
 Opinion issued September 10, 2010
 
 









In The
Court of Appeals
For The
First District of Texas



NO. 01-08-00183-CR
__________

JAMAL LANCE ADAIR, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1112338



O P I N I O N
	A jury found, appellant, James Lance Adair, guilty of the offense of possession
of methylenedioxy methamphetamine (commonly known as "ecstasy"), weighing
between 4 and 400 grams, (1) and, after appellant pleaded true to two enhancement
paragraphs, the trial court assessed his punishment at confinement for twenty-five
years.  In three issues, appellant contends that the trial court erred in denying his
Batson (2) challenge, the evidence was legally insufficient to show that his prior
convictions were final for enhancement purposes under section 12.42 of the Texas
Penal Code, (3) and the trial court erred in overruling his objection to the State's
improper jury argument that he was a "dope dealer," "not just an addict," and "the
problem."       	
	We affirm. 	Factual and Procedural Background On April 12, 2007, Houston Police officers conducted surveillance of a
business prior to executing a search warrant on the business.  Officers observed heavy
foot traffic and activity around the business, and they concluded based upon their
observations that narcotics were being sold at the business.  Officer R. Jordan
testified that, while conducting surveillance outside the business, he saw appellant
exit the business, get into a car parked on a road near the business, and drive the car
directly in front of the front door of the business.  Appellant then exited the car,
opened the back door, and unloaded two bags from the car.  Appellant then walked
back into the business holding the bags.  Jordan stated that one bag resembled a
bowling bag and the other bag resembled a square briefcase.  
	Jordan stated that, shortly thereafter, a team of officers executed the search
warrant and entered the business.  After the team of officers secured the business and
waved Jordan inside, Jordan identified appellant among a room full of other
individuals who had been apprehended by the team of officers.  Jordan also identified
the two bags that he had seen appellant take into the business.
	Officer Sinegal, who was among team of officers executing the search warrant,
testified that when he and the team of ten officers entered the business, appellant and
the other individuals inside the business attempted to flee.  Officer Jordan then
entered the business, identified appellant, and pointed out the two bags that he had
seen appellant carrying.  In one of the bags, officers found several bags that were
individually sealed and contained white pills subsequently determined to be ecstacy
and another bag that contained additional pills. There was also a large bottle of
codeine and codeine-type syrup.  In addition, officers found--inside and throughout
the business--codeine, crack cocaine, marijuana, ecstacy, and other narcotics, along
with narcotics paraphernalia.  The officers arrested appellant and six other individuals
who were inside the business.  Officers discovered that appellant had $1200, a cell
phone, and a book that Officer Singal described as a "drug ledger" with references
to names, dollar amounts, and various types of narcotics, including ecstacy, in his
possession.  When asked what a drug ledger is, Sinegal explained, "Drug dealers, if
they sell narcotics, most times they'll keep amounts of narcotics sold, if any money
is owed due to narcotics, and pretty much running a tally of the street total they
should receive from the narcotics sold."
Batson Challenge
 In his first issue, appellant contends that the trial court erred in denying his
Batson challenge.	See, e.g., Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712,
1717 (1986).  Appellant asserts that the record rebuts the State's proffered reasons for
striking two African-American venire members, juror numbers 7 and 39.  Appellant
further asserts the State used 60% of its peremptory strikes against African-Americans when the eligible panel was made up of 32% African-Americans and that
the State "executed strikes against blacks but did not strike similarly situated non-blacks."
	Following voir dire, the trial court asked the parties if there were any objections
to seating the jury.   Appellant asserted a Batson challenge, complaining that the State
