                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00384-CR

TARIUS MANUERE,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                         From the County Court at Law
                            Navarro County, Texas
                            Trial Court No. C34890


                          MEMORANDUM OPINION


      In six issues, appellant, Tarius Manuere, challenges his conviction for aggravated

sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (West Supp. 2014).

We affirm.
                                           I.       BACKGROUND1

        On January 8, 2013, K.E. made an outcry of sexual abuse to her aunt, Lisa Thatcher,

that her step-father, Noah Manuere, and her step-uncle, appellant, were both abusing

her.2 Thatcher relayed this information to K.E.’s mother, who proceeded to tell Noah.

K.E. and her mother then went to the Corsicana Police Department to make a report of

sexual abuse to Detective Ronni Phillips. After making the report, K.E. and her mother

discovered that Noah was gone.

        K.E. made additional outcry statements against appellant and Noah to forensic

interviewer Lydia Bailey. Thereafter, Detective Phillips obtained arrest warrants for

appellant and Noah. The police went to the homes of appellant and Noah, talked with

family members, and went to their place of employment; however, police were unable to

locate the men.3 In response, the Corsicana Police Department then contacted Homeland

Security to flag both men in the event that they had fled the jurisdiction.




        1  As this is a memorandum opinion and the parties are familiar with the facts, we only recite those
facts that are necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.

        2 Noah is not a party to this appeal; rather, his appeal was affirmed by this Court earlier this year.
See generally Manuere v. State, No. 10-14-00123-CR, 2015 Tex. App. LEXIS 374 (Tex. App.—Waco Jan. 15,
2015, no pet.) (mem. op., not designated for publication).

        3 Testimony from the human-resource department at the company where both men worked
revealed that appellant and Noah both left work abruptly, before the end of their shift, did not clock out,
did not make arrangements to take vacation, and did not notify their employer. Neither appellant nor
Noah contacted their employer after January 8, 2013.

Manuere v. State                                                                                       Page 2
       In the meantime, a medical examination of K.E. revealed that she was pregnant

and that Noah was the father. Accordingly, police intensified the search for appellant

and Noah. Detective Phillips testified that they soon learned that appellant and Noah

had bought one-way tickets to Hawaii and had not contacted friends or family since they

fled from Corsicana, Texas. Appellant and Noah were eventually apprehended in

Hawaii in March of 2013.

       Appellant was subsequently charged by indictment with the continuous sexual

abuse of a young child or children. See TEX. PENAL CODE ANN. § 21.02 (West Supp. 2014).

This case proceeded to trial, where numerous witnesses testified. At the conclusion of

the evidence, the jury found appellant guilty of the lesser-included offense of aggravated

sexual assault of a child, see id. § 22.021(a)(2)(B), and sentenced appellant to twenty-five

years’ incarceration in the Institutional Division of the Texas Department of Criminal

Justice. The trial court certified appellant’s right of appeal, and this appeal followed.

                      II.    THE CHILD VICTIM’S OUTCRY STATEMENT

       In his first issue, appellant contends that the trial court abused its discretion in

admitting evidence of an alleged hearsay outcry statement.          Specifically, appellant

complains that the trial court allowed the designated outcry witness, Bailey, to testify

about four instances of sexual abuse when the State had only given notice of three

instances. The State concedes that it only provided notice of three instances; however,

the State argues that appellant has not preserved this issue for review. We agree.


Manuere v. State                                                                      Page 3
       In its notice of intent to introduce the child victim’s hearsay outcry statements, the

State noted that Bailey would testify about an incident of sexual abuse at a lake and two

incidents of sexual abuse at appellant’s house. However, during trial, the State sought to

introduce into evidence a document created by Bailey during her forensic interview of

the child. This document specifically listed four instances of sexual abuse that the child

victim had described—two instances at appellant’s house, one instance at Lake Halbert,

and another instance at the child victim’s house. In objecting to the exhibit, appellant

argued the following:

       Your Honor, I don’t have a problem with it as far as authentication. What
       I do have a problem with is, the fact that the State didn’t—didn’t disclose it
       to me per the Discovery Order. They didn’t share it with me as evidence.
       It’s a surprise so I’m going to object to it being admitted as a surprise at
       trial.

