Affirmed and Memorandum Opinion filed March 7, 2013.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-11-00797-CR


                  CLEVELAND ERRIC JETSON, Appellant
                                        V.

                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 180th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1201724


                 MEMORANDUM OPINION

      In two issues, appellant Cleveland Erric Jetson challenges his conviction for
aggravated robbery, arguing the evidence is legally insufficient and asserting
Batson error. We affirm.
                                 I. BACKGROUND

      According to the complainant, the following events occurred shortly after
noon on January 9, 2009. The complainant withdrew a large amount of cash from
the bank and then drove to his parents’ convenience store. As he opened his car
door, the complainant noticed a man, whom he later identified as appellant, exit a
car and approach the complainant’s car; a driver remained inside appellant’s car.
Appellant wore a mask covering his mouth and nose. Appellant pointed a gun at
the complainant and demanded his money. After the complainant acquiesced,
appellant ran, and the complainant followed in his car. During the chase, appellant
was no longer wearing the mask. Appellant stopped and looked at the complainant
and acted as though he intended to shoot at him from about 30 feet away.
Eventually, appellant’s accomplice drove up in a car, and appellant entered. The
complainant continued to follow appellant, during which time appellant leaned out
of his car and pointed his gun at the complainant. Appellant’s car was disabled
when it was driven into a curb. Appellant and his accomplice exited the car and
fled on foot. An analyst later determined that DNA consistent with appellant’s
DNA was present on the car’s steering wheel and gearshift.              In a police
photospread, the complainant identified appellant as his assailant.

      Appellant’s get-away car belonged to his girlfriend. On the morning of the
offense, appellant’s girlfriend allowed him to use the car after he took her to work.
Between 2:00 p.m. and 3:00 p.m., appellant telephoned his girlfriend and told her
that he had been standing outside the car when his enemies shot at him, causing
him to flee; when he returned, the car had been stolen.

      Appellant was indicted for aggravated robbery.              During trial, the
complainant made an in-court identification of appellant as the perpetrator of the



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crime.      The jury convicted appellant, and he was sentenced to 45 years’
confinement.

                         II. SUFFICIENCY OF THE EVIDENCE

         In his first issue, appellant asserts the evidence is legally insufficient to
support his aggravated robbery conviction.

A. Standard of Review

         When reviewing sufficiency of the evidence, we view all of the evidence in
the light most favorable to the verdict and determine, based on that evidence and
any reasonable inferences therefrom, whether any rational fact finder could have
found the elements of the offense beyond a reasonable doubt. Gear v. State, 340
S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307,
318–19 (1979)). We do not sit as a thirteenth juror and may not substitute our
judgment for that of the fact finder by re-evaluating weight and credibility of the
evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather,
we defer to the responsibility of the fact finder to fairly resolve conflicts in
testimony, weigh the evidence, and draw reasonable inferences from basic facts to
ultimate facts. Id.

C. Analysis

         Appellant contends the evidence is legally insufficient to support a finding
that he was the perpetrator of the robbery. In support, appellant presents several
reasons why the complainant’s identification of appellant is improbable or suspect,
including inconsistencies in the complainant’s testimony and the complainant’s
ultimate admission on cross-examination that appellant wore a mask at the time of
the robbery which covered his nose and mouth.             However, the complainant
testified he clearly saw appellant’s eyes and upper face close up, as well as

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appellant’s uncovered face twice during the chase. The complainant also observed
appellant as he exited the disabled car and fled on foot. At trial, the complainant
unreservedly identified appellant as the person who robbed him. Further, the
uncontroverted evidence showed that appellant was in possession of the get-away
car that day. The jury reasonably could have disbelieved appellant’s story that the
car had been stolen from him, particularly considering he did not tell his girlfriend
the car had been stolen until after the car had been disabled and left at the scene of
the offense.

      The testimony of a single eyewitness can be sufficient to support a
conviction. Bradley v. State, 359 S.W.3d 912, 917 (Tex. App.—Houston [14th
Dist.] 2012, pet. ref’d). The jury alone decides whether to believe eyewitness
testimony, and the jury alone resolves any conflicts or inconsistencies in the
evidence. Id. Likewise, the jury alone weighs the evidence, and it may find guilt
without physical evidence linking the accused to the crime. Id.

      Appellant cites several cases for the proposition that an eyewitness’s
identification of a defendant as the perpetrator of a crime based on a single
physical characteristic, such as the shape of his eyes, is insufficient. See Sosa v.
State, 177 S.W.3d 227, 230 (Tex. App.—Houston [1st Dist.] 2005, no pet.)
(holding evidence sufficient to support finding defendant was perpetrator of
crimes, despite fact complainant did not describe perpetrator’s face, because
complainant and an officer identified defendant as perpetrator based on his
clothing, build, injuries, and presence at crime scene); Hutchinson v. State, 42
S.W.3d 336, 343 (Tex. App.—Texarkana 2001) (holding evidence sufficient to
support finding defendant was perpetrator of burglary, despite fact video camera
never captured perpetrator’s face, because several witnesses who observed the
video testified perpetrator had same build and gait as defendant, and hat worn by

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perpetrator was found in defendant’s truck), aff’d, 86 S.W.3d 636 (Tex. Crim. App.
2002); Lunn v. State, 753 S.W.2d 492, 495–96 (Tex. App.—Beaumont 1988, no
pet.) (holding evidence sufficient to support finding defendant was perpetrator of
sexual assault, despite fact perpetrator wore ski mask during assault, because
complainant recognized perpetrator’s eyes, voice, and word choice as belonging to
defendant).

