                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00413-CR

EMMITT DOUGLAS CARROLL,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                         From the 361st District Court
                             Brazos County, Texas
                       Trial Court No. 07-05908-CRF-361


                         MEMORANDUM OPINION


      A jury found Appellant Emmitt Douglas Carroll guilty of the offense of

aggravated robbery.    The trial court assessed his punishment at fifty-eight years’

imprisonment. In two issues, Carroll appeals. We will affirm.

                                  BACKGROUND

      On September 17, 2007, at about 2:00 a.m., Patricia Garcia took her husband to

work and then returned to her apartment complex in Bryan, Texas. She parked her

vehicle in the parking lot, got out, and opened the back door of the vehicle to get her
two-year-old daughter out of the backseat. At that time, she heard a rustling in the

bushes, someone say “go, go, go,” and then a gun cocking. She then saw a man with a

silver gun coming out of the darkness toward her. He was wearing a light-colored shirt

that looked like an undershirt, baggy blue jeans or blue jean shorts, white tennis shoes,

and a red bandana around his neck to cover his face. Once the man was standing in

front of her, he said, “I don’t want to hear nothing.” At that point, Garcia’s daughter

saw the man and said, “No.” The man then “kind of backed away a little.” He asked

Garcia for her purse. Garcia pulled the purse out from under the seat, and the man took

it out of her hands. He also asked for her phone. She replied that it was in the purse.

He looked inside the purse and then started to leave.

        By about 2:15 or 2:18 a.m., Garcia got back inside of her apartment and sent a

message to her husband on the computer. When she spoke to the police, she described

the man who robbed her as a young, very clean-cut African-American man who was

about five feet two inches tall and weighed about 150 pounds. She also stated that she

is not very good at heights and weights. At trial, she identified Carroll as the man who

had robbed her.

        Also in the early morning hours of September 17, 2007, Erik Scheets returned to

his apartment complex in College Station, Texas. Between 2:30 and 3:00 a.m., he pulled

into a parking spot and saw three African-American men standing about twenty to

thirty feet away. When he got out of his car, the men were walking toward him.

Scheets began walking toward his apartment, greeted the men, and continued walking

past them. But just after Scheets passed by the men, he heard the sound of a gun

Carroll v. State                                                                   Page 2
cocking, and one of the men yelled for him to stop. Scheets stopped and turned around.

The men were standing “kind of in a triangle, two behind one.” The man directly in

front of him was holding a small silver semi-automatic handgun.

        The man with the gun told Scheets to give them his wallet and cell phone.

Scheets complied, and the man looked through the wallet. Meanwhile, the other two

men went through Scheets’s car and took a laptop, an ipod, and several other things

from the trunk. When the man with the gun discovered that Scheets did not have any

money in his wallet, he told Scheets to get back into his car so that he could go get the

man some money. Scheets and the man with the gun then got into the car, and the man

told Scheets to drive to the nearest ATM.

        As they were leaving the parking lot, a police car passed them, and the man told

Scheets not to try anything and pressed the gun into Scheets’s ribs. Once at the ATM,

Scheets tried several times to get money out of the machine but was unsuccessful

because he did not have much money in his account. The man eventually told Scheets

to go back to his apartment. Once Scheets returned to the apartment complex where the

other two men were waiting, the man with the gun told Scheets that because he could

not give him any money, the three men were going to go with Scheets to his apartment

and “get their money’s worth.”

        After Scheets unlocked the door to his apartment, the men told him to sit on the

couch. The man with the gun handed it to one of the other men, who watched Scheets

while the other two men went through the different rooms of the apartment. At some

point, the two men returned to the living room. The man who had originally held the

Carroll v. State                                                                   Page 3
gun took the gun back, held it to Scheets’s head, and asked Scheets if they had gotten

everything of value. They then told Scheets not to call the police and not to try and

leave because they would be waiting. They then left.

        Several minutes later, Scheets left through the sliding glass door because the men

had taken his cell phone, and he was unable to call the police. Scheets flagged down a

passing motorist who helped him. Scheets described to the police that the man holding

the gun was approximately six feet tall, had a muscular build, and was wearing a white

tank top and baggy gray shorts; his hair was cut short, and he was wearing a “do-rag”

on his head. The man who watched him while they were in the apartment had a

slender build and was wearing plaid shorts. Scheets testified that he also described the

third man as wearing a dark shirt, a cross necklace, and a red bandana.