The State responded,

       Judge, he’s watched the video twice, starting this Summer. You can
       watch—when you watch the video, you see that document’s created, the
       document is in the envelope right next to the computer available for
       [defense counsel]. If he didn’t inspect the contents, I can’t force him to do
       that. It was available.

Thereafter, the trial court overruled appellant’s objection.

       Based on our review of the record, we conclude that appellant has failed to

preserve this issue for review. As mentioned above, appellant’s objection centered on the

allegation that the State had not provided him with the exhibit—a contention that was

refuted by the State. Appellant did not argue that the State had failed to provide him


Manuere v. State                                                                        Page 4
with notice of a fourth instance of sexual abuse perpetrated by appellant, nor did he lodge

a hearsay objection to the fourth instance of sexual abuse or request a continuance on the

basis of surprise. See Martin v. State, 176 S.W.3d 887, 900-01 (Tex. App.—Fort Worth 2005,

no pet.) (determining that the defendant “waived any complaint that he was surprised

by the State’s notice” when he did not request a continuance); see also Dixon v. State, 2

S.W.3d 263, 273 (Tex. Crim. App. 1999) (“[A]n objection stating one legal theory may not

be used to support a different legal theory on appeal.”); Wright v. State, 154 S.W.3d 235,

241 (Tex. App.—Texarkana, pet. ref’d) (“Where a trial objection does not comport with

the issue raised on appeal, the appellant has preserved nothing for review.”). We also

note that the record demonstrates that appellant’s counsel and witnesses frequently

referenced all four instances of sexual abuse throughout trial. See Lane v. State, 151 S.W.3d

188, 193 (Tex. Crim. App. 2004); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)

(“Our rule . . . is that overruling an objection to evidence will not result in reversal when

other such evidence was received without objection, either before or after the

complained-of ruling.”); see also Taylor v. State, No. 10-14-00033-CR, 2015 Tex. App. LEXIS

7939, at **8-9 (Tex. App.—Waco July 30, 2015, no pet. h.) (mem. op., not designated for

publication) (“Therefore, even if it was error to admit the complained-of testimony, such

error was cured because the same evidence was admitted elsewhere without objection.”).

       Based on the foregoing, we conclude that appellant has failed to preserve this

complaint for review. See TEX. R. APP. P. 33.1(a); Wilson v. State, 71 S.W.3d 346, 349 (Tex.


Manuere v. State                                                                       Page 5
Crim. App. 2002); Dixon, 2 S.W.3d at 273; Martin, 176 S.W.3d at 900-01; Wright, 154 S.W.3d

at 241; see also Lane, 151 S.W.3d at 193; Leday, 983 S.W.2d at 718. We overrule appellant’s

first issue.

                   III.   THE TRIAL COURT’S STANDING DISCOVERY ORDER

        In his second issue, appellant asserts that the trial court abused its discretion in

admitting evidence of appellant’s flight. Appellant argues that the admission of evidence

regarding his flight to avoid prosecution violated numerous provisions of the United

States Constitution, the Texas Rules of Evidence, and the Texas Code of Criminal

Procedure, as well as the trial court’s standard discovery order.

A.      Standard of Review

        We review a trial court’s admission or exclusion of evidence for an abuse of

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court

abuses its discretion if it acts arbitrarily or unreasonably, without reference to any

guiding rules of principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App.

1990). When considering a trial court’s decision to admit or exclude evidence, we will

not reverse the trial court’s ruling unless it falls outside the “zone of reasonable

disagreement.” Id. at 391; see Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003).




Manuere v. State                                                                      Page 6
B.     Discussion

       Here, appellant complains that the trial court should not have admitted evidence

of his flight to avoid prosecution because the State did not provide notice of its intent to

introduce evidence of extraneous acts at least ten days prior to trial. We disagree.

