Opinion filed August 30, 2013




                                      In The


        Eleventh Court of Appeals
                                   __________

                                No. 11-12-00230-CR
                                    __________

                THOMAS EARL WHITFIELD, Appellant

                                        V.

                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 441st District Court
                            Midland County, Texas
                        Trial Court Cause No. CR38679



                                   OPINION
      The jury found Thomas Earl Whitfield guilty of the offense of aggravated
assault causing bodily injury with a deadly weapon. The trial court found “true” to
four enhancement paragraphs and assessed Appellant’s punishment at confinement
for fifty years. The trial court then sentenced him accordingly. We affirm.
      Appellant presents us with two issues on appeal: that the trial court erred
when it (1) overruled his Batson 1 objection to the State’s use of its peremptory
challenges and (2) refused to charge the jury on the lesser included offense of
deadly conduct.
                                            I. Background
      There was testimony that Appellant and a man named Tyzell Clater had
fought each other before.            On the date of the offense, Appellant went to an
apartment complex looking for another fight with Clater. Appellant found him
outside the apartments.
      Saul Dunn had been inside Clater’s apartment in that same complex.
Clater’s mother, Linda Kay Reed, and his sisters, Trynequa Robinson and T.G. 2
shared the apartment with Clater. Dunn came out of the apartment and was
looking for Clater when Appellant’s sons, Diantrel and Devontae Brown,
“jumped” him. Either Diantrel or Devontae hit Dunn in the face, and both of the
brothers began to hit and kick him. Reed called the police.
      Trynequa testified that, about the same time as the fight between Diantrel
and Devontae and Dunn broke out, she saw Appellant going toward Clater;
Appellant had a knife, and she called out to warn him. Clater backed away from
Appellant. Appellant turned around, saw his two sons fighting with Dunn, and
went to help them. There was testimony that, as Diantrel and Devontae held Dunn
down on the ground, Appellant sat on top of him and cut him across his stomach.
Dunn said that, after “feeling something go across his stomach,” he heard
Appellant say, “I got it.” When Dunn got up from the ground, the men stopped
hitting him.


      1   Batson v. Kentucky, 476 U.S. 79 (1986).

      2   T.G. is a minor.
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      Dunn, Clater, Trynequa, and T.G. each testified that they saw Appellant
make a sawing motion while Appellant was on top of Dunn, and each of them said
that Appellant stabbed Dunn.       A.T., 3 who also was at the apartment when
Appellant arrived, testified that she did not see Appellant with a knife but that she
saw Diantrel or Devontae stab Dunn while Appellant and the other brother held
Dunn down on the ground. Appellant admitted to his girlfriend that he was there
during the assault, but Appellant denied that he had a knife and that he stabbed or
cut Dunn. After the fight, Appellant and his two sons left. Medical personnel took
Dunn by ambulance to the hospital where doctors treated and stapled wounds to his
stomach, leg, and side.
                               II. Batson Challenge
      Appellant contends in his first issue that the trial court improperly overruled
his Batson challenge of the State’s use of its peremptory challenges. Appellant
contends that the State struck six potential jurors solely because they were
Hispanic and that such action was in violation of Batson v. Kentucky, 476 U.S. 79
(1986). The racial identity of the defendant “is irrelevant to a defendant’s standing
to object to the discriminatory use of peremptory challenges.” Powers v. Ohio,
499 U.S. 400, 416 (1991). On appeal, Appellant challenges the State’s use of its
peremptory challenges against four of those potential jurors. The State denies
using any of its peremptory strikes improperly.
      When we review a trial court’s ruling on a Batson challenge, we examine the
evidence in the light most favorable to the trial court’s ruling and determine
whether the record supports the trial court’s findings. See Keeton v. State, 749
S.W.2d 861, 870 (Tex. Crim. App. 1988). Our review of the record is “highly
deferential” to the trial court. Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim.
App. 2004). We reverse a trial court’s ruling only if it was “clearly erroneous.”
      3A.T.   is a minor.

