      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-12-00181-CR



                                 Bobby Ray Burks, Jr., Appellant

                                                   v.

                                   The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
    NO. 10-691-K277, THE HONORABLE BERT RICHARDSON, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant, Bobby Ray Burks, Jr., was convicted of capital murder and sentenced to

life in prison without the possibility of parole.1 See Tex. Penal Code §§ 12.31(a), 19.03(a)(2). In

four points of error, appellant claims that the trial court erred in denying his Batson challenge, that

the evidence is insufficient to corroborate accomplice-witness testimony, and that the trial court erred

in admitting expert testimony and evidence of certain items collected from his car. Finding no

reversible error, we affirm the trial court’s judgment of conviction.




       1
           The State sought the death penalty, but the jury answered the capital special
issues submitted in the punishment charge in such a manner as to result in the imposition of a
life-without-parole sentence. See Tex. Code Crim. Proc. art. 37.071, § 2(b).
                                        BACKGROUND

               Appellant is the brother-in-law of Veronica Ortiz and Isabel Gonzales. Pursuant to

a plan formulated by appellant, Ortiz and Gonzales lured 23-year-old Jorge Castaneda and his

18-year-old cousin Raul Torres, unsuspecting patrons of an Austin nightclub, from the parking lot

of the club to a predetermined location on an isolated rural road so appellant could ambush and rob

them. The women pretended to need a ride home and, upon entering Castaneda’s vehicle, directed

him toward the predetermined spot where appellant waited. While en route, the women and

appellant texted back and forth. When the women saw appellant’s car, one of them feigned being

ill. Castaneda pulled over to the side of the road to accommodate her needs. Just before he pulled

over, he noticed a blue Mustang parked off the side of the road. When Castaneda stopped, both

women got out of his vehicle and he lost sight of them.

               Immediately after the women ran off, appellant appeared at the open back passenger

door with a gun in his hand. He pointed it at Torres and Castaneda and in a “loud, coarse voice”

demanded their money several times. Torres, seated in the back seat, gave appellant his wallet.

After removing some, but not all, of the money from his wallet, Castaneda turned, reached back, and

handed appellant the money. When Castaneda turned back toward the front, appellant shot Torres

in the head. Hearing the shot, Castaneda immediately drove off. As he did so, a second shot passed

by his head and shattered the window of the driver’s door. In a panic, Castaneda called his uncle as

he attempted to drive back to town. When he heard that Torres had been shot, the uncle told

Castaneda to drive Torres to a nearby hospital and provided directions to him. Torres died on the

way before reaching medical care.



                                                 2
                                            DISCUSSION

                                          Batson Challenge

                In his first point of error, appellant asserts that the trial court erred in denying his

Batson challenge because the State used one of its peremptory strikes on panel member number 25

because of her race, in violation of the right to equal protection under the law.2

                The State violates the Equal Protection Clause of the U.S. Constitution when it

exercises a peremptory strike to exclude a venire-panel member based solely on race. Batson

v. Kentucky, 476 U.S. 79, 86 (1986); see U.S. Const. amend. XIV, § 1; Tex. Code Crim. Proc. art.

35.261(a); see also Powers v. Ohio, 499 U.S. 400 (1991) (eliminating requirement that defendant

and panel member struck must be same race). A challenge to the State’s use of a peremptory strike

under Batson has three steps. First, a prima facie case of discrimination must be established by the

opponent of the strike.3 Nieto v. State, 365 S.W.3d 673, 675–76 (Tex. Crim. App. 2012). Second,

the State must produce a facially non-discriminatory reason for its use of the strike. Id. at 675; see

Purkett v. Elem, 514 U.S. 765, 768 (1995) (“Unless a discriminatory intent is inherent in the

prosecutor’s explanation, the reason offered will be deemed race neutral.”). Third, the opponent of

the strike must show purposeful discrimination by the State. Nieto, 365 S.W.3d at 675. Whether

the opponent has satisfied his burden of persuasion to show that the State’s facially race-neutral

explanation for the strike is not genuine but instead pretextual is a question of fact for the trial court

        2
        For privacy reasons, we refer to the relevant panel members by number rather than by
name. The record reflects that panel member number 25 was African-American.
        3
        If the State does not challenge the prima-facie-case step, the appellate court will not review
whether an appellant established a prima facie case. Wheatfall v. State, 882 S.W.2d 829, 835 (Tex.
Crim. App. 1994).