        Upon hearing of the robbery, a cashier at a Valero gas station on the same street

as Scheets’s apartment complex informed a friend, who then told the police, that she

had seen three African-American men in the store around 11:30 p.m. on the same night

as the robbery.     They had made her nervous because they were acting “crazy,”

laughing, cutting up, and “smelled funny.” She recognized one of the men as Damian,

a regular customer from another store where she had previously worked, and one of the

other men identified himself as “AJ” or “EJ.” The police recovered the in-store video

from that night.

        Detective Patrick Massey of the College Station Police Department testified that

he reviewed the video from the store, and the appearances of the three men in the video

were consistent with the descriptions that Scheets had given him on the night of the

Carroll v. State                                                                    Page 4
robbery. In particular, one of the men who had robbed Scheets wore a red bandana,

and one of the men on the video had a red bandana tucked away in his pocket.

Detective Massey thus contacted Scheets to review the video. After reviewing the

video, Scheets identified the three men as those who had robbed him. The man in the

video who identified himself as “EJ” is Carroll. The other two individuals are Damian

Flowers and Milton McCloud. At trial, Scheets identified Carroll as the man that held

the gun, made him drive to the ATM, and then took him back to his apartment.

        Carroll was convicted of the aggravated robbery of Scheets.

                       ADMISSION OF EXTRANEOUS OFFENSE

        In his first issue, Carroll contends that the trial court abused its discretion by

admitting the extraneous offense evidence of the Garcia robbery under the identity

exception of Rule 404(b) of the Texas Rules of Evidence. We will uphold the decision of

the trial court concerning the admissibility of the evidence unless the ruling rests

outside the zone of reasonable disagreement. See Martin v. State, 173 S.W.3d 463, 467

(Tex. Crim. App. 2005).

        In Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008), the Court of Criminal

Appeals stated:

                The general rule is that the defendant is to be tried only for the
        offense charged, not for any other crimes or for being a criminal generally.
        However, evidence of extraneous acts of misconduct may be admissible if
        (1) the uncharged act is relevant to a material issue in the case, and (2) the
        probative value of that evidence is not significantly outweighed by its
        prejudicial effect. Because the propensity to commit crimes is not a
        material fact in a criminal case, Rule 404(b) explicitly prohibits the
        admission of uncharged acts to prove conduct in conformity with a bad
        character.

Carroll v. State                                                                         Page 5
                One of the main rationales for admitting extraneous-offense
        evidence is to prove the identity of the offender. Here, the theory of
        relevancy is usually that of modus operandi in which the pattern and
        characteristics of the charged crime and the uncharged misconduct are so
        distinctively similar that they constitute a “signature.” Usually, it is the
        accretion of small, sometimes individually insignificant, details that marks
        each crime as the handiwork or modus operandi of a single individual. No
        rigid rules dictate what constitutes sufficient similarities; rather, the
        common characteristics may be proximity in time and place, mode of
        commission of the crimes, the person’s dress, or any other elements which
        mark both crimes as having been committed by the same person. But if
        the similarities are “generic,” i.e., typical to this type of crime, they will not
        constitute a “signature” crime. Sometimes, however, the “signature” is
        one unique characteristic. For example, suppose that three bank robberies
        are committed over a four-year period in different cities in which the
        robber used an antique silver crossbow. This scenario is so unusual that it
        is highly likely that each robbery was committed by the same person
        using the same antique silver crossbow. This is “the mark of Zorro” mode
        of proving identity; it is a remarkably unusual fact, in which a single
        detail suffices to establish identity.

Id. at 71 (footnotes and citations omitted).

        In this case, the trial court allowed the State to present extraneous offense

evidence of the Garcia robbery only for the purpose of determining the identity of the

offender. Although Carroll does not dispute that he raised the issue of identity at trial,

he argues that the trial court’s admission of the extraneous offense evidence was error

because the pattern and characteristics of the charged crime and the uncharged conduct

were not significantly similar such that they constituted a “signature.” We disagree.

