Affirmed and Opinion Filed February 7, 2013.




                                       In The
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                                      No. 05-11-01590-CR

                      EDGAR MANUEL CISNEROS, Appellant
                                                V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the 199th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 199-82276-2010

                                           OPINION
                           Before Justices Moseley, Francis, and Lang
                                     Opinion by Justice Lang
       Edgar Manuel Cisneros appeals the trial court’s judgments convicting him of continuous

sexual abuse of a young child and aggravated sexual assault of a child younger than fourteen

years of age. The jury found Cisneros guilty and assessed his punishment at imprisonment for

life for each offense. Cisneros raises four issues on appeal, arguing: (1) the trial court erred

when it denied his motion for new trial because he received ineffective assistance of counsel; (2)

the evidence is insufficient to support his conviction for continuous sexual abuse of a young

child; (3) the evidence is insufficient to support his conviction for aggravated sexual assault of a

child younger than fourteen years of age; and (4) the trial court erred when it overruled his

Batson objection during voir dire.
       We conclude the trial court did not err when it denied Cisneros’s motion for new trial

because he did not meet his burden to show that his trial counsel was ineffective. Also, we

conclude the evidence is sufficient to support Cisneros’s convictions. Finally, we conclude the

trial court did not err when it overruled Cisneros’s Batson objection. The trial court’s judgments

are affirmed.

                       I. FACTUAL AND PROCEDURAL BACKGROUND

       When E.M. was nine or ten years of age, Cisneros, her father, began biting her breasts

when they played together.      After E.M. told her mother about this, Cisneros stopped that

particular conduct. Instead, Cisneros started lying in bed with E.M., put his hands beneath her

shirt, and touched her breasts. Then, when EM. was around eleven years of age, Cisneros

started licking the “inside of [E.M.’sj butt and put his penis in there sometimes.” This happened

often and continued until E.M. was fourteen. Also, Cisneros would have E.M. and her siblings

play hide and seek. While the other children were hiding, Cisneros would tie a T-shirt or towel

over E.M.’s eyes and tell her she had to “lick the peanut butter off [of] his finger.” However, on

one occasion, E.M. saw that it was actually “his private part” and stated that, even when she

could not see, she did not believe it was his finger because it “would be really small at first and

soft, and then it would get really hard to fit in [her] mouth.” E.M.’s parents separated, but she

continued to visit Cisneros. After Cisneros left the family residence, he licked E.M.’s anus only

one time.

       E.M. told a close family friend that Cisneros was constantly asking her to send him

inappropriate photos of herself on the phone.     Also, EM. told the friend about the “peanut

butter” activities. That friend immediately called E.M.’s mother and the police.
       Cisneros was indicted for continuous sexual abuse of a young child and aggravated

sexual assault of a child younger than fourteen years of age. The jury convicted Cisneros of both

offenses and assessed his punishment at imprisonment for life for each offense. Cisneros filed a

motion for new trial, arguing he received ineffective assistance of counsel.         After a hearing

where Cisneros’s trial counsel testified, the trial court denied his motion for a new trial.

                          II. INEFFECTIVE ASSISTANCE OF COUNSEL

        In issue one, Cisneros argues the trial court erred when it denied his motion for new trial

because he received ineffective assistance of counsel.        He claims that his trial counsel was

ineffective because he failed to call any witnesses to testify on his behalf during both the guilt

and innocence, and punishment phases of his trial. Also, Cisneros argues that his trial counsel

failed to request a continuance in order to secure witnesses to testify during the punishment

phase of his trial. Further, Cisneros argues his trial counsel was ineffective because he failed to

request a presentence investigation.      The State responds that Cisneros fails to identify the

witnesses that should have been called, the nature of their testimony, and whether they would

have been available to testify.     Also, the State contends that Cisneros’s trial counsel fully

investigated the case and interviewed all potential witnesses, so Cisneros is merely second-

guessing his trial counsel’s strategic decisions.

