      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-04-00618-CR



                                 Jason Levar Gibson, Appellant

                                                  v.

                                   The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
           NO. 3032574, HONORABLE FRED A. MOORE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found Jason Levar Gibson guilty of aggravated robbery and assessed sentence

at forty-two years in prison. Appellant contends that the trial court erred by permitting the State’s

racially motivated strike of a jury panelist, by failing to excuse for cause certain jurors and denying

appellant’s motion for additional peremptory strikes, by overruling his objection to the admission

of a suggestive photo array, by allowing hearsay, and by allowing conviction on uncorroborated

accomplice witness testimony. We affirm the judgment.

               Victim Mark Hesprich left the Landing Strip, a strip club, with an entertainer

acquaintance, Michelle West, and two unfamiliar men he had approached about acquiring cocaine.

The four took two cars to Hesprich’s home. The foursome consumed both cocaine and champagne.
Eventually, the two men robbed Hesprich at gunpoint, shot him, and fled after Hesprich escaped and

sought help from neighbors.

               Police lifted fingerprints from a bottle and a glass at Hesprich’s house. They also

took bullets lodged in the house’s walls and obtained descriptions of the assailants from Hesprich

and West. Hesprich described one suspect as a black male, approximately 6'3, 265 pounds, with a

heavy build. He described the other as a black male, approximately 6'5, 210 pounds, with a thin

build, short black hair, and a few gold teeth. Hesprich testified that he recalled the heavier man

wearing a red jacket. West described one of the attackers as a black male, 25 to 30 years old, heavy

build, short Afro, goatee, 6 foot, 230 pounds with a black and light blue jersey. The second suspect

was described as 25 to 30 years old, thin build, short hair, 6 foot 2, 175 pounds with a red jersey and

gold teeth. Appellant’s attorney indicated at trial that appellant was 6'4 and weighed 240 or 250

pounds.

               Employees at the Landing Strip were alerted to these descriptions. Seeing men who

resembled the description of the assailants, the employees obtained the license number of the

suspect’s vehicle. Police arrested the car’s owner, Hobert Robinson, who confessed and implicated

appellant. Both Hesprich and West picked Robinson out of a photo array without hesitation.

Hesprich chose appellant out of a second array without hesitation three days after the incident. West

narrowed the choice to appellant and a second man, but was unable to positively identify one as an

assailant.

               A fingerprint expert testified that she identified one fingerprint from the champagne

bottle as belonging to Robinson and three from the bottle belonging to appellant. The expert testified



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that, pursuant to policy, she did not list in her report the points of comparison that matched between

the latent fingerprints and appellant’s fingerprints. She was not asked and did not explain what

similarities persuaded her that the latent fingerprints were appellant’s fingerprints.

               The State charged appellant with two counts of aggravated robbery that were alternate

theories of the same offense. Both involved robbery and exhibition of a firearm, but count one

involved shooting Hesprich to effectuate the robbery while count two relied on placing Hesprich in

fear of imminent bodily injury and death. The jury convicted appellant of the first count and later

assessed sentence at forty-two years in prison.

               Appellant raises five issues on appeal. He complains that the State improperly struck

the only African-American within the “strike zone” and that the district court erred by denying his

motion for additional peremptory strikes. Appellant also complains that the court overruled his

objection to the admission of a suggestive photo array, admitted hearsay, and permitted a conviction

based on uncorroborated accomplice witness testimony.

               The State may not strike jury panelists in a purposefully and inappropriately

discriminatory manner. Tex. Code Crim. Proc. Ann. art. 35.261 (West 1989); Batson v. Kentucky,

476 U.S. 79, 88-89 (1986). The Batson challenge analysis has three steps. First, the defendant must

make a prima facie showing of relevant circumstances that raise an inference that the State made a

race-based strike against an eligible panelist. Mandujano v. State, 966 S.W.2d 816, 818 (Tex.

App.—Austin 1998, pet. ref’d). Next, the State must come forward with a race-neutral reason for

the strike that is clear, reasonably specific, and contains legitimate reasons for the strike related to

the case being tried. Id. If the State offers a race-neutral explanation, the burden returns to the



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defendant to persuade the trial court that the State’s purported reasons for its peremptory strike are

mere pretext. Id. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the

reason offered will be deemed race-neutral. Purkett v. Elem, 514 U.S. 765, 768 (1995). The focus

of appellant’s issue is whether the State’s explanation of its peremptory strike is pretext.

