Vinton Derrick Cummings v. State ( 2011 )

NO. 07-10-0014-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 30, 2011
_____________________________
VINTON DERRICK CUMMINGS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_____________________________
FROM THE CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY;
NO. 1132330D; HONORABLE SHAREN WILSON, PRESIDING
_____________________________
Memorandum Opinion
_____________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Vinton Derrick Cummings was convicted of murdering his daughter’s boyfriend.
He raises four issues to challenge that conviction: 1) the State used a peremptory strike
on an African-American member of the jury panel in violation of the Fourteenth
Amendment, 2) the trial court erred in charging the jury on provocation as a limitation on
self-defense during the guilt/innocence phase, 3) the trial court erred in refusing to admit
evidence of racist epithets and racial symbols, and 4) the trial court erred in refusing to
instruct the jury on the lesser-included offense of aggravated assault. We affirm the
judgment.
Appellant and the victim, Temple Jernigan, had a contentious relationship due to
appellant’s disapproval of his daughter1 having moved in with Jernigan. On October 9,
2008, appellant met Jernigan between 6:45 a.m. and 7:00 a.m. on a street in Tarrant
County, Texas, for the alleged purpose of giving Jernigan a gun to sell for appellant. At
the end of that encounter, Jernigan was dead from two bullets, one to his chest and one
to his head. Appellant fled the scene, threw the gun in a lake, and returned to his job at
American Airlines. The State contended that the murder was committed knowingly and
intentionally or that he knowingly and intentionally commited an act clearly dangerous to
human life with the intent to cause serious bodily injury. Appellant testified at trial and
claimed that he shot Jernigan in self-defense.
Issue 1 – Batson Challenge
Appellant is African-American and two members of the jury were of the same
race. However, the State used peremptory challenges on three other black venire
members. On appeal, appellant attacks only the State’s strike against Alexander
Warren Malone.
One making a Batson2 challenge must make a prima facie showing of racial
discrimination. Williams v. State, 301 S.W.3d 675, 688 (Tex. Crim. App. 2009), cert.
denied, ___ U.S. ___, 130 S. Ct. 3411, 177 L. Ed. 2d 326 (2010). The burden then shifts
to the State to offer a race-neutral explanation for the strike. Id. Once the State has
1
The girl was appellant’s stepdaughter whom appellant adopted.
2
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
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done so, the burden shifts back to the defendant to show the explanation is really a
pretext for discrimination. Id.    We accord great deference to the trial court’s
determination and do not overturn it unless it is clearly erroneous. Id.
The explanation offered by the State with respect to Malone included: 1) the way
he answered his jury questionnaire in that he is twenty-one years old and unemployed,
he provided minimal information, and he did not follow the instructions with respect to
ranking the goals of the criminal justice system, and 2) his demeanor in the courtroom in
that he nodded his head in the affirmative during voir dire during a discussion as to
whether police officers could lie. In response, appellant argued that Malone’s
questionnaire was filled out similar to other persons and that appellant had not observed
the demeanor referenced by the State. The trial court found that the State had
“expressed a race-neutral reason” for the strike.
At trial, appellant offered the name of Bradley Shepperd as someone who
answered a questionnaire similar to Malone. Shepperd did fail to rank the goals of the
criminal justice system as did Malone; nevertheless, the trial court noted that the
remainder of his questionnaire “is complete,” and we note it was also more informative
than that of Malone. Appellant also points to William Howard Colley, III, as a juror
similar to Malone3 in that he is young and unemployed. However, Colley explained he
was a student and he has training as an EMT and a firefighter, he followed the
instructions with respect to ranking the goals of the criminal justice system, he had more
hobbies and personal interests than Malone, he belonged to several clubs or groups
3
Appellant also refers on appeal to Catherine Louise Block as being unemployed; however, it
could be inferred from her questionnaire that she was a housewife. Additionally, the remainder of her
questionnaire was complete and informative.
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whereas Malone belonged to none, he indicated he read the Star-Telegram while
Malone did not indicate that he read any newspapers or magazines, and he was a
Christian, whereas Malone’s religious preference was “open.” Therefore, Colley
provided more information from which the State could make a decision regarding the
desirability of him as a juror.