                                          A. Standard of Review

        When an appellant presents his ineffective assistance claim to the trial court in a motion

for new trial, an appellate court analyzes his ineffective assistance of counsel issue as a challenge

to the denial of his motion for new trial. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim.

App. 2004) (holding appropriate standard of review for ineffective assistance claim brought forth

in motion for new trial is abuse of discretion), superseded by statute on other grounds as stated




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in Herndon v. State, 215 S.W.3d 901 (Tex. Crim. App. 2001); see also Sanchez v. State, 243

S.W.3d 57, 63 (Tex. App.—Houston [1st Dist.1 2007, pet. ref’d); Schoenbauer v. State, 85

S.W.3d 400, 402 (Tex. App.—Tyler 2002, no pet.). In such circumstances, an appellate court

reviews the Strickland test through an abuse of discretion standard. charles, 146 S.W.3d at 208.

An appellate court must decide whether the trial court’s resolution of the ineffective assistance of

counsel claim and the denial of the motion for new trial were clearly wrong and outside the zone

of reasonable disagreement. See Sanchez, 243 S.W.3d at 63, An appellate court will reverse

only if the trial court’s decision was arbitrary or unreasonable, viewing the evidence in the light

most favorable to the ruling. Biagas v. State, 177 S.W.3d 161, 170 (Tex. App.—Houston [1st

Dist.j 2005, pet. denied).

                                            B. Applicable Law

       To prevail on a claim of ineffective assistance of counsel, an appellant must show the

following: (1) counsel’s performance fell below an objective standard of reasonableness; and (2)

a reasonable probability exists that, but for counsel’s errors, the result would have been different.

See Strickland v. Washington, 466 U.S. 668, 687—88, 694 (1984); Andrews v. State, 159 S.W.3d

98, 101 (Tex. Crim. App. 2005).        To satisfy the first part of the test, the defendant must

overcome a strong presumption that counsel’s performance fell within the wide range of

reasonable, professional assistance and might be considered sound trial strategy. Strickland, 466

U.S. at 689; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); see Bone v. State, 77

S.W.3d 828, 833 (Tex. Crim. App. 2002).          The reasonableness of counsel’s performance is

judged under prevailing professional norms. Strickland, 466 U.S. at 688. An appellate court’s

review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.

Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 813. Under the second part of the test, a




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reasonable probability is a probability sufficient to undermine confidence in the outcome.

Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812. Failure to make the required showing

of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See

Andrews, 159 S.W,3d at 101; Thompson, 9 S.W.3d at 813. A claim for ineffective assistance of

counsel may not he predicated on a failure to call witnesses unless the defendant shows such

witnesses were available and their testimony would benefit him.                   Ex parte Flores, No. AP

76,862, 2012 WL 6027333, at *7 n.54 (Tex. Crim. App. Dec. 5, 2012); King v. State, 649

S.W.2d 42 (Tex. Crim. App. 1983); Brennan v. State, 334 S.W.3d 64, 79 (Tex. App—Dallas

2009, no pet.).

       Appellant has the burden of proving ineffective assistance of counsel by a preponderance

of the evidence. Thompson, 9 S.W.3d at 813. Ineffective assistance of counsel claims must be

firmly founded in the record and not based on retrospective speculation. See Bone. 77 S.W.3d at

835.

                                           C. Application of the Law to the Facts

        During the hearing on Cisneros’s motion for new trial, his trial counsel testified. Trial

counsel recounted his attempts to contact the witnesses he thought were important for his trial

preparation, but he “was not able to find any favorable witnesses.” During the hearing, Katrina,

Cisneros’s girlfriend, was specifically identified as a potential witness. However, trial counsel

stated that he interviewed Katrina “[ajnd she could have testified about some matters that

probably weren’t that helpful, but she did not want to testify.” Trial counsel also stated that he

spoke to everyone who could have testified and “they kept coming up a dry hole.” According to

trial counsel, there was some suggestion “[E.M. and her sisterj related to Roger [Cisneros’s

brotherl   .   .   .   they did not want to testify or that they didn’t want to see [Cisneros] go to prison for




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a long time.” However, that information turned out not to be true.          Similarly, at Cisneros’s

suggestion, trial counsel spoke with Luis, Cisneros’s nephew, regarding the possibility that E.M.

had talked with Luis and recanted.       However, Luis denied the conversation had occurred.