      Although the Sosa court cited Hutchinson and Lunn for the proposition,
“Identification based on individual’s build, when corroborated with additional
evidence, can be legally sufficient,” 177 S.W.3d at 230, none of these cases
expressly stands for the proposition that an identification is never sufficient if
based on a single physical characteristic.         Regardless, the complainant’s
identification of appellant was based on more than a single physical characteristic:
the complainant testified that he recognized appellant because he has distinctive
eyes and also observed his uncovered face several times. Moreover, appellant had
possession of the get-away car on the day of the incident and did not advise his
girlfriend of the purported car theft until well after the car had been disabled
following the chase. These facts support the jury’s finding that appellant was the
perpetrator of the robbery. Accordingly, we hold the evidence is legally sufficient
to support appellant’s conviction. We overrule appellant’s first issue.

                             III. BATSON CHALLENGE

      In his second issue, appellant contends the trial court erred by denying his
Batson challenge regarding the State’s strike of three veniremembers.

A. Relevant Law and Standard of Review

      Under Batson v. Kentucky, a party may not exercise its peremptory strikes
during jury selection to exclude a potential juror solely on the basis of race. 476


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U.S. 79, 85–86 (1986).              A defendant objecting that the State has
violated Batson must make a prima facie showing of racial discrimination in the
State’s exercise of its peremptory strikes. Herron v. State, 86 S.W.3d 621, 630
(Tex. Crim. App. 2002). After the defendant makes a prima facie showing, a
presumption arises that the peremptory strikes were used to discriminate on a racial
basis, and the burden shifts to the State to present race-neutral explanations for the
strikes. Id. Once the State has articulated race-neutral explanations, the burden
shifts back to the defendant to prove the State’s explanations are actually a pretext
for discrimination. Id. The trial court then determines whether the defendant
carried his burden of proving discrimination. Id. The trial court’s determination is
accorded great deference and will not be overturned on appeal unless it is clearly
erroneous. Nieto v. State, 365 S.W.3d 673, 676 (Tex. Crim. App. 2012).

B. Analysis

       Appellant, who is black, made a timely Batson challenge regarding struck
veniremembers No. 6, No. 10, and No. 23, contending they are also black. The
trial court asked the State to provide its reasons for striking these veniremembers.
The prosecutor offered the following explanations:

       The State struck all veniremembers who did not graduate from high school,
       including No. 23;
       The State struck No. 6 because he was unemployed1; and
       The State struck No. 10 because she had children the same age as appellant.


       1
         We note that lack of education and unemployment are not inherently discriminatory
reasons for exercising strikes and are thus deemed race-neutral. See Simpson v. State, 119
S.W.3d 262, 268 (Tex. Crim. App. 2002) (quoting Purkett v. Elem., 514 U.S. 765, 767–68
(1995)); Brewer v. State, 932 S.W.2d 161, 165 (Tex. App.—El Paso 1996, no pet.) (recognizing
unemployment is not inherently discriminatory reason); Bridges v. State, 909 S.W.2d 151, 155–
56 (Tex. App.—Houston [14th Dist.] 1995, no pet.) (recognizing unemployment is not inherently
discriminatory reason).

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At defense counsel’s prompting, the prosecutor clarified a few of these reasons.
However, defense counsel never argued to the trial court that the explanations were
merely pretextual.      In fact, defense counsel twice replied “Okay” to the
prosecutor’s explanations, apparently satisfied with the explanations.

         On appeal, appellant contends the State’s proffered reasons were merely
pretextual and applied disproportionately to the black veniremembers for various
reasons.     However, because appellant did not offer any argument or rebuttal
evidence to the trial court, we hold he did not satisfy his burden of persuasion.

         Although the burden of production shifts back-and-forth between the Batson
challenger and the party who made the challenged strike, the ultimate burden of
persuasion never shifts from the challenger. See Ford v. State, 1 S.W.3d 691,
693 (Tex. Crim. App. 1999) (quoting Purkett, 514 U.S. at 767–68). A defendant’s
failure to offer any rebuttal to the prosecutor’s race-neutral explanations can be
fatal to a Batson challenge. See Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim.
App. 2002); Chamberlain v. State, 998 S.W.2d 230, 236 (Tex. Crim. App. 1999)
(“Noting the absence of any real rebuttal—for example, that no white venire
members with similar views were ignored by the State—we cannot hold that the
trial court abused its discretion in finding that appellant failed to carry its
burden.”). When a defendant fails to offer any rebuttal regarding the State’s race-
neutral explanations, he fails to satisfy his burden of persuasion. See Adair v.
State, 336 S.W.3d 680, 690 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d).

         The trial court’s denial of appellant’s Batson challenge was not clearly
erroneous when the record reflects that appellant was apparently satisfied with the
State’s race-neutral explanations. Accordingly, we overrule appellant’s second
issue.



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      We affirm the trial court’s judgment.




                                             /s/       Margaret Garner Mirabal
                                                       Senior Justice


Panel consists of Justices Boyce, McCally, and Mirabal.2
Do Not Publish — Tex. R. App. P. 47.2(b).




      2
          Senior Justice Margaret Garner Mirabal sitting by assignment.

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