Corey Demone Hale v. State ( 2006 )

Opinion filed September 7, 2006

Opinion filed September 7, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00160-CR

                                                    __________

                                  COREY DEMONE HALE, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 350th District Court

                                                          Taylor County, Texas

                                                   Trial Court Cause No. 6240-D

                                                                   O P I N I O N

The jury convicted Corey Demone Hale of the state jail felony offense of delivery of cocaine, less than one gram, and assessed his punishment at confinement for two years and a $7,000 fine.  Appellant attacks his conviction in four issues.  We affirm.

                                                        Sufficiency of the Evidence

In his first two issues, appellant challenges the legal and factual sufficiency of the evidence supporting his conviction.  In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000).  In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met.  Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004); Ross v. State, 133 S.W.3d 618 (Tex. Crim. App. 2004); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).  The jury is the sole judge of the weight and credibility of the witnesses= testimony, and due deference must be given to the jury=s determination.  Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 1981), art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 8-9.

The State called two witnesses during the guilt/innocence phase of the trial: (1) Department of Public Safety Narcotics Officer Sergeant James C. Rhodes and (2) Department of Public Safety Chemist William Chandley.  Appellant did not present any witnesses during the guilt/innocence phase of the trial. 

On May 17, 2002, Sergeant Rhodes was working as an undercover narcotics officer.  Sergeant Rhodes testified that he and a confidential informant went to the residence at 834 Nelson Street, in Abilene, Texas, attempting to purchase narcotics.  Sergeant Rhodes drove the confidential informant to the residence in an undercover vehicle.  The vehicle had audio and video recording capabilities.  Sergeant Rhodes said that, when they arrived at the residence, they saw appellant and another man standing in the front yard.  At that time, Sergeant Rhodes did not know appellant=s name.

Sergeant Rhodes testified that appellant approached the vehicle.  The confidential informant told appellant that they were looking for some dope, and Sergeant Rhodes told appellant he needed $100 worth, meaning $100 worth of crack cocaine.  At appellant=s request, Sergeant Rhodes opened his shirt to show appellant that he was not wearing a wire.  Appellant asked Sergeant Rhodes if he was a police officer, and Sergeant Rhodes responded that he was not a police officer.  Appellant went inside the residence and then came back outside with his right hand cupped as if he were holding something in it.

Sergeant Rhodes said that appellant walked up to the passenger side of the vehicle. Sergeant Rhodes was in the driver=s seat.  Sergeant Rhodes leaned over to the passenger=s side and held out his hand.  Appellant dropped five rocks of crack cocaine into Sergeant Rhodes=s hand, and Sergeant Rhodes gave appellant five twenty-dollar bills.  Sergeant Rhodes and the confidential informant then drove off.  Sergeant Rhodes put the rocks into a plastic bag and submitted them to the DPS Abilene Crime Laboratory for testing.

Sergeant Rhodes said that the camera equipment in the undercover vehicle taped the buy operation. The confidential informant, appellant, the other man, and Sergeant Rhodes were all shown in the videotape. Sergeant Rhodes identified appellant as being the man in the videotape who gave him the drugs.  Sergeant Rhodes testified that appellant handed the rocks to him and that he handed the money to appellant.  The State introduced the videotape into evidence and played it for the jury.

Chemist Chandley tested the rocks that Sergeant Rhodes submitted to the DPS lab.  He testified that the test results showed that the rocks contained cocaine and had an aggregate weight of .56 grams.

The indictment alleged that appellant knowingly delivered, by actual transfer to Sergeant Rhodes, a controlled substance (cocaine) in an amount of less than one gram. See Tex. Health & Safty Code Ann. ' 481.002(8) (Vernon Supp. 2006), ' 481.112(a), (b) (Vernon 2003).  To prove the offense as charged, the State had the burden to prove beyond a reasonable doubt that appellant knowingly delivered to Sergeant Rhodes cocaine in an amount of less than one gram.  See Section 481.112(a), (b).  Sergeant Rhodes testified that appellant gave him the cocaine rocks in exchange for $100.  Appellant handed the cocaine rocks to Sergeant Rhodes.  Chemist Chandley testified that the rocks contained cocaine and had an aggregate weight of .56 grams.  The evidence was legally and factually sufficient to support appellant=s conviction for delivery of a controlled substance.  We overrule appellant=s first and second issues. 

