Bruce Erwin Leadon v. State

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00839-CR

NO. 01-08-00840-CR

BRUCE ERWIN LEADON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause Nos. 1134275 and 1134276

O P I N I O N

Appellant, Bruce Erwin Leadon, was charged twice with aggravated robbery

with a deadly weapon for robbing the same restaurant on two separate occasions. See

Tex. Penal Code Ann. §§ 29.02 , 29.03 (Vernon 2003). The offenses were tried

together, and a jury found appellant guilty of both offenses and assessed punishment

for each offense at sixty years' imprisonment to run concurrently and a $5,000 fine.

In three issues, appellant contends that: (1) the evidence supporting his convictions

is legally and factually insufficient; (2) the trial court erred in denying his Batson

challenge to the State's peremptory strikes; and (3) the trial court erred in refusing to

allow his mother to testify during the punishment phase that appellant is mentally

challenged. We affirm.

Background

Appellant was convicted of robbing the same Waffle House restaurant twice,

once on May 12, 2007 and again on June 20, 2007, with his half-brother, Terence

Briscoe. Both robberies took place during the early morning hours. The Waffle

House was located within walking distance and less than a mile away from the

apartment that appellant and Briscoe shared with their parents.

In the early hours of the morning on May 12, 2007, appellant and Briscoe

entered the Waffle House on Almeda-Genoa Road and chose a corner booth. Karon

Blackmon, a waitress at the restaurant, approached the two men to provide menus and

silverware and to take their order. After serving appellant and Briscoe, Blackmon left

their ticket at the table for payment. Blackmon testified that the restaurant was

"[e]xtremely" busy and she was not able to observe everything that the men were

doing because she had other customers. However, she noticed that appellant was

doodling on his napkin. Appellant and Briscoe approached the cash register, as if to

pay for their meal, but instead, Briscoe placed a gun to Blackmon's forehead.

Blackmon testified she "basically blacked out" and only remembers backing away

from the register with her hands up. Blackmon feared for her life. Briscoe followed

her with the gun continuing to point it at her head, and once she backed away from

the register, appellant came around the counter, "opened the register, got the money,

put it in a backpack and they ran out."

When the cook at the restaurant realized what was happening, she ran to the

motel next door to call the police. Officer Wyatt of the Houston Police Department

("HPD") was one of the first officers on scene. Officer Wyatt testified that she

attempted to lift fingerprints off of the ketchup and syrup bottles on the table at which

appellant and Briscoe sat. Wyatt also tagged the pair's receipt and the napkin on

which appellant was doodling for further examination by the HPD crime lab. At trial,

Officer Wyatt read several phrases from the napkin, including, "Money, money,

money is my intuition. Money over bitches. Such an easy decision." Wyatt testified

that "names of gangs" were also written on the napkin.

HPD Officers Rowe and Werner testified that the HPD crime lab found one

usable fingerprint on the receipt, but it did not match appellant, Briscoe, or their

waitress, Blackmon. Officer Werner compared the print with all of the prints in the

Automated Fingerprint Identification System (containing prints of all individuals

arrested by HPD and all HPD officers) but did not find a match. However, testimony

was given that another waitress and the cook touched the receipt and, thus, either

could have left the print.

Blackmon testified that she provided police with a description of the two men.

She did not expect to ever see the men again, but said she could never forget the faces

of the men who committed the robbery. Scared from the ordeal, Blackmon took some

time off work, but eventually returned.

Blackmon was working the late night shift again on June 20, 2007. June 20

was "a slow night," and there was only one customer, an older man. Only two

employees were working that shift: Blackmon waited tables, while Nina Christian

cooked the customers' orders. Christian was a new employee, and June 20 was her

second night on the job. At around 4:00 a.m., Blackmon took a cigarette break.

While Blackmon was on her break, appellant came into the restaurant, this time alone

and speaking on a cell phone. After telling Christian he wanted to place a to-go

order, he proceeded to the restroom. Christian alerted Blackmon that a customer

wanted to place an order. When Blackmon returned from her break, she went to the

register where appellant was standing. Blackmon testified that she "couldn't stop

staring at [appellant]" because she was certain she recognized him from somewhere

but could not immediately place his face. Appellant avoided making eye contact with

Blackmon and kept his head down. Then, Blackmon looked up, and through the front

window, saw Briscoe approaching the restaurant carrying the "same old backpack"

used in the first robbery. Upon seeing Briscoe, Blackmon testified that "it click[ed]."

After Blackmon realized that these men were the same men that robbed the store in

May, she ran to the back exit. As Briscoe entered the restaurant, appellant left

without picking up his order. When Blackmon reached the back door and looked

back toward the cash register, Briscoe "was pointing the gun at [Christian.]"

Blackmon ran out the back door to the motel next door and called 911. While

pointing the gun at Christian, Briscoe moved towards the cash register, opened it, and

filled his backpack with money. Christian testified that she was afraid she might be

killed.

When the police arrived, Blackmon told the officers that the robbers were the

same men that robbed the store in May. Sergeant Nieto of the HPD Robbery Division

began investigating the two robberies. Sergeant Nieto created photo arrays

containing the pictures of appellant and Briscoe. Both Christian and Blackmon

positively identified the two men from the photo arrays. Christian and Blackmon also

identified appellant at trial.

Appellant offered four alibi witnesses, all of whom testified that they distinctly

remember appellant being at home on both May 12, 2007 and June 20, 2007.

Appellant and Briscoe shared a room at their mother and stepfather's apartment, and

had a strict curfew of 11 p.m. Their stepfather testified that, because appellant and

Briscoe were unemployed, he set strict rules that the men be home by 11 p.m., wake

by 6 a.m., and spend the day looking for work. Both appellant's mother and

stepfather testified that, on the two nights in question, appellant was at home when

they went to sleep that night and when they got up in the morning.

The apartment had a front door and sliding patio door. At the time of the

robberies, appellant's stepfather testified that, he had been sleeping on the couch so

he could watch the front door to make sure that someone did not "break in." He

testified that there had been a problem at the apartment complex with people "kick-dooring" the apartment doors to gain access. Because he was sleeping near the front

door, appellant's stepfather testified that appellant and Briscoe could not have left the

apartment during the night on the dates in question.

The patio door led to a second-floor balcony. The patio door was located

closest to the room that appellant and Briscoe shared. However, their stepfather

testified that he knew the men did not use the patio door to leave the apartment on the

nights of the robberies because the railing on the balcony was loose and too weak to

support the men's weight. Appellant's mother testified that they left the patio railing

loose as a safety precaution so that people could not gain access to the second story

patio. However, appellant's mother testified that it was possible to get up to the patio

by climbing up to the next-door neighbors' patio and going around the neighbors'

apartment.