Cisneros has not identified any other witnesses he believes should have been called by his trial

counsel to testify.

        As to the presentence investigation, trial counsel stated that, at the time, he did not

believe requesting a presentence investigation would have benefitted Cisneros. Cisneros offered

no specific reasons why such an investigation would have been beneficial or even admissible

before the jury if requested, or why trial counsel’s judgment was deficient.

        Finally, as to whether a continuance should have been sought to seek witnesses, trial

counsel stated he did not believe there was a valid reason for seeking a continuance of the trial

date because he had completed the necessary preparation for trial. We conclude that Cisneros

has not shown that his trial counsel’s performance fell below an objective standard of

reasonableness.

        Even if trial counsel’s performance were determined to fall below an objective standard

of reasonableness, Cisneros must show a reasonable probability exists that, but for trial counsel’s

errors, the result would have been different. In his brief, Cisneros states that

        Even if [Cisneros] did not desire to ask for leniency or at least not a Life [sic]
        sentence, typically family members or friends are asked to speak on behalf of [the
        defendant]. Furthermore, it is not only the words of these witnesses that may alter
        a case such as this from a sentence of Life [sic] to something much less, but just
        having even one witness appear and testify for you at least shows the 1 2-member
        jury that one person in this world cares about the future of your life. [Cisneros]
        received the maximum sentence for each Count; simply put, [Cisneros] could not
        have been sentenced to any worse. Therefore, it would not be a stretch to suggest
        that one witness or many witnesses could have spared two Life [sic] sentences.
        Prejudice in this regard appears to be certain.




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       Cisneros appears to argue that since he received “the maximum sentence for each count,”

he was necessarily harmed by counsel’s failure to act as alleged. We cannot agree. Cisneros

does not specify the witnesses that should have been called and what those witnesses would have

said. Further, he does not demonstrate how a continuance would have allowed witnesses to be

found. Nor does he demonstrate how a presentence investigation would have been admissible.

We conclude that Cisneros has not demonstrated that, but for trial counsel’s errors, the result

would have been different.

       Accordingly, we conclude the trial court did not err when it denied Cisneros’s motion for

new trial because Cisneros has not shown that he received ineffective assistance of counsel.

Cisneros’s first issue is decided against him.

                               III. SUFFICIENCY OF THE EVIDENCE

       In issues two and three, Cisneros argues the evidence is insufficient to support his

convictions.

                                          A. Standard of Review

        When reviewing the sufficiency of the evidence, an appellate court considers all of the

evidence in the light most favorable to the verdict to determine whether the jury was rationally

justified in finding guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318—

19 (1979); Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012); Brooks v. State, 323

S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.).          Appellate courts are required to

determine whether any rational juror could have found the essential elements of the offense

beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 902 n.19. An

appellate court is required to defer to the jury’s credibility and weight determinations because the

jury is the sole judge of the witnesses’ credibility and the weight to be given to their testimony.




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See Jackson, 443 U.S. at 319, 326; Merritt, 368 S,W,3d at 525; Brooks, 323 S.W.3d at 899. All

evidence, whether properly or improperly admitted, will be considered when reviewing the

sufficiency of the evidence. See McDaniel v, Brown, 558 U.S. 120 (2010) (per curiam); Lockhart

v. Nelson, 488 U.S. 33, 41—42 (1988); Jackson, 443 U.S. at 319.

                               B. continuous SexualAbuse of a child

       In issue two, Cisneros argues the evidence is insufficient to support his conviction for

continuous sexual abuse of a young child. He claims the State failed to prove that he committed

two or more acts of sexual abuse during a period that was more than thirty days in duration and

while the victim was a child younger than fourteen years of age. The State responds that E.M.’s

diary established one date for some of the sexual abuse and the jury could infer the dates of the

other abuse because E.M. testified Cisneros sexually abused her “often” during a four-year

period, which included the relevant time frame.

