exercised consistently.

We summarize the State=s presentation at the Batson hearing as follows:

African-American Jurors Struck by the State

Juror number 3 was African American. During voir dire examination, she stated that a family member had been charged with a drug offense. She was not sure if this family member had been treated fairly. Additionally, from the voir dire examination, the State concluded that she either did not understand or did not agree with the law regarding the definition of possession.

Juror number 7 was African American. The State believed that juror number 7 was not being attentive during voir dire.

Juror number 16 was African American. During voir dire examination, she stated that a family member had been charged with a drug offense. During the Batson hearing, the prosecutor stated that she had shrugged and said AI guess@ when asked if her family member had been treated fairly by law enforcement. The record does not show whether juror number 16 shrugged when answering, but it shows that she did state AYes@ when asked if her family member had been treated fairly.

Juror number 19 was African American. The State said that it struck juror number 19 because she failed to accurately fill out her jury card information sheet and because she was unemployed.

Juror number 25 was African American. During voir dire examination, he stated that a family member had been charged with a drug offense and another family member had been charged with theft.

Juror number 35 was African American. During voir dire examination, she stated that a family member had been charged with manslaughter and another family member had been charged with robbery. Juror number 35 was unemployed.

Other Jurors Struck by the State

Juror number 2 was not African American. During voir dire examination, she stated that a family member had been charged with a drug offense.

Juror number 24 was not African American. During voir dire examination, she stated that a family member had been charged with a drug offense and driving while intoxicated.

Juror number 28 was not African American. During voir dire examination, he stated that a distant family member had been charged with a drug offense. He also was a former assistant district attorney who left on what the State described as poor terms.

Juror number 34 was not African American. During voir dire examination, he stated that friends and a family member had been charged with several offenses.

Jurors Not Struck by the State

Juror number 13 was not African American. During voir dire examination, juror number 13 stated that a family member had been charged with a drug offense. However, she had served on a previous jury in Smith County, and the prosecutor said that the State had a Agood@ previous jury card for her.

Juror number 32 was not African American. During voir dire examination, he stated that a family member had been charged with a drug offense. But he also stated that the family member had been treated too leniently by law enforcement.

Juror number 37 was not African American. Juror number 37 was unemployed, though he listed his occupation as being a carpet cleaner. Further, he had two former nephews who were in law enforcement.

Unless a discriminatory intent is inherent in the prosecutor=s explanation, the reason for a peremptory strike will be deemed race neutral. See Shuffield, 189 S.W.3d at 785. The State=s proffered reasons for striking the six AfricanBAmerican prospective jurors are facially race neutral and do not exhibit an inherent discriminatory intent. The exercise of peremptory strikes on prospective jurors because they have had family members charged or convicted of crimes is race neutral. Dorsey v. State, 940 S.W.2d 169, 175 (Tex. App.BDallas 1996, no pet.). Inaccurate or incomplete juror information forms are likewise race neutral bases for using peremptory strikes on prospective jurors. Jones v. State, 845 S.W.2d 419, 421 (Tex. App.BHouston [1st Dist.] 1992, pet. ref=d).^{^[5]} Juror inattentiveness is another racially neutral basis for exercising peremptory strikes. Dorsey, 940 S.W.2d at 175. Finally, the exercise of peremptory strikes on prospective jurors because they are unemployed is race neutral. Bridges v. State, 909 S.W.2d 151, 156 (Tex. App.BHouston [14th Dist.] 1995, no pet.). Therefore, there was no discriminatory intent inherent in the reasons the State offered for its strikes.

As Appellant correctly states, however, the State did not strike every individual who had a family member who had been arrested, and two white jurors who had family members who had been arrested were allowed to serve on the jury. Additionally, the State did not strike juror number 37, who was unemployed, despite giving unemployment as a reason for striking jurors number 19 and number 35. But the State proffered race neutral reasons for not striking the three despite its stated preference for employed jurors who had not had relatives who had been arrested. Juror number 13 had previously served on a jury in Smith County, and the State believed, based on information it maintained about prior jury service, that she was a desirable juror.^{^[6]} Juror number 32 stated that his family member had been treated too leniently by law enforcement when asked by the State. The State asked the same question to all of the prospective jurors that had family members charged with the crime. None of the AfricanBAmerican jurors whose family members had been arrested stated that their family member had been treated too leniently. Juror number 37, who was unemployed, had relatives who worked in law enforcement, a race neutral characteristic that could have overcome the State=s preference for employed jurors. Finally, the State also struck three white jurors because they had family members who had been arrested.