I. Legal and Factual Sufficiency

In his first issue, appellant contends the evidence supporting his convictions

is legally and factually insufficient. Specifically, appellant argues that the evidence

is insufficient to establish his identity as the perpetrator of the offense. Additionally,

appellant contends that the evidence is insufficient to establish that he acted as a party

to the June 20, 2007 aggravated robbery.

A. Aggravated Robbery

In order to convict appellant of aggravated robbery, the State was required to

prove beyond a reasonable doubt that appellant, acting as either a principal or a party,

while in the course of committing theft, intentionally or knowingly threatened or

placed a person in fear of imminent bodily injury or death while using or exhibiting

a deadly weapon. See Tex. Penal Code Ann. §§ 29.02 , 29.03 (Vernon 2003). A

firearm is considered a deadly weapon. Tex. Penal Code Ann. § 1.07 (a)(17)(A)

(Vernon Supp. 2008).

B. Law of Parties

A person is criminally responsible as a party to an offense if the offense is

committed by their own conduct, by the conduct of another for which she is

criminally responsible, or by both. Tex. Penal Code Ann. § 7.02 (a) (Vernon 2003).

A conviction under the law of parties is appropriate if there is evidence that the

defendant was physically present and encouraged the commission of the crime by

words or other agreement. Ransom v. State , 920 S.W.2d 288 , 302 (Tex. Crim. App.

1994) (op. on reh'g).

Since an agreement between parties to act together in common design can

seldom be proven by words, the State often must rely on the actions of the parties,

shown by direct or circumstantial evidence, to establish an understanding or a

common design to commit the offense. Miller v. State , 83 S.W.3d 308, 314 (Tex.

App.--Austin 2002, pet. ref'd). The agreement, if any, must be made before or

contemporaneous with the criminal event, but in determining whether the accused

participated as a party, the court may look to events occurring before, during and after

the commission of the offense, and may rely on actions of the defendant which show

an understanding and common design to do the prohibited act. Beier v. State , 687

S.W.2d 2, 3-4 (Tex. Crim. App. 1985); Miller , 83 S.W.3d at 314 . Circumstantial

evidence may suffice to show that one is a party to an offense. Wygal v. State , 555

S.W.2d 465, 469 (Tex. Crim. App. 1977); Miller , 83 S.W.3d at 314 .

While mere presence at the scene is not enough to sustain a conviction, that

fact may be considered in determining whether an appellant was a party. Valdez v.

State , 623 S.W.2d 317, 321 (Tex. Crim. App. 1979) (op. on reh'g); Miller , 83 S.W.3d

at 314 . If the evidence, however, shows the mere presence of an accused at the scene

of an offense, without more, it is insufficient to sustain a conviction as a party to the

offense. Valdez , 623 S.W.2d at 321 ; Scott v. State, 946 S.W.2d 166, 168 (Tex.

App.--Austin 1997, pet. ref'd).

C. Legal Sufficiency

1. Standard of Review

We review the legal sufficiency of the evidence by viewing the evidence in the

light most favorable to the verdict and determining whether any rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt.

Cruz v. State , 238 S.W.3d 381, 386 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd)

(citing King v. State , 29 S.W.3d 556, 562 (Tex. Crim. App. 2000)). The trier of fact

is the sole judge of the weight and credibility of the evidence. Margraves v. State ,

34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Thus, when performing a legal

sufficiency review, we may not re-evaluate the weight and credibility of the evidence

and substitute our judgment for that of the fact-finder. Dewberry v. State , 4 S.W.3d

735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the

evidence in favor of the verdict. Curry v. State , 30 S.W.3d 394, 406 (Tex. Crim. App.

2000).

2. Analysis

Appellant contends that the evidence is legally insufficient to support his

convictions. Specifically, appellant argues the evidence is insufficient to establish

his identity in the May robbery and to show that appellant was a party to the June

robbery.

Blackmon testified that, on May 12, 2007, appellant and Briscoe entered the

Waffle House together and ate a meal, prior to robbing the restaurant. The two men

approached the register, as if they were going to pay for their meal, but instead,

Briscoe pointed a gun at Blackmon's forehead. Blackmon testified that Briscoe was

about two feet away from her when he pointed the gun at her head. Blackmon was

in fear for her life and backed away from the register with her hands up. Appellant

opened the cash register and took out all of the money, while Briscoe continued

pointing the gun at Blackmon. Blackmon positively identified appellant in a photo

line-up and in court as the man who robbed the restaurant on May 12, 2007.

Christian testified that, on June 20, 2009 around 4:00 a.m., appellant entered

the restaurant, while talking on a cell phone, placed a to-go order, and went into the

restroom for about five minutes. Appellant left without picking up the order. As

appellant was exiting, Briscoe entered with his gun drawn, pointed the gun at

Christian, and emptied the money in the register into his backpack. Christian testified

that she was afraid she would be killed. Blackmon and Christian both identified

appellant as the man who was in the restaurant immediately before Briscoe threatened

Christian with the gun and took the money from the register.

Although appellant points to the alibi evidence he presented at trial, the record

shows that witnesses positively identified him as one of the perpetrators. Blackmon

positively identified appellant in a photo line-up and in court as the man who robbed

the restaurant in May. Both Christian and Blackmon positively identified appellant

in a photo line-up and in court as the man who entered the restaurant just before

Briscoe on the night of the June robbery. The identification of appellant by the eye-witnesses is sufficient to support appellant's convictions. See Davis v. State , 177

S.W.3d 355, 359 (Tex. App.--Houston [1st Dist.] 2005, no pet.) ("It is well

established that a conviction may be based on the testimony of a single eyewitness.");

Harmon v. State , 167 S.W.3d 610, 614 (Tex. App.--Houston [14th Dist.] 2005, pet.

ref'd) (holding witness's testimony identifying appellant is sufficient, standing alone,

to support conviction); Aguilar v. State , 468 S.W.2d 75, 77 (Tex. Crim. App. 1971).

As to whether appellant was a party to the June 20 robbery, given appellant's

active role in the earlier robbery with Briscoe six weeks earlier under similar

circumstances -- i.e., they appeared as customers immediately before the offense,

appellant was present at the Waffle House just seconds before Briscoe entered with

a gun, appellant's placing a to-go order was a ruse because appellant did not pick up

the order when he left the restaurant immediately before the offense, and the close

relationship between appellant and Briscoe, a juror could have reasonably found that

appellant encouraged, aided, or attempted to aid Briscoe by, for instance, informing

him via cell phone of the conditions inside the restaurant, creating a distraction just

prior to the robbery, and serving as a lookout while Briscoe pointed the gun at

Christian and emptied the cash register. There is evidence in the record indicating

that appellant was acting with Briscoe under a common scheme. See Wygal , 555

S.W.2d at 469 (holding that circumstantial evidence may suffice to show that one is

a party to an offense); see also Miller , 83 S.W.3d at 314 . Viewing the evidence in a

light most favorable to the jury's verdict, the record shows that appellant acted as a

party to the June 20, 2007 aggravated robbery.

