                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                              NO. 02-09-00039-CR


STANLEY DEW AYNE W ILSON                                           APPELLANT

                                           V.

THE STATE OF TEXAS                                                       STATE

                                       ------------

          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY

                                       ------------

                         MEMORANDUM OPINION 1

                                       ------------

                                 I. Introduction

     In five points, Appellant Stanley Dewayne W ilson appeals his conviction for

aggravated robbery with a deadly weapon. We affirm.




     1
         … See Tex. R. App. P. 47.4.
                        II. Factual and Procedural History

      W ilson pleaded not guilty to aggravated robbery with a deadly weapon, and

a jury found him guilty and assessed his punishment at ninety-nine years’

confinement. In addition to his complaints about the trial court’s admission of

extraneous offense evidence and its denial of his Batson challenge during voir dire,2

W ilson complains that the evidence is legally and factually insufficient to support his

conviction. Therefore, we will discuss the facts in greater detail below.

                          III. Sufficiency of the Evidence

      In his first two points, W ilson complains that the evidence is legally and

factually insufficient to support his conviction for aggravated robbery with a deadly

weapon. However, we will review the evidence only under the legal sufficiency

standard because the court of criminal appeals has recently overruled Clewis v.

State, 922 S.W .2d 126 (Tex. Crim. App. 1996) (setting out the factual sufficiency

standard of review) and decided “that the Jackson v. Virginia legal-sufficiency

standard is the only standard that a reviewing court should apply in determining

whether the evidence is sufficient to support each element of a criminal offense that

the State is required to prove beyond a reasonable doubt.” Brooks v. State, No.

PD-0210-09, 2010 W L 3894613, at *1, 14 (Tex. Crim. App. Oct. 6, 2010).




      2
          … See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).

                                           2
A. Standard of Review

      In reviewing the legal sufficiency of the evidence to support a conviction, we

view all of the evidence in the light most favorable to the prosecution in order to

determine whether any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99

S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App.

2007).

B. Aggravated Robbery with a Deadly Weapon

      A person commits aggravated robbery if, in the course of committing theft and

with intent to obtain or maintain control of the property, he intentionally or knowingly

threatens or places another in fear of imminent bodily injury or death and uses or

exhibits a deadly weapon. See Tex. Penal Code Ann. § 29.03(a)(2) (Vernon 2003).

A person commits theft if he unlawfully appropriates property with intent to deprive

the owner of the property. Id. § 31.03(a) (Vernon 2003). An appropriation of

property is unlawful if it is without the owner’s effective consent. Id. § 31.03(b)(1).

C. Evidence

      1. First Robbery—Sandro Reyes

      Dawn Fuller stated that on the night in question—April 29, 2005—she lived at

Cypress Club Apartments in Arlington, in a second-story apartment that overlooked

the parking lot. She stated that she heard raised voices in the parking lot in the early




                                           3
morning. She looked outside, saw W ilson 3 and her neighbor Sandro Reyes, heard

a “pop and . . . an ugh sound,” and then saw Reyes hit the ground.4 She watched

as W ilson rifled through Reyes’s pockets and took Reyes’s keys. He then used the

keys to take Reyes’s truck, but he backed it into a culvert. She continued to watch

as W ilson emerged from the truck and ran away up the culvert. She described

W ilson as follows: “Slim build, black guy, low haircut.” She also stated that he was

wearing “[d]ark bottoms [and a] long white tank top” that evening.

       W hile outside with the police, Fuller heard a couple of gunshots coming from

the right, to the northeast of the apartment complex.

       2. Second Robbery—Scott Stewart

       On April 29, 2005, Scott Stewart lived at 1701 Monaco Drive in Arlington.

Larea Buckley and Stewart were outside on his porch around 1:00 a.m. when they

heard a loud bang like a gunshot, followed by some sirens a few minutes later.

Shortly thereafter, Buckley started home. She had barely driven past five houses

when W ilson flagged her down. He was in the middle of the road, waving his arms

frantically.