                                          1. Applicable Law

       Texas’s continuous sexual abuse statute was enacted as a response to concerns that prior

law did not easily “accommodate the prosecution of generic, undifferentiated, ongoing acts of

sexual abuse of children” involving the “common factual scenario of an ongoing crime involving

an abusive sexual relationship of a child.” Dixon v. State, 201 S.W.3d 731, 737 (Tex. Crim.

App. 2006) (Cochran, I., concurring); Michell v. State, 381 S.W.3d 554, 561 (Tex. App.—

Eastland 2012, no pet.); Williams v. State, 305 S.W.3d 886, 890 n.7 (Tex. App—Texarkana

2010, no pet.). A person commits the offense of continuous sexual abuse of a young child if,

during a period that is thirty or more days in duration, the person commits two or more acts of

sexual abuse, and at the time of the commission of each act of sexual abuse, the victim is a child

younger than fourteen years of age. TEx. PENAL CODE ANN.      § 2 1.02(b) (West Supp.   2012); see




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Render v. State. 316 S.W.3d 846, 856 (Tex. App—Dallas 2010, pet. ref’d). The members of a

jury are not required to agree unanimously on which specific acts of sexual abuse were

committed or the exact date when those acts were committed.           TEx. PENAL CODE ANN. §

21.02(d); Render, 316 S.W.3d at 856.

                                2. Application of the Law to the Facts

       The continuous sexual abuse of a young child statute became effective on September 1,

2007. TEx. PENAL CODE ANN. § 21.02. It also requires that the victim is younger than fourteen

years of age. TEX. PENAL CODE ANN. § 2 1.02(a). As a result, the State was required to prove the

sexual abuse of E.M. occurred between September 1, 2007 and July 25, 2009, or when E.M. was

at least twelve years, thirty-seven days old and before her fourteenth birthday. The record shows

that E.M. testified that when she was “from 11 to 14” Cisneros would put her face-down on the

bed, put a pillow over her head, pull down her pants and “lick inside [her] butt and put his penis

in there sometimes.” She stated that this happened “often.” Also, E.M. stated that a “couple of

times” or “three or four times” when she was “11 to 13” Cisneros would have her and her

siblings play hide and seek. While the other children were hiding, Cisneros would tie a T-shirt

or towel over her eyes and tell her she had to “lick the peanut butter off [of] his finger.”

However, on one occasion, E.M. saw that it was actually his private part and stated that, even

when she could not see, she did not believe it was his finger because it “would be really small at

first and soft, and then it would get really hard to fit in [her] mouth.” Further, E.M. stated that
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her parents separated when she was in the             grade” and one time after they separated,

Cisneros put his “tongue on her butt or penis in her butt.” E.M. stated that the instances of

sexual abuse occurred while she was living at the Mission apartments. In addition, E.M. testified

that she received a diary around July 1, 2008, and in the middle of that diary on approximately




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six or seven pages she wrote about the things Cisneros did to her. Cisneros found the diary and

took it away from E.M. Then, in August 2008, E.M. found the diary on her desk with those

pages removed.

       Although EM. did not give the specific dates when the instances of sexual abuse to

which she referred took place, she was able to state that they occurred during a period when she

was eleven to fourteen years of age, the grade she was in at school, and where they took place.

See Micheil, 381 S.W.3d at 561. She also stated that the abuse occurred “often.” We conclude a

rational jury could have found that two or more acts of sexual abuse occurred after EM. was

twelve years, thirty-seven days old and before she turned fourteen years of age. Accordingly, we

conclude the evidence is sufficient to support Cisneros’s conviction for continuous sexual abuse

of a young child.

       Issue two is decided against Cisneros.

                               C. Aggravated Sexual Assault of a Child

       In issue three, Cisneros argues the evidence is insufficient to support his conviction for

aggravated sexual assault of a child younger than fourteen years of age. He claims the State’s

evidence fails to prove that he sexually assaulted E.M. before she was fourteen years of age. The

State responds that the evidence is sufficient because E.M. testified Cisneros sexually assaulted

her over a four-year period beginning when she was eleven years old.

