                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00196-CR



       DEVIN JEIMOND MITCHELL, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 71st District Court
               Harrison County, Texas
              Trial Court No. 15-0172X




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                       MEMORANDUM OPINION
           After being convicted by a Harrison County jury of two counts of aggravated assault with

a deadly weapon1 and being imposed a penalty of two concurrent fifteen-year sentences, Devin

Jeimond Mitchell has appealed. In his appeal, Mitchell maintains that the trial court erred in failing

to sustain his Batson2 objections to the peremptory challenges of the State to two prospective

jurors, in having allowed a witness to voice an opinion as to the guilt/innocence of the accused,

and in permitting evidence of prior offenses committed by unknown persons against the family of

one of the victims of Mitchell’s crime. We affirm the judgment in this case.

I.         The Assault and Robbery

           Marisa Salgado and her friend, Valeria Longoria, sat in Salgado’s car as they waited

outside the Longoria home for Valeria’s sister, Chantal, late on the night of March 18, 2015. Two

young African-American men in dark clothes, whom the girls had previously seen milling about

in the area of a nearby stop sign, approached the girls in the car. The young men neared the car

and, through the rolled-up window, first asked to borrow a cell phone from the girls, and then one

of them asked to see Salgado’s purse. At one point, one of the men knocked on the car window

with a pistol. The girls initially tried to ignore the men, but Salgado finally rolled down her

window and showed one of the men her purse, telling him that there was “really nothing in there

that [he could] take.” The man responded, “Give me your purse,” and Salgado complied. At that

point, Chantal exited the house, and the two men fled, firing shots as they ran.


1
    See TEX. PENAL CODE ANN. § 22.02 (West 2011).
2
    See Batson v. Kentucky, 476 U.S. 79 (1986); see also TEX. CODE CRIM. PROC. ANN. art. 35.261 (West 2006).

                                                          2
II.        Batson Challenge

           Mitchell is an African-American man. After voir dire of the panel had been completed and

the parties exercised its peremptory strikes, Mitchell complained to the trial court that the State

had impermissibly used their peremptory strikes by employing those strikes to exclude two

African-American women solely because of their race. Although Texas law allows parties to make

peremptory strikes of venirepersons following voir dire,3 such strikes cannot be used to violate a

party’s Equal Protection Clause rights by striking venirepersons because of their race. See Batson,

476 U.S. at 89; see also U.S. CONST. amend. XVI, § 1. The dictates of the United States Supreme

Court in Batson have been codified in Texas. See TEX. CODE CRIM. PROC. ANN. art. 35.261; Nieto

v. State, 365 S.W.3d 673, 676 (Tex. Crim. App. 2012). Mitchell’s first point of error complains

of the trial court’s denial of Mitchell’s Batson claims, and his second point of error argues that the

trial court violated Article 35.261. Because the analyses of these two alleged errors are effectively

the same, we will address them together.4

           Where a party challenges his opponent’s peremptory strikes on Batson grounds, the first

step in a successful challenge is to “make a prima facie showing that a peremptory challenge has

been exercised on the basis of race.” Miller-el v. Cockrell, 537 U.S. 322, 328 (2003). The burden

then shifts to the peremptory striker to posit a race-neutral reason for its strike. Id. After the

peremptory striker has voiced what is represented to be a race-neutral reason for the strike, the trial



3
    See TEX. CODE CRIM. PROC. ANN. art. 35.15(b) (West 2006).
4
 Although Mitchell’s trial counsel did not voice an objection based on Article 35.261, the Texas Court of Criminal
Appeals has indicated that “whenever a claim is made that veniremembers were peremptorily challenged on the basis
of their race, article 35.261 must be followed.” Hill v. State, 827 S.W.2d 860, 863 (Tex. Crim. App. 1992).
                                                         3
court then determines whether the Batson challenger has made an initial showing of “purposeful

discrimination.” Id. at 328–29; see also Nieto, 365 S.W.3d at 676 (citing Batson, 476 U.S. at 96–

98). The second-stage, neutral explanation need not be “a reason that makes sense,” but simply

“a reason that does not deny equal protection”; however, although a race-neutral explanation that

is “silly or superstitious” satisfies the second stage of Batson, a trial court “may choose to

disbelieve a silly or superstitious reason” at the third stage. Purkett v. Elem, 514 U.S. 765, 768–

69 (1995).5 Once the State has articulated “race neutral reasons for its strikes, the burden shifts to

the defendant to rebut those explanations.” Young v. State, 826 S.W.2d 141, 143 (Tex. Crim. App.

