AFFIRM; Opinion Filed March 11. 2013.




                                                              In The
                                          Qniirt uf Ap.na1i
                                  1iftii Ditrirt uf xa at at1a6

                                                     No. 05-11-00423-CR
                                                     No. 05-1 1-00424-CR

                                      JOHN PAUl. CHARO, Appellant
                                                                  V.
                                     THE STATE OF TEXAS, Appellee

                               On Appeal from the County Court at Law No. 6
                                           Collin County, Texas
                        Trial Court Cause Nos. 006-83297-20 10 and 006-84279-2010

                                                    OPINION
                                   Before Justices Lang-Miers, Myers, and Lewis
                                             Opinion by Justice Myers
          Appellant John Paul Charo was convicted of terroristic threat and criminal mischief, and

was sentenced to concurrent terms of 365 days in jail, probated for two years, and a $2,000 fine.

He asserts the evidence is legally insufficient to support the terroristic threat conviction and, in

the appeal from the criminal mischief conviction, he contends the trial court erred by sustaining

the State’s    3
               Batsoii    challenge. We affirm the trial court’s judgments.




 Trial eoun cause number 006-83297-2010: appeal number 05-1 1-00323-CR.
  Frial court cause number 006-84279-2010: appeal number 05-1 1-00424-CR.
 Sm Butson v. Kentmki. 476 U.S. 79(1986).
                                             1)i SCUSSION

                                    Sufficiency of the Evidence

         In his only issue in appeal number 051 U00423CR, appellant contends the evidence is

insufficient to support the conviction “because the State failed to prove an essential element of

the offense namely, that appellant tried to run victim off the road.”

         In reviewing a challenge to the sufficiency of the evidence, we examine all of the

evidence in the light most favorable to the verdict and determine whether a rational trier of fact

could have ftund the essential element of the offense beyond a reasonable doubt. Jackson v.

Virginia. 443 U.S. 307, 319 (1979); Brooks v State, 323 S.W.3d 893, 895 (Tex. Crim. App.

20 10) (plurality op.). We defer to the jury’s credibility and weight determinations because the

trier of fhct is the sole judge of the witnesses’ credibility and the weight to be given their

testimony. See Jackson, 443 U.S. at 326; Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App.

2008).

         Section 22.07 of the penal code defines the offense of terroristic threat. See TEx. PENAL

Coor ANN. § 22.07. The relevant portion of section 22.07 provides that a “person commits an

offense if he threatens to commit any offense involving violence to any person or property with

intent to” “place any person in fear of imminent serious bodily injury.”        Id. § 22.07(a)(2).

Additionally, an offense under subsection (a)(2) is a class B misdemeanor unless it is committed

against a public servant, in which case it is a class A misdemeanor. Id. § 22.07(c)(2),

         The information in this case alleged that appellant:

         Did then and there intentionally threaten to commit an offense involving violence
         to person and property, namely, murder and aggravated assault by threatening to
         kill Marcedes Ginn and by attempting to run Marcedes Ginn off the road with
         intent to place Marcedes Ginn in fear of imminent serious bodily injury.
        A threat is delined as a “‘declaration of intention or determination to inflict punishment.

loss, or pain on another, or to injure another by the Commission of an unlawful act” Cook v.

State, 940 S.W.2d 344, 347 (Tex .App.—Amariflo 1997, pet. ref’d) (quoting BLACK’S LAW

Drc’TIoNARY   1480 (6th ed. I 990)).    Imminent means “‘[niear at hand; mediate rather than

immediate: close rather than touching: impending; on the point of happening.: threatening;

menacing: perilous,” De’ine v. Slate, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989)          (quoting.


BLACK’S LAW DICTIONARY      676 (5th ed. 1 979)); Gook, 940 S.W.2d at 347.

       Conditioning a threat of harm on the occurrence or nonoccurrence of a future event does

not necessarily mean the threat is not imminent. Cook, 940 S.W. 2d at 348. The accused’s threat

of violence, made with the intent to place the victim in fear of imminent serious bodily injury, is

what constitutes the offense.   Id.; see Dues v. State, 634 S.W.2d 304, 306 (Tex. Crim.       l-\pp.


1982). The requisite intent can be inferred from the acts, words, and conduct of the accused.

Cook, 940 SW. 2d at 348; see Beltran     i..   State, 593 S.W.2d 688, 689 (Tex. Crim. App. [980).

The offense is complete if the accused. by his or her threat, sought as a desired reaction to place

a person in fear of imminent serious’ bodily injury. C’ook, 940 S.W. 2d at 348.

