Rafael Williams v. State ( 2002 )

                                   NUMBER 13-00-691-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

RAFAEL WILLIAMS, A/K/A                                                     Appellant,

RAPHAEL B. WILLIAMS, JR.

                                                   v.

THE STATE OF TEXAS,                                                          Appellee.

                        On appeal from the 105th District Court

                                  of Nueces County, Texas.

                                   O P I N I O N

                      Before Justices Dorsey, Yañez, and Castillo

                                  Opinion by Justice Castillo  

Appellant Rafael Williams was charged by indictment with two counts of aggravated robbery.^[1]  He was convicted by a jury of the lesser-included offense of class B misdemeanor theft^[2] as to count one and acquitted as to the second count.   After the pronouncement of the verdict, the State and appellant agreed to a punishment of 180 days in jail which the trial court assessed pursuant to the agreement.^[3]   Williams raises three complaints on appeal: 1) the trial court erred in overruling his Batson^[4] challenges; 2) he was denied his right to confrontation by the admission of certain hearsay statements; 3) the evidence was factually insufficient to establish the intent to commit theft.  We affirm.

Factual Background

Because appellant challenges the factual sufficiency of the evidence to support his conviction, we review the evidence presented at trial in some detail.

George Ramirez, an asset protection specialist for the Target store in Corpus Christi, Texas, testified that on November 18, 1999, he was on duty and noticed appellant walk into Target pushing a cart that already contained a brown JC Penney=s bag.  Ramirez followed appellant and saw him Ascoping@ out the store to determine if anyone was in the front or watching the doors as he headed toward the men=s department.  Appellant selected a red shirt, placed it on top of the cart and headed to the electronics department where he selected two Walkmans, walkie-talkies, and a pair of binoculars. After leaving the electronics department, he selected three packs of batteries.  Appellant noticed Ramirez and asked him if he worked for Target and Ramirez answered in the negative.   Appellant asked again and Ramirez again said no.  Appellant then moved to the hardware area and while there picked up the JC Penney=s bag and put all of the items from the electronics department into the bag.^[5]  He then hid the bag behind some gas tanks in the aisle.  Leaving the bag there, he went to the front of the store, stopped at the jewelry department, looked toward the front of the store and all around and then came back to where the bag was hidden.  He picked up the bag, placed it in the cart, stopped and again looked toward the front, pushed the basket toward the front, picked up the bag and walked rapidly toward the front doors.          When appellant Ahit the front doors past the alarm system,@going through the sensors,  Ramirez, who had been behind and to the side of appellant, got in front of him, took out his security badge and identified himself as Target security. Appellant pushed Ramirez with his hands and then walked backward into the store saying, AHey man, I never left the store.@  Appellant then swung the bag at Ramirez who blocked it, bursting it and sending the contents flying.  Appellant continued to walk backward and ran into one of the employees and then ran in between some lanes.  Ramirez saw him swinging his arms but did not see anything in his hands.  Appellant ran into one of the shoppers and yelled at him to get out of the way.   Someone then knocked appellant down and someone was yelling that appellant had a knife. Appellant was struggling and resisting. Ramirez testified that there was no store videotape of the particular incident because of the way the cameras were set up that day and also stated that he did not recall the alarms going off. He admitted that Target directives required that the front entrance be recorded 24 hours a day and the videotapes retained for 30 days.

Another Target employee, Carlos Ayala, testified that he was called to the front to help with a shoplifter and he waited in the front of the store until the described person came, which he identified as appellant. When appellant approached the door, Ayala waited for instructions and was told to wait until appellant had crossed the door or until the alarm went off.   According to Ayala, when appellant Afinally went out the door,@ George Ramirez made contact with him at the door and told him to stop.  Appellant backed away, waving his arms telling people to stay back and not touch him, and then started going through the lanes, running toward the middle of the lanes, with employees chasing him. Then customers took matters into their own hands and tackled appellant.  One man who was on top of appellant told the others to get away because appellant had a knife in his hand.  Eventually someone got control of appellant=s hands and got the knife away and then got him up.

