Melvin Ford, Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 24, 2023
• Docket: 06-22-00092-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-22-00092-CR

MELVIN FORD, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 85th District Court Brazos County, Texas Trial Court No. 21-01825-CRF-85

Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Chief Justice Stevens MEMORANDUM OPINION

A Brazos County 1 jury convicted Melvin Ford, Jr., of unlawful possession of a firearm by

a felon. 2 Ford appeals, complaining that (1) the trial court erred by denying Ford’s Batson 3

challenge to the State’s use of a peremptory strike, (2) law enforcement officers lacked

reasonable suspicion to detain Ford, and (3) the trial court erred by denying Ford’s request to

instruct the jury not to consider any illegally obtained evidence.

Because we find that (1) the trial court properly denied Ford’s Batson challenge,

(2) officers had reasonable suspicion to detain Ford, and (3) Ford was not entitled to the

requested jury instruction, we affirm the trial court’s judgment.

I. Background

At 3:41 a.m. on March 5, 2021, Bryan, Texas, police officers responded to a call of a

sexual assault in progress. The caller told dispatch, “He’s raping me!” Sergeant Scott Jones

testified 4 that he and his partner received no other details besides the location of the incident.

Due to the hour and location, Jones did not expect the amount of traffic they encountered. 5

Jones testified, “There were people and there were vehicles in the roadway.” He also stated, “[I]t

1 Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We are unaware of any conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3. 2 See TEX. PENAL CODE ANN. § 46.04 (Supp.). 3 Batson v. Kentucky, 476 U.S. 79 (1986). 4 Jones’s testimony was essentially the same at the hearing on Ford’s motion to suppress and at trial. 5 Because they were responding to a reported sexual assault, Jones said he was “looking for two people; maybe somebody intervening -- a good Samaritan intervening.” 2 was a larger commotion than I expected to see for that type of call.” Jones said that at least two

vehicles were in the street, others were parked, and “there were some people milling around.”

According to Jones, the emergency lights on the officers’ vehicles were flashing when

they arrived at the scene. The recording from Jones’s body cam was played for the jury. The

recording reveals that Jones announced, “[S]top, police,” as soon as he got out of his police

vehicle. A sports-utility vehicle (SUV) drove in front of Jones and then stopped. Jones rounded

the SUV, and a suspect, eventually shown to be Ford, was seen behind a pickup truck. Jones told

him to stop and keep his hands where Jones could see them. At first, Ford complied, quickly

raising his hands above his head. After about a second or two, Ford’s hands went down to his

side or into the bed of the truck. Ford ignored Jones’s commands to keep his hands visible.

About four seconds later, Ford ran away. He was pursued by Jones and another responding

officer. Within fifteen seconds, Ford was tackled by the other officer. After resisting and

struggling, three officers finally subdued Ford, who had a pistol on his hip. It was proved at trial

that Ford was a convicted felon at the time of the incident. Those facts led to Ford’s conviction

for unlawful possession of a firearm by a felon.

II. The Appellant Did Not Show a Batson Violation

After voir dire, Ford claimed that the State used one of its peremptory strikes against an

African American venireperson, in violation of Batson. The State responded that Ford failed to

make a prima facie showing of that alleged violation. The trial court overruled Ford’s argument.

3 A. Standard of Review

Use of peremptory challenges to strike potential jurors on the basis of race is prohibited

by both the Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution, U.S. CONST. amend. XIV, § 1; see Batson, 476 U.S. at 85–86, and Article 35.261

of the Texas Code of Criminal Procedure, TEX. CODE CRIM. PROC. ANN. art. 35.261. If the

defendant suspects the State of making race-based challenges, he may request a Batson hearing.

See TEX. CODE CRIM. PROC. ANN. art. 35.261(a).

Courts use a three-step process in determining Batson challenges. Snyder v. Louisiana,

552 U.S. 472, 476–77 (2008); Young v. State, 283 S.W.3d 854, 866 (Tex. Crim. App. 2009)

(per curiam). Initially, the defendant must present a prima facie case that the State exercised its

peremptory challenges on the basis of race. Snyder, 552 U.S. at 476; Young, 283 S.W.3d at 866.

The State must then articulate a race-neutral explanation for its challenged strikes. Snyder, 552

U.S. at 476–77; Young, 283 S.W.3d at 866. A race-neutral explanation is one “based on

something other than the race of the juror.” Hernandez v. New York, 500 U.S. 352, 360 (1991).

If no discriminatory intent is inherent in the explanation, then the reason is deemed race neutral.

Id. The defendant may rebut the State’s explanation, but the burden of proving purposeful

discrimination remains with the defendant. Young, 283 S.W.3d at 866. In the final step, the trial

court must determine whether the defendant “has carried his burden of proving purposeful

discrimination.” Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam); Hernandez, 500 U.S. at

359; Young, 283 S.W.3d at 866.

