                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-07-00038-CR
         ______________________________


               LOYD CRAIG, Appellant

                           V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the 115th Judicial District Court
                Upshur County, Texas
                Trial Court No. 14,187




      Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Carter
                                   MEMORANDUM OPINION

       Loyd Craig was romantically involved with three women, Freda Cline, Rosie Brooks, and

Shaniqua Darden. Cline was shot while sitting in her car while Craig was present; the vehicle was

then set ablaze, incinerating the body; Brooks admitted she shot Cline at Craig's behest; Darden

insisted Craig was with her on the day of the homicide. After Brooks admitted shooting Cline, she

pled guilty and was sentenced to twenty-five years' imprisonment; she testified Craig planned and

directed the murder. Craig appeals his conviction for the murder of Cline after being convicted and

sentenced to sixty years' incarceration. We find: 1) the trial court did not err in overruling Craig's

Batson1 challenge to three of the State's peremptory challenges at jury selection; 2) there was

sufficient evidence tending to connect Craig to Cline's murder to corroborate accomplice Brooks'

testimony; and 3) the trial court did not err in denying Craig's motion for new trial. We affirm the

judgment.

I.     Batson Challenge

       Craig first argues the trial court erred in denying his challenge to the State's use of

peremptory strikes on three veniremembers. See id. A Batson challenge generally gives rise to a

three-step process. First, the defendant must make a prima facie case that a veniremember was

peremptorily excluded on the basis of race. Next, the State must come forward with race-neutral

reasons for the peremptory strike. Finally, the defendant has the opportunity to rebut the State's



       1
           Batson v. Kentucky, 476 U.S. 79 (1986).

                                                  2
explanations.    The burden of persuasion remains with the defendant to prove purposeful

discrimination. In Purkett v. Elem, 517 U.S. 765 (1995), the United States Supreme Court explained

that "unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will

be deemed race neutral." Shuffield v. State, 189 S.W.3d 782, 785 (Tex. Crim. App. 2006). The trial

court determines whether the defendant has carried his or her burden of proving racial

discrimination. Mathis v. State, 67 S.W.3d 918, 924 (Tex. Crim. App. 2002). The trial court's

determination is accorded great deference; we will not overturn the determination unless it is clearly

erroneous. Chamberlain v. State, 998 S.W.2d 230, 236 (Tex. Crim. App. 1999).

        A.      Prima Facie Claims of Racial Discrimination and the State's Responses

        Craig told the trial court, "There were three black members on the first two rows, Jerry

Tennison, Shirley Hall, and Darrel Todd, and I noticed all three of them got struck."2 We move to

the State's race-neutral explanations for its strikes.3




        2
         The record is not clear regarding Craig's race. The United States Supreme Court held in
Powers v. Ohio, 499 U.S. 400 (1991), that, under the Fourteenth Amendment, "a criminal defendant
may object to race-based exclusions of jurors effected through peremptory challenges whether or not
the defendant and the excluded juror share the same race." Therefore, the race of a defendant is
irrelevant to a Batson challenge. Id. at 402; Cook v. State, 858 S.W.2d 467, 471 (Tex. Crim. App.
1993).
        3
         Where the State offers an explanation for the challenged strike and the trial court makes its
ruling, the issue of whether the defendant presented a prima facie case is moot. Hernandez v. New
York, 500 U.S. 352, 359 (1991).

                                                    3
                1.      Veniremember Tennison

         The State inquired whether potential jurors could consider the whole range of punishment,

from community supervision to five to ninety-nine years or life in prison. The State said, "Mr.

Tennison, you cannot consider it?" The venireman answered, "Yes sir. I just raised it [his hand]

slow."

         The State told the trial court Tennison "didn't raise his hand to a critical question until I

looked at him and then he raised his hand and said I was just late. That indicated to me that he

wasn't going to raise his hand to that question because he didn't do it until I specifically turned to

him."

         Further, the State indicated that, "[H]is actions indicated to me that he wasn't going along

with that."

                2.      Veniremember Hall

         Regarding Hall, the State explained its strike as follows:

                THE COURT: Okay. What about Ms. Hall?

                 [State]: Ms. Hall, if you'll recall was the one that all during my voir dire she
         sat there like you're standing, just like this.

                THE COURT: She was cold?

                [State]: And -- but during [the defense] voir dire she wasn't.

                THE COURT: You warmed her up, Mr. Fetter.

                [State]: Whatever, but she opened up to him.