As to both offenses, a rational jury could conclude from this evidence that

appellant, acting as a party, while in the course of committing theft, placed Waffle

House employees in fear of imminent bodily injury or death while using or exhibiting

a deadly weapon, namely, a firearm. Tex. Penal Code Ann. §§ 29.02 & 29.03.

Therefore, the evidence is legally sufficient to support the jury's verdicts of guilt.

D. Factual Sufficiency

1. Standard of Review

When conducting a factual sufficiency review, we view all of the evidence in

a neutral light. Brown v. State , 212 S.W.3d 851, 859 (Tex. App.--Houston [1st Dist.]

2006, pet. ref'd) (citing Ladd v. State , 3 S.W.3d 547, 557 (Tex. Crim. App. 1999)).

We will set the verdict aside only if (1) the evidence is so weak that the verdict is

clearly wrong and manifestly unjust or (2) the verdict is against the great weight and

preponderance of the evidence. Brown , 212 S.W.3d at 859 (citing Johnson v. State ,

23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). Under the first prong of Johnson , we

cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply

because, on the quantum of evidence admitted, we would have voted to acquit had we

been on the jury. Brown , 212 S.W. 3d at 859 (citing Watson v. State , 204 S.W.3d

404, 417 (Tex. Crim. App. 2006)). Under the second prong of Johnson , we cannot

declare that a conflict in the evidence justifies a new trial simply because we disagree

with the jury's resolution of that conflict. Id. Before finding that evidence is

factually insufficient to support a verdict under the second prong of Johnson , we must

be able to say, with some objective basis in the record, that the great weight and

preponderance of the evidence contradicts the jury's verdict. Id. In conducting a

factual sufficiency review, we must also discuss the evidence that, according to the

appellant, most undermines the jury's verdict. Brown , 212 S.W.3d at 859 (citing Sims

v. State , 99 S.W.3d 600, 603 (Tex. Crim. App. 2003)).

We may not re-weigh the evidence and substitute our judgment for that of the

fact-finder. King v. State , 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The

fact-finder alone determines what weight to place on contradictory testimonial

evidence because that determination depends on the fact-finder's evaluation of

credibility and demeanor. Cain v. State , 958 S.W.2d 404, 408-09 (Tex. Crim. App.

1997). As the determiner of the credibility of the witnesses, the fact-finder may

choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5.

2. Analysis

Appellant contends that the evidence supporting his convictions is factually

insufficient. Specifically, appellant argues that Blackmon was an unreliable witness

because she admitted to being "in shock" during the first robbery, was unduly

influenced by Nieto when she examined the photo arrays, and is a "convicted drug

felon." Additionally, appellant argues that there was "no physical evidence" linking

him to either robbery and that he has strong alibi testimony regarding both offenses.

Because the jury is the exclusive judge of the credibility of the witnesses and

of the weight to be given their testimony, we cannot, on appeal, weigh the credibility

of the witnesses. See Barnes v. State , 876 S.W.2d 316, 321 (Tex. Crim. App. 1994).

Here, the jury chose to believe the testimony of Blackmon and Christian and

disbelieve that of appellant's alibi witnesses, and we cannot disturb the jury's

determination. See Losada v. State , 721 S.W.2d 305, 309 (Tex. Crim. App. 1986)

(holding jury is sole judge of witness credibility and may believe some witnesses and

refuse to believe others).

Appellant argues that Blackmon admitted her identification of appellant was

tainted by police. This is a misstatement of the record. In his brief, appellant

contends that a police officer told Blackmon that the photo of the suspect was in the

photo array. To the contrary, Sergeant Nieto admonished Blackmon that the photo

array may or may not have contained a photograph of the suspect. Blackmon's

testimony shows that she understood the admonishment, as she testified that she

would not have circled one of the pictures if she did not see one of the individuals

who committed the offense.

Also, appellant states in his brief that police officers told Blackmon how to

spell "positive," instructing her to write that on the photo she chose. Again, appellant

misstates the record. First, it is important to note that the testimony referred to

marking of the photo array containing Briscoe's picture, not appellant's picture. (1)

Moreover, Blackmon never testified that anyone told her how to spell "positive."

Rather, she testified that she made a spelling mistake, crossed it out, wrote "positive"

correctly, and then the officer asked her to initial the change to indicate that she made

the change.

In his brief, appellant argues that "the prints clear him" from being the

perpetrator of the May 2007 offense. This assertion is without merit. Testimony was

given that another waitress and the cook touched the receipt on which the print was

found. The fingerprints of those individuals were not taken and compared to the print

left on the receipt. Because the evidence shows that other persons touched the

receipt, it cannot be said that only the true perpetrator could have left the print in

question.

Appellant states in his brief that "Christian said that Appellant was the man

simply on the cell phone, not involved in the robbery." (Emphasis added.) This is

also a misstatement of the record. When questioned about the photo array containing

the picture, Christian testified "[t]hat's the first gentleman with the cell phone who

is sitting in the courtroom." She never testified that appellant was not involved in the

robbery. Appellant similarly misstates the record when he argues, "There was no

testimony that Appellant was at all involved as a party to that 2nd robbery." Rather,

Blackmon testified that the "same people" robbed the store again. The second

robbery occurred around 4 a.m. on a slow night, when there was only one customer.

Christian testified that appellant entered the restaurant around 4:00 a.m. and told her

that he wanted to place a to-go order. Appellant was talking on a cell phone and went

into the bathroom for about five minutes. Appellant left the restaurant without

receiving the order he placed. As appellant exited the restaurant, Briscoe entered

brandishing a weapon. Additionally, the jury could have properly considered the

joint participation of Briscoe and appellant in the May robbery to decide that they had

a similar plan to act together in committing the June offense. The circumstances of

the June offense tend to show that appellant was not merely present but, rather,

assisted in the robbery. See Miller , 83 S.W.3d at 314 .

