                                   NO. 07-10-0014-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL C

                                    MARCH 30, 2011

                          _____________________________

                             VINTON DERRICK CUMMINGS,

                                                                   Appellant
                                             v.

                                 THE STATE OF TEXAS,

                                                                   Appellee
                          _____________________________

      FROM THE CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY;

            NO. 1132330D; HONORABLE SHAREN WILSON, PRESIDING
                       _____________________________

                               Memorandum Opinion
                          _____________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

       Vinton Derrick Cummings was convicted of murdering his daughter’s boyfriend.

He raises four issues to challenge that conviction: 1) the State used a peremptory strike

on an African-American member of the jury panel in violation of the Fourteenth

Amendment, 2) the trial court erred in charging the jury on provocation as a limitation on

self-defense during the guilt/innocence phase, 3) the trial court erred in refusing to admit

evidence of racist epithets and racial symbols, and 4) the trial court erred in refusing to
instruct the jury on the lesser-included offense of aggravated assault. We affirm the

judgment.

        Appellant and the victim, Temple Jernigan, had a contentious relationship due to

appellant’s disapproval of his daughter1 having moved in with Jernigan. On October 9,

2008, appellant met Jernigan between 6:45 a.m. and 7:00 a.m. on a street in Tarrant

County, Texas, for the alleged purpose of giving Jernigan a gun to sell for appellant. At

the end of that encounter, Jernigan was dead from two bullets, one to his chest and one

to his head. Appellant fled the scene, threw the gun in a lake, and returned to his job at

American Airlines. The State contended that the murder was committed knowingly and

intentionally or that he knowingly and intentionally commited an act clearly dangerous to

human life with the intent to cause serious bodily injury. Appellant testified at trial and

claimed that he shot Jernigan in self-defense.

        Issue 1 – Batson Challenge

        Appellant is African-American and two members of the jury were of the same

race.   However, the State used peremptory challenges on three other black venire

members.      On appeal, appellant attacks only the State’s strike against Alexander

Warren Malone.

        One making a Batson2 challenge must make a prima facie showing of racial

discrimination. Williams v. State, 301 S.W.3d 675, 688 (Tex. Crim. App. 2009), cert.

denied, ___ U.S. ___, 130 S.Ct. 3411, 177 L.Ed.2d 326 (2010). The burden then shifts

to the State to offer a race-neutral explanation for the strike. Id. Once the State has


        1
        The girl was appellant’s stepdaughter whom appellant adopted.
        2
        Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).


                                                  2
done so, the burden shifts back to the defendant to show the explanation is really a

pretext for discrimination.       Id.    We accord great deference to the trial court’s

determination and do not overturn it unless it is clearly erroneous. Id.

       The explanation offered by the State with respect to Malone included: 1) the way

he answered his jury questionnaire in that he is twenty-one years old and unemployed,

he provided minimal information, and he did not follow the instructions with respect to

ranking the goals of the criminal justice system, and 2) his demeanor in the courtroom in

that he nodded his head in the affirmative during voir dire during a discussion as to

whether police officers could lie.          In response, appellant argued that Malone’s

questionnaire was filled out similar to other persons and that appellant had not observed

the demeanor referenced by the State.                The trial court found that the State had

“expressed a race-neutral reason” for the strike.

       At trial, appellant offered the name of Bradley Shepperd as someone who

answered a questionnaire similar to Malone. Shepperd did fail to rank the goals of the

criminal justice system as did Malone; nevertheless, the trial court noted that the

remainder of his questionnaire “is complete,” and we note it was also more informative

than that of Malone. Appellant also points to William Howard Colley, III, as a juror

similar to Malone3 in that he is young and unemployed. However, Colley explained he

was a student and he has training as an EMT and a firefighter, he followed the

instructions with respect to ranking the goals of the criminal justice system, he had more

hobbies and personal interests than Malone, he belonged to several clubs or groups


       3
        Appellant also refers on appeal to Catherine Louise Block as being unemployed; however, it
could be inferred from her questionnaire that she was a housewife. Additionally, the remainder of her
questionnaire was complete and informative.