Youth and employment (or lack thereof) are race neutral reasons to strike a juror,
Patrida v. State, 133 S.W.3d 738, 742 (Tex. App.–Corpus Christi 2003, no pet.), as is
carelessness or error in completing or failing to complete the juror information card.
Ester v. State, 151 S.W.3d 660, 662 (Tex. App.–Waco 2004, no pet.); Newsome v.
State, 829 S.W.3d 260, 266 (Tex. App.–Dallas 1992, no pet.). That being so, we cannot
say the trial court clearly erred in finding no racial pretext in the striking of Malone.
Issue 2 – Jury Charge on Provocation
In his second issue, appellant contends the trial court erred in giving an
instruction on provocation to the jury. We disagree and overrule the issue.
Self-defense is not a permissable defense when the actor provoked the other’s
use or attempted use of unlawful force. TEX. PENAL CODE ANN. §9.31(b)(4) (Vernon
Supp. 2010). Furthermore, an instruction on provocation is required when there is
some evidence for a rational jury to find beyond a reasonable doubt that 1) the
defendant did some act or used some words which provoked the attack on him, 2) such
words or acts were reasonably calculated to provoke the attack, and 3) the act was
done or the words were used for the purpose and with the intent that the defendant
would have a pretext for inflicting harm on the other person. Smith v. State, 965 S.W.2d
509, 513 (Tex. Crim. App. 1998). The exact words or actions need not be proven; the
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jury must merely be able to find that there were some provoking acts or words.
Kennedy v. State, 193 S.W.3d 645, 655 (Tex. App.–Fort Worth 2006, pet. ref’d).
Furthermore, each element may be proved circumstantially. Fink v. State, 97 S.W.3d
739, 742 (Tex. App.–Austin 2003, pet. ref’d). Finally, in reviewing the trial court’s
decision to include the instruction, we look at the evidence in a light most favorable to
the instruction. Smith v. State, 965 S.W.2d at 513.
Here, the record shows that 1) appellant was unhappy that his daughter had
moved in with Jernigan, 2) appellant and Jernigan had exchanged angry words in the
month or two leading up to Jernigan’s death, 3) Jernigan had threatened appellant prior
to the day of the murder, 4) appellant testified that Jernigan became angry when he
complained to Jernigan (at the scene of the shooting) that Jernigan would not allow the
girl to spend uninterrupted time with her family, 5) appellant was pointing his finger at
Jernigan in an aggressive manner immediately before the shooting, 6) appellant took a
loaded gun with him to the meeting with Jernigan, 7) appellant’s leaving from and
returning to work before and after the shooting, respectively, was done in a manner that
failed to show he had left work to meet with Jernigan, 8) the path of the bullet wound to
Jernigan’s head was down which indicated that the weapon was being held higher than
the target when discharged, 9) appellant threw the gun in a lake after leaving the scene
of the shooting, and 10) appellant drove a rental car to the early morning meeting with
Jernigan as opposed to his own truck. From this, a jury could reasonably infer that
appellant was planning a physical confrontation of some type with Jernigan and
undertook conduct that could provoke a similar response from Jernigan. Thus, the trial
court did not error in submitting the instruction.
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Issue 3 – Racist Epithets and Symbols
Next, appellant complains of the trial court’s refusal to admit 1) evidence that
Jernigan used the word “nigger” when previously threatening to “whoop” appellant’s
“ass,” 2) a picture of appellant’s daughter4 wrapped in a Confederate flag, and 3) a
statement by Jernigan that appellant’s daughter “was going to be one of us.” The trial
court found this evidence to be “more prejudicial than probative.” This finding was
allegedly an abuse of discretion because the evidence conveyed “a threat of violence”
and death, given the history of this state, and explained why appellant felt threatened
and needed to defend himself. We overrule the issue.