The State was well prepared for the Batson hearing. One of two scenarios is possible. Either the prosecutor cynically devised a voir dire strategy to bring out plausible race neutral reasons to strike every prospective AfricanBAmerican juror, and then checked those reasons against the rest of the venire to avoid the appearance of pretext; or the State=s race neutral preferences, with reasonable exceptions, simply happened to cause it to strike all the African Americans in the strike zone, finding exceptions for none of them, while finding exceptions for white jurors. The determination of which scenario is accurate largely depends on the trial court=s assessment of the credibility of the prosecutor. That is a determination best made by the trial court.

Having reviewed the entire record, we conclude the court=s decision to deny Appellant=s Batson motion was not clearly erroneous. Even though a prima facie case of racial discrimination was established, the State provided race neutral explanations for its use of peremptory challenges, and Appellant failed to carry his burden of persuasion that the stated reasons were pretextual. Giving, as we must, deference to the trial court=s ruling, we do not have a Adefinite and firm conviction that a mistake has been committed.@ Guzman, 85 S.W.3d at 254. We overrule Appellant=s first issue.

Sufficiency of the Evidence

In his second issue, Appellant argues that the evidence is legally and factually insufficient to support the verdict. Specifically, Appellant argues that there was insufficient evidence that he possessed cocaine.

Standard of Review

The due process guarantee of the Fourteenth Amendment requires that a conviction be supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315B16, 99 S. Ct. 2781, 2786B87, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App. 2004); Willis v. State, 192 S.W.3d 585, 592 (Tex. App.BTyler 2006, pet. ref=d). Evidence is not legally sufficient if, when viewing the evidence in a light most favorable to the verdict, we conclude that no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).

While legal sufficiency review is all that is required by the U.S. Constitution, the Texas Court of Criminal Appeals has determined that the Texas Constitution requires review of the factual sufficiency of the evidence. Clewis v. State, 922 S.W.2d 126, 129B30 (Tex. Crim. App. 1996). We review the factual sufficiency of the evidence without the light most favorable to the verdict, and we determine whether, considering all the evidence in a neutral light, the evidence supporting the conviction is too weak to withstand scrutiny or the great weight and preponderance of the evidence contradicts the jury=s verdict to the extent that the verdict is clearly wrong and manifestly unjust. See Watson v. State, 204 S.W.3d 404, 414B15, 417 (Tex. Crim. App. 2006). In doing so, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis, 922 S.W.2d at 134. We then consider all of the evidence that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).

Under either standard, our role is that of appellate review, and the fact finder is the judge of the weight and credibility of a witness=s testimony. Wesbrook v. State, 29 S.W.3d 103, 111B12 (Tex. Crim. App. 2000). The fact finder may choose to believe all, some, or none of a witness=s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). With respect to our factual sufficiency review, we are authorized to disagree with the jury=s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, but our evaluation should not substantially intrude upon the jury=s role as the judge of the weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164.

Applicable Law and Analysis

As charged in the indictment, the State was required to prove that Appellant possessed a controlled substance, namely cocaine, in an amount of one gram or more but less than four grams. See Tex. Health & Safety Code Ann. ' 481.115(c) (Vernon 2006). To support a conviction for possession of a controlled substance, the State must show (1) that the accused exercised actual care, control, or custody of the substance, (2) that he was conscious of his connection with it, and (3) that he possessed the substance knowingly or intentionally. See id.; Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). The evidence used to satisfy these elements can be either direct or circumstantial. Brown, 911 S.W.2d at 747. Be it by direct or circumstantial evidence, the State must establish that the accused=s connection with the substance was more than just fortuitous. Id. One way to establish this connection is by affirmative links between the accused and the contraband. See Evans v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006). It is not the number of links that is dispositive, but rather the logical force of all of the evidence, direct and circumstantial, that proves possession Id.

