                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                              NOS. 2-07-393-CR
                                   2-07-394-CR


DANA A. MCCRAY                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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

     FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

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

                         MEMORANDUM OPINION 1

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

      Appellant Dana A. McCray appeals his convictions for aggravated assault

of a public servant and aggravated assault with a deadly weapon. In three

points he challenges the factual sufficiency of the evidence to support both

convictions, contends the trial court erred by denying his Batson challenge, and




      1
          … See Tex. R. App. P. 47.4.
claims the trial court improperly denied his requested instruction on self-defense

against multiple attackers. We affirm.

                                  Background

      Appellant began arguing with Carlos Toledo in the parking lot of a

convenience store after appellant’s car almost collided with Toledo’s friend’s

truck, which Toledo had been standing next to. Two undercover Fort Worth

police officers tried to intervene. After appellant stabbed Toledo and one of the

officers, the other officer shot appellant.

                               Factual Sufficiency

      In his first point, appellant challenges the factual sufficiency of the

evidence to support both convictions. Specifically, he contends the evidence

is too weak to support his convictions. 2

Standard of Review

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert. denied, 129

S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App.



      2
        … Although appellant’s ending prayer asks for an acquittal on his first
point, the argument under his first point deals only with factual sufficiency and
specifically requests a new trial. Moreover, in oral argument, appellant confined
his discussion to factual sufficiency only.

                                        2
2006). We then ask whether the evidence supporting the conviction, although

legally sufficient, is nevertheless so weak that the factfinder’s determination is

clearly wrong and manifestly unjust or whether conflicting evidence so greatly

outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704

(Tex. Crim. App. 2008); Watson, 204 S.W.3d at 414–15, 417. To reverse

under the second ground, we must determine, with some objective basis in the

record, that the great weight and preponderance of all the evidence, though

legally sufficient, contradicts the verdict. Watson, 204 S.W.3d at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly

wrong or manifestly unjust simply because we would have decided differently

than the jury or because we disagree with the jury’s resolution of a conflict in

the evidence.    Id.   We may not simply substitute our judgment for the

factfinder’s. Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000); Cain

v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record

clearly reveals that a different result is appropriate, we must defer to the jury’s

determination of the weight to be given contradictory testimonial evidence

                                        3
because resolution of the conflict “often turns on an evaluation of credibility

and demeanor, and those jurors were in attendance when the testimony was

delivered.” Johnson, 23 S.W.3d at 8. Thus, unless we conclude that it is

necessary to correct manifest injustice, we must give due deference to the

factfinder’s determinations, “particularly those determinations concerning the

weight and credibility of the evidence.” Id. at 9. Our deference in this regard

safeguards the defendant’s right to a trial by jury. Lancon, 253 S.W.3d at 704.

Applicable Facts

      Carlos Toledo

      Toledo, the victim of the aggravated assault with a deadly weapon,

testified that after work on June 15, 2006, he went to a convenience store on

Lancaster and Beach Streets in Fort Worth around 7:00 or 8:00 p.m. His friend

Isidro Salazar was driving the truck the two were riding in; Salazar parked the

truck close to the store’s entrance.      Toledo went inside to make some

purchases. After he came back out, he went to get back into the passenger

side of the truck. As he was trying to get in, a man was backing out a car in

the next space and almost hit the back of the truck. Toledo told the man to be

careful, and the man “approached [him], and he cussed [him] and then stabbed”

him with a knife.




                                      4
      The man tried to stab Toledo again, but “some police officers came and

stopped him.” Toledo said they identified themselves as police officers and told

everyone to put their hands in the air. Toledo jumped on the sidewalk back

toward the store. He saw the police officers holding the man, but he did not

see appellant stab anyone else, nor did he see the shooting very clearly because

he was feeling dizzy and almost fell. After he heard the shots, he saw the man,

who fell and ended up on the ground. According to Toledo, “it was so quick.”

      On cross-examination, Toledo testified that when the man approached

him, Salazar got out of the truck and came over “to go close to” him. He did

not recall Salazar having a sledgehammer.         However, a photograph was

admitted into evidence, which Toledo identified as being the back of Salazar’s

truck, showing a sledgehammer in the back.

      Chad Mills

      Chad Mills, a former officer with the Fort Worth Police Department,

testified that on June 15, 2006, he and his then-partner Officer Garrett Hull

were working undercover investigating narcotics complaints. That night, Mills

was wearing a blue short-sleeve T-shirt, a pair of blue jeans, and a pair of “all-

purpose-type shoes”; he and Officer Hull would normally wear “[s]ome sort of

plain T-shirt and a pair of jeans . . . and tennis shoes” when working




                                        5
undercover so that they would not be recognized. But Mills also wore a badge

on a neck chain under his T-shirt.

      That night, Mills and Officer Hull stopped at the store on a break to get

something to drink. After buying a drink, Mills went outside and waited by the

car for Officer Hull to come outside. While he was waiting, he saw “some sort

of confrontation” between the passenger of a pickup truck and the driver of a

car,3 whom he identified as appellant; he could hear the men arguing. As Mills

was watching, appellant got out of the car “in an aggressive manner” and

approached the truck; at the same time, the passenger, whom Mills identified

as Toledo, got out of the truck so that the two were face to face. Mills then

walked around the front of the truck and started to approach appellant and

Toledo, intending to stop the fight. As he walked toward them, Mills pulled out

his badge and identified himself as a Fort Worth police officer. He held the

badge up by his face and told them to stop what they were doing. Appellant

was facing Mills, and Toledo had his back toward Mills.