        The extraneous offense presented by the State was committed in close proximity

to the time and place of the charged offense and by a common mode of commission. See

Dickson v. State, 246 S.W.3d 733, 742 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d)

(“[T]he Court of Criminal Appeals has held that extraneous offenses may be sufficiently

Carroll v. State                                                                             Page 6
similar to prove identity where there is either proximity in time and place or a common

mode of committing the offense.”) (citing Ransom v. State, 503 S.W.2d 810, 813 (Tex.

Crim. App. 1974)). Both robberies were committed in the Bryan/College Station area

within an hour of each other on the morning of September 17, 2007. In both robberies, a

clean-cut African-American male approached the victims on foot just after they had

exited their vehicles in the parking lots of their respective apartment complexes. Both

victims heard the sound of a gun cocking just before they saw a man with a silver gun.

Both victims saw a red bandana. In both robberies, the man with the gun immediately

asked for the victims’ purse/wallet and also took the victims’ cell phones. Finally, both

victims identified Carroll as the man that held the gun on them and robbed them.

        Carroll argues that although there were some similarities between the charged

offense and the extraneous offense, the incidents were also dissimilar. For instance,

Carroll states that the Garcia robbery involved only one black male while the Scheets

robbery involved three black males. But Garcia testified that she heard a rustling in the

bushes and someone say “go, go, go,” just before the man approached her with a gun.

This indicates that more than one person was involved in her robbery as well.

Furthermore, some dissimilarities between the charged crime and the extraneous

offense do not automatically make the extraneous offense inadmissible. Dickson, 246

S.W.3d at 743; see Ransom, 503 S.W.2d at 813-14. We conclude that the trial court did not

abuse its discretion in finding that the offenses were sufficiently similar such that

evidence of the extraneous offense was admissible to prove the issue of identity.



Carroll v. State                                                                    Page 7
        In his first issue, Carroll also argues that even if the trial court did not err in

admitting the extraneous-offense testimony under Rule 404(b), the evidence should

have been excluded under Rule 403 because the prejudicial effect of the evidence

significantly outweighed its probative value.        Under Rule 403, otherwise relevant

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

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or needless presentation of cumulative evidence.” TEX.

R. EVID. 403.

                In its seminal decision in Montgomery v. State, the Court of Criminal
        Appeals identified four non-exclusive factors to be considered in
        determining whether evidence should be excluded under Rule 403. 810
        S.W.2d 372, 389-90 (Tex. Crim. App. 1991) (op. on reh’g). Those factors
        were: (1) the probative value of the evidence; (2) the potential to impress
        the jury in some irrational, yet indelible way; (3) the time needed to
        develop the evidence; and, (4) the proponent’s need for the evidence. See
        id. (citing 22 CHARLES A. WRIGHT & KENNETH W. GRAHAM, FEDERAL
        PRACTICE AND PROCEDURE § 5250, at 545-51 (1978); EDWARD J.
        IMWINKELRIED, UNCHARGED MISCONDUCT EVIDENCE §§ 2:12, 8:03, 8:07
        (1984)); accord Prible v. State, 175 S.W.3d 724, 733 (Tex. Crim. App. 2005).

              More recently, the Court has looked to the language of Rule 403
        and restated the pertinent factors.

             [A] trial court, when undertaking a Rule 403 analysis, must balance
             (1) the inherent probative force of the proffered evidence along
             with (2) the proponent’s need for that evidence against (3) any
             tendency of the evidence to suggest decision on an improper basis,
             (4) any tendency of the evidence to confuse or distract the jury from
             the main issues, (5) any tendency of the evidence to be given undue
             weight by a jury that has not been equipped to evaluate the
             probative force of the evidence, and (6) the likelihood that
             presentation of the evidence will consume an inordinate amount of
             time or merely repeat evidence already admitted. Of course, these
             factors may well blend together in practice.


Carroll v. State                                                                        Page 8
        Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006)
        (footnotes omitted); accord Subirias v. State, 278 S.W.3d 406, 408 (Tex.
        App.—San Antonio 2008, pet. ref’d); Brock v. State, 275 S.W.3d 586, 590
        (Tex. App.—Amarillo 2008, pet. ref’d); Stafford v. State, 248 S.W.3d 400,
        411-12 (Tex. App.—Beaumont 2008, pet. ref’d); but see De La Paz [v. State],
        279 S.W.3d [336, 349 (Tex. Crim. App. 2009)] (applying Montgomery
        factors).

