eLaws | Code of Federal Regulations | United States Code |
 All Courts
 State Courts
 Court of Appeals of Texas
 2006-09

Samuel Antonio Sutton v. State ( 2006 )


Menu:

  • NO. 12-05-00347-CR

     

                         IN THE COURT OF APPEALS

     

              TWELFTH COURT OF APPEALS DISTRICT

     

                                    TYLER, TEXAS

    SAMUEL ANTONIO SUTTON,                      '                 APPEAL FROM THE 241ST

    APPELLANT

     

    V.                                                                         '                 JUDICIAL DISTRICT COURT OF

     

    THE STATE OF TEXAS,

    APPELLEE                                                       '                 SMITH COUNTY, TEXAS

                                                                                          

                                                          MEMORANDUM OPINION

    Appellant Samuel Antonio Sutton was convicted of aggravated assault with a deadly weapon, a second degree felony.  In two issues, Appellant contends that the trial court erred when it overruled his objection to the State=s use of peremptory strikes and that the evidence was factually insufficient to sustain his conviction.  The State did not file a brief.  We affirm.

     

                                                                   Background

    Chris Bartlett worked as a security manager, a bouncer, for a nightclub in Smith County called Outlaws.  One night in July 2004, he was called upon to remove a man from the club.  The man, later identified as Appellant, did not go willingly and hit Bartlett with his fist and then with a glass bottle.  With the assistance of Joel Hagler, another bouncer for Outlaws, Bartlett was eventually able to remove Appellant from the premises.  Bartlett had cuts, scratches, and bruises on his right arm and face after the incident.

    A Smith County grand jury indicted Appellant for the felony offense of aggravated assault with a deadly weapon.  Appellant pleaded not guilty.  During jury selection, Appellant objected to the State=s use of its peremptory challenges pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).  After a hearing, the trial court overruled the motion, and the case proceeded to trial. The jury found Appellant guilty as charged and assessed punishment at eighteen years of imprisonment.  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 the two remaining 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.[1]  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.[2]  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 challenging the jurors.  Batson, 476 U.S. at 97-98, 106 S. Ct. 1723-24.  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, 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.  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. Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004).

    Analysis

    At trial, Appellant objected that the State had struck the only two remaining AfricanBAmerican members of the prospective jury panel.[3]  The State responded that it had asked every juror if he or she believed that rehabilitation or punishment was a more important goal when assessing a sentence. The prosecutor testified under oath that he had struck every juror who answered Arehabilitation@ and had struck several who answered Ait depends.@  Appellant presented no further evidence or argument, and the trial court overruled the motion.

    Appellant now argues that the State did not strike all persons who answered Arehabilitation@ or Ait depends@ to the rehabilitation/punishment question. Without identifying the individuals, Appellant claims that at least three such persons were not struck by the State.  A careful review of the record, however, demonstrates that Appellant=s arguments are misplaced.  Six venire persons answered Arehabilitation,@ and five answered Ait depends@ or AI don=t know.@  Of those eleven jurors, four were struck for cause and six were struck by the State. The final equivocating juror did not serve on the jury, but we cannot determine from the record whether he was struck, not reached, or otherwise excused. 

    A juror=s statement that rehabilitation should be the most important goal in assessing a sentence is a facially race neutral reason for the use of a peremptory challenge.  See Victor v. State, 995 S.W.2d 216, 222 (Tex. App.BHouston [14th Dist.] 1999, pet. ref=d) (citing Adanandus v. State, 866 S.W.2d 210, 224-25 (Tex. Crim. App. 1993)).  Therefore, there was no discriminatory intent inherent in the reasons the State offered for its strikes, and its explanation was not undercut by an inconsistent application of a stated reason for its strikes. Consequently, the burden of persuasion shifted back to Appellant to prove purposeful discrimination.  See Shuffield, 189 S.W.3d at 785.

    Having reviewed the entire record, we conclude the court=s decision to overrule Appellant=s Batson motion was not clearly erroneous.  Even if a prima facie case of racial discrimination were established, the State provided race neutral explanations for its use of peremptory challenges, and Appellant failed to carry his burden of persuasion on the issue.  Yarborough v. State, 983 S.W.2d 352, 357 (Tex. App.BFort Worth 1998, no pet.) (In the absence of Aevidence in the record to rebut the State=s raceBneutral explanation, we will not disturb the trial court=s finding that the State=s explanation was legitimate.@).  We overrule Appellant=s first issue.