       Appellant was charged with terroristic threat based on an incident investigated by the

McKinney Police Department. Appellant and the complainant, Marcedes Ginn, were co-workers

at a McKinney, Texas Waigreens in January of 2010. One day, while they were both at work,

appellant pushed Ginn against the wine table, causing Ginn to fall down. Ginn testified that he

believed appellant was upset over some merchandise that had been left at the front register by the

store manager and various customers. When appellant relieved Ginn—he had been operating the

register—-at the end of his shift, appellant told Ginn to put the unchecked items back on the

shelves, but he refused.   Shortly after appellant pushed Ginn, he said, according to Ginn’s
testimony, “Ain’t no bitch, I’ll kick your ass.” Appellant was fired because of the altercation.

           Three days after the altercation, on January 23, 20 10, Ginn was driving home from work

when he noticed that a vehicle appeared to be following him. The vehicle followed Ginn as he

pulled into a 7-Eleven parking lot. Ginn soon recognized the car, a green Buick Oldsmobile, as

the vehicle appellant normally drove, and Ginn could see that appellant was the driver. The

vehicle continued to follow Ginn across an adjacent parking lot and back onto the road. When

Ginn drove past his nearby house, the vehicle was still following him.

           Ginn called his supervisor, Randi Guzman, at the Waigreens for help, but she did not

answer the telephone. Ginn then called the store’s night manager, Kathy Lange. A few minutes

later, he spoke to Guzman on a second cell phone he possessed. Both managers advised Ginn to

turn around and return to the store.

           With appellant’s car directly behind him, Ginn made a U-turn and headed back towards

Walgreens. He told both managers on the phone that appellant was trying to run him off of the

road. Appellant got closer to Ginn’s car and when Gimi would speed up or slow down, appellant

would do the same. Ginn estimated the two vehicles were no more than three to four feet apart.
                                                                                        4

At one point during the incident, when their two vehicles were traveling side by side, appellant

yelled out his window at Ginn and said, “I’ll fucking kill you nigger.” Lange, meanwhile, was

still on the phone with Ginn and overheard what sounded like appellant’s voice screaming, “I’m

going to f-ing kill you.” Guzman, who was listening on the second cell phone, heard appellant

say, “I’m going to kill you nigger.”

           As Ginn continued to drive, he feared appellant “would run me off the road and try and

kill me.” Ginn testified that he was in fear for his life. When he encountered a red stop light,

 During an incouI1 dernonstrntion with a tape measure, Ginn later clarified his testimony and said the actual distance between the two vehicles
was approximately twentytwo inches.
(iinn ran the tight to get away from appellant. After that, Ginn “lost” appellant and returned to

the Waigreens store, where the managers notihed the police. The police took Giun’s statement

and escorted hi in home safely. Two days later. when he was back at work. Ginn answered the

telephone and heard appellant’s voice, saying, “You better watch out in the parking lot tonight.”

(Iinn replied “okay” and hung up the phone. Ginn told the manager about the conversation and

was allowed to leave work early.

        Appellant contends the threat in this case was not imminent because it was conditional

and included no “immediate action to carry out that threat.’ The words “I ‘in going to kill     you’


Oi   1 11 kill ou   iccording to ippcllant s aruumcnt      both sutni1’ a piomise of future action

and are not legally sufficient, standing alone, “to show someone intended to carry out that threat

imminently.”

        Appellant cites Bnant    i’.   State, 905 S.W.2d 457 (Tex. App—Waco 1995. pet. reid.) to

support his argument.    In that case, Bryant stated to Raulston, a county commissioner, that if he

did not grade the road in front of his house the following day, “he was going to kick [Raulston’sj

god dam ass.” Id. at 460. The court of appeals reversed the conviction, concluding there was no

evidence Bryant had specific intent to place Raulston in fear at the time he made the statement.

Id. at 46 1. Instead, the threat was conditioned on the non-occurrence of a future event. Id.

        Appellant’s reliance on Biyant is misplaced. In contrast to the facts in Brcant, there was

no condition attached to the threat appellant made against Ginn, who testified that he feared for

his life and believed appellant was going to run him off the road “at any time” during the

incident. Moreover, Ginn’s testimony that appellant had previously assaulted him, followed him

home from work, drove within inches of his car, and (using a racial slur) threatened to kill him is

sufficient to prove telToristic threat.    Viewing the evidence under the appropriate standard, a
rational trier of fact could have found the essential elements of the offense beyond a reasonable

doubt. We therefore overrule appellant’s issue.