       It is well settled that flight is admissible as a circumstance from which an inference

of guilt may be drawn. See Devoe v. State, 354 S.W.3d 457, 470 (Tex. Crim. App. 2011); see

also Clay v. State, 240 S.W.3d 895, 905 n.11 (Tex. Crim. App. 2007); Clayton v. State, 235

S.W.3d 772, 780 (Tex. Crim. App. 2007). “To support the admission of evidence of escape

from custody or flight[,] it must appear that the escape or flight have some legal relevance

to the offense under prosecution.” Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App.

1994); see Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex. Crim. App. 1982); see also Carvajal

v. State, No. 04-00-00132-CR, 2001 Tex. App. LEXIS 1670, at **6-7 (Tex. App.—San Antonio

Mar. 14, 2001, pet. ref’d) (not designated for publication). “To have such evidence

excluded under relevancy challenges, the burden shifts to the defendant to show

affirmatively the escape and flight directly connected to some other transaction and

further that it was not connected with the offense at trial.” Bigby, 892 S.W.2d at 883; see

Rumbaugh, 629 S.W.2d at 752; see also Villegas v. State, No. 04-02-00866-CR, 2004 Tex. App.

LEXIS 308, at *4 (Tex. App.—San Antonio Jan. 14, 2004, pet. ref’d) (not designated for

publication).




Manuere v. State                                                                       Page 7
            The evidence adduced at trial shows that, upon learning that K.E.’s mother had

made a police report of appellant’s sexual abuse of K.E., appellant abandoned his job, did

not return home, did not contact his family, bought a one-way ticket to Hawaii, fled the

jurisdiction, and was eventually discovered in Hawaii by law enforcement. The State

argued that these circumstances proved beyond a reasonable doubt that appellant had

fled the jurisdiction to avoid prosecution. On the other hand, appellant called witnesses

to testify that he was merely helping Noah, who was also charged with the sexual assault

of K.E., leave the jurisdiction. Nevertheless, the evidence presented by appellant does

not affirmatively show that his flight was directly connected to some other transaction.

See Bigby, 892 S.W.2d at 883; Rumbaugh, 629 S.W.2d at 752; see also Villegas, 2004 Tex. App.

LEXIS 308, at *4. Rather, the flight evidence demonstrated appellant’s intent to flee the

jurisdiction with his brother to avoid being prosecuted in this case. Therefore, we

conclude that the flight evidence was properly admitted as a circumstance from which

an inference of guilt could have been drawn by the jury.4 See Devoe, 354 S.W.3d at 470;

Clay, 240 S.W.3d at 905 n.11; Clayton, 235 S.W.3d at 780. And as such, we cannot say that

the trial court abused its discretion in admitting evidence of appellant’s flight. See

Martinez, 327 S.W.3d at 736; Manning, 114 S.W.3d at 926; see also Montgomery, 810 S.W.2d

at 380. Accordingly, we overrule appellant’s second issue.



        4We also note that appellant’s notice and surprise arguments are undermined by the fact that the
same information was contained within the offense report, which was provided to appellant by the State
and was admitted as Defendant’s Exhibit 2.

Manuere v. State                                                                                 Page 8
                                IV.    LIMITING INSTRUCTION

       In his third issue, appellant argues that the trial court erred in failing to issue a

limiting instruction in the jury charge regarding the jury’s use of the flight evidence.

During the charge conference, appellant did not object to the trial court’s failure to

include a limiting instruction regarding the jury’s use of the flight evidence; thus, if the

trial court erred, appellant has to show egregious harm before reversal is warranted. See

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

       Texas Rule of Evidence 105(a) provides that “[w]hen evidence which is admissible

as to one party or for one purpose but not admissible as to another party or for another

purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope

and instruct the jury accordingly.” TEX. R. EVID. 105(a); see Hammock v. State, 46 S.W.3d

889, 892 (Tex. Crim. App. 2001). “The language of Rule 105(a) requires, upon proper

request, a limiting instruction to be given at the time the evidence is admitted.” Hammock,

46 S.W.3d at 894; see Rankin v. State, 974 S.W.2d 707, 713 (Tex. Crim. App. 1996) (op. on

orig. submission). However, the Court of Criminal Appeals has held that “a limiting

instruction is not required when evidence is admitted as same-transaction contextual

evidence.” Devoe, 354 S.W.3d at 471 (citing Castaldo v. State, 78 S.W.3d 345, 352 (Tex. Crim.

