                                 NO. 07-05-0244-CR
                                     07-05-0245-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                  JULY 27, 2006
                         ______________________________

                           ALVIN GIDDINGS, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

            FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY;

        NO. 0925369D, 0925377D; HONORABLE JAMES R. WILSON, JUDGE
                      _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                              MEMORANDUM OPINION


      Appellant, Alvin Giddings, appeals two convictions for aggravated assault with a

deadly weapon and sentences of 18 years confinement in the Institutional Division of the

Texas Department of Criminal Justice. We affirm.


                                     Background


      Appellant and Barbara Keaton were involved in a relationship and resided together

until the relationship ended and appellant moved out. Shortly after moving out of the
apartment, appellant returned to retrieve some of his belongings that had remained and

was met by Keaton’s new boyfriend, Bernard Sullivan. A confrontation began between

appellant and Sullivan, culminating in appellant stabbing Sullivan and Keaton. As a result

of the stabbings, appellant was charged with two counts of aggravated assault with a

deadly weapon.


       Appellant elected a jury trial and began jury selection. At the conclusion of voir dire,

but before the selected jury was seated, appellant objected to the State’s use of two of its

preemptory challenges on venire members number six and 28, both of whom were African

Americans.     After considering the State’s explanation for the challenges, the court

overruled appellant’s objection and seated the jury.        At the conclusion of the guilt-

innocence stage of the jury trial, the court prepared the jury charge at which time appellant

requested additional instructions on the issues of self-defense and involuntary conduct.

However, the court refused the addition of either instruction.


       On appeal, appellant raises two issues, contending that the trial court erred in failing

to: (1) grant appellant’s Batson challenges,1 and (2) include the requested instructions in

the court’s jury charge.




       1
       A complaint to the State’s use of a preemptory challenge based on discriminatory
reasons is commonly known as a Batson challenge. See generally Batson v. Kentucky,
476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

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                                    Batson Challenges


       A trial court’s decision on a Batson challenge is reviewed under a clearly erroneous

standard of review. Hernandez v. New York, 500 U.S. 352, 365-66, 111 S.Ct. 1859, 114

L.Ed.2d 395 (1991); Gibson v. State, 144 S.W.3d 530, 534 (Tex.Crim.App. 2004). A

Batson challenge generally gives rise to a three-step process. Simpson v. State, 119

S.W.3d 262, 268 (Tex.Crim.App. 2003). First, the defendant must make a prima facie

case that a venire member was pre-emptorily excluded on the basis of race. Id. Next, the

prosecution must come forward with race-neutral reasons for the preemptory challenge.

Id. Finally, the defendant has the opportunity to rebut the State's explanations. Id. If the

State offers a race-neutral explanation before any inquiry on the prima facie case, the issue

of a prima facie case is moot. See id. The burden of persuasion remains with the

defendant to prove purposeful discrimination. Id. Once the State proffers race-neutral

explanations for its preemptory challenges, the burden, under Batson, is on the defendant

to convince the trial court that the State's reasons were not race-neutral; thus, the burden

of production shifts from the defendant to the State, but the burden of persuasion never

shifts from the defendant. See Ford v. State, 1 S.W.3d 691, 693 (Tex.Crim.App. 1999).

For purposes of a Batson challenge, the issue of whether the State's race-neutral

explanations for striking a venire member were pretextual is solely a question of fact; there

is no issue of law. See Gibson, 144 S.W.3d at 534. The trial court's ruling on a Batson

challenge is accorded great deference and will not be overturned on appeal unless it is

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




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and the trial court's ruling is clearly erroneous only if no plausible basis exists to support

it, see Whitsey v. State, 796 S.W.2d 707, 721-22 (Tex.Crim.App.1989) (op. on reh'g).


       Because the State offered race-neutral reasons for its challenges, the prima facie

inquiry is moot and we move on to consider whether the explanations offered were, in fact,

race-neutral. See Simpson, 119 S.W.3d at 268. The State explained its challenges on

venire member number six because of a prior assault and on venire member number 28

because the State felt he was immature, based on answers on his jury questionnaire. After

the State gave its explanations for its challenges, appellant, as the party making the Batson

challenge, had the burden to show that the explanations given were merely a pretext for

discrimination. See id. Appellant attempted to prove the State’s explanations were

pretextual by pointing out other jurors who were seated on the jury that the State could

have struck for the same reasons. Although there were other venire members with similar

backgrounds, appellant did not convince the trial court that the State’s explanations were

mere pretext, and that the State’s challenges were for racially discriminatory reasons.