      Mills saw appellant push Toledo; as he got closer and the two men

separated, Mills realized that Toledo was holding his stomach.     He did not

realize that Toledo had been injured, though. Appellant then came toward Mills



      3
      … The officers’ vehicle was parked next to the truck, and appellant’s car
was on the other side of the truck.

                                      6
with “his right hand in the air as if he were going to throw a[n] overhand-type

punch” toward Mills. Mills took a step back and pushed appellant away while

stepping aside trying to avoid appellant. But appellant reached over the top of

Mills’s left shoulder and stabbed him with a knife. Mills tried to step back

farther, but appellant lunged toward him again. Appellant did not stab Mills a

second time, however, because Officer Hull, who was standing behind Mills,

shot appellant twice.

      Mills testified that appellant fell to the ground after Officer Hull shot him,

and the knife fell out of his hand. But appellant quickly got back up, grabbed

the knife off the ground, and ran to the front doors of the store. Mills did not

realize he had been stabbed; he and Officer Hull detained appellant before he

could go inside the store.    They then sought medical attention for Toledo,

whom Mills realized had been injured. Mills did not know that appellant had

stabbed him too until Officer Hull told him.

      On cross-examination, Mills admitted that he did not see Salazar get out

of the truck; he was focused on what was happening between appellant and

Toledo. Mills testified that “immediately when [he] was identifying [himself] as

a police officer is when [appellant] lunged towards [him] with his right hand and

stabbed [him] in [the] shoulder.” He clarified that when he pulled the badge out

from under his shirt and displayed it, he also said loudly, “police officer, Fort

                                         7
Worth police officer.”      According to Mills, the entire encounter lasted only

seconds.

      When Officer Hull shot appellant, Mills heard the shots coming from his

left side. Mills testified that Officer Hull, who was dressed similarly to Mills,

had identified himself as a Fort Worth police officer as well. Mills corroborated

still photographs from the surveillance camera at the store, which indicated that

the entire incident took less than one minute.

      Officer Bill Yeager

      Fort Worth Police crime scene officer Bill Yeager examined the scene after

the stabbings and shooting. The State offered fourteen photographs of the

scene taken by Officer Yeager as well as a diagram that he had prepared

showing the location of the items he found.

      Officer Yeager first found a fired casing under appellant’s car. He found

a second fired casing on the ground in front of appellant’s car, but he never did

find any bullets.   Officer Yeager also photographed the blood trail from

appellant; he said it was not a continual stream but spots or drops without a

“discernable directionality.” On the diagram, Officer Yeager drew the line of

the blood trail around the back of Salazar’s truck and the vehicle Mills and

Officer Hull were driving up to the front of the store. Officer Yeager noted that




                                         8
there were blood stains on the glass around the store’s front door, the door

itself, and the door handles.

      On the sidewalk in front of the store, in between Salazar’s truck and the

officers’ vehicle, Officer Yeager found a bloodstained white shirt. Also on the

sidewalk, closer to the front door of the store, Officer Yeager found a ball cap.

He found a cell phone in the parking lot just outside the store’s front doors,

near the path of the blood trail. Immediately in front of the store’s front doors,

Officer Yeager found a knife and a cap for the knife; a blood-stained, torn 4

orange shirt; two earrings; a blood-stained white tank top; a blood-stained

receipt; and a blood-stained condom in a wrapper.

      Officer Yeager testified that from the location of the casings, he could tell

that the bullets were shot from the area in front of appellant’s and Salazar’s

vehicles. He also testified that, in his opinion, the knife was a deadly weapon,

capable of causing serious bodily injury or death.

      On cross-examination, Officer Yeager admitted that the photographs he

took at the scene did not show the blood trail that he drew on the diagram. He

also admitted that it was “a possibility” that if someone had been shot at the




      4
       … Officer Yeager explained that the shirt’s condition indicated “[m]edical
intervention where the ambulance personnel arrive at the scene and remove the
clothing.”

                                        9
door, it could create a spatter such as the one he observed on the door of the

store.    When asked if the blood spatter at the door was inconsistent with

someone being injured by the vehicles, Officer Yeager stated,

         No. If somebody was injured, they could cause that blood spatter
         to be on the doors, and there also could be a blood trail - - whether
         it be two drops or 100 drops, there could actually be a blood trail
         on the parking lot. However, it was not - - the blood trail was not
         photographed or projected in a photograph from my testimony.

         On redirect, Officer Yeager testified that the blood on the door handle

was a smear, which indicates “someone already having blood on their hands

and then smearing it down the handle or the blood was already there and then

they - - they smeared the blood that was already there.” According to Officer

Yeager, the blood on the door was possibly consistent with someone bleeding

from the chest with blood on his hands or someone transferring the blood to the

door from bloody clothing or an injury. But Officer Yeager also admitted that

if blood had been on the door, the officers could have smeared it when they

walked in after the shooting. He also said that the blood trail he noted on the

diagram that was around the vehicles did not show up on the photographs

because of a malfunction of his camera’s flash.

         Officer Yeager admitted that he did not know who the earrings, receipt,

or wrapped condom belonged to. He simply photographed them because he

found them at the scene. But someone told him that the cell phone he found

                                          10
belonged to appellant. There was blood spatter on the inside of the cell phone,

which was lying in the open position.

      Officer Garrett Hull

      Officer Hull testified that on the night in question, he was exiting the

store and going to the driver’s side of the car when Mills got his attention.

Mills told Officer Hull that he thought something was going on in the parking

lot. Officer Hull then saw the car and truck parked next to them; he said it

“looked like there was some sort of confrontation going on between the two

parties.” But he could not hear what the men were saying.

