                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             _________________
                              NO. 09-12-00302-CR
                             _________________

                         GABRIEL SILVA, Appellant

                                        V.

                         STATE OF TEXAS, Appellee
________________________________________________________________________

                   On Appeal from the 284th District Court
                        Montgomery County, Texas
                      Trial Cause No. 11-06-06274-CR
________________________________________________________________________

                         MEMORANDUM OPINION

      A jury convicted Gabriel Silva of the felony offense of possession with

intent to deliver or manufacture a controlled substance, cocaine, in an amount of

200 grams or more, in a drug-free zone. See Tex. Health & Safety Code Ann. §

481.112(e) (West 2010), § 481.134(c)(1) (West Supp. 2013). The jury assessed

Silva’s punishment at fifty-five years’ confinement and a fine of $6,500. The trial

court sentenced Silva in accordance with the jury’s verdict. Silva appeals his


                                        1
conviction and presents four issues for review. Finding no reversible error, we

affirm the trial court’s judgment.

                                 I. The Indictment

      In his first issue, Silva argues the trial court erred by denying his request for

a ten-day continuance in accordance with article 28.10 of the Texas Code of

Criminal Procedure after the State amended the indictment by removing the word

“Conroe.” The State responds that the trial court did not err because it did not

amend the indictment. The original indictment alleged in relevant part:

            And it is further presented in and to said Court that the
      defendant committed the above offense within 1,000 feet of premises
      owned by Kinder Care Daycare, a school, located at 24717 Oakhurst,
      Conroe, Montgomery County, Texas.

After the jury was seated, but prior to the reading of the indictment, the prosecutor

made an oral motion to abandon the word “Conroe” from the indictment as

surplusage. Silva’s counsel objected to the prosecutor’s motion for lack of notice.

Silva’s counsel requested a continuance to allow him time to prepare a defense

against a different indictment. The trial court took the State’s motion under

advisement and instructed the State to read the indictment to the jury as it was

originally charged. The prosecutor read the indictment to the jury, including the

word “Conroe,” as instructed to do so by the trial court. The trial court withheld

ruling on the State’s motion until the close of evidence in the guilt phase of trial.
                                          2
Ultimately, the trial court ruled that the word “Conroe” was surplusage and it

would allow the State to abandon it as requested. Our review of the appellate

record indicates that the State never physically altered the indictment to reflect the

court’s ruling, did not file an amended photocopy of the original indictment, and

did not file a written motion to indicate the proposed alteration to the indictment.

While Silva is correct that an amendment to the charging instrument is subject to

the limitations and requirements set out in article 28.10 of the Code of Criminal

Procedure, we find no evidence in the record that the State amended the indictment

to delete the word “Conroe.” See Puente v. State, 320 S.W.3d 352, 357-58 (Tex.

Crim. App. 2010) (indicating that although the trial court approved the parties’

agreement to amend the indictment, when the State made no physical changes to

indictment and did not file an amended photocopy of the indictment, changes to

defendant’s judicial confession alone were not enough to constitute an amendment

of the indictment); Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000)

(indicating State’s motion and trial judge’s granting thereof only constitute

authorization of eventual amendment of an indictment pursuant to article 28.10,

they do not comprise the actual amendment). Therefore, we overrule Silva’s

argument that the trial court erred in allowing the State to amend the indictment



                                          3
and in denying his request for a ten-day continuance pursuant to article 28.10. See

Tex. Code Crim. Proc. Ann. art. 28.10 (West 2006).

      As part of his first issue, Silva also appears to argue that if the State includes

unnecessary allegations in the indictment that are descriptive of that which is

legally essential to charge a crime, the State is bound to prove the allegations, even

though needlessly stated. Silva specifically contends that because the State alleged

the exact address of the daycare, the State was required to prove the exact address

of the daycare as alleged in the indictment, including the city in which the daycare

operates. The indictment alleges Silva committed his offense “within 1,000 feet of

premises owned by Kinder Care Daycare, a school, located at 24717 Oakhurst,

Conroe, Montgomery County, Texas.” Silva further contends that the testimony of

the daycare’s central director was that the daycare was located in Spring, Texas.

