                                      NO. 12-07-00394-CR

                           IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

SHEDRIC MOSLEY,                                          §            APPEAL FROM THE 241ST
APPELLANT

V.                                                       §            JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                                 §            SMITH COUNTY, TEXAS


                                        MEMORANDUM OPINION
       Shedric Mosley appeals from his conviction for assault on a public servant, a third degree
felony. After finding him guilty, the jury assessed punishment at five years of imprisonment. In
three issues, Appellant claims that the trial court erred in denying his Batson1 motion and in allowing
evidence of extraneous offenses, and that the evidence is legally and factually insufficient to support
the conviction. We affirm.


                                                BACKGROUND
       On September 14, 2006, while he was on duty in Smith County, Texas, Trooper Barry Goines
observed a pickup truck speeding and initiated a traffic stop. Appellant was a passenger in the
pickup. Although the driver of the pickup initially complied with the stop by pulling to the side of
the road, he sped away once Trooper Goines exited his vehicle. Trooper Goines then initiated a
vehicle chase that lasted several miles.
       The driver eventually stopped the pickup again. This time, the driver exited the vehicle and



       1
           Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
ran away. The passenger, Appellant, exited the vehicle and ran in another direction. Appellant ran
near the home of Christine Tennison, an octogenarian who resided in the area. Ms. Tennison had
witnessed a portion of the vehicle chase, and she talked to Appellant to see what was happening.
Trooper Goines continued patrolling the area until he located Ms. Tennison, who indicated that
Appellant might be one of the individuals for whom Trooper Goines was searching. Trooper Goines
then attempted to arrest Appellant, but Appellant resisted. As a result of his actions during the
incident, Appellant was charged with assault on a public servant. The matter proceeded to a jury
trial.
         After voir dire examination, the State used its peremptory strikes to strike the two African
Americans who could have served on the jury. Appellant, who is African American, made a Batson
motion complaining of the State’s strikes. After an evidentiary hearing, the trial court denied the
motion. At trial, the State presented uncontroverted testimony that Appellant resisted the arrest.
However, the details of his actions were disputed. According to Trooper Goines, Appellant swung
at him three times, made contact with two of the swings, rammed him with his shoulder, and then
ran from him. Trooper Goines then tackled Appellant and shot his gun once after Appellant kicked
and elbowed him. According to Ms. Tennison, Appellant ran away from Trooper Goines, and in
response, Trooper Goines shot his gun twice. After the second shot, Appellant fell down, and
Trooper Goines arrested Appellant. Ms. Tennison did not see Appellant hit, ram, kick, or elbow
Trooper Goines. Ms. Tennison admitted that she turned her back to Trooper Goines and Appellant
to walk back to her house. However, she said she turned back around when she heard running, but
said she did not see any fighting. The jury found Appellant guilty and sentenced him to five years
of imprisonment. This appeal followed.


                                           BATSON MOTION
         In his first issue, Appellant contends that the trial court erred in denying his Batson motion.
Specifically, Appellant alleges that the State engaged in purposeful discrimination when it used its
peremptory challenges to excuse the two remaining African American individuals from the venire.
Applicable Law
         The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution


