                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

 BRANDON TOM SIBLEY,                              §
                                                                  No. 08-07-00174-CR
                   Appellant,                     §
                                                                     Appeal from the
 v.                                               §
                                                              County Criminal Court No. 8
 THE STATE OF TEXAS,                              §
                                                                of Tarrant County, Texas
                   Appellee.                      §
                                                                     (TC#1009900)
                                                  §


                                           OPINION

       This is an appeal from a jury conviction for the offense of assault. The court assessed

punishment at two years’ community supervision and a probated fine of $1,000. We affirm.

                               I. SUMMARY OF THE EVIDENCE

       On January 22, 2006, Todd Ylen and his wife Sheri took their two young daughters shopping

at a toy store in the Parks Mall in Arlington, Texas. As Ylen was turning his vehicle into the parking

lot, he was struck by another vehicle on the passenger side of his car. Ylen parked his vehicle and

got out of his truck. As he was checking on the well-being of his family, he noticed Appellant, the

passenger of the other car, and his cousin, Greg Sibley, leave their vehicle and run towards Ylen’s

vehicle. Ylen went to the passenger side of his vehicle, and Appellant began shoving him. Greg

Sibley then punched Ylen in the face. Appellant then tackled Ylen around the midsection. Ylen

testified that Appellant and his cousin then dragged him to the ground. Appellant punched the victim

several times in the upper shoulders and on the lower back. The altercation then moved into the

street in the way of potential oncoming traffic. Ylen saw that his wife had gotten out of the vehicle.
He testified that after the fight, he had cuts on his face, a swollen eye, and pain in his ear, back and

knees.

         There were two eyewitnesses to the altercation. Todd Wright and Paul Hamilton both related

that they did not see Ylen do anything to provoke the attack. Both witnesses testified that they saw

Appellant and another person drag Ylen to the ground. They stated that they saw Appellant position

himself in front of Ylen’s wife to prevent her from aiding her husband. Both Wright and Hamilton

testified that they saw Appellant throw the final punch. They saw that Ylen was bleeding from the

left side of his face. Both witnesses testified that neither Appellant nor his companion appeared to

be injured.

         Officer Jake Hammer of the Arlington Police Department testified that he was dispatched

to the scene of the accident. He spoke with Greg Sibley and Appellant. He observed that Appellant

was not injured. Officer Hammer testified that Appellant told him that he had used his cell phone

after, but not during, the altercation.

         Greg Sibley testified on behalf of Appellant. He related that on January 22, 2006, he and his

cousin, Appellant, were leaving the mall. A white truck turned in front of them, and the two vehicles

collided. The truck turned into a side parking lot, and the driver, Todd Ylen, exited his vehicle. As

Greg Sibley got out of the vehicle, he saw that Ylen was approaching them and yelling that he and

Appellant were at fault for the accident. Sibley responded that Ylen was at fault.

         Sibley stated that as Ylen and Sibley approached each other, the argument escalated to the

point that Ylen shoved Sibley. When Sibley responded by pushing back, Ylen tried to punch Sibley.

Sibley testified that he defended himself by punching Ylen twice; he then tried to remove himself

from the altercation. He was not able to extricate himself because Ylen immediately charged Sibley,

forcing him to again defend himself.
        Sibley testified that during the course of these events, Appellant was not involved as he was

talking on his cell phone with his mother. As the fight escalated, Appellant tried to break up the

fight by pulling Sibley back and telling him to stop fighting. As Appellant got between the two

combatants, Ylen swung and struck Appellant in the nose. Appellant struck Ylen in defense, and

Ylen then charged Sibley and another altercation ensued.

        Ylen’s wife exited the vehicle and yelled at Appellant. Sibley testified that Appellant did not

reenter the fight as he was still trying to break it up.

                                              II. DISCUSSION

        In Issue No. One, Appellant asserts that the court erred in denying his Batson1 challenge

because the race-neutral explanation given by the State for striking an African-American

venireperson was a pretext for discrimination, thereby violating Appellant’s due process rights. The

State responds that the record does not demonstrate that the State’s facially neutral explanation for

exercising its peremptory challenge was a pretext for discrimination.