Appellant also points out the lack of physical evidence, such as video evidence,

fingerprints, or DNA. However, the lack of physical evidence does not render the

evidence supporting appellant's convictions factually insufficient. Harmon v. State ,

167 S.W.3d 610, 614 (Tex. App.--Houston [14th Dist.] 2005, pet. ref'd). A rational

jury could have found appellant guilty of aggravated robbery without DNA evidence,

fingerprint evidence, or evidence of the gun or cash from the robbery. Id. (citing

Santos v. State , 116 S.W.3d 447, 459 (Tex. App.--Houston [14th Dist.] 2003, pet.

ref'd).

In his brief, appellant argues that, "No one could say if the gun used was real

or fake." This contention misrepresents the record. The eyewitnesses testified that

Briscoe brandished a "gun" during the commission of both robberies. Specifically,

Blackmon testified that, on May 12, 2007, Briscoe "had a gun pointed at [her]

forehead" when she was standing "approximately two feet" away. Blackmon testified

she feared for her life, which indicates that she believed the gun to be real. Christian

testified that on June 20, 2007, Briscoe came into the restaurant with a gun drawn and

pointed the gun at her. Christian feared she would be killed. Christian testified that

the weapon was a "revolver" and described it as a "[d]ark gun, short nose, stub barrel,

black handle." Trial counsel never asked Blackmon or Christian (the two employees

at whom Briscoe pointed the gun) if the gun could have been fake.

There was no testimony given that the gun was fake. Trial counsel asked

Deborah Farrar, a waitress on May 12, 2007, if she thought the gun was fake. Farrar

testified that she saw the gun and believed it was real. Farrar said that she was

familiar with pistols because her stepfather owned several. Sergeant Nieto testified

that the witnesses reported that a revolver was used. Trial counsel questioned

Sergeant Nieto on the possibility of the revolver being fake, and Sergeant Nieto

responded that he "would think that someone would know a real gun from a fake

gun."

Testimony from a complainant in close proximity to a weapon, describing it as

a "gun," a "revolver," and a "pistol," is sufficient to prove the use of a deadly

weapon. Wright v. State , 591 S.W.2d 458, 459 (Tex. Crim. App. 1979). It is true that

courts have held that testimony regarding the use of a "gun" may be insufficient to

support a finding of use and exhibition of a deadly weapon when the case presents

separate evidence indicating the use of a toy gun. See Pena Cortez v. State , 732

S.W.2d 713, 715 (Tex. App.--Corpus Christi 1987, no pet.) (holding that testimony

regarding use of "pistol" was insufficient where it was uncontroverted that "pistol"

was toy gun). Here, there was testimony that described the weapon as a "gun" and

a "revolver," and there was no evidence indicating that it could have been fake or a

toy. Thus, the testimony is sufficient to satisfy the element that a deadly weapon was

used. See Wright , 591 S.W.2d at 459 .

Weighed in a neutral light, the evidence is not so weak that the verdicts are

clearly wrong and unjust. Laster v. State , 275 S.W.3d 512, 518 (Tex. Crim. App.

2009). Also, there is no objective basis in the record to conclude that the great weight

and preponderance of the evidence contradicts the jury's verdicts. Watson v. State ,

204 S.W.3d 404, 417 (Tex. Crim. App. 2006). We hold the evidence is factually

sufficient to support appellant's convictions for aggravated robbery.

We overrule appellant's first issue.

II. Batson Challenge

In his second issue, appellant contends that the trial court erred by denying his

Batson (2) challenge because the State used four of its eleven peremptory challenges to

strike four of the five blacks from the venire panel. The State argues that appellant

has not shown that the prosecutor's race-neutral explanations were a pretext and,

therefore, that the trial court properly denied appellant's Batson challenge.

A. The Law

The Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution and Article 35.261 of the Texas Code of Criminal Procedure prohibit the

use of peremptory challenges to exclude veniremembers on the basis of race. See

U.S. Const. amend. XIV, § 1; Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon

2006); Batson v. Kentucky , 476 U.S. 79, 85 , 106 S. Ct. 1712, 1716-17 (1986). In the

face of perceived purposeful discrimination, the defendant may request a Batson

hearing to address the challenge. See Tex. Code Crim. Proc. Ann. art. 35.261(a).

Trial courts follow a three-step process when resolving Batson challenges.

Snyder v. Louisiana , 552 U.S. 472 , ---, 128 S. Ct. 1203, 1207 (2008); Young v. State ,

283 S.W.3d 854, 866 (Tex. Crim. App. 2009). First, the defendant must make a

prima facie showing that the State exercised a peremptory challenge on the basis of

race. Snyder , 552 U.S. at ---, 128 S. Ct. at 1207 ; Young , 283 S.W.3d at 866 .

Second, if the prima facie showing has been made, the burden of production shifts to

the State to articulate a race-neutral reason for its strike. Snyder , 552 U.S. at ---, 128

S. Ct. at 1207 ; Young , 283 S.W.3d at 866 . A reason is deemed race-neutral if no

discriminatory intent is inherent in the explanation given. Purkett v. Elm , 514 U.S.

765, 768 , 115 S. Ct. 1769, 1771 (1995). In the third and final step, the trial court

determines whether the defendant has carried his burden to prove purposeful

discrimination. Snyder , 552 U.S. at ---, 128 S. Ct. at 1207 ; Young , 283 S.W.3d at

866 . Throughout the challenge, the burden of persuasion remains with the defendant,

who may continue to rebut the prosecutor's explanations before the trial court decides

the Batson challenge. Moore v. State , 265 S.W.3d 73, 78 (Tex. App.--Houston [1st

Dist.] 2008, no pet.) (citing Purkett , 514 U.S. at 768 , 115 S.Ct. at 1771 ). The

defendant must prove by a preponderance of the evidence that the allegations of

purposeful discrimination were true in fact and that the prosecutor's reasons were

merely a sham or pretext. Watkins v. State , 245 S.W.3d 444, 451-52 (Tex. Crim.

App. 2008).

B. Standard of Review

"On appeal, a trial court's ruling on the issue of discriminatory intent must be

sustained unless it is clearly erroneous." Snyder , 552 U.S. at ---, 128 S. Ct. at 1207 .

To hold that a decision was "clearly erroneous," we must be left with a "definite and

firm conviction that a mistake has been committed." Moore , 265 S.W.3d at 78

(quoting Goldberg v. State , 95 S.W.3d 345, 385 (Tex. App.--Houston [1st Dist.]

2002, pet. ref'd)). Appellate courts must give great deference to credibility and

demeanor determinations made by the trial court in connection with a Batson inquiry.

Snyder , 552 U.S. at ---, 128 S. Ct. at 1208 (observing that "the best evidence of

discriminatory intent often will be the demeanor of the attorney who exercises the

challenge"). We may not substitute our opinion for the trial court's factual

assessment of the neutrality of the prosecutor's explanation for exercising strikes.