       3
           … Fuller identified W ilson at trial as the shooter.
       4
       … Reyes did not survive the shooting. W e affirmed W ilson’s conviction for
the capital murder of Reyes in Wilson v. State, No. 02-06-00136-CR, 2007 W L
1879792 (Tex. App.—Fort W orth June 28, 2007, pet. ref’d) (mem. op., not
designated for publication).

                                              4
      W hen Buckley slowed down, W ilson ran up to her window and asked her for

a ride. Although she could not see him very well, she let him in. She saw W ilson

more clearly when the car’s interior lights came on and realized that she “made a

major mistake.” Sweat poured down his face, and he kept looking around frantically

like someone was after him.5 Her description of W ilson’s attire matched Fuller’s

above: a white “wife-beater” tank top-style T-shirt and blue jeans.

      Buckley turned the car around and headed back to Stewart’s house. W hen

they arrived there, she told W ilson that she wanted her friend to do the driving. She

stayed in the running car while she waited for Stewart. Stewart saw them from his

bedroom window and made his way outside to the driveway. She told him that

W ilson needed a ride. Stewart spoke with W ilson from the outside of the vehicle

through the driver’s side window, and W ilson told him that he needed to get to

Dallas. Stewart replied that they would not take him to Dallas or give him a ride.

      W ilson stepped out of the car and looked like he was going to walk away, but

after a few steps, he returned to the driver’s side of the vehicle, where Buckley and

Stewart were standing. Buckley testified that W ilson begged and pleaded with them

for a ride, and he lunged towards the driver’s side of the car more than once, trying

to jump into the vehicle. Stewart barred W ilson’s way and told Buckley to get in the



      5
        … W ilson told her that he had been in a fight with his girlfriend and needed
to get out of there, and then, “[o]ut of the blue he just turned and said: ‘W here are
we? W here am I?’” She thought it odd that he did not know where his girlfriend
lived.

                                          5
house and call the police. Stewart testified that W ilson confronted him with a drawn

gun and opened fire.

      Buckley testified that when she turned around before going inside the house

to call the police, she saw W ilson draw a silver handgun and fire the first shot into

Stewart. She stated that she thought that, since they were not going to give W ilson

a ride, he was going to take her car “to get out of there.” Stewart testified that he

thought he might die when Wilson started firing—W ilson was only four feet away

when he started shooting—and, based on W ilson’s demeanor and actions, he

thought W ilson was trying to take the car. W ilson shot Stewart a total of five times

while Buckley called the police.6

      Stewart’s wounds were inflicted as he tried to take a defensive posture and

go for the gun. W hen the shooting stopped, he kicked the gun out of W ilson’s hand

and tackled W ilson. He testified that he remembers hitting the ground, that he

blacked out “a little bit,” and that when he regained consciousness, W ilson was

running away. Stewart acknowledged on cross-examination that it would have been

pretty easy for someone to take the car once he was down. But he also replied,

“yes,” when asked whether he was “able to position [him]self in such a way that the

car was never entered[.]”




      6
        … W ilson shot Stewart in both arms, both sides of his chest, and once “in the
butt,” causing severe injuries that required several surgeries.

                                          6
      After W ilson ran off, Stewart calmly walked to the top of the driveway and sat

down “Indian Style” to wait for an ambulance. W hen Buckley came back outside,

there was blood everywhere. Buckley testified that she still finds blood from the

shooting inside her car.

      3. Police Investigation

      Arlington Police Detective Brett W orman testified that he was a patrol officer

in April 2005 and was dispatched to the Cypress Club Apartments at 1:39 a.m. when

the shooting was reported. W hen he arrived, he saw a truck backed into a drainage

culvert on the north side of the apartment complex. He and the other attending

officers cleared that vehicle first to make sure the suspect was not still there, then

attended to Reyes, who was laying on his back in the parking lot with a gunshot

wound.