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forbids a prosecutor from challenging potential jurors solely on the basis of their race. U.S. CONST .
amend. XIV; Batson, 476 U.S. at 89, 106 S. Ct. at 1719. A trial court follows a three step process
to evaluate a claim that a litigant has made a peremptory strike based on race. Snyder v. Louisiana,
_ U.S. _, 128 S. Ct. 1203, 1207, 170 L. Ed. 2d 175 (2008). First, a defendant who makes a Batson
challenge must make a prima facie showing that the prosecutor has used a peremptory challenge to
remove a potential juror on account of race. Snyder, 128 S. Ct. at 1207; Purkett v. Elem, 514 U.S.
765, 767, 115 S. Ct. 1769, 1770, 131 L. Ed. 2d 834 (1995). A defendant may establish a prima facie
case solely on evidence concerning the prosecutor’s exercise of peremptory challenges at trial.
Batson, 476 U.S. at 96, 106 S. Ct. at 1723. He must also show that these facts and any other relevant
circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from
the petit jury on account of their race. Id.
       Once the defendant has made a prima facie showing, the burden shifts to the State to come
forward with a race neutral explanation for challenging the jurors. Snyder, 128 S. Ct. at 1207;
Batson, 476 U.S. at 97-98, 106 S. Ct. 1723-24. If the State offers race neutral reasons for the strikes,
the defendant is given the opportunity to rebut those explanations. Shuffield v. State, 189 S.W.3d
782, 785 (Tex. Crim. App. 2006). The defendant has the burden to prove purposeful discrimination.
Id. The defendant must attack the prosecutor’s race neutral reasons as being contrived or pretextual
to conceal racially discriminatory intent. Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App.
2001). The credibility of the prosecutor’s reasons for disparate striking of jurors can be measured
by “the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and
by whether the proffered rationale has some basis in accepted trial strategy.” Miller–El v. Cockrell,
537 U.S. 322, 339, 123 S. Ct. 1029, 1040, 154 L. Ed. 2d 931 (2003).
       We will disturb a trial court’s ruling on a Batson motion only if it is “clearly erroneous.”
Snyder, 128 S. Ct. at 1207; Guzman v. State, 85 S.W.3d 242, 254 (Tex. Crim. App. 2002).
Generally, a fact finder’s decision is clearly erroneous when it leaves an appellate court with a
“definite and firm conviction that a mistake has been committed.” Guzman, 85 S.W.3d at 254. The
clearly erroneous standard is an especially rigorous one where the findings are based primarily on
oral testimony and the trial judge has viewed the demeanor of the witnesses. United States v.
Fernandez, 887 F.2d 564, 567 (5th Cir. 1989); see also Alexander v. State, 866 S.W.2d 1, 8 (Tex.


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Crim. App. 1993).
        We review the evidence in the light most favorable to the trial court’s ruling and afford great
deference to that ruling. Jasper, 61 S.W.3d at 422. Furthermore, a claim that the proffered race
neutral reasons for strikes are pretextual presents a question of fact, not law, and the trial court is in
the best position to evaluate such claims. Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App.
2008), petition for cert. filed, (U.S. May 13, 2008) (No. 07-11037); Gibson v. State, 144 S.W.3d
530, 534 (Tex. Crim. App. 2004). The ultimate plausibility of a race neutral explanation is to be
considered in the context of whether the defendant has satisfied his burden that the strike was the
product of the prosecutor’s purposeful discrimination. Watkins, 245 S.W.3d at 447.
Analysis
        At trial, Appellant objected that the State had struck the two African American members of
the prospective jury panel, Jurors 28 and 32. The State responded that it had legitimate, race neutral
reasons for the strikes. To explain its strike of Juror 28, the State argued that he knew Appellant’s
counsel, knew an employee of the Smith County District Attorney’s office, had a family member
with some health problems, and had unfavorable community ties. The trial court found that the
State’s reasons were race neutral, specifically mentioning the State’s reasons that Juror 28 knew
Appellant’s counsel and Juror 28's wife had health problems.
        We cannot determine from the record what was unfavorable about Juror 28's community ties.
The State provided scant information regarding this reason, stating, “And in addition to that, that
goes to community ties as a whole, which goes to Yarborough versus State.” Other courts have
previously held that a lack of community ties is a legitimate, race neutral reason for a strike, see
Hernandez v. State, 808 S.W.2d 536, 544 (Tex. App.–Waco 1991, no pet.), but the record does not
support that Juror 28 lacked community ties. We also cannot determine from the record why the
State argued that Juror 28's acquaintance with an employee of the Smith County District Attorney’s
office was a bad characteristic. Consequently, if these two reasons had been the State’s only reasons
for striking Juror 28, Appellant could make a strong argument that the State’s reasons were
pretextual. However, Juror 28 also had met Appellant’s counsel several times and had a wife with
significant health problems. The trial court’s decision that these reasons were race neutral and not
pretextual has support in the record.