Gibson v. State , 144 S.W.3d 530 , 534 n.5 (Tex. Crim. App. 2004); see Snyder , 552

U.S. at ---, 128 S. Ct. at 1208 (holding "in the absence of exceptional circumstances,"

deference should be given to trial court). We view the evidence in the light most

favorable to the trial court's ruling. Young , 283 S.W.3d at 866 . We focus on the

genuineness rather than on the reasonableness of the State's asserted race-neutral

reason. Gibson , 144 S.W.3d at 533-34 . In evaluating the genuineness of the State's

proffered race-neutral reasons, we consider "all of the circumstances that bear upon

the issue of racial animosity[.]" Snyder , 552 U.S. at ---, 128 S. Ct. at 1208 (citing

Miller-El v. Dretke , 545 U.S. 231, 239 , 125 S. Ct. 2317, 2324 (2005)).

When determining whether a race-neutral explanation was a pretext for

purposeful discrimination, we examine whether comparative evidence demonstrates

disparate treatment of minority venirepersons. See Miller-El , 545 U.S. at 241 , 125

S. Ct. at 2325 . If a prosecutor's race-neutral reason for striking a minority

venireperson applies equally to an otherwise similar non-minority venireperson who

the prosecutor does not challenge, this may be evidence that the race-neutral reason

is a pretext for purposeful discrimination. See id. We cannot, however, automatically

impute disparate treatment in every case in which a reason for striking a minority

venireperson also technically applies to a non-minority venireperson whom the

prosecutor found acceptable. See Cantu v. State , 842 S.W.2d 667, 689 (Tex. Crim.

App. 1992). The decision to strike a particular potential juror is not susceptible to

rigid qualification. Id. As the Court of Criminal Appeals has explained, the decision

to strike a venireperson "is a fluid process, often hinging on the interaction of a

number of variables and permutations" and it "is unlikely that two venirepersons on

one panel will possess the same objectionable attribute or character trait in precisely

the same degree." Id. Such differences, especially in light of a limited number of

available peremptory strikes, may properly cause the State to challenge one potential

juror and not another. See id. Accordingly, we must also look to the entire record to

determine if, despite a similarity, there are any significant differences between the

characteristics and responses of the veniremembers that would, under the facts of this

case, justify the prosecutor treating them differently as potential members of the jury.

See Miller-El , 545 U.S. at 247 , 125 S. Ct. at 2329 .

C. Batson Hearing

In response to the State's exercise of its strikes, appellant's trial counsel

asserted a Batson challenge, contending that the State struck four veniremembers

because of their race. The record shows that a venire panel of sixty-four people was

summoned for jury selection. Forty-two of these survived challenges for cause. Prior

to the parties' marking of their peremptory strikes, the court announced that the strike

zone ended at veniremember 52, with 53, 56, and 57 to be considered as alternates.

The strike zone consisted of thirty-five veniremembers. Five of those thirty-five

(14.29%) were black. Each side was allowed eleven strikes. The State used four of

its eleven strikes (36.36%) to remove four out of five of the black panel members

available to serve on the jury.

The trial court took judicial notice, recognizing that appellant and

veniremembers 7, 8, 9, 14, and 31 were black. Of the five black panel members, the

prosecutor struck panel members 7, 9, 14, and 31. Panel member 8 was not struck by

either side and, ultimately, served on the jury. During the Batson hearing, the court

asked the prosecutor to provide his reasons for striking panel members 7, 9, 14 and

31.

The prosecutor explained that he struck panel members 7 and 31 because they

were both employed by the United States Postal Service ("USPS"). The prosecutor

explained, "I've specifically had one case that was hung with a United States Postal

Service worker. Also, my experience in talking with witnesses and juries after cases

have been resolved, I've experienced problems in regards to that as an occupation."

The prosecutor added that panel member 31 originally indicated that she would not

consider assessing a life sentence. The prosecutor stated that he struck panel member

9 because, like panel member 31, he initially indicated that he would not consider a

life sentence. The prosecutor stated that he struck panel member 14 because she

indicated that she had previously visited a loved one in prison on a felony.

The trial court found that the State provided race-neutral reasons for its strikes

of panel members 7, 9, 14, and 31 and denied appellant's Batson challenge. On

appeal, appellant argues that the trial court's finding of race-neutral reasons for the

State's strikes was clearly erroneous. (3)

At the onset, we note that the State used a statistically disproportionate number

of strikes on black members of the panel. As mentioned above, 14.29% of the panel

within the strike zone were black. However, the State used 36.36% of its strikes on

black panel members. A statistically disproportionate number of the State's strikes

were used against black veniremembers. "The disproportionate use of strikes would

obviously serve to establish a prima facia case," but because the prosecutor provided

a race-neutral explanation, the inquiry whether the defendant has made a prima facie

case is moot. Watkins , 245 S.W.3d at 452 ; see Moore , 265 S.W.3d at 78 . Beyond

establishing a prima facie case, the disproportionality in the use of strikes may also

"support the appellant's ultimate burden of persuasion that the State's proffered race-neutral explanations are a sham." Watkins , 245 S.W.3d at 452 . But, as the United

States Supreme Court in Miller-El notes, a comparative analysis is "more powerful"

than "bare statistics," and thus, we consider the reasons offered by the prosecutor to

explain each strike. See Miller-El , 545 U.S. at 241 , 125 S. Ct. at 2325 .

1. Veniremembers Wiggins and Fontenot

Wiggins (veniremember 7) and Fontenot (veniremember 31) were both black

women employed by the USPS. At the Batson hearing, the prosecutor testified that

he struck Wiggins and Fontenot because of their employment with the USPS. The

prosecutor also stated that veniremember 31 originally indicated that she would not

consider assessing a life sentence.

"[W]hen the State indicates that it challenged a prospective juror based on that

person's type of employment and that the State has had poor success with that type

of worker, the reason is a race-neutral explanation for exercising the peremptory

challenge." Moore , 265 S.W.3d at 84 (holding that striking postal worker on basis

of occupation was race-neutral); see Tompkins v. State , 774 S.W.2d 195, 205 (Tex.

Crim. App. 1987), aff'd , 490 U.S. 754 (1989) (also holding strike based on

employment with postal service was race-neutral). A strike based on a persons's type

of employment is deemed to be genuine so long as other people with the same

occupation are also struck. Moore , 265 S.W.3d at 84 .