The applicable standard of review is one of abused discretion. Burden v. State,
55 S.W.3d 608, 615 (Tex. Crim. App. 2001). We also note that the subject matter of the
photograph was before the jury; appellant’s daughter had described its content as a
picture of herself “with a Rebel flag blanket” and further testified that Jernigan had taken
the photo.5 The latter was also shown to appellant at trial, and he testified that Jernigan
had previously disclosed it to him and that it “upset” him. Next, the statement that the
daughter “was going to be one of us” was made at the time appellant was shown the
picture by Jernigan, and even though it was excluded at trial, appellant was not
prevented from putting evidence before the jury that the subject matter of the picture
caused him emotional upset. That, coupled with 1) the evidence that appellant was
black, while his adopted daughter and Jernigan were white and 2) the connotations
appended to a confederate flag (as well as the connotations arising from draping
4
Appellant’s daughter was white.
5
The photograph itself was not admitted.
6
oneself in the flag) served to interject the issue of race and the aspect of historic
aggression against blacks into the mix, just like appellant wanted. So, the record
effectively provided appellant that which he sought to prove.
As for prohibiting reference to the use of “nigger,” the trial court nonetheless
allowed appellant to disclose that Jernigan had threatened to assault appellant. Thus,
appellant’s ability to establish the fact he sought to prove, i.e. he feared Jernigan due to
prior threats, was not impeded. And, given that evidence of race and racial attitudes
was already before the jury, it was reasonably debatable whether permitting the
interjection of inflammatory words like the “nigger” word would enhance the
establishment of appellant’s defense or simply cause jurors to feel spite or distaste
towards those using the words. See Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim.
App. 2007) (stating that a trial court does not abuse its discretion when the decision fell
within the zone of reasonable disagreement). In other words, the trial court was forced
to assure that appellant’s fate was determined by the evidence and legal theories as
opposed to emotion. And, because appellant had been able to develop his defense and
because aspects of Jernigan’s racial animus were already interjected into the trial via
other evidence, the trial court was well within its discretion to avoid stoking emotional
fires through the admission of overtly racial and inflammatory epithets. See Manning v.
State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003) (stating that in making the requisite
determination one must consider 1) the extent to which the evidence serves to make the
fact of consequence more or less probable, 2) the potential of the evidence to impress
the jury in an irrational but indelible way, 3) the time needed to develop the evidence,
and 4) the proponent’s need for the evidence); Morales v. State, 293 S.W.3d 901, 911
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(Tex. App.–Texarkana 2009, pet. ref’d) (stating that unfair prejudice arises from
evidence that has an undue tendency to suggest that a decision be made on an
improper basis, commonly an emotional one).
Issue 4 – Lesser‐Included Offense
Finally, appellant argues that he was entitled to an instruction on the lesser-
included offense of aggravated assault. We overrule the issue.
A defendant is entitled to an instruction on a lesser offense when the lesser
offense is included within the proof necessary to establish the charged offense, and
some evidence exists which would permit the jury to find that if appellant is guilty, he is
guilty only of the lesser offense. Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim.
App. 2006). The State concedes that aggravated assault can be a lesser-included
offense of murder. Given that, our task is to assess whether the evidence allegedly
warranting the submission would permit the jury to determine that if appellant is guilty,
he is guilty only of aggravated assault. And, that is where the argument before us
falters.
Appellant testified that he shot Jernigan the first time to get Jernigan “off of him”
and that he did so intentionally. The second shot purportedly was an accident. Yet, a
medical expert testified that both shots were fatal, and appellant cites us to no evidence
contradicting that. Because of this, he was not entitled to the charge since the lesser
offense of aggravated assault is unavailable when there is no evidence that the victim
suffered a lesser form of serious bodily injury than death. Jackson v. State, 992 S.W.2d
469, 475 (Tex. Crim. App. 1999) (stating that a murder defendant is not entitled to an
instruction on the lesser-included offense of aggravated assault when the evidence
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showed him, at the least, to be guilty of a homicide and since there was no evidence
from which a rational jury could conclude that appellant did other than cause the death
of the victim, the only lesser-included offense that was raised by the evidence of
recklessness was manslaughter, not aggravated assault).
Accordingly, we affirm the judgment.
Brian Quinn
Chief Justice
Do not publish.
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