4 In reviewing a Batson ruling, we consider the record “in the light most favorable to the

trial court’s ruling.” Young, 283 S.W.3d at 866. The trial court’s decision will not be disturbed

unless it is clearly erroneous. Hernandez, 500 U.S. at 369; Young, 283 S.W.3d at 866; Jackson

v. State, 442 S.W.3d 771, 774 (Tex. App.—Texarkana 2014, no pet.). To determine whether the

trial court’s decision was clearly erroneous, we examine the record to see whether we are left

with a “definite and firm conviction that a mistake has been committed.” Guzman v. State, 85

S.W.3d 242, 254 (Tex. Crim. App. 2002) (quoting United States v. Fernandez, 887 F.2d 564,

567 (5th Cir. 1989) (per curiam)). The trial court is in the best position to determine whether the

State’s race-neutral explanation is genuine, so we defer to its ruling barring exceptional

circumstances. Nieto v. State, 365 S.W.3d 673, 676 (Tex. Crim. App. 2012). The trial court

“must focus on the genuineness of the asserted non-racial motive, rather than the

reasonableness.” Jackson, 442 S.W.3d at 774 (quoting Nieto, 365 S.W.3d at 676). In our

review, we “consider the entire record of the voir dire,” and we are not limited to “the specific

arguments brought forth to the trial court by the parties.” Nieto, 365 S.W.3d at 676 (citing

Watkins v. State, 245 S.W.3d 444, 448 (Tex. Crim. App. 2008)).

We do not substitute our judgment for the trial court’s when considering whether the

State’s explanation was a pretext. Id. Like the trial court, we consider the genuineness, not the

reasonableness, of the proffered non-racial explanation. Id. (citing Gibson v. State, 144 S.W.3d

530, 534 (Tex. Crim. App. 2004)).

5 B. Events at Voir Dire

After the parties conducted voir dire of the venire panel and executed their peremptory

strikes, Ford claimed that the State struck “Juror No. 9,” 6 an African American, in violation of

Batson. The State responded that another African American, “Juror No. 16,” was on the jury and

argued that Ford had not made a prima facie showing of an alleged Batson violation. Ford

disagreed, stating, “If I make a Batson challenge, Judge, and challenge the reason for their strike,

they’ve got to make some explanation that the strike was for something other than race.” The

trial court seemed to agree with the State, saying, “Got to make a prima facie showing. I don’t

think the mere fact of race [is sufficient].” The State cited a case and told the trial court,

“[T]here are two people within the strike zone that by their physical appearance appear to be

African-American; one was struck, one is on the jury.” A brief argument ensued. Ford claimed

that the State must offer a race-neutral explanation for its peremptory strike of an African

American. The State repeated that Ford had not made an adequate prima facie showing to

support his alleged Batson violation. The trial court then overruled Ford’s Batson challenge.

Ford offered no further argument or any offer of proof.

C. Analysis

“[T]he United States Constitution is offended by so much as a single strike exercised on

the basis of race.” Linscomb v. State, 829 S.W.2d 164, 166 (Tex. Crim. App. 1992). When Ford

claimed a Batson violation to the trial court, he then bore the burden of making a prima facie

6 Although “Juror No. 9” did not in fact sit on the jury, we use the identifications used by the trial court and the parties for convenience and to protect the veniremembers’s and juror’s privacy. 6 case that the State improperly used peremptory strikes to exclude African Americans from the

jury. A defendant makes a prima facie case by:

1. showing he is a member of a cognizable racial group, and the prosecutor has exercised peremptory challenges to remove from the venire members of his race;

2. relying on the fact that peremptory challenges constitute a jury selection practice that permits discrimination; and

3. showing these facts and other relevant circumstances which raise an inference that the prosecutor peremptorily struck veniremembers on account of their race.

Young v. State, 826 S.W.2d 141, 145 (Tex. Crim. App. 1991) (citing Batson, 476 U.S. at 96–97).

The prima facie case is not made merely by arguing that a member of a cognizable racial group

was struck when a member of the same group is seated on the jury.

For example, in Aguilar v. State, 826 S.W.2d 760 (Tex. App.—Fort Worth 1992, pet.

ref’d), the Hispanic defendant complained of the State’s use of two peremptory strikes on

veniremembers with Hispanic surnames. One Hispanic made it to Aguilar’s jury, the State

struck one, another was not challenged, and the fourth was found to not have been Hispanic, but

simply to have had a Hispanic married surname. Id. at 762–63. The Fort Worth Court of

Appeals held that the State’s peremptory strike of one of three Hispanics did “not by itself

establish a prima facie case absent any other evidence being proffered” and that “Aguilar failed

to show any pattern or any other evidence to the trial court which would raise an inference that

7 the prosecutor used peremptory strikes to remove” the struck venireperson “on account of her

race.” Id. at 763. 7

The Fourteenth Court of Appeals reached a similar result in Held v. State, 948 S.W.2d 45

(Tex. App.—Houston [14th Dist.] 1997, pet. ref’d). There, the Caucasian defendant made a

Batson challenge after the prosecution struck the only remaining African American from the

venire. Id. at 48. 8 The court of appeals pointed out that Held’s appellate argument was the same

he made to the trial court—that the prosecution “struck one hundred percent of the African

American veniremembers on the panel.” Id. at 49 (footnote omitted).