                                             Raison Claim

        In his only issue in cause number 05-I 1-00424-CR. appellant contends the trial court

erred by sustaining the State’s Batson challenge and reinstating a juror that had been struck from

the panel.

        Appellant was charged with criminal mischief in this case arising out of an incident that

occurred approximately two months after the events of January 23, 2010. On March 21, 2010,

Ginn was at a Sonic drive-in talking to a friend when appellant’s car pulled up behind Ginn’s

vehicle. Appellant got out of his ear, walked over to Gina and said, “So what’s up now?” Ginn

understood this to mean that appellant wanted to fight, and Ginn retreated to his car, locked the

doors, and rolled up the windows. Appellant punched and broke the driver’s side mirror of

Ginn’s ear with his fist. According to the information that was later filed against appellant, he

was charged with criminal mischief based upon the intentional and knowing damage to Ginn’s

property and the resulting pecuniary loss to Ginn of $500 or more but less than $1,500. See

TEXAS PENAL CODE ANN.       § 28.03(a), (bX3XA).
       During the State’s voir dire, the prosecutor asked each panel member their opinion of

police officers on a scale of one to five:

                    Okay. I want to ask everyone now your opinion of police officers on
       a scale of one to five. I want you to base this on your personal experiences with
       police officers and interaction you had with them in your neighborhood, things
       you’ve heard from your friends or families, that kind of thing. Just your initial
       reaction to police officers.

               One is going to be the low end, that you think they’re dishonest,
       distrustworthy, you hate to see them coming. Five is going to be the high end,
       honorable position, that most of them are honorable, and you appreciate their
       presence in the community and the service that they do. Everybody understand
          the scale. one to          ye?

l)efense counsel later asked each panel member if they were a native lexan.

          After both sides completed their vow dire and made their peremptory strikes, the trial

court announced the six prospective members of the jury. The State made a Batson challenge

against the defense for stnking juror No. 7. Mr. Washington, an African—American male:

          our Honor. I’d like to make a Batson challenge based on Defense Counsel
          striking Mr. WashinLton, who’s an African American male, Fandj was Juror No. 7
          in this ease. I believe based on the questions that he was asked and the answers
          that he gave, there was no reason for him to be struck other than his race.

When the court asked dekmse counsel about his rationale for striking Mr. Washington, he gave

two reasons: “1—us opinion of the police department was a live. Fle wasn’t from Texas. which

may he my prejudice. hut nonetheless, he wasn’t. and those were the reasons he was struck.”

          The court then asked if there were other panel members struck by the defense that rated

the police a “five.” Defense counsel answered that he used peremptory strikes to remove two

other panel members, Mrs. Hord and Mr. Salisbury. Neither side disputed that Mr. Washington,

who had told defense counsel he was from Los Angeles. California, rated the police a “five,” hut

it   is unclear from the record when he made that statement.
                                                  5 According to the record, Mrs. Hord

rated the police a “five-plus,” was not a native Texan, and said she was originally from Iowa but

had lived in Texas for almost thirty years. Mr. Salisbury rated the police a “four,” was also not a

native Texan, and grew up in Idaho.

          After defense counsel explained his peremptory strikes, the trial court asked for a

response from the State. The prosecutor told the court:

                Your Honor, Mrs. Hord was the other person who was—who Defense
          Counsel says he struck because she was a five. I believe her answer was that she
          was a five-plus. Mr. Cooper was a five, Mrs.—-Mrs. Johnson was a five on

 There were several panel members who rated the police   ve’ but   are not   cienti   fled in the record by name or juror number.
       police, Mr. Dooley was also a five on police, and none of these persons were
       struck by Defense Counsel.

The record shows there were three panel members who rated the police a “five,” were not native

Texans, and were not struck by the defense: (1) Mr. Cooper rated the police a “five” and was

from Macon in the “show me state”; (2) Mrs. Johnson rated the police a “five” and was from

Trinidad in the West Indies: (3) Mr. Goodstein rated the police a “five” and was from Florida.

Neither side addressed the circumstances regarding Mr. Goodstein, The other panel member

mentioned by the State, Mr. Dooley, who ultimately served on the jury, said he was from

Sherman, Texas. As for Mrs. Johnson and Mr. Cooper, defense counsel offered the following

explanation:

                I didn’t strike Mrs. Johnson because i—I like her responses. I think she’s
       a mixed race. It would appear. So the African-American challenge I don’t know
       is correct, although 1 didn’t ask her what race she was from. And as—so that
       would be my answer to Mrs. Johnson. I thought she was—she was going to be
       somebody who would—I also didn’t believe she was going to be the one that
       ended up being the foreman anyway. So I thought, in her case, she was going to
       be someone that would follow the jury.
                As far as Mr. Cooper goes, he has a previous assault charge against him,
       so that’s why he wasn’t struck, because he believed the police didn’t treat him
       fairly in the assault case.

