James Hubert Caudill v. The State of Texas--Appeal from Criminal District Court No. 4 of Dallas County

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Laws-info.com » Cases » Texas » 11th District Court of Appeals » 2003 » James Hubert Caudill v. The State of Texas--Appeal from Criminal District Court No. 4 of Dallas County

State: Texas

Court: Texas Northern District Court

Docket No: 11-02-00214-CR

Case Date: 01/16/2003

Plaintiff: Rodrigo James Vega

Defendant: The State of Texas--Appeal from 114th District Court of Smith County

Preview:Earnest Ray Walker v. The State of Texas--Appeal
from 13th District Court of Navarro County
MAJORITY | MAJORITY
IN THE
TENTH COURT OF APPEALS
No. 10-93-006-CR
EARNEST RAY WALKER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court # 24,211
O P I N I O N
Earnest Ray Walker was convicted of attempted sexual assault and sentenced to life imprisonment. On appeal, Walker
raises three points of error. First, that the trial court erred in denying Walker's Batson motion; second, that the State
made an improper jury argument; and finally, that Walker's request for a directed verdict on the basis of insufficient
evidence was improperly denied.
Walker's first point of error is a Batson challenge. The party raising a Batson challenge must first make a prima facie
showing that the opposing party has exercised its preemptory strikes with a discriminatory purpose. // Batson, 106
S.Ct. at 1723; see also Emerson v. State, 851 S.W.2d 269, 271 (Tex. Crim. App. 1993); Williams v. State, 804 S.W.2d
95, 101 (Tex. Crim. App. 1991), cert. denied, 111 S.Ct. 2875, 115 L.Ed.2d 1038 (1991). The burden then shifts,
requiring the non-movant to articulate neutral explanations sufficient to overcome the inference of discrimination.
Emerson, 851 S.W.2d at 271-72. The trial court may not merely accept the specific reasons given at face value, but
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must determine, considering the demeanor and credibility of the challenged party, whether the facially neutral
explanations are pretextual. Id. at 273.
Our review of the trial court's decision on the Batson issue is based on the "clear error" standard. Vargas v. State, 838
S.W.2d 552, 554 (Tex. Crim. App. 1993) (citing Hernandez v. State, U.S. , 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)).
We apply this standard by reviewing the record, including the voir dire, the racial makeup of the venire, the
prosecutor's neutral explanations, and the appellant's rebuttal and impeaching evidence. Id. Although we may consider
the objective factors discussed in Keeton v. State, 749 S.W.2d 861, 868 (Tex. Crim. App. 1988), the overriding
standard is still whether the trial court's decision is supported by the record so that it is not clearly erroneous. Vargas,
838 S.W.2d at 554. A finding is "clearly erroneous" when, although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Whitsey v. State,
796 S.W.2d 707, 721 (Tex. Crim. App. 1990) (on rehearing) (citing United States v. United States Gypsum Co., 333
U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)).
The case at bar is similar to Vargas. In that case the appellant argued that the prosecutor asserted a group bias without
showing that the group trait applied to the challenged veniremember; that there was no examination or perfunctory
examination of the challenged veniremembers; and that the given explanation had no rational relationship to the case
on trial. Vargas, 838 S.W.2d at 554. Further, the appellant did not impeach the prosecutor to show that prosecutor's
assumptions regarding the challenged veniremembers would not favor the state in any given case. Id.
Walker made out his prima facie case by showing that the individual circumstances surrounding the State's preemptory
strikes raised an inference of discriminatory purpose. The State exercised six of its ten strikes against black
veniremembers, leaving only one black veniremember on the jury. The prosecutor then testified, under oath, regarding
his personal knowledge of each of the challenged veniremembers. In particular, Walker argues that the prosecutor's
race-neutral explanations for striking veniremembers Beasley and Hall were pretextual.
The non-discriminatory reasons offered by the prosecutor were that both Beasley and Hall were obese and that both
had relatives prosecuted by his office. The prosecutor testified that all of the books he had read on the subject indicated
that jurors who are obese tend to be more lenient on punishment. The prosecutor also testified that he had prosecuted
several of Beasley's relatives and that Hall had a relative who was prosecuted for theft.
Although these reasons would seem stronger had the prosecutor individually questioned all of the stricken