Bradley Barnes testified that he and his wife were in Corpus Christi for shopping purposes on the day in question.^[6]   While they were in the Target parking lot, they noticed appellant who was walking into Target and had walked right in front of their truck, causing them to nearly hit him.  Barnes commented in surprise to his wife about the man=s actions.  They then parked and went inside Target and Barnes went to get some popcorn.  After buying the popcorn, he saw the same man he had seen outside coming toward him with a security officer behind him. According to Barnes, both men were walking rapidly and appellant hurried past him, nearly running into Barnes but missing him by about four or five inches as appellant hurried straight to the exit doors.  Barnes then looked up and saw appellant turn back and take off running and the bag on the ground.  Appellant ran into Barnes and went about four more feet.  The doors were Astopped@ so appellant could not proceed out.  Appellant stopped and turned toward the security officer and waved his hand back and forth with some object in it that Barnes thought was a knife. Barnes wanted to help stop appellant but at that time appellant ran back as if he was going back into the store, running between two registers.  Barnes and a man in the aisle ultimately tackled appellant.  Barnes testified that after he had tackled appellant, appellant kept trying to cut him with the knife and get up.  Barnes kept pushing him down and  telling him to drop the knife.  Eventually appellant let go of the knife and Barnes handcuffed him.

The asset protection team leader for Target at the time of the incident, Adrian Gonzales, testified as to the layout of the store, explaining it using a videotape offered into evidence by the defense.  He also testified that there was a videotape of the incident and he had personally viewed it and labeled it and placed it in a small room in the asset protection office where they retained videotapes. Gonzales had established a policy of retaining the videotape of any altercation for at least eighteen months. He could not say whether George Ramirez had seen the tape.  Gonzales had not told the police or the district attorney=s office of the tape but he had told a supervisor.  He further explained there had been two tapes but the only one retained was the eight hour videotape.

Gonzales also testified that, at the time of the incident, he had been in the asset protection office and heard a commotion. He saw George Ramirez standing at the front with appellant maybe a foot or two from the exit doors.  Appellant was closer to the front doors.  Ramirez was asking appellant to come to the asset protection office, but appellant refused.  Appellant appeared to be acting abnormal as if he was Aon something.@  This disturbed Gonzales so he asked a few Target team members to come and assist in the apprehension.  For no apparent reason, appellant suddenly started running toward the front checkout lanes.  Appellant got to the main aisle and then turned and started to run back to the front doors when Gonzales and Barnes grabbed him and put him on the ground to try to handcuff him.  Gonzales was nervous because appellant had his hands in front of him and Gonzales could not see them.  Then Gonzales saw the box cutter and told people to watch out because appellant had a knife. Gonzales told appellant to let go of the knife and eventually appellant did.  Appellant never tried to stab or gesture at anyone with the knife.

          Officer Thomas Nichols of the Corpus Christi Police Department testified that when he arrived at Target, in response to a call of a disturbance with a shoplifter, he found three to four employees on top of appellant, who was struggling with them, kicking and fighting.  Appellant was bloodied from cuts to both of his thumbs. A box cutter knife, or Azip knife@ was obtained from the scene.

Appellant testified that he had gone shopping at Target that day and had brought a cart from outside the store that happened to already have a bag in it.  He picked out a shirt, some binoculars and walkie-talkies and then saw George Ramirez. He asked Ramirez if he worked for the store because he wanted to find out if there were any more walkie-talkies in the store but Ramirez said he did not, in a way that implied that he was perturbed to have been asked.  Appellant testified that he thought he had offended Ramirez so he left the department.  He continued shopping and then thought about the fact that he had not discussed such a large purchase with his girlfriend, so he went and Apreserved@ the items by placing them in the JC Penney=s bag behind some cans so he could save them while he went to go talk to his girlfriend.^[7]  Appellant testified that he left the store and was on his way home when he thought that someone might get hold of the items there and then decided to give the items to a clerk to hold.  He testified that he was walking to the front with the bag in his hand, on the way to the courtesy desk, when Mr. Ramirez approached him.  Appellant thought Ramirez must be stalking him.  According to appellant, Ramirez said nothing but reached for him and the bag broke and then a few guys came at him.  Appellant backed into the store and the next thing he knew, he was thrown to the floor and his box cutter fell out of his pocket so he grabbed it and pulled it under him.  A Abig guy@ on top of him kept kicking him and that jarred his hand and caused the blade to slip out and cut his thumb, but he held on to it Ain shock.@  Finally, he let go of it.   Appellant testified that he never threatened anyone or exhibited the knife.   He carried it because he was a truck driver and often had to cut bands on delivery boxes.  Appellant acknowledged that he had twice been convicted of possession of cocaine, in March of 1991 and February of 1999,^[8] but denied having a problem with cocaine or using cocaine the day of the incident or any time after February 1999, nine months before the incident.  He testified that his reactions that day were due to being nervous about the way he was approached by Ramirez at the store.  He admitted having no cash at the time but explained he was going to pay for the merchandise with his Discover card.