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       To explain its strike of Juror 32, the State argued that she had unfavorable community ties,
had a maiden name that was shared by a well known family that included several convicts, and had
served on a jury in a criminal trial that resulted in a hung jury. The trial court found that the latter
two reasons were race neutral.
       Again, the State’s reason regarding community ties is difficult to understand from the record.
When explaining this basis to the trial court, the State claimed, “That was another basis, as well as
the community ties to the Chapel Hill area where multiple individuals have been prosecuted.”
Further, as was the case with Juror 28, the record does not support that Juror 32 lacked community
ties. We are troubled by the State’s reason regarding Juror 32's maiden name. Specifically, the State
asked the veniremen if any had a friend or family member that was ever accused of a crime. Juror
32 did not respond to that question. Thus, her membership in this supposedly infamous clan is not
supported by the record. The State never specifically asked Juror 32 about her relatives, and thus,
Appellant’s argument that this reason was pretextual has some support in the record. Again though,
we do not analyze a Batson challenge in a vacuum. The trial court could have found that the State
was merely mistaken about the identity of Juror 32's family, rather than purposefully discriminatory.
       Further, Juror 32 had served on a jury that failed to return a verdict. When asked during
Appellant’s voir dire examination about prior jury service, Juror 32 stated that she had served on a
jury in Smith County for a criminal trial. When further asked whether the jury had reached a verdict,
Juror 32 responded that “[i]t was unable to resolve.” Because this line of questioning occurred
during Appellant’s voir dire examination, the State did not have the opportunity to follow up with
any questions of its own. A reasonable conclusion from the above exchange is that Juror 32 was
involved in a criminal jury trial that resulted in a hung jury. A bad record during previous jury
service is a race neutral reason. Bausley v. State, 997 S.W.2d 313, 316 (Tex. App.–Dallas 1999, pet.
ref’d). The trial court’s determination that this reason was race neutral and not pretextual has
support in the record.
       Having reviewed the entire record, we conclude the trial court’s decision to deny Appellant’s
Batson motion was not clearly erroneous. Even though a prima facie case of racial discrimination
was established, the State provided race neutral explanations for its use of peremptory challenges,
and Appellant failed to carry his burden of persuasion that the stated reasons were pretextual.


                                                   5
Appellant has not argued that any jurors who provided similar responses to those of Juror 28 or Juror
32, but were not African American, were not struck by the State, and our review of the record has
not shown this to be the case. Giving, as we must, deference to the trial court’s ruling, we do not
have a “definite and firm conviction that a mistake has been committed.” Guzman, 85 S.W.3d at
254; Bausley, 997 S.W.2d at 316. We overrule Appellant’s first issue.


                                          EXTRANEOUS OFFENSES
       As part of his second and third issues, Appellant argues that the trial court erred in allowing
evidence of extraneous offenses. Appellant claims that such evidence was inadmissible based on
Texas Rule of Evidence 404(b). Specifically, Appellant argues that the trial court should not have
admitted evidence that “Appellant was convicted of possession of marihuana, resisting arrest and
fleeing.”
Standard of Review
       A trial court’s decision to admit or exclude evidence is reviewed under an abuse of discretion
standard. Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006). The trial court is in
the best position to decide questions of admissibility, and we will uphold a trial court’s decision to
admit or exclude evidence if it is “within the zone of reasonable disagreement.” Id. A determination
is beyond the zone of reasonable disagreement if by no reasonable perception of common experience
could it be concluded that the proffered evidence had a tendency to make the existence of a fact of
consequence more or less probable than it would be otherwise. Montgomery v. State, 810 S.W.2d
372, 391 (Tex. Crim. App. 1991) (op. on reh’g).
Applicable Law
       Rule 404(b) of the Texas Rules of Evidence provides in pertinent part as follows:


       Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order
       to show action in conformity therewith. It may, however, be admissible for other purposes, such as
       proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
       accident.



TEX . R. EVID . 404(b). Further, evidence of extraneous offenses may be admissible if it is same
transaction contextual evidence. Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993).

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Same transaction contextual evidence provides the jury with essential information to understand the
context and circumstances of the conduct at issue, and thus, is admissible to “illuminate the nature
of the crime alleged.” Id. However, same transaction contextual evidence is admissible “only to the
extent that it is necessary to the jury’s understanding of the offense.” McDonald v. State, 179
S.W.3d 571, 577 (Tex. Crim. App. 2005).
       “Relevant evidence” means evidence having 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. Evidence that is not relevant is inadmissible. TEX . R.
EVID . 402. The court of criminal appeals has explained the relevancy inquiry necessary under Rule
404(b) as follows:


       Under Montgom ery, then, it appears that “fact of consequence” includes either an elemental fact or
       an evidentiary fact from which an elemental fact can be inferred. An evidentiary fact that stands
       wholly unconnected to an elemental fact, however, is not a “fact of consequence.” A court that
       articulates the relevancy of evidence to an evidentiary fact but does not, in any way, draw the inference
       to an elemental fact has not completed the necessary relevancy inquiry because it has not shown how
       the evidence makes a “fact of consequence” in the case more or less likely.