Here, the prosecutor explained that he struck panel members 7 and 31 because

they were both employed by the USPS. The prosecutor pointed out that panel

members 3 and 42 were non-black panel members also employed by USPS, but those

individuals were removed for cause prior to the exercise of peremptory strikes. Thus,

all persons on the venire employed by USPS were removed, either for cause or by the

prosecutor's use of peremptory strikes.

Appellant's trial counsel did not cross-examine the prosecutor on his

explanation but simply responded by arguing that there "is no merit in castigating the

entire United States Postal Service and using that as a weapon to strike anybody that

ever worked for the postal service. It just so happens all these employees were

black." However, the simple fact that the postal employees were black is not

sufficient to satisfy appellant's burden under Batson . See Tompkins , 774 S.W.2d at

205 ; Young , 283 S.W.3d at 866 . Because appellant has pointed to no evidence, such

as disparate treatment of postal workers of different races that would rebut the State's

race-neutral explanation, we will not disturb the trial court's finding that the State's

explanation was sufficient. Accordingly, we cannot conclude that the trial court

clearly erred in accepting the State's race-neutral explanation with respect to the

strike of Wiggins and Fontenot, or that Wiggins and Fontenot were treated disparately

from other panel members.

2. Veniremember King

King, veniremember 14, indicated during the prosecutor's questioning that she

had visited a loved one in prison who had been convicted of a felony. The prosecutor

stated that he struck King because of this response, along with all other panel

members who answered similarly. Courts have held that having family or loved ones

arrested, convicted, or in prison is a race-neutral reason for striking a panel member.

Simpson v. State , 119 S.W.3d 262, 267-68 (Tex. Crim. App. 2003); Earhart v. State ,

823 S.W.2d 607 (Tex. Crim. App. 1991).

The record reflects that four other panel members (numbers 16, 37, 39, and 53)

provided a similar response. The prosecutor successfully challenged panel member

39 for cause and struck panel members 16, 37, and 53. The record shows that the

prosecutor's treatment of veniremembers who had visited loved ones in prison was

uniform.

Counsel for appellant offered no response to the prosecutor's stated reason for

striking King. Because the record supports the prosecutor's statement that he

uniformly struck all persons within the strike zone who provided a similar response

to King, we cannot conclude that the trial court clearly erred in denying appellant's

Batson challenge with respect to King or that King was treated disparately.

3. Veniremember Robertson

Robertson, veniremember 9, was a black man who initially indicated that he

could not consider a life sentence for an aggravated robbery. The prosecutor

explained that he struck Robertson for this reason. Unwillingness to consider the full

range of punishment is a race-neutral reason for striking a panel member. Watkins ,

245 S.W.3d at 451 .

Appellant's trial counsel responded by arguing that the prosecutor's

explanation was not genuine and was a pretext because he "did not strike [panel

members] 33, 41, 52, and 57, none of which are black and all of which initially said

they could not consider a life sentence." In other words, appellant contends that the

prosecutor treated Robertson differently than other veniremembers who gave similar

initial answers because of his race. Accordingly, we move to a comparative analysis

to determine if the State's race-neutral explanation was merely a pretext. Id.

a) Comparative Analysis

During the State's voir dire examination, the prosecutor explained that the

range of punishment for aggravated robbery was "15 years to life" and asked panel

members if they would be able to consider life imprisonment. The State posed the

question by calling the number of each panel member, allowing each to respond "yes"

or "no." At trial, appellant contended that panel members 33, 41, 52, and 57 provided

a response similar to Robertson's, indicating that they could not consider a

punishment of life imprisonment.

i) Robertson and Veniremember 57

Contrary to appellant's argument, the record reflects that, unlike Roberston,

veniremember 57 answered, "Yes," indicating that she could consider a life sentence.

Thus, appellant was incorrect in asserting that panel member 57 gave a response

similar to Robertson's, and we need not consider panel member 57 in our comparative

analysis.

ii) Robertson and Veniremember 41

Similarly, the record reflects that veniremember 41's answer to the prosecutor's

question was significantly different from Robertson's answer. Unlike Roberston's

categorical answer of "no," veniremember 41's answer was conditioned on the

availability of parole in this case. The record shows the following exchange occurred

when the prosecutor reached panel member 41:

[Prosecutor]: 41?

[Veniremember 41]: Can you clarify, with or without parole?

[Prosecutor]: I can't get into -- the Judge is going to advise you that we can't

talk about that.

[Veniremember 41]: Then no.

From this exchange, it can be reasonably inferred that veniremember 41's

answer hinged on whether the sentence would be life imprisonment with the

possibility of parole. The jury charge did, in fact, include an instruction on parole and

how it was to be considered by the jury in this case. (4) Knowing that a life sentence

here would be imposed with the possibility of parole, the prosecutor could have

reasonably determined that veniremember 41, if selected for the jury, would be able

to consider a life sentence after receiving the instruction regarding consideration of

parole in assessing punishment. Because veniremember 41answered differently from

Robertson, it would also be reasonable that the prosecutor would not find

veniremember 41 objectionable to the same degree as Robertson and choose not to

exercise a peremptory strike on veniremember 41. See Johnson v. State , 959 S.W.2d

284, 292 (Tex. App.--Dallas 1997, pet. ref'd) ("[P]rospective jurors may share a

negative feature, but that feature may be outweighed by characteristics that are

favorable from the State's perspective. Such distinctions may properly cause the

State to challenge one potential juror and not another.") ; see also Cantu , 842 S.W.2d

at 689 (observing that the decision to strike a particular venireperson "is a fluid

process, often hinging on the interaction of a number of variables and permutations"

and it "is unlikely that two venirepersons on one panel will possess the same

objectionable attribute or character trait in precisely the same degree"). Under these

circumstances we conclude that the prosecutor's failure to strike veniremember 41

does not raise an inference of disparate treatment. Id.

iii) Robertson and Veniremember 52

The record as a whole shows that the responses given by veniremember 52 on

the issue are not sufficiently similar to the response given by Roberston to raise an

inference of disperate treatment.

When the prosecutor first posed the question to the panel, the initial responses

of Robertson and veniremember 52 were the same; they both answered "No"

(indicating that they could not assess a life sentence as punishment). However, both

later changed their answer.

During the defense's examination, appellant's attorney attempted to rehabilitate

those panel members who indicated they could not consider a life sentence by

describing particularly "gruesome" facts and globally asking by row who "could

never consider a life sentence for an aggravated robbery case, no matter how

gruesome the facts?" Only four panel members (numbers 2, 39, 42, and 48) raised

their hands and indicated that they wished to maintain their previous response and

still would not consider a life sentence. Most of those who, during the State's voir

dire examination, originally indicated that they could not consider a life sentence

were rehabilitated by remaining silent and not affirmatively stating that they wished

to keep their previous response. However, unlike Robertson and the other

veniremembers, the record reflects that veniremember 52 was rehabilitated by raising

her hand and affirmatively stating that she wished to change her answer. The record

reflects the following exchange during the defense's voir dire examination:

[Defense Counsel]: But you are still sticking to [your previous response] --

your number is?

