Opinion issued June 26, 2014.




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-12-00423-CR
                            ———————————
                      KEVIN EDISON SMITH, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 344th District Court
                          Chambers County, Texas
                         Trial Court Case No. 15846



                          MEMORANDUM OPINION

      A jury convicted appellant, Kevin Edison Smith, of capital murder. The

State did not seek the death penalty, so the trial court assessed punishment at

confinement for life. In two issues, appellant contends the trial court erred by (1)
overruling his Batson challenges and (2) denying a jury charge on the lesser

included offense of murder. We affirm.

                                BACKGROUND

      On March 5, 1996, police discovered the body of 13-year-old Krystal Jean

Baker lying near the edge of the road under the Trinity River Bridge. An autopsy

revealed that Baker had been strangled with a ligature of some sort. Photos taken

at the scene showed a large abrasion spanning from one side of Baker’s neck to the

other. There was also a laceration in her vaginal area. Officers took custody of

Baker’s dress and underwear and collected scrapings from under her fingernails.

      The case was unsolved for 14 years.

      In October 2009, police in Chambers County began reviewing the cold case.

New tests were performed on Baker’s clothing and semen was detected on it in

several places.    From cuttings taken from the dress, DPS forensic officers

developed a profile of a single source unknown male. The same DNA was present

in the fingernail scrapings.

      On September 22, 2010, appellant was arrested pursuant to a warrant for

murder. Shortly after his arrest, police obtained a court order to take buccal swabs

from appellant.    From these buccal swabs, a DNA profile for appellant was

developed. Appellant’s DNA profile matched that of the unknown male whose

DNA was on Baker’s clothing and fingernail scrapings. A DPS forensic scientist

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testified that the probability of an unrelated person selected at random for having

such a match would be 1 in 8.591 sextillion for blacks.

      Once in custody, appellant’s family hired community activist, Quanell X, to

assist appellant in dealing with police. Quanell X told appellant, “If you are

innocent, brother, I am going to stand with you. If you didn’t do this, I will stand

with you; but if you did do this, don’t disrespect my name, my credibility or your

family. Don’t get us all involved in something if there is more to this.” Quanell X,

then arranged an interview, which he, appellant, members of the sheriff’s

department, and the district attorney attended.

      During the interview, appellant testified that he picked up a girl he believed

to be named “Michelle” and, after she told him she was 18-years-old, he paid her

for sex.   “Michelle” performed oral sex on him, but “freaked out” after he

ejaculated on her. Appellant said that he pleaded with her to be quiet so that others

at the gas station nearby would not hear. When she would not comply, he began to

choke her with his hands. When pressed about whether he used a ligature rather

than his hands, appellant admitted that he grabbed the strap to a bucket and choked

her with that. He “freaked out” when he realized that she was not breathing and

began to drive. He then dumped her body under the Trinity River Bridge.




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      The State also admitted a telephone call that appellant made to his aunt

while he was in custody. In the call, he admitted that he had oral sex with the

victim.

                             BATSON CHALLENGE

      Before the jury was empaneled, appellant made a Batson challenge to the

State’s use of its peremptory strikes on veniremenbers 8, 11, and 16—the only

three African-American members of the venire—claiming that they were racially

motivated. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). After

hearing argument concerning the State’s explanations for these strikes, the district

court ultimately denied appellant’s Batson challenge as to all three jurors. In his

first point of error, appellant contends that the district court erred in denying his

Batson challenge.

Standard of Review and Applicable Law

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

forbidden from exercising peremptory strikes based solely on the race of the

potential juror. Id. at 89. To succeed on a Batson challenge, the defendant must

demonstrate by a preponderance of the evidence that the prosecutor indulged in

purposeful discrimination against a member of a constitutionally-protected class in

exercising his peremptory challenges. Watkins v. State, 245 S.W.3d 444, 447 (Tex.

Crim. App. 2008). There is a three-step process for evaluating claims that a

                                         4
prosecutor has impermissibly exercised its peremptory challenges on the basis of

race. See Hernandez v. New York, 500 U.S. 352, 358, 111 S. Ct. 1859, 1865

(1991). “First, the defendant must make a prima facie showing that the prosecutor

has exercised peremptory challenges on the basis of race.” Id. (citing Batson, 476

U.S. at 96–97). “Second, if the requisite showing has been made, the burden shifts

to the prosecutor to articulate a race-neutral explanation for striking the jurors in

question.” Id. at 358–59 (citing Batson, 476 U.S. at 97–98). “Finally, the trial court

must determine whether the defendant has carried his burden of proving purposeful

discrimination.” Id. at 359 (citing Batson, 476 U.S. at 98).

