Williams, Thomas Wayne v. State

^ Court of Appeals Jffiftfj Htstrfct of Qtexas at Dallas

JUDGMENT

THOMAS WAYNE WILLIAMS, Appellant Appeal from the Criminal District Court of Dallas County, Texas. (Tr.Ct.No. F98- No. 05-98-01113-CR V. 45083-PH). Opinion delivered by Justice Ovard, Justices THE STATE OF TEXAS, Appellee Moseley and O'Neill participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered May 2.5» 2000.

HN OVARD JUSTICE

AFFIRM; Opinion Filed May 2-5, 2000

In The

Court of Appeals ifftftlj Htstrftt of Qtexas at Dallas No. 05-98-01113-CR No. 05-98-01114-CR

THOMAS WAYNE WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court Dallas County, Texas Trial Court Cause No. F98-45083-PH and F98-45084-NH

OPINION

Before Justices Ovard, Moseley, and O'Neill Opinion By Justice Ovard

In a single trial appellant was convicted by a jury of unlawful possession of a firearm by a felon and possession ofcocaine. Punishment was set attwenty years imprisonment and a$1000 fine for the firearm offense and forty years imprisonment for the drug offense. In six points of error, appellant generally complains thetrial court erred infailing tohold a hearing on appellant's Batson objection and in failing to inform appellant he had a right to proceed pro se at trial. We affirm.

In his first two points of error appellant contends the trial court committed reversible error by failing to hold a hearing under Batson v. Kentucky, 476 U.S. 79 (1986) and article 35.261 of the Texas Code of Criminal Procedure.1 At the close of voir dire, appellant's trial counsel moved to dismiss the array on the ground that the prosecutor had exercised peremptory strikes in a racially discriminatory manner. Counsel noted that appellant is a black male and stated the prosecutor had

struckjuror number 38, Robert Rodriquez, an Hispanic.2 Counsel argued that "[h]e was struck Ifeel primarily because ofhis minority persuasion." Counsel did not indicate whether any other minority members were included inthearray. The trial court held that appellant failed to make a prima facie

showing that the State had exercised its strikes in a discriminatory manner and therefore the burden did not shift to the State to offer a racially neutral explanation for striking juror number 38. The trial court therefore overruled appellant's Batson objection. Appellant complains the trial court erred in failing to conduct a hearing to ascertain the prosecutor's reasons striking juror 38. We disagree.

The procedure for determining a Batson challenge is well established. To challenge the State's use ofperemptory strikes under Batson, a defendant must first make a prima facie showing that the State exercised peremptory strikes on the basis ofrace. See Batson, 476 U.S. at96; Bausley

v. State, 997 S.W.2d313, 316 (Tex. App.-Dallas 1999, pet. ref d). Once adefendant makes aprima

facie showing ofpurposeful discrimination, the State must provide a race neutral explanation for striking the prospective jurors in question. See Batson, 476U.S. at 97; Bausley, 997 S.W.2dat316. Ifthe State provides a race neutral explanation for its strikes, the defendant must rebut the State's

1Appellant asserts separate points oferror under Batson and article 35.261. Article 35.261, prohibiting peremptory challenges based on race, codifies and implements the holding in Batson. See Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 1989);///«v. State, 827 S.W.2d 860, 863 (Tex. Crim. App. 1992). Appellant, however, argues both points together and does not claim that article 35.261 provides appellant with any relief other than that available under Batson. Accordingly, we address both pointstogetheras well.

2Appellanfs counsel also complained that the State struck juror 45, an Asian veniremember, but withdrew his comments concerning this juror after realizinghe would not have been reached.

-2-explanation or show thatthe explanation was merely a sham or pretext. See Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991); Bausley, 997 S.W.2d at 316. These later steps are never reached, however, if the trial court first rules that the challenging party has failed to meet his initial burden of making outa prima facie case of discrimination. Held v. State, 948 S.W.2d 45, 48 (Tex. App-Houston [14th Dist] 1997, pet. refd); Bean v. State, 816 S.W.2d 115, 117 (Tex. App.-Houston [14thDist] 1991, no pet).

A prima facie case is "that minimum quantity of evidence necessary to support a rational inference that theallegation of purposeful discrimination istrue." Harris v. Sate, 827 S.W.2d 949, 955 n.4 (Tex. Crim. App. 1992). The party challenging the strike is entitled to rely onthe fact that

peremptory challenges permit discrimination by one who has amind to discriminate and must show that this fact, coupled with other relevant circumstances, raises an inference of the discriminatory

exercise of peremptory strikes. Harris, 827 S.W.2d at 955 (citing Batson, 476 U.S. at 96); Held, 948 S.W.2d at 48. As the party with the burden of proof, the challenging party is required to

produce evidence to avoid a finding that the allegation ofpurposeful discrimination is not true as amatter oflaw. Dewberry v. State, 776 S.W.2d589,590 (Tex. Crim. App.l989);/fe/rf, 948 S.W.2d

at 48.