While this statistic, on its face, might appear compelling, the actual facts before the trial court when it ruled on appellant’s prima facie case were far less so. Here, the judge witnessed the State’s exercise of one of its three peremptory strikes against an African American in a case where the defendant was white and race was completely unrelated to the issues in the case. The fact that the State exercised its strike in such a manner that it effectively eliminated all the members of a particular race from the jury panel is far less significant when the number stricken constitutes a grand total of one.

Id. We contrast this analysis with that in Linscomb v. State, 829 S.W.2d 164 (Tex. Crim. App.

1992), where the State struck four of six African Americans on the venire.

In Linscomb, the Texas Court of Criminal Appeals found that the court of appeals had

erred in finding that the defendant failed to make a prima facie showing of a rational inference

7 See also Hatchett v. State, 930 S.W.2d 844, 847 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) (insufficient data “to perform a statistical analysis of the appellant’s prima facie case” where the record only showed that four African American veniremembers were struck, there was no evidence reflecting “the race of the venire members challenged for cause or of the venire members peremptorily challenged by appellant,” and appellant “offered no other facts or circumstances which would give rise to an inference of purposeful discrimination”). 8 “Only two African American veniremembers were within the strike range. . . . One of them was successfully challenged for cause, and appellant stipulated that there was no racial motivation for this particular challenge.” Held, 948 S.W.2d at 47–48. 8 that the State violated Batson when it struck four of the six African Americans on the venire (two

African Americans were seated on the jury). Id. at 166. The Texas Court of Criminal Appeals

pointed out that the prosecution used forty percent of its peremptory strikes—four of ten—on

African American veniremembers, where African Americans comprised only nineteen percent—

six of the first thirty-two members—of the venire panel.

Because the appellant in Held was of a different race than the struck venireperson, that is

a significant distinction from Ford’s situation. 9 However, Ford’s case is similar to that in

Aguilar. And, as in Aguilar and Held, Ford offered no argument and pointed to nothing else in

the record to support his blanket allegation that a Batson violation had occurred. 10 The situation

at bar is also distinguishable from that in Linscomb, where substantially more strikes were used

against African American veniremembers. Here, only one peremptory strike was used against a

member of Ford’s race, and one other African American was not struck and served on the jury.

The record shows that there were two African Americans on the venire—one was sat as a juror,

and the other was struck by the State. The trial court could have found that those were not

“circumstances which fairly raise[d] an inference of racial motivation.” Id. at 167.

As a result, we cannot say that the trial court’s ruling on Ford’s Batson allegation was

clearly erroneous. We, therefore, overrule Ford’s first point of error.

9 The court in Held observed that “where racial identity between the party asserting Batson and the stricken veniremember exists, ‘it may provide one of the easier cases to establish both a prima facie case and a conclusive showing that wrongful discrimination has occurred.’” Held, 948 S.W.2d at 50. “Therefore, although racial identity between the challenger and the excused veniremember is not required to raise a Batson challenge, the absence of such an identity can certainly impact the strength of the challenger's prima facie case of racial discrimination.” Id.

“Batson is not a talisman, the invocation of which automatically raises an inference of racial discrimination.” 10

Bean v. State, 816 S.W.2d 115, 119 (Tex. App.—Houston [14th Dist.] 1991, no pet.). 9 III. The Trial Court Did Not Err In Denying Ford’s Motion to Suppress

Ford’s second point of error complains that officers lacked reasonable suspicion to detain

him at the scene. We disagree.

“Under the Fourth Amendment, a warrantless detention of the person that amounts to less

than a full-blown custodial arrest must be justified by a reasonable suspicion.” Derichsweiler v.

State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). “[T]he relevant inquiry is not whether

particular conduct is innocent or criminal, but the degree of suspicion that attaches to particular

types of noncriminal acts.” Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997).

Reasonable suspicion to conduct an investigative detention must be “founded on specific,

articulable facts which, when combined with rational inferences from those facts, would lead the

officer to conclude that a particular person actually is, has been, or soon will be engaged in

criminal activity.” Crain v. State, 315 S.W.3d 43, 52 (Tex. Crim. App. 2010). “Articulable facts

must amount to ‘more than a mere inarticulate hunch, suspicion, or good faith suspicion that a

crime was in progress.’” Id. (quoting Williams v. State, 621 S.W.2d 609, 612 (Tex. Crim. App.