      On appeal, the State does not dispute that appellant made a prima facie

showing that the State exercised its peremptory challenges on the basis of race.

Thus, our review is confined to the second and third steps of the analysis. “At the

second step of this process, the proponent of the strike need only tender an

explanation that is race-neutral on its face.” Watkins, 245 S.W.3d at 447 (citing

Purkett v. Elem, 514 U.S. 765, 767–68, 115 S. Ct. 1769 (1995)). “The ultimate

plausibility of that race-neutral explanation is to be considered as part of the third

step of the analysis, in which the trial court determines whether the opponent of the

strike (usually the defendant) has satisfied his burden of persuasion to establish by

a preponderance of the evidence that the strike was indeed the product of the

proponent’s purposeful discrimination.” Id. (citing Purkett, 514 U.S. at 768).

                                          5
      “Whether the opponent [of the strike] satisfies his burden of persuasion to

show that the proponent’s facially race-neutral explanation for his strike is pre-

textual, not genuine, is a question of fact for the trial court to resolve in the first

instance.” Id. (citing Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App.

2004) (“The term ‘pretext’ is solely a question of fact; there is no issue of law.”)).

Accordingly, on appeal, a trial court’s ruling on the issue of discriminatory intent

must be sustained unless it is clearly erroneous. Snyder v. Louisiana, 552 U.S.

472, 477, 128 S. Ct. 1203, 1207 (2008); Watkins, 245 S.W.3d at 447–48. In other

words, the trial court’s ruling will not be disturbed on appeal unless the reviewing

court is “left with a definite and firm conviction that a mistake has been

committed.” Hernandez, 500 U.S. at 369. “This is a highly deferential standard

because the trial court is in the best position to determine whether a prosecutor’s

facially race-neutral explanation for a peremptory strike is genuinely race-

neutral.” Gibson, 144 S.W.3d at 534; see also United States v. Williams, 264 F.3d

561, 572 (5th Cir. 2001) (Batson inquiry is “quintessentially a question of fact

which turns heavily on demeanor and other issues not discernable from a cold

record, such that deference to the trial court is highly warranted.”). Therefore, “in

the absence of exceptional circumstances,” we are to defer to the trial

court. Hernandez, 500 U.S. at 366. We may not substitute our opinion for the trial

court’s factual assessment of the neutrality of the prosecutor’s explanation for

                                          6
exercising strikes, and we focus on the genuineness, rather than the reasonableness,

of the prosecutor’s asserted nonracial motive. Gibson, 144 S.W.3d at 533–34.

Moreover, we are to view the evidence relevant to the Batson challenge in the light

most favorable to the trial court’s ruling. Cantu v. State, 842 S.W.2d 667, 689

(Tex. Crim. App. 1992); Moore v. State, 265 S.W.3d 73, 78 (Tex. App.—Houston

[1st Dist.] 2008), pet. dism’d, improvidently granted, 286 S.W.3d 371 (Tex. Crim.

App. 2009).

Race-Neutral Explanations

      Regarding veniremember 8, the following exchange took place:

      [Prosecutor]: Number 8 is Ms. Carrington. She has a child about the
      same age of the defendant1 and also in response to a question from
      [Defense Counsel] that girls lie and she lied about her age. Also I
      have been informed that she is a relative of the guy that is guarding