      According to Officer Hull, he and Mills displayed their badges and had

already begun verbally identifying themselves as police officers 5 as they were

walking around to where appellant and Toledo were standing. Officer Hull was

standing behind Mills as Mills got between appellant and Toledo; it was then

that Officer Hull saw appellant stab Mills. Officer Hull described the stabbing

and following events:

            I . . . saw that he had made a punching-type motion to Mr.
      Toledo, but I didn’t realize at that time that he had a knife in his
      hand. It wasn’t until I saw the defendant’s hand above his head
      with the knife and come down on Chad is when I observed, oh,




      5
       … Officer Hull was also wearing a T-shirt and jeans, but, like Mills, he
had his badge around his neck.

                                        11
      he’s got a knife in his hand, and I realized that he had stabbed Mr.
      Toledo as well.

            ....

             [T]he whole time, approaching the situation, I was constantly
      identifying ourselves as police officers trying to get it to stop. And,
      at that time, I realized that the threat was imminent, and he - -
      Chad - - when Chad got stabbed, he kind of pushed away from the
      defendant, and the defendant was still in a real close proximity to
      us and Mr. Toledo, and he still had the knife raised in an aggressive
      manner, so it was an imminent threat. And, at that time, I drew
      my service weapon and fired.

Officer Hull said that he used deadly force against appellant because he thought

he, Mills, and Toledo were all at risk of serious bodily injury or death because

of appellant’s actions. Officer Hull saw the driver of the truck, Salazar, inside

the truck during the argument and also saw him get out of the truck after the

stabbing to check on Toledo; however, he never saw Salazar with a

sledgehammer.

      John Salazar

      John Salazar6 , a witness who was pumping gas during the incident,

testified that he saw “a skirmish, a fight” in front of the store. As he described

it, the events “started out with a verbal argument, and then . . . rose to a kind

of shoving match to a fight.” According to Salazar, the two men just started



      6
        … Isidro Salazar, Toledo’s friend and the driver of the truck he was riding
in, did not testify.

                                        12
out talking to each other, then got in each other’s faces, shouting and then

shoving. It was too far away for him to hear what the men were saying, but

he heard shouting. When the first officer approached the men, Salazar could

tell that he was telling them something, but he was too far away to hear

exactly what. He could not hear whether Mills identified himself as a police

officer.

      Salazar testified that when Mills arrived at the two men, he started to

“break up the fight.” He then took aside appellant and was talking to him, “and

they started putting hands on each other and then, . . . they were fighting.”

According to Salazar, appellant and Mills “kind of wrestled around a couple of

seconds.” Officer Hull then came out of the store, and Salazar heard someone

shout, “[H]e’s got a knife”; Salazar heard Officer Hull say freeze and saw him

fire two shots a couple of seconds later. Salazar was certain Officer Hull said

“freeze” but could only say that he thought Officer Hull also said “freeze,

police.” 7 Salazar did see Officer Hull’s badge in “his torso area.”

      Salazar said that appellant “ran kind of like in a half circle back towards

the store door” after he had been shot. In other words, he initially ran toward

the rear of the vehicles but then turned back to go toward the store doors,



      7
       … Salazar clarified, “I was too far away to hear exactly what he was
saying.”

                                       13
which is where he collapsed. Salazar testified that the route he saw appellant

take was consistent with the blood trail outlined by Officer Yeager. Salazar

could not recall what direction appellant was facing when Officer Hull shot him.

He did not see a knife in appellant’s hands, but he was about twenty-five to

thirty feet away from what was happening.

      Charles Hollie

      Charles Hollie testified that he had gone to the store to buy a drink. As

he was waiting in line, he heard “a little bang, like a shot.” He looked around

and saw a man running toward the store; he then heard someone say “police,

freeze,” followed by another gunshot. He saw Officer Hull shoot appellant in

the arm. The State questioned Hollie about the statement Hollie gave to the

police about an hour after the shooting in which he stated that he heard

“police” before the first shot.   When confronted with his statement, Hollie

initially maintained that he heard Officer Hull say “police” after the first shot.

But when asked if he was not telling the truth in the statement, Hollie said, “I

really don’t remember ma’am. I’m just - - I really don’t remember.”

      Victoria Van Fleet

      Victoria Van Fleet, a forensic firearms examiner with the Fort Worth

Police Department, examined the T-shirt appellant had been wearing when he

was shot to determine whether holes in it were “bullet defects” and to see if

                                       14
she could “notice any gun powder or some kind of residue on it to determine

. . . a muzzle-to-target distance.”    She found a hole in the left arm that

appeared to be caused by the passage of a bullet; the hole was a little smaller

in the front than in the back, possibly indicating that the direction of the shot

was from the front to the back.     She also examined a white tank top that

appellant had been wearing; it had a hole that was “quite a bit larger” in the

back than in the front. She testified that this was consistent with a hollow

point bullet 8 passing from the front to the back of the shirt because those

bullets expand upon striking something. However, Van Fleet also testified that

she could not be sure the holes she saw in the shirts were bullet holes; the

chemical tests she ran for gunpowder and lead came back negative.            She

conceded on cross-examination that it is possible that holes in the back of a

shirt could become bigger from a person’s lying on the ground and being moved

around.

      When asked by appellant’s counsel whether a surgeon could tell which

way a bullet entered a person’s body by the direction it was facing when the

surgeon removed it, Van Fleet explained that a bullet can rotate inside a person

after entry, “[s]o just because the direction is pointing one way does not mean



      8
       … According to Van Fleet, the Fort Worth Police Department uses hollow
point bullets.