Regarding Mr. Cooper, counsel added, “Well, I thought he would be a good juror on that, being

accused of an assault, understanding people can be falsely accused, even if he was treated fairly.”

       The trial court sustained the State’s Batson challenge, finding there was no race-neutral

reason for striking Mr. Washington given the fact that there were other panel members who

matched the same circumstances for which he was alleged to have been struck:

       I will sustain the Batson challenge. I do not find that there is a race-neutral basis
       having a prima fascia case made for eliminating Mr. Washington, given the fact
       that there were other jurors who were seated on the jury that matched the same
       circumstances in which he was alleged to have been stricken.

The court removed the last seated juror and placed Mr. Washington on the jury. Mr. Washington
served as the presiding juror and appellant was found guilty of criminal mischief.

         The following threestep process applies to a Raison challenge: (I) the opponent of the

strike must make a prima facie showing of racial discrimination; (2) the burden then shifts to the

proponent of the strike to articulate a race-neutral reason for the strike; and (3) the trial court

must decide whether the opponent has proved purposeful racial discrimination. See Grant v.

State, 325 S.W3d 655, 657 (Tex. Crim. App. 2010), “If a prosecutor’s proffered reason for

striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to

serve, that is evidence tending to prove purposeful discrimination to be considered at Raison’s

third step.” i’1iller-El v, Dretke, 545 U.S. 231, 241 (2005); see also Greet’ v. State, 310 S.W.3d

11, 14 (Tex. App.—Dallas 2009, no pet.) (citing Watkins v. State, 245 S.W.3d 444, 448-49 (Tex.

Crim. App. 2008)).

         When reviewing a Batson challenge, we examine the record in the light most favorable to

the trial court’s ruling and reverse only when it is clearly erroneous. See Herron v. State, 86

S.W.3d 621, 630 (Tex. Crim. App. 2002); Bauslev v. State, 997 S.W.2d 313, 315 (Tex. App.—

Dallas 1999, pet. ref’d). A ruling is clearly erroneous if, after reviewing the entire record, we are

left with the definite and firm conviction a mistake has been committed. Greer, 310 S.W.3d at

13. “If the trial judge’s decision is plausible in light of the record viewed in its entirety, or if the

judge chose between two permissible views of the evidence, we may not reverse even if we are

convinced that we would have decided the matter differently had we been sitting as the trier of

fact.”   Id. at 13-14.   We give great deference to the trial court’s decision on the issue of

purposeful discrimination because it requires an assessment of the credibility and content of the

proponent’s reasons and all other relevant facts and circumstances. See Alexander v. State, 866

S.W.2d 1, 8 (Tex. Crim. App. 1993).
           Appel hint contends the trial court did not use any ot the factors set forth in Miller—El v.

t)rctke.   545 U.S. at 23 I. which are as thllows:

           • whether the party eliminated a ftr ireaier proportion ol African—American
           veniremembers than non-A Irican—American veniremembers:

           • whether the party’s stated reasons for striking the African—American
           veniremembers would apply equally to non-African-American veniremembers
           that the party did not strike:

           • whether the party used a jury shuffle in a manner that appeared racially
           discriminatory:

           • whether the party disproportionately singled out African—American
           veniremembers for voir—dire questioning in a way designed to elicit urounds for
           peremptory challenges: and

           • whether the party employed a formal policy to exclude minorities from jury
           service at the time of trial.

Greer, 310 S.W.3d at 14-15 (citing Watkins, 245 S.W.3d at 448-49 (summarizing Miller-El, 545

U.S. at 240-64)).

           The court of criminal appeals has noted that the Miller—El factors are “non—exclusive.

Watkins, 245 S.W.3d at 449. It has also identified other potentially relevant factors. See Wizitsev

v. State, 796 S.W.2d 707, 7 13-14 (Tex. Crim. App. 1989). There is no requirement of which we

are aware that a trial court reviewing a Batson challenge must analyze each and every potentially

relevant factor. The “clearly erroneous” standard of review we follow in cases such as these “is

a highly deferential standard because the trial court is in the best position to determine whether a

prosecutor’s facially race-neutral explanation for a peremptory strike is genuinely race-neutral.”

Gibson     i.   State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). Moreover, the court in this case

necessarily did a side-by-side comparison when it evaluated the answers of Mr. Washington, Mr.

