AFFIRM; Opinion issued November 13, 2012




                                                       In The
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                                   iftI! htrtrt 01 iJrxzu at 1a11a
                                                 No. 05-i 1-00247-CR


                                    MARVIN BE WAYNE BROWN, Appellant

                                                         V.

                                          THE STATE OF TEXAS, Appellee


                                On Appeal from the 203 Judicial District Court
                                             Dallas County, Texas
                                     Trial Court Cause No. FI0-58542-P


                                         MEMORANDUM OPINION
                                     Before Justices Morris, Francis, and Murphy
                                              Opinion By Justice Morris

        A jury found Marvin Dwayne Brown guilty of possession of a controlled substance with

intent to deliver. I-Ic complains on appeal that the trial court erred in overruling his Batson
                                                                                         1

complaints. We affirm the trial court’s judgment. The background of the case and the evidence

adduced at trial are well known to the parties. and therefore we limit recitation of the facts. We issue

this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to

be applied in the case is well settled.

        l)uring jury selection, prospective juror Davis and others were asked by the prosecutor what




     Ba/Son   v. Keniuokv. 476 U.S. 79(1986).
they would look for to show them the defendant was intending to deliver drugs. Davis responded,

“Trying to deliver it to someone.” Later, the prosecutor asked if any of the prospective jurors had

travel plans or doctor appointments that might conflict with the trial. Prospective juror Terrell

volunteered that he had a doctor appointment in two days. The prosecutor asked if he could

reschedule, and Terrell stated, “I can call and reschedule.”

       The State exercised peremptory- strikes against Davis and Terrell. among others. Appellant.

noting that Davis, Terrell, and appellant were all African-American, made a Ba/son motion

requesting the trial court to deny the strikes. Offering her reasons for the strikes, the prosecutor

commented.

              Juror 17, he had a doctor’s appointment Thursday. Wasn’t sure whether or
       not he was able to reschedule it. We struck on the basis of that. We didn’t want an
       inconvenience for him.

               And the same reason for Juror 1 8 with the autistic brother.



               [Davis] was the only one who wanted the actual delivery to be taking place
       or be an occurrence [sic]. We looked at that, the possibility she would want the
       buyer to he here. We don’t have that person as a witness so we struck her.

Defense counsel countered that the fact Terrell “may have a doctor’s appointment maybe he can’t

reschedule” did not prevent Terrell from sitting and claimed that there were additional prospective

jurors “who indicated other medical issues preventing them.”          In response, the prosecutor

commented,

              Ifs all fun and games until we hit Thursday and Mr. Terrell says he can’t be
       here and Mr. King can’t be here Friday and [we] push the case into next week      —




       assuming everybody on the jury can be here next week.
              That just occurred in Auxiliary 1 last month. It’s not his inconvenience as
       much as I don’t want to come back next week or the week after to finish the case.

       With respect to Davis, defense counsel argued that because appellant was not accused of
delivery, the fact that Davis would “want the person that he delivered to” in a delivery case was not

relevant in appellant’s case because he was charged only with possession with intent to deliver. The

trial court denied appellant’s Baison motions.

        In his two points of error on appeal, appellant complains the trial court erred in denying his

Ba/son motions. The following three-step process applies to a Ba/son challenge: (1) the defendant

must make a prima facie showing that the prosecutor exercised peremptory strikes on the basis of

race. (2) the burden then shifts to the prosecutor to state a race-neutral reason for the strikes, and (3)

the trial court must decide whether the defendant has proved purposeful racial discrimination. See

Grantv. Slate. 325 S.W.3d 655, 657 (Tex. Crim. App. 2010). 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. See Bausiei’ v. S/ate. 997 S.W.2d 313, 315 ((Tex. App.—Dallas

1999. pet. ref d). We give great deference to the trial court’s decision on the issue of purposeful

discrimination because it requires an assessment of credibility and content of the prosecutor’s

reasons and all other relevant facts and circumstances. Alexander r. State. 866 S.W.2d 1. 8 (Tex.

Crim. App. 1993).

       Here, the prosecutor offered reasons for her strikes that were race-neutral on their face.

Appellant challenged the strikes but never rebutted the strikes to a degree that showed the prosecutor

was being untruthful about the strikes or using them as a pretext for racial discrimination. Pretext

is not shown merely because an explanation is factually correct. Greer v. State, 310 S. W. 3d 11, 16

(Tex. App.—Dallas 2009. no pet.). Only when the State’s explanation for striking ajuror is clearly

contrary to the evidence have we held that there is “no innocent mistake” and reversed for Ba/son

error. id. To the extent the prosecutor in appellant’s case may have exaggerated Terrell’s inability

to reschedule his doctor appointment or Davis’s need to have evidence of the actual person to which
appellant delivered the controlled substance, such exaggeration does not amount to proof her reasons

were pretexts for racially motivated strikes. See 1dair     i’.   Stale. 336 S.W.3d 680. 692 (Tex.

App—Houston [1 Dist.1 2010, pet. refd). Deferring to the trial court’s decision, we conclude it

did not err in denying appellant’s Batson motions. We overrule his two points of error.

       We affirm the trial court’s judgment.




                                                JOSEjicTThMRRl S
                                               L8Tl CE

Do Not Publish
TEx. R. App. P. 47
ii 0247F.U05




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                                       JUDGMENT
MARVIN DEWAYNE BROWN. Appellant                         Appeal from the 203w Judicial District Court
                                                        of Dallas County, Texas. (Tr.Ct.No. F10-
No. 05-11-00247-CR           V.                         58542-P).
                                                        Opinion delivered by Justice Morris,
THE STATE OF TEXAS. Appellee                            Justices Francis and Murphy participating.

      Based on the Court’s   opinion of this   date. the judgment of the trial court is AFFIRi’IED.



Judgment entered November 13, 2012.




                                               JOET?JOiRIS
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