                                       15
that’s the way it was fired.” Also on cross-examination, the defense offered,

and the trial court admitted, appellant’s medical records, in which the doctor

treating his gunshot wound stated numerous times that one of the wounds was

to appellant’s back, exiting his left nipple. But Van Fleet also testified, both on

direct and cross, that the report said elsewhere that the entrance wound was

under the nipple. In addition, the discharge report showed that appellant had

been treated for a “GSW left chest.”

      Detective Troy Lawrence

      The State called Troy Lawrence, a Fort Worth police detective.            He

testified that he interviewed three adults and one child who had witnessed

some of the events at the store. He also retrieved the store’s video surveillance

system on a CD. The State offered still photos from the surveillance system.

However, none of those photos show clearly what happened outside the store,

only what was going on inside.

      The State played a recording of Detective Lawrence’s interview with

Hollie. When asked what he saw and heard that night, Hollie told Detective

Lawrence that he heard a shot, “police, police,” and a second shot. When

Detective Lawrence asked Hollie to clarify when he heard “police, police,” Hollie

initially said “after,” but then quickly corrected himself and said that he heard

it before the first shot.   According to Hollie, he heard the first shot, saw

                                        16
appellant running, heard the second shot, and finally heard appellant say,

“Allright, allright” and fall down in front of the door. But he also said that he

hid after the second shot.

      On cross-examination, Detective Lawrence testified that when reviewing

the surveillance tape, he could hear the gunshots but not any talking outside

the store; however, he also said that just because the recorder did not pick up

the sound of voices outside the store did not mean that a person inside the

store could not have heard them.

      Appellant’s Witnesses

      Appellant called three witnesses, two of whom testified that before the

incident, appellant had been at their house to watch television and had left

sometime after 8:00 p.m. to go to the store. Marsha Adams, a Fort Worth

police administrative assistant in the internal affairs division, testified that no

internal affairs investigation file for Officer Hull existed.

Analysis

      Appellant contends that the following shows that the evidence as a whole

is too weak to be factually sufficient as to both convictions: (1) John Salazar,

the witness who was pumping gas at the time of the incident, heard Mills say,

“freeze,” but could not be sure that he heard him say “freeze, police”; (2) the

blood spatter on the door and the medical reports support a contention that

                                         17
appellant could have been shot in the back rather than in his chest; and (3) “the

witnesses called by [appellant] established that [appellant] appeared to have no

anger issues or an agenda when he left the house other [than] to buy beer and

return to watch a ball game.”

      The jury is the sole judge of the weight and credibility of the evidence and

is entitled to resolve conflicts in the evidence. See Tex. Code Crim. Proc. Ann.

art. 36.13 (Vernon 2007); Johnson, 23 S.W.3d at 7.           The jury was thus

entitled to believe Toledo, Mills, and Officer Hull, who all testified that the

officers identified themselves to appellant before he stabbed Mills. Moreover,

it was also entitled to resolve the conflict between Hollie’s in-court testimony

and his recorded statement and believe that the version of the facts in his

statement was more credible. Accordingly, we conclude that the fact that a

different witness, who was not standing as close to the events as the others,

may or may not have heard the officers identify themselves as such, does not

render the evidence too weak to support the conclusion that appellant knew

Mills was an officer. Moreover, this evidence has no bearing on the conviction

for aggravated assault of Toledo with a deadly weapon.

      Additionally, we fail to see how where Officer Hull shot appellant (either

in the back or in the chest, or by the vehicles or the store door) has any bearing

on the credibility of the witnesses who testified that appellant stabbed both

                                       18
Toledo and Mills or how it creates doubt about his knowledge that Mills was a

police officer. The jury was entitled to believe that appellant, having heard and

seen Mills identify himself as a police officer, nevertheless stabbed him, then

attempted to flee.

      Finally, although appellant contends that his witnesses “established that

[he] appeared to have no anger issues or an agenda when he left the house

other [than] to buy beer and return to watch a ball game,” we note that neither

witness testified about appellant’s emotional state. They testified simply that

appellant was at their house watching a game and then left in the evening to

go to the store. Neither was at the store when the event occurred, and their

testimony has no bearing on what happened when appellant arrived there.

Additionally, their testimony does not serve to weaken the testimony of the

eyewitnesses and participants.

      We have detailed all the evidence from which the jurors could have

concluded that appellant was guilty of both offenses beyond a reasonable

doubt; after considering appellant’s contentions and the evidence as a whole,

we cannot say that it is so weak that the jury’s verdict was clearly wrong and

manifestly unjust. Accordingly, we conclude and hold that the evidence is

factually sufficient to support both of appellant’s convictions, and we overrule

appellant’s first point.

                                       19
                Self-Defense Against Multiple Attackers Instruction

      In his third point,9 appellant contends that the trial court erred by denying

his request for a jury instruction on self-defense against multiple attackers. The

State contends that the issue need not be reached because there was no

evidence to support any self-defense instruction in light of appellant’s use of

deadly force.

Applicable Law

      A defendant is entitled to an instruction on every defensive issue raised

by the evidence “whether that evidence is weak or strong, unimpeached or

uncontradicted, and regardless of what the trial court may or may not think

about the credibility of the defense.” Allen v. State, 253 S.W.3d 260, 267

(Tex. Crim. App. 2008); see Tex. Code Crim. Proc. Ann. arts. 36.14–.15

(Vernon 2007); Quattrocchi v. State, 173 S.W.3d 120, 122 (Tex. App.—Fort

Worth 2005, pet. ref’d). A self-defense against multiple attackers charge is

warranted if “there is evidence, viewed from the accused’s standpoint, that he

was in danger of an unlawful attack or a threatened attack at the hands of

more than one assailant.” Frank v. State, 688 S.W.2d 863, 868 (Tex. Crim.