      At 1:52 a.m.—thirteen minutes after his initial dispatch to the Cypress Club

Apartments—Detective W orman was dispatched to a shooting-in-progress call at

1701 Monaco Drive. He testified that, running police lights and sirens, it takes thirty

to forty-five seconds to get from the Cypress Club Apartments to Stewart’s house

and that they are approximately half a mile apart. When he arrived, he found

Stewart sitting “Indian-style” at the top of the driveway, and he could not tell how

many times Stewart had been shot because of the amount of blood. Stewart told

him that he had been shot by a black male. Detective W orman applied pressure to




                                          7
Stewart’s wounds until the paramedics arrived a few minutes later, and then he

roped off the crime scene.

      Elizabeth Rosenhaur and Peter Salicco, who were both Arlington Police

Department crime scene investigators at the time, also testified at trial. They arrived

separately at the Cypress Club Apartments around 2 a.m.; Reyes was already dead.

Salicco went on to the Monaco Drive crime scene. Rosenhaur photographed the

Cypress Club crime scene, collected blood that had spilled near where Reyes’s body

was found, and collected fingerprints from the truck in the culvert. When asked

whether it appeared to her that someone could drive the truck out of the culvert,

Rosenhaur said no.

      Salicco photographed the Monaco Drive crime scene and fingerprinted

Buckley’s vehicle. He stated that there was a lot of blood at the scene and that,

based on the amount of Stewart’s blood loss, he was surprised Stewart survived.

He stated that he photographed blood on the inside of Buckley’s vehicle on the

driver’s side and that the explanation for that was either the window was down, or

the door open, at the time of the shooting. There was also blood on the exterior side

of the door and blood spatter on the ground next to the driver’s side of the vehicle.

Blood had pooled at the top of the driveway. He found bullet fragments at the scene,

and a bloody t-shirt was collected in the yard of 2010 Monaco Drive, just down the

street from the crime scene.




                                          8
      Salicco, a latent print examiner, performed the physical examination on the

fingerprints that he and Rosenhaur had collected at the two crime scenes after they

were run through the Automated Fingerprint Identification System (AFIS).            He

testified that the fingerprints that he lifted from the outside of the passenger side

door matched W ilson’s, as did the fingerprints that Rosenhaur collected from the

exterior driver’s side door of Reyes’s pickup, and that no two people in the world

have the same fingerprints.

      Four days later, Dallas Police Officer Christopher Lewis arrested W ilson at a

Dallas apartment complex. W ilson’s sister answered the door and gave police

permission to search the apartment. They found W ilson hiding in a hall closet.

Officer Lewis described W ilson’s demeanor as “kind of defeated. I mean, he . . . he

just knew that he had been caught and that was it.”

      Arlington Police Detective Ben Lopez, the lead detective on the case, testified

that he took buccal swaps of both W ilson and Stewart. Constance Patton, senior

forensic biologist and DNA technical leader for the Tarrant County Medical

Examiner’s Officer crime laboratory, testified that she tested the bloody t-shirt found

on Monaco Drive and W ilson’s shoes and pants that he was wearing when he was

arrested. The presumptive test for blood that she performed on the shoes indicated

that blood was present, and the stain on the left shoe had male DNA from at least

two individuals. W ilson and Stewart could not be excluded from the .001% of the

population who could have contributed that DNA.


                                          9
      Patton tested two different areas on the t-shirt: the neck and one of the blood

stains on the front. From the neck sample, she stated that neither W ilson nor

Stewart could be excluded—they fell within the 0.6% of the population that had the

types possible to contribute to the mixture—but that there were some other “types”

that were also detected that could not have originated with either one. Therefore,

she was unable, on the probability of exclusion, to say with any certainty whose T-

shirt it was. The bloodstain found on the shirt belonged to Stewart.

      Patton testified that, as to the pants, one of the stains tested positive for blood,

but it met a partial profile of W ilson and excluded both Stewart and Reyes. Another

stain was a mixture, but most of it was from a male matching Stewart’s DNA profile.