[Panel Op.] 1981)).

This standard is an objective one that disregards the actual subjective intent of the arresting officer and looks, instead, to whether there was an objectively justifiable basis for the detention. It also looks to the totality of the circumstances; those circumstances may all seem innocent enough in isolation, but if they combine to reasonably suggest the imminence of criminal conduct, an investigative detention is justified.

Derichsweiler, 348 S.W.3d at 914 (footnotes omitted) (citations omitted).

Ford essentially ignores the fact that, within seconds of being addressed by Officer Jones

and initially complying with Jones’s commands, Ford ran from the scene. “Headlong flight— 10 wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of

wrongdoing, but it is certainly suggestive of such.” Illinois v. Wardlow, 528 U.S. 119, 124

(2000). In Wardlaw, officers were conducting a drive-through of “an area known for heavy

narcotics trafficking in order to investigate drug transactions.” Id. at 121. As officers drove

through the area, they observed Wardlaw holding “an opaque bag,” and when he “looked in the

direction of the officers,” he fled, running through an alley. Id. at 122. Wardlaw challenged the

trial court’s finding that officers had reasonable suspicion to detain him. Id. The United States

Supreme Court rejected that argument. While Wardlaw’s flight was “not necessarily indicative

of wrongdoing . . . it [wa]s certainly suggestive of such.” Id. at 124. In such a situation, “the

determination of reasonable suspicion must be based on commonsense judgments and inferences

about human behavior.” Id. at 125. The Supreme Court found that the officer was “justified in

suspecting Wardlaw was involved in criminal activity, and therefore, in investigating further.”

Id.

Here, officers responded to an anonymous call alleging a sexual assault. They

encountered substantially more foot and vehicle traffic than expected. As Jones took steps to

control the scene, Ford complied with Jones’s command to stop and raise his hands. Ford then

disobeyed Jones’s commands by lowering his hands, and he appeared to be reaching for

something in the bed of the truck in front of him or perhaps on his person. Then he ran from the

scene. Under those circumstances, the officers had reasonable suspicion that Ford had just been,

was, or was about to be involved in criminal activity. They had reasonable suspicion to pursue

and detain Ford. The discovery of a pistol in Ford’s possession was therefore lawful, and the

11 trial court did not err in denying Ford’s motion to suppress evidence. For these reasons, we

overrule Ford’s second point of error.

IV. Ford Was Not Entitled to an Article 38.23 11 Instruction

In his third point of error, Ford complains that the trial court should have instructed the

jury, pursuant to Article 38.23 of the Texas Code of Criminal Procedure, that the jury should not

consider any evidence it found to have been obtained in violation of the laws or either the Texas

or United States Constitution.

To be entitled to a jury instruction under Article 38.23(a) of the Texas Code of Criminal

Procedure, “(1) [t]he evidence heard by the jury must raise an issue of fact; (2) [t]he evidence on

that fact must be affirmatively contested; and (3) [t]hat contested factual issue must be material

to the lawfulness of the challenged conduct in obtaining the evidence.” Madden v. State, 242

S.W.3d 504, 510 (Tex. Crim. App. 2007). “There is, of course, nothing to instruct the jury about

if the suppression question is one of law only, and there is nothing to instruct the jury about

unless there is affirmative evidence that raises a contested fact issue.” Holmes v. State, 248

S.W.3d 194, 199 (Tex. Crim. App. 2008).

Ford argues that the only evidence before the jury “was that he was near an address

where an anonymous report of a crime was made” and that the responding police officers “had

no description of a suspect or a vehicle and they did not confirm any of the anonymous caller’s

information.” Ford ignores, though, evidence that he then disregarded Jones’s instructions by

11 See TEX. CODE CRIM. PROC. ANN. art. 38.23. 12 lowering his hands and then running from the scene. That evidence was uncontroverted. Ford

directs us to nothing in the record that would create a contested fact issue.

Moreover, as we discussed above, the officers’ detention of Ford was supported by

reasonable suspicion. Officers responded to an alleged crime scene, which led to contact with

Ford. Ford complied with Jones’s commands but then disregarded those instructions and ran

away. Under those circumstances, the officers had reasonable suspicion that Ford had just been,

was, or was about to be involved in criminal activity. They had reasonable suspicion to pursue

and detain Ford. Because Ford offers no controverting facts about his detention that led to the

discovery of a firearm in his possession, the officers’ reasonable suspicion is a question of law.

See Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012). Thus, he was not entitled

to an Article 38.23 instruction.

For these reasons, we overrule Ford’s third point of error.

V. Conclusion

We affirm the trial court’s judgment.

Scott E. Stevens Chief Justice Date Submitted: December 1, 2022 Date Decided: January 24, 2023

Do Not Publish