Batson Challenges

Appellant=s first issue complains of the trial court=s overruling his challenges to the prosecutor=s peremptory strikes as to two veniremembers, which appellant claims were struck solely because they were of African-American descent, as is appellant.  The use of peremptory challenges to exclude persons from the jury because of their race violates the Equal Protection Clause of the Fourteenth Amendment.  Batson v. Kentucky, 476 U.S. 79, 84-86  (1986).  Either party may object to the other=s discriminatory use of a peremptory challenge as a  violation of Equal Protection.  Georgia v. McCollum, 505 U.S. 42, 55-56 (1992).  The party objecting must first make a prima facie showing that the other party has used a peremptory challenge for racial reasons. Ladd v. State, 3 S.W.3d 547, 563 (Tex. Crim. App. 1999)(citing  Purkett v. Elem, 514 U.S. 765, 770 (1995)).  Once a prima facie showing of purposeful discrimination has been made, the burden of production shifts to the other party to provide a race-neutral explanation.  Id.  An explanation is deemed race-neutral so long as no discriminatory intent is inherent in the explanation given, even if the explanation is fantastic or implausible.  Williams v. State, 937 S.W.2d 479, 485 (Tex. Crim. App. 1996) (citing Purkett, 514 U.S. at 770).  If a race-neutral explanation is tendered, the opponent of the strike must show that the race-neutral reason is a pretext for discrimination.  Id.  The trial court must then decide whether the objecting party has proven purposeful discrimination.  Id.

Since the trial court's decision will turn largely on an evaluation of credibility, the appellate court must give that decision great deference and must not disturb it unless it is clearly erroneous.  Ladd, 3 S.W.3d at 563.  To determine whether the fact finder's decision is "clearly erroneous," appellate courts look to the record to see if they are left with the definite and firm conviction that a mistake has been committed.  Hill v. State, 827 S.W.2d 860, 865 (Tex. Crim. App. 1992).  In doing so, the evidence must be considered in the light most favorable to the trial court's rulings.  Id.

In the instant case, appellant specifically complains of the State=s strikes against two veniremembers of African-American descent, numbers eight and fifteen.  Appellant claims that there were only three veniremembers of African-American descent and these two were struck with peremptory challenges and so this action raised the inference that the State used their challenges on the base of race alone.^[9]  Appellant objected to the use of these strikes under the authority of Batson. The State offered explanations for the strikes and the trial court made a determination that no discrimination occurred.

On appeal, the State does not contest the prima facie showing.  Moreover, once a party offers a race-neutral explanation for a peremptory challenge and the trial court rules on the ultimate issue of intentional discrimination, the preliminary issue of a prima facie case is moot.  Hernandez v. New York, 500 U.S. 352, 359 (1991).

We therefore turn to the question of whether facially race-neutral reasons were provided by the State as to the two challenged veniremembers of which appellant complains.  At a hearing on the challenged strikes, the State offered the following explanations for the respective jurors through the testimony of the lead prosecutor who stated,

Your Honor, I did not use the strikes as a race, basis of race.  No. 8 was struck because I didn=t like the way he answered my questions with regard to one-witness testimony.  No. 15 was struck because she has been a professional juror.  In fact, she=s served two times on drug cases in the past three years.  That=s the reason I struck her.

