### 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 T EX
. P ENAL C ODE A NN
. § 15.01(a) (West 2011). Specifically, Splawn contends that the trial court: (1) committed reversible error by denying his Batson challenge as to J uror 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.Splawn v. State Page 2 I. B ACKGROUND On February 21, 2012, Splawn was indicted for the offense of attempted capital

m urder 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 ba rgain 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 ov erruled by operation of law. See T EX
. R. A PP
. P. 21.8(a), (c). This appeal
followed.
II. S PLAWN ’ S B ATSON C HALLENGE 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 aga inst 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 challengeSplawn v. State Page 3

potential j urors 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 th e 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. Sta te , 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 mus t 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 req uires 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 Watkin s 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 isSplawn v. State Page 4

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 focu ses 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 “ri ghts 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 thatSplawn v. State Page 5

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, th e 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. D EADLY - W EAPON F INDING 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 o r exhibited a deadly weapon during the commission of a felony offense or during immediate flight therefrom. T EX
. C ODE C RIM
. P ROC
. A NN
. 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 affirma tive finding that the deadly weapon was a firearm, the court shall enter that finding in its judgment.” T EX
. C ODE C RIM
. P ROC
. A NN
. 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 tha t Juror Number 7 was possibly biased with respect to the relationship of the parties and the punishment decision.Splawn v. State Page 6

§ 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.
Sinc e 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

au thorized 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
in dictment; (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 t han 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 punishmen t charge did notSplawn v. State Page 7

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, P LATO 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 . . . .” T EX
. P ENAL C ODE A NN
. § 1.0 7(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
tran saction 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 jurySplawn v. State Page 8

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 t he judgment. See id. We overrule Splawn’s second issue.
IV. C ONCLUSION 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]