                                                    3
to resolve. Blackman v. State, 414 S.W.3d 757, 765 (Tex. Crim. App. 2013). We review the entire

record from voir dire and are not limited to the specific arguments made to the trial court by the

parties. Nieto, 365 S.W.3d at 675–76; Watkins v. State, 245 S.W.3d 444, 448 (Tex. Crim. App.

2008). We examine the trial court’s conclusion that a facially race-neutral explanation for a

peremptory challenge is genuine, rather than a pretext, with great deference, reversing only when that

conclusion is, in view of the record as a whole, clearly erroneous. Blackman, 414 S.W.3d at 765;

Watkins, 245 S.W.3d at 448; see Snyder v. Louisiana, 552 U.S. 472, 477 (2008) (trial court’s ruling

in third step must be sustained unless it is clearly erroneous).

               Appellant argues that he has shown intentional discrimination via a comparative juror

analysis because the answers given by panel member number 25 were similar to answers given by

juror number 2, a Hispanic juror who was not struck by the State.4 Courts identify disparate

treatment of veniremembers, which exists when the State’s explanations for eliminating members

of a particular racial group apply equally well to members of another race who were not eliminated,

using a side-by-side comparison, or “comparative analysis,” of veniremembers of a particular

race who were struck and members of other races who were not struck. See Miller-El v. Dretke,

545 U.S. 231, 232 (2005); Watkins, 245 S.W.3d at 448–49. If the reasons asserted by the State for

eliminating a minority panel member apply equally well to non-minority members who were not

struck, there is some evidence tending to show disparate treatment and consequently intentional

discrimination based on race. See Miller-El, 545 U.S. at 232. However, if the answers of the


       4
          We note that in his brief, appellant identifies juror number 2 as a white panel member.
However, the record reflects that in response to appellant’s counsel’s questioning during voir dire,
she identified herself as a “Hispanic woman.”

                                                  4
minority panel members are materially distinguishable from those selected to serve, then no disparate

treatment or intentional discrimination is shown. Cf. Adanandus v. State, 866 S.W.2d 210, 225 (Tex.

Crim. App. 1993) (when State offers numerous race-neutral reasons for peremptory challenge, “we

cannot say that the fact that there were other acceptable jurors possessing one or more of these

objectionable attributes, is sufficient to establish disparate treatment”).

               At trial the prosecutor explained that the State struck panel member number 25 for

multiple reasons, including: (1) her general opposition to the death penalty, (2) her demeanor, (3) the

criminal history of a family member, (4) her recent arrest, (5) her prior employment, and (6) her

familiarity with defense counsel. Appellant contends the State’s proffered reasons were merely

pretextual. He argues that because some of panel member number 25’s answers were similar to

those of juror number 2, who was accepted by the State, he has proved intentional discrimination.

We disagree.

               The juror questionnaire in this case contained a series of statements the panel

members were asked to agree or disagree with.5 While it is true that both panel member number 25

and juror number 2 endorsed some of the same statements, the record reflects that panel member

number 25 endorsed statements reflecting a stronger opposition to the death penalty and, further, that

her questionnaire responses were internally inconsistent while juror number 2’s were not.6

       5
         Although the parties referred to juror questionnaires during the discussion of the Batson
challenge, no such questionnaires are included in the record presented to this Court. It was
incumbent upon appellant to request that the juror questionnaires be included in the record. See
Vargas v. State, 838 S.W.2d 552, 556–57 (Tex. Crim. App. 1992).
       6
         For example, the attorneys’ discussion of the questionnaires reflects that both women
agreed with the following statements:


                                                   5
                The State also offered a demeanor-based reason for exercising a peremptory challenge

on panel member number 25, indicating that “throughout her questioning, [panel member number