Rankin v. State, 974 S.W.2d 707, 710 (Tex. Crim. App. 1996).
Application
       When describing Appellant’s conduct toward Trooper Goines, the jury heard that Appellant
fled from Trooper Goines and resisted the trooper’s attempts to arrest him. Further, the trial court
admitted evidence that Appellant had marijuana in his possession when Trooper Goines attempted
to arrest him. While legally separate offenses, these events are interwoven. This evidence provides
information to the jury that is essential to understanding the context of the offense of assault on a
public servant. See Camacho, 864 S.W.2d at 532. Moreover, this evidence of the circumstances
of the assault is essential because it tends to prove the allegations in the indictment. Based on
Appellant’s aversion to arrest, the jury could have inferred the requisite intent to cause bodily injury
to Trooper Goines. Thus, these extraneous offenses are same transaction contextual evidence,
relevant, and properly admitted by the trial court. See id.
       Additionally, we note that Appellant’s counsel also asked Trooper Goines what charges were
filed against Appellant as a result of Appellant’s actions on September 14, 2006. Trooper Goines

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responded that he charged Appellant with resisting arrest, assaulting a public servant, fleeing from
a police officer, and possession of marijuana. Thus, even if evidence of these three extraneous
offenses was not admissible, any error is harmless. Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim.
App. 1998)(When same facts are shown by other evidence that is not challenged, the improper
admission of evidence does not constitute reversible error.). Therefore, we overrule the portion of
Appellant’s second and third issues that relates to admission of extraneous offense evidence.


                                 SUFFICIENCY OF THE EVIDENCE
       Appellant also argues in his second and third issues, respectively, that the evidence is legally
and factually insufficient to support the verdict. Appellant asserts there is no evidence, or
alternatively, factually insufficient evidence, that he knew Trooper Goines was investigating criminal
activity, and thus lawfully discharging an official duty at the time of the alleged assault.
Standard of Review
       The due process guarantee of the Fourteenth Amendment requires that a conviction be
supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S. Ct.
2781, 2786–87, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex. Crim. App.
2004); Willis v. State, 192 S.W.3d 585, 592 (Tex. App.–Tyler 2006, pet. ref’d). Evidence is not
legally sufficient if, when viewing the evidence in a light most favorable to the verdict, we conclude
that no rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Johnson v. State, 871
S.W.2d 183, 186 (Tex. Crim. App. 1993).
       We review the factual sufficiency of the evidence without the light most favorable to the
verdict, and we determine whether, considering all the evidence in a neutral light, (1) the evidence
supporting the conviction is too weak to withstand scrutiny, so the fact finder’s determination is
clearly wrong and manifestly unjust, or (2) the great weight and preponderance of the evidence
contradicts the jury’s verdict to the extent that the verdict is clearly wrong and manifestly unjust.
See Grotti v. State, No. PD-134-07, 2008 Tex. Crim. App. LEXIS 761, at *23 (Tex. Crim. App.
June 25, 2008); Watson v. State, 204 S.W.3d 404, 414–15, 417 (Tex. Crim. App. 2006). To reverse
under the second ground, we must determine, with some objective basis in the record, that the great


                                                  8
weight and preponderance of all the evidence, though legally sufficient, contradicts the verdict.
Grotti, 2008 Tex. Crim. App. LEXIS 761, at *23. A clearly wrong and manifestly unjust verdict
occurs where the jury’s finding “shocks the conscience” or “clearly demonstrates bias.” Jones v.
State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996).

       Under either standard, our role is that of appellate review, and the fact finder is the judge of
the weight and credibility of a witness’s testimony. Wesbrook v. State, 29 S.W.3d 103, 111–12
(Tex. Crim. App. 2000). The fact finder may choose to believe all, some, or none of a witness’s
testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Thus, the fact finder
determines the weight to be given testimony and resolves any conflicts in the evidence. Wesbrook,
29 S.W.3d at 111. With respect to our factual sufficiency review, we are authorized to disagree with
the jury’s determination, even if probative evidence exists that supports the verdict, see Clewis v.
State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996), but our evaluation should not substantially
intrude upon the jury’s role as the judge of the weight and credibility of witness testimony.
Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).