"used six of their ten strikes to strike blacks."  The trial court responded that there
were three African-Americans seated on the jury and at least three Hispanics on the
jury.  The trial court further stated it had not observed any systematic racial strikes
by this particular prosecutor in previous cases.  The trial court then instructed the
State to offer any explanations for its strikes, if it had any.  
	The State then explained its reasons for striking the six African-American
jurors identified by appellant in his Batson challenge. (4)  In regard to the two jurors
identified by appellant on appeal, the State explained that it struck juror number 7 for
several reasons, including the fact that he was unemployed.  The State explained it
struck juror number 39 because he put "no information on his juror information card." 
The State also offered race-neutral explanations as to the other challenged jurors, and
these explanations are not challenged on appeal.  After the State proffered its race-neutral explanation, the trial court gave appellant's trial counsel the opportunity to
respond, but counsel indicated he did not have anything further. (5)  The trial court
found the State's explanations to be race-neutral and denied appellant's Batson
challenge.
 A.	Applicable Law
	The use of a peremptory challenge to strike a potential juror because of race
violates the equal protection guarantee of the United States Constitution and Article
35.261 of the Texas Code of Criminal Procedure. See  Batson at 476 U.S.at 86, 106
S.Ct. at 1717; Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon Supp. 2009).  In the
face of perceived purposeful discrimination, a party may request a Batson hearing. 
Tex. Code Crim. Proc. Ann. art. 35.261. 
 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, 476-77, 128 S. Ct. 1203, 1207 (2008); Watkins v. State, 245 S.W.3d 444, 447 
(Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 92 (2008).  The opponent of a
peremptory challenge must first make a prima facie case that the peremptory
challenge was exercised on the basis of race.  Snyder, 552 U.S. at 476, 128 S. Ct. at
1207; Watkins, 245 S.W.3d at 447.  If that showing has been made, the burden of
production shifts to the proponent of the strike to offer a race-neutral basis for
striking the juror in question.  Snyder, 552 U.S. at 476-77, 128 S. Ct. at 1207;
Watkins, 245 S.W.3d at 447.  In Purkett v. Elem, the United States Supreme Court
explained that the issue in step two is the facial validity of the prosecutor's
explanation, and "[u]nless a discriminatory intent is inherent in the prosecutor's
explanation, the reason offered will be deemed race neutral."  514 U.S. 765, 768, 115
S. Ct. 1769, 1771 (1995) (internal quotations omitted); see also Williams v. State, 301
S.W.3d 675, 689 (Tex. Crim. App. 2009).  In the third and final step, the trial court
must determine whether the opponent of the strike has carried his burden to prove
purposeful discrimination.  Snyder, 552 U.S. at 477, 128 S. Ct. at 1207; Young v.
State, 283 S.W.3d 854, 866 (Tex. Crim. App. 2009).  Throughout the challenge, the
burden of persuasion remains with the defendant, who may continue to rebut the
prosecutor's explanations before the trial court decides the Batson challenge.  Moore
v. State, 265 S.W.3d 73, 78 (Tex. App.--Houston [1st Dist.] 2008, no pet.) (citing
Purkett, 514 U.S. at 768, 115 S. Ct. at 1771).  
	Where the State has offered a race-neutral explanation for the strikes, the
defendant must prove that the prosecutor's reasons were merely a sham or pretext. 
Watkins, 245 S.W.3d at 447.  "The ultimate plausibility of that race-neutral
explanation is to be considered as part of the third step of the analysis, in which the
trial court determines whether the opponent of the strike (usually the defendant) has
satisfied his burden of persuasion to establish by a preponderance of the evidence that
the strike was indeed the product of the proponent's purposeful discrimination."  Id. 
"Whether the opponent satisfies his burden of persuasion to show that the
proponent's facially race-neutral explanation for his strike is pre-textual, not genuine,
is a question of fact for the trial court to resolve in the first instance."  Id.  
 B.	Standard of Review