                                                    4
               3.      Veniremember Todd

       The State explained its strike of veniremember Todd:

              [State]: Mr. Todd was the one if you'll recall I asked the question about O. J.
       Simpson and nobody raised their hand, but he was glaring at me and I made the point
       of going back and saying, if you'll recall I did a follow-up are you sure and I was
       looking directly at him because of his facial expression. He was mad at [sic] heck
       at me for even asking that question and that's why he got struck.

       The issue for the trial court and the appellate court at this juncture is the facial validity of the

explanation given. Purkett, 514 U.S. at 768; Goode v. Shoukfeh, 943 S.W.2d 441, 445 (Tex. 1997).

In evaluating whether the explanation offered is race neutral, a court must determine whether the

peremptory challenge violates the Equal Protection Clause as a matter of law, assuming the reasons

for the peremptory challenge are true. Goode, 943 S.W.2d at 445. A race-neutral explanation means

that the challenge was based on something other than the juror's race. Id. Unless a discriminatory

intent is inherent in the explanation, the reason offered will be deemed race neutral for purposes of

the analysis at step two. Id. We do not see a discriminatory intent in the State's three explanations

and therefore proceed to the next step.

       B.      Defense Burden to Show Pretext

       Following the State's presentation of its race-neutral reasons for its peremptory strikes, the

defendant then bears the burden to convince the trial court that the State's reasons are pretexts for

racially discriminatory use of its strikes. The ultimate burden of proof of a Batson violation rests

with the defendant. Craig told the trial court,



                                                    5
       Mr. Tennison, you know, he might have been slow in raising up but he answered the
       question the same as everybody else. And Mr. Todd, you know, I don't remember the
       glaring and all that stuff but -- nobody raised their hand up and thought O. J. was
       innocent. You know, he didn't affirmatively make any statements or indicate that he
       disagreed.

       Craig did not rebut the State's description of Hall as "cold."

       Regarding Tennison, who the State said was late raising his hand to a question about

considering the full range of punishment, an inability to consider the full range of punishment is a

race-neutral reason for striking a veniremember. Chambers v. State, 866 S.W.2d 9, 24 (Tex. Crim.

App. 1993);4 see also Yarbough v. State, 732 S.W.2d 86 (Tex. App.—Dallas 1987), vacated &

remanded on other grounds, 761 S.W.2d 17 (Tex. Crim. App. 1988). After asking the general

question to the panel if they could consider life imprisonment as a punishment in the proper murder

case, the attorney then stated, "Okay. Mr. Tennison you cannot consider it?" which suggests that

Tennison either did not raise his hand or as he stated was "slow" to do so. Craig's only answer was

that Tennison "answered the question the same as everybody else." However, Tennison's reaction

was apparently not the same as everyone else. Even though Tennison did not give an answer

indicating that he was hostile to the State, the State did identify Tennison's tardiness in answering



       4
         Further, a prospective juror's inability to understand relevant legal concepts provides a
race-neutral explanation for exercising a peremptory strike. See Chiles v. State, 57 S.W.3d 512,
516–17 (Tex. App.—Waco 2001, pet. dism'd, untimely filed) (recognizing that prospective juror's
inability to understand the concepts of insanity defense and single-witness testimony constituted
race-neutral reason); Williams v. State, 939 S.W.2d 703, 706–07 (Tex. App.—Eastland 1997, no
pet.) (recognizing that prospective juror's inability to understand concept of "beyond a reasonable
doubt" constituted race-neutral reason).

                                                 6
that he could consider a life sentence as a specific, objective reaction which the State interpreted as

some hesitancy to consider the entire range of punishment. We cannot determine that such an

interpretation was unreasonable or without foundation.

       As for venireman Todd, the State said he was "mad at [sic] heck" and "glaring" at him when

the latter asked the panel whether anyone thought O. J. Simpson was innocent. Lack of eye contact

and attentiveness and no development of a back-and-forth relationship during voir dire has been

upheld as a race-neutral explanation. Townsend v. State, 730 S.W.2d 24, 26 (Tex. App.—Texarkana

1987, no pet.). So, too, where a potential juror was "very hostile" toward the prosecutor questioning

her, as demonstrated by "her facial expression, even body language, with her arms folded and

peering." Alexander v. State, 866 S.W.2d 1, 8 (Tex. Crim. App. 1993). The State's explanation for

striking Todd was race neutral. Craig responded to the State's explanation by saying, "I don't

remember the glaring and all that stuff but -- nobody raised their hand up and thought O. J. was

innocent. You know, he didn't affirmatively make any statements or indicate that he disagreed." The

defendant must do more than simply state his or her disagreement with some of the State's

explanations. The defendant must prove affirmatively that the State's race-neutral explanations were

a sham or pretext. Webb v. State, 840 S.W.2d 543, 544 (Tex. App.—Dallas 1992, no pet.);

Straughter v. State, 801 S.W.2d 607, 613 (Tex. App.—Houston [1st Dist.] 1990, no pet.). As for

Craig's statement to the trial court that "nobody raised their hand up and thought O. J. was innocent,"




                                                  7
there is no further discussion or questioning by either party with any other panel members on this

topic.