1991).

         “A 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.” Blackman v. State, 414

S.W.3d 757, 765 (Tex. Crim. App. 2013). The reviewing court looks to 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.” Id. The trial court’s ruling on a Batson challenge receives “great deference” in

our review. Id. Determining whether the State’s race-neutral reasoning for the strike was

pretextual and not genuine must be “manifestly grounded in the appellate record.” Id. “The term

‘pretext’ is solely a question of fact; there is no issue of law. Therefore, the trial court was in the




5
 Additionally, while Batson’s equal protection rule was implemented for the protection of defendants, it also protects
the rights of the citizenry at large to participate in the jury system. African-Americans may not be denied “the same
right and opportunity to participate in the administration of justice enjoyed by the white population.” Batson, 476
U.S. at 91 (quoting Swain v. Alabama, 380 U.S. 202, 224 (1965)).
                                                          4
best position to make that credibility determination.” Gibson v. State, 144 S.W.3d 530, 534 (Tex.

Crim. App. 2004).6

        Mitchell raised a Batson challenge to the State’s peremptory strikes of Venireperson A and

Venireperson B. The parties acknowledge that Mitchell, Venireperson A, and Venireperson B are

all African-Americans.

        In voir dire, Venireperson A said she could not return a verdict of guilty if the State

produced neither DNA evidence nor the weapon used and, further, that she could not convict on

the testimony of only one witness. When Mitchell made his Batson challenge, the State’s

explanation for the strike of Venireperson A was that “[o]n her right or left hand, her fingernails

are 7 inches long, which is indicative of drug use, especially cocaine, when fingernails are that

long. We don’t believe she would be a good juror based on physical appearance as a reason and

because her fingernails are so long.”              Mitchell rebutted the State’s proffered race-neutral

explanation by “point[ing] out that [Venireperson A] is a grandma, a matronly looking woman

who I think her juror information card will indicate that she is over 60 years of age. Looking at

her, to suggest that she is involved in drug use is absurd.” The trial court denied Mitchell’s

challenge.

        The State gave the race-neutral explanation that an element of Venireperson A’s physical

appearance made the State suspect that she could be a user of illegal drugs. 7 “In the typical


6
 Here, the Texas Court of Criminal Appeals found that the intermediate court “misapplied this ‘clearly erroneous’
standard of appellate review when it substituted its judgment for the trial court’s in deciding that the prosecutor’s
facially race-neutral explanation for striking veniremember 11 was a pretext.” Gibson, 144 S.W.3d at 534.
7
 In Gambel v. State, 835 S.W.2d 788, 790–91 (Tex. App.—Houston [14th Dist.] 1992, no pet.), the prosecutor struck
a venireman who wore an earring, which the prosecutor associated with persons in the business of illegal drugs, based
                                                         5
peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral

explanation for a peremptory challenge should be believed. There will seldom be much evidence

bearing on that issue, and the best evidence often will be the demeanor of the attorney who

exercises the challenge.” Hernandez v. New York, 500 U.S. 352, 365 (1991).8 Mitchell’s only

rebuttal to the State’s allegation that the fingernails of the venireperson led the State to believe that

the person who had been struck might be a drug user was that the other physical appearances of

the woman made him doubt that she was involved in the use of illegal drugs. We find this rebuttal

insufficient to prove by a preponderance of the evidence that the State engaged in purposeful

discrimination when striking Venireperson A. The trial court’s ruling on Venireperson A’s Batson

challenge is affirmed.