                                                               Batson Challenges

In his third issue, appellant argues that the trial court erred in denying his Batson challenges to three of the State=s peremptory challenges.  See Batson v. Kentucky, 476 U.S. 79 (1986).  During a Batson hearing, appellant challenged the State=s use of peremptory challenges to exclude one Hispanic and two African-American veniremembers from serving on the jury. The use of peremptory challenges to exclude persons from serving on a jury because of race violates the Fourteenth Amendment to the United States Constitution.  Batson, 476 U.S. at 89; Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001); Ladd v State, 3 S.W.3d 547, 563 (Tex. Crim. App. 1999). Appellant contends that the State=s challenges to these three veniremembers were racially motivated.

The party objecting under Batson must make a prima facie showing of discriminatory motives. Herron v. State, 86 S.W.3d 621, 630 (Tex. Crim. App. 2002).  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.  Id.  The objecting party may rebut the race-neutral explanation.  Id.  The trial court must then decide whether the objecting party has proven purposeful discrimination.  Id.  Because the trial court=s decision frequently turns on an evaluation of credibility, we give the trial court=s decision great deference and will not disturb it unless it is clearly erroneous.  Id.; Jasper, 61 S.W.3d at 421-22.       

During the Batson hearing in this case, the State offered race-neutral explanations and reasons for striking the veniremembers.  The prosecutor said that he struck Mr. Medina, a Hispanic, based on his posture and his inability to communicate.  The prosecutor explained that he was very hesitant on putting anyone on the jury who has trouble expressing himself.  The prosecutor based his strike of Mr. Medina, in part, on a conversation involving Mr. Medina at the bench in the presence of the trial judge.  Although the record does not contain this discussion at the bench, the trial court stated that it recalled Mr. Medina=s Aresponses and the manner in which he responded to counsel=s questioning.@  The trial court then stated that the State had offered a race-neutral reason for the strike of Mr. Medina.  The prosecutor pointed out to the trial court that the State did not strike two other Hispanic veniremembers who ended up serving on the jury.

The prosecutor provided two reasons for the strike of Mr. Nichols, an African-American. First, the prosecutor said that he struck Mr. Nichols and Ms. Moon, another veniremember, for punishment reasons because each had made the statement A[g]ood people make bad decisions.@  Second, the prosecutor explained that Mr. Nichols had answered a question about the State=s burden of proof by saying that he would hold the State to the burden of absolute doubt instead of to a burden beyond a reasonable doubt.  Appellant failed to rebut the State=s reasons for striking Mr. Nichols.  The trial court recalled Mr. Nichols=s use of Aabsolute doubt@ in response to a question.  The trial court determined that, whether Mr. Nichols was confused as to the State=s burden of proof or whether he disagreed with the State=s burden of proof under the law, the State had provided a race-neutral reason for the strike.

The prosecutor said that he struck Ms. Franklin on the punishment issue because of her statement that rehabilitation was preferable to incarceration.  The prosecutor explained that he struck two Anglo-American veniremembers, Mr. Stirman and Mr. Bainbridge, based on their answers that they preferred rehabilitation over incarceration.  The prosecutor said that he made a mistake in failing to strike Mr. Cargal for the same reason.  Appellant=s counsel stated that, although the State used only six of its permitted ten peremptory challenges, the State failed to strike Anglo-American veniremembers, Mr. Vanhuss and Ms. Schoppa, who held the belief that rehabilitation was preferable to incarceration.  Appellant=s counsel argued that the State=s failure to strike Mr. Vanhuss and Ms. Schoppa established a discriminatory purpose in the State=s strike of Ms. Franklin.  The prosecutor said that he did not have any notes on Ms. Schoppa but that Mr. Vanhuss had indicated that he advocated personal responsibility.  The prosecutor explained that he looks for jurors that advocate personal responsibility in a punishment case.  The trial court concluded that the State had provided a race-neutral reason for the strike of Ms. Franklin.

