Tave v. State

899 S.W.2d 1, 1994 Tex. App. LEXIS 3243, 1994 WL 715178
CourtCourt of Appeals of Texas
DecidedDecember 28, 1994
DocketNo. 12-93-00022-CR
StatusPublished
Cited by6 cases

This text of 899 S.W.2d 1 (Tave 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
Tave v. State, 899 S.W.2d 1, 1994 Tex. App. LEXIS 3243, 1994 WL 715178 (Tex. Ct. App. 1994).

Opinion

HOLCOMB, Justice.

A jury convicted Appellant of aggravated assault and sentenced him to 80 years in prison. Appellant contends that the trial court erred when it did not quash the jury panel after the State used its peremptory strikes in a discriminatory manner, and when it refused to instruct the jury on reckless conduct and assault. Appellant also challenges the sufficiency of the evidence to support his conviction. We will affirm.

Appellant and Virginia Wheeler had previously lived together and were still dating at the time this incident occurred. On May 24, 1992, Ms. Wheeler had returned to her apartment after attending a barbecue. The sequence of events that followed vary between Appellant and Ms. Wheeler. Ms. Wheeler states that she refused Appellant’s sexual advances and made Appellant angry. As a result, he began choking her, threatening her life, and hitting her with a baseball bat. She then went to a neighbor’s house and called the police. She had cuts on her face, stitches in her mouth, and bruises on her body.

Appellant’s version of the facts varied substantially from Ms. Wheeler’s testimony. He testified that when he returned from work, he found another man in bed with Ms. Wheeler. He and the other man began to fight and the other man hit Appellant with a baseball bat. Appellant admitted that he may have hit Wheeler while fighting with her boyfriend. He knew that he kicked her when the other man “flipped” him, and his “feet c[a]me up and hit her in the lip.”

Two police officers testified that when they arrived at the scene, Ms. Wheeler was “bruised up pretty bad” and that Appellant admitted hitting Ms. Wheeler because she was “prostituting herself.” The jury convicted Appellant of aggravated assault and found two enhancement paragraphs to be true. As [3]*3a result, he was sentenced to 80 years in prison.

In his first point of error, Appellant, who is black, argues that the prosecutor violated Batson v. Kentucky when he used the State’s peremptory challenges to exclude African-American jurors from the jury panel solely because of their race. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). As a result, he contends that the court erred when it did not quash the jury panel. In Batson, the Supreme Court concluded that the deliberate denial of jury participation to a black person for racial purposes violates a defendant’s rights under the Equal Protection Clause of the United States Constitution. Batson, 476 U.S. at 81, 106 S.Ct. at 1714.

In this case, seven African-American people were within the strike zone on the venire panel. None of the African-Americans were excused by the court for cause. In using its 10 peremptory strikes, the State struck five African-Americans. Two African-Americans remained on the jury. Appellant requested that the court conduct a Batson hearing to determine whether the State had used its peremptory strikes in a manner to deprive Appellant of a fair trial. See TexCode CRiM PROC. art. 35.261. During this hearing, the State offered evidence to rebut the presumption of racial discrimination and explained its reasons for the exercise of each of its peremptory strikes. The court found that the reasons given by the prosecutor to strike the African-Americans were race-neutral.

In reviewing the trial court’s decision, we will affirm the trial court’s ruling unless it is “clearly erroneous” as set forth in Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). See Ten-nard v. State, 802 S.W.2d 678, 680 (Tex.Cr. App.1990). After a defendant has presented sufficient evidence to support a prima facie Batson objection, the court conducts a Bat-son hearing and the burden shifts to the prosecutor to come forward with race-neutral reasons for its strikes. Keeton v. State, 749 S.W.2d 861, 865 (Tex.Cr.App.1988); Silva v. State, 800 S.W.2d 912, 915 (Tex.App. — San Antonio 1990, no pet.). The prosecutor’s explanation for each challenge must be clear, specific, and legitimate. Brooks v. State, 802 S.W.2d 692, 694 (Tex.Cr.App.1990); Miller-El v. State, 790 S.W.2d 351, 354 (Tex.App.— Dallas 1990, pet. refd).

In this case, the prosecutor testified that veniremembers Herman Warren and Pleze Carpenter were struck because they knew Appellant. Courts have recognized that the use of a peremptory strike when a venire-member knows a defendant is valid. Keeton, 749 S.W.2d at 870.

The prosecutor asked the venire panel if any of their family members had a criminal history. Veniremember Sherman Rushing admitted that his son had been charged with aggravated assault and venire-member Kaye Buchanan admitted that her brother had been convicted of capital murder. However, Rushing’s son had been convicted of murder rather than aggravated assault and was serving a life sentence in prison. Failure to disclose information during voir dire is a race-neutral reason to exclude a potential juror. Perry v. State, 770 S.W.2d 950, 952 (Tex.App. — Fort Worth 1989, no pet.). Kaye Buchanan was also properly excluded from the jury panel. Kinship with a person who has been charged or convicted of a crime is also a well recognized race-neutral reason for the use of a peremptory challenge. Hill v. State, 827 S.W.2d 860 (Tex.Cr.App. 1992), cert. denied, — U.S. —, 113 S.Ct. 297, 121 L.Ed.2d 221.

The prosecutor testified that Harold Wilson was struck because a man with the name of Harold Wilson was found in the county computer system as having previously been convicted of a felony. However, the prosecutor admitted that the Harold Wilson who appeared on the county computers had a different birth date and he was not certain that it was the same person who was in the venire panel.

The record reflects that the prosecutor offered plausible race-neutral explanations for the peremptory challenges of the African-American veniremembers. However, Appellant appears to argue that the prosecutor failed to adequately prove the State’s strikes were race-neutral when he did not [4]*4direct meaningful questions to the various veniremembers so that the record would confirm the information on which the prosecutor relied to exclude the African-American veniremembers. We do not agree. After the prosecutor addressed each questionable peremptory strike with a race-neutral explanation for the strike, the defense must prove by a preponderance of the evidence that the State’s peremptory challenges were actually used for racially discriminatory purposes. Salazar v. State, 795 S.W.2d 187, 192 (Tex. Cr.App.1990). Appellant failed to counter the prosecutor’s testimony with evidence that the prosecutor’s reasons were not valid.

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Bluebook (online)
899 S.W.2d 1, 1994 Tex. App. LEXIS 3243, 1994 WL 715178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tave-v-state-texapp-1994.