        At the close of voir dire, Appellant lodged a Batson challenge. Appellant’s counsel objected

that the State utilized a peremptory strike on juror number three, the only African-American woman

on the panel, in a discriminatory manner in that Appellant is an African-American. The court found

that juror number three was a specific member of an identifiable race, and that she was struck by the

State. The court stated that it was then incumbent upon the State to offer an explanation why juror

number three was struck. The prosecutor stated:

        The reason juror number 3 was struck is not because she was an African-American.
        She was struck because – for two reasons. For one, she has a family member who
        was charged with a crime.2 Second of all, as I was watching her throughout Nate’s


        1
            See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986).

        2
            Juror number three, Ms. Echols, had a family member who was convicted of a drug-related offense.
        voir dire and trying to make eye contact with her, she was making great eye contact
        with both of the Defense attorneys. She smiled at them. I couldn’t get her to look
        at me. I didn’t feel like I had her on my side. I struck other jurors for the same
        reason. And that’s why I struck her.

        Appellant sought to rebut this claim by stating that the prosecutor’s reasons were “personal”

and that the prosecutor did not strike other veniremembers with similar characteristics. The

prosecutor then stated that she struck other jurors because of similar unfavorable body language, in

particular juror number four. The prosecutor stated, “When I feel like I don’t connect with a juror,

I don’t’ feel like they’re hearing me, that’s when I strike.” The court overruled Appellant’s Batson

challenge.

        When reviewing a Batson challenge, an appellate court examines the record in the light most

favorable to the trial court’s ruling and reverses only when the ruling is clearly erroneous. Herron

v. State, 86 S.W.3d 621, 630 (Tex.Crim.App. 2002); Pondexter v. State, 942 S.W.2d 577, 581

(Tex.Crim.App. 1996), cert. denied, 522 U.S. 825 (1997); Bausley v. State, 997 S.W.2d 313, 315

(Tex.App.–Dallas 1999, pet. ref’d). A ruling is clearly erroneous when, after searching the record,

an appellate court is left with the definite and firm conviction that the trial court has made a mistake.

Bausley, 997 S.W.2d at 315. If the record, including the voir dire, the prosecutor’s explanation of

his peremptory challenges, appellant’s rebuttal, and any impeaching evidence, supports the trial

court’s ruling, then the ruling is not clearly erroneous. Id.

        To challenge the State’s use of peremptory strikes under Batson, a defendant must first make

a prima facie showing that the State exercised peremptory strikes on an impermissible basis.

Herron, 86 S.W.3d at 630; Bausley, 997 S.W.2d at 316. Once the defendant makes a prima facie

showing of purposeful discrimination, the State must provide a race- or gender-neutral explanation
for striking the prospective juror in question.3 Miller-El v. Dretke, 545 U.S. 231, 239, 125 S.Ct.

2317, 2324-25 (2005); Herron, 86 S.W.3d at 630; Pondexter, 942 S.W.2d at 581; Bausley, 997

S.W.2d at 316. This step requires an explanation devoid of inherent discriminatory intent. Bausley,

997 S.W.2d at 316 (citing Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1771 (1995) (per

curiam)). An explanation is neutral in this context if the State bases it on something other than the

prospective juror’s race or gender. See Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859,

1866 (1991). Unless discriminatory intent is inherent, the courts will consider the explanation race-

or gender-neutral. See id. A juror’s involvement with the criminal justice system, either personally

or in connection with a family member, is a valid, neutral basis for exercising a peremptory

challenge. See Thornton v. State, 925 S .W.2d 7, 11 (Tex.App.–Tyler 1994, pet. ref’d) (prospective

juror related to people with criminal records); Dorsey v. State, 940 S.W.2d 169, 175

(Tex.App.–Dallas 1996, pet. ref’d) (prospective juror’s family member convicted of crime).

Furthermore, lack of eye contact and no development of a back and forth relationship can provide

neutral reasons for exercising a peremptory strike. See Anderson v. State, 758 S.W.2d 676, 680

(Tex.App.–Fort Worth 1988, pet. ref’d).

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

rebut the State’s explanation or show that the explanation was merely a sham or pretext. See Herron,

86 S.W.3d at 630; Pondexter, 942 S.W.2d at 581; Bausley, 997 S.W.2d at 316. To meet this burden,

the defendant may call witnesses and introduce evidence, just as in any other evidentiary hearing.