[Veniremember 52]: 52

[Defense Counsel]: You are still sticking to your position?

[Veniremember 52]: I'm 52, and I'm changing my answer to yes.

Additionally, the record reflects that panel member 52 was called up to the

bench individually:

[The Court]: Earlier when they were asking you a question, you said you

couldn't give life in a case. I think that you eventually changed that. Did you

stick to that, or did you change it?

[Veniremember 52]: I changed it. I can.

The issue of the ability of a potential juror to assess punishment was an

important issue to both the defense and prosecution. Because the manner in which

veniremember 52 affirmatively changed her initial response was significantly

different from how Robertson was rehabilitated, it would be reasonable that the

prosecutor would not find veniremember 52 objectionable to the same degree as

Robertson. See Cantu , 842 S.W.2d at 689 (observing that veniremembers often

possess negative attributes to varying degrees and such distinctions may properly

cause the State to challenge one juror and not another). In other words, it was not

unreasonable for the prosecutor to conclude that veniremember 52 was more certain

and sincere in her subsequent change of answer than Robertson. Viewing the entire

record as a whole, we cannot conclude that the prosecutor's failure to strike

veniremember 52 raises an inference of Robertson's disparate treatment because of

race and that the prosecutor's explanation for striking Robertson was a pretext.

iv) Robertson and Veniremember 33

Finally, we consider veniremember 33. Both veniremember 33 and Robertson

provided the same answer to the prosecutor's question regarding a potential life

sentence and both were passively rehabilitated on this issue by appellant's trial

attorney. However, a review of the entire record supports the conclusion that the

prosecutor's failure to strike veniremember 33 for the same reason as Robertson was

the result of a mistake in his notes and not evidence of his disparate treatment of

Robertson based on race.

Here, in response to the challenge by appellant's trial counsel, the prosecutor

represented to the trial court that he exercised a peremptory strike on all

veniremembers who he had marked in his notes as stating that they could not consider

life imprisonment and that he did not strike veniremember 33 because she was not

marked in his notes as having given this response. Appellant's counsel did not cross

examine the prosecutor on this statement or request the production of the prosecutor's

notes to assess the truth of the statement. See Pondexter v. State , 942 S.W.2d 577,

582 (Tex. Crim. App. 1996) (holding that appellant is entitled to prosecutor's voir

dire notes if they were actually used by prosecutor to refresh his memory); Salazar

v. State , 795 S.W.2d 187, 193 (Tex. Crim. App. 1990) (holding that production of a

prosecutor's juror information notes is both "necessary and proper" when prosecutor

refreshes his memory regarding the exercise of peremptory challenges by reviewing

those notes before giving testimony at Batson hearing). Nor has appellant's counsel

presented evidence from the record that would create an inference that the prosecutor

made the mistake in his notes and/or misrepresented to the court the contents of his

notes for the purpose of concealing the alleged disparate treatment of Robertson

because of his race. For example, here, there is no evidence in record that the

prosecutor (1) made statements during voir dire or trial indicating that race played any

factor in his strikes, (2) did not direct any questions to black veniremembers before

attempting to strike them, or (3) attempted a jury shuffle to remove black jurors from

the strike zone. (5) See, e.g., Moore, 265 S.W.3d at 89 ; see also Miller-El , 545 U.S. at

233 , 125 S. Ct at 2320-21 (court considered State's use of jury shuffle to rearrange

panel members when a number of black members were seated at front as indicative

of a broader pattern of discrimination, and ultimately found that State's strikes against

blacks were also racially motivated). (6) Significantly, the prosecutor's conduct in

exercising his peremptory strikes was consistent with his representation to the trial

court that he used his strikes in an attempt to remove all veniremembers who, like

Robertson, initially indicated that they could not consider life. See Watkins , 245

S.W.3d at 453 (holding that, reviewing record in its entirety, prosecutor's race-neutral

reason was not a pretext where State applied this reason to strike black veniremember

and most but not all similarly situated non-black veniremembers) (emphasis added).

Specifically, of those veniremembers who initially indicated they would not consider

life imprisonment, eight were removed for cause and eight others were methodically

stricken by the State. (7) In sum, reviewing the entire record regarding non-black

veniremembers who, like Robertson, initially responded that they could not give a

life sentence in this case, we find that most were removed for cause or struck by the

State, and those who were not struck have differences far more significant than any

similarity to Robertson. Accordingly, we conclude that the prosecutor's race-neutral

explanation for striking Robertson can be reasonably accepted, and it was not a

pretext. See Miller-El , 545 U.S. at 247 , 125 S. Ct. at 2329 (credibility of reasons

given can be measured by "how reasonable, or how improbable, the explanations are;

and by whether the proffered rationale has some basis in accepted trial strategy").

We cannot conclude that the trial court clearly erred in denying appellant's

Batson challenge to the State's use of peremptory strikes on panel members 7, 9, 14,

and 31. See Moore , 265 S.W.3d at 78 (defining "clearly erroneous" as requiring "a

definite and firm conviction that a mistake has been committed"). Accordingly, we

overrule appellant's second issue.

III. Mother's Testimony

In his third issue, appellant contends that the trial court erred by refusing to

allow his mother to testify that appellant is "mentally retarded" during the punishment

phase of trial.

A. The Record

During the punishment phase, while appellant's mother was on the stand, the

following exchange occurred:

[Defense counsel]: And how was he doing in school?

[Witness]: He wasn't doing well.

[Defense counsel]: Why not?

[Witness]: Because [appellant] is mentally retarded, and he got--

[Prosecutor]: Objection, Your Honor. Hearsay.

[The Court]: Sustained.

[Defense counsel]: Can I make a bill on that, Judge?

[The Court]: Sure.

The parties approached the bench. At the bench, the following exchange

occurred:

[The Court]: Mental retardation has a specific definition. It has specific proof.

Do you have some kind of proof other than this lady's testimony that she

believes her son to be retarded?

[Defense counsel]: I do but I'm not planning to go into it, and I'm not planning

to ask her if somebody told her. I'm asking her her opinion.

[The Court]: How would she know?

[Defense counsel]: I think a parent knows if their child is slow or mentally

retarded.

