On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 770224
Panel consists of Justices Mirabal, Taft, and Price. *fn1
The opinion of the court was delivered by: Tim Taft Justice
Appellant, Roy Neal Shelling, Jr., was convicted by a jury of murder. The jury assessed punishment at confinement for life. Appellant presents five issues: four issues concern the State's references to the O. J. Simpson trial, and one issue concerns the trial court's permitting the State's use of peremptory strikes against minority venirepersons who agreed with the verdict in the Simpson trial. We affirm.
Appellant and Lisa Robinson were married in 1994 and moved to the Houston area where they became teachers in the same school district. Appellant was a jealous, possessive husband who recorded his wife's conversations, went through her purse, and accused her of unfaithfulness. On one occasion in 1996, appellant repeatedly punched Robinson for working late. Robinson moved out more than once, but always returned.
In March 1997, appellant confronted Percie Melton, a female teacher with whom Robinson worked, to confirm that it was Melton, and not someone else, who gave Robinson perfume on her birthday. Melton had to show appellant the receipt. In June 1997, appellant moved out and returned to his family's home in Louisiana. Robinson met the victim, Carlos McMahon, the following September when she bought eyeglasses at EyeMasters where McMahon worked. They became friends and had frequent phone conversations.
Appellant arrived unexpectedly at Robinson's apartment on the evening of October 7, 1997. She allowed him to stay overnight, but they did not sleep together. Appellant remained in the apartment the next day when Robinson left for work.
Appellant walked into Robinson's classroom that morning wearing jeans, a t-shirt, and house slippers. He was very angry. He had a tape recorder and played a message left on Robinson's answering machine by McMahon (whom appellant did not know), but which appellant believed had been left by a friend of theirs named Shawn Crutcher. Appellant said, "So you're f___ing Shawn." Appellant then went into the hall and verbally assaulted Melton, who was talking with a counselor. He played the tape for Melton, and said, "Who the f___ is this?" Later that day, the Nissan Pathfinder Robinson drove to work was missing from the school parking lot; in its place was appellant's vehicle, a Maxima, with the tires slashed.
Appellant phoned Crutcher twice that day. He played the tape, accused Crutcher of having an affair with Robinson, and threatened to kill him.
Appellant persuaded Robinson to allow him to accompany her to Chicago to visit her family for the Thanksgiving holiday. While in Chicago, Robinson told appellant she was filing for divorce. Appellant said that, if he ever caught her with anyone else, "there would be drama." Robinson phoned McMahon from Chicago twice, and, during one of those conversations, asked for his address.
Appellant and Robinson returned to Houston from Chicago on Friday, November 28, 1997. The following Sunday, November 30, McMahon and Robinson spoke on the phone twice and made plans to have dinner together that night. Robinson was to meet McMahon at his apartment after he got off work at 6:00 p.m. Between 4:00 and 5:00 p.m., appellant left in the Pathfinder, ostensibly to return to Louisiana.
However, when Robinson drove through the gate and into the parking lot of McMahon's apartment complex, she met appellant driving the Pathfinder. According to Robinson, the look on appellant's face was "the same look that he had when he walked in [her] classroom." They made eye contact, and Robinson was so terrified that she turned around and immediately left. She did not see where appellant went. That evening, McMahon's next door neighbor, Carol Jackson, heard loud noises from his apartment. It sounded like someone was knocking down the door, then like someone was hitting the common wall between the two apartments. Finally, Jackson heard a moan. Robinson phoned McMahon's apartment all night, but did not get an answer.
The next day, Robinson and Melton went to McMahon's apartment. There was no response when they knocked, but they found the door unlocked. Inside they made the gruesome discovery of McMahon's body, and called police.
Sgt. Eric Mehl of the Houston Police Department investigated the case. He found six fired .380 caliber cartridge casings in the living room, two fired bullets in the dining room, and one in the freezer. According to Mehl, the killer was there simply to kill, robbery not being a motive. McMahon's wallet was in plain view and undisturbed, as were stereo equipment and other items. In Mehl's opinion, this was an "overkill" murder. McMahon had been shot five times, stabbed 11 times, and his throat had been cut, severing the jugular vein and slashing the carotid artery. Appellant's fingerprint was found on a plastic compact disk case on the kitchen counter. Robinson testified that she had never seen that compact disk before this trial.