                                         3
Id. A ruling is “‘clearly erroneous’ when, although there is evidence to support it,
the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Anderson v. City of Bessemer
City, 470 U.S. 564, 573 (1985) (quoting United States v. U.S. Gypsum Co., 333
U.S. 364, 395 (1948)); Whitsey v. State, 796 S.W.2d 707, 721 (Tex. Crim. App.
1989).
      Three steps are involved in a proper challenge of the State’s use of
peremptory strikes.    First, a defendant must make a prima facie showing of
purposeful discrimination by offering facts and other relevant circumstances to
raise an inference that the prosecutor exercised his peremptory strikes to exclude
potential jurors for their race, ethnicity, or gender.     Batson, 476 U.S. at 96;
Guzman v. State, 85 S.W.3d 242, 245 (Tex. Crim. App. 2002).
      After the court finds that a prima facie case has been made, the second step
involves two parts: A and B. Part A shifts the burden of production to the pro-
ponent of the strike to rebut the prima facie case of discrimination by offering “a
neutral explanation for the challenges,” while Part B requires the opponent to carry
the burden of persuasion that the neutral explanation given is “pretext.” Keeton v.
State, 724 S.W.2d 58, 65 (Tex. Crim. App. 1987); see Batson, 476 U.S. at 97–98.
A neutral explanation “means an explanation based on something other than the
race of the juror.” Hernandez v. New York, 500 U.S. 352, 360 (1991). If the State
offers facially valid explanations for its strikes, it has rebutted the presumption of
purposeful discrimination. Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim.
App. 1991).
      In the final step, the trial court must “determine whether despite the State’s
explanation, the defendant has established purposeful discrimination.” Keeton,
724 S.W.2d at 65 (court must rule on whether opponent proved purposeful
discrimination); see Williams, 804 S.W.2d at 101 (burden on opponent to show
                                          4
pretext); see also Guzman, 85 S.W.3d at 254. After it considers the credibility of
the prosecutor, the content of the explanation, any rebuttal evidence or argument
offered by the defendant, the trial court must make a finding of fact concerning
whether the State engaged in purposeful discrimination in the exercise of its
peremptory challenges. We “give[] great deference” to that finding. Keeton, 724
S.W.2d at 65. When the prosecutor offers a race-neutral explanation and the trial
court rules on the Batson challenge, whether a prima facie case was made is moot.
See Hernandez, 500 U.S. at 358; see also Hill v. State, 827 S.W.2d 860, 865 (Tex.
Crim. App. 1992).
      Here, after Appellant and the prosecutor delivered their strike lists to the trial
court, Appellant objected to the State’s use of peremptory strikes against six
Hispanic members of the venire. Without ruling on whether Appellant had shown
discrimination, the trial court asked the prosecutor for his nondiscriminatory
reasons for the strikes. The prosecutor explained that he struck all four prospective
jurors about which Appellant complains on appeal because of a lack of education
and that he also struck three of those four based on age. The trial court overruled
Appellant’s Batson challenges.
      Appellant contends that the trial court’s finding was erroneous because
“[t]he State failed to show the reasons offered, as to each of the venirepersons
struck by the State, were race neutral.” Appellant cites Chivers v. State for the
proposition that the State cannot strike a juror based on lack of education “without
a showing on the record of such venireman’s lack of intelligence,” and he argues
that “there was no such showing” as to four of the stricken veniremen.
See Chivers v. State, 796 S.W.2d 539 (Tex. App.—Dallas 1990, pet. ref’d).
      The Supreme Court rejected this argument in Purkett v. Elem, where it stated
that the second step of a Batson challenge “does not demand an explanation that is
persuasive, or even plausible.” 514 U.S. 765, 767–68 (1995). Instead, “the issue is
                                           5
the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is
inherent in the prosecutor’s explanation, the reason offered will be deemed race
neutral.” Id. at 768 (quoting Hernandez, 500 U.S. at 360). The Court further
explained:
             The Court of Appeals erred by combining Batson’s second and
      third steps into one, requiring that the justification tendered at the
      second step be not just neutral but also at least minimally persuasive,
      i.e., a “plausible” basis for believing that “the person’s ability to
      perform his or her duties as a juror” will be affected. It is not until the
      third step that the persuasiveness of the justification becomes
      relevant—the step in which the trial court determines whether the
      opponent of the strike has carried his burden of proving purposeful
      discrimination. At that stage, implausible or fantastic justifications
      may (and probably will) be found to be pretexts for purposeful
      discrimination. But to say that a trial judge may choose to disbelieve a
      silly or superstitious reason at step three is quite different from saying
      that a trial judge must terminate the inquiry at step two when the race-
      neutral reason is silly or superstitious. The latter violates the principle
      that the ultimate burden of persuasion regarding racial motivation
      rests with, and never shifts from, the opponent of the strike.
Id. (citations omitted). Although the proponent of a strike “must give a ‘clear and
reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the
challenges,” Batson, 476 U.S. at 98, n.20, and although the reason must be “related
to the particular case to be tried,” 476 U.S. at 98, the Court has explained that
“[t]his warning was meant to refute the notion that a prosecutor could satisfy his
burden of production by merely denying that he had a discriminatory motive.”
Purkett, 514 U.S. at 769. A “‘legitimate reason’ is not a reason that makes sense,
but a reason that does not deny equal protection.” Id.
      The Court of Criminal Appeals has explained that the burden that shifts
between the opponent and the proponent of the strike is the burden of production;
the opponent of the strike must produce sufficient evidence to establish a prima
facie case, and the burden shifts to the proponent to offer a race-neutral