         Statements about the demeanor or appearance of veniremembers must be judged for their

credibility by trial courts, whose findings must be reviewed deferentially by appellate courts.

Yarborough v. State, 947 S.W.2d 892, 893 (Tex. Crim. App. 1997). Strikes based on claims not

easily verifiable through objective proof should be viewed with ''healthy skepticism,'' but, under this

view, the skepticism is to be exercised by the trial court, not by the appellate court. Moss v. State,

877 S.W.2d 895, 899 (Tex. App.—Waco 1994, no pet.) (appellate court owes deference to trial court

decision, which should be disturbed only if ''clearly erroneous'').

         Craig offered no rebuttal to the State's race-neutral explanation for striking veniremember

Hall. A party's failure to offer any real rebuttal to a proffered race-neutral explanation can be fatal

to his or her claim. Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002); Ford v. State,

1 S.W.3d 691, 694 (Tex. Crim. App. 1999) (defendant failed to rebut State's reason by

cross-examining prosecutor or offering rebuttal evidence).

         C.     Trial Court Not Clearly Erroneous

         When reviewing a Batson objection, we examine the record in the light most favorable to the

trial court's ruling and reverse only when the ruling is clearly erroneous. Herron v. State, 86 S.W.3d

621, 630 (Tex. Crim. App. 2002). A ruling is clearly erroneous when, after searching the record, we

are left with the definite and firm conviction that the trial court has made a mistake. Goldberg v.



                                                  8
State, 95 S.W.3d 345, 385 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd); Bausley v. State, 997

S.W.2d 313, 315 (Tex. App.—Dallas 1999, pet. ref'd). The "clearly erroneous" standard "is a highly

deferential standard because the trial court is in the best position to determine whether a prosecutor's

facially race-neutral explanation for a peremptory strike is genuinely race-neutral." Gibson v. State,

144 S.W.3d 530, 534 (Tex. Crim. App. 2004). We may not substitute our opinion for the trial court's

factual assessment of the neutrality of the State's explanation for exercising strikes, and we focus on

the genuineness, rather than the reasonableness, of the State's asserted nonracial motive. Id. at 534

& n.5 (citing Purkett, 514 U.S. 765).

        Reviewing the record before us, we find the State presented racially neutral explanations for

the three challenged strikes. Based on Craig's limited rebuttals, we are not "left with the definite and

firm conviction that the trial court has made a mistake." We overrule Craig's first point of error.

II.     Corroboration of Accomplice-Witness Testimony

        A conviction cannot be had on the testimony of an accomplice unless corroborated by other

evidence tending to connect the defendant with the offense committed; the corroboration is not

sufficient if it merely shows the commission of the offense. TEX . CODE CRIM . PROC. ANN . art. 38.14

(Vernon 2005). While required by neither common law nor our Federal and State Constitutions,

Article 38.14's codification reflects the Texas Legislature's determination that accomplice-witness

testimony implicating another "should be viewed with some level of caution." Gill v. State, 873

S.W.2d 45, 48 (Tex. Crim. App. 1994); see also Brown v. State, 159 S.W.3d 703, 707 (Tex.



                                                   9
App.—Texarkana 2004, pet. ref'd) (discussing covert witness rule of Article 38.141 and its parallels

to Article 38.14's accomplice-witness rule).           Article 38.14 requires the corroboration of

accomplice-witness testimony, but there is no exact rule as to the amount of evidence required for

corroboration. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996). "All that is required

is that there be some non-accomplice evidence which tends to connect the accused to the commission

of the offense alleged in the indictment." Gill, 873 S.W.2d at 48; cf. Jeffery v. State, 169 S.W.3d

439, 448 (Tex. App.—Texarkana 2005, pet. ref'd) (applying similar analysis for corroboration of

covert-witness testimony); Brown, 159 S.W.3d at 707–08. Such evidence may be either direct or

circumstantial. Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988).