Among the nonexclusive factors that may be considered when evaluating affirmative links are (1) whether the contraband was in plain view or recovered from an enclosed place, (2) whether the accused was the owner of the premises or had the right to possess the place where the contraband was found, or was the owner or driver of the automobile in which the contraband was found, (3) whether the accused was found with a large amount of cash, (4) whether the contraband was conveniently accessible to the accused or found on the same side of the vehicle as the accused was sitting, (5) whether the contraband was found in close proximity to the accused, (6) whether a strong residual odor of the contraband was present, (7) whether the accused possessed other contraband when arrested, (8) whether paraphernalia to use the contraband was in view or found on the accused, (9) whether the physical condition of the accused indicated recent consumption of the contraband in question, (10) whether conduct by the accused indicated a consciousness of guilt, (11) whether the accused attempted to escape or flee, (12) whether the accused made furtive gestures, (13) whether the accused had a special connection to the contraband, (14) whether the occupants of the premises gave conflicting statements about relevant matters, (15) whether the accused made incriminating statements connecting himself to the contraband, (16) the quantity of the contraband, and (17) whether the accused was observed in a suspicious place under suspicious circumstances. See Lassaint v. State, 79 S.W.3d 736, 740-41 (Tex. App.BCorpus Christi 2002, no pet.). Here, Appellant was seen driving away from a known drug house in a known high drug area. One of the officers testified that Appellant was extremely nervous, more nervous than most people he questioned. Further, the contraband was found at the location where the Terry search was conducted. Inside Appellant=s vehicle, police found plastic with a knot tied in it consistent with a piece of plastic that could be used to hold contraband. Finally, the contraband introduced into evidence was found lying where Appellant=s tire would have crushed it if it had been there prior to Appellant=s driving into the convenience store parking lot. However, the contraband was not crushed. The contraband was tested and determined to be crack cocaine in an amount of one gram or more and less than four grams. Viewing all of the evidence in the light most favorable to the jury=s verdict, there is legally sufficient evidence for a rational jury to conclude that Appellant committed the offense of possession of a controlled substance, namely cocaine, in an amount of one gram or more but less than four grams.

With respect to our review of the factual sufficiency of the evidence, Appellant directs our attention to evidence that he argues does not support the jury=s verdict. First, the video does not show Appellant disposing of contraband and does not show contraband falling from Appellant=s person during the Terry search. The officers involved in the stop of Appellant did not see Appellant dispose of any contraband either before or during the stop. The State did not show that the tied plastic found inside Appellant=s vehicle contained any residue of a controlled substance or that the plastic containing the crack cocaine found outside the vehicle had Appellant=s fingerprints on it. Although the officers saw Appellant driving away from a known drug house, they did not actually see Appellant leaving the house. Appellant did not appear to be under the influence of crack cocaine or any other illegal drug. Finally, Appellant did not have a large amount of cash with him.

But we must consider this evidence along with the evidence that supports the verdict. The video did not show the entire scene and did not show all of Appellant at all times. Thus, the video is not conclusive evidence of Appellant=s lack of guilt. The video, as well as the additional factors raised by Appellant, were factors to be considered by the jury. The testimony that the cocaine had not been run over combined with the fact that Appellant had been immediately next to the area where it was found is convincing evidence that he possessed the cocaine. The jury=s determination that Appellant possessed the cocaine, after our review of the record as a whole, is not so troubling that we conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant=s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the verdict. We overrule Appellant=s second issue.

Disposition

Having overruled Appellant=s two issues, we affirm the judgment of the trial court.

BRIAN HOYLE

Justice

Opinion delivered July 25, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

( DO NOT PUBLISH)

[COMMENT1]

COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 25, 2007

NO. 12-06-00288-CR

CHARLES EDWARD JOHNSON,

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 241st Judicial District Court

of Smith County, Texas. (Tr.Ct.No. 241-0692-06)

THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this court that there was no error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

THE STATE OF TEXAS

M A N D A T E

*********************************************

TO THE 241ST DISTRICT COURT of SMITH COUNTY, GREETING:

Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 25th day of July, 2007, the cause upon appeal to revise or reverse your judgment between

CHARLES EDWARD JOHNSON, Appellant

NO. 12-06-00288-CR; Trial Court No. 241-0692-06

Opinion by Brian Hoyle, Justice.