                                          6
explanation. Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999). The court
further instructed:

      If a race-neutral explanation is proffered, then the third step occurs:
      the trial court must decide whether the opponent of the strike has
      proved purposeful racial discrimination. This is the step regarding the
      burden of persuasion. The Supreme Court stressed that the “ultimate
      burden of persuasion regarding racial motivation rests with, and never
      shifts from, the opponent of the strike.”
Id. (quoting Purkett, 514 U.S. at 768). To sustain the burden of persuasion, the
opponent of a strike must show that the reasons offered were pretext or were not
race neutral, “thus rebutting any race neutral explanation given at the Batson
hearing.” Williams, 804 S.W.2d at 101.
      The prosecutor’s explanation in this case—that he struck the four veniremen
because of lack of education or age—is race neutral; it satisfies the prosecutor’s
burden under the second step that requires articulation of a nondiscriminatory
reason for the strike. See Whitsey, 796 S.W.2d at 715–16 (stating age is one of the
permissible “nondiscriminatory reasons” for striking a panelist from the venire);
Holt v. State, 912 S.W.2d 294, 300–01 (Tex. App.—San Antonio 1995, pet. ref’d)
(stating lack of education is a race-neutral explanation for a peremptory strike).
Therefore, the burden shifted back to Appellant to rebut the State’s explanations or
show that the explanations were merely pretext. See Williams, 804 S.W.2d at 101.
      Appellant relied solely upon six Hispanic veniremen having been
peremptorily challenged when he made his Batson objection. He identified no
other facts or circumstances to support his claim of discrimination. He did not
cross-examine the prosecutor, present any evidence to otherwise rebut the State’s
explanations, or ask for an opportunity to do so. The State’s reasons for striking
the panelists were facially plausible and not contradicted. See Purkett, 514 U.S. at
769–70 (explaining that, unless discriminatory intent is inherent in the explanation,