App. 1985) (quoting Wilson v. State, 140 Tex. Crim. 424, 145 S.W.2d 890,



      9
       … We address appellant’s third point out of order because it relies in part
on the facts discussed in his first point.

                                        20
893 (1940)).10 Thus, the issue is whether there is evidence that, viewed from

appellant’s standpoint, he was in danger of an unlawful attack or threatened

attack from Toledo, Mills, and Officer Hull.

Analysis

      Appellant’s requested instruction read as follows: “This right of self-

defense also applies when the defendant reasonable [sic] believes that he is

under attack by more than one person. In such circumstances, the defendant

has a right to defend himself against any one or more of the persons or against

all of them.” Appellant points to the evidence that the entire incident happened

quickly in “a matter of seconds.” He contends that the short time frame raises

the issue of whether he perceived himself under attack from all three persons;

in other words, while he was arguing with Toledo, Mills and Officer Hull came

upon him so fast that he perceived he was the victim of a concerted group

attack. He also points to the evidence that John Salazar, the man pumping gas

at the time, saw Toledo and appellant shouting at and shoving each other and




      10
        … The State contends that a separate instruction is not required in this
case because it is not a statutory defense under the penal code. See Giesberg
v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998) (“[A] defense which
is not recognized by the Legislature as either a defense or as an affirmative
defense does not warrant a separate instruction.”), cert. denied, 525 U.S. 1147
(1999). But we need not decide whether such an instruction is available, given
our disposition of appellant’s point. See Tex. R. App. P. 47.1.

                                      21
the testimony that Mills pushed appellant first after getting in between appellant

and Toledo.

      Viewing the evidence in the light most favorable to appellant, we

conclude that he has not shown he was entitled to such an instruction, if one

is even available. See Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App.

1999).

      The theory behind the multiple assailants charge is that, when it is
      clear that an attack is being conducted by multiple people as a
      group, a defendant is justified in using force against any member
      of the group, even if the recipient of that force is not engaging in
      conduct that would, by itself, justify the use of force (or deadly
      force as the case may be).

Dickey v. State, 22 S.W.3d 490, 493 (Tex. Crim. App. 1999) (Keller, J.,

concurring); see Black v. State, 65 Tex. Crim. 336, 145 S.W. 944, 945–47

(1912) (explaining deficiency in charge that did not incorporate this concept).

      Here, the evidence shows that appellant stabbed Toledo before Mills got

to the two men. Toledo and Mills, the two closest to appellant at the time,

both testified that Mills was identifying himself as an officer while approaching.

Officer Hull did not see appellant stab Toledo, and he testified that he did not

draw his weapon until after appellant stabbed Mills. He was behind Mills and

not involved in the physical confrontation; in fact, there is no evidence that

appellant even saw Officer Hull.



                                       22
      John Salazar’s version of events does not contradict the other witnesses’

versions of the events in these respects; he simply could not confirm what was

or was not said because he was standing too far away. He testified that Mills

was already wrestling with appellant before Officer Hull came out of the store.

He also heard someone say that appellant had a knife before he heard shots.

      Appellant’s requested defense appears to rely on the absence of evidence

rather than on “weak or strong, unimpeached or uncontradicted” evidence that

was actually admitted. Accordingly, we conclude and hold that, regardless of

the availability of the requested instruction at law, the defensive issue was not

raised by the evidence and, therefore, the trial court did not err by refusing to

include it in the charge. We overrule appellant’s third point.

                               Batson Challenge

      In his second point, appellant challenges the trial court’s ruling denying

his Batson challenge.

Applicable Facts

      At the end of voir dire, the trial court called the following veniremembers

to be seated on the jury: 4, 11, 13, 22, 24, 29–31, 36, and 38–40. Instead

of being sworn in at that time, the trial court released the jury until the next

day. The next day, the trial court called the same juror numbers and then

administered the oath. Afterwards, appellant’s counsel asked the trial court,

                                       23
“Your Honor, am I to understand that a juror has changed? No one brought

that to my attention.” The trial court then explained that the day before, when

he had called the selected jury members, number 34, who had not been

selected and whom the State had peremptorily struck, sat in the jury box with

the other selected jurors and number 40 mistakenly left with the other

discharged veniremembers. The mistake was corrected so that when the jury

was sworn, number 40 was seated instead of number 34.

        Appellant’s counsel then raised a Batson challenge on the ground that

“the    jury   was   composed   of   three   African-Americans   on   yesterday

evening . . . [a]nd this morning, it’s composed of two African-Americans.”

Juror 34 is an African-American female, and appellant is an African-American

male.

        The State pointed out to the trial court that the jury had already been

sworn,11 but the trial court requested that the State respond to the motion



        11
        … The State contends that appellant’s Batson challenge was untimely
because the jury had already been sworn. See Tex. Code Crim. Proc.
Ann. art. 35.261 (Vernon 2006); Hill v. State, 827 S.W.2d 860, 873–74 (Tex.
Crim. App. 1992), cert. denied, 506 U.S. 905 (1992). In these unusual
circumstances, however, appellant was apparently not able to discern the
change in the panel from the day before until the jury was actually being sworn
and he could visually examine the correct panel. And appellant raised his
challenge immediately after the jury was sworn. Accordingly, on these facts,
and in the interest of justice, we will address the merits of his complaint. See
Tex. R. App. P. 33.1(a)(1); Tex. R. Evid. 103(a)(1); Lagrone v. State, 942

                                       24
nevertheless.      The State explained that it struck juror 34 because in her

questionnaire, she indicated that her ex-husband had been in and out of prison

for years in response to a question about whether she or someone close to her

had had an unpleasant experience with law enforcement. The defense then

offered    the      questionnaires        of     five   other     non-African-American 1 2

veniremembers—Jurors 10, 11, 17, 39, and 43, two of whom were seated on

the jury—who also answered that they or a family member had had a bad

experience with law enforcement.                According to the defense, the State’s

explanation      failed   because    it   did    not    strike   these   similarly   situated

veniremembers. The trial court denied appellant’s Batson challenge, stating,

“At this time, I’m going to find that you failed to meet the burden of showing

there was a disproportionate number of jurors who were struck as a minority

race. I’ll find that this is a race-neutral jury.”