                                          1. Applicable Law

        Section 22.02 1 of the Texas Penal Code provides that a person commits an offense if the

person intentionally or knowingly causes the anus of a child to contact the sexual organ of

another person, including the actor, and the victim is younger than fourteen years of age. TEx.

PENAL CODE ANN. § 22.021(a)(1)(B)(iv), (a)(2)(B) (West Supp. 2012).         When an indictment




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alleges an offense occurred “on or about” a particular date, the State is not bound by the date

alleged, and may prove any offense of the character alleged, within the period covered by the

applicable statute of limitations. See Ex parte Goodman, 152 S.W.3d 67, 71 (Tex. Crim. App.

2004); Garcia v. State, 981 S.W.2d 683, 685 (Tex. Crim. App. 1998); Sledge v. State, 953

S.W.2d 253, 256 (Tex. Crim. App. 1997), The date in the indictment is intended to show the

prosecution is not barred by the statute of limitations and to provide the defendant with sufficient

notice to prepare an adequate defense. See Garcia, 981 S.W.2d at 686.

                                 2. Application of the Law to the Facts
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       The indictment alleged that “on or about the                day of July, 2008” Cisneros

intentionally or knowingly caused the anus of E.M., a child younger than fourteen years of age to

contact the male sexual organ of Cisneros. The record shows that EM. testified Cisneros began

anally abusing her when she was eleven years of age or approximately 2006 and that the anal

abuse occurred “often.” As a result, the record shows that the offense occurred within the statute

of limitations and before the presentment of the indictment. See Garcia, 981 S.W.2d at 686.

Accordingly, we conclude the evidence is sufficient to support Cisneros’s conviction for

aggravated sexual assault of a child younger than fourteen years of age.

        Issue three is decided against Cisneros.

                   IV. PEREMPTORY CHALLENGES TO THE JURY PANEL

        In issue four, Cisneros argues the trial court erred when it overruled his Batson objection

during voir dire. He claims the State failed to offer a race-neutral reason for using its peremptory

strike against venire-member Rios. The State responds that it provided a race-neutral reason for

striking the venire member, the trial court determined the reason was not pretextual, and




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Cisneros offers no evidence of disparate questioning, strikes, or any other reason to contradict

the trial court’s determination.

                                         A. Standard of Review

        When reviewing a Batson challenge, an appellate court examines the record in the light

most favorable to the trial court’s ruling and reverses only when the ruling is clearly erroneous.

Herron v. State, 86 S.W.3d 621, 630 (Tex. Crim. App. 2002); Pondexter v. State, 942 S.W.2d

577, 581 (Tex. Crim. App. 1996); Bausley v. State, 997 S.W,2d 313, 315 (Tex. App.—Dallas

1999, pet. ref’d). A ruling is clearly erroneous when, after searching the record, an appellate

court is left with the definite and firm conviction that the trial court has made a mistake.

Bausley, 997 S.W.2d at 315. If the record, including the voir dire, the prosecutor’s explanation

of his peremptory challenges, appellant’s rebuttal, and any impeaching evidence, supports the

trial court’s ruling, then the ruling is not clearly erroneous. Bausley, 997 S.W.2d at 315.

                                           B. Applicable Law

        To challenge the State’s use of peremptory strikes under Batson, a defendant must first

make a prima facie showing that the State exercised peremptory strikes on an impermissible

basis. Herron, 86 S.W.3d at 630; Bausley, 997 S.W.2d at 316. Once a defendant makes a prima

facie showing of purposeful discrimination, the State must provide a race- or gender-neutral

explanation for striking the prospective juror in question. Miller-El v. Dretke, 545 U.S. 231, 239

(2005); Herron, 86 S.W.3d at 630; Pondexter, 942 S.W.2d at 581; Bauslev, 997 S.W.2d at 316.

