Baptise, John F. v. State

Opinion Issued May 2, 2002 In The Court of Appeals For The First District of Texas ____________ NO. 01-01-00488-CR NO. 01-01-00489-CR ____________ JOHN F. BAPTISTE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause Nos. 846436 and 846435 O P I N I O N A jury convicted appellant of indecency with a child and burglary of a habitation with intent to commit indecency with a child. Appellant pleaded true to one enhancement paragraph, and the jury assessed punishment at 20 years in prison for indecency with a child and life in prison for burglary of a habitation with intent to commit indecency with a child. We affirm.FACTS On May 17, 2000, T.W., the 11-year-old complainant, and T.B., her friend, saw appellant near the gate of an apartment complex. Appellant asked T.B. if she knew how to dance, and she answered that she did. After appellant led the two girls to the complex's laundry-mat, he pulled the girls toward an apartment. Appellant told the girls he was going to do the "Cry Baby," a dance, for them. Appellant also told the girls that he danced at a strip club. Appellant led the girls to the apartment of C.C., a 10-year-old boy, whose parents were not home. When C.C. answered, appellant pushed the door open and told C.C. to go to the back room. Appellant pulled the girls inside. Appellant started dancing the "Cry Baby" while the girls stood in the apartment's dining room. After appellant finished dancing, he asked the girls if they would like to see his "thing." He proceeded to pull out his penis and began shaking it. Appellant then sat on the sofa, masturbated, and ejaculated. BATSON CHALLENGE In his first point of error, appellant contends that the trial judge erred by not sustaining his race-based Batson challenge to the State's peremptory strike on venire member Nichols. See Batson v. Kentucky, 476 U.S. 79, 96-97, 106 S. Ct. 1712, 1723 (1986). We follow the usual standard of review. See Kemp v. State, 846 S.W.2d 289, 304 (Tex. 1992). During the Batson hearing, appellant asserted that the State improperly struck venire member Nichols because she was African-American. The State responded with the following race-neutral explanations for the strike: Prosecutor: . . . she [Nichols] stated that she had been hit by a truck. I had concerns about her health by that. She never received a high school diploma, and she's a housewife. This case deals with children. I don't believe she had any children, and I had some concerns about that. Trial Judge: [Nichols]--I heard her say a few things. I'll deny your Batson. I believe [the prosecutor] exercised her peremptory challenge on race-neutral reasons. Defense Counsel: . . . I would respond for the record that I don't recall [Nichols] saying anything at all about being hit by a truck or her health. Prosecutor: It was on her [jury] slip. It just kind of jumped out at me. . . . Defense Counsel: I believe there were other white jurors that did not have [an] extended education, G.E.D. only diplomas. As far as her lack of children, again, nothing was questioned to her about that. Trial Judge: I'm looking at the jury information sheet. She said she was run over by a truck and didn't finish high school. (1) . . .. Defense Counsel: Just so the record is clear, the motion on [Nichols] is overruled? Trial Judge: I deny your motion. Based on Nichols's responses, the trial judge could have found that venire member Nichols was the least educated venire member eligible, had been hit by a truck, and had no children. Appellant's statements did not rebut the prosecutor's race-neutral explanations. Thus, the trial judge could have determined that the reasons for striking venire member Nichols were facially plausible and race-neutral. See Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct 1769, 1771 (1995) (the "ultimate burden of persuasion regarding . . . motivation rests with, and never shifts from, the opponent of the strike."); Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999) (quoting Purkett); Satterwhite v. State, 858 S.W.2d 412, 424 (Tex. Crim. App. 1993) (trial judge may accept prosecutor's neutral explanations at face value). We hold that the trial judge's ruling was not clearly erroneous. We overrule appellant's first point of error. EXTRANEOUS ACTS In his second point of error, appellant complains that the trial judge erred by admitting the rebuttal witnesses' testimony. A trial judge's admission or exclusion of evidence is reviewed for abuse of discretion. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996) (op. on reh'g). Appellant argues that the trial judge erred by allowing evidence of extraneous acts to show character conformity. See Tex. R. Evid. 404(b). Rule 404(b) states as follows: Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Id. However, this evidence was not admitted to show appellant's character conformity. It was introduced to impeach appellant's earlier testimony on direct examination. (2) Appellant twice, during direct examination, testified that he did not know how to dance. Also, during direct examination, he testified that the girls were dancing and "started doing that dance about 'Cry Baby' or something." The State on rebuttal called five witnesses, three of whom testified that appellant had asked them to watch him dance, and one of whom testified that appellant had told her he knew how to do the "Cry Baby." This evidence constitutes impeachment evidence, not propensity evidence. When a defendant leaves a false impression concerning a matter relating to his credibility, the State can correct that impression. See Ramirez v. State, 802 S.W.2d 674, 675-76 (Tex. Crim. App. 1990). In this case, appellant's direct testimony that he did not know how to dance and was unfamiliar with the "Cry Baby" dance left the jury with a false impression. The testimony in rebuttal was