Reviewing the record before us, we cannot find that the trial court erred in finding that the proffered explanations were facially race-neutral.  At this second stage, the explanations may be Asilly or superstitious@ and need not be either persuasive or even plausible, so long as they are facially race-neutral.  Purkett, 514 U.S. at 768.  Reluctance to rely on the evidence of a single witness and recent prior jury service are  facially race-neutral explanations.  We do not find the trial court=s decision in determining the explanations to be facially race-neutral to be Aclearly erroneous.@ 

Having determined that facially race-neutral reasons were provided by the State, we must next examine whether appellant met his burden to prove that the State=s explanations were a mere pretext for discrimination.  Once a facially race-neutral explanation has been advanced, it falls to the opponent of the strike to prove that the neutral reason was merely a pretext for discrimination.  Williams, 937 S.W.2d at 485.  The opponent of the peremptory strike has the burden to prove discrimination to the trial court by a preponderance of the evidence; the State is not required to prove that it did not discriminate.  Guzman v. State, No. 1101-00, 2002 Tex. Crim. App. LEXIS 107, at *30 (Tex. Crim. App., May 22, 2002).  The record in the present case does not reflect any offer of evidence to the trial court by appellant or even any argument by appellant that countered the facially race-neutral explanations offered by the State.  Appellant=s counsel did perform a limited cross-examination of the prosecutor, asking the prosecutor whether race was used Aas any portion of your basis for striking@ each of the jurors, to which questions the prosecutor answered Ano.@  The prosecutor also denied consulting with another prosecutor about the strikes. Defense counsel then questioned the other prosecutor at the trial who confirmed that he had stepped outside and did not participate in the decision  regarding which jurors were to be struck.  No other questions were asked of the prosecutors and no evidence was offered by appellant.  Defense counsel made no further argument, offering only that he renewed his objection to the strikes.

Since the burden of persuasion is on the opponent of the strike, Afailure to offer any real rebuttal@ to the State=s facially neutral explanation Acan be fatal to his claim.A Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002); see Ford v. State, 1 S.W.3d 691, 694-94 (Tex. Crim. App. 1999)(where appellant never cross-examined prosecutor about explanation and offered no evidence rebutting the claim, he failed to prove that the reason given was a pretext for discrimination).  In reviewing the record in the instant case, we do not find that appellant carried his burden to prove that the proffered explanations were mere shams or pretexts for discrimination.  Johnson, 68 S.W.3d at 649.  Additionally, there is some support in the record for the State=s explanations and the trial court=s decisions.^[10]   We find no clear error in the trial court=s decision to overrule appellant=s Batson challenges as to these two strikes.  Appellant=s first issue is overruled.

Confrontation Clause Violation

In his second issue, appellant argues that his right to confrontation of witnesses under the Sixth Amendment to the Constitution was violated when the trial court permitted an officer to testify to inadmissible hearsay statements by witnesses that were not identified or produced at trial. Review of the record of the portion of trial in question indicates that no objection was made on this ground at trial. Rather, the only objection made was that the evidence being offered was hearsay.  Hearsay objections and objections to violations of the Confrontation Clause Aare neither synonymous nor necessarily coextensive.@  Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991).  A hearsay objection does not preserve error predicated on a claim that one=s constitutional confrontation rights are being violated.  Id.; Thacker v. State, 999 S.W.2d 56, 61 (Tex. App.BHouston [14^th Dist. 1999], pet. ref=d); Cofield v. Sate, 857 S.W.2d 798, 804 (Tex. App.BCorpus Christi 1993), aff=d, 891 S.W.2d 952 (Tex. Crim. App. 1994).   We overrule appellant=s second issue.   

Intent to Commit Theft

In his final issue, appellant challenges the factual sufficiency of the evidence to demonstrate that he intended to commit theft. Appellant renews the arguments that he made at trial that he had intended to take the items to the courtesy desk when he was frightened by the men who he felt came after him.

