                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-14-00054-CR

PLATO AUGUST SPLAWN, JR.,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 12th District Court
                              Walker County, Texas
                              Trial Court No. 25,790


                          MEMORANDUM OPINION


      In two issues, appellant, Plato August Splawn Jr., challenges his conviction for

attempted capital murder of multiple persons. See TEX. PENAL CODE ANN. § 15.01(a)

(West 2011). Specifically, Splawn contends that the trial court: (1) committed reversible

error by denying his Batson challenge as to Juror Number 7, see generally Batson v.

Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); and (2) erred by making a

deadly-weapon finding. We affirm.
                                    I.     BACKGROUND

       On February 21, 2012, Splawn was indicted for the offense of attempted capital

murder of multiple persons. The offense stems from an incident where Splawn shot his

estranged wife, Sandra, and killed his longtime friend and employee, Edwin Garcia, after

Splawn learned that Sandra and Edwin were having an affair.

       Pursuant to a plea bargain with the State, Splawn pleaded guilty to the charged

offense and elected for the jury to assess his punishment. After hearing testimony during

the punishment phase, the jury sentenced Splawn to life imprisonment in the Institutional

Division of the Texas Department of Criminal Justice. The trial court made a deadly-

weapon finding and certified Splawn’s right to appeal the imposed sentence only.

Thereafter, Splawn filed a motion for new trial and a motion in arrest of judgment. Both

motions were overruled by operation of law. See TEX. R. APP. P. 21.8(a), (c). This appeal

followed.

                            II.    SPLAWN’S BATSON CHALLENGE

       In his first issue, Splawn contends that the trial court erred in denying his Batson

challenge to the State’s use of a peremptory strike against Juror Number 7.

A.     Applicable Law

       In Batson, the United States Supreme Court held that, while a prosecutor ordinarily

may exercise peremptory strikes for any reason related to his views concerning the

outcome of the trial, “the Equal Protection Clause forbids the prosecutor to challenge


Splawn v. State                                                                      Page 2
potential jurors on account of their race.” 476 U.S. at 89, 106 S. Ct. at 1719. A Batson

challenge to a peremptory strike consists of three steps: (1) the opponent of the strike

must establish a prima facie showing of racial discrimination; (2) the proponent of the

strike must articulate a race-neutral explanation; and (3) the trial court must decide

whether the opponent has proved purposeful racial discrimination. See Purkett v. Elem,

514 U.S. 765, 767-68, 115 S. Ct. 1769, 1770-71, 131 L. Ed. 2d (1995); Young v. State, 283

S.W.3d 854, 866 (Tex. Crim. App. 2009).

       Once the State proffers race-neutral explanations for its peremptory strikes, the

burden is on the defendant to convince the trial court that the prosecution’s reasons were

not race-neutral. Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999). Thus, the burden

of production shifts from the defendant in step one to the State in step two; but the burden

of persuasion never shifts from the defendant. Id. The trial court’s ruling in the third

step must be sustained on appeal unless it is clearly erroneous. Grant v. State, 325 S.W.3d

655, 657 (Tex. Crim. App. 2010) (citing Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct.

1203, 1207-08, 170 L. Ed. 2d 175 (2008)). “Because the trial court’s ruling requires an

evaluation of the credibility and demeanor of prosecutors and venire members, and

because this evaluation lies peculiarly within the trial court’s province, we defer to the

trial court in the absence of exceptional circumstances.” Id.; see Watkins v. State, 245

S.W.3d 444, 448 (Tex. Crim. App. 2008) (“[A] reviewing court should examine the trial

court’s conclusion that a facially race-neutral explanation for a peremptory challenge is


Splawn v. State                                                                       Page 3
genuine, rather than a pretext, with great deference, reversing only when the conclusion

is, in the view of the record as a whole, clearly erroneous.”).

B.     Discussion

       During voir dire, Splawn objected to the State’s exercise of peremptory strikes on

Juror Numbers 6, 7, 13, 18, 19, and 27; however, on appeal, Splawn focuses his first issue

on Juror Number 7, who is an African-American male named Malcolm Corby. At trial,

Splawn contended that the State exercised its peremptory strike on Juror Number 7

“based upon race and gender,” which, as Splawn argued, violated his “rights under the

purview of Batson versus Kentucky under the equal protection clause of the Fourteenth

Amendment to the United States Constitution.” In response to Splawn’s contention, the

State provided the following explanation for the strike: “Mr. Corby was called up earlier

on, your Honor. He had knowledge of the case and had read about the case in the

newspaper and he also believed that the relationship of the parties would be relevant to

his punishment decision.”       The trial court subsequently denied Splawn’s Batson

challenge.

       Here, Splawn made a prima facie showing that the State’s strike may have been

racially motivated. However, the State responded to Splawn’s Batson challenge with a

race-neutral reason for using a preemptory strike on Juror Number 7—knowledge of the

case and possible bias regarding the relationship of the parties and the punishment

decision. Splawn was unable to refute the prosecution’s explanation or demonstrate that


Splawn v. State                                                                     Page 4
the State’s explanation was merely a pretext for discrimination.1 See Williams v. State, 301

S.W.3d 675, 688 (Tex. Crim. App. 2009); see also Ford, 1 S.W.3d at 693. Therefore, according

great deference to the trial court’s denial of Splawn’s Batson challenge, we cannot say that,

based on our review of the record, the trial court’s ruling is clearly erroneous. See Snyder,

552 U.S. at 477, 128 S. Ct. 1207-08; Grant, 325 S.W.3d at 657; Watkins, 245 S.W.3d at 448; see

also Landrum v. State, No. 10-13-00281-CR, 2014 Tex. App. LEXIS 10194, at *4 (Tex. App.—

Waco Sept. 11, 2014, pet. ref’d) (mem. op., not designated for publication). We overrule

Splawn’s first issue.