Silva argues that because the State alleged the daycare was located in Conroe, the

State was required to prove this allegation in order to prove Silva committed the

offense in a drug-free zone. The cases Silva cites in support of his argument rely

ultimately on Burrell v. State, 526 S.W.2d 799 (Tex. Crim. App. 1975). See, e.g.

Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000); Wray v. State, 711 S.W.2d




                                          4
631, 633 (Tex. Crim. App. 1986).1 In Burrell, the Court explained that

“‘[a]llegations not essential to constitute the offense, and which might be entirely

omitted without affecting the charge against the defendant, and without detriment

to the indictment are treated as mere surplusage, and may be entirely

disregarded.’” Burrell, 526 S.W.2d at 802 (quoting 1 Branch’s Ann. P.C., 2d ed.,

Sec. 517, p. 497 (1956)). The Court in Burrell also recognized an exception to the

general rule regarding surplusage—“where the unnecessary matter is descriptive of

that which is legally essential to charge a crime[,] it must be proven as alleged,

even though needlessly stated.” Id. However, the Court of Criminal Appeals

overruled the Burrell exception in Gollihar v. State, 46 S.W.3d 243, 256-57 (Tex.

Crim. App. 2001). In Gollihar, the Court held that when an appellant alleges a

variance between the evidence presented at trial and the allegations in the

indictment, the variance is fatal only if it is material and prejudices a defendant’s

substantial rights. Id. at 257 (quoting United States v. Sprick, 233 F.3d 845, 853

(5th Cir. 2000)). The Court of Criminal Appeals has since identified two ways in

which a variance in pleading and proof can occur: (1) a variance involving the

statutory language that defines the offense, and (2) a variance involving a non-
      1
        We note that Silva likewise relied on cases based on the Burrell exception
in making his arguments to the trial court. See Sattiewhite v. State, 600 S.W.2d 277
(Tex. Crim. App. 1979); Peters v. State, 652 S.W.2d 460 (Tex. App.—Houston
[1st Dist.] 1983, pet. ref’d).
                                          5
statutory allegation that is descriptive of the offense in some way. Johnson v. State,

364 S.W.3d 292, 294 (Tex. Crim. App. 2012).

      To prove Silva committed his offense in a drug-free zone, the State is

required to prove that the offense was committed “in, on, or within 1,000 feet of

the premises of a school, the premises of a public or private youth center, or a

playground[.]” See Tex. Health & Safety Code Ann. § 481.134(c)(1) (West Supp.

2013). The State’s allegation that the daycare was located in Conroe was not

essential to prove that Silva committed the offense in a drug-free zone. See id. The

term “Conroe” simply described the location of the daycare premises. The State

alleged the essential fact that Silva committed the offense within 1,000 feet of

premises owned by a school. The State was not statutorily required to allege the

daycare’s specific address, so we conclude the variance involves a non-statutory

allegation. See id.

      When reviewing a variance involving a non-statutory allegation for

materiality, we apply a two-prong test. Santana v. State, 59 S.W.3d 187, 195 (Tex.

Crim. App. 2001). First, we consider “‘whether the indictment, as written,

informed the defendant of the charge against him sufficiently to allow him to

prepare an adequate defense at trial[.]’” Id. (quoting Gollihar, 46 S.W.3d at 257).

Second, we determine if the “‘deficiently drafted indictment would subject the

                                          6
defendant to the risk of being prosecuted later for the same crime.’” Id. The Court

of Criminal Appeals has explained its approach to variances involving non-

statutory allegations:

             [F]or non-statutory allegations we tolerate some variation in
      pleading and proof. We tolerate “little mistakes” that do not prejudice
      the defendant’s substantial rights but we will not tolerate a variance
      that really amounts to a failure to prove the offense alleged. What is
      essential about variances with respect to non-statutory allegations is
      that the variance should not be so great that the proof at trial “shows
      an entirely different offense” than what was alleged in the charging
      instrument.