       The test for weighing the sufficiency of corroborating evidence is to eliminate from

consideration the accomplice's testimony, and then examine the remaining testimony and evidence

to determine if there is evidence that tends to connect the defendant with the commission of the

offense. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993); Reed, 744 S.W.2d at 125;

Hall v. State, 161 S.W.3d 142, 149 (Tex. App.—Texarkana 2005, pet. ref'd). The nonaccomplice

testimony does not have to directly link the accused to the crime, it alone need not establish guilt

beyond a reasonable doubt, and it need not prove all the elements of the alleged offense. Gill, 873

S.W.2d at 48; Munoz, 853 S.W.2d at 559; Reed, 744 S.W.2d at 126; Jeffery, 169 S.W.3d at 448. The

accused's presence at the scene of the crime is, by itself, insufficient to corroborate an accomplice's

testimony. However, "evidence that an accused was in the company of the accomplice close to the



                                                  10
time of the offense, coupled with other suspicious circumstances, may tend to connect the accused

to the offense." Gill, 873 S.W.2d at 49; see also Reed, 744 S.W.2d at 127; Jeffery, 169 S.W.3d at

447; Brown, 159 S.W.3d at 708. Moreover, while evidence that addresses only motive or

opportunity to commit the crime is, by itself, insufficient to corroborate the accomplice-witness

testimony, motive or opportunity evidence may be considered in conjunction with other evidence

tending to connect the accused to the crime. Reed, 744 S.W.2d at 127. "Cumulative evidence of

'suspicious circumstances' may be sufficient even if none of the circumstances would be sufficient

individually." Jeffery, 169 S.W.3d at 447; see also Brown, 159 S.W.3d at 708. In the end, every

case "must be considered on its own facts and circumstances--on its own merit." Munoz, 853

S.W.2d at 559; see also Reed, 744 S.W.2d at 126.

       A.      Craig's Accomplice, Rosie Brooks

       Cline had been living with Craig until a few days before her death. Brooks testified that, two

days before the murder, she met with Craig and "someone had told him that Freda was out to get him

and that she was going to make him pay and he had asked me if I would shoot her and I told him that

I would." On the day of the murder, Brooks got Craig's truck from him. Craig and Cline were

together in a Dodge Intrepid. They all drove to Eric Harper's house, where Craig and Cline sat in

Cline's car in Harper's front yard. When Craig and Cline left, Brooks followed; she got the truck

stuck, and Craig called Harper, who came and extricated Brooks and the truck. Brooks testified she

followed Craig and Cline "through the country" to an area near Mule Deer and Minx Roads; Craig



                                                11
was outside Cline's car, talking to Cline, who was seated in the driver's seat, when she began

apologizing for seeing other men. Brooks said that, at Craig's instruction, she got a pistol he had

behind his back. When Cline begged Craig to tell Brooks not to shoot her, Craig said it was not up

to him, it was up to Brooks. Brooks also said Craig told her that, if she did shoot Cline, to be sure

and shoot her in the head. After Brooks shot Cline, Craig then retrieved a jug of gasoline, which

Brooks had purchased at Craig's instruction, from the truck and told her to turn the truck around.

Craig then poured the gasoline on Cline and her car and set them ablaze. Craig got in the truck with

Brooks, and they left.

       Brooks acknowledged that, in her first statement to law enforcement officers, she stated Craig

was not with her at the time of the murder.

       B.      Nonaccomplice Testimony

       Setting aside Brooks' testimony, we now consider only other evidence which tends to connect

Craig to Cline's murder. Harper testified that, on the night now identified as the night of the murder,

Craig pulled into Harper's front yard in a vehicle that looked like Cline's Dodge Intrepid. There was

another person in the car with Craig, but Harper could not tell the person's race or gender. Harper

said Brooks parked in his yard Craig's blue Chevrolet truck she was driving. When the two vehicles

and their occupants then drove away from Harper's residence, Brooks got stuck; Craig called Harper,

and he came out and helped get the vehicle out. Cell phone records verify that several calls from




                                                  12
Craig's phone were made to Harper's phone on the night of the murder. These incidents corroborate

Brooks' testimony and tend to connect Craig to the events preceding the murder.