S.W.2d 602, 618 (Tex. Crim. App.), cert. denied, 522 U.S. 917 (1997); Polk
v. State, 729 S.W.2d 749, 753 (Tex. Crim. App. 1987). Moreover, because
we hold that he is not entitled to relief on the merits, our disposition is the
same. See Tex. R. App. P. 47.1.
      12
        … The only part of the record indicating the race of the veniremembers
is appellant’s counsel’s statement that “for the record . . . I do believe they are
members of the Caucasian race.”

                                                25
Applicable Law

      The Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution prohibits race-based jury selection. U.S. Const. amend.

XIV; Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719 (1986);

Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001).           When a

defendant challenges the racial composition of a jury under Batson, he or she

must prove that the prosecutor engaged in purposeful discrimination against a

member of a constitutionally protected class in exercising the State’s

peremptory challenges. Batson, 476 U.S. at 96–98, 106 S. Ct. at 1723–24;

Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008), cert. denied,

129 S. Ct. 92 (2008). The defense must first make a prima facie case of racial

discrimination (step one). Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct.

1769, 1770–71 (1995); Watkins, 245 S.W.3d at 447.              The burden of

production then shifts to the State to come forward with a race-neutral

explanation (step two). Purkett, 514 U.S. at 767, 115 S. Ct. at 1770–71;

Watkins, 245 S.W.3d at 447.        If the State tenders such a race-neutral

explanation, the trial court must then decide whether the defendant has proved

purposeful racial discrimination (step three). Purkett, 514 U.S. at 767, 115 S.

Ct. at 1770–71; Watkins, 245 S.W.3d at 447.




                                      26
      The step-two explanation need only be race neutral on its face. Purkett,

514 U.S. at 767–68, 115 S. Ct. at 1771; Watkins, 245 S.W.3d at 447. 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

defendant has satisfied his or her burden to prove the strike was indeed the

product of the State’s purposeful discrimination. Purkett, 514 U.S. at 768, 115

S. Ct. at 1771; Watkins, 245 S.W.3d at 447. Whether the defendant satisfies

the burden of persuasion to show that the proponent’s facially race-neutral

explanation for the strike is pretextual and not genuine is a question of fact for

the trial court to resolve in the first instance. Watkins, 245 S.W.3d at 447;

Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004); see Purkett,

514 U.S. at 769, 115 S. Ct. at 1771.

      After the defendant has made out a prima facie case of racial

discrimination, if the trial court then proceeds immediately to the second step

by inquiring of the State whether it had a nondiscriminatory purpose—as the

trial court did here—a reviewing court is to assume that the defendant has

satisfied the step-one obligation to make a prima facie case of purposeful

discrimination and address only the second and third steps.        Watkins, 245

S.W.3d at 447–48. The court of criminal appeals has explained this court’s

role on review of a trial court’s Batson ruling as follows:

                                       27
             The reviewing court should not overturn the trial court’s
      resolution of the Batson issue unless it determines that the trial
      court’s ruling was clearly erroneous. 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.

Id. at 448 (citations omitted).

      In our analysis of the second and third steps, we are guided by the

Supreme Court’s recent opinion in Miller-El v. Dretke, in which the Court

“considered the combined impact of a number of factors in concluding that, by

clear and convincing evidence, the prosecutors exercised two peremptory

challenges on a racially discriminatory basis, notwithstanding the race-neutral

explanations they offered at the Batson hearing.” Id. (citing Miller-El v. Dretke,

545 U.S. 231, 266, 125 S. Ct. 2317, 2340 (2005)). Among the factors the

Court considered in Miller-El, viewing the voir dire as a whole and considering

the collective and cumulative impact of those factors, were (1) statistics

showing the State struck a higher percentage of African-Americans than non-

African-Americans, (2) the State’s given reasons for striking African-American

jurors appeared to apply equally to non-African-American jurors the State did



                                        28
not strike, (3) evidence that the State used jury shuffles in an attempt to

manipulate the racial makeup of the panel, (4) the State questioned African-

American and non-African-American jurors differently and in a way designed to

obtain answers justifying strikes of African-American jurors, and (5) evidence

that Dallas County had a formal policy of excluding minority jurors from service.

Miller-El, 545 U.S. at 240–64, 125 S. Ct. at 2325–39; Watkins, 245 S.W.3d

at 448–49.

        Only the second factor was raised during the Batson hearing in appellant’s

case.    Accordingly, although we are not limited to considering only those

matters specifically raised at the hearing, we will begin by undertaking a side-

by-side comparison of Juror 34 with Jurors 10, 11, 17, 39, and 43.

Comparative Juror Analysis

        Juror 34

        Juror 34’s questionnaire showed that she was forty years old. She listed

her occupation as “CDL Driver Prospect.”          Her education was listed as

“Complete 10th/w diploma.” 13 To the question, “Have you or someone close

to you ever had an unpleasant experience with the police,” she answered, “ex-




        13
        … The copy of the questionnaire is light, and it is possible the notation
says, “Complete 12th/w diploma.” Either way, it appears she has a high school
education.