               When defense counsel asked if any of the panelists believed that race made a

difference in a trial, the challenged panelist said, “I do.” He then stated as follows:


       I have pretty much grown up in East Austin and so when I listen to people’s opinions
       about police officers, [they are] vastly different than mine. And I have been pulled
       over because I fitted so many descriptions of various individuals for situations. And
       so from my firsthand experiences, I’ve learned that officers don’t always tell the
       truth, from my experience. And so they are the ones that initially get you engaged
       in the criminal justice system and it’s based upon their abilities to make decisions.
       And once one gets in there, I think other people—their beliefs play a role in how they
       perceive the individual that’s on trial and what decisions to make about them.


The State exercised one of its peremptory strikes on this panelist, who was number two in the jury

array. He was the only African-American among the panelists in the strike zone—the subgroup of

the full panel that includes all persons who would be struck peremptorily and those chosen to serve

on the jury. (Two other African-American panelists were outside the strike zone.)

               After appellant objected that this strike was racially motivated, the assistant district

attorney said he struck the panelist


       because he indicated that he had a different view of police officers having grown up
       on the east side. And what else did he tell us? He also—there are some sort of
       personal things about him. He arrived late after the break. He was like 10 or 15
       minutes later than everybody else. And he knows somebody or knew somebody that
       worked at the Landing Strip.



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Defense counsel argued that striking the panelist because he grew up on the east side was “just

another way of saying that we struck him because he’s black.” The assistant district attorney

countered, “What he expressed to us was that he had a propensity to be more negative towards police

officers than other jurors and that that was—and his words, I believe were—because where he grew

up and experiences with police.”

                Although race underlay the panelist’s response to defense counsel’s question of

whether race had an effect on trials, the prosecutor said he struck the panelist for his negative

reaction to police officers. The panelist plainly stated his beliefs about the attitudes and actions of

police officers and other participants in the criminal justice system. Appellant asserts that the

panelist did not show bias and charges that one could conclude that “black males are automatically

targeted veniremembers if they come from East Austin, that there should never be any blacks from

East Austin because of their experiences, but especially no black males. . . . It was clearly the State’s

desire to imbue a police officer with instant credibility in the eyes of the jury and having a black

juror would thwart that objective!” However, the record does not support these contentions. There

is no showing that the State treated this panelist differently because of his race—for example, there

is no showing that the State declined to strike a panelist of another race with similar attitudes toward

police and the criminal justice system. Although the panelist’s statements do not necessarily show

bias against the State, no such showing is required for the exercise of peremptory strike. The State

offered a permissible, race-neutral explanation that was not rebutted. This record presents no error.

See Purkett, 514 U.S. at 768. We overrule point of error one.




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               Appellant complains that the district court erroneously denied his challenges for cause

of certain jury panelists. These denials became harmful when the court denied his request for three

additional peremptory strikes. On appeal, he asserts these denials forced him to accept two

objectionable jurors—panelists 3 and 14.1 The court of criminal appeals has outlined the means of

showing harmful error in the denial of challenges for cause:


       Harm from the erroneous denial of a defense challenge for cause occurs (1) when a
       defendant exercises a peremptory challenge on a veniremember whom the trial court
       erroneously failed to excuse for cause at the defendant’s request, (2) the defendant
       uses all of his statutorily allotted peremptory challenges, and (3) the defendant was
       denied a request for an additional peremptory challenge which he claims he would
       use on another veniremember whom the defendant identifies as “objectionable” and
       who actually sits on the jury.


Escamilla v. State, 143 S.W.3d 814, 821 (Tex. Crim. App. 2004).

               Appellant challenged for cause panelists 1, 8, 9, 13, 19, 23, 25, 26, 31, 38, 39, 40, 45,

and 51. The court struck panelists 8, 9, 13, 38, 45, and 51 for cause, and excused some panelists for

other reasons. Panelists 39 and 40 were outside the strike zone. Appellant then exercised

peremptory strikes on panelists 1, 6, 15, 19, 22, 23, 25, 26, 27, and 31. Having exhausted his

peremptory strikes, appellant requested three more. The court denied the request. Appellant

complained that he was forced to accept as jurors panelists 3 and 14. Appellant stated that panelist




       1
          Appellant characterizes events differently in his brief. He contends that the court’s denial
of his challenges for cause of panelists 3 and 14 forced him to use peremptory strikes against
panelists 19 and 23. The record does not show that he challenged panelists 3 or 14 for cause (nor
does he explain why a denial of such challenges would force him to exercise peremptory strikes
against other panelists). Appellant did not preserve the errors as articulated in his brief. See Tex.
R. App. P. 33.1.

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3 was objectionable because he had been a victim of a burglary and that he would have used a

peremptory strike on panelist 14 for some unspecified reason.

               Appellant has not demonstrated reversible error because he has not shown that the

district court erroneously failed to excuse panelists for cause. See Escamilla, 143 S.W.3d at 821.