Robinson also testified that she and appellant were living together during the broadcasts of the O. J. Simpson trial, and that appellant watched the trial to the point that it sometimes interfered with his work. She further stated that appellant believed Simpson was guilty, but got away with murder. Voir Dire
In issue one, appellant contends the trial court erred in overruling his objections to the prosecutor's references to the O.J. Simpson trial during voir dire. In issue five, he contends the trial court erred in overruling his Batson *fn2 objection to the State's use of its peremptory challenges against minority venirepersons based on their agreement with the Simpson verdict.
A. References to O.J. Simpson Trial
In his first issue presented, appellant asks whether the trial court erred in overruling appellant's objection to references to the O.J. Simpson trial during voir dire. Appellant claims he objected to any reference to the O.J. Simpson verdict, and the trial court overruled the objection. *fn3
When the prosecutor stated he would like to know each juror's opinion on the O.J. verdict, the record actually reflects the following objection, which interrupted the prosecutor's explanation as to what he was not going to ask about: "I'm going to object to the reference to the O.J. verdict as it relates to homicide cases as it indirectly relates to this defendant, myself or co-counsel." The trial court overruled appellant's objection. When the prosecutor resumed his explanation, he stated that he was not interested in the politics or media spectacle, but in the jurors' thoughts about what they understood the evidence to be, whether they thought the verdict was right or wrong, or whether they just did not follow it. Appellant then obtained a running objection to any question regarding the O.J. verdict. Thus, appellant's stated basis for his objection to any question regarding the O.J. verdict was limited to its relation to homicide cases directly and appellant and his counsel indirectly.
Appellant's objection at trial does not comport with his argument on appeal. Appellant does not state a separate basis for his first issue presented for review, but rolls four of his issues together. His global complaint on appeal is to prosecutorial misconduct that violated appellant's right to due process because appellant was entitled to be tried based on the allegations in the indictment, not allegations against O.J. Simpson. Appellant's most important reason why any comparison of appellant to O.J. Simpson was improper is because the Simpson case was racially polarizing, with the vast majority of African- Americans believing the verdict was proper and an equally vast majority of whites believing Simpson was improperly acquitted. There was no mention of such racial polarization in appellant's trial objection to the prosecutor's questions during jury selection. *fn4
Under these conditions, appellant's trial objection does not comport with his argument on appeal in regard to the prosecutor's questions during jury selection. Therefore, appellant did not preserve his first issue. *fn5 See Coffey v. State, 796 S.W.2d 175, 179 (Tex. Crim. App. 1990) (a point of error that does not comport with the trial objection presents nothing for review).
In issue five, appellant asks whether the trial court erred in overruling his objection to the State's use of peremptory challenges on minority veniremembers based on their belief that the O. J. Simpson verdict was correct. He argues that agreement or disagreement with the outcome of the Simpson case is not racially neutral.
The State does not dispute that appellant established a prima facie case under Batson. 476 U.S. at 96, 106 S. Ct. at 1723. The burden of production then shifted to the State to come forward with race-neutral explanations. Purkett v. Elem, 514 U.S. 765, 767-68, 115 S. Ct. 1769, 1770-71 (1995); Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999).
A reason 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). If a race-neutral reason is given, the trial judge must then decide whether the opponent of the strike has proved purposeful racial discrimination. Purkett, 514 U.S. at 767-68, 115 S. Ct. at 1770-71. The burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. Id.; Ford, 1 S.W.3d at 693.
In examining a Batson claim on appellate review, the reviewing court must determine whether the trial judge's findings were clearly erroneous by examining the evidence in the light most favorable to the trial judge's ruling. Pondexter v. State, 942 S.W.2d 577, 581 (Tex. Crim. App. 1996). We must accord great deference to the trial court who was present to assess the credibility of the prosecutor and his explanations. Hughes v. State, 962 S.W.2d 689, 693 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd).