         As for Venireperson B, the State asserted that during voir dire examination, she failed to

disclose a prior felony arrest. From the voir dire record, it seems the State was referring to an

information card that Venireperson B provided. (Unfortunately, the information cards are not in

the appellate record. However, it appears from statements during the discussion on the Batson

challenge that such cards were available and reviewed by the parties and the trial court.) Mitchell

did not contest the State’s claim that Venireperson B had failed to disclose a felony arrest and




on the prosecutor’s experience. In Jack v. State, 867 S.W.2d 942, 946 (Tex. App.—Beaumont 1993, no pet.), the
venirewoman was struck because her comments led the State to believe the panelist “had a fear that there was selective
enforcement of drug laws taking place.” These were both held to be race-neutral explanations.
8
 The trial court may have also taken into account that Venireperson A also said in voir dire that she could not find a
defendant guilty if the State produced only one witness. Mitchell’s sole rebuttal for the State’s reasoning was that
based on the woman’s appearance and age, it believed that she was unlikely to be a user of illicit drugs.

                                                          6
seemed to agree with it;9 the trial court only commented that whatever document was being

discussed did not ask about convictions, but only inquired about an “[a]rrest for felony.”10 Mitchell

offered no rebuttal. We may not reverse the trial court’s Batson ruling where the trial court’s

“account of the evidence is plausible in light of the record viewed in its entirety.” Whitsey v. State,

796 S.W.2d 707, 722 (Tex. Crim. App. 1989) (op. on reh’g) (quoting Anderson v. Bessemer, 470

U.S. 564, 573–74 (1985)). Further, Venireperson B (much like Venireperson A) indicated during

voir dire questioning that she “would have to have something other than that” if the State’s case

were only supported by the testimony of a victim which was supported by no scientific or physical

evidence such as the gun used, fingerprints, or DNA.

        Based on the totality of the voir dire concerning Venireperson B and Mitchell’s failure to

successfully rebut the State’s reason, we cannot say that the trial court’s ruling was clearly

erroneous.

        Because Mitchell failed to show the lack of a nonracial reason for the exercise of the

peremptory strikes of which he complains, we need not examine this issue further.

        Points of error one and two, regarding the trial court’s ruling on Mitchell’s Batson

challenges, are overruled.




9
 Mitchell’s only concern was this information “screws our entire panel up” and “if [Venireperson B] was not in that
slot, I would have used my strikes in a different way.”
10
  In Young v. State, 283 S.W.3d 854 (Tex. Crim. App. 2009) (per curiam), a venirewoman’s “concealment of her
daughter’s larceny conviction” along with the venirewoman’s “affiliation to a group that ministers to prisoners” was
found to justify the State’s peremptory strike. Id. at 870.
                                                         7
III.   State’s Improper Question Was Harmless

       We agree with Mitchell’s third point of error, in that the State erroneously was allowed to

ask a witness a question going to an ultimate issue which was for the jury to decide. However,

due to the harmless character of the error, we overrule this point of error.

       While questioning Detective Patrick Clayton about his investigation, the State asked if,

based on the evidence and Clayton’s experience in law enforcement, Clayton “believe[d] that

Devin Mitchell committed this robbery?”

       It is improper for a witness to express his opinion of the ultimate guilt/innocence of an

accused. “[T]he expression of guilt or innocence . . . [i]s a conclusion to be reached by the jury

based upon the instruction given them in the court’s charge, coupled with the evidence admitted

by the judge through the course of trial. Thus, no witness [i]s competent to voice an opinion as to

guilt or innocence.” Boyde v. State, 513 S.W.2d 588, 590 (Tex. Crim. App. 1974). This question

by the State was improper, and it was error for the trial court to overrule Mitchell’s objection to it.

       Instead of arguing that the question and response were admissible, the State takes the

position that the trial court’s ruling constituted harmless error. We agree. Admission of improper

opinion testimony is error of nonconstitutional dimension and will yield a reversal only if the

erroneous admission affected the defendant’s substantial rights. See TEX. R. APP. P. 44.2(b);

Wilson v. State, 90 S.W.3d 391, 393 (Tex. App.—Dallas 2002, no pet.). Here, we are confident

that Clayton’s improper opinion testimony did not affect Mitchell’s substantial rights.

       “A criminal conviction should not be overturned for non-constitutional error if the

appellate court, after examining the record as whole, has fair assurance that the error did not

                                                  8
influence the jury, or had but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim.