The State offered race-neutral explanations for striking Mr. Medina, Mr. Nichols, and Ms. Franklin.  Based on the evidence in the record, we find that the trial court could have reasonably concluded that the State=s race-neutral explanations were sincere and that the peremptory challenges in question were not racially motivated.  Therefore, we hold that the trial court=s ruling on appellant=s Batson challenges was not clearly erroneous.  We overrule appellant=s third issue.

                              Evidence of Extraneous Offenses During Punishment Phase

In his fourth issue, appellant argues that the trial court erred in denying his motions in limine seeking to exclude evidence of extraneous offenses during the punishment phase.  During the punishment phase, appellant objected to the admission of evidence of the extraneous offenses on two grounds.  First, appellant argued that the evidence was not relevant to a determination of the punishment issue.  See Tex. R. Evid. 402.  Second, appellant sought exclusion of the evidence on the ground that its probative value was substantially outweighed by the danger of unfair prejudice.  See Tex. R. Evid. 403.  The trial court overruled appellant=s objections and allowed admission of the evidence.

The State presented evidence of a 1997 conviction for retaliation in Harris County.  The State also presented evidence of a number of unadjudicated offenses, including the following: (1) possession of cocaine on May 30, 2003, in Taylor County; (2) possession of marihuana on February 15, 2004, in Taylor County; (3) possession of marihuana on February 16, 2004, in Taylor County; (4) possession of cocaine on February 16, 2004, in Taylor County; (5) possession of marihuana on May 2, 2004, in Taylor County; (6) fleeing from a peace officer and providing a false name and date of birth to a peace officer on September 28, 2004, in Taylor County; and (7) possession of marihuana on October 15, 2004, in Taylor County.

We review a trial court=s decision to admit extraneous offense evidence under an abuse of discretion standard.  Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996).  Tex. Code Crim. Proc. Ann. art. 37.07, ' 3(a)(1) (Vernon. Supp. 2006), provides in part that, during the punishment phase, the State may offer evidence:

[A]s to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.           

The Texas Court of Criminal Appeals has observed that, in determining what is relevant to sentencing, the important question is Awhat is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case.@  Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999).

The language of Article 37.07, section 3(a)(1) establishes that the extraneous offenses are relevant to the assessment of appellant=s punishment.  Punishment phase evidence that the trial court deems relevant is still subject to a Rule 403 analysis.  See Rogers, 991 S.W.2d at 266-67.  Under Rule 403, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.  As noted in Rogers, relevant evidence is inadmissible under Rule 403 to the extent that its degree of unfair prejudice substantially outweighs the probative value of the evidence.  Rogers, 991 S.W.2d at 266 (emphasis in original). AUnfair prejudice@ refers to Aan undue tendency to suggest [a] decision on an improper basis.@  Id.

Appellant committed the instant offense on May 17, 2002.  The State presented evidence of a prior conviction occurring in 1997.  The State also presented evidence of seven unadjudicated offenses occurring after appellant committed the instant offense. Six of the subsequent offenses were similar to the instant offense in that they were drug related offenses. The extraneous offense evidence demonstrated a pattern of conduct and had substantial probative value in aiding the jury in its assessment of a sentence.  Given the probative value of this evidence, the trial court did not abuse its discretion in refusing to exclude the extraneous offense evidence under Rule 403.

The trial court did not abuse its discretion in admitting evidence of extraneous offenses during the punishment phase.  We overrule appellant=s fourth issue.

                                                               This Court=s Ruling

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE

September 7, 2006

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and Strange, J.