1
        This information was apparently obtained from juror information cards that were
filled out by jurors before voir dire. Although the State attaches what purport to be the
juror information cards from the trial, they are not included in the record of the case.
However, information provided on juror information cards may be considered, even if
they are not admitted into evidence, if defense counsel referred to the cards during the
Batson argument and it is apparent that the parties and the trial court regarded the cards
as part of the evidence on which the trial court would rule. Cornish v. State, 848 S.W.2d
144, 145 (Tex. Crim. App. 1993). In this case, both attorneys referred repeatedly to the
juror questionnaires during the Batson hearing. Similarly, an appellate court may
consider counsel’s factual assertions during the Batson hearing as evidence if they were
considered by the trial court without objection. White v. State, 982 S.W.2d 642, 645 (Tex.
App.—Texarkana 1998, pet. ref’d); see also Emerson v. State, 820 S.W.2d 802, 804
(Tex. Crim. App. 1991) (“Because there were no objections made to appellant’s
undisputed observations [during the Batson hearing], we hold that [these] observations
constitute valid proof in support of appellant’s prima facie case.”); Jones v. State, 795
S.W.2d 32, 34 (Tex. App.—Houston [1st Dist.] 1990, no pet.) (same). We will thus
accept the factual assertions of counsel unless they were contradicted or objected to.

                                            7
      this defendant. So in the interest of justice, I thought I would strike
      her.

      [Trial Court]: The deputy guarding the defendant?

      [Prosecutor]: Apparently it is a relative of hers. I was informed of
      this; so in the interest of justice, I struck her.

The fact that a relative of the veniremember knew the defendant because he was

assigned to guard him is a race-neutral reason because there is no discriminatory

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

1769, 1771 (1995).

      Regarding veniremember 11, a 20-year-old African-American female, the

following exchange took place:

             [Trial Court]: All right. Next?

             [Defense Counsel]: Number 11.

             [Prosecutor]: Number 11, too young. I mean, I also struck
             Numbers 5 and 6 who are white, females and I think this is an
             awful case. I think they are too young to handle this.

             [Trial Court]: Okay.

      The prosecutor’s belief that the veniremember was too young to handle such

an “awful case” is a race-neutral reason for the exercise of a peremptory strike.

See Chambers v. State, 724 S.W.2d 440, 442 (Tex. App.—Houston [14th Dist.]

1987, pet. ref’d). The prosecutor also struck veniremembers 5 (age 21), 6 (age 22),




                                          8
who were white, and veniremember 7 (age 22), who was Hispanic, indicating that

he thought that they too, like veniremember 11, were too young.

      Finally, regarding veniremember 16, a 71-year-old African-American male,

defense counsel’s voir dire questioning elicited the information that before his

retirement, he worked “as an engineer.”        On his juror information car, this

veniremember had indicated his highest level of education completed as “H.S.

diploma.” With respect to the State’s explanation for this strike, the following

exchange took place:

      [Trial Court]: What about 16?

      [Prosecutor]: 16 is a retired engineer. His highest level of education
      is a high school diploma. I actually never noticed him throughout the
      entire voir dire because he was blocked by the juror in front of him.
      So the reason is that—you could look at my sheet here where is says
      engineer, I have three question marks; high school diploma, question
      mark again. That is why I struck him.

      [Defense Counsel]: He could have been a railroad engineer.

      [Prosecutor]: No, Your Honor.

The prosecutor’s apparent belief that veniremember 16’s juror information card

conflicted with his answers is a race-neutral explanation for the strike. See Ester v.

State, 151 S.W.3d 660, 662 (Tex. App.—Waco 2004, no pet.) (holding that

carelessness or error in completing or failing to complete juror information card is

race-neutral reason); see also Newsome v. State, 829 S.W.2d 260, 266 (Tex.

App.—Dallas 1992, no pet.) (same).
                                          9
Purposeful Discrimination

      If the State provides a race-neutral explanation for its strikes, the defendant

has the burden to rebut the State’s explanation or to show the explanation was

merely a sham or pretext. See Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim.

App. 1991). In order to prevail, the defendant must persuade the trial court by a

preponderance of the evidence that the allegations of purposeful discrimination are

true. Williams v. State, 767 S.W.2d 872, 874 (Tex. App.—Dallas 1989, pet. ref’d).

A defendant does not meet this burden by merely disagreeing with the State’s

explanation for its strike. Webb v. State, 840 S.W.2d 543, 544 (Tex. App.—Dallas

1992, no pet.). A party’s failure to offer any real rebuttal to a proffered race-neutral

explanation may be fatal to his claim. Johnson v. State, 68 S.W.3d 644, 649 (Tex.

Crim. App. 2002). Here, appellant offered no evidence to rebut the race-neutral

reasons given by the State.

