                                         In The

                                  Court of Appeals
                     Ninth District of Texas at Beaumont
                               __________________
                                 NO. 09-11-00669-CR
                               __________________

                         LONNIE WOOTEN, JR., Appellant

                                           V.

                     THE STATE OF TEXAS, Appellee
_____________________________________________________________________

                   On Appeal from the 356th District Court
                          Hardin County, Texas
                           Trial Cause No. 21168
_____________________________________________________________________

                             MEMORANDUM OPINION

      A jury convicted Lonnie Wooten, Jr. as a habitual felony offender of evading

arrest or detention and assessed a sentence of twenty years in prison. In two appellate

issues, Wooten challenges the denial of his Batson motion and the trial court’s

punishment charge. We affirm the trial court’s judgment.

                                     Batson Motion

      In issue one, Wooten contends the trial court improperly denied his Batson

motion.   The Equal Protection Clause forbids the State from exercising peremptory

strikes based solely on a potential juror’s race. Batson v. Kentucky, 476 U.S. 79, 89, 106

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S.Ct. 1712, 90 L.Ed.2d 69 (1986); Nieto v. State, 365 S.W.3d 673, 675 (Tex. Crim. App.

2012). To make a Batson claim, (1) the defendant must make a prima facie showing of

racial discrimination; (2) if the defendant makes this showing, the State must then

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

if the defendant has proved purposeful discrimination. Nieto, 365 S.W.3d at 676. Absent

exceptional circumstances, we defer to the trial court’s ruling. Id. We consider the entire

voir dire record, but need not limit our review to the specific arguments presented to the

trial court. Id. We focus on the genuineness, not the reasonableness, of the asserted non-

racial motive. Id. We may not substitute our judgment for that of the trial court in

deciding that the State’s explanation was a pretext. Id. We will sustain the trial court’s

ruling unless it is clearly erroneous. Id.

       In response to a question on her juror card and during the defense’s voir dire,

potential juror nineteen, an African-American woman, stated that she did not have any

close friends or family in law enforcement. Wooten, also African-American, presented a

Batson motion when the State attempted to use a peremptory strike to exclude juror

nineteen. The State explained that juror nineteen is fifty-two years old and the State did

not believe her statement that none of her relatives or close friends had ever been in law

enforcement. The State further explained that it either struck or attempted to strike other

potential jurors for this same reason and noted that Wooten also struck an African-

American juror. Wooten described the State’s reasoning as invalid and a “sham[.]” He


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argued that many of the potential jurors denied knowing anyone in law enforcement, but

were not struck by the State. The State responded that these jurors were not struck

because either their other answers overrode their responses to the law enforcement

question, or the State anticipated which jurors the defense would move to strike. The

trial court denied the Batson motion and stated, “I don’t believe that the preponderance of

the evidence showed that the State engaged in purposeful discrimination, given the

evidence that’s been offered and given consideration to some of the strikes made by the

Defendant.”

       On appeal, Wooten contends that the State’s reason for striking juror nineteen was

not supported by the record and was pretextual. We need not determine whether Wooten

established a prima facie case of discrimination, given that the State articulated its

reasons for the peremptory strike and the trial court ruled on the issue of discrimination.

See Young v. State, 283 S.W.3d 854, 866 (Tex. Crim. App. 2009). Accordingly, we

proceed to a review of whether the trial court’s ruling was clearly erroneous. See id. The

reason for exercising a peremptory strike is race neutral, unless a discriminatory intent is

inherent in the explanation given. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769,

131 L.Ed.2d 834 (1995).       The State’s explanation need not be persuasive or even

plausible. Id. at 767-68. The persuasiveness of the justification is relevant to the trial

court’s determination of whether the opponent of the strike proved purposeful

discrimination. Id. at 768. Several factors aid this determination: (1) the State used


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peremptory challenges to eliminate a far greater proportion of minorities than non-

minorities; (2) the State’s reasons for eliminating minorities appeared to apply equally

well to many of the non-minorities whom the State did not challenge; (3) the State chose

to shuffle the jury panel in a manner that supported an inference of race discrimination;

(4) the State directed questions designed to elicit grounds for peremptory challenges

disproportionately, in a manner suggestive of an intent to single out minorities for

elimination; and (5) the county of prosecution followed a formal policy to exclude

minorities from jury service. Watkins v. State, 245 S.W.3d 444, 448-49 (Tex. Crim. App.

2008). A potential juror’s response may be less than candid, and “Batson leaves room

for the State to exercise peremptory strikes based on a ‘hunch’ or past experience, as long

as racial discrimination is not the motive.” Nieto, 365 S.W.3d at 679.

       The record demonstrates that the State had a “hunch” regarding the veracity of

juror nineteen’s answer to the law enforcement question. The record does not indicate

that racial discrimination motivated the State’s decision to strike juror nineteen. Three of

the venire members in the strike zone were African-American.               Of these three

veniremembers, the State challenged juror twenty-seven for cause, the defense

peremptorily challenged juror thirty-one, and the State peremptorily challenged juror

nineteen.   The State used or attempted to use peremptory strikes on several non-

minorities who responded to the law enforcement question in a similar fashion as juror




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nineteen. The State explained why it did not strike all the potential jurors that had the

same answer as juror nineteen.