D. Analysis

      W ilson was charged with intentionally or knowingly, while in the course of

committing theft of property and with intent to obtain or maintain control of said

property, threatening or placing Scott Stewart in fear of imminent bodily injury or

death on or about April 29, 2005, while using or exhibiting a deadly weapon

(firearm).   Wilson concedes that there is sufficient evidence to show that he

committed aggravated assault, and based on the facts above, we agree.

      W ilson specifically challenges the evidence to support the “in the course of

committing theft of property and with the intent to maintain control of the property”

aggravated robbery element, arguing that “[t]here were plenty of opportunities for the

vehicle to have been stolen[,] [b]ut it did not happen.”


                                          10
      W e must review circumstantial evidence of intent with the same scrutiny as

other elements of an offense. Laster v. State, 275 S.W .3d 512, 519–21 (Tex. Crim.

App. 2009) (overruling Margraves v. State, 34 S.W .3d 912, 919 (Tex. Crim. App.

2000)).

      Both Buckley and Stewart testified that they believed W ilson intended to steal

Buckley’s car, and their testimonies about his actions—such as lunging towards the

driver’s seat multiple times and his insistence on getting a ride to Dallas—viewed in

the light most favorable to the prosecution—support the conclusion that a rational

trier of fact could have found the essential elements of theft necessary for W ilson’s

aggravated robbery with a deadly weapon conviction. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Clayton, 235 S.W .3d at 778.

      Furthermore, although W ilson argues that there were numerous opportunities

for him to have stolen the vehicle, including after Stewart had been shot and was on

the ground, the jury could have still concluded that W ilson intended to steal the

vehicle. That is, until Buckley and Stewart refused to give in to his pleading for a

ride back to Dallas, W ilson had no need to draw the gun and to attempt to take the

vehicle by force. And Stewart also testified that he was able to position himself in

such a way that W ilson never entered the vehicle.

      Based on Buckley’s and Stewart’s testimonies, as well as Fuller’s testimony

about seeing W ilson search Reyes’s pockets and take Reyes’s keys after shooting

him and before taking Reyes’s vehicle, and the corroborating testimony about


                                         11
W ilson’s fingerprints on Reyes’s vehicle—demonstrating that W ilson had already

committed one theft of a vehicle that evening 7 —we conclude that the evidence is

legally sufficient to support the theft element of W ilson’s aggravated robbery with a

deadly weapon conviction, and we overrule his second point.

                        IV. Extraneous Offense Evidence

      In his third and fourth points, W ilson argues that the trial court erred when it

overruled his objection to the admission of the extraneous capital murder offense

and when it ruled that the probative value of this extraneous offense evidence was

not outweighed by its prejudicial effect.

A. Standard of Review

      The admissibility of evidence is within the trial court’s discretion and will not

be overturned absent an abuse of discretion. Moses v. State, 105 S.W .3d 622, 627

(Tex. Crim. App. 2003). So long as the trial court’s ruling lies within the zone of

reasonable disagreement, the appellate court should affirm. Id.




      7
         … In his third and fourth points, W ilson complains about the admission of
testimony about the Reyes murder as an extraneous offense. However, an appellate
court must consider all evidence actually admitted at trial in its sufficiency review and
give it whatever weight and probative value it could rationally convey to a jury. See
Moff v. State, 131 S.W .3d 485, 489 (Tex. Crim. App. 2004).

                                            12
B. Analysis

      W ilson objected before each witness’s testimony about the Reyes shooting,8

principally citing evidence rules 403, 404(a)(1), and 404(b), the rules now argued

before us. The trial court overruled each objection, finding that the evidence was

“same transaction contextual evidence.”

      “Same transaction contextual evidence” is evidence reflecting the context in

which a criminal act occurred. Wesbrook v. State, 29 S.W .3d 103, 115 (Tex. Crim.

App. 2000), cert. denied, 532 U.S. 944 (2001). It is a recognition that events do not

occur in a vacuum, and a jury has a right to hear what occurred immediately before

and after the offense in order to realistically evaluate the evidence. Id. Extraneous

offenses may be admissible as same transaction contextual evidence when several

crimes are intermixed, or blended with one another, or connected so that they form

an indivisible criminal transaction. Prible v. State, 175 S.W.3d 724, 731–32 (Tex.