Applicable Law and Analysis

       As charged in the indictment, the State was required to prove that 1) Appellant intentionally,
knowingly, or recklessly caused bodily injury to Trooper Goines, 2) Appellant knew that Trooper
Goines was a public servant, and 3) Trooper Goines was lawfully discharging an official duty. See
TEX . PENAL CODE ANN . § 22.01 (Vernon Supp. 2008). Appellant recognizes that, as a general rule,
the State need not prove that a defendant knew the public servant was lawfully discharging an
official duty. Montoya v. State, 744 S.W.2d 15, 30 (Tex. Crim. App. 1987), overruled on other
grounds by Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996). Appellant argues, however,
that the State accepted a higher burden in this case by permitting the trial court to submit an
application paragraph that required the jury to convict only if they believed Appellant knew at the
time of the assault that Trooper Goines was a public servant and was investigating and detaining
Appellant for a violation of the law. We have previously addressed this argument in another case
and found it to be without merit. See Thurman v. State, No. 12-05-00384-CR, 2007 Tex. App.
LEXIS 135, at *12-13 (Tex. App.–Tyler 2007, no pet.) (mem. op., not designated for publication).


                                                  9
The sufficiency of the evidence is no longer measured by the application paragraph of the charge.
Id. Instead, we measure the legal sufficiency of the evidence against a hypothetically correct jury
charge that “accurately sets out the law, is authorized by the indictment, does not unnecessarily
increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the defendant was tried.” Id. Here, a
hypothetically correct jury charge would not require proof that Appellant knew at the time of the
assault that Trooper Goines was a public servant and was investigating and detaining Appellant for
a violation of the law.

       Viewing the evidence in the light most favorable to the jury’s verdict, Trooper Goines’s
testimony established that Appellant punched, rammed, elbowed, and kicked Trooper Goines in an
effort to avoid being arrested. Trooper Goines’s testimony further established that he experienced
pain as a result. We conclude that the jury could have determined beyond a reasonable doubt that
Appellant committed assault on a public servant as charged in the indictment. Thus, we hold that
the evidence is legally sufficient. See Willis, 192 S.W.3d at 592. We overrule the portion of
Appellant’s second issue that relates to legal sufficiency.

       As to Appellant’s factual sufficiency challenge, in addition to the evidence discussed above,
we consider the evidence that contradicts the jury’s verdict. We also measure factual evidentiary
sufficiency by the elements of the offense as defined by a hypothetically correct jury charge. See
Wooley v. State, No. PD-0861-07, 2008 WL 2512843, at *6 (Tex. Crim. App. June 25, 2008).
Tennison testified that she saw no fighting. She claimed that Appellant was running away from
Trooper Goines and that Appellant then fell to the ground after Trooper Goines shot his pistol a
second time. Additionally, Trooper Goines was not bruised by any of Appellant’s conduct.
Although Trooper Goines had lacerations on his arm, he testified that those were caused by wrestling
with Appellant in a briar patch. The jury could have determined that those lacerations were caused
by the trooper’s attempting to catch and arrest Appellant rather than by Appellant’s assaulting
Trooper Goines.

       Although there is evidence that contradicts the jury’s verdict, we are convinced that the
verdict is supported by factually sufficient evidence. Regarding Tennison’s testimony, the jury heard


                                                 10
that she turned her back for at least a portion of the incident. Further, the jury was within its
discretion to believe the testimony of the alleged victim of the assault, Trooper Goines, over that of
Tennison. Wesbrook, 29 S.W.3d at 111. Having reviewed the entire record, we conclude that the
proof of guilt is not so obviously weak or otherwise so greatly outweighed by contrary proof as to
render Appellant’s conviction clearly wrong or manifestly unjust. See Grotti, 2008 Tex. Crim. App.
LEXIS 761, at *23. Therefore, we hold that the evidence is factually sufficient. We overrule the
portion of Appellant’s third issue relating to factual sufficiency.

                                                      DISPOSITION

         We affirm the judgment of the trial court.



                                                                     BRIAN HOYLE
                                                                       Justice



Opinion delivered September 24, 2008.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)


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