Bausley, 997 S.W.2d at 316. The defendant has the ultimate burden of persuasion to establish the


         3
             The first two steps of a Batson analysis, including the burden on the State to provide a neutral explanation
for its strikes, involve solely a burden of production; the burden of persuasion, described in more detail below,
remains at all times on the defendant. Johnson v. California, 545 U.S. 162, 171-72, 125 S.Ct. 2410, 2417-18
(2005); Peetz v. State, 180 S.W.3d 755, 759 (Tex.App.–Houston [14th Dist.] 2005, no pet.).
truth of his allegations of purposeful discrimination. Id. At this third step, the persuasiveness of the

justification becomes relevant. See Purkett, 514 U.S. at 768, 115 S.Ct. at 1771. Disparate treatment

between jurors with similar attributes cannot automatically be imputed in every situation in which

one of counsel’s reasons for striking a prospective juror would technically apply to another juror who

was not stricken. Cantu v. State, 842 S.W.2d 667, 689 (Tex.Crim.App. 1992), cert. denied, 509 U.S.

926 (1993). Even when disparate treatment of veniremembers with similar characteristics is shown,

the 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. See id. Different jurors may

possess the same objectionable characteristics, but in differing degrees. Id. Such qualitative

distinctions may cause a prosecutor to challenge one juror and not another. Id.

        In the present case, Appellant raises the contention that the prosecutor’s reasons for striking

juror number three were a pretext for discrimination. Appellant cites Whitsey v. State, 796 S.W.2d

707, 713-14 (Tex.Crim.App. 1989) for the proposition that the following factors are utilized in

evaluating whether the State’s reasons for striking the juror are not actually supported by the record

or are an impermissible pretext:

        1. The reason given for the peremptory challenge is not related to the facts of the
        case;
        2. there was a lack of questioning to the challenged juror or a lack of meaningful
        questions;
        3. [d]isparate treatment-persons with the same or similar characteristics as the
        challenged juror were not struck;
        4. [d]isparate examination of members of the venire, i.e., questioning a challenged
        juror so as to evoke a certain response without asking the same question of other
        panel members; and
        5. an explanation based on a group bias where the group trait is not shown to apply
        to the challenged juror specifically.

        Id. at 713-14 (citing Keeton v. State, 749 S.W.2d 861, 866 (Tex. Crim. App. 1988)).

        However, these objective factors do not control the analysis. These factors certainly may be
considered in evaluating the trial judge’s overruling of a Batson claim, but they are not

determinative. The overriding standard is still whether the trial judge’s decision was supported by

the record so that it is not clearly erroneous. Vargas v. State, 838 S.W.2d 552, 554 (Tex.Crim.App.

1992); Johnson v. State, 959 S.W.2d 284, 290-91 (Tex.App.–Dallas1997, pet. ref’d).

       One way to rebut the prosecutor’s race-neutral explanation is to establish disparate treatment

of similar jurors, or to show that the reasons given do not relate to the facts of the case. Cantu v.

State, 842 S.W.2d 667, 688 (Tex.Crim.App. 1992); Williams v. State, 804 S.W.2d 95, 105-06

(Tex.Crim.App. 1991). However, racial discrimination does not necessarily exist in every situation

where one of the State’s bases for striking a venire person would technically apply to another venire

person whom the State found acceptable. Lee v. State, 949 S.W.2d 848, 850 (Tex.App.–Austin

1997, pet. ref’d). Nor must the characteristics a prosecutor finds offensive in a juror relate to the

exact subject matter of the case. Id. at 851. When more than one reason for the strike is given, those

reasons should be evaluated together, considering the interaction of the potential juror’s

characteristics. Cantu, 842 S.W.2d at 688.

       Appellant points out that veniremembers Guerrero and Morgan were allowed on the jury and

both had friends or family members with past criminal convictions. Guerrero had a nephew with a

drug-related conviction and a close friend who was convicted of attempted murder. However, she

also related that she had a friend who had been assaulted in a parking lot about two weeks prior to

trial and there was a fairly extensive discussion between the prosecutor and Guerrero regarding what

effect that incident had upon her regarding her general fairness as a juror. Veniremember Morgan

stated that her brother was charged with a drug-related offense, but he never went to trial as he was

deceased, and she indicated that she had no problem with the circumstances about her brother’s case.