                                        29
husband in and out of prison for years.” In response to the question, “Have

you or someone close to you ever been arrested for or charged with a crime

([i]ncluding hot checks),” she answered, “Traffic Ticket 1997.” She had never

served on a civil or criminal jury. The only party to question Juror 34 directly

was the State, who asked, “[Y]ou’ve had family that was involved in the

criminal justice system. Is there anything about that case that would affect you

sitting as a juror here?” The juror responded simply, “No.” The State did not

question her further.

      Juror 10

      Juror 10, a thirty-six year-old male, indicated on his questionnaire that he

was a teacher and that his wife also worked for the same school district. He

had a master’s degree in Christian Education. In response to the question about

unpleasant experiences with the police, he answered, “older brother got into

much trouble with DWI’s and such - of course, I only heard his side.” He had

never served on a criminal or civil jury.

      During questioning by the State, he volunteered the following: “It was

not with a deadly weapon, but my wife was raped before I met her, so she was

assaulted.” When asked if he would have strong feelings about the instant

case, he stated, “Well, I certainly have strong feelings, but I don’t know - - I

can’t say how I would feel based on the facts in any case.” He admitted it was

                                       30
possible that “there might be some part of the emotional part that involves

violence that [he] might have a hard time with,” but he also added that his

wife’s assault had taken place “a long time ago.” The defense challenged him

for cause.

      On further questioning by the trial court, Juror 10 stated that what

happened to his wife would not affect his judgment in the case, that the two

cases were “totally different,” and that his wife’s assault did not seem to be

relevant to the instant case. He also stated that he could be fair and impartial

to appellant and the State.

      Thus, although Juror 10 also listed a close family member with more than

one unpleasant experience with the police, his brother, he also was married to

someone who had been the victim of an assault. Additionally, when defense

counsel asked who wanted to serve on the jury, Juror 10 responded that he

did. Accordingly, we conclude and hold that there are sufficient differences

between Juror 10 and Juror 34 such that the State’s reasoning did not apply

equally as to both of them.

      Juror 11

      Juror 11 was fifty-eight at the time of trial, and he listed his occupation

as “Ret Fed Gov’t.” For his educational background, he listed “AA Degree.”

In response to the question about bad experiences with police, he listed, “Wife

                                       31
arrested erroneously. Same name & someone with a warrant.” He had also

served in the United States Army and had a nephew who was a Grand Prairie

policeman. Finally, Juror 11 had served on both a civil and a criminal jury in the

past.

        When the State asked whether he could be fair (presumably in relation to

having a relative in law enforcement), he stated, “I think I could be fair.” When

asked if, with respect to his “experience,” he could “put that aside and judge

each person as they came in here,” he said, “Yes, ma’am.” Later, Juror 11 and

defense counsel engaged in the following colloquy:

        [Juror 11]: Well, I think you have the right to defend yourself by
        any means necessary to get out of the situation.

        [Defense counsel]:      Okay.

        [Juror 11]: Unless it’s against law enforcement, then he has the
        gun and you don’t have a right to pull a gun against him.

        [Defense counsel]:      Okay. But what if I didn’t know it was law
        enforcement?

        [Juror 11]: Well, you should have been warned prior to.

        [Defense counsel]:     Okay. So in the course of me being
        attacked and defending myself, I should be more astute as to who
        the person is?

        [Juror 11]: No, I’m not saying that. Law enforcement would
        inform you that they’re law enforcement.

Juror 11 ultimately sat on the jury.

                                        32
      Unlike Juror 34, Juror 11 had a relative in law enforcement. And, also

unlike Juror 34, his spouse’s experience with the police was a one-time event,

not multiple encounters over a period of years.           Additionally, his wife’s

experience was one of mistaken identity and presumably did not involve prison

time. Accordingly, we conclude and hold that Juror 11’s characteristics that

could be considered more favorable to the State distinguish him sufficiently

from Juror 34 such that the State’s failure to strike him does not show

pretense as to its striking Juror 34.

      Juror 17

      There is some confusion in the record regarding Juror 17; it appears that

two jurors, 17 and 20, shared the same last name.14 Juror 17 was 69 years



      14
         … Although the State contends in its brief that it “can find no indication
that there were two veniremembers with the same last name,” it is clear that
Juror 20, whom the trial court questioned separately, had the same last name
as Juror 17. The trial court identified Juror 20 specifically after striking him for
cause; Juror 20 had told the trial court point-blank that he could not be fair and
impartial in the case because his wife had been a victim of a violent sexual
assault. Juror 17’s questionnaire has “No” circled in response to the question
about whether the juror or someone close had ever been the victim of a crime.
Earlier, when the prosecutor was asking whether panel members could be fair
in light of their experiences with the police, she asked Juror 17 if he “felt like
the process was fair or [if he] could . . . put that aside?” He answered, “[Y]ou
may have the wrong [person with the same last name]. I’ve got grandsons, but
I wasn’t really involved.” When she further asked, “So you weren’t close
enough to that for it to affect you, sitting in this room,” he answered, “No.”
Although the record is somewhat confusing, it is apparent that Juror 17 and
Juror 20 had the same last name. Accordingly, we will not attribute Juror 20’s

                                        33
old and retired from the National Weather Service. His wife was retired from

the “Texas Probation Dept.” He had previously served on both a civil jury and

a criminal jury.   He listed his education as “High school grad with some

college.” In response to the question about unpleasant experiences with the

police, he stated, “I have grandsons that are or have been in prison in

Oklahoma.” He had a nephew who was an Everman police officer, and he had

served in the United States Air Force for ten years.