                                         7
it will be deemed race neutral). Appellant did not offer the juror information cards
into evidence and has not directed us to any other evidence in the record showing
that the reasons given were pretext for a racially motivated strike. Compare
Young v. State, 826 S.W.2d 141, 145–46 (Tex. Crim. App. 1991) (urging parties to
make comparisons of the discrepancies between the proffered reasons and the
relevant circumstances during voir dire as part of rebuttal but permitting the parties
for the first time on appeal to give “the appellate court a more accurate picture of
the voir dire than a cold record”) with Vargas v. State, 838 S.W.2d 552, 556–57
(Tex. Crim. App. 1992) (explaining that a comparison is appropriate to find
discrepancies between the stated reason and the jury answers during voir dire but
that it is not appropriate to find discrepancies based on answers found on jury
information cards unless those answers were “introduced into evidence or elicited
before the trial judge during the voir dire”). We conclude that Appellant did not
meet his burden to rebut the State’s explanation or show that the explanation was
merely pretext. See Ford, 1 S.W.3d at 694. Because we are not left with the
“definite and firm conviction that a mistake has been committed,” we cannot
conclude that the trial court’s decision on Appellant’s Batson challenge was clearly
erroneous. See Hill, 827 S.W.2d at 865. Appellant’s first issue is overruled.
                                 III. Deadly Conduct
      Appellant argues in his second issue that the trial court failed to instruct the
jury on the lesser included offense of deadly conduct. Upon the request of a
defendant, the trial court should instruct the jury on a lesser included offense if
“(1) the requested charge is for a lesser-included offense of the charged offense
and (2) there is some evidence that, if the defendant is guilty, [he] is guilty only of
the lesser offense.” Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim. App.
2005) (emphasis added). The first step in the analysis requires us to “compare the
elements of the charged offense . . . with the elements of the lesser offense that
                                          8
might be added to the jury charge,” considering no evidence that was offered or
admitted. Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006). If the
offense constitutes a lesser included offense, then the second step requires us to
consider all of the evidence admitted to determine if “there is some evidence that
would support a rational finding that the defendant is guilty only of the lesser
included offense.” Id. at 188–89. If both requirements are met, the trial court must
instruct the jury on the lesser included offense. Id. at 189.
      Deadly conduct can be a lesser included offense of aggravated assault. See
Ford v. State, 38 S.W.3d 836, 845 (Tex. App.—Houston [14th Dist.] 2001, pet.
ref’d). “An offense is a lesser included offense if: (1) it is established by proof of
the same or less than all the facts required to establish the commission of the
offense charged.”     TEX. CODE CRIM. PROC. ANN. art. 37.09(1) (West 2006).
Appellant contends that deadly conduct is a lesser included offense because it “is
basically the same offense as aggravated assault, except that it has a less culpable
mental state,” and he cites Bell v. State, 693 S.W.2d 434 (Tex. Crim. App. 1985),
to support his argument. The State contends that Appellant’s reliance on Bell is
misplaced because it involved “an assault by threat not an assault involving bodily
injury,” as alleged in this case, and that proving actual bodily injury is different
from proving a danger of imminent serious bodily injury.
      Although the State is correct that the assault in Bell was by threat and is
distinguishable from assault causing bodily injury, the issue there turned on the use
of a deadly weapon. The Court of Criminal Appeals explained that “[t]he danger
of serious bodily injury is necessarily established when a deadly weapon is used in
the commission of an offense.” Bell, 693 S.W.2d at 438. The court concluded that
“proof of threatening another with imminent bodily injury by the use of a deadly
weapon constitutes proof of engaging in conduct that places another in imminent
danger of serious bodily injury.” Id. at 438–39. If we apply the same reasoning,
                                           9
an accused who caused bodily injury with a deadly weapon, as alleged in the
indictment here, placed the victim in imminent danger of serious bodily injury.
See Ford, 38 S.W.3d at 845 (holding it was not error for the trial court to include,
at the State’s request, an instruction on deadly conduct in a trial for aggravated
assault where the victim suffered bodily injury).
      The State argues that deadly conduct encompasses acts that “fall short of
harming another” and that, if an injury actually occurs, the actions do not constitute
deadly conduct. The Court of Criminal Appeals, however, rejected this argument
in Guzman, 188 S.W.3d at 190–91 n.11. The court recognized that several courts
of appeals have held this way, but it concluded that establishing the offense of
“deadly conduct neither requires nor excludes proof of physical injury.” Guzman,
188 S.W.3d at 191 n.11 (citing Ford, 38 S.W.3d at 845).
      To prove that Appellant committed aggravated assault as alleged in the
indictment, the evidence would have to show that Appellant (1) intentionally,
knowingly, or recklessly caused bodily injury to Dunn by stabbing, hitting,