Newton v. State, 301 S.W.3d 315, 319 (Tex. App.—Waco 2009, pet. ref’d) (footnote

omitted).

        Probative force of the evidence:   As discussed above, the extraneous-offense

evidence of the Garcia robbery is probative because it assists the jury in determining the

identity of the offender in the charged offense.        This factor weighs in favor of

admissibility.

        Proponent’s need for that evidence: Carroll argues that the State did not need the

extraneous-offense evidence of the Garcia robbery to establish identity because Scheets

positively identified Carroll at trial as the man who had held the gun when he was

robbed. But the defense attacked Scheets’s identification during cross-examination by

questioning him about differences in descriptions of the perpetrators’ clothing. Further,

during his opening statement and closing argument, Carroll argued that the evidence

did not support a finding that he was the individual who robbed Scheets.

        When identity is “a hotly contested issue,” the State’s need to offer evidence of

an extraneous offense is strong. Karnes v. State, 127 S.W.3d 184, 193 (Tex. App.—Fort

Worth 2003, pet. ref’d) (citing Lane v. State, 933 S.W.2d 504, 520-21 (Tex. Crim. App.

1996)). In this case, identity was the seminal issue in dispute at trial. This factor thus

weighs in favor of admissibility.

Carroll v. State                                                                      Page 9
        Tendency of evidence to suggest a decision on an improper basis: In Lane, the Court of

Criminal Appeals provided:

              As for the potential to irrationally impress the jury, it is true that an
        extremely similar extraneous offense always carries the potential to
        impress the jury of a defendant’s character conformity, an impression the
        law seeks to avoid. However, the impermissible inference of character
        conformity can be minimized through a limiting instruction.

933 S.W.2d at 520. Here, the trial court gave a limiting instruction to the jury, ordering

them to consider Garcia’s testimony only for the purpose of determining the identity of

the offender in the charged offense. Thus, the extraneous-offense evidence had limited

potential to impress the jury in an irrational way. This factor does not weigh in favor of

exclusion of the evidence.

        Jury confusion or distraction, undue weight, and amount of time or repetition: These

factors concern whether presentation of the evidence consumed an inordinate amount

of time or was repetitious, and the evidence’s tendency to confuse or distract the jury or

to cause the jury to place undue weight on its probative value. See Gigliobianco, 210

S.W.3d at 641-42; Newton, 301 S.W.3d at 320. Garcia’s testimony about her robbery was

only about thirty pages of the reporter’s record. It was not repetitious, and we do not

believe that it could cause jury confusion or distraction or cause the jury to give it

undue weight, especially since the trial court gave a limiting instruction to the jury. All

of these factors thus favor admission.

        Rule 403 “envisions exclusion of [relevant] evidence only when there is a ‘clear

disparity between the degree of prejudice of the offered evidence and its probative

value.’” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v.

Carroll v. State                                                                          Page 10
State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). We cannot say that there is a “clear

disparity” between the danger of unfair prejudice posed by the extraneous-offense

evidence and its probative value. Thus, the trial court did not abuse its discretion by

overruling Carroll’s Rule 403 objection. We overrule Carroll’s first issue.

                                  BATSON CHALLENGE

        In his second issue, Carroll contends that the trial court erred in overruling his

Batson challenge because the State used its peremptory challenges to eliminate all

African Americans from the jury panel and did not give racially neutral explanations

for the challenges.

        The exclusion of a venire-member based on race violates the Equal Protection

Clause of the Fourteenth Amendment to the United States Constitution. U.S. CONST.

amend. XIV; Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69

(1986). Batson provides a three-step process for a trial court to use in adjudicating a

claim that a peremptory challenge was based on race. Snyder v. Louisiana, 552 U.S. 472,

476, 128 S.Ct. 1203, 1207, 170 L.Ed.2d 175 (2008). First, the defendant must make a prima

facie showing that a peremptory challenge has been exercised on the basis of race.

Snyder, 552 U.S. at 476, 128 S.Ct. at 1207; Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim.