                                    III.    DEADLY-WEAPON FINDING

        In his second issue, Splawn contends that the trial court erred in making a deadly-

weapon finding because no such formal finding was made by the jury.

        A trial court must enter a deadly-weapon finding in the judgment if the trier of

fact affirmatively finds that the defendant used or exhibited a deadly weapon during the

commission of a felony offense or during immediate flight therefrom. TEX. CODE CRIM.

PROC. ANN. art. 42.12, § 3g(a)(2) (West Supp. 2014); see Polk v. State, 693 S.W.2d 391, 394

(Tex. Crim. App. 1985). “On an affirmative finding that the deadly weapon was a firearm,

the court shall enter that finding in its judgment.” TEX. CODE CRIM. PROC. ANN. art. 42.12,



        1 In response to the State’s contention, Splawn did argue that: “[E]specially with regard to Juror
No. 7, other jurors had indicated that they had read something about this case and the State didn’t exercise
peremptory challenges on them, so we would reurge our objection.” However, Splawn did not address
the State’s contention that Juror Number 7 was possibly biased with respect to the relationship of the parties
and the punishment decision.

Splawn v. State                                                                                        Page 5
§ 3g(a)(2). An affirmative finding by the factfinder is required; an implied finding will

not support the entry of a deadly-weapon finding. Sanders v. State, 25 S.W.3d 854, 856

(Tex. App.—Houston [14th Dist.] 2000, pet. dism’d); see Polk, 693 S.W.2d at 394.

       Since Splawn was tried by a jury, the trial court had no authority to make an

independent, affirmative deadly-weapon finding. See Sanders, 25 S.W.3d at 856 (citing

Easterling v. State, 710 S.W.2d 569, 581 (Tex. Crim. App. 1986)). However, a trial court is

authorized to make an affirmative deadly-weapon finding in the following three

situations: where the jury has (1) found guilt as alleged in the indictment and the deadly

weapon has been specifically plead as such using “deadly weapon” nomenclature in the

indictment; (2) found guilt as alleged in the indictment but, though not specifically plead

as a deadly weapon, the weapon plead is per se a deadly weapon; or (3) affirmatively

answered a special issue on deadly weapon use. Id. (citing Davis v. State, 897 S.W.2d 791,

793-94 (Tex. Crim. App. 1995); Polk, 693 S.W.2d at 396).

       In the instant case, the indictment alleged the following:

       [T]hat on or about the 6th day of December, 2011, and anterior to the
       presentment of this indictment, in the County and State aforesaid PLATO
       AUGUST SPLAWN, JR. did then and there, with specific intent to commit
       the offense of capital murder of Sandra Splawn, do an act, to-wit: cause the
       death of Edwin Garcia and then shoot Sandra Splawn with a firearm, which
       amounted to more than mere preparation that tended but failed to effect
       the commission of the offense intended . . . .

(Emphasis added). Splawn pleaded guilty to the charged offense and elected to have the

jury assess his punishment. The State concedes that the punishment charge did not


Splawn v. State                                                                       Page 6
contain the phrase “as charged in the indictment,” and the record does not reflect that the

punishment charge included a special deadly-weapon issue; however, the punishment

charge did state the following: “You have found the defendant, PLATO AUGUST

SPLAWN, JR., guilty of the offense of ATTEMPTED CAPITAL MURDER.”

       The statutory definition of “deadly weapon” includes “a firearm” or “anything

that in the manner of its use . . . is capable of causing death . . . .” TEX. PENAL CODE ANN.

§ 1.07(a)(17) (West Supp. 2014). And as mentioned earlier, the indictment alleged that

Splawn caused the death of Edwin and shot Sandra with a firearm—an allegation to

which Splawn pleaded guilty. See id.; see also Drichas v. State, 175 S.W.3d 795, 798 (Tex.

Crim. App. 2005) (“To hold evidence legally sufficient to sustain a deadly weapon

finding, the evidence must demonstrate that: (1) the object meets the statutory definition

of a dangerous weapon; (2) the deadly weapon was used or exhibited during the

transaction from which the felony conviction was obtained; and (3) that other people

were put in actual danger.” (internal citations & quotations omitted)). Furthermore, the

jury found Splawn guilty of the charged offense.

       Having found Splawn guilty of the charged offense of attempted capital murder,

the jury necessarily found that Splawn used something that in the manner of its use was

capable of causing—and did cause—death. See Crumpton v. State, 301 S.W.3d 663, 664

(Tex. Crim. App. 2009) (“Another reason is that a verdict of homicide is a finding that a

deadly weapon was used. . . . Having found the defendant guilty of homicide, the jury


Splawn v. State                                                                        Page 7
necessarily found that the defendant used something that in the manner of its use was

capable of causing—and did cause—death. Therefore the verdict was an adequate basis

for the trial court’s entry of the deadly-weapon finding in the judgment.”). Accordingly,

we conclude that the verdict was an adequate basis for the trial court’s entry of the

deadly-weapon finding in the judgment. See id. We overrule Splawn’s second issue.

                                    IV.     CONCLUSION

         Having overruled both of Splawn’s issues, we affirm the judgment of the trial

court.




                                               AL SCOGGINS
                                               Justice



Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed July 30, 2015
Do not publish
[CRPM]




Splawn v. State                                                                    Page 8