App. 2002)); see Wesbrook v. State, 29 S.W.3d 103, 114-15 (Tex. Crim. App. 2000). And

when no limiting instruction is given, the jury considers the evidence for all purposes and

no instruction is needed in the charge. Hammock, 46 S.W.3d at 895.


Manuere v. State                                                                       Page 9
       Here, appellant was charged with the continuous sexual abuse of a child, though

he was ultimately convicted of the lesser-included offense of aggravated sexual assault

of a child. In any event, as explained earlier, the flight evidence demonstrated appellant’s

intent to flee the jurisdiction with his brother to avoid being prosecuted in this case and,

thus, was properly admitted as a circumstance from which an inference of guilt could

have been drawn by the jury. Furthermore, the flight evidence explains what occurred

subsequent to the commission of the offense. See Wesbrook, 29 S.W.3d at 115 (“This

evidence is considered ‘res gestae,’ under the reasoning that events do not occur in a

vacuum, and the jury has a right to hear what occurred immediately prior to and

subsequent to the commission of that act so that it may realistically evaluate the

evidence.”); see also Prible v. State, 175 S.W.3d 724, 732 (Tex. Crim. App. 2005) (noting that

same-transaction contextual evidence results when an extraneous matter is so

intertwined with the State’s proof of the charged crime that avoiding reference to it would

make the State’s case difficult to understand or incomplete).

       Therefore, because flight is admissible as a circumstance from which an inference

of guilt may be drawn, and because the flight evidence was admissible to show the

context in which the criminal act occurred, we cannot say that a limiting instruction was

required in this instance. See Devoe, 354 S.W.3d at 471; Prible, 175 S.W.3d at 732; Castaldo,

78 S.W.3d at 352; see also Wesbrook, 29 S.W.3d at 114-15. Further, we conclude that

appellant has failed to establish that he was egregiously harmed by the trial court’s failure


Manuere v. State                                                                       Page 10
to include a limiting instruction as to the flight evidence. See Almanza, 686 S.W.2d at 171.

We overrule appellant’s third issue.

             V.    APPELLANT’S REQUEST FOR ADDITIONAL PEREMPTORY STRIKES

       In his fourth issue, appellant contends that the trial court committed reversible

error by failing to grant him two additional peremptory strikes because two objectionable

venire panel members were allowed to remain in the venire panel despite challenges for

cause. Specifically, appellant argues that he was forced to waste two peremptory strikes

on venirepersons who should have been removed by the trial court for legal cause.

A.     Applicable Law

       The trial court’s ruling on a challenge for cause is reviewed for abuse of discretion.

Russeau v. State, 171 S.W.3d 871, 879 (Tex. Crim. App. 2005). “We afford the trial court

considerable deference, because it is in the best position to evaluate a prospective juror’s

demeanor and responses.” Id. “This is especially true when this Court is faced with a

vacillating or equivocating venireperson.” Banda v. State, 890 S.W.2d 42, 54 (Tex. Crim.

App. 1994); see Russeau, 171 S.W.3d at 879. “The trial court is able to consider important

factors such as demeanor and tone of voice that do not come through when reviewing a

cold record.” Banda, 890 S.W.2d at 54.

       The Court of Criminal Appeals has held that a prospective juror may be properly

challenged for cause and removed “if he cannot impartially judge the credibility of a

witness.” Ladd v. State, 3 S.W.3d 547, 560 (Tex. Crim. App. 1999); see TEX. CODE CRIM.