veniremembers, the reasons are not rendered impermissible simply because he did not do so. See id. at 556. Defense
counsel did not impeach the prosecutor on any of his reasons, even when the prosecutor indicated that there was no
disparate treatment among the veniremembers. The prosecutor testified that he did not ask individual questions of any
veniremembers. He also denied defense counsel's suggestion that he checked only the black veniremembers to
determine whether they had relatives with cases pending in his office. Finally, the prosecutor testified that he had
marked a white veniremember on his list as one he would strike because she was obese, but that she had been
challenged for cause by the defendant. The trial court implicitly found the prosecutor's explanations to be non-
discriminatory, and there is nothing before us to suggest otherwise. See id.
We note that the court in Emerson found that, because the record reflected that the prosecutor did not strike white
veniremembers with the same or similar characteristics relied upon in striking the minority veniremembers, the
prosecutor's race-neutral explanations were pretextual and the trial court's findings were not supported by the record.
851 S.W.2d at 274. However, unlike the record in Emerson, the appellant in this case does not complain that the
classifications used by the prosecutor to strike Beasley and Hall were not uniformly applied to the non-black
veniremembers. See id. Because there is nothing in the record to show that the prosecutor's stated reasons were
pretextual, we overrule point of error one.
Walker's second point of error regards an improper jury argument. The State's arguments contain remarks concerning
parole laws that are ordinarily not admissible. They are admissible, however, when they are in answer to comments
previously made by opposing counsel. See Franklin v. State, 693 S.W.2d 420, 429 (Tex. Crim. App. 1985), cert.
denied, 106 S.Ct. 1238 (1985). That is exactly the situation in this case. In closing arguments, defense counsel
mentioned the length of the prospective sentence for his client. As a result, the State was entitled to make explanatory
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remarks concerning the inaccuracy of the defense attorney's remarks. We overrule Walker's second point of error.
Walker's third point of error raises a sufficiency-of-the-evidence question. Specifically, he argues that the evidence is
insufficient to support his conviction for attempted sexual assault. The appropriate standard of review requires us, after
viewing the evidence in a light most favorable to the verdict, to determine whether a rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. See Turner v. State, 805 S.W.2d 423, 427 (Tex.
Crim. App. 1991), cert. denied, 112 S.Ct. 202 (1991). The fact-finder is best positioned to gage the credibility of
witnesses and to weigh testimony accordingly. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1985), cert.
denied, 474 U.S. 865 (1985). Furthermore, the appellate court should not place itself in the position of a "thirteenth
juror." Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).
Walker concedes that an assault occurred, but questions the sufficiency of the evidence to support his conviction for
attempted sexual assault. The elements of sexual assault are set out in section 22.011 of the Texas Penal Code. Tex.
Penal Code Ann. 22.011 (Vernon 1989). With regard to an attempted offense, the record need only reflect sufficient
evidence that actions of a defendant constituted more than mere preparation. Gibbons v. State, 634 S.W.2d 700, 706
(Tex. Crim. App. 1982).
The complainant testified that Walker ripped the front of her dress open immediately before he began to beat and drag
her. She also testified that Walker was grabbing her legs and pantyhose while dragging her into a nearby alley. Finally,
she testified that Walker touched her in "a personal place" when he grabbed her dress. There was no evidence that
Walker exposed himself to the victim, but sexual assault does not require exposure of the assailant's genitalia. See
Johnson v. State, 633 S.W.2d 888, 889 (Tex. Crim. App. 1982). All testimony was assigned due weight by the jury,
which found that Walker was guilty of attempted sexual assault. We find that, when reviewing all the evidence in a
light most favorable to the verdict, a rational jury could find the elements of attempted sexual assault beyond a
reasonable doubt. We overrule Walker's third point of error.
We affirm the judgment.
BOBBY L. CUMMINGS
Justice
Before Chief Justice Thomas,
Justice Cummings, and
Justice Vance
Affirmed
(Justice Vance dissenting)
Opinion delivered and filed July 28, 1993
Do not publish Released for publication August 18, 1993. See Tex. R. App. P. 90(c).
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