This step requires an explanation devoid of inherent discriminatory intent. Bausley, 997 S.W.2d

at 315 (citing Purkett v. Elem, 514 U.S. 765, 768 (1995)). An explanation is neutral in this

context if the State bases it on something other than the juror’s race or gender. See Hernandez v.




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New York, 500 U.S. 352, 360 (1991). Unless discriminatory intent is inherent, the courts will

consider the explanation race or gender neutral. See Flernandez, 500 U.S. at 360.

       If the State provides a race- or gender-neutral explanation for its strikes, the defendant

may rebut the State’s explanation or show that the explanation was merely a sham or pretext.

See Herron, 86 S.W.3d at 630; Pondexter, 942 S.W.2d at 581; Bauslev, 997 S.W.2d at 316. To

meet this burden, the defendant may call witnesses and introduce evidence just as in any other

evidentiary hearing. Bausley, 997 S.W.2d at 3 i6At this third step, the persuasiveness of the

justification becomes relevant. See Purkett, 514 U.S. at 768. The defendant has the ultimate

burden of persuasion to establish the truth of his allegations of purposeful discrimination by a

preponderance of the evidence. See Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App.

2008). Language, by itself, does not identify members of a suspect class. See Fiores v. State,

904 S.W.2d 129, 130 (Tex. Crim. App. 1995).

                                C. Application of the Law to the Facts

       Initially, Cisneros complains that the juror panel lists, jury strike lists of the State, the

defendant and the trial court, and the juror information sheets were not included in the record

despite his written request. The State responds that these documents are not required to be

included in the record and Cisneros did not offer them into evidence at voir dire or during the

hearing on his motion for new trial. Cisneros provides no authority for the proposition that juror

questionnaires must be among the contents of the clerk’s record. The questionnaires are not

among those items enumerated by the Rules of Appellate Procedure for inclusion in the record.

See TEX. R. APP. P. 34.5(a). A party is only required to return the juror lists to the clerk. See

TEX. CODE CRIM. PROC. ANN. art. 35.26 (West 2006). The questionnaires were not filed or




                                                13
introduced into evidence. Accordingly, our review is confined to the record as presented in this

appeal.

          Following voir dire and the State’s peremptory strikes, Cisneros’s counsel objected,

arguing the State used a peremptory strike against venire-member Rios because he was Hispanic.

The State responded that venire-member Rios had asked about whether or not defense counsel

spoke Spanish. The State was concerned that because defense counsel stated he did not speak

Spanish, the prospective juror may believe he was not able to communicate properly with

Cisneros and, as a result, identify more with Cisneros. Cisneros’s counsel objected that the

State’s reason was pretextual because it was not a reasonable deduction from the limited

questioning of venire-member Rios, the State did not ask him any questions, and he gave no

response when defense counsel stated he did not speak Spanish. The trial court overruled the

objection. Cisneros did not call any witnesses or introduce any evidence. See Bausley, 997

S.W.2d at 316. It was Cisneros’s burden to establish the truth of his allegations of purposeful

discrimination. See Bausley, 997 S.W.2d at 316. Accordingly, we conclude the trial court did

not err when it overruled Cisneros’s Batson objection during voir dire.

          Issue four is decided against Cisneros.

                                             V. CONCLUSION

          The trial court did not err when it denied Cisneros’s motion for new trial because he has

not shown that his trial counsel was ineffective.        Also, the evidence is sufficient to support

Cisneros’s convictions. Finally, the trial court did not err when it overruled Cisneros’s Batson

objection.




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      The trial court’s judgments are affirmed.




                                                              LANG
                                                       JUS,

Do Not Publish
TEx. R. APP. P.47
11 1590F.U05




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                                           JUDGMENT

EDGAR MANUEL CISNEROS, Appellant                      On Appeal from the 199th Judicial District
                                                      Court, Cohn County, Texas
No. 05-1 1-0 1590-CR          V.                      Trial Court Cause No. 199-82276-2010.
                                                      Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                          Moseley and Francis participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


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Judgment entered this        day of February, 2013.




                                                      JUSTICE