25] had sort of a look of bewilderment and look of confusion,” and noting her hesitancy to answer

questions and that she “kind of vacillated on her questionnaire.” See Nieto, 365 S.W.3d at 680

(demeanor of potential juror is valid reason to exercise peremptory strike) (citing Yarborough

v. State, 947 S.W.2d 892, 896 (Tex. Crim. App. 1997)). The prosecutor also stated that she was

“bothered” by panel member number 25’s “flippant answers.” In contrast, the State noted that juror

number 2 “consistently gave us very clear, very confident, very . . . reasonable answers.” In

comparing the two jurors, the prosecutor explained that juror number 2 “seemed to be very

open-minded and intelligent and grasped the issues very well in comparison to [panel member

number 25] [who], like I said, just seemed just a little baffled by everything.” Appellant argues that

the State’s characterization of panel member number 25 and her demeanor were contradicted by the

defense counsel’s observations and objections and the record. However, after noting that he




       • I do not believe in capital punishment, but it may be necessary.
       • I do not believe in capital punishment, but it’s not practically advisable to abolish it.
       • I think capital punishment is necessary, but I wish it were not.

However, panel member number 25 also endorsed the following statements, some of them
contradictory:

       •   Capital punishment may be wrong, but it’s the best preventative to crime.
       •   Capital punishment has never been effective in preventing crime.
       •   Capital punishment cannot be regarded as a sane method for dealing with crime.
       •   Life imprisonment is more effective than capital punishment.
       •   Capital punishment is wrong, but it’s necessary in our imperfect civilization.
       •   Execution of criminals is a disgrace to civilized society.
       •   The State cannot teach the sacredness of human life by destroying it.

                                                  6
observed the questioning of both panel members, the trial court explicitly found them to be “very

distinct.” We defer to the trial court’s ruling, particularly when the question turns on credibility and

demeanor, because it is in the best position to make determinations of credibility and evaluations of

demeanor. See Nieto, 365 S.W.3d at 676.

                The record does reflect that both panel members had family members with a criminal

history. However, the record also reflects a clear distinction in the women’s responses to questions

concerning that topic. Panel member number 25 did not know the exact nature of her nephew’s prior

conviction, nor did she indicate how or whether his experience impacted her. In contrast, juror

number 2 expressed familiarity with her family members’ criminal offenses and clearly articulated

how their experiences influenced her, expressing that “accountability is very important to [her].”

                In addition, the State noted that panel member number 25 herself had a recent arrest

for DWI. Although that case was ultimately dismissed, her responses indicated that she was arrested

by an officer from the Austin Police Department, and the State argued that she “showed some sort

of attitude about the Austin Police Department” which caused concern to the State since some of the

State’s witnesses were employed by that agency. Juror number 2 had no recent arrests, no personal

criminal history, and no contact with a law-enforcement agency involved in this case.

                The State also expressed concerns about panel member number 25’s prior

employment with the Travis County court system due to the “liberal leanings of Travis County” as

well as her acquaintance with one of the defense attorneys representing appellant. Juror number 2

had no familiarity with any court system, nor did she have any knowledge of defense counsel.




                                                   7
                While panel member number 25 appears similarly situated to juror number 2 in some

respects, a comparison of their responses demonstrates distinct differences, differences that the trial

court noted. After reviewing the voir dire record, we cannot conclude that panel member number

25 was similarly situated to juror number 2. The trial court’s finding that the State’s explanations

were race-neutral is supported by the record, and a comparative juror analysis does not persuade us

that the trial court clearly erred in overruling appellant’s Batson challenge. We overrule appellant’s

first point of error.


                               Accomplice-Witness Corroboration

                In his second point of error, appellant contends the evidence was insufficient to

corroborate the accomplice-witness testimony of his sisters-in-law, Ortiz and Gonzales.

                A conviction cannot be based on the testimony of an accomplice unless that testimony

is corroborated by other evidence tending to connect the defendant with the offense committed. Tex.

