Green v. State

839 S.W.2d 935, 1992 WL 225827
CourtCourt of Appeals of Texas
DecidedJanuary 27, 1993
Docket10-91-105-CR
StatusPublished
Cited by64 cases

This text of 839 S.W.2d 935 (Green v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Green v. State, 839 S.W.2d 935, 1992 WL 225827 (Tex. Ct. App. 1993).

Opinions

OPINION

THOMAS, Chief Justice.

A jury convicted Frankie Green of aggravated robbery and set his punishment at ten years in prison. We affirm.

In the evening of November 26, 1990, Percy Westmoreland closed his grocery store in Normangee, took a large amount of cash, checks, and food stamps with him, and drove home. As he was about to enter his home, someone struck him in the head, took the sack containing the cash, checks, and food stamps, and fled the scene. Westmoreland, aged seventy-eight, received serious injuries in the attack.

Sheriff Wilson and Ranger Connell received a tip that Dennis Darnell had seen Frankie Green, a Franklin high school student, with a large amount of cash on No[938]*938vember 28. Wilson and Connell talked to Darnell who confirmed the tip. Steven Edwards also told Connell that he had seen Frankie Green wearing new clothes at school on November 27. Kathy Hawkins told Connell that she overheard Nicholas Edwards tell Frankie Green, “We got him,” to which Green replied, “Yeah, and we got some money.” Connell also talked to Virgie Green who said that “Red” Green (Frankie’s sister) was overheard telling someone that Kenneth Green (Frankie’s older brother), Nicholas Edwards, and Rodney Green (Frankie’s younger brother) had robbed Westmoreland.

Sheriff Wilson and Ranger Connell presented this information to the grand jury which returned indictments against Kenneth Green, Nicholas Edwards, and Frankie Green on December 12. Connell arrested Frankie Green on December 13 under a capias issued by the district clerk based on the indictment. On December 20 Frankie signed a confession that was later introduced into evidence at his trial.

INDICTMENT

The indictment alleged that, while in the course of committing theft of property and with intent to obtain and maintain control of the property, Frankie Green intentionally and knowingly caused bodily injury to Percy Westmoreland “and said PERCY WESTMORELAND was then and there older than 64 years of age.” Green never objected to the form or substance of the indictment before the trial commenced. However, when the prosecutor told the ve-nire during voir dire that the indictment charged aggravated robbery, Green objected to the statement on the ground that the indictment only charged robbery. His objection was that the statute creating the offense of aggravated robbery requires the victim to be “65 years of age or older” before age itself becomes an aggravating factor. See Tex.Penal Code Ann. § 29.-03(a)(3)(A) (Vernon Supp.1992). The court overruled his objection.

Green’s seventh point is that the court erred when it overruled his objection to the State’s voir dire and allowed him to be tried for aggravated robbery when the indictment alleged only robbery. Section 1.06 of the Penal Code provides that a person attains a specified age on his birthday. Id. § 1.06 (Vernon 1974). Thus, a person is sixty-four years of age until the day of his sixty-fifth birthday. Alleging in the indictment that Westmoreland was “older than 64 years of age” on the date of the robbery was thus legally equivalent to alleging that he had already attained his sixty-fifth birthday. See id.; Phillips v. State, 588 S.W.2d 378, 380 (Tex.Crim.App.1979). He could not be older than sixty-four without being at least sixty-five. Accordingly, the allegation in the indictment charged Green with aggravated robbery based on age of the victim as the aggravating factor. Point seven is overruled.

BATSON

The first point is based on the overruling of Green’s Batson objection. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Tex.Code Crim.Proc. Ann. art. 35.261 (Vernon 1989). Green, who is black, objected to the seating of the jury on the ground that the State had used its peremptory challenges to strike three of the four blacks from the jury: Margaret Heggins (number 5), Aaron Buckner (number 14), and McKinney Davis (number 30). Ida Birdine (number 1) served on the jury. After listening to the prosecutor’s reasons, the court impliedly found that the strikes were not racially based and overruled the objection. The standard of review is whether the implied findings are clearly erroneous. See Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App.1992).

The State first argues that Green never made a prima facie showing of racial discrimination. This issue became moot after Green made his Batson objection, the prosecutor stated his reasons for the strikes, and the court ruled on the objection. See id.

The prosecutor said that he struck Margaret Heggins for “two reasons in combination”: (1) she had a hard time visualizing a situation in which she could assess the maximum sentence — 99 years or life; and [939]*939(2)her strong personality. Green argued that a white juror had expressed the same problem with assessing the maximum punishment but was not stricken by the State.

Under the prosecutor’s questioning, Heggins admitted that she would have difficulty assessing the maximum sentence. Although she could consider the maximum sentence, she said she would find it “tough” to assess. She said that she would act “according to the circumstances.” When asked by the defense whether she could assess the maximum sentence if the facts justified it, she answered, “I just don’t know what it would be.” Finally, however, she told the defense that she could consider and assess the maximum punishment if the facts justified it.

Heggins repeatedly expressed reservations about considering and assessing the maximum range of punishment. Striking her for this ambivalence is a facially race-neutral reason. That she was ultimately “rehabilitated” by the defense did not mean the State had to accept her ambivalent views. See Vargas v. State, 838 S.W.2d 552, 555 (Tex.Crim.App.1992). The reason behind a peremptory strike does not have to rise to the level of a challenge for cause to be considered legitimately race-neutral. Batson, 476 U.S. at 96, 106 S.Ct. at 1723.

Green pointed out that another juror, Sherry Johnson, expressed a similar concern about assessing the maximum punishment but was not stricken by the State. He insists that the only difference between the two is that Johnson is white and Heg-gins is black. The State argues, however, that Johnson’s ambivalence about assessing the maximum punishment was overcome, in the prosecutor’s mind, by her longstanding, friendly acquaintance with West-moreland and that Johnson was thus not stricken for this reason. A strike does not automatically become racially based just because the prosecution failed to strike another juror who shares the same characteristic as a stricken minority juror. The factors listed in Keeton v. State, 749 S.W.2d 861, 867 (Tex.Crim.App.1988), which tend to indicate disparate treatment of minority jurors, do not control the trial court’s decision on whether a strike is racially based. Vargas, 838 S.W.2d at 554. These factors are to be used by an appellate court as an analytical tool to determine whether the court’s findings are clearly erroneous, not to evaluate the prosecutor’s credibility. Young v. State,

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Bluebook (online)
839 S.W.2d 935, 1992 WL 225827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-state-texapp-1993.