Appellant also points out that veniremember Thompson had been convicted of driving while
intoxicated. However, the trial court pointed out that this was not a crime of moral turpitude and the

lesser gravity of the offense could cause the prosecutor to give less weight to the offense.

        The State also struck veniremember Eaves for lack of eye contact. Appellant contends that

the peremptory challenge was not justified on that ground because that veniremember was openly

hostile to the prosecution and veniremember Echols was open, honest, and pleasant to the State

during voir dire. However, the record does not reveal whether or not such was the case. This is

certainly one reason why we accord deference to the trial judge, who was present to view the voir

dire proceedings, hear the examination of the prospective jurors, and assess the credibility of the

State and its explanation. See Cantu, 842 S.W.2d at 689. We find that Appellant failed to rebut the

State’s race-neutral explanations and these explanations were clearly supported in the record so as

not make the court’s ruling clearly erroneous. Issue No. One is overruled.

        In Issue No. Two, Appellant contends that the court erred in denying his oral motion for

continuance. During trial, appellant made an oral motion for continuance in order to allow for the

appearance of a cell phone company business records custodian. However, a motion for continuance

during trial that is not in writing and is not sworn preserves nothing for review. Dewberry v. State,

4 S.W.3d 735, 755 (Tex.Crim.App. 1999); Felan v. State, 44 S.W.3d 249, 255 (Tex.App.–Fort

Worth 2001, pet. ref’d). Accordingly, Issue No. Two is overruled.

        In Issue No. Three, Appellant maintains that the court erred by refusing to allow Donna

Sibley to testify about relevant information about which she had personal knowledge, and in denying

her use of a writing to refresh her memory. The State counters by arguing that the court did not

abuse its discretion in excluding the contested testimony and in prohibiting the witness from

referring to a writing prior to testifying. Alternatively, if error occurred, the error should be

disregarded as it did not affect a substantial right.
       At trial, Appellant tried to refresh his mother’s memory with the phone records about the

exact time that she purportedly received a cell phone call from him during the altercation. On voir

dire she related that she received a call from him about 6 p.m., but she could not remember the exact

time. The court excluded her testimony on the grounds that the records being used to refresh her

memory were hearsay and they were not available for inspection by the opposing party. An appellate

court reviews a trial court’s decision to admit or exclude evidence under an abuse of discretion

standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex.Crim.App. 2006). If the trial court’s decision

was within the bounds of reasonable disagreement, the appellate court should not disturb its ruling.

Id.

       TEX .R.EVID . 612(1) & (3) allows a witness to use a writing to refresh his or her memory

either before or during their testimony. The rule requires that the witness must actually have a

memory of the event which is to be refreshed. The writing itself cannot be the basis of the memory.

See United States v. Faulkner, 538 F.2d 724, 727 (6th Cir. 1976). There is no predicate for the

admissibility of the writing. Callahan v. State, 937 S.W.2d 553, 559 (Tex.App.–Texarkana 1996,

no pet.). Here, the witness clearly had some memory of the event. As such, the court erred in not

allowing the witness to refresh her memory.

       However, we find that the error is non-constitutional harmless error because the exclusion

of the testimony about the time of the call did not preclude Appellant’s defense. See Potier v. State,

68 S.W.3d 657, 665 (Tex.Crim.App. 2002). Here, the record indicates that the witness was prepared

to testify that her son called her when the accident occurred. Appellant stated that he had decided

not to put her on the stand. The record does not reveal that the precise time of the call would have

matched any pertinent evidence concerning his involvement in the altercation. There were numerous

witnesses who testified that Appellant was part of the affray apart from merely defending himself.
Accordingly, Issue No. Three is overruled.

                                       III. CONCLUSION

       We affirm the judgment of the trial court.



                                              GUADALUPE RIVERA, Justice

August 12, 2009

Before McClure, J., and Rivera, J., and Hill, C.J. (Ret.)
Hill, C.J. (Ret.), sitting by assignment

(Do Not Publish)