Code Crim. Proc. art. 38.14. In conducting a sufficiency review under the accomplice-witness rule,

we eliminate the accomplice testimony from consideration and examine the record to see if

any evidence tends to connect appellant to the commission of the offense. Malone v. State,

253 S.W.3d 253, 257 (Tex. Crim. App. 2008); Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim.

App. 2001). The sufficiency of non-accomplice evidence is judged according to the particular facts

and circumstances of each case. Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011).

Direct or circumstantial non-accomplice evidence is sufficient if rational jurors could have found that

it tended to connect the accused to the offense. Id.




                                                  8
               Here, it is undisputed that both Ortiz and Gonzales, who pleaded guilty prior to trial

to aggravated robbery for their participation in the crime, are accomplices as a matter of law, and the

jury was so instructed in the court’s charge.           See id.     Thus, their testimony required

corroboration—apart from each other’s testimony—pursuant to the accomplice-witness rule. See

Chapman v. State, 470 S.W.2d 656, 660 (Tex. Crim. App. 1971) (testimony of one accomplice may

not corroborate testimony of another accomplice).

               Appellant asserts that the corroboration is lacking because “there is no evidence that

directly links [him] to the commission of the crime.” However, the corroborative evidence need not

directly link the defendant to the crime, nor must it be sufficient in itself to establish guilt. Brown

v. State, 270 S.W.3d 564, 567 (Tex. Crim. App. 2008); Castillo v. State, 221 S.W.3d 689, 691 (Tex.

Crim. App. 2007). Moreover, appellant’s argument focuses on the absence of certain evidence (for

example, tire impressions from his car tires matching those at the crime scene) but overlooks the

existence of inculpatory evidence in the record. Castaneda, the surviving victim, testified that the

assailant’s voice was “imprinted” in his mind. He identified appellant in a live line up based on his

recognition of appellant’s voice, saying it was “identical” to the assailant’s. Further, Castaneda was

able to provide police with a general physical description of his assailant that matched appellant.

Also, that night, Castaneda passed a blue Mustang parked on the side of the road near the location

where he pulled his vehicle over. He testified that photos of appellant’s blue Mustang, depicting a

unique spoiler, matched the car he saw that night immediately before the robbery and murder.

               In addition, cell phone records reflect that appellant was in constant communication

with Ortiz and Gonzales—and only them—during the time frame of the offense. Cell site data and



                                                  9
toll records tracked appellant’s location to the general area of the crime scene at the time of the

murder. See Smith, 332 S.W.3d at 443 (“‘[P]roof that the accused was at or near the scene of the

crime at or about the time of its commission, when coupled with other suspicious circumstances,

may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a

conviction.’” (Quoting Richardson v. State, 879 S.W.2d 874, 880 (Tex. Crim. App. 1993).)). The

evidence also reflected that after the murder, appellant removed the tires and custom rims from his

blue Mustang and gave them, along with a plastic tub containing the clothing that appellant and his

sisters-in-law wore that night, to his cousin’s wife to hide at her residence. Subsequently, during a

phone call from jail, appellant told a friend to tell her to get rid of those items. See Brown,

270 S.W.3d at 568 (sufficient accomplice-witness corroboration may be furnished by suspicious

conduct of defendant). Also, appellant’s girlfriend testified that when she saw appellant that night

just before the murder, he was in possession of a gun.

               Considering all of the non-accomplice evidence in a manner affording appropriate

deference to the jury’s role as factfinder, we conclude that this evidence is sufficient to tend to

connect appellant to the capital murder of Raul Torres. As such, this evidence provides sufficient

corroboration of the accomplice-witness testimony of Ortiz and Gonzales. We overrule appellant’s

second point of error.