                                                 3
whereas Malone belonged to none, he indicated he read the Star-Telegram while

Malone did not indicate that he read any newspapers or magazines, and he was a

Christian, whereas Malone’s religious preference was “open.”                Therefore, Colley

provided more information from which the State could make a decision regarding the

desirability of him as a juror.

       Youth and employment (or lack thereof) are race neutral reasons to strike a juror,

Patrida v. State, 133 S.W.3d 738, 742 (Tex. App.–Corpus Christi 2003, no pet.), as is

carelessness or error in completing or failing to complete the juror information card.

Ester v. State, 151 S.W.3d 660, 662 (Tex. App.–Waco 2004, no pet.); Newsome v.

State, 829 S.W.3d 260, 266 (Tex. App.–Dallas 1992, no pet.). That being so, we cannot

say the trial court clearly erred in finding no racial pretext in the striking of Malone.

       Issue 2 – Jury Charge on Provocation

       In his second issue, appellant contends the trial court erred in giving an

instruction on provocation to the jury. We disagree and overrule the issue.

       Self-defense is not a permissable defense when the actor provoked the other’s

use or attempted use of unlawful force. TEX. PENAL CODE ANN. §9.31(b)(4) (Vernon

Supp. 2010).     Furthermore, an instruction on provocation is required when there is

some evidence for a rational jury to find beyond a reasonable doubt that 1) the

defendant did some act or used some words which provoked the attack on him, 2) such

words or acts were reasonably calculated to provoke the attack, and 3) the act was

done or the words were used for the purpose and with the intent that the defendant

would have a pretext for inflicting harm on the other person. Smith v. State, 965 S.W.2d

509, 513 (Tex. Crim. App. 1998). The exact words or actions need not be proven; the



                                               4
jury must merely be able to find that there were some provoking acts or words.

Kennedy v. State, 193 S.W.3d 645, 655 (Tex. App.–Fort Worth 2006, pet. ref’d).

Furthermore, each element may be proved circumstantially. Fink v. State, 97 S.W.3d

739, 742 (Tex. App.–Austin 2003, pet. ref’d).        Finally, in reviewing the trial court’s

decision to include the instruction, we look at the evidence in a light most favorable to

the instruction. Smith v. State, 965 S.W.2d at 513.

       Here, the record shows that 1) appellant was unhappy that his daughter had

moved in with Jernigan, 2) appellant and Jernigan had exchanged angry words in the

month or two leading up to Jernigan’s death, 3) Jernigan had threatened appellant prior

to the day of the murder, 4) appellant testified that Jernigan became angry when he

complained to Jernigan (at the scene of the shooting) that Jernigan would not allow the

girl to spend uninterrupted time with her family, 5) appellant was pointing his finger at

Jernigan in an aggressive manner immediately before the shooting, 6) appellant took a

loaded gun with him to the meeting with Jernigan, 7) appellant’s leaving from and

returning to work before and after the shooting, respectively, was done in a manner that

failed to show he had left work to meet with Jernigan, 8) the path of the bullet wound to

Jernigan’s head was down which indicated that the weapon was being held higher than

the target when discharged, 9) appellant threw the gun in a lake after leaving the scene

of the shooting, and 10) appellant drove a rental car to the early morning meeting with

Jernigan as opposed to his own truck. From this, a jury could reasonably infer that

appellant was planning a physical confrontation of some type with Jernigan and

undertook conduct that could provoke a similar response from Jernigan. Thus, the trial

court did not error in submitting the instruction.



                                              5
       Issue 3 – Racist Epithets and Symbols

       Next, appellant complains of the trial court’s refusal to admit 1) evidence that

Jernigan used the word “nigger” when previously threatening to “whoop” appellant’s

“ass,” 2) a picture of appellant’s daughter4 wrapped in a Confederate flag, and 3) a

statement by Jernigan that appellant’s daughter “was going to be one of us.” The trial

court found this evidence to be “more prejudicial than probative.” This finding was

allegedly an abuse of discretion because the evidence conveyed “a threat of violence”

and death, given the history of this state, and explained why appellant felt threatened

and needed to defend himself. We overrule the issue.