      With specific reference to veniremember number 16, which appellant

characterized as “the most troubling of the three,” defense counsel suggested the

possibility that the veniremember was a “railroad engineer,” which might not be

inconsistent with a high-school education. But this comment was not sufficient for

appellant to carry his burden to prove, by a preponderance of the evidence that the

prosecutor’s stated reason for the strike was a pretext. The information that this

veniremember was a retired engineer was not revealed until after the prosecutor

                                          10
had already completed his voir dire examination, thus depriving him of the

opportunity to ask questions to clarify what he perceived as a discrepancy in the

answers. In explaining his reason for the strike, the prosecutor made reference to

his “sheet,” in which he had written down the veniremember’s former

occupation—“engineer”—along with question marks denoting a concern in light of

the information from the juror information car’s indication that his highest level of

education completed was high school. The trial court was in a superior position to

evaluate whether the prosecutor’s explanation was genuine. Appellant did not

cross-examine the prosecutor to more fully develop the record as to the rationale

for his strikes, and he offered no proof that the prosecutor’s inference of

conflicting information from veniremember number 16 was implausible or

incorrect. Even if the prosecutor’s stated reason had been factually mistaken, that

alone would not be enough to prove pretext. See Grant v. State, 325 S.W.3d 655,

660 (Tex. Crim. App. App. 2010) (“[T]he reason for a peremptory strike need not

actually turn out to be correct.”); Johnson, 68 S.W.3d at 649 (“It is not enough

merely to show that a proffered explanation turns out to be incorrect.”). The

credibility of the prosecutor’s representation about his rationale is a matter

“peculiarly within the trial court’s province,” and the correctness of that reason is

irrelevant. See Grant, 125 S.W.3d at 660 (quoting Snyder v. Louisiana, 552 U.S.

472, 477, 128 S. Ct. 1203, 1208 (2008)).

                                         11
      Having reviewed the entire record, we conclude the trial court’s decision to

deny appellant’s Batson motion was not clearly erroneous. The State provided

racially-neutral explanations for its use of peremptory challenges, and appellant

failed to carry his burden to show that the stated reasons were pretextual. The trial

court was in the best position to assess the genuineness of the State’s assertions

regarding the strikes. Such an assessment would rely on a number of intangible

judgments made by the trial court. See Miller–El v. Cockrell, 537 U.S. 322, 339,

123 S. Ct. 1029, 1040–41 (2003). 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.” See Guzman v. State, 85 S.W.3d 242, 254 (Tex. Crim. App. 2002).

      We overrule appellant’s first issue.

                        LESSER-INCLUDED OFFENSE

      Appellant was charged with, and the jury was instructed on, the offense of

capital murder. A person commits the offense of capital murder if he intentionally

commits murder “in the course of committing or attempting to commit kidnapping,

burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, or

terroristic threat[.]” TEX. PENAL CODE ANN. §19.03(a)(2) (Vernon Supp. 2013).

Here, the aggravating offense alleged was aggravated sexual assault. TEX. PENAL

CODE ANN. § 22.021(a)(1)(B), (2)(B). (Vernon Supp. 2013).




                                         12
      In his second issue, appellant argues the trial court erroneously denied his

request for a jury charge on the lesser-included offense of murder. Specifically,

appellant alleges that he “requested a lesser included offense of murder without the

aggravating factor of the Aggravated Sexual Assault2 based on the premise that

[he] did not know how old the victim was[.]” Put another way, appellant argues

that because he “had a mistake of fact defense as to the Aggravated Sexual

Assault,” the jury could have believed that he was guilty only of the lesser-

included offense of murder, without the aggravating felony of aggravated sexual

assault.

Standard of Review and Applicable Law

      We use a two-step test to determine whether appellant was entitled to an

instruction on a lesser-included offense. Cavazos v. State, 382 S.W.3d 377, 382

(Tex. Crim. App. 2012); Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim. App.