                                     Evidentiary Complaints

               In his last two points of error, appellant complains about the admission of evidence

of gunshot residue (GSR) found on two shirts recovered from his car two days after the murder. In

his third point of error, he asserts that the expert testimony about the GSR was inadmissible because

                                                 10
it was unreliable. In his fourth point of error, he argues that the trial court erred in admitting the

shirts because they were irrelevant and unfairly prejudicial.7


The Complained-of Evidence

                Thomas White, a forensic chemist in the Trace Evidence section of the Texas

Department of Public Safety Crime Laboratory Services, testified about the basic process of

analyzing evidence items for the presence of GSR. He explained that a sample is collected directly

off of the item with a piece of carbon adhesive, which is then loaded into a scanning electron

microscope that performs an automated analysis to flag any potential gunshot primer residue

particles.8 If some are detected, the analyst then confirms the elemental composition and the

morphology (i.e., appearance) of the particles. White testified that this is the preferred method for

analyzing GSR and is accepted within the scientific community. He stated that he used this

       7
         Appellant’s argument appears to suggest that the shirts themselves were admitted into
evidence. However, the record reflects that only photographs of the shirts were admitted.
       8
           White explained,

       What we’re testing for in the Trace Evidence section is actually gunshot primer
       residue. The primer is a shock-sensitive mixture of compounds that sits at the base
       of an unfired cartridge. The typical primer mix is lead styphnate, barium nitrate, and
       antimony sulfide. The firing pin strikes the primer cup where this primer sits, and
       that impact is enough to make the primer spark. That spark is what ignites the
       gunpowder which causes the explosion and fires the bullet. Well, when that primer
       sparks, it vaporizes. . . . The three separate components can mix in the vapor state.
       As soon as they escape the weapon, they hit the air, they rapidly cool and will settle
       on any objects that are nearby, such as potentially the hands or the clothing of the
       shooter.

The GSR analysis identifies the presence of any individual particles that have a mixture of lead,
barium, and antimony and have the appearance of being melted.


                                                 11
methodology in this case in his analysis of two shirts recovered from appellant’s car, a black

short-sleeved shirt and a brown long-sleeved shirt. Photographs of the shirts, taken by White during

his examination, were admitted into evidence.

                White testified that on a sample collected from the inside shirttail of the black

short-sleeved shirt, he confirmed the presence of one “characteristic” gunshot primer residue particle

and one “indicative” gunshot primer residue particle.9 White concluded that the particles could have

been deposited either by the shirt being near a weapon when it was discharged or by contacting a

surface that had GSR on it. White also confirmed the presence of one characteristic gunshot primer

residue particle on the sample taken from inside the right sleeve of the brown long-sleeved shirt. His

conclusion for how this particle could have been deposited on this shirt was the same as for the

particles on the black shirt: it could have been deposited by the shirt being near a weapon when it

was discharged or by contacting some surface with GSR on it.


Reliability of Expert Testimony

                Pursuant to Rule 702 of the Texas Rules of Evidence, before admitting expert

testimony, the trial court must be satisfied that three conditions are met: (1) the witness qualifies as

an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter

of the testimony is appropriate for expert testimony; and (3) admitting the expert testimony will

actually assist the fact finder in deciding the case. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim.


       9
         According to White’s testimony, a characteristic gunshot primer residue particle will have
a molten morphology (the appearance of something that looks melted) and contain lead, barium, and
antimony, whereas an indicative gunshot primer residue particle will “still have the proper visual
appearance but will contain only two of the three elements.”

                                                  12
App. 2006). These conditions are commonly referred to as (1) qualification, (2) reliability, and (3)

relevance. Id. Reliability, which is the only condition challenged by appellant here, focuses on the

subject matter of the witness’s testimony.         The proponent of the expert testimony must

demonstrate by clear and convincing evidence that the expert testimony is reliable. Russeau v. State,

171 S.W.3d 871, 881 (Tex. Crim. App. 2005). To be considered sufficiently reliable as to be of help

to a jury, scientific evidence must meet three criteria: (1) the underlying scientific theory must be

valid; (2) the technique applying the theory must be valid; and (3) the technique must have been

properly applied on the occasion in question. Vela, 209 S.W.3d at 134; see Kelly v. State,

824 S.W.2d 568, 573 (Tex. Crim. App. 1992).

               Appellant’s attack on the reliability of the GSR evidence challenges the analyst’s

interpretation of the test results. He asserts that White’s testimony failed to establish that the GSR

evidence “meet[s] the standard in the scientific community for admissibility” because it fails to

demonstrate a consensus as to the number of particles that labs require in order to conclude that the

item containing the particles was in proximity to a weapon when it was discharged. Relying on

testimony that indicated that the U.S. Army labs require a threshold finding of the presence of four

GSR particles before making such a conclusion and that the FBI labs, back when they still performed

GSR analysis, required the presence of three particles, appellant contends that “[b]oth the FBI and

Army standards require more than a single particle of GSR to allow a scientific opinion.”