Manuere v. State                                                                      Page 11
PROC. ANN. art. 35.16(a)(9) (West 2006). Potential jurors “must be open-minded and

persuadable, with no extreme or absolute positions regarding the credibility of any

witness.” Ladd, 3 S.W.3d at 560. The fact that a prospective juror is more or less skeptical

of a certain category of witness, however, does not make him subject to challenge for

cause. Id. (stating that prospective jurors are not challengeable for cause “simply because

they would give certain classes of witnesses a slight edge in terms of credibility”); Jones

v. State, 982 S.W.2d 386, 389 (Tex. Crim. App. 1998) (holding that a prospective juror was

not challengeable for cause simply because she stated she would be more skeptical of

accomplice witnesses than of witnesses generally).

       The Court of Criminal Appeals has also stated that:

       A defendant may challenge a potential juror for cause if he is biased or
       prejudiced or the law on which the State or defendant is entitled to rely. A
       trial judge must excuse the juror if bias or prejudice would impair the
       juror’s ability to carry out his oath and instructions in accordance with the
       law. Before the judge excuses the prospective juror, the law must be
       explained to him and the challenger must show that the potential juror
       understood the law and still could not overcome his prejudice. To establish
       harm for an erroneous denial of a challenge for cause, the defendant must
       show on the record that: (1) he asserted a clear and specific challenge for
       cause; (2) he used a peremptory challenge on the complained-of venire
       member; (3) his peremptory challenges were exhausted; (4) his request for
       additional strikes was denied; and (5) an objectionable juror sat on the jury.

Comeaux v. State, 445 S.W.3d 745, 749 (Tex. Crim. App. 2014) (internal citations &

quotations omitted).




Manuere v. State                                                                        Page 12
B.     Discussion

       At trial, appellant asserted that the trial court should have granted his challenges

for cause as to Juror Numbers 41 and 47.         Instead, appellant had to exercise his

peremptory strikes to eliminate Juror Numbers 41 and 47. And because the trial court

did not grant appellant’s challenges for cause, and because the trial court did not grant

appellant additional peremptory strikes, Juror Numbers 46 and 56 were seated on the

jury. Appellant argues on appeal that he would have struck Juror Numbers 46 and 56

from the venire panel had the trial court granted his challenges for cause to Juror

Numbers 41 and 47.

       During voir dire, Juror Number 41 stated that she had heard about the case in the

newspaper; however, upon further questioning, Juror Number 41 acknowledged that her

husband had read about the case in the newspaper and that her husband works in the

Sheriff’s Office. Juror Number 41 denied having already made up her mind about the

case because she did not “know anything about it.” Juror Number 41 also vaguely

claimed “experience” with the subject matter and that she was uncomfortable with the

subject matter. However, she later stated that she could follow the law and be fair to

appellant and the State.

       Juror Number 47 informed the trial court that she had read an “article in the

newspaper that they had picked him up from the airport.” She later clarified that the

article stated that police “had gone to an airport to pick them up or two brother [sic] up


Manuere v. State                                                                    Page 13
that were trying to leave. I didn’t know the names of anybody.” However, during

questioning by the State, Juror Number 47 noted that she could set aside the newspaper

article and listen to the evidence presented at trial and make a decision based only on

such evidence.

         Based on our review of the record, we cannot say that the trial court abused its

discretion in denying appellant’s challenges for cause. See Russeau, 171 S.W.3d at 879.

While both Juror Numbers 41 and 47 had some prior knowledge of the case, both

venirepersons stated that they could follow the law and base their decision solely on the

evidence presented at trial. And to the extent that either juror wavered or vacillated in

their answers, we emphasize that the trial judge is to be given “great deference” because

“the trial judge is present to observe the demeanor of the venireperson and to listen to

his tone of voice.” Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002); see Russeau,

171 S.W.3d at 879; Banda, 890 S.W.2d at 54. Therefore, because we have concluded that

the trial court did not abuse its discretion in denying appellant’s challenges for cause as

to Juror Numbers 41 and 47, and because appellant’s argument presupposes that the trial

court erred in denying these challenges for cause, we cannot say that appellant has

established harm under Comeaux. See 445 S.W.3d at 749. We overrule appellant’s fourth

issue.