THE STATE OF TEXAS, Appellee

was determined; and therein our said Court made its order in these words:

ATHIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this court that there was no error in the judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance.@

WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly recognized, obeyed, and executed.

WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler, this the ______ day of __________________, 200____.

CATHY S. LUSK, CLERK

By:_______________________________

Deputy Clerk

^{^[1]} Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

^{^[2]} Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

^{^[3]} The Texas Legislature codified the Batson rule in Article 35.261 of the Texas Code of Criminal Procedure, but Appellant does not present a specific claim under that article.

^{^[4]} In Batson the Supreme Court reaffirmed that racial discrimination in the use of peremptory challenges denied a defendant the equal protection of the law guaranteed by the U.S. Constitution. Batson, 476 U.S. at 85, 106 S. Ct. at 1716. Since that time, the issue of discrimination in the use of peremptory strikes has also come to be understood in terms of a denial of the equal protection rights of prospective jurors. See Powers v. Ohio, 499 U.S. 400, 409B11, 111 S. Ct. 1364, 1370-71, 113 L. Ed. 411 (1991). In Powers the Supreme Court held that an individual defendant had standing to complain of this type of violation, and so the requirement that the defendant be of the same cognizable racial group as the juror was removed. Id., 499 U.S. at 415B16, 111 S. Ct. at 1373B74. Furthermore, the cognizability of discrimination in the jury selection process has been extended to categories beyond race. See, e.g., Guzman v. State, 85 S.W.3d 242, 245‑46 (Tex. Crim. App. 2002) (recognizing that ABatson@ claim may be brought to challenge discriminatory exclusion of jurors on the basis of gender or ethnicity.) Because Appellant brings only a Batson claim and because he and the jurors who were struck are of the same cognizable racial group, we decide this case using the Batson standards.

^{^[5]} The State argued that juror numbers 7 and 19 failed to fully and accurately complete their juror questionnaires. With respect to juror number 19, this appears to be a reasonable basis for a strike. She stated in her questionnaire that she had served on a jury but said she had not when asked about it. Juror number 7 completed the entire form, but did not fill in the box asking for her race. The State argued that juror number 7 did not comply with state law when she did not fill in the box for her race on her juror questionnaire. While it is required that the juror questionnaire ask a prospective juror=s race, and it is required that a juror answer the questions, see Tex. Gov=t Code Ann. '' 62.0132(c)(1), (d) (Vernon 2006), the essential purpose of juror questionnaires is to provide basic information about jurors. See Barajas v. State, 93 S.W.3d 36, 45 (Tex. Crim. App. 2002) (Womack, J., concurring). Several cases, including those cited by the State, stand for the proposition that failure to complete the form can be a race neutral reason for a strike. But those cases revolve around an inference that a juror=s failure may be related to a lack of ability to read or write or follow basic instructions. See Tompkins v. State, 774 S.W.2d 195, 205 (Tex. Crim. App. 1987), aff=d, Tompkins v. Texas 490 U.S. 754, 109 S. Ct. 2180, 104 L. Ed. 2d 834 (1989) (reasonable to seek to avoid Aliteracy problems@); Jones, 845 S.W.2d at 421 (careless or incomplete preparation of the form is an appropriate race neutral factor for a prosecutor to consider). No such inference can be drawn in this case. Juror number 7 completed the remainder of the card, indicated that she had a postgraduate degree, and was employed by an area school district. The failure to fill in the race box could be for any of a number of reasons but, under the circumstances, it would not have been reasonable to conclude that the juror lacked familiarity with written English language. The State did not ask juror number 7 about her failure to fill in the blank and did not explain what inference it drew from her failure to fill in one box on her form. The State did offer another reason for its strike of juror number 7, her inattentiveness. Appellant did not challenge this reason, and so we need not consider this further.

^{^[6]} The State offered into evidence an exhibit entitled ADA Jury Record,@ which recorded juror number 13's prior jury service. The jury record simply states that juror number13 had served on a jury in 1991 and, based on the fact that the jury convicted the defendant but could not agree on the punishment, the person who completed the card concluded that juror number13 would be a good juror for the State on guiltBinnocence and not such a good juror on punishment.

[COMMENT1]J.1 CIVIL - AFFIRMED

Vanilla judgment

Appellant & Sureties to pay costs

Charles Edward Johnson v. State

Opinion

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