Crim. App.), cert. denied, 546 U.S. 962 (2005). This type of evidence results when

an extraneous matter is so intertwined with the State’s proof of the charged offense

that avoiding reference to it would make the State’s case incomplete or difficult to

understand. Id. at 732.

      Evidence rule 404 states,




      8
      … That is, testimony by Fuller, Rosenhaur, Salicco, and Detectives W orman
and Lopez.

                                         13
      (a) Character Evidence Generally. Evidence of a person’s character or
      character trait is not admissible for the purpose of proving action in
      conformity therewith on a particular occasion, except:

      (1) Character of accused.      Evidence of a pertinent character trait
      offered:

             (A) by an accused in a criminal case, or by the prosecution to
             rebut the same . . .

                    ...

      (b) Other Crimes, W rongs or Acts. Evidence of other crimes, wrongs
      or acts is not admissible to prove the character of the 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, provided that upon timely request by the accused in a criminal
      case, reasonable notice is given in advance of trial of intent to introduce
      in the State’s case-in-chief such evidence other than that arising in the
      same transaction.

Tex. R. Evid. 404(a)(1), (b).

      W ilson argues that the two offenses were not indivisibly connected because

they were at two separate locations and because the Reyes murder was not

necessary to the State proving the Stewart robbery. He further contends that

Reyes’s death did not occur immediately prior to the robbery and shooting. W e

disagree.

      The crime scenes were close enough for Buckley and Stewart to hear the

gunshot that killed Reyes and for Fuller to hear the gunshots that Wilson fired into

Stewart. Less than thirteen minutes after police arrived at the Reyes murder scene

and around half a mile away, Buckley encountered a sweating and frantic Wilson

                                         14
looking to get back to Dallas. Until she and Stewart refused to give W ilson a ride in

her vehicle, W ilson did not try to jump into the driver’s side of Buckley’s vehicle or

draw his weapon and fire on Stewart.        This evidence had little to do with the

character of someone likely to steal a vehicle and actions in conformity therewith.

Cf. Tex. R. Evid. 404(a)(1), (b). Rather, to the extent that it might otherwise not be

same transaction contextual evidence of W ilson’s shooting-and-vehicle-stealing

crime spree on April 29, 2005, evidence of Reyes’s shooting and the other evidence

collected at the crime scene pertaining to the shooting (such as the truck in the

culvert) demonstrated W ilson’s motive, intent, and identity with regard to the Stewart

aggravated robbery. See Tex. R. Evid. 404(b); Prible, 175 S.W .3d at 731–32.

Therefore, we conclude that the trial court did not abuse its discretion by allowing

this testimony.

      Furthermore, under Texas Rule of Evidence 403, although otherwise relevant

evidence may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, we do not believe the trial court abused its discretion by

allowing the State to present this evidence. See Tex. R. Evid. 403. Considering the

evidence’s probative value against its potential to impress the jury in some irrational,

indelible way, the time taken to develop the evidence, and the State’s need for it, we

cannot say on these facts that the trial court abused its discretion because—as

stated above—the State needed this evidence to demonstrate W ilson’s intent to

steal a second vehicle within thirteen minutes after his first attempt ended with an

                                          15
immovable truck in a drainage culvert. See Erazo v. State, 144 S.W .3d 487, 489

(Tex. Crim. App. 2004). Although W ilson killed Reyes, we do not think this fact

would inflame the jury any more than Stewart’s testimony about being shot five times

at close range by W ilson, particularly in light of Stewart’s descriptions of his wounds

and the photographs of them that were presented to the jury. See id. And although

a trial court must still perform a balancing test to see if same transaction contextual

evidence’s probative value is substantially outweighed by its prejudicial effect, the

prejudicial nature of contextual evidence rarely renders such evidence inadmissible,

as long as it sets the stage for the jury’s comprehension of the whole criminal

transaction, as it did here.    See Swarb v. State, 125 S.W.3d 672, 681 (Tex.