[The Court]: Mentally retarded is a legal term. If you can establish that

she--I'm giving you your bill. If you can establish she knows the definition

and she has seen the testing, certainly a parent can testify to that if they know

the required information. The term [sic] "slow" and "mentally retarded" aren't

equal. And then and about the brother--

[Defense counsel]: I probably would have phrased it as "slow" rather than

"mentally retarded" if I had asked a leading question on that, but she chose the

word "mentally retarded."

[The Court]: That's the reason that I--

[Defense counsel]: I'm not arguing with your ruling. I will never argue with

your ruling.

[The Court]: I understand. If you want to follow it up with a question as

opposed to a bill, but if you want to do a bill right now to prove up she can

testify as to mental retardation, that's fine.

Appellant's counsel then conducted a voir dire examination of appellant's

mother:

[Defense counsel]: And what would cause you to say [appellant] was mentally

retarded?

[Witness]: Because he was diagnosed with that when he was in school for

ADHD. And when he was taken into CPS custody, he been [sic] through a lot

of psychiatrists since the age of 7 until the age of 17. And I've got proof and

a package of his medical history of his mental illness. He's slow. He's got

dyslexia.

[Defense counsel]: Judge, I wasn't planning to offer any of the written

documents. I was just going to offer her impressions, and I wasn't even going

into what all the diagnosis was and who diagnosed and all that kind of stuff.

Basically from my perspective, I want to prove up from his mother's standpoint

he was slow in school.

The trial court permitted appellant's mother to testify as follows:

[Defense counsel]: My question that I'm asking you about now is confined to

when [appellant] was about 7, and I'm asking you your opinion as to his

mental abilities, not a legal opinion and not what somebody else may have told

you, not any records, just what you observed as his mother. How was he doing

mentally at the age of 7?

[Witness]: [Appellant] wasn't functioning normal like a regular child.

[Defense counsel]: And what do you mean by that? And I'm talking about

school work.

[Witness]: He--well, he read [sic] his words--the way he see [sic] his words--

the way we see our words before us, his words is [sic] backwards.

[Defense counsel]: And how was he doing in school grade-wise?

[Witness]: He wasn't doing good [sic] at all. He was in special education

classes.

[Defense counsel]: And how would you characterize, without using legal

words, his mental abilities? Sharp, normal, slow? What would you say?

[Witness]: Slow.

B. The Law

Appellant contends on appeal that, under Rule 701 of the Texas Rules of

Evidence, the trial court should have allowed appellant's mother to testify that

appellant is mentally retarded. However, the issue was not properly preserved for

appellate review. See Tex. R. App. P. 33.1.

Texas Rule of Appellate Procedure 33.1 requires, as a prerequisite to

presenting an issue for appellate review, that the record show that the appellant

brought the issue before the trial court by timely request, objection, or motion, that

stated the grounds with sufficient specificity to make the trial court aware of the

complaint. See id.

C. Analysis

Appellant did not explain to the trial court why his mother should have been

allowed to testify that he was mentally retarded under any rule of evidence, let alone

Rule 701. On the contrary, counsel for appellant stated that he was "not arguing with

[the trial court's] ruling" and that the witness, rather than the attorney, "chose the

word 'mentally retarded.'" Counsel for appellant further informed the trial court that

he only wanted to establish "from [appellant's] mother's standpoint" that "[appellant]

was slow in school." The trial court allowed appellant's mother to provide that

testimony.

Under these circumstances, we conclude that appellant failed to preserve the

issue for appellate review. See Tex. R. App. P. 33.1. We overrule appellant's third

issue.

Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Hanks.

Publish. Tex. R. App. P. 47.2(b).

1. When shown the photo array containing appellant's photo, Blackmon circled appellant's photo and

wrote, "positive both cases."

2. Batson v. Kentucky, 476 U.S. 79 , 106 S. Ct. 1712 (1986).

3. We note that appellant's briefing on the Batson issue is surprisingly general and cursory and

contains misstatements of the record. However, given the important nature of the constitutional

rights involved in this appeal, we construe our briefing rules liberally and will address the full merits

of this issue. See Tex. R. App. P. 38.9.

4. The jury charge in the punishment phase included the following instructions:

Under the law applicable in this case, the defendant, if sentenced to a term of

imprisonment, may earn time off the period of incarceration imposed through the

award of good conduct time. Prison authorities may award good conduct time to a

prisoner who exhibits good behavior, diligence in carrying out prison work

assignments, and attempts at rehabilitation. If a prisoner engages in misconduct,

prison authorities may also take away all or part of any good conduct time earned by

the prisoner.

It is also possible that the length of time for which the defendant will be

imprisoned might be reduced by the award of parole.

Under the law applicable in this case, if the defendant is sentenced to a term

of imprisonment, he will not become eligible for parole until the actual time served

equals one-half of the sentence imposed or thirty years, whichever is less, without

consideration of any good conduct time he may earn. Eligibility for parole does not

guarantee that parole will be granted.

It cannot accurately be predicted how the parole law and good conduct time

might be applied to this defendant if he is sentenced to a term of imprisonment,

because the application of these laws will depend on decisions made by prison and

parole authorities.

You may consider the existence of the parole law and good conduct time.

However, you are not to consider the extent to which good conduct time may be

awarded to or forfeited by this particular defendant. You are not to consider the

manner in which the parole law may be applied to this particular defendant.

5. In Moore , responding to a Batson challenge, the prosecutor stated that her reason for striking a

black panel member was because she was "an 'older' female with no children" and explained she

wanted jurors with children because they were familiar with the difficulties in dealing with children.

265 S.W.3d at 87 . The prosecutor represented to the trial court that, consistent with her trial strategy,

she also struck a non-black female panel member without children. Id. However, this statement was

not true. The record revealed that the prosecutor did not strike that individual; that panel member

had been struck by appellant. Id. at 88 .

In reviewing the record as a whole, we found evidence in Moore that would support the

inference that the prosecutor's statement to the court was not a good faith error but rather an attempt

to justify the unlawful disparate treatment of a black veniremember. Specifically, the prosecutor

in Moore explained that her strike "was not just based on . . . skin color," indicating the prosecutor

did not eliminate skin color from her consideration. Id. (emphasis added). We also noted that the

State did not direct any questions to the black panel member, and further questioning of the panelist

might have yielded more information. Id at 89. Under these circumstances we found that the

prosecutor engaged in the unlawful discrimination of black veniremembers because of race. In the

present case, a review of the record does not reveal such similar evidence.

6. We note that, in this case, four of the five black veniremembers were seated in the first row of the

panel.

7. The record reveals that veniremembers 2, 10, 11, 32, 38, 39, 42, and 48 were removed for cause,

and the State struck veniremembers 6, 9, 14, 23, 27, 31, 37, and 53.