Johnson, 364 S.W.3d at 295. To the extent Silva argues a variance exists, we

believe any alleged variance is immaterial. Under the first prong of the test, Silva

must demonstrate that the variance actually surprised him—he must demonstrate

that he was not sufficiently informed of the charges against him to the extent that

he was unable to prepare an adequate defense. See Santana, 59 S.W.3d at 194-95.

“The object of the doctrine of variance between allegations of an indictment is to

avoid surprise, and for such variance to be material it must be such as to mislead

the party to his prejudice.” Cole v. State, 611 S.W.2d 79, 82 (Tex. Crim. App.

1981) (internal citations and quotations omitted). The burden of demonstrating

surprise or prejudice rests with the defendant. Santana, 59 S.W.3d at 194. Silva

does not claim he was surprised by the evidence at trial that the daycare was

located in Spring. During a hearing before the trial court, the State informed the
                                       7
trial court that Silva’s counsel had received a copy of the offense report, which

indicated that the daycare was located in Spring, Texas, not Conroe. The State also

indicated that it had forwarded Silva’s trial counsel a map that had the correct

address written on it. Silva’s counsel did not refute having received these items

before trial. Further, there is no indication in the record that Silva did not know

which daycare the State claimed was located within 1,000 feet of where Silva was

found in possession of cocaine. There is no indication in the record that Silva was

misled by the State’s allegation that the daycare was located in Conroe, or that he

was surprised when the proof demonstrated the daycare was actually located in

Spring, Texas.

      Silva also fails to show how the variance might subject him to subsequent

prosecution for the same crime. The indictment clearly identifies the offense, the

date of the offense, that the offense occurred “within 1,000 feet of premises owned

by Kinder Care Daycare,” and that Kinder Care Daycare was located at “24717

Oakhurst,” in Montgomery County, Texas. The Geographic Information Systems

coordinator for Montgomery County testified that in her position she creates maps

to help people visualize things spatially. In this case, she created a map that

depicted the premises located at 24717 Oakhurst Drive, Spring, Texas. She

testified that the appraisal district identifies Kinder Care Daycare at this address.

                                         8
The map depicts a 1,000-foot radius around the address. A licensing inspector from

the Department of Family and Protective Services and Child Care Licensing

testified that she is familiar with Kinder Care Daycare located at 24717 Oakhurst

Drive in Spring, Texas and confirmed that it is a daycare licensed by the State of

Texas. The center director for Kinder Care testified the daycare is located at 24717

Oakhurst in Spring, Texas. She testified that there are two other Kinder Care

facilities located in Montgomery County, both located in The Woodlands. She

testified that Kinder Care does not have a facility in Conroe, Texas. She testified

that there is only one Kinder Care located on a street named Oakhurst Drive in

Montgomery County. The evidence in the record supports that Silva was found in

possession of cocaine within 1,000 feet of the daycare facility located at 24717

Oakhurst Drive. If prosecuted again, Silva may avail himself of the entire record,

not just the indictment. See Gollihar, 46 S.W.3d at 258. Furthermore, the offense

here is possession of cocaine with the intent to deliver or manufacture within 1,000

feet of a school. The gravamen of the offense is that he possessed cocaine. If he

had possessed cocaine within 1,000 feet of twenty different schools, he would not

then be subject to twenty charges of possession. We conclude the State could not

prosecute Silva for the same possession offense again just because another daycare

is alleged to be within 1,000 feet of where he committed the offense of possession.

                                         9
After applying both prongs of the materiality test, we conclude that to the extent

Silva complains of a variance, the variance was immaterial. We overrule Silva’s

first issue.

                          II. Improper Jury Argument

       In his second issue, Silva argues that statements made by the prosecutor in

closing arguments during the punishment phase of his trial were improper and

harmed him. The State contends Silva did not preserve this issue for review. To

preserve error for appellate review on an allegedly improper jury argument, a

defendant must make an objection, and then must pursue that objection to an

adverse ruling. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007);

Badall v. State, 216 S.W.3d 865, 872 (Tex. App.—Beaumont 2007, pet. ref’d); see

Tex. R. App. P. 33.1(a)(1)(A). If a trial court sustains a defendant’s objection, the

defendant must request an instruction to disregard and move for a mistrial to

preserve error for appeal. Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App.