      In response to the State’s questioning about whether his grandsons’

unpleasant experience with law enforcement would affect him, Juror 17

answered, “No,” after which he volunteered, “I’ve got a nephew that’s a police

officer.”   Based on the foregoing, we conclude and hold that Juror 17’s

experience with law enforcement, in addition to his other questionnaire answers

which could be perceived as more favorable to the State, was sufficiently

different from Juror 34’s such that the State’s failure to strike Juror 17 does

not show that its stated reason for striking Juror 34 was merely pretextual.

      Juror 39

      Juror 39, a female, was twenty-seven at the time of trial. She listed her

occupation as an elementary school teacher’s assistant and “CNA Cherry Tree




answers to the trial court’s questions to Juror 17.

                                      34
Residential.” Under “Educational Background,” she wrote, “college education.”

In response to the negative experience with law enforcement question, she

noted, “Pulled over because someone [else] had tickets in my car and a license

plate light was out.” To the question asking if the juror or someone close had

ever been arrested for or charged with a crime, she answered, “Boyfriend theft

by check off probation 6 yrs.” She had never served on a jury before. Juror

39 was seated on appellant’s jury.

      Although she did not note it on her questionnaire, when asked by the

State whether her bad experience with law enforcement would affect her as a

juror, Juror 39 answered,

      [Juror 39]: No, ma’am. I have family in law enforcement as well
      as - -.

      [State]:    So you could - - either way?

      [Juror 39]: Yeah.

      [State]:     You wouldn’t be biased toward them because of your
      family relationships and you wouldn’t be bais[ed] against them
      because - -

      [Juror 39]: No.

      Jurors 34 and 39 were similar in that they had both had traffic-related

encounters with police and had someone close to them charged with a crime.

The record is not developed about the extent to which this might have affected



                                     35
either woman; we do not know how close Juror 34 was to her ex-husband or

her feelings toward him at the time of trial, nor do we know anything about

Juror 39’s relationship with her boyfriend. Their experiences could likely be

distinguished on the basis that Juror 34’s ex-husband apparently had chronic

problems with the law while, in contrast, Juror 39’s boyfriend had been out of

trouble for at least six years after his probation. Moreover, Juror 39 said during

questioning that she had family in law enforcement. And although she said that

she would not be biased for or against a police officer, it makes sense that the

State would favor jurors with relatives in law enforcement in a case such as

this, in which appellant was accused of assaulting a police officer. For these

reasons, we conclude and hold that the State’s failure to strike Juror 39 does

not show that its reasons for striking Juror 34 were not race-neutral or merely

pretextual.

      Juror 43

      Juror 43 was forty-nine years old at the time of trial.       He listed his

occupation as “Millwright Self Employed,” and he had a tenth grade education.

In response to the negative experience with law enforcement question, Juror

43 wrote, “Friend Agg Aus.” He also noted that his stepson had been arrested

or charged for “drugs.” He had not served on a civil or criminal jury and did not

have a relative in law enforcement.

                                       36
      When the State asked Juror 43 whether his friend’s experience would

affect him in this case, he answered “No.” He also said that he could be fair

to both sides. When the defense asked the panel what they first thought when

they heard the offense, he answered, “I feel like I would have to have more

[details].”

      The similarities between Juror 43 and Juror 34 are much closer. Both

were in their forties and had about an equal amount of education. Neither had

previously served on a jury. Juror 43’s answers to the law enforcement and

crime questions do not indicate whether his friend’s and stepson’s problems

were chronic or one-time, nor do they explain whether either of them spent

time in jail or prison. However, we do know that Juror 34’s ex-husband not

only had been arrested and charged, he was “in and out of prison for years.”

Finally, the State notes that Juror 43 was toward the end of the strike zone

and, thus, unlikely to be selected. In fact, he did not sit on the jury.

      Although there is a much closer question as to Jurors 34 and 43, there

are at least some distinguishing characteristics between the two. And even if

there were not, faced with the record of the entire voir dire—which shows that

out of three African-Americans on a panel of more than forty-three, two sat on

the jury and only one was struck—we cannot say that the trial court clearly

erred in overruling appellant’s Batson challenge. See Watkins, 245 S.W.3d at

                                       37
453 (holding, when State struck one African-American juror and three non-

African-American jurors for having reservations about assessing a life sentence,

but did not strike other non-African-American juror who also expressed

reservations, that “[w]e are unable to say on this state of the record that [the

African-American juror] was struck on a basis that did not apply equally to most

of the non-African-American veniremen” (emphasis added)).         In addition to

showing that a fairly high percentage of African-Americans actually served on

the jury, the record does not reveal a pattern of disparate questioning,15 nor is

there any indication that the prosecutors used a jury shuffle at all, much less

for an improper purpose. Although the prosecutor did not question Juror 34

any further once she said her ex-husband’s experience would not affect her in

this case, she likewise did not ask follow-up questions of at least some of the

other panel members. Accordingly, on this record, we conclude and hold that

the trial court’s denial of appellant’s Batson challenge was not clearly

erroneous. We overrule appellant’s second point.




      15
        … Not knowing the identities of the two African-American jurors who
sat on the jury, we cannot evaluate whether the lack of further questioning was
limited only to African-American jurors.

                                       38
                               Conclusion

     Having overruled appellant’s three points, we affirm the trial court’s

judgment.




                                        TERRIE LIVINGSTON
                                        JUSTICE

PANEL: LIVINGSTON and MCCOY, JJ.; WILLIAM BRIGHAM (Senior Justice,
Retired, Sitting by Assignment)

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

DELIVERED: March 26, 2009




                                   39