Cooper, and Mrs. Johnson. See Miller-El, 545 U.S. at 241 (discussing various factors including

“side-by-side” comparisons of venire members struck by the prosecution with those who were
not).

        Appellant also argues that the trial court should have denied the Batson challenge based

on the “mixed motives” approach of Guzman v. State, 85 S,W,3d 242 (Tex. Crim. App. 2002),

In Guzman, the State offered reasons for its peremptory strike that were both genderbased and

genderneutraI. See id. at 245. The      Court   of criminal appeals concluded that when motives

behind a peremptory strike were both impermissible (race or gender based and permissible (race

or gender neutral), if the striking party showed he would have struck the juror based solely on the

neutral reasons, “then the strike does not violate the juror’s Fourteenth Amendment right to equal

protection of the law.” id. at 244.    But the facts of this case contrast with Guzman because

defense counsel never suggested race was one of the reasons Mr. Washington was struck.

        A sidehy-side comparison of the answers provided by Mr. Washington, Mr. Cooper,

Mrs. Johnson, and Mr. Goodstein supports the trial court’s finding of purposeful racial

discrimination. In the case at bar, when the trial court asked for a response from the State, the

prosecutor pointed to two panel members, Mr. Cooper and Mrs. Johnson, who had rated the

police as a “five,” were not native Texans, and had not been struck by the defense. Defense

counsel argued he did not strike Mrs. Johnson because he “liked her responses” and “didn’t

believe she was going to be the one that ended up being the foreman anyway.” Counsel said he

did not strike Mr. Cooper because he “thought he would be a good juror based on that, being

accused of assault, understanding people can be falsely accused, even if he was treated fairly.”

But another panel member not struck by the defense, Mr. Goodstein, also rated the police as a

“five” and was not a native Texan.

        As we noted earlier, we will sustain a court’s ruling on a Batson challenge unless it is

clearly erroneous. Greer, 310 S.W.3d at 13. It was the trial court in this case that heard defense
counsel’s explanations br his strikes, saw his demeanor as he conducted both the voir dire and

his response during the Batson hearing, and observed the venire members during the voir dire

process. Deference to the trial court’s findings makes particular sense in this context because the

court was in the best position to evaluate the strike proponent’s demeanor and credibility:

       In the typical peremptory challenge inquiry, the decisive question will be whether
       counsel’s raceneutral explanation for a peremptory challenge should be believed.
       There will seldom be much evidence bearing on that issue, and the best evidence
       will often be the demeanor of the attorney who exercises the challenge. As with
       the state of mind of a juror, evaluation of the prosecutor’s state of mind based on
       demeanor and credibility lies “peculiarly within a trial judge’s province.”

Heinande v A/eu Yo,k 500 U S 352 365 (1991) (quoting 14’aznwiight              I’J’itt 469 U S 412

428 (1985)); see also Miller—El v. Cockrell, 537 U.S. 322, 339 (2003) (“Deference is necessary

because a reviewing court, which analyzes only the transcripts from voir dire, is not as well

positioned as the trial court is to make credibility determinations.”). Considering, therefore, all

of the relevant circumstances, we conclude the trial court’s ruling was not clearly erroneous. We

overrule appellant’s issue.

       We affirm the trial court’s judgments.




                                                     JUSTICE


Do Not Publish
TEx. R. App. P.47
1 10423F.U05
                                 (!!nurt of Appeals
                                Dtstrtrt of exas at Thitlas
                                       JUDGMENT

JOHN PAUL CHARO, Appellant                        On Appeal from the County Court at Law
                                                  No. 6, Collin County, Texas
No. O51 l-OO423CR         V.                      Trial Court Cause No. OO6832972OiO.
                                                  Opinion delivered by Justice Myers.
THE STATE OF TEXAS, Appellee                      Justices Lang-Miers and Lewis participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 11th day of March, 2013.




                                                 LANAMY S
                                                 JUSTICE
                               (!tiurt nf ipca1
                        fiftt Dhitrirt uf exai at tlattaa
                                           JUDGMENT

JOHN PAUL CHARO, Appellant                            On Appeal from the County Court at Law
                                                      No. 6, Collin County, Texas
No. 05-11-00424-CR         V.                         Trial Court Cause No. 006-84279-2010.
                                                      Opinion delivered by Justice Myers.
THE STATE OF TEXAS, Appellee                          Justices Lang-Miers and Lewis participating.

       Based on the Court’s   opinion   of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this I Ith day of March, 2013.




                                                     LANA    ERS
                                                     JUSTICE