elicited to correct that false impression. Thus, rule 404(b) does not apply, and the trial judge did not abuse his discretion in overruling appellant's objection. We overrule appellant's second point of error. LIMITING INSTRUCTION In his third point of error, appellant contends that the trial judge erred by refusing to give the jury a limiting instruction under rule 404(b) when the State's rebuttal evidence was elicited. We have held above that rule 404(b) did not bar this evidence because the evidence was not offered to show character conformity, but was offered for impeachment. Impeachment is not among the "other purposes" listed in rule 404(b). See Tex. R. Evid. 404(b). Therefore, no limiting instruction under 404(b) was required. Furthermore, when the testimony in question could be only used for impeachment, no limiting instruction is required. See Cantrell v. State, 731 S.W.2d 84, 95 (Tex. Crim. App. 1987). In this case, the trial judge included a rule 404(b) limiting instruction in the jury charge. (3) Thus, even if appellant had been entitled to a contemporaneous rule 404(b) instruction during testimony, the 404(b) instruction in the jury charge cured any such alleged error, as it did in Rankin v. State. 974 S.W.2d 707, 712-13 (Tex. Crim. App. 1996), on remand, 995 S.W.2d 210, 214 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd); see also Lemmons v. State, No. 04-00-00557-CR slip op. at 10-11, (Tex. App.--San Antonio Feb. 13, 2002, n.p.h.) (designated for publication) (holding that inclusion of a rule 404(b) limiting instruction in the jury charge coupled with the short amount of time before the jury received the charge constituted harmless error). Appellant cites no case that has held that the failure to give a rule 404(b) contemporaneous limiting instruction, standing alone, was reversible error. See Hammock v. State, 46 S.W.3d 889, 891-92 (Tex. Crim. App. 2001) (holding that failure to give a contemporaneous limiting instruction under rule 404(b) and denying such a limiting instruction in the charge was reversible error). We hold that the trial judge did not err by denying appellant's request for a limiting instruction. We overrule appellant's third point of error. ALLEN CHARGE In his fourth point of error, appellant argues that the trial judge erred by giving the jury an Allen charge without any indication that the jury was deadlocked. See Allen v. United States, 164 U.S. 492, 501-02, 17 S. Ct. 154, 157 (1896). We review a trial judge's decision to give an Allen charge for abuse of discretion. See Loving v. State, 947 S.W.2d 615, 620 (Tex. App.--Austin 1997, no pet.). Absent a showing that the Allen charge resulted in an improper verdict, error, if any, is harmless. Griffith v. State, 686 S.W.2d 331, 333 (Tex. App.--Houston [1st Dist.] 1985, no pet.). On March 13, 2001, the jury deliberated for one hour, beginning at 5:20 p.m., before being recessed for the evening. During this time, the jury sent three notes to the judge. The first note, which was not time-stamped, asked four questions: 1) Are we as a jury empowered to assess the sentences to be served consecutively? 2) Can we review evidence on previous convictions? and 3) What happens if we can not agree on the sentence? Does the decision defer to the judge? The trial judge replied by referring the jury to the Court's charge. The second note, time-stamped at 5:45 p.m., asked whether the total years were served consecutively or concurrently. The trial judge again answered by referring the jury to the Court's charge. The third note, time-stamped at 5:47 p.m., asked the difference between 99 years in prison and life imprisonment. The trial judge refused to answer the question. The next day, the jury continued deliberations at 9:30 a.m. and reached a verdict at 11:35 a.m. Before the jury reached its verdict, a note, which was not time-stamped, was sent to the trial judge, asking how to resolve the jury's disagreement in sentencing. The trial judge responded by giving the jury an Allen charge. (4) The trial judge's charge to the jury was not coercive. Appellant argues the trial judge's instruction was premature because the jury had deliberated for only three hours. The length of time that a jury is allowed to deliberate rests within the sound discretion of the trial judge. DeLuna v. State, 711 S.W.2d 44, 48 (Tex. Crim. App. 1986). We hold that the trial judge's decision to give an Allen charge after four inquires, one of which noted the jury's disagreement on sentencing, was not an abuse of discretion. (5) We overrule appellant's fourth point of error. We affirm the judgment. Murry B. Cohen Justice Panel consists of Justices Cohen, Nuchia, and Price. (6) Do not publish. Tex. R. App. P. 47. 1. The juror cards indicated that 10 of the seated jurors had children, one juror had no children, and another juror left the question blank. 2. The trial judge explicitly stated: [The State] stated [the evidence] is not to the level of extraneousness, but I think she has the right to impeach his testimony since he has testified. And that's what they're presenting [rebuttal witnesses] to the Court. They are going to call these witnesses as impeachment witnesses. 3. Appellant did not request an instruction in the jury charge regarding impeachment. 4. Appellant does not allege that the Allen charge was improperly worded. Appellant contends only that the Allen charge was given prematurely. 5. Appellant relies on Loving v. State, which is distinguishable. 947 S.W.2d 615 (Tex. App.--Austin 1997, no pet.). In Loving, the court held that the trial judge did not err by giving an Allen charge before the jury indicated that it was deadlocked. Loving, 947 S.W.2d at 620. In this case, the jury's final note indicated that it might have been deadlocked on the issue of sentencing. 6. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.