     

                                     Sufficiency of the Evidence

    In his second issue, Appellant challenges the factual sufficiency of the evidence to support his conviction.  Appellant argues that the proof was factually insufficient to prove beyond a reasonable doubt that he was guilty of aggravated assault.

    Applicable Law

    In reviewing factual sufficiency of the evidence, we must determine whether a neutral review of the evidence, both for and against the finding, demonstrates that a rational jury could find guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually sufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt.  Id.  Evidence is also factually insufficient when contrary evidence is so strong that the beyond a reasonable doubt standard could not have been met.  Id. at 484-85.  A verdict will be set aside Aonly if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust.@  Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002).         

    The jury is the sole judge of the weight and credibility of a witness=s testimony.  Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). Furthermore, the jury 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).

    As alleged in the indictment, the State was required to prove that Appellant intentionally, knowingly, or recklessly caused bodily injury to another and, in so doing, used or exhibited a deadly weapon. Tex. Pen. Code Ann. ' 22.02(a)(2) (Vernon Supp. 2006).

     

    Analysis

    There was substantial evidence to support the conviction.  First, the complaining witness, Chris Bartlett, identified Appellant as his attacker, both at trial and in a photo lineup about a month after the incident. Bartlett described his attempt to remove Appellant from the Outlaws nightclub and told the jury that Appellant hit him in the nose with his fist, hit him in the head with a glass bottle, and stabbed him in the arm with the glass bottle after it broke.  Bartlett testified that Appellant was identified by law enforcement on the day of the incident and that he had no doubt that Appellant was the person who assaulted him.  Finally, Bartlett testified that his injuries from the assault required medical attention.  Similarly, two other eye witnesses testified that Appellant assaulted Bartlett with his fist or a glass bottle.  Both testified that Appellant was identified by law enforcement the day of the assault, although only one of them could later identify Appellant in a photo lineup.

    Deputy Fabian Arteaga, Lieutenant Larry Wiginton, and Captain Gary Pinkerton all identified Appellant as the person taken out of Outlaws after one of the bouncers was assaulted.  Finally, a nurse with the Trinity Mother Frances Hospital testified that Bartlett required medical attention for abrasions to his head and arm. She testified that Bartlett had some puncture wounds or opening of the skin.

    Other facts and circumstances undercut the State=s evidence.  There was confusion about the date of the assault.  All three civilian eye witnesses testified that the assault occurred on Tuesday, July 6, 2004.  But Arteaga, Wiginton, and Pinkerton testified that the assault occurred on a Thursday night, and the nurse testified that Bartlett received medical attention on July 2, 2004. 

    Also, Appellant testified on his own behalf. He testified that he never hit Bartlett and that he had never seen Bartlett prior to appearing in the courtroom for the trial.  According to Appellant, the first time he went to Outlaws was on July 29, 2004.  A fight did occur on that day, he testified, but he claimed that he was not involved.  Finally, Appellant testified that he was six feet tall and weighed 230 pounds in July of 2004.  On the date of the assault, the assailant had been identified as 5'7" tall and weighing 160 pounds.

    Appellant also presented testimony from Reginald Fonza and Delbert Kincade.  Fonza testified that he was involved in a fight at Outlaws on July 29, 2004 and that he was arrested that night.  According to Fonza, that incident did not involve a glass bottle.  Fonza testified that Appellant was at Outlaws on July 29, 2004. Fonza also testified that he was 5'7" tall and weighed 150 to160 pounds when he was arrested.  Kincade testified that he saw Appellant at Outlaws on July 29, 2004 and that Fonza was arrested on that day for an assault.

    Despite the evidence that is contrary to the verdict, our review of the record as a whole does not cause us to 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. The jury=s resolution of the conflicting evidence was reasonable, and we hold that the evidence is factually sufficient to support the jury=s verdict.  We overrule Appellant=s second issue.

     

    Conclusion

    Having overruled Appellant=s two issues, the judgment of the trial court is affirmed.

     

     

        BRIAN HOYLE   

       Justice

     

     

     

     

    Opinion delivered September 29, 2006.

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

     

     

     

     

     

     

     

     

     

     

                                                                (DO NOT PUBLISH)


    [1] 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.

     

    [2] 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, 409B411, 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 a 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 claim under Batson and because he and the jurors who were struck are of the same cognizable racial group, we decide this case using the Batson standards.

    [3] It is difficult to follow Appellant=s argument because the attorneys and the trial court sometimes identify jurors by name and sometimes by juror number.  The record does not contain a jury list.