App.—Houston [1st Dist.] 2003, pet. dism’d). Therefore, we overrule W ilson’s third

and fourth points.

                               V. Batson Challenge

      In his fifth point, W ilson contends that the trial court erred when it overruled

his Batson objection at the conclusion of voir dire.

A. Standard of Review

      A defendant objecting under Batson must make a prima facie showing of

racial discrimination in the State’s exercise of its peremptory strikes. Williams v.

State, 301 S.W .3d 675, 688 (Tex. Crim. App. 2009), cert. denied, 130 S. Ct. 3411

(2010). The burden then shifts to the State to articulate race-neutral explanations

for its strikes. Id. Once the prosecutor has articulated race-neutral explanations, the

                                          16
burden shifts back to the defendant to show that the explanations are really a pretext

for discrimination. Id. The trial court must then determine whether the defendant

has 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. Id.; Watkins v. State, 245 S.W .3d 444, 448 (Tex. Crim. App.), cert.

denied, 129 S. Ct. 92 (2008).

      Appellate courts must give great deference to credibility and demeanor

determinations made by the trial court in connection with a Batson inquiry, and the

court of criminal appeals has explained our review of a Batson ruling as follows,

      In assaying the record for clear error, vel non, the reviewing court
      should consider the entire record of voir dire; it need not limit itself to
      arguments or considerations that the parties specifically called to the
      trial court’s attention so long as those arguments or considerations are
      manifestly grounded in the appellate record. But a reviewing court
      should examine a trial court’s conclusion that a facially race-neutral
      explanation for a peremptory challenge is genuine, rather than a
      pretext, with great deference, reversing only when that conclusion is,
      in view of the record as a whole, clearly erroneous.

Watkins, 245 S.W .3d at 448 (citations omitted). Factors that the United States

Supreme Court has considered to determine whether peremptory challenges were

used on a racially discriminatory basis include: (1) whether the State struck a higher

percentage of African-Americans than non-African-Americans, (2) whether the

State’s reasons for striking African-Americans appeared to apply equally to

non-African-Americans whom the State did not strike, (3) whether the State used

jury shuffles in a manner that supported an inference of racial discrimination, (4)

                                         17
whether the State questioned African-Americans and non-African-Americans

differently and in a way designed to obtain answers justifying strikes of

African-Americans, and (5) whether the county in which the defendant was

prosecuted had a formal policy of excluding minority jurors from service. See Miller-

El v. Dretke, 545 U.S. 231, 240–64, 125 S. Ct. 2317, 2325–39 (2005).

B. Voir Dire

      Before voir dire began, W ilson’s counsel requested and received a jury shuffle

of the forty-eight member venire panel. At the conclusion of voir dire, the trial court

struck veniremembers #3, #7, #9, #13, #14, #26, #31, #35, #37, and #39 for cause.

The State used seven of its ten peremptory strikes, striking veniremembers #4, #5,

#11, #22, #29, #38, and #40; W ilson’s counsel used all of her peremptory strikes,

striking veniremembers #1, #11, #16, #19, #20, #21, #23, #25, #33, and #36. See

Tex. Code Crim. Proc. Ann. art. 35.15(b) (Vernon 2003).

      W ilson’s counsel raised a Batson objection at the conclusion of voir dire,

challenging the State’s peremptory strike of veniremember #40, stating that this

individual was African-American, “within range,” and “did not give any reason to have

been struck.”9 The prosecutor responded as follows to the trial court’s request for

a race neutral reason for striking veniremember #40:

      There must be a prima faci[e] showing of a non-race neutral—or a non-
      race neutral reason to exclude this juror. There has been none. But


      9
          … The trial court took judicial notice that W ilson is African-American.

