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.
Splawn v. State Page 2

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 deadlyweapon 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 3

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 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 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 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, 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 deadlyweapon 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 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.

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 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, 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 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 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]