After the jurors' names were announced by the clerk, appellant's counsel objected to the State's use of peremptory challenges against venirepersons numbers 5, 14, 32, and 44 on the basis of Batson. The prosecutor began his explanation by pointing out that the victim and virtually all State's witnesses in this case are black. Next, the prosecutor mentioned his conversation with appellant's wife about appellant's fascination with the O.J. Simpson case, how he took off from work to watch it and commented that it was unbelievable that O.J. was able to beat the case when it was so obvious. The prosecutor also pointed out similarities between this case and the O.J. Simpson case.
The prosecutor then gave the following explanations for striking the four veniremembers:
Veniremember No. 5, Libbie Eckroth
As to Eckroth, she was fast asleep the whole time you were talking. She indicated she couldn't see the board, even though she was in the first row and, most important, indicated that the O. J. verdict was fair, indicating that similar overwhelming scientific evidence or circumstantial evidence exists, she apparently believes that evidence is not enough to convict.
Veniremember No. 14, Deborah Quiller *fn6
Juror No. 14 - actually several reasons. First and foremost, I shared this information with Mr. Jones [defense counsel]. I ran a criminal history on at least 40 people on the panel. I believe I have identified strike [sic-should be "five"] people. I believe four of those people are white. I didn't pay attention to their race. I struck the other four people because of prior criminal history and/or convictions. *fn7 Ms. Quiller, there has been a conviction or had been handled before for the offense of hot checks. She works for Goodwill. She had her hands folded when she spoke with me. She was nodding vigorously with Mr. Jones. And another thing, when Mr. Jones asked a question, before he got to her row as to whether or not people would believe police officers would tell the truth, before she was even asked, she was shaking her head side to side no before she was even asked that question.
Veniremember No. 32, Earl Jolivett
As to Juror No. 32, Earl Jolivett, he stated emphatically not only the verdict was fair, he said flat out O. J. Simpson was not guilty.
Veniremember No. 44, Robin Robinson
As to 44, she also indicated to me that O. J. Simpson was a fair verdict. I believe I struck all people black and white who indicated they thought the verdict was fair.
Appellant's counsel argued that the issue of the Simpson verdict allowed the prosecutor "to strike jurors along an ethnic line." However, the prosecutor countered that he peremptorily challenged venireperson number 18, Mark Jordan, a white male, who believed the Simpson verdict was accurate.
The record supports the prosecutor's statement about Jordan who said, "If I was on that jury, from what I understood, I wouldn't have found him [Simpson] guilty." The record also reflects that the prosecutor peremptorily struck veniremember number one, Belinda Pearce, who stated, "I thought with the evidence that was provided to the jury that it [the Simpson verdict] was adequate." The defense did not complain that the State's peremptory challenges of Jordan and Pearce were racially motivated. The record thus supports the prosecutor's statement that he struck all members of the venire, black and white, who indicated the Simpson verdict was fair.
During his argument on the Batson motion, defense counsel stated that the majority of the veniremembers either said they did not pay attention or they were uncertain. He also expressed surprise at the prosecutor's statements about appellant's fascination with O.J. Simpson's having gotten off, because this information had not been in the State's file. Explaining Ms. Quiller's shaking of her head, defense counsel said many folks were shaking their heads. In reference to Ms. Quiller's worthless check, defense counsel said it was a Class C misdemeanor that would not disqualify from jury service. Defense counsel also claimed that the prosecutor had not exercised peremptory strikes on white veniremembers who thought the jurors in the O.J. Simpson case had considered the evidence and whatever they decided was fine. The prosecutor took issue, stating that each and every veniremember who agreed with the O.J. Simpson verdict had been struck.
The trial court overruled the Batson objection, finding that the State's explanations were racially neutral.
We agree with the trial court that the prosecutor's explanations were racially neutral, and appellant's efforts to undermine them were not convincing. Under these circumstances, there should be no alternative but to uphold the trial court's exercise of discretion. The dissenting opinion would hold that asking prospective jurors their opinions of the O.J. Simpson verdict demonstrates per se the prosecutor's determination to remove all blacks from the jury because it is common knowledge that the Simpson trial had a polarizing effect on the American public. Disregarding the fact that the prosecutor struck anyone, black or white, who agreed with the Simpson verdict, the dissenting opinion would hold that the prosecutor engaged in racially discriminatory behavior.