App. 2008).        Second, once the prima facie showing has been made, the burden of

production shifts to the State to articulate a race-neutral reason for its strike. Snyder, 552

U.S. at 476, 128 S.Ct. at 1207; Watkins, 245 S.W.3d at 447. Third, if the State tenders a

race-neutral explanation, the trial court must then decide whether the defendant has



Carroll v. State                                                                       Page 11
proved purposeful racial discrimination. Snyder, 552 U.S. at 476, 128 S.Ct. at 1207;

Watkins, 245 S.W.3d at 447.

         If the opponent of a challenged strike raises a question of purposeful

discrimination, and the trial court proceeds immediately to the State’s race-neutral

reasons for the strike, a reviewing court assumes that the opponent has satisfied the first

step of the Batson process. Watkins, 245 S.W.3d at 447. The second step of the process

does not demand an explanation that is persuasive, or even plausible. Purkett v. Elem,

514 U.S. 765, 768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995). The issue is the facial

validity of the prosecutor’s explanation. Id. Unless a discriminatory intent is inherent

in the prosecutor’s explanation, the reason offered will be deemed race neutral. Id.

         It is not until the third step that the persuasiveness of the justification tendered

for the strike becomes relevant. Id. “At that stage, implausible or fantastic justifications

may (and probably will) be found to be pretexts for purposeful discrimination.” Id. In

evaluating the genuineness of the State’s proffered race-neutral reasons, we may

consider: (1) whether the reason given is related to the facts of the case; (2) whether the

State meaningfully questioned the challenged venire member; (3) whether persons with

the same or similar characteristics as the challenged venire member were not struck; (4)

whether there was disparate examination of the members of the venire; and (5) whether

an explanation was based upon a group bias although the specific trait is not shown to

apply to the challenged juror. Williams v. State, 804 S.W.2d 95, 105-06 (Tex. Crim. App.

1991).



Carroll v. State                                                                      Page 12
        In Carroll’s case, the venire included four African Americans. Carroll used a

peremptory strike to remove one of the African Americans from the venire, and the

State used its peremptory strikes to remove the remaining three African Americans

from the venire. Carroll made a Batson challenge, objecting that the State had struck the

three African-American members of the venire, Nos. 8, 10, and 23, on the basis of race.

The trial court asked the State for its race-neutral reasons for the strikes. The State

responded that it struck Nos. 8 and 10 because they were “very talkative” and “had a

lot of questions.” No. 10 specifically had a lot of questions about the possibility that the

weapon used in the offense was not real. Additionally, the State said that it struck No. 8

because he was only twenty-four years old and had been employed for less than nine

months. As to No. 23, the State stated that it struck him because he was only twenty-six

years old and because he “just never talked.”

        Carroll then cross-examined the prosecutor. The prosecutor testified that it was

not unusual to have some panel members who did not speak much, and he admitted

that there were a number of venire-members in this case who did not speak much.

Accordingly, he stated that he did not strike anyone solely for their lack of talking but

that it was a consideration in his striking of three non-African-American venire-

members. The prosecutor also testified that a “big factor” in striking Nos. 8 and 23 was

their age.     He said age was not a factor for No. 10 because he was thirty-seven.

However, he was “so talktive [sic], asked so many questions about issues of aggravated

robbery, how it can and can’t be committed.” The prosecutor also stated that No. 10’s




Carroll v. State                                                                     Page 13
employment for only seven months was a reason for the strike even though the State

did not question any of the venire-members about employment.

        Carroll argued that “there are a number of people in a similar situation that were

not struck similarly by the State in this case.” He conceded that he understood why the

State would have concerns about No. 10, but he stated that No. 8 appeared to be a fairly

strong juror for the State. The trial court found that the State had provided race-neutral

reasons for striking the venire-members, and it overruled Carroll’s objection.

        We will begin with No. 10. If a defendant creates the impression that he is

abandoning an objection, he waives the right to complain of that alleged error on

appeal. See Purtell v. State, 761 S.W.2d 360, 366 (Tex. Crim. App. 1988). Here, Carroll

abandoned his Batson challenge to the State’s strike of No. 10 after the State gave its

race-neutral reason for the strike. Just before the trial court made its ruling, defense

counsel specifically stated: “I agree with regards to . . . Juror No. 10. He was extremely

talktive [sic], and I can understand the State having some concerns about putting

somebody on the panel who asked what about the gun, maybe it wasn’t a gun, that

kind thing.” Thus, Carroll failed to preserve his Batson challenge as to No. 10. See id.