               In his testimony, however, White explained that given the population that Army labs

are testing on (“soldiers who routinely carry and/or qualify with some type of weapon”), the higher

threshold accommodates the fact that the population is in an environment where GSR would more



                                                 13
readily be picked up on their hands. White did not know the reason for the FBI’s three-particle

threshold. From the exchange between defense counsel and White, it appears that the Army and FBI

thresholds relate to making the conclusion that the person recently fired a weapon or that the item

was in close proximity to a weapon being discharged. Here, White’s conclusions regarding the GSR

particles on the shirts were that the GSR particles could have been deposited not only by the shirts

being in close proximity to a weapon when it was fired but also by the shirts contacting a surface that

had GSR on it.

                 More importantly, while acknowledging that the FBI and Army had certain particle

thresholds for reporting conclusions about having recently fired a weapon or being in close proximity

to a discharging weapon, White explicitly testified that most labs allow the reporting of one particle.

He disagreed with defense counsel’s assertion that there is a “disagreement in the scientific

community related to this type of forensics about how many particles you should have before you

report GSR as indicative of being in proximity to the firing of a weapon.” When appellant’s counsel

referred to a 2005 FBI gunshot-residue symposium, White testified that his recollection of the

symposium was that “the majority of the respondents at that symposium said that their laboratories

reported out what they found and if they found one characteristic gunshot primer residue particle,

they would still report that.”

                 Also, the State offered into evidence an article for purposes of the suppression

hearing, “The Current Status of GSR Examination,” which was admitted without objection. The

article states that “discovering just one particle with the correct elemental composition and

morphology nevertheless constitutes GSR and should be reported.” The article reflects that few



                                                  14
laboratories have an established particle threshold for reporting gunshot residue results and indicates

that even in those that do, an examiner should report GSR particles even if the number does not meet

the established level. The article asserts that “[h]aving a threshold of significance may be helpful

in isolated cases” and uses the Army threshold as an example: “For instance, the U.S. Army must

consider that all of its cases involve personnel who carry guns.” The article also clearly states that

“the technology behind the analysis of gunshot residue is unquestionably scientifically sound.”

               From the evidence before it, the trial court could reasonably conclude by clear and

convincing evidence that the scientific theory underlying GSR testing is valid, that the technique

applying the theory is valid, and that the technique was properly applied by White in this case. Thus,

the record supports the court’s finding that the GSR evidence was reliable. Accordingly, the court

did not abuse its discretion by admitting White’s testimony. See Coble v. State, 330 S.W.3d 253,

272 (Tex. Crim. App. 2010) (admission of expert testimony is reviewed on appeal for abuse of

discretion). We overrule appellant’s third point of error.


Relevance and Unfair Prejudice

               To be admissible, evidence must be relevant. Tex. R. Evid. 402. Evidence is relevant

if it has “any tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.” Tex. R.

Evid. 401.

               Rule 403 of the Texas Rules of Evidence permits the exclusion of otherwise relevant

evidence when its probative value is substantially outweighed by the danger of unfair prejudice.

Tex. R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries a presumption

                                                  15
that relevant evidence will be more probative than prejudicial. Davis v. State, 329 S.W.3d 798, 806

(Tex. Crim. App. 2010); Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). “The term

‘probative value’ refers to the inherent probative force of an item of evidence—that is, how strongly

it serves to make more or less probable the existence of a fact of consequence to the

litigation—coupled with the proponent’s need for that item of evidence.” Davis, 329 S.W.3d at 806;

Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). “‘Unfair prejudice’ refers to a

tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional

one.” Davis, 329 S.W.3d at 806.