kicking, or pushing him and (2) used or exhibited a deadly weapon during the
assault. See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). To prove the
offense of deadly conduct, the evidence would have to show that Appellant acted
recklessly and that he placed the victim in imminent danger of serious bodily
injury by stabbing, hitting, kicking, or pushing the victim, whether he actually
caused serious bodily injury or any bodily injury at all.        See id. § 22.05(a);
Guzman, 188 S.W.3d at 191. The culpable mental state for a crime may be
intentional, knowing, or reckless, and the Texas Court of Criminal Appeals has
held that recklessness is the culpable mental state for “both aggravated assault and
deadly conduct.” Guzman, 188 S.W.3d at 190. Because both offenses require
recklessness and because the use of a deadly weapon in committing assault places
the victim in imminent danger of serious bodily injury, the offense of deadly
                                         10
conduct is established by proof of the same or less than all the facts that prove
aggravated assault. See CRIM. PROC. art. 37.09(1). We conclude that the offense
of deadly conduct satisfies the first step of the test.
      We must now consider whether evidence in the record would permit a jury
to rationally find that Appellant was guilty only of deadly conduct and not
aggravated assault. See Guzman, 188 S.W.3d at 192. Before an instruction is
warranted, “‘[T]here must be some evidence directly germane to the lesser-
included offense for the finder of fact to consider.’” Goad v. State, 354 S.W.3d
443, 446 (Tex. Crim. App. 2011) (alteration in original) (quoting Hampton v. State,
109 S.W.3d 437, 441 (Tex. Crim. App. 2003)). We consider all of the evidence
admitted to determine whether “the lesser-included offense is a valid, rational
alternative to the charged offense.” Id. If evidence from any source raises the
issue of a lesser included offense, a charge on that lesser offense must be included
in the jury charge, whether the evidence is introduced by the State or the defense
and whether it is strong, weak, impeached, or contradicted. Bell, 693 S.W.2d at
442. When we determine whether such an instruction should have been given, we
do not consider whether the evidence is credible, whether it conflicts with other
evidence, or whether it has been controverted. Goad, 354 S.W.3d at 447 n.17
(citing Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994)).
      Appellant argues that the evidence raises the possibility that he acted
recklessly because A.T. testified that Appellant had not stabbed Dunn.           He
contends that “[l]ogic and reason dictate that if Appellant only kicked and punched
Saul Dunn, Appellant was ‘reckless’ when placing Saul Dunn in imminent danger
of serious bodily injury.” The prosecutor asked whether she ever saw Appellant
assault Dunn, and A.T. said that she saw Appellant “punching him, beating him up
while one of the sons was stabbing him.” A.T. also told the jury that she saw
Appellant kicking Dunn.
                                            11
      Appellant’s argument fails because the evidence indicating that Appellant hit
and kicked Dunn—but did not stab Dunn—does not constitute evidence that
Appellant recklessly engaged in conduct. One of the elements of the offense of
deadly conduct in Section 22.05(a) of the Penal Code is “recklessly engag[ing] in
conduct.”    A person acts recklessly “when he is aware of but consciously
disregards a substantial and unjustifiable risk that the circumstances exist or the
result will occur.” PENAL § 6.03(c). Appellant did not testify at trial, nor is there
any evidence in the record that Appellant was aware of but consciously
disregarded a substantial and unjustifiable risk that the circumstances existed or the
result would occur. Because there was no evidence from which a rational juror
could infer that Appellant’s actions were merely reckless, instead of knowing or
intentional, Appellant was not entitled to an instruction on the lesser included
offense of deadly conduct. See Flores v. State, 245 S.W.3d 432, 441 (Tex. Crim.
App. 2008); Tompkins v. State, 774 S.W.2d 195, 212 (Tex. Crim. App. 1987);
Duncan v. State, No. 04-10-00870-CR, 2011 WL 3918888 (Tex. App.—San
Antonio Sept. 7, 2011, pet. ref’d) (mem. op., not designated for publication);
Benavides v. State, No. 08-07-00193-CR, 2009 WL 3031175 (Tex. App.—El Paso
Sept. 23, 2009, pet. ref’d) (not designated for publication).
      We note that, based on the evidence that Appellant did not have a knife and
did not stab Dunn but only hit and kicked Dunn, Appellant requested and received
a lesser included charge on misdemeanor assault.           The trial court’s charge
authorized the jury to find Appellant guilty of the lesser included offense of assault
causing bodily injury if it found that Appellant intentionally, knowingly, or
recklessly caused bodily injury to Dunn by hitting or kicking him or by pushing
him to the ground.




                                          12
      Because the evidence does not show that, if guilty, Appellant could have
been guilty only of deadly conduct, the trial court did not err in refusing to submit
a charge on the lesser included offense of deadly conduct. Appellant’s second
issue is overruled.
                              IV. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                    MIKE WILLSON
                                                    JUSTICE


August 30, 2013
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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