       A few days later, Harper received a call from Craig asking him to meet with Craig at Craig's

mother's house. Craig asked Harper if he had heard what happened, to which Harper replied, "I think

so." Craig then told him "it" had happened that night, when Brooks and Craig were in the two

vehicles in Harper's yard. From the context of the questioning and testimony of this portion of the

reporter's record, "it" refers to the death of Cline. Harper said Craig told him the police might come

talk to Harper, and Craig had forgotten to tell the police he had been at Harper's house the night of

the murder. Craig told Harper that, if Harper told police Craig had been to Harper's house that night,

Craig would have to tell police he had forgotten to tell them he had been to Harper's. Harper testified

he got nervous and left.

       In his written statement, Craig maintained he was with Darden at all times during the night

of the murder. However, in an oral statement given to investigators, and received in evidence, Craig

admitted he and Brooks drove up and down Mule Deer Road where Cline's burned car and remains

were found. Darden, at one time, told police Craig instructed her to tell them he was with her all day

on the day of the murder.5 The State also introduced evidence Craig had dialed Cline's cell phone

       5
         Darden gave two statements to the police. The first said that Craig had been with her from
the afternoon through the night of the murder; in her second statement, she refuted the first and said
Craig had told her what to say. At trial, Darden testified in line with her first statement and said she
had been threatened by law enforcement with loss of her children to Child Protective Services if she
did not give a story inculpating Craig. The interviewing officers testified they never made such
threats.

                                                  13
111 times the day before the murder and only four times on the day of the murder (all four occurring

before 10:00 a.m.). Evidence that an accused was in the company of the accomplice close to the time

of the offense, coupled with other suspicious circumstances, may tend to connect the accused to the

offense. Gill, 873 S.W.2d at 49.

         There was sufficient evidence tending to connect Craig to Cline's murder; we overrule this

point of error.

III.     Motion for New Trial, Claiming Newly Discovered Evidence

         Craig's third point of error claims the trial court erroneously denied Craig's motion for new

trial.

         Article 40.001 of the Texas Code of Criminal Procedure provides that "[a] new trial shall be

granted an accused where material evidence favorable to the accused has been discovered since

trial." TEX . CODE CRIM . PROC. ANN . art. 40.001 (Vernon 2006). Under that statute, a defendant is

entitled to have his or her motion for new trial granted if (1) the newly discovered evidence was

unknown to the defendant at the time of trial; (2) the failure to discover the new evidence was not

due to the defendant's lack of due diligence; (3) the new evidence is admissible and not merely

cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and

will probably bring about a different result in a new trial. Keeter v. State, 74 S.W.3d 31, 36–37 (Tex.

Crim. App. 2002).




                                                  14
        Not only does the decision to grant or deny such a motion fall within the sound discretion of

the trial court, subject to reversal only on a finding of an abuse of that discretion, but these motions

are generally disfavored by the courts and viewed with great caution. Fox v. State, 175 S.W.3d 475,

484 (Tex. App.—Texarkana 2005, pet. ref'd).

        Craig's amended motion for new trial claimed entitlement to relief because a newly

discovered letter, purportedly from accomplice Brooks to Craig's sister, implicated some other

unknown male and said Craig was not involved. In the letter, Brooks denied responsibility for

Cline's murder and said she was just at the scene and saw the murder. At the hearing, Craig's sister

Teresa Walton said she had received a letter from Brooks sometime in 2004, but put it in a plastic

bag with her other mail to be sorted later. She could not find it in time for trial, but did find it in

time for the hearing on the motion for new trial.6 At the hearing, both Walton and Craig's other

sister, Pamela Allen, testified they were aware of the contents of the letter and had told both Craig

and his trial attorney of the letter and its contents, prior to the trial. This is fatal to Craig's appellate

point of error, as the new evidence relied on for a new trial must have been unknown to the

defendant at trial. See id. at 485. While we do not address whether the letter was admissible, we

point out that it would at most be available for the purpose of impeaching Brooks' trial testimony.




        6
            The trial was December 4–6, 2006; the motion for new trial was heard February 13, 2007.


                                                     15
       Further, even if the letter had been admitted into evidence at trial, it would be reasonable for

the trial court to conclude it was not probable that such evidence would bring about a different result.

Undisputedly, Brooks at one time made statements that absolved Craig from all responsibility for

the murder and later changed her statement. Even if this letter was found to be authentic, it would

have added little to Brooks' previous testimony that Craig was not even present when the murder was

committed. That testimony was already before the jury, and Brooks' credibility was thoroughly

examined at the trial for this very reason. We overrule this point of error.

       We affirm the trial court's judgment.




                                               Jack Carter
                                               Justice

Date Submitted:        December 4, 2007
Date Decided:          January 10, 2008

Do Not Publish




                                                  16