       “[T]he record must reflect more than the mere fact that the objectionable

characteristic of a stricken juror was also possessed by accepted jurors of a different

racial background.” Whitaker v. State, 977 S.W.2d 869, 875 (Tex. App.—Beaumont

1998, pet. ref’d).   Moreover, the record does not indicate that the State used its

peremptory challenges to eliminate more minorities than non-minorities, requested a jury

shuffle, singled out minorities during questioning, or followed a formal policy of

excluding minorities from jury service. Viewing the entire voir dire record and absent

exceptional circumstances in this case, we conclude that Wooten failed to sustain his

burden of proving purposeful discrimination and the trial court’s denial of Wooten’s

Batson motion is not clearly erroneous. See Nieto, 365 S.W.3d at 676. We overrule issue

one.

                                  Punishment Charge

       In issue two, Wooten complains of the trial court’s jury charge on punishment.

When reviewing alleged charge error, we determine whether error existed in the charge

and, if so, whether sufficient harm resulted from the error to compel reversal.   Ngo v.

State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). When, as here, the defendant

preserves the complained-of error, we will reverse if we find “some harm” to the

defendant’s rights. Id. at 743; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.


                                           5
1985) (op. on reh’g). Harm is examined in light of the entire jury charge, the state of the

evidence, the contested issues and weight of probative evidence, the arguments of

counsel, and any other relevant information revealed by the entire record. Almanza, 686

S.W.2d at 171.

      In its punishment charge, the trial court stated, in pertinent part:

             The defendant, [Wooten] has stipulated that he has been convicted of
      two (2) prior felonies. On the 27th day of February, 1997, the defendant
      was convicted of the felony offense of delivery of a controlled substance, in
      cause number 12,947 in the 356th Judicial District Court of Hardin County,
      Texas.

             And before the commission of the offense for which you have
      convicted the defendant and after the date of conviction for the offense of
      [d]elivery of a controlled substance as alleged in the above paragraph, the
      defendant committed the felony offense of escape and was convicted on the
      3rd day of June, 1999, in cause number 14,778, in the 356th District Court
      of Hardin County, Texas.

             You are instructed that if you find beyond a reasonable doubt that
      this defendant is the same person who was convicted in each of the cases
      above and that such convictions occurred as alleged, then you will find the
      allegations are true and so state in your verdict, and you will assess
      punishment at confinement in the Institutional Division of the Texas
      Department of Criminal Justice for a term of not more than 20 years or less
      than 2 years.

             But if you do not find from the evidence beyond a reasonable doubt
      that the defendant is the same person who was convicted in each of the
      cases above and that such convictions occurred as alleged, you will next
      proceed to consider the question whether the defendant has been convicted
      once before of a felony.

Wooten objected that this portion of the charge was “abstract and insufficient” and failed

to “give the jury the full ranges with the ability to find one of the enhancements true and

                                             6
one untrue.” Wooten argued that the jury must find the enhancements to be “true,”

regardless of his stipulation to the enhancements. He further contended that the verdict

form should give all options to the jury. The trial court overruled Wooten’s objections.

       On appeal, Wooten contends that the trial court’s charge and lack of verdict forms

took the decision-making power from the jury and failed to formulate a punishment

charge that allowed for all possible scenarios. Wooten maintains that, as a result, the trial

court commented on the weight of evidence.

       Assuming, without deciding, that the trial court’s charge was erroneous, we

conclude that any error was harmless. At the beginning of the punishment phase, Wooten

pleaded “true” to the two enhancement paragraphs in the indictment. Once Wooten

pleaded “true” to these allegations, the State’s burden of proving the allegations was

satisfied and the range of punishment was elevated. See Harvey v. State, 611 S.W.2d

108, 111 (Tex. Crim. App. 1981); see also Thomas v. State, 312 S.W.3d 732, 741 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref’d).        Nevertheless, the State also admitted

certified copies of judgments for these two prior convictions and the jury heard evidence

of Wooten’s history as a habitual offender.         During closing arguments, the State

explained that Wooten pleaded “true” to the enhancements and was a habitual offender,

which elevated his offense to a second-degree felony. For these reasons, the State argued

that Wooten was dangerous and urged the jury to select a punishment between two and

twenty years in prison, namely twenty years. The defense argued that Wooten should be


                                             7
punished for the offense on trial, for which a twenty-year prison sentence was not “fair

and just.”   Given Wooten’s plea of “true” to the two enhancement paragraphs, the

evidence presented to the jury, and the record as a whole, we conclude that any error in

the trial court’s punishment charge was not calculated to injure Wooten’s rights. See

Ngo, 175 S.W.3d at 743; see also Almanza, 686 S.W.2d at 171. We overrule issue two

and affirm the trial court’s judgment.

       AFFIRMED.



                                                 ________________________________
                                                        STEVE McKEITHEN
                                                            Chief Justice

Submitted on September 19, 2012
Opinion Delivered October 10, 2012
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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