2011); Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006). We first

determine whether murder is a lesser-included offense of capital murder by

comparing the statutory elements of the greater offense and any descriptive

averments in the indictment with the statutory elements of the potential lesser-

included offense. Sweed, 351 S.W.3d at 68; Hall v. State, 225 S.W.3d 524, 535–36

2
      Sexual assault of a child under the age of 14 is an aggravated sexual assault. See
      TEX. PENAL CODE ANN. § 22.021(a)(1)(B), (2)(B). A murder committed during
      the course of an aggravated sexual assault elevates the crime of murder to capital
      murder. See TEX. PENAL CODE ANN. § 19.03(a)(2).
                                          13
(Tex. Crim. App. 2007). This inquiry is a question of law. Hall, 225 S.W.3d at

535. If this threshold is met, the second step then requires that we determine if

there is some evidence in the record that would have permitted the jury to

rationally find that if the defendant was guilty, he was guilty only of the lesser-

included offense of murder. Id. at 536; Guzman, 188 S.W.3d at 188–89; Rousseau

v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993). Anything more than a

scintilla of evidence may be sufficient to entitle a defendant to a lesser charge, but

the evidence must establish the lesser-included offense as a valid, rational

alternative to the charged offense. Hall, 225 S.W.3d at 536; Forest v. State, 989

S.W.2d 365, 367 (Tex. Crim. App. 1999). Although the threshold showing

required for an instruction on a lesser-included offense is low, it is not enough that

the jury may disbelieve crucial evidence pertaining to the greater offense; there

must be some evidence directly germane to the lesser-included offense for the

finder of fact to consider before a lesser-included offense instruction is warranted.

Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994).

      Here, the parties do not dispute the first step of the test to determine whether

appellant was entitled to an instruction on a lesser-included offense. Therefore, we

will assume without deciding that the first step of the analysis is satisfied (i.e., that

the lesser-included offense of murder is included within the proof necessary to

establish the charged offense of capital murder). See Sweed, 351 S.W.3d at 68.

                                           14
      Instead, appellant argues that because he believed that the victim was over

18 years of age, he had a mistake of fact defense as to the aggravating felony that

elevated the murder to capital murder, and there was some evidence that if guilty,

he was guilty only of murder. We disagree.

      In prosecutions for sexual assault and aggravated sexual assault the
      defendant need not know that the victim is a child, and a child cannot
      consent to sexual acts. These are all strict liability offenses when it
      comes to child victims. Therefore, we have long held that even a very
      reasonable mistake of fact with respect to the child victim’s age is not
      a defense to sex offenses.

Ex parte Burns, No. WR-69222-03, 2012 WL 243686 at *4 (Tex. Crim. App. Jan.

25, 2012) (not designated for publication) (Cochran, J., concurring); see also

Vasquez v. State, 622 S.W.2d 864, 865–66 (Tex. Crim. App. [Panel Op.] 1981)

(declining to apply mistake-of-fact defense to sexual assault of child). Because

there is no mistake-of-fact defense to the charge of aggravated sexual assault,

appellant’s professed belief that the victim was over 18 does not create “a potential

gap in the proof on the Aggravated Sexual Assault,” as alleged by appellant in his

brief. As such, there is nothing in the record that would permit a rational jury to

conclude that no aggravated sexual assault of a child had occurred, thus appellant

could not have been found guilty only of murder.

Jury Nullification

      Appellant also argues that, even if there is no mistake-of-fact defense to

aggravated sexual assault of a child, he should have been allowed to argue that
                                         15
“appellant did not appreciate the capital nature of the offense.”          Essentially,

appellant claims that he should have been able to tell the jury that they had the

power to nullify the law on the mistake-of-fact issue so that justice could be done.

Although jury nullification exists in our judicial system, there is no constitutional

right to jury nullification, and there is no constitutional requirement that the jury be

instructed on nullification. Ramos v. State, 934 S.W.2d 358, 367 (Tex. Crim. App.

1996); Stefanoff v. State, 78 S.W.3d 496, 502 (Tex. App.—Austin 2002, pet. ref’d);

Mouton v. State, 923 S.W.2d 219, 221 (Tex. App.—Houston [14th Dist.] 1996, no

pet.). As such, the trial judge did not err by refusing to permit appellant to argue in

favor of jury nullification. See Williams v. State, No. 05-06-00797-CR, 2007 WL

914754 at *5 (Tex. App.—Dallas Mar. 28, 2007, no pet.) (not designated for

publication) (holding trial court did not err in refusing to allow defendant to argue

jury nullification).

       Because the trial court did not err in refusing to submit the lesser-included

offense of murder to the jury, and appellant was not entitled to argue for jury

nullification, we overrule appellant’s second issue on appeal.




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                                CONCLUSION

      We affirm the trial court’s judgment.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Sharp and Massengale.

Do not publish.




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