In deciding whether the requisite prima facie showing has been made, all relevant circumstances should be considered. Harris, 827 S.W.2dat955 (citing Batson, 476U.S. at 96-97);

Held, 948 S.W.2d at 48 Judges at all levels must "frankly assess" the legitimate inferences to be drawn from the evidence made available to them. Linscomb v. State, 829 S.W.2d 164, 166 (Tex.

Crim. App. 1992); Held, 948 S.W.2d at 48. The trial judge, however, is in the best position to determine whether the circumstances are sufficient to raise a prima facie case that a strike against

-3-a given veniremember was racially motivated. Held, 948 S.W.2d at 48; Muhammad v. State, 846 S.W.2d 432, 435 (Tex. App.-Houston [14th Dist] 1992, pet. ref'd). That trial judge "has an opportunity to observe the makeup of the panel, the questions asked each veniremember, the unspoken reactions of the attorneys and the potential jurors, the manner in which the other strikes were exercised, and countless other factors." Held, 948 S.W.2d at 48. The United States Supreme Court has expressed its "confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances . . . [create] a prima facie case of discrimination." Batson, 476 U. S. at 97. Thus, we will afford deference to the trial court's judgment and review the record in the light most favorable to the trial court's ruling, and we will not disturb that ruling unless we find it to be clearly erroneous. See Adanandus v. State, 866 S.W.2d 210, 224 (Tex. Crim. App. 1993); Williams, 804 S.W.2d at 101; Held, 948 S.W.2d at 49.

In the present case, we conclude the trial court's finding that appellant failed to make a prima facie showing of purposeful discrimination is not clearly erroneous. At best, appellant established the State had struck a single Hispanic juror.3 The record does not disclose whether juror 38 was the only Hispanic on the panel or whether an Hispanic, or any other minority member, served on the jury. Striking a single member of an identifiable ethnic group does not in itself establish purposeful discrimination. See Held, 948 S.W.2d at 49 (striking only remaining black juror insufficient to establish prima facie showing of purposeful discrimination). While striking only one member of the venire in a discriminatory manner violates the equal protection clause, Linscomb, 829 S.W.2d

The State does not concede juror 38 was Hispanic simply because he had an Hispanic surname. Cf.Aguilar v. State, 826 S.W.2d 760, 763 (Tex. App.-Fort Worth 1992, pet. refd) (upholding trial court's determination that female venireperson who was married to man with Hispanic surname was not Hispanic for purposes ofBatson). For purpose of this opinion, we assume juror 38 was Hispanic. We therefore do not reach the issue of whether an Hispanic surname alone is sufficient to make a prima facie showing that the juror is a member of an identifiable ethnic group.

at 166, the party challenging the strike must nevertheless establish that the veniremember was struck on account ofrace. See Held, 948 S.W.2d at 49-50; Aguilar, 826 S.W.2d at 763. "[T]he bare fact of strikes exercised against persons of a certain race does not necessarily reveal the work of a racially prejudiced mind." Linscomb, 829 S.W.2d at 166; see also Aguilar, 826 S.W.2d at 763 (holding that the strike ofone ofthree Hispanic venirem embers was insufficient to make out a prima facie case of discrimination where the challenging party "failed to show any pattern or any other evidence to the trial court which would raise an inference that the prosecutor used peremptory strikes to remove [that veniremember] on account of her race").

Cases in which courts have found that a prima facie case was established on the basis of a single strike invariably also have involved the complete exclusion of a particular race or a racial identity between the defendant and the excluded veniremember. See, e.g., Salazar v. State, 795 S.W.2d 187, 193 (Tex. Crim. App. 1990); Godine v. State, 874 S.W.2d 197, 203 (Tex. App.-Houston [14th Dist] 1994, no pet.). In the present case, neither circumstance is applicable. First, there is no evidence of racial identity; appellant is black and the excluded member of the venire is Hispanic. "[Although racial identity between the challenger and the excused veniremember is not required to raise a Batson challenge, the absence of such an identity can certainly impact the strength of the challenger's prima facie case of racial discrimination." Held, 948 S.W.2d at 50; see also Powers v. Ohio, 499 U.S. 400, 416 (1991) (noting that cases involving racial identity "may provide one of the easier cases to establish both a prima facie case and a conclusive showing that wrongful discrimination has occurred"). Second, the record does not establish whether allHispanics wereexcluded from thejury because of the State's strike. Although appellant argues thatwemust presume thatjurors 38and 45 were theonly minority members onthe panel, we cannot presume this was so merely because the record is silent as to whether there were other minority members on the panel. Appellant bears the burden of establishing a prima facie showing of discrimination. He cannot meethis burden throughunsupported assumptions aboutthe record.