The prosecutor may have been trying to gain an unfair advantage by trying to commit jurors to a set of facts based on the similarity of the O.J. Simpson murder case and this case. Nevertheless, that was neither the basis for appellant's objections at trial, nor does that indicate any improper racial motives on the part of the prosecutor. Indeed, the prosecutor pointed out that the victim and nearly all of the State's witnesses were black. What the prosecutor was apparently trying to do was to keep any prospective juror off the jury who would find appellant not guilty despite very strong circumstantial evidence similar to that in the O.J. Simpson case. What the prosecutor did may have been improper. See Atkins v. State, 951 S.W.2d 787, 789 (Tex. Crim. App. 1997) (it is improper to ask veniremembers if they could convict based on a hypothetical in an effort to commit the venire to particular circumstances). From this record, however, there is no showing that what the prosecutor did was racially motivated.
Therefore, we uphold the trial court's exercise of discretion in having believed the prosecutor's explanation that his peremptory strikes were not racially motivated. We overrule appellant's fifth issue.
Testimony of Lisa Robinson
In issue two, appellant contends the trial court erred in overruling his objection to the State's direct examination of his wife, Lisa Robinson, concerning appellant's interest in the O.J. Simpson trial. Appellant alleges that the State's references to the Simpson case amounted to prosecutorial misconduct.
Concerning the Simpson case, the State questioned Robinson as follows:
[Prosecutor]: I want to also go back in time as to when the O. J. Simpson trial was going on. Okay?
[Defense Counsel]: Judge, I would object and I would have a continuous objection. I would have an objection based on my previous motion. *fn8
The Court: Overruled. I'll give you a running objection.
[Defense Counsel]: No, sir. I want the Court to consider my previously filed motion - my motions I previously filed and make a ruling on my motions.
The Court: I overrule your motion.
[Prosecutor]: Just a few questions about that, okay?
[Prosecutor]: When the O. J. Simpson trial was going on, where were you and the defendant living?
[Defense Counsel]: May I take her on voir dire, Judge?
The Court: Counsel, you're going to get to ask her these on cross-examination. Is there some reason you need to voir dire at this time?
[Defense Counsel]: Yes, sir.
The Court: About where she was living on that date?
[Defense Counsel]: No, sir. I want to ask -
The Court: What [are] you going to voir dire on?
[Defense Counsel]: I'm going to ask specific questions about the O. J. Simpson case, her fantasy, if her response is based upon hearsay or her responses are based upon some personal knowledge.
The Court: That will be overruled.
[Defense Counsel]: Please note our objection.
[Prosecutor]: Were you living with the defendant when the O. J. Simpson criminal trial was going on?
[Prosecutor]: How much attention did the defendant pay to the O. J. Simpson criminal trial?
[Defense Counsel]: I object to that. That was a six-month trial, and I would want the questions to be more definite as to when. I object to any analysis as to any O. J. Simpson trial or any questions here or these questions that are so open- ended, runs broad spectrum of the phase of the trial.
[Prosecutor]: How much attention did he pay to it?
[Robinson]: He watched it constantly, day and night. He recorded it every day.
[Prosecutor]: Did he ever call in sick to watch it live?
[Defense Counsel]: I object to that as being leading.
The Court: Counsel, I was trying to hear his question and you objected before he finished and I couldn't hear it. What was the question?
[Prosecutor]: I'll rephrase the question. Did it ever interfere with the defendant's work schedule, his obsession with the trial?
[Defense Counsel]: I object to that. It assumes facts not in evidence. I object to the form of question interposing obsession. I object to her conclusion relative to whether or not it had any bearing on his work.
The Court: Counsel, she was married to him and she was with him. That's testimony. If she knows. You can answer that question.
[Defense Counsel]: I object to the form of the question.
The Court: Okay. Overruled. Overruled.
[Defense Counsel]: Counsel's ...