App. 1998). In Mitchell’s case, there was substantial evidence pointing to his guilt. Salgado, one

of the victims, knew both Mitchell and Isaiah Jackson from photographs in a high school yearbook

and had seen them while she was in high school. She identified them as the perpetrators of the

crime from these pre-existing sources. Bullets matching the caliber and manufacturer of a shell

casing found at the scene were found in a bag hidden in a pillowcase in Mitchell’s bedroom, a

room he shared with no one else. Further, the unspent bullets in Mitchell’s pillowcase shared a

similar “irregular toolmark” with at least one of the spent shell casings found at the scene. Clayton

testified that when he interviewed Mitchell, the suspect’s story kept morphing. Mitchell first said

that he had spent the night at home, then said that he had been walking around alone, then that he

had been walking around with Jackson, and finally conceded that he and Jackson had been walking

around together in the area of the robbery. Mitchell’s almost unintelligible interview confirms this

irregularity of stories recounted by Clayton. Mitchell’s mother told Clayton that Mitchell and

Jackson frequently hung out together.

       Valeria corroborated Salgado’s description of events wherein she related that two African-

American men approached the women in their car, asked to “see” their telephones, and asked for

Salgado’s purse. While Valeria could not identify either man in the high school yearbook shown

her at the police station, she did testify that she recognized one of the men from high school. In

addition, Valeria recognized Jackson the day after the robbery when she saw photographs of him

after he escaped from police custody. Valeria also testified that the men ran off when Chantal

came out of the house, and they heard gunshots as the men ran away.

                                                 9
        The error in allowing Clayton’s testimony was a minor one. Clayton’s improper testimony

caused no harm to Mitchell’s substantial rights. Therefore, Mitchell’s point of error pertaining to

this is overruled.

IV.     Harmless Error in Admission of Irrelevant Criminal Activity

        While questioning Chantal, the State elicited testimony that at some time before the instant

robbery, someone broke into Chantal’s mother’s car and that her father had chased that person

away. Chantal further stated, “[T]here had been a lot of break-ins before that.” The State clarified

that Mitchell was not the person seen breaking into the car. The State’s explanation for proffering

this testimony was that it was only offered “for the Defense’s benefit.”

        Evidence must first be relevant in order to be admissible. See TEX. R. EVID. 402. Evidence

is relevant if “it has any tendency to make a fact more or less probable than it would be without

the evidence” and “the fact is of consequence in determining the action.” TEX. R. EVID. 401. We

cannot conceive of the relevance that evidence of previous vehicle burglaries would bear to the

accusation against Mitchell in this case. The State’s appellate brief states, “The testimony is

relevant as to whether or not the witness was certain to what she saw in this particular incident as

opposed to other incidents.” The State points out that Chantal clearly testified that Mitchell was

not the suspect seen by her and her father on the earlier occasion, and she pointed out that there

had been no subsequent break ins.

        The State has presented no credible explanation as to the reason it believes that testimony

regarding the car burglary had any relevance to the robbery for which Mitchell was on trial.

Despite the fact that at trial, the State maintained to the trial court that the matter was “clearly

                                                10
relevant in this case,” it is virtually impossible to see that this evidence made any fact of

consequence in the present trial more or less likely. We are not swayed by the State’s attempt at

justification in its brief, that the “testimony is relevant as to whether or not [Chantal] was certain

to what she saw in this particular incident as opposed to other incidents.” The previous car burglary

and the instant robbery were clearly dissimilar. This testimony only showed that Chantal had

witnessed two different and entirely unrelated crimes (with no suggestion in the record as to the

time interval between the two) and that she could identify the perpetrators of neither. The earlier

break-ins were utterly irrelevant to whether Mitchell was criminally responsible for the robbery of

Salgado and Valeria.

       However, as with the prior discussion, this nonconstitutional error was harmless, having

not affected Mitchell’s substantial rights.     The evidence summarized above allows us fair

assurance that the erroneous admission of Chantal’s testimony had no or slight effect upon the

ultimate conviction. This point of error is overruled.

       We affirm the judgment of the trial court.



                                               Bailey C. Moseley
                                               Justice

Date Submitted:        May 2, 2016
Date Decided:          July 8, 2016

Do Not Publish




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