        As for Nos. 8 and 23, we will assume that Carroll satisfied his step-one obligation

to make a prima facie case of purposeful discrimination. See Watkins, 245 S.W.3d at 447.

Furthermore, Carroll does not dispute that the State offered race-neutral explanations

for striking Nos. 8 and 23. See Partida v. State, 133 S.W.3d 738, 742 (Tex. App.—Corpus

Christi 2003, no pet.) (“Youth and employment (or lack thereof) are acceptable race-

neutral explanations for striking a prospective juror.”). Instead, Carroll’s focus is on

Carroll v. State                                                                    Page 14
what he considers to be the State’s inconsistent reasons for striking potential jurors.

Specifically, Carroll complains that the State struck Nos. 8 and 10 in part because they

were talkative but then struck No. 23 in part because he never talked. Carroll also

complains that the State struck Nos. 8 and 23 in part because of their young age but

then stated that it struck No. 10 in part because he was “over 30.”

        First, the only discussion about No. 10’s age occurred in the following exchange:

                [Defense counsel]: And you said that you struck -- in particular
        you struck . . . No. 8, No. 10, and No. 23 in large part because of their age,
        is that right?

               [Prosecutor]: That’s a big factor, yes. Well, not on . . . No. 10,
        because he’s 37 years old. The fact on him was, first of all, the fact he was
        so talktive [sic], asked so many questions about issues of aggravated
        robbery, how it can and can’t be committed, and the fact that he’s been
        employed for seven months.

Thus, the State clarified that it did not actually strike No. 10 because of his age.

Furthermore, a trial court’s decision on whether the defendant has proved a Batson

claim turns, in part, on observations made during the voir dire examination. Therefore,

the court’s determination of a Batson issue must be accorded great deference on appeal.

King v. State, 129 S.W.3d 680, 682 (Tex. App.—Waco 2004, pet. ref’d). The trial court’s

finding that peremptory strikes were not racially motivated will be upheld on appeal if

the finding is not “clearly erroneous” when viewed in the light most favorable to that

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

        Given the record before us, we cannot conclude that the trial court’s denial of

Carroll’s Batson objection was clearly erroneous. We overrule Carroll’s second issue.



Carroll v. State                                                                         Page 15
                                     CONCLUSION

        Having overruled both of Carroll’s issues, we affirm the trial court’s judgment.



                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed December 15, 2010
Do not publish
[CRPM]

       *(Chief Justice Gray concurs in the judgment of the Court affirming Carroll’s
conviction. A separate opinion will not issue. He notes, however, that he does not find
that the characteristics of this crime and the extraneous offense are sufficiently “unusual
or idiosyncratic” to make them the “signature” for the manner in which Carroll
commits his armed robberies. Owens v. State, 827 S.W.2d 911, 914-15 (Tex. Crim. App.
1992) and Taylor v. State, 920 S.W.2d 319, 321-22 (Tex. Crim. App. 1996), respectively.
What must be shown to make the evidence of the extraneous offense admissible is
something that sets it apart from its class or type of crime in general, and marks it
distinctively in the same manner as the principal crime. Ford v. State, 484 S.W.2d 727,
730 (Tex. Crim. App. 1972). He concurs because he finds the error harmless. As to the
Batson issue, he finds he must agree with the Court’s holding under the “clearly
erroneous” standard of review. Grant v. State, No. PD-1059-09, 2010 Tex. Crim. App.
LEXIS 1566, *2-3 (Tex. Crim. App. Nov. 17, 2010). But how strange it is that the race
neutral reason given can be another classification with similar protections as race and
gender; that being age. And it is also ironic that the race-neutral reason given beyond
age is that one prospective juror talked too much and the other talked too little. This
case presents a compelling exhibit for the Honorable Levi Benton’s argument to
eliminate preemptory strikes. If we fail to limit the improper use of preemptory strikes
by striking down only the most egregious examples of race and gender discrimination, I
fear we endanger the very existence of this powerful tool for jury selection in Texas.)




Carroll v. State                                                                    Page 16