It was incumbent on appellant as the party with the burden of proof to offer the trial court with some evidence from which the court could conclude the State exercised the strike in a discriminatory manner. See Held, 948 S.W.2d at 50. While the burden ofestablishing a prima facie case is low, it "should not be so low as to constitute no hurdle at all." Id. "Batson is not a talisman, the invocation of which automatically raises an inference of racial discrimination." Bean, 816 S.W.2d at 119. In this case, trial counsel's "feeling" that the State had used its strike in a discriminatory manner is no evidence of purposeful discrimination and was insufficient to meet appellant's burden. Because appellant failed to offer any evidence that the State struck juror 38 in a racially discriminatory manner, appellant failed to establish a prima facie case as a matter of law. Accordingly, we cannot conclude the trial court's ruling was clearly erroneous. We overrule appellant's first and second points of error.

In points of error three through six, appellant contends that the trial court erred in forcing appellant to trial with counsel for which appellant had expressed a lack of confidence and in failing to inform appellant of his right to self-representation under both the federal and state constitutions and pursuant to state statutes.4 On the morning of trial, appellant informed the trial judge that he

4 Appellant asserts a right to self-representation pursuant to the Sixth Amendment of the United States Constitution, article I, section 10 of the Texas Constitution, and articles 1.051 and 26.04(a) of the Texas Code of Criminal Procedure. Although appellant nominally asserts four separate points of error, appellant argues each of the points together and does not contend that different standards apply to these various constitutional and statutory provisions. Accordingly, we address appellant's points together as well.

-6-felt he was not being properly represented and expressed general dissatisfaction with his counsel from thebeginning ofcounsel'sappointment. After inquiring about appellant's specific complaints, the trial judge decided to begin the trial and told appellant to be seated. Appellant then asked the court how he could get another attorney. The trial judge informed appellant that she would not allow appellant to have appointed counsel of his choice and told appellant he could have other counsel when he "c[a]me up withthe money to hire one." Appellant became agitated at the court's response and elected to leave the courtroom and listen to the trial in a holdover cell. On appeal, appellant complains the trial court should have informed appellant of his right to self-representation.5

Appellant had no right toappointed counsel ofhis choosing. Dunn v. State, 819 S.W.2d 510, 520 (Tex. Crim. App. 1991). Nor did he have the option ofwaiting until the day oftrial todemand different counsel or to request thatcounsel be dismissed so that he could retain other counsel. See Roblesv. State, 511 S.W.2d699,704 (Tex. Crim. App. 1979). Thus, appellant's only option attrial was to proceed with his appointed counsel or proceed pro se. Appellant, however, did not request

to proceed pro se. He in fact specifically requested different counsel rather than requesting to proceed pro se. A request for different counsel is not the same as invoking the right to self- representation. See id. ("A request for other counsel is not a waiver ofthe right to counsel."). While appellant insists the trial court had an obligation to inform appellant ofhis right to proceed pro se, appellant cites no authority for his position, nor are we aware ofany. We decline appellant's invitation to impose such a requirement upon the trial court. It is incumbent on the defendant to

5Appellant argument that the trial court erred in forcing him to trial with counsel in whom he lacked confidence is based solely on appellant's argument that he was denied his right to self-representation. Appellant does not contend the trial court improperly denied appellant's request for different counsel.

-7-affirmatively invoke his right to self-representation. Cf. Burgess v. State, 816 S.W.2d 424, 429 (Tex. Crim. App. 1991) (after expressing dissatisfaction with appointed counsel, defendant affirmatively invoked his right to self-representation and, after admonishment of risks of self-representation, was properly allowed to represent himself) We overrule appellants third, fourth, fifth, and sixth points of error.

We affirm the judgment of the trial court.

•«m >—^ I-

)HN OVARD JUSTICE Do Not Publish Tex. R. App. P. 47

Justice Moseley concurs w/o opinion

-8-

Fifth Court of Appeals Case Attorney Address List Page: 1 Date Printed: 05/25/2000

Case Number: 05-98-01113-CR Date Filed: 07/06/1998

Style: Williams, Thomas Wayne v.

The State of Texas

Trial Judge: Warder, Janice Trial Court Reporter: Belton, Mary Trial Court: CRIMINAL DISTRICT COURT # 1 Trial County: DALLAS APP Sue Korioth ATT 011681975 P.O. Box 600103 Dallas, TX 75360-0103 Phone 214/384-3864 Fax / -

STA Anne Wetherholt ATT 021235300 Assistant Distrtict Attorney Frank Crowley Courts Building 133 North Industrial Blvd. LB 19 Dallas, TX 75207-4399 Phone 214/653-3642 Fax