1993). “It is well settled that when [an] appellant has been given all the relief he

requested at trial, there is nothing to complain of on appeal.” Id.; see Cockrell v.

State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).




                                         10
      Silva complains that the following statements, made by the prosecutor

during his closing argument, were outside the record, and thus improper jury

argument:

             [STATE]: And what does it tell us that when he has a 7-year-
      old, a 5-year-old and a 1-year-old he’s still dealing cocaine out of his
      house with those kids around?

           [DEFENSE]: Your Honor, I object; it hasn’t been proven
      beyond a reasonable doubt.

             [STATE]: That’s for the jury to decide, Your Honor.

             THE COURT: You may continue.

            [STATE]: Thank you, Your Honor. They want you to have
      sympathy and give him less time for that. Ladies and Gentlemen, I
      submit to you when somebody is still dealing coke with their kids
      around that’s a reason to give them more time and not less.

             [DEFENSE]: Objection, Your Honor. There’s no evidence in
      the record that he was dealing with his kids around. Absolutely none.

             THE COURT: Sustained. It’s true there’s no evidence in the record
      that I heard concerning him dealing when his kids were around.

Although the trial court had initially overruled Silva’s objection, it later sustained

the objection as to the statement that Silva had dealt drugs while his children were

around.2 The trial court then appears to make an effort to correct any


      2
        We note Silva did not obtain an express ruling the first time he objected to
the prosecutor’s statements; however, the trial court implicitly overruled this
objection by directing the prosecutor to continue. See Ramirez v. State, 815 S.W.2d
                                         11
misrepresentation of the evidence by stating there was no evidence in the record

that Silva dealt drugs when his children were around. While the trial court did not

formally instruct the jury to disregard the prosecutor’s statements, the trial court’s

response reflected its disapproval to the jury of the prosecutor’s statements as not

being supported by the evidence.

      Silva also contests the following statement made by the prosecutor during

closing argument:

             [STATE]: Every single person he has sold cocaine to has been
      his victim. Every single child whose parent has been destroyed by
      cocaine that he has sold them is his victim. Every single child who has
      tried cocaine that he’s sold them is his victim. Remember his victims.

            [DEFENSE]: There’s no evidence that he sold to children and I
      ask the jury be instructed to disregard –

          THE COURT: Sustained. Please disregard that particular
      comment regarding selling to children.

Here, the trial court sustained Silva’s objection and instructed the jury to disregard

the improper comment made by the prosecutor.

      Silva contests the following statement also made by the prosecutor during

the State’s closing argument:



636, 650 (Tex. Crim. App. 1991) (holding the trial judge “implicitly overruled”
defendant’s objection to the State’s question by directing witness to answer the
question).
                                       12
             [STATE]: I ask that if you find any redeeming quality in him
      take a little bit off life, but start from there. Start from the place you
      can put him where he won’t put anybody else in jeopardy again, that
      he won’t keep filling our streets in Montgomery County with the
      poison that he has been selling so far. Because this poison is a cancer
      on our society. And he’s the tumor. Let’s cut him out. Let’s get him
      out of the way so we can at least try to be healthy.

            [DEFENSE]: Object to characterizing the defendant as a tumor
      and calling him names.

            THE COURT: Sustained. I will ask [that] the word tumor not
      be considered by the jury.

The court once again sustained Silva’s objection and instructed the jury not to

consider the word “tumor.”

      Silva objected to the prosecutor’s statements, and the trial court sustained his

objections. The court then took measures to correct any misrepresentation created

by the prosecutor’s statements. However, Silva did not follow up his objections by

moving for a mistrial. Because the trial court granted Silva all the relief he

requested and Silva did not pursue the objection to an adverse ruling, he has failed

to preserve his complaints for review. See Tex. R. App. P. 33.1; see also Cook, 858

S.W.2d 473.