In his brief, appellant does not state why any of the panelists he unsuccessfully challenged for cause

and on whom he used peremptory strikes should have been struck for cause. Appellant asserts that

panelist 3’s history as a burglary victim made him objectionable, but appellant did not challenge him

for cause at trial. At trial, when listing the panelists challenged for cause, appellant stated that he

challenged the list of panelists for “[a] variety of things.” When the panelists challenged for cause

returned for questioning, the court asked whether they would assess the credibility of a police officer

differently from any other witness. Only one panelist indicated that he would, and the court struck

him for cause. Appellant’s attorney said, “Judge, you understand that some of these other people

I had other issues with, but I know you took notes. . . . I will just articulate them. I’d be happy to

question them further if you want.” He asked no further questions and made no more mention of the

basis for any challenges for cause. The court then struck several panelists for cause and excused

others, and denied appellant’s request for additional peremptory strikes. Presented with no basis on

which to evaluate these challenges for cause, we find no error in their denial. We overrule point of

error two.

               Appellant contends that the district court erred by denying his objection to the

introduction of a suggestive photo array. He contends that the photo array was impermissibly

suggestive because appellant was the only subject wearing any jewelry, and his necklace was heavy,



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drawing even more attention. He points to evidence that Hesprich did not see him at the club or on

the drive home, and that, once home, Hesprich was intoxicated on champagne and cocaine.

               When challenging the admissibility of pretrial identifications, a defendant has the

burden to show, by clear and convincing evidence based on the totality of the circumstances, that the

pretrial identification procedure was impermissibly suggestive and that it created a substantial

likelihood of irreparable misidentification. Barley v. State, 906 S.W.2d 27, 32-34 (Tex. Crim. App.

1995) (citing Simmons v. United States, 390 U.S. 377 (1968)). Only if the pretrial identification

procedure proves impermissibly suggestive do we examine whether it tainted the identification. Id.

at 34 (citing Neil v. Biggers, 409 U.S. 188 (1972)). Factors in assessing any improper effect on the

identification include: (1) the witness’s opportunity to view the criminal act, (2) the witness’s degree

of attention, (3) the accuracy of the suspect’s description, (4) the level of certainty at the time of

confrontation, and (5) the time between the crime and confrontation. Id. at 34-35.

               Austin Police Detective Michelle Woodfin testified that she prepared and presented

the array to be non-suggestive of the identity of the suspect. She said that the other photographs

were chosen by computer based on her inputs of race, gender, and age range. She testified that

another officer altered the other photos to equalize the size of the individual in the photos. Both the

original photos and the array presented to Hesprich were admitted. Woodfin testified that the other

members of the array were males of the same race with the same facial hair, facial characteristics,

and hair color, all dressed in civilian clothes against a neutral background. She testified that others

had some distinct shirts—one red, one with a large white emblem, one with the letters “AWAY”

across it—and disagreed that the necklace made appellant stand out. She testified that, when



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showing the array to Hesprich, she told him that she did not know if the suspect was included. She

also testified that no other officer suggested which photo to choose.

               Hesprich agreed that the photos were presented to him in a neutral manner. He

disagreed that appellant’s photo was suggestive. He testified that he did not notice appellant’s

necklace until defense counsel pointed it out. (The chain is tucked into appellant’s t-shirt and is

visible only on the sides of his neck.) Hesprich testified that he chose appellant based on his face.

Hesprich testified that he had the opportunity to observe the men while they were in his kitchen, and

particularly when appellant threatened him with a gun. He especially remembered appellant’s eyes.

Hesprich said he readily identified appellant from the photo array three days after he was shot.

               After reviewing the testimony and the photo array, we conclude that appellant has not

shown error. The necklace is not suggestive. It is tucked away, has at most a framing effect similar

to two other subjects’ undershirts protruding from sweatshirts, and was not a factor in the

identification, according to Hesprich. There was no other evidence that the array or its presentation

was suggestive. Nevertheless, we have examined the Biggers factors and find that Hesprich’s

observation of his assailant—particularly when held at gunpoint—and his quick and certain

identification of appellant three days after the robbery provide confidence in the integrity of the

identification. Appellant makes much of disparities between appellant’s description and his actual

height and weight. We conclude that a difference of one inch (appellant described as 6'4 and

appellant’s attorney asserted he was 6'3) and fifteen to twenty-five pounds (appellant described as

265 and appellant’s attorney asserted he was 240 or 250 pounds) is not a disparity that shows any




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improper suggestiveness in the photo array caused a substantial likelihood of irreparable

misidentification. We overrule point of error three.