	"On appeal, a trial court's ruling on the issue of discriminatory intent must be
sustained unless it is clearly erroneous."  Snyder, 552 U.S. at 477, 128 S. Ct. at 1207;
see also Watkins, 245 S.W.3d at 447.  To hold that a fact-finder's decision was
"clearly erroneous," the record must leave us with a "definite and firm conviction that
a mistake has been committed."  Hill v. State, 827 S.W.2d 860, 865 (Tex. Crim. App.
1992); see also Hernandez v. New York, 500 U.S. 352, 369, 111 S. Ct. 1859, 1871
(1991) (holding that a trial court's finding will not be disturbed unless the appellate
court is "'left with a definite and firm conviction that a mistake has been
committed'") (internal citation omitted).
	"We review the record of a Batson hearing and the voir dire examination in the
light most favorable to the trial court's ruling."  Young v. State, 283 S.W.3d 854, 866
(Tex. Crim. App. 2009) (en banc).  We must give great deference to credibility and
demeanor determinations made by the trial court in connection with a Batson inquiry. 
Snyder, 552 U.S. at 477-79, 128 S. Ct. at 1208 (observing that "the best evidence of
discriminatory intent often will be the demeanor of the attorney who exercises the
challenge").  We may not substitute our opinion for the trial court's factual
assessment of the neutrality of the prosecutor's explanation for exercising strikes. 
Gibson v. State, 144 S.W.3d 530, 534 n.5 (Tex. Crim. App. 2004); see Snyder, 552
U.S. at 477-79, 128 S. Ct. at 1208 (holding "in the absence of exceptional
circumstances," deference should be given to trial court).
	In reviewing the record for clear error, "the reviewing court should consider
the entire record of voir dire; it need not limit itself to arguments or considerations
that the parties specifically called to the trial court's attention so long as those
arguments or considerations are manifestly grounded in the appellate record." 
Watkins, 245 S.W.3d at 448 (citing Young v. State, 826 S.W.2d 141 (Tex. Crim. App.
1991); Vargas v. State, 838 S.W.2d 552, 556 (Tex. Crim. App. 1992); Miller-El v.
Dretke, 545 U.S. 231, 241 n.2, 125 S. Ct. 2317, 2326 (2005) (in context of federal
habeas corpus review under 28 U.S.C. section 2254, federal court could consider
entirety of appellate record with respect to voir dire and make comparative-juror
analysis in determining plausibility of prosecutor's race-neutral explanations, though
state court was apparently never specifically asked to make comparative-juror
analysis during Batson hearing)).  The Supreme Court has repeatedly instructed that
we are to consider "all relevant circumstances."  Miller-El, 545 U.S. at 240, 125 S.
Ct. at 2325 (citing Batson, 476 U.S. at 96-97, 106 S. Ct. 1712).  "Those
'circumstances' were the facts discerned by the trial judge during his supervision of
the voir dire."  Young, 826 S.W.2d at 145.  
	In Young, the Court of Criminal Appeals held that "while a defendant is not
required to request the trial court make a comparison analysis of the reasons given for
striking various venirepersons in order to preserve the issue for an appellate
determination, such defendant is limited to the evidence in the record to support such
analysis."  Cornish v. State, 848 S.W.2d 144, 145 (Tex. Crim. App. 1993) (en banc)
(interpreting Young, 826 S.W.2d 144).  Where juror information cards are not before
the trial court in evaluating the Batson claim, we may not consider them in evaluating
the Batson claim on appeal.  Vargas, 838 S.W.2d at 556-57.  However, when the
proponent of the Batson challenge points out information in juror information cards,
bringing the comparison of the cards to the trial court's attention, the information can
properly be considered on appeal.  Cornish, 848 S.W.2d at 145 (holding cards could
be considered on appeal and noting "it is apparent that the parties and the trial judge
regarded the juror information cards as a significant part of the evidence upon which
a resolution of appellant's Batson claim would depend.").
	The United States Supreme Court has recognized several non-exclusive factors
to consider in determining whether a party has met its burden to show purposeful
discrimination.  Watkins, 245 S.W.3d  at 448-49 (citing Miller-El, 545 U.S. at 240,
125 S. Ct. 2317 (2005)).  Specifically, we consider the collective and cumulative
impact of the following non-exclusive factors: 