        III. Sentencing Evidence—Unadjudicated Extraneous Offenses

      Silva argues the trial court abused its discretion in allowing the jury to

consider evidence of his unadjudicated offenses during the punishment phase of

                                         13
trial. Silva specifically contests the admission of evidence to show that on

September 16, 2011, Silva committed the offense of possession of a controlled

substance and possession of a firearm by a felon. Silva asserts two challenges to

the trial court’s admission of evidence of his unadjudicated offenses. First, Silva

argues the trial court erred in not previewing the evidence before admitting it to

determine if sufficient evidence existed for the jury to reasonably find he

committed the extraneous offenses beyond a reasonable doubt. Second, Silva

argues the trial court abused its discretion by refusing to instruct the jury not to

consider any evidence of his unadjudicated offenses, after the State failed to prove

the chain of custody for the drugs and firearms by failing to establish the first link

in the chain of custody and by failing to bring the physical evidence before the

jury.

        Article 37.07 of the Code of Criminal Procedure governs the admissibility of

evidence during the punishment phase of a non-capital trial. See Tex. Code Crim.

Proc. Ann. art. 37.07 (West Supp. 2013); see also Erazo v. State, 144 S.W.3d 487,

491 (Tex. Crim. App. 2004). Article 37.07 provides that the State may offer

evidence as to any matter the trial court deems relevant to sentencing, including

evidence of an extraneous crime that is shown beyond a reasonable doubt to have



                                         14
been committed by the defendant. Tex. Code Crim. Proc. Ann. art. 37.07, §

3(a)(1).

      Relevant punishment evidence is anything that assists the jury in

determining the appropriate sentence for a defendant:

      The Legislature has expressly provided that “relevant” punishment
      evidence includes, but is not limited to, both character evidence in the
      form of opinion testimony as well as extraneous-offense evidence.
      Because there are no discrete fact issues at the punishment phase of a
      non-capital trial, we have ruled that the definition of “relevant,” as
      stated in Rule 401 of the Texas Rules of Evidence, does not readily
      apply to Article 37.07. What is “relevant” to the punishment
      determination is simply that which will assist the fact finder in
      deciding the appropriate sentence in a particular case. When the jury
      assesses punishment, it must be able to tailor the sentence to the
      particular defendant, and relevance is simply “a question of what is
      helpful to the jury in determining the appropriate sentence for a
      particular defendant in a particular case.”

Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008) (footnotes omitted)

(quoting Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim. App. 2006)).

      When the defendant makes an appropriate objection to extraneous offense

evidence, the trial court has the responsibility to determine the threshold issue of

admissibility. Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996). The

trial court satisfies its responsibility by making an initial determination that a jury

could reasonably find, beyond a reasonable doubt, that the defendant committed

the extraneous offense. Mann v. State, 13 S.W.3d 89, 94 (Tex. App.—Austin

                                          15
2000), aff’d, 58 S.W.3d 132 (Tex. Crim. App. 2001); see Mitchell, 931 S.W.2d at

954. Article 37.07 does not require the trial court to conduct a hearing outside the

presence of the jury to determine the admissibility of extraneous offenses during

the punishment phase of trial. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1);

see also Welch v. State, 993 S.W.2d 690, 697 (Tex. App.—San Antonio 1999, no

pet.). “The trial court may determine whether there is sufficient evidence through

an oral or written proffer of evidence, motions, pretrial hearings, and the trial,

including any bench conferences.” See Arzaga v. State, 86 S.W.3d 767, 781 (Tex.

App.—El Paso 2002, no pet.).

      After opening statements during the punishment phase of trial, the State

called Officer Juan Martinez to testify. Before Martinez testified as to any details

of Silva’s extraneous offenses, the court held a bench conference to determine

whether there was sufficient evidence for a reasonable jury to find the extraneous

offenses beyond a reasonable doubt. The prosecutor informed the court of the

witnesses and evidence he intended to offer to prove the extraneous offenses. The

State indicated it had filed notice of and intended to offer evidence that on

September 6, 2011, Silva committed the offense of possession of a controlled

substance and the offense of possession of a firearm by a felon. During the bench

conference, the State informed the court it had two police officers and a chemist

                                        16
prepared to testify in support of these offenses. The State explained that the

witnesses would (1) testify as to Silva’s identity and the place where he was

staying, (2) testify as to the details of a valid warrant and search of Silva’s place of

residence, and (3) testify that during the search of the residence, officers found

approximately 105 grams of cocaine and multiple weapons.