                                           18
      the fact that she has a BA in criminal justice, the fact that she lists as
      her TV shows [“]The First 48,[“] [“]CSI Miami,[“] [“]Head Hunters,[“]
      [“]Forensic Files[,“] and [“]The Investigators[,”] and this is going to be a
      very forensic evidence heavy case, and I don’t want somebody that
      thinks they know what this is about from TV.[10 ] And also she has a
      family member who has been in the penitentiary, federal penitentiary,
      for some type of fraud. And I don’t want to have somebody on the jury
      that has a family member that is that close to them, as [veniremember
      #40] because it was her sister, on the jury.[11 ]

After W ilson’s counsel responded that she did not think that the facts that

veniremember #40 watches TV or has a degree in criminal justice were race neutral

reasons to strike her, the prosecutor pointed out that the State had also struck

veniremember #5, a white male with family members in prison, and veniremember

#29, a white female “whose fiancé is in the pen.” The prosecutor then argued that

the State struck everyone who had a family member that was in prison. 12



      10
        … The prosecutor made clear during the State’s voir dire that this concerned
him—immediately after questioning veniremember #40 about motive and medical
records, he stated,

      Now, DNA, fingerprints, a robbery on videotape. Okay. Anything like
      that, anything you see in [“]CSI Miami,[“] [“]Forensic Files,[“] any of
      those shows that you guys love to watch, okay, where they get DNA in
      like 30 seconds, it takes me like eight months to get DNA. Okay. It
      doesn’t take 30 seconds. Those are things that we do not have to
      prove to you. Okay?
      11
         … Veniremember #40 stated during voir dire that her sister had been to
federal prison and that it had made her sister a better person. She said, “I hate to
say it but I am not glad she went through it but she came out a better person.”
      12
        … More accurately, the State struck everyone who had a member of his or
her immediate family either in jail or recently incarcerated—that is, veniremembers
#4 (son in jail over the summer for probation problems, now out on probation) and

                                          19
      W ilson’s counsel then pointed out that juror #6 made it onto the jury panel,

“[h]er husband having been arrested and had a drug related case who was in jail[,]” 13

and that juror #5 (formerly veniremember #12) had a niece serving a sentence for

bank robbery and two nephews that were wanted and on the run.14 She argued that

the State also did not strike everyone who watches scientific crime television shows,

such as juror #4 (formerly veniremember #10)15 and juror #12, who both watch “Law

& Order,” and that veniremember #40 never said that watching those shows would

affect her ability to be a juror.16 The prosecutor responded that veniremember #40


#29 (fiancé in prison for forgery). Juror #1 (formerly veniremember #2) said that her
best friend’s daughter had gone to jail for sixty days but was out now. Juror #12
(formerly veniremember #30) said that her ex-husband had been subjected to an
illegal search, resulting in his incarceration for four days several years ago. Juror
#6 (formerly veniremember #15) stated,

      My husband and both brothers have been in prison or jail before. It’s
      been quite a few years ago. But they came out a better person [sic]
      and have good lives now. So I don’t think it would sway my judgment.
      But I am sure they had a tough time while they were there. But it’s
      over. It’s been many years ago[.]
      13
        … The jury questionnaires were not included in the record, and nothing was
revealed on voir dire about the nature of the crime committed by juror #6’s husband.
      14
        … Juror #5 said that his niece was in prison for bank robbery but he does not
correspond directly with her and that he had two nephews on the run for petty
crimes.
      15
           … The court observed that Juror #4 is African-American.
      16
        … The State struck veniremember #22, who gave the following responses
during voir dire with regard to proof that the robbery was committed with a weapon:

      [State]: [W ]hat do you think you’d like to see?

                                         20
was “the only person who only listed these shows” and the only one that had that

many of the shows listed.17

      The trial court concluded as follows:

             W ell, my understanding what the State proferred has been
      explanation is that . . . venireperson Number 40, was a person with
      great interest in a number of shows. In fact, she listed four shows, is
      that right, on her questionnaire? I don’t have the questionnaires. By
      the way, in fact, let me see the questionnaire.

            ....