Manuere v. State                                                                      Page 14
                           VI.    APPELLANT’S BATSON CHALLENGE

       In his fifth and sixth issues, appellant complains that the trial court committed

reversible error by denying his Batson challenges to Juror Numbers 8, 17, 19, and 45. See

generally Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Appellant

contends that the State improperly used its peremptory strikes to remove the first four

African-Americans available on the venire panel for the final jury.

A.     Applicable Law

       In Batson, the United States Supreme Court held that, while a prosecutor ordinarily

may exercise peremptory strikes for any reason related to his views concerning the

outcome of the trial, “the Equal Protection Clause forbids the prosecutor to challenge

potential jurors on account of their race.” 476 U.S. at 89, 106 S. Ct. at 1719. A Batson

challenge to a peremptory strike consists of three steps: (1) the opponent of the strike

must establish a prima facie showing of racial discrimination; (2) the proponent of the

strike must articulate a race-neutral explanation; and (3) the trial court must decide

whether the opponent has proved purposeful racial discrimination. See Purkett v. Elem,

514 U.S. 765, 767-68, 115 S. Ct. 1769, 1770-71, 131 L. Ed. 2d (1995); Young v. State, 283

S.W.3d 854, 866 (Tex. Crim. App. 2009).

       Once the State proffers race-neutral explanations for its peremptory strikes, the

burden is on the defendant to convince the trial court that the prosecution’s reasons were

not race-neutral. Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999). Thus, the burden


Manuere v. State                                                                      Page 15
of production shifts from the defendant in step one to the State in step two; but the burden

of persuasion never shifts from the defendant. Id. The trial court’s ruling in the third

step must be sustained on appeal unless it is clearly erroneous. Grant v. State, 325 S.W.3d

655, 657 (Tex. Crim. App. 2010) (citing Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct.

1203, 1207-08, 170 L. Ed. 2d 175 (2008)). “Because the trial court’s ruling requires an

evaluation of the credibility and demeanor of prosecutors and venire members, and

because this evaluation lies peculiarly within the trial court’s province, we defer to the

trial court in the absence of exceptional circumstances.” Id.; see Watkins v. State, 245

S.W.3d 444, 448 (Tex. Crim. App. 2008) (“[A] reviewing court should 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 the conclusion

is, in the view of the record as a whole, clearly erroneous.”).

B.     Discussion

       Here, appellant made a prima facie showing that the prosecutor’s strike may have

been racially motivated.     However, the prosecutor responded to appellant’s Batson

challenges with race-neutral reasons for using preemptory strikes on Juror Numbers 8,

17, 19, and 45. Explanations for each of the aforementioned jurors are detailed below.




Manuere v. State                                                                     Page 16
       1.      Juror Number 8

       With respect to Juror Number 8, the prosecutor noted that she was concerned

about the relative youth—the fact that she was twenty-one years old—and the fact that

Juror Number 8,

       didn’t seem to understand—I asked her specifically whether people who
       abused children generally looked for someone who is a troubled child. And
       she said, no. I inquired further into it, and she didn’t—either didn’t
       understand what “troubled child” meant, or didn’t want to—seemed to
       believe that people don’t look for troubled children. That is contrary to the
       State’s contention in this case.

       In response to the prosecutor’s race-neutral explanation, appellant argued,

       Your Honor . . . I don’t think that’s a race-neutral reason. I don’t think it’s
       a good reason at all. I think it fails. You’re asking something about a
       troubled child and not getting a sufficient answer. That was all she asked
       about. I mean, other than that, I think we had her for a three. And whether
       the kids tell the truth, which was a neutral answer.