      At the conclusion of the bench conference, the trial court denied Silva’s

request for a hearing outside the presence of the jury, and allowed the testimony

concerning the extraneous offenses. While the trial court made no express ruling

on the admissibility of the extraneous offense evidence, its denial of Silva’s request

for a hearing constitutes an implied ruling of admissibility. See Moore v. State, 82

S.W.3d 399, 408-09 (Tex. App.—Austin 2002, pet. ref’d), overruled on other

grounds by Taylor v. State, 268 S.W.3d 571, 587 (Tex. Crim. App. 2008). As the

trial court is not required to conduct a full hearing outside the presence of the jury,

the trial court did not abuse its discretion by conducting a preliminary review in

this manner. See Mann, 13 S.W.3d at 93-95; Arzaga, 86 S.W.3d at 781; Welch, 993

S.W.2d at 697; see also Tex. Code. Crim. Proc. Ann. art. 37.07, § 3(a)(1).

Accordingly, Silva’s contention that the trial court did not properly conduct a

threshold inquiry into the admissibility of the extraneous offense evidence is

without merit.

                                          17
      We next consider Silva’s argument that the trial court erred in failing to

instruct the jury it could not consider the extraneous offenses in determining

punishment when, according to Silva, the State failed to meet its burden of proving

the extraneous offenses beyond a reasonable doubt.

      When the State offers evidence of extraneous offenses, the State is required

to prove beyond a reasonable doubt that the defendant committed the said offense

or acts, or at least that the defendant is criminally responsible for its commission.

See Mitchell, 931 S.W.2d at 954. However, the trial court’s threshold

determination is not a finding that the State has proven the extraneous offense

beyond a reasonable doubt, but is instead a finding that sufficient evidence exists

from which a jury could reasonably so find. Mann, 13 S.W.3d at 94 (“[T]he court

must make an initial determination at the proffer of the evidence that a jury could

reasonably find beyond a reasonable doubt that the defendant committed the

extraneous offense.”). If the trial court finds sufficient evidence, the jury then, as

the exclusive judge of the facts, determines whether the State has proved the

extraneous offense beyond a reasonable doubt. Mitchell, 931 S.W.2d at 954.

      Here, the trial court properly instructed the jury in its written punishment

charge that it was to consider extraneous offenses only if it determined that the

State had proven beyond a reasonable doubt that Silva had committed such

                                         18
extraneous offenses or could be held criminally responsible for the offenses. The

jury is presumed to have followed the court’s charge. See Gamez v. State, 737

S.W.2d 315, 324 (Tex. Crim. App. 1987). We overrule Silva’s third issue.

                              IV. Batson Challenges

      Silva argues the trial court committed reversible error by allowing the State,

in violation of Batson v. Kentucky, 476 U.S. 79 (1986), to use peremptory

challenges to exclude two African American venire members. The State responds

that the trial court properly overruled Silva’s Batson challenge because it gave

legitimate, race-neutral reasons for the strikes of the minority panel members.

      In Batson, the United States Supreme Court held that the State violates the

Equal Protection Clause when the State excludes a venire member based on race.

476 U.S. at 85-86. The Court established a three-step process for evaluating Batson

claims: (1) the defendant must make a prima facie showing of racial

discrimination; (2) if the defendant makes that showing, the burden shifts to the

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

must determine if the defendant has proven purposeful discrimination. Id. at 96-98;

Nieto v. State, 365 S.W.3d 673, 675-76 (Tex. Crim. App. 2012). Because the trial

court’s decision largely turns on its evaluation of credibility, we give the court’s

decision great deference and will not disturb it unless it is clearly erroneous. Ladd

                                         19
v. State, 3 S.W.3d 547, 563 (Tex. Crim. App. 1999); see also Watkins v. State, 245

S.W.3d 444, 448 (Tex. Crim. App. 2008) (“[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.”)