                All relevant testimony and physical evidence are likely to be prejudicial to one party

or the other. Id.; Jessop v. State, 368 S.W.3d 653, 694 (Tex. App.—Austin 2012, no pet.). Thus,

“[t]o violate Rule 403, it is not enough that the evidence is ‘prejudicial’—it must be unfairly

prejudicial.” Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002). It is only when there

exists a clear disparity between the degree of prejudice produced by the offered evidence and its

probative value that Rule 403 is applicable. Davis, 329 S.W.3d at 806; see Gaytan v. State,

331 S.W.3d 218, 227 (Tex. App.—Austin 2011, pet. ref’d). Our analysis under Rule 403 includes,

but is not limited to, the following factors: (1) the probative value of the evidence, (2) the potential

to impress the jury in some irrational yet indelible way, (3) the time needed to develop the evidence,

and (4) the proponent’s need for the evidence. Hernandez v. State, 390 S.W.3d 310, 324 (Tex. Crim.

App. 2012); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006).

                Appellant asserts that “[t]he shirts were irrelevant to prove that [he] fired the gun in

this case.” He avers that the evidence had “no inherent probative value” and appears to argue that



                                                  16
the evidence lacked probative value because there was no evidence showing that these shirts were

“used in the offense.” He then asserts that “any probative value [was] greatly outweighed by the risk

of unfair prejudice caused by there being GSR on the shirts themselves.” We disagree.

                The fact that shirts in appellant’s possession, collected from his Mustang just two

days after the murder, contained particles of gunshot residue is both relevant and probative. As

White testified,


                With some extremely rare exceptions, there is really nothing else other than
        a firearm that can produce [a characteristic gunshot primer residue] particle.
                ....
                . . . The only way you’re going to get gunshot primer residue on you is to
        somehow have been associated with a weapon discharge, whether that’s directly or
        indirectly. And studies have supported that these particles are not just kind of
        free-floating in the environment. They have to come from a weapon discharge.


Thus, the complained-of evidence demonstrated that at some point appellant’s shirts were either in

proximity to a firearm as it was discharged or contacted a surface that had gunshot residue on

it—that is, they were directly or indirectly associated with a weapon discharge. This connection to

a discharged firearm had a tendency to make it more probable that appellant did in fact commit the

murder with which he was charged. See Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004)

(“Evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the

evidence provides a small nudge toward proving or disproving some fact of consequence.”).10




        10
            In Stewart v. State, the court of criminal appeals held that even though the intoxilyzer
breath test results were not “conclusive proof” that appellant was intoxicated at the time she drove,
the test results were relevant evidence. The breath test results were “pieces in the evidentiary puzzle
for the jury to consider[.]” 129 S.W.3d 93, 96 (Tex. Crim. App. 2004).

                                                   17
Further, the evidence of the presence of GSR on these shirts was not, in itself, unfairly prejudicial.

The shirts with the GSR particles on them demonstrate appellant’s connection to a discharged

weapon, directly or indirectly, at some point in time. Thus, the evidence does not “suggest a decision

on an improper basis.” See Davis, 329 S.W.3d at 806. Moreover, even if the probative value of the

shirts was slight, the danger of unfair prejudice was correspondingly slight. Consequently, there did

not exist a “clear disparity” between any degree of prejudice produced by the shirts and their

probative value.

                Because the evidence of the shirts with GSR particles on them was relevant and was

not unfairly prejudicial, the trial did not abuse its discretion in admitting them. See Tillman v. State,

354 S.W.3d 425, 435 (Tex. Crim. App. 2011) (trial court’s decision to admit or exclude evidence

is reviewed on appeal for abuse of discretion). We overrule appellant’s fourth point of error.


                                           CONCLUSION

                Finding no error in the trial court’s denial of appellant’s Batson challenge, sufficient

corroboration of the accomplice-witness testimony, and no abuse of discretion in the admission of

the expert testimony or complained-of evidence, we affirm the trial court’s judgment of conviction.




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                                            __________________________________________
                                            J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Field

Affirmed

Filed: March 26, 2014

Do Not Publish




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