               Appellant complains of the introduction of testimony that implied that Robinson

made an out-of-court statement implicating appellant. Appellant also complains of Detective

Woodfin’s testimony that, after Robinson was arrested and interrogated, police then arrested

appellant. Although appellant did not object at trial, he contends that the admission of testimony

implying an out-of-court statement by Robinson presents fundamental error. He argues that it denied

him his constitutional right to confront Robinson as a witness against him.

               Appellant waived his hearsay and confrontation clause concerns by failing to object

to the evidence at trial. See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000); see also

Moore v. State, 935 S.W.2d 124, 130 (Tex. Crim. App. 1996). Appellant’s attempt to couch the

asserted violation in terms of a Crawford-style confrontation clause issue does not relieve him from

the obligation to object at trial. Bunton v. State, 136 S.W.3d 355, 368-69 (Tex. App.—Austin 2004,

pet. ref’d) (objection to hearsay necessary to preserve error under Crawford v. Washington, 541 U.S.

36 (2004)); see also Oveal v. State, 164 S.W.3d 735, 739 n.2 (Tex. App.—Houston [14th Dist.]

2005, pet. ref’d); Courson v. State, 160 S.W.3d 125, 129 (Tex. App.—Fort Worth 2005, no pet.).

In the case appellant cites for the exclusion of indirect or backdoor hearsay, the defendant made a

hearsay objection. See Schaffer v. State, 777 S.W.2d 111, 113 (Tex. Crim. App. 1989). The court

describes the error in admitting indirect hearsay over objection as affecting “substantial” rights and

meriting reversal, but not as “fundamental” error allowing reversal without objection at trial. See

id. at 115. Because there was an objection at trial, the Schaffer court did not have to determine



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whether the admission of this evidence was fundamental error. While Blue v. State describes

fundamental error in a trial judge’s comments about his desire for a defendant to plead guilty, that

case does not hold that admission of indirect hearsay without objection constitutes fundamental

error. See 41 S.W.3d 129, 130-32 (Tex. Crim. App. 2000). If the admission of classic hearsay in

violation of the confrontation clause without objection does not constitute fundamental error, see

Wright, 28 S.W.3d at 536, we are not persuaded that admission of indirect hearsay without objection

constitutes fundamental error.

               Even if the court had erroneously admitted the evidence over objection, the admission

did not affect a substantial right of appellant. Such an error must have a substantial and injurious

effect or influence in determining the jury’s verdict. Ford v. State, 73 S.W.3d 923, 925 (Tex. Crim.

App. 2002). A substantial right is not affected if, after examining the record as a whole, we have fair

assurance that the error did not influence the jury, or had but a slight effect. Id. Hesprich’s

unequivocal out-of-court identification, his in-court identification of appellant, and his opportunity

to observe defendant before the robbery assure us that an oblique indication that Robinson’s

statements led police to include appellant’s photo in an array submitted to Hesprich did not have a

substantial and injurious effect in determining the jury’s verdict. We overrule point of error four.

               Appellant contends that a conviction cannot be had upon uncorroborated accomplice

testimony. “A conviction cannot be had upon the testimony of an accomplice unless corroborated

by other evidence tending to connect the defendant with the offense committed; and the

corroboration is not sufficient if it merely shows the commission of the offense.” Tex. Code Crim.

Proc. Ann. art. 38.14 (West 2005).



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               A critical flaw in this argument is that Robinson, appellant’s accomplice, did not

testify at trial. Only in-court accomplice testimony is subject to the article 38.14 requirement of

corroboration. Bingham v. State, 913 S.W.2d 208, 211 (Tex. Crim. App. 1995) (op. on reh’g);

Maynard v. State, 166 S.W.3d 403, 410 (Tex. App.—Austin 2005, pet. ref’d).

               Even if the indirect hearsay testimony described above were somehow to trigger the

accomplice testimony rule, appellant has not shown error. To weigh the sufficiency of corroborative

evidence, we eliminate from consideration the accomplice witness testimony and then examine the

remaining testimony and evidence to ascertain if there is evidence which tends to connect the

accused with the commission of the offense. Hernandez v. State, 939 S.W.2d 173, 176 (Tex. Crim.

App. 1997). Non-accomplice evidence need not be strong enough to establish the defendant’s guilt

beyond a reasonable doubt, nor must it directly link the defendant to the commission of the offense.

Id. Hesprich’s identification of appellant and testimony that appellant held a gun to Hesprich’s head

and forced him to relinquish his watch, wallet, and cell phone tend to connect appellant to the

commission of the aggravated robbery. We overrule point of error five.

               We overrule all of appellant’s points of error and affirm the judgment.




                                              G. Alan Waldrop, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Affirmed

Filed: May 18, 2006

Do Not Publish

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