      During voir dire, Silva made a Batson challenge to the State’s peremptory

strikes of venire member 10 and venire member 19 because both members are

African American women that are available to serve and no other African

Americans were serving on the jury. The trial court gave the State the opportunity

to provide a race-neutral reason for the strikes. The prosecutor responded: “As to

Juror Number 10, she had informed the Court that she was the wife of a criminal

defense attorney. And on that basis we struck her.” The prosecutor then stated, “As

for 19, she was the one who said that she thought that users should be punished

more than dealers.” The trial court found that the reasons given for the strikes were

sufficient to show race-neutral reasons for the peremptory strikes.

      Silva claims the State’s use of two of its ten peremptory strikes to eliminate

all of the African Americans in the strike zone shows the State’s proffered reasons

for striking venire members 10 and 19 were a pretext to purposeful discrimination.

In support of his position, Silva relies on Greer v. State, 310 S.W.3d 11 (Tex.

                                         20
App.—Dallas 2009, no pet.). But Greer is distinguishable because the Dallas Court

of Appeals first emphasized in Greer that the State used all of its peremptory

strikes against African Americans, who made up only 27% of the venire panel. See

id. at 15. We are unable to tell by the record how many African Americans were

members of the venire panel in this case. According to Silva, the State did not use

all of its strikes against African Americans; only two of its ten were used against

African Americans. The court in Greer also considered that the State’s proffered

reasons were implausible given that a very similar white juror had not been struck.

Id. at 15-19. Unlike Greer, in this case, there is no evidence that the facially race-

neutral reasons provided by the State were implausible. Silva does not use

comparative juror analysis with regards to venire member 10, but does compare

venire member 19 with venire member 7. Specifically, Silva references the

following question posed by the State during voir dire, “Is there anybody that

thinks that using drugs is worse than selling drugs?” Silva correctly points out that

venire members 19, 7, 61, and 3 all responded affirmatively to this question.

However, the State then followed up with another question: “Is there anybody who

thinks that dealers should be treated lighter than users?” While initially none of the

venire members answered affirmatively to this question, later venire member 19

indicated that she believed “people who deliver [drugs] should be judged lighter

                                         21
than those who use [drugs.]” Silva argues that the State’s disparate treatment is

revealed by comparing venire member 7 and 19 because the State did not strike

venire member 7, who was not an African American, when venire member 7 also

agreed that using drugs was worse than selling drugs. However, venire member 7

did not agree that a dealer should receive lighter punishment than a user, the

express reason given by the State for striking venire member 19.

      Silva argues the State’s basis for striking venire member 10 was also

pretextual. Silva contends the reason given by the State for striking member 10

was inaccurate because venire member 10 did not actually say her husband was a

“criminal defense attorney,” she merely stated that her husband was a “criminal

attorney.” In presenting his basis for striking venire member 10, the prosecutor

stated, “she had informed the Court that she was the wife of a criminal defense

attorney.” From the arguments Silva’s trial counsel made to the trial court, it is

likely that Silva’s trial counsel also understood venire member 10’s statement to

mean that her husband was a criminal defense attorney. Silva’s counsel argued,

“simply being married to a criminal defense attorney does not disqualify them

from serving on a jury.” While it is certainly plausible that venire member 10

meant that her husband was a prosecutor, the State is not required to root out every

possible interpretation. See Whitsey v. State, 796 S.W.2d 707, 722 (Tex. Crim.

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App. 1989) (“‘If the district court’s account of the evidence is plausible in light of

the record viewed in its entirety, the court of appeals may not reverse it even

though convinced that had it been sitting as the trier of fact, it would have weighed

the evidence differently. Where there are two permissible views of the evidence,

the fact-finder’s choice between them cannot be clearly erroneous.’”) (quoting

Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985)).

       Because the State offered race-neutral motives for its strikes, and Silva

failed to rebut those motives, we cannot say the trial court’s rulings were “clearly

erroneous.” See Watkins, 245 S.W.3d at 448. Silva’s fourth issue is overruled.

       Having overruled Silva’s four issues on appeal, we affirm the judgment of

the trial court.

       AFFIRMED.

                                              ______________________________
                                                     CHARLES KREGER
                                                           Justice

Submitted on December 3, 2013
Opinion Delivered June 11, 2014
Do not publish

Before McKeithen, C.J., Kreger, and Horton, JJ.




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