Appellant did not attempt to prove that the State’s explanations were not plausible by

showing that venire member number six did not have a prior assault or that venire member

number 28 was mature. Under the appropriate standard of review, appellant has not

shown that the trial court’s ruling on the Batson challenge was clearly erroneous and that

the basis for the State’s challenges of the venire members were not plausible. See

Whitsey, 796 S.W.2d at 721-22. Appellant’s first issue is overruled.




                                              4
                                    Error in Court’s Charge


         Appellant contends that he was entitled to instructions on the defensive issues of

self-defense and involuntary conduct. In reviewing an allegation of charge error, an

appellate court must first determine whether the charge was, in fact, in error. Hutch v.

State. 922 S.W.2d 166, 170 (Tex.Crim.App. 1996). If so and if the error in the charge was

the subject of a timely objection, then reversal is required if the error was calculated to

injure the rights of defendant which means no more than that there must be some harm

to the accused from the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.

1984).


         A defendant is entitled to an instruction on self-defense if the issue is raised by the

evidence, whether that evidence is strong or weak, unimpeached or contradicted, and

regardless of what the trial court may think about the credibility of the defense. Ferrel v.

State, 55 S.W.3d 586, 591 (Tex.Crim.App. 2001). On the other hand, if the evidence,

viewed in the light most favorable to the defendant, does not establish self-defense, the

defendant is not entitled to an instruction on the issue. Id. A person is justified in using

deadly force against another when and to the degree he reasonably believes the deadly

force is immediately necessary to protect himself against another's use or attempted use

of unlawful deadly force. TEX . PEN . CODE ANN . § 9.32 (a)(3)(A) (Vernon 2003).


         To support his request for a self-defense instruction, appellant contends that

Sullivan was larger than him, grabbed him, and tried to grab the knife from his hand. Even

assuming that Sullivan was physically bigger than appellant, that Sullivan grabbed him, or


                                                5
that Sullivan attempted to grab the knife, appellant has not shown that he reasonably

believed that Sullivan intended to use deadly force or that he reasonably believed that

deadly force was necessary to protect himself against Sullivan’s use or attempted use of

unlawful deadly force. Therefore, we conclude that the trial court did not err in denying

appellant’s request for an instruction on self-defense.


      As to appellant’s request for an instruction on involuntary conduct, appellant

contended that the injury to Keaton was not caused by his voluntary act, but was the result

of an accident. Additionally, appellant made clear that his request was not a request for

an instruction on accident2 but was for an instruction on involuntary conduct, i.e., the

absence of voluntary conduct. A person commits an offense only if he voluntarily engages

in conduct, including an act, an omission, or possession. TEX . PEN . CODE ANN . § 6.01(a)

(Vernon 2003). Conduct is not rendered involuntary merely because an accused does not

intend the result of his conduct. Rogers, 105 S.W.3d at 638 (citing Adanandus v. State,

866 S.W.2d 210, 230 (Tex. Crim. App. 1993)). Appellant contends the evidence shows

that he did not intend to harm Keaton, that Keaton “got between” appellant and Sullivan

during the confrontation, and that he apologized after he stabbed her. But appellant is not

entitled to an involuntary conduct instruction simply because he did not intend to harm

Keaton. See id. Appellant has presented no proof that, although he did not intend to harm

Keaton, that he did not intend to pick up a knife or that he did not intend to use it as a

weapon. The evidence as to appellant’s own actions is undisputed. Since appellant did



      2
        Under the current penal code, there is no defense of accident. See Rogers v.
State, 105 S.W.3d 630, 637 ( Tex.Crim.App. 2003).

                                            6
not argue that his possession of the knife resulted from someone else’s act, was the

product of some independent non-human force, such as a convulsion, or was the result of

unconsciousness, hypnosis or other nonvolitional impetus, appellant has not raised the

issue of voluntariness. See id. Therefore, we conclude that the trial court did not err in

refusing to include appellant’s request for an instruction on involuntary conduct in the

court’s charge. Hutch, 922 S.W.2d at 170. Appellant’s second issue is overruled.


                                       Conclusion


      For the foregoing reasons, we affirm.




                                         Mackey K. Hancock
                                             Justice




Do not publish.




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