       Given this, we do not believe that appellant refuted the prosecution’s explanation

or demonstrated that the State’s explanation was merely a pretext for discrimination. See

Williams v. State, 301 S.W.3d 675, 688 (Tex. Crim. App. 2009); Ford, 1 S.W.3d at 693. In

fact, notwithstanding Juror Number 8’s apparent confusion about the law the State

intended to rely upon, several Texas courts have held that age is an acceptable

explanation for a peremptory strike and does not violate Batson. See Brown v. State, 960

S.W.2d 265, 269 (Tex. App.—Corpus Christi 1997, no pet.) (holding that age is an

acceptable explanation for a peremptory strike and does not violate Batson); Silva v. State,

800 S.W.2d 912, 914-15 (Tex. App.—San Antonio 1990, no pet.); Moss v. State, 790 S.W.2d
Manuere v. State                                                                         Page 17
731, 732 (Tex. App.—Houston [14th Dist.] 1990, no pet.); see also Torres v. State, No. 10-12-

00263-CR, 2014 Tex. App. LEXIS 6354, at **6-7 (Tex. App.—Waco June 12, 2014, no pet.)

(mem. op., not designated for publication) (concluding that the State provided a race-

neutral reason for striking jurors under the age of twenty-five because “they simply do

not have enough life experience to properly serve on this jury”); Wilson v. State, No. 06-

04-00031-CR, 2004 Tex. App. LEXIS 8118, at **6-7 (Tex. App.—Texarkana Sept. 3, 2004, no

pet.) (mem. op., not designated for publication) (noting that age is an acceptable

explanation for a peremptory strike and does not violate Batson). Therefore, according

great deference to the trial court’s denial of appellant’s Batson challenge as to Juror

Number 8, we cannot say that, based on our review of the record, the trial court’s ruling

is clearly erroneous. See Snyder, 552 U.S. at 477, 128 S. Ct. at 1207-08; Grant, 325 S.W.3d at

657; Watkins, 245 S.W.3d at 448; see also Landrum v. State, No. 10-13-00281-CR, 2014 Tex.

App. LEXIS 10194, at *4 (Tex. App.—Waco Sept. 11, 2014, pet. ref’d) (mem. op., not

designated for publication).

       2.      Juror Number 17

       Regarding Juror Number 17, the prosecutor asserted the following:

       For No. 17 . . . my first issue with her was, she answered that she—you can
       tell by looking at a child whether they are lying. She went—she came in
       and was very friendly with [defense counsel]. I believe she grabbed his arm
       and acknowledged him. She also finally, said she was okay sitting on this
       kind of case. And that always causes me concern when someone that
       doesn’t even have any trouble whatsoever listening to cases of children who
       have been sexually abused. That caused me concern. So for those reasons
       I struck her.
Manuere v. State                                                                       Page 18
       Appellant responded by asserting the following:

       As far as . . . No. 17, we actually brought her in. I don’t recognize anything
       about her trying to touch my arm. I don’t know this lady at all. Never met
       her in my life. Umm. I was actually calling her in to challenge her for cause.
       Asked her the questions, and she said, “No, I didn’t say that.” So, I didn’t
       take—I just withdrew my challenge. The State had an opportunity to
       question and make a challenge for cause at that time—didn’t do so. So that
       tells me that they weren’t interested in trying to get rid of her or they would
       have attempted to at that time.

       Based on this response, and considering that the trial court was in the best position

to evaluate the credibility and demeanor of Juror Number 17 and the attorneys in the

case, we cannot say that appellant has sufficiently refuted the prosecutor’s explanation

or demonstrated that the State’s explanation was merely a pretext for discrimination. See

Williams, 301 S.W.3d at 688; see also Ford, 1 S.W.3d at 693. In other words, according great

deference to the trial court’s denial of appellant’s Batson challenge as to Juror Number 17,

we cannot say that, based on our review of the record, the trial court’s ruling is clearly

erroneous. See Snyder, 552 U.S. at 477, 128 S. Ct. at 1207-08; Grant, 325 S.W.3d at 657;

Watkins, 245 S.W.3d at 448; see also Landrum, 2014 Tex. App. LEXIS 10194, at *4.