            Okay. All right. I am going to deny your Batson challenge. The
      Court is going to make the finding the State offered a race neutral
      reason, that being that she has a Bachelor of Arts degree in criminal



      [Veniremember #22]: Well, a video or something would be nice to that
      effect.

      [State]: Maybe the victim who had the gun pointed at them?

      [Veniremember #22]: Yeah. And there is [sic] witnesses. But I also
      would have to make sure that the witness positively ID’s the Defendant.

      [State]: Positively ID, do you think maybe sometimes witnesses’
      memories can be shak[y]?

      [Veniremember #22]: Yes, I do.

      [State]: And if you had maybe a shaky ID, would you want to see
      fingerprint or DNA or something like that?

      [Veniremember #22]: It would be nice.

      [State]: Okay. I appreciate that. Thank you, sir.
      17
       … During the State’s voir dire, veniremember #40 acknowledged that she
watched “Law & Order,” “CSI,” and “Forensic Files.”

                                        21
      justice, as well as her interest in programs that deal[] with criminal
      investigation more so than other persons who were not struck by the
      State. I believe that race neutral reason for it.

C. Analysis

      The decision to strike a particular venireperson “is a fluid process, often

hinging on the interaction of a number of variables and permutations” and it “is

unlikely that two venirepersons on one panel will possess the same objectionable

attribute or character trait in precisely the same degree.” Cantu v. State, 842 S.W .2d

667, 689 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 926 (1993). Thus, when the

State has offered more than one plausible reason for striking a venireperson, it is

proper to review these reasons in their entirety in order to assess whether the State’s

explanation was valid or merely pretextual, as we have set out above. See id.

      Under the circumstances here, we cannot conclude that W ilson made a prima

facie showing of racial discrimination because other than veniremember #40 and

Juror #4, we cannot tell from the record how many of the forty-eight veniremembers

were African-American or how many African-Americans were in the strike zone. See

Williams, 301 S.W .3d at 688; cf. Miller-El, 545 U.S. at 240–41, 125 S. Ct. at 2325

(“‘The prosecutors used their peremptory strikes to exclude 91% of the eligible

African-American venire members . . . . Happenstance is unlikely to produce this

disparity’” (internal citation omitted)); Leadon v. State, Nos. 01-08-00839-CR, 01-08-

00840-CR, 2010 W L 143467, at *11 (Tex. App.—Houston [1st Dist.] Jan. 14, 2010,

no pet.) (observing that the State used a statistically disproportionate number of

                                          22
strikes on African-American members of the venirepanel when 14.29% of the panel

within the strike zone were black, but the State used 36.36% of its strikes on black

panel members, resulting in a prima facie case of racial discrimination).

       Nonetheless, assuming that W ilson made his prima facie showing, we cannot

say, based on this record, that the trial court’s decision to deny his Batson challenge

was clearly erroneous. W ilson’s counsel, and not the prosecutor, requested the jury

shuffle, and veniremember #40 was originally veniremember #23—well within the

strike zone. Cf. Miller-El, 545 U.S. at 253–54, 125 S. Ct. at 2332–33 (stating that the

prosecution’s shuffles raised a suspicion that the State sought to exclude African-

Americans from the jury).

       And notwithstanding the State’s failure to strike everyone who had ever known

anyone who had been incarcerated—which the trial court did not include as a reason

for its decision—veniremember #40 was not the only veniremember that the State

struck for having an interest in scientific evidence, and she was the only one

revealed on this record to have a degree in criminal justice.18 Cf. id. at 241–53, 125

S. Ct. at 2325–32 (referencing panelists’ voir dire and questionnaire answers to

determine whether prosecutor’s proffered reason to strike applied just as well to an

otherwise-similar nonblack who was permitted to serve). Therefore, we overrule

W ilson’s fifth point.


       18
            … As previously noted, the jury questionnaires were not included in the
record.

                                          23
                                 VI. Conclusion

      Having overruled all of W ilson’s points, we affirm the trial court’s judgment.



                                                    PER CURIAM

PANEL: MCCOY, W ALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 28, 2010




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