In conducting a factual sufficiency review, we consider all the evidence offered at trial without the prism of the light most favorable to the jury verdict.  Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). While authorized to disagree with the jury, the reviewing court must be appropriately deferential to the jury=s findings so as not to substitute its judgment for that of the fact-finder and so should act only to prevent a manifestly unjust result.  Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).  Unless the available record clearly reveals a different result is warranted, a reviewing court must defer to the jury=s determination concerning the weight to be given contradictory testimonial evidence.  Johnson v. State, 23 S.W.3d 1, 18 (Tex. Crim. App. 2000). Under a factual sufficiency review, the appellate court, after viewing all the evidence neutrally,  is to consider whether either the proof of guilt is so weak as to render it clearly wrong and manifestly unjust or the verdict of guilt is against the great weight and preponderance of the available  evidence.  Id. at 11.

Appellant argues that he gave a Aplausible explanation@ and that his actions  were Aas consistent with innocent behavior as with criminal activity,@ namely that Aappellant intended to take the items to the courtesy desk, became fearful when several men started to approach him and ran back into the store.@  He asks us to consider his explanation as an Aalternative reasonable hypothesis,@ urging that Clewis permits such consideration.

The former Areasonable hypothesis analytical construct@ used to apply in a case of circumstantial evidence and required the State to exclude all reasonable hypotheses, other than the defendant=s guilt, in order for the evidence to be found legally sufficient on appeal.  Carleson v. State, 654 S.W.2d 444, 447 (Tex. Crim. App. 1983), overruled, Geesa v. State,  820 S.W.2d 154, 161(Tex. Crim. App. 1991).  The reasonable hypothesis analytical construct  was overturned in Geesa v. State, and no longer binds this Court.  Geesa v. State,  820 S.W.2d 154, 161(Tex. Crim. App. 1991).  While we may, and indeed must, consider evidence offered by the defense in a factual sufficiency review, Clewis did not reinstate the Areasonable hypothesis@ analytical construct overruled by Geesa and does not even mention the term Areasonable hypothesis.@  The question before us is not whether appellant presented an Aalternate reasonable hypothesis@ or whether he gave a Aplausible explanation.@  Rather, we must determine, after viewing all of the evidence submitted, whether the proof of guilt was so weak as to render it clearly wrong and manifestly unjust or whether the verdict of guilt is against the great weight and preponderance of the available evidence.  Johnson, 23 S.W.3d at 11.

Having considered all of the evidence under the standard enunciated in Johnson, we find that the evidence is factually sufficient to support the conviction.   We overrule appellant=s third issue.

Conclusion

Having overruled all of appellant=s issues, we affirm the conviction and sentence of the trial court.          

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 18th day of July, 2002.

---

^[1] Tex. Pen. Code Ann. ' 29.03(a)(2)(Vernon 1994).

^[2] Tex. Pen. Code Ann. '' 31.03(a),(b)(1) & (e)(2)(A)(i)(Vernon Supp. 2002).

³ Appellant was in jail at the time of the trial and was released after the sentence was pronounced as the time already served on this cause pending trial provided sufficient credit to complete his assessed sentence.

^[4] Batson v. Kentucky, 476 U.S. 79 (1986).

^[5] Ramirez later testified that the combined value of the items that were taken was $221.01.

^[6] At the time of trial, Barnes was working as a correctional officer in Beeville, Texas.  On November 18, 1999, Barnes was working for a private transport company, transporting federal and state inmates, having left a previous job as a correctional officer.

^[7] He testified he was particularly concerned about the walkie-talkies because there had only been two on the shelves of the store.

^[8] He also admitted to having been convicted of unlawfully carrying a weapon.

^[9] Aside from defense counsel=s claim to the trial court that the State struck two of the three African-American veniremembers, there is no evidence in the record as to the racial makeup of the venire panel and no evidence as to the racial makeup of the jury selected.  We do not know, for example, whether the third African-American was struck for cause, struck by appellant, not reached, or perhaps even served on the jury.

^[10] The record of the voir dire reflects that veniremember number eight did repeatedly state that he could not convict on just the testimony of one witness, although he later stated it would depend on how the evidence was presented and averred that he would listen to all the evidence and could convict if the evidence supported a conviction. The record also reflects that veniremember number fifteen stated that she had served on two criminal juries, both in drug cases, Athree or four years ago.@