       The applicable standard of review is one of abused discretion. Burden v. State,

55 S.W.3d 608, 615 (Tex. Crim. App. 2001). We also note that the subject matter of the

photograph was before the jury; appellant’s daughter had described its content as a

picture of herself “with a Rebel flag blanket” and further testified that Jernigan had taken

the photo.5 The latter was also shown to appellant at trial, and he testified that Jernigan

had previously disclosed it to him and that it “upset” him. Next, the statement that the

daughter “was going to be one of us” was made at the time appellant was shown the

picture by Jernigan, and even though it was excluded at trial, appellant was not

prevented from putting evidence before the jury that the subject matter of the picture

caused him emotional upset. That, coupled with 1) the evidence that appellant was

black, while his adopted daughter and Jernigan were white and 2) the connotations

appended to a confederate flag (as well as the connotations arising from draping


       4
       Appellant’s daughter was white.
       5
       The photograph itself was not admitted.


                                                 6
oneself in the flag) served to interject the issue of race and the aspect of historic

aggression against blacks into the mix, just like appellant wanted.         So, the record

effectively provided appellant that which he sought to prove.

       As for prohibiting reference to the use of “nigger,” the trial court nonetheless

allowed appellant to disclose that Jernigan had threatened to assault appellant. Thus,

appellant’s ability to establish the fact he sought to prove, i.e. he feared Jernigan due to

prior threats, was not impeded. And, given that evidence of race and racial attitudes

was already before the jury, it was reasonably debatable whether permitting the

interjection of inflammatory words like the “nigger” word would enhance the

establishment of appellant’s defense or simply cause jurors to feel spite or distaste

towards those using the words. See Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim.

App. 2007) (stating that a trial court does not abuse its discretion when the decision fell

within the zone of reasonable disagreement). In other words, the trial court was forced

to assure that appellant’s fate was determined by the evidence and legal theories as

opposed to emotion. And, because appellant had been able to develop his defense and

because aspects of Jernigan’s racial animus were already interjected into the trial via

other evidence, the trial court was well within its discretion to avoid stoking emotional

fires through the admission of overtly racial and inflammatory epithets. See Manning v.

State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003) (stating that in making the requisite

determination one must consider 1) the extent to which the evidence serves to make the

fact of consequence more or less probable, 2) the potential of the evidence to impress

the jury in an irrational but indelible way, 3) the time needed to develop the evidence,

and 4) the proponent’s need for the evidence); Morales v. State, 293 S.W.3d 901, 911



                                             7
(Tex. App.–Texarkana 2009, pet. ref’d) (stating that unfair prejudice arises from

evidence that has an undue tendency to suggest that a decision be made on an

improper basis, commonly an emotional one).

           Issue 4 – Lesser‐Included Offense

           Finally, appellant argues that he was entitled to an instruction on the lesser-

included offense of aggravated assault. We overrule the issue.

           A defendant is entitled to an instruction on a lesser offense when the lesser

offense is included within the proof necessary to establish the charged offense, and

some evidence exists which would permit the jury to find that if appellant is guilty, he is

guilty only of the lesser offense. Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim.

App. 2006). The State concedes that aggravated assault can be a lesser-included

offense of murder. Given that, our task is to assess whether the evidence allegedly

warranting the submission would permit the jury to determine that if appellant is guilty,

he is guilty only of aggravated assault. And, that is where the argument before us

falters.

           Appellant testified that he shot Jernigan the first time to get Jernigan “off of him”

and that he did so intentionally. The second shot purportedly was an accident. Yet, a

medical expert testified that both shots were fatal, and appellant cites us to no evidence

contradicting that. Because of this, he was not entitled to the charge since the lesser

offense of aggravated assault is unavailable when there is no evidence that the victim

suffered a lesser form of serious bodily injury than death. Jackson v. State, 992 S.W.2d

469, 475 (Tex. Crim. App. 1999) (stating that a murder defendant is not entitled to an

instruction on the lesser-included offense of aggravated assault when the evidence



                                                 8
showed him, at the least, to be guilty of a homicide and since there was no evidence

from which a rational jury could conclude that appellant did other than cause the death

of the victim, the only lesser-included offense that was raised by the evidence of

recklessness was manslaughter, not aggravated assault).

      Accordingly, we affirm the judgment.



                                                 Brian Quinn
                                                 Chief Justice

Do not publish.




                                             9