       3.      Juror Number 19

       The prosecutor also provided the following explanation for striking Juror Number

19:

       For No. 19 . . . he grew up with the defendant—the Defense attorney and
       we—we struck him for that reason. We were familiar—umm—the Kerens
       community is a very small community, and he grew up with [defense
       counsel]. And that we—it caused us concern that—what [defense counsel]
Manuere v. State                                                                         Page 19
         has to say to [Juror Number 19], he would trust [defense counsel] over the
         State.

         With regard to Juror Number 19, appellant contended that: “[T]he fact that he

grew up in the same town as I did is not a race-neutral reason to get rid of him. They

need a better reason than that, Your Honor.” However, we do not believe that this

response sufficiently refutes the prosecutor’s explanation or demonstrates that the State’s

explanation was merely a pretext for discrimination. See Williams, 301 S.W.3d at 688; see

also Ford, 1 S.W.3d at 693. It merely indicates appellant’s disagreement with the State’s

explanation. Therefore, according great deference to the trial court’s denial of appellant’s

Batson challenge, we cannot say that, based on our review of the record, the trial court’s

ruling is clearly erroneous. See Snyder, 552 U.S. at 477, 128 S. Ct. at 1207-08; Grant, 325

S.W.3d at 657; Watkins, 245 S.W.3d at 448; see also Landrum, 2014 Tex. App. LEXIS 10194,

at *4.

         4.    Juror Number 45

         And finally, the prosecutor explained that Juror Number 45 was struck for the

following reason:

         And for No. 45—umm—Judge, we were very concerned when he came in.
         He discussed that he had been the outcry witness—umm—for a girl against
         a guy. And his explanation of that—uh—he said that they did not pursue
         charges. And that caused me concern that he’s not necessarily very
         protective of children. Umm. He also seemed—umm—to indicate he was
         very familiar with a—with child placement services. And it caused me
         concern that someone who doesn’t seem to be that interested in protecting
         children could be looked at by—as an expert by the other jury members—
         umm—as someone who routinely works with children in child placement
Manuere v. State                                                                      Page 20
        and that—umm—his attitude of not caring for children who are sexually
        abused would be passed onto them. So that’s the reason we struck him.

Appellant responded, “I think they brought [Juror Number 45] in themselves, and they

didn’t challenge [him] for cause. If they wanted to get rid of him, they could have

challenged [him] for cause. The only reason they got rid of him is because he’s a black

man.”

        Once again, we conclude that appellant’s response does not sufficiently refute the

prosecutor’s explanation or demonstrate that the State’s explanation was merely a pretext

for discrimination. See Williams, 301 S.W.3d at 688; see also Ford, 1 S.W.3d at 693. In fact,

in our analysis of appellant’s Batson complaint, it makes no difference whether the State

challenged Juror Number 45 for cause. Indeed, the United States Supreme Court has

specifically stated that “the prosecutor’s [race-neutral] explanation need not rise to the

level justifying exercise of a challenge for cause.” Batson, 476 U.S. at 97, 106 S. Ct. at 1723.

Therefore, according great deference to the trial court’s denial of appellant’s Batson

challenge, we cannot say that, based on our review of the record, the trial court’s ruling

is clearly erroneous. See Snyder, 552 U.S. at 477, 128 S. Ct. at 1207-08; Grant, 325 S.W.3d at

657; Watkins, 245 S.W.3d at 448; see also Landrum, 2014 Tex. App. LEXIS 10194, at *4.

        Because we have concluded that the trial court’s denials of appellant’s Batson

challenges to Juror Numbers 8, 17, 19, and 45 are not clearly erroneous, we overrule

appellant’s fifth and sixth issues.



Manuere v. State                                                                        Page 21
                                   VII.   CONCLUSION

       Having overruled all of appellant’s issues on appeal, we affirm the judgment of

the trial court.




                                              AL SCOGGINS
                                              Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 27, 2015
Do not publish
[CRPM]




Manuere v. State                                                               Page 22