whether the proponent of the peremptory challenge exercised its
challenges to eliminate a far greater proportion of jurors of the same race
of the juror in question;
 whether the reasons offered for striking the juror in question "appeared
to apply equally well" to other jurors of a different race who were not
struck;
 whether the proponent of the peremptory challenge utilized its option to
shuffle the jury panels in a manner that supported an inference of race
discrimination;
 whether the proponent of the peremptory challenge directed questions
expressly designed to elicit grounds for peremptory challenges
disproportionately, in a manner that suggested an intent to single out
jurors of an identified race for elimination; and
 whether the proponent of the peremptory challenge had followed a
formal policy to exclude jurors of an identified race.  

Id.

 C.	Analysis
	In the instant case, we need not address whether appellant established a prima
facie case; after the prosecutor has articulated reasons for the strikes and the court has
made a ruling on the ultimate question of intentional discrimination, the issue
becomes moot.  See Young, 283 S.W.3d at 866.  Accordingly, we turn to "the record
of the Batson hearing and voir dire examination" to determine if the trial court's
ruling was "clearly erroneous."  Id.
	Here, appellant concedes that the State proffered race-neutral explanations for 
striking juror numbers 7 and 39: that the jurors were "unemployed" and provided "no
information on his juror information card," respectively.  See Bridges v. State, 909
S.W.2d 151, 155(Tex. App.--Houston [14th Dist.] 1995, no pet.) (concluding that
juror's status as unemployed is "facially race neutral explanation" for peremptory
strike); Moore v. State, 265 S.W.3d 73, 86 (Tex. App.--Houston [1st Dist.] 2008, pet.
dism'd, pet. improv. granted) (stating that "[a] prospective  juror's failure to complete
his or her juror information card has been held a legitimate basis for a peremptory
challenge"); Jones v. State, 845 S.W.2d 419, 421 (Tex. App.--Houston [1st Dist.]
1992, pet. ref'd) (stating that "[c]ounsel rely heavily on juror information forms, and
careless or incomplete preparation of the form is an appropriate race-neutral factor
for a prosecutor to consider").	 Accordingly, our focus is on the third Batson step,
i.e., whether appellant established purposeful discrimination and, thus, whether the
trial court committed clear error by overruling appellant's Batson challenge.  We turn
to the factors recognized in Miller-El as relevant to the third inquiry concerning the
plausibility of the race-neutral explanation.
	Appellant concedes in his brief that three of the five recognized relevant factors
are not present in this case: 1) the State did not request a jury shuffle; 2) the State did
not question African-American venire members differently than non-minority panel
members; and 3) there is no evidence of a formal policy used by the prosecutor to
strike members of a particular race.  See Watkins, 245 S.W.3d at 448-49.  Appellant
contends, however, that the other two relevant factors are present.  Specifically,
appellant argues that the trial court's determination was clearly erroneous in light of
the prosecutor's disproportionate use of strikes on African-Americans and
comparative analysis of similarly situated non-minorities.
 Disproportionate Strikes
	First, appellant points out that the State used a disproportionate number of
strikes to eliminate African-American venire members.  The original panel consisted
of 65 people, 14 (or 21.54%) of whom were African-American.  After venire
members were removed for cause, the strike zone of 32 people included 11 (or
34.38%) African-Americans.  The prosecutor used seven of his ten strikes to
eliminate African-Americans.  Appellant conceded at trial and on appeal that one of
the seven African-Americans "would have a problem for everybody" and, therefore,
was not part of his Batson challenge.  Thus, appellant's Batson challenge only related
to six (or 60%) of the State's strikes.  Appellant used one (or 10%) of his strikes to
eliminate an African-American from the panel.  After the parties made their strikes,
the jury consisted of twelve jurors, three (or 25%) of whom were African-American
and three (or 25%) of whom were Hispanic.  Had appellant not struck an African-American panel member, there would have been four African-American jurors,
representing 33.33% of the twelve-person jury.  
	Appellant is correct in noting that the State used a statistically disproportionate
number of strikes on African-American venire members.  However, a
disproportionate use of strikes, alone, does not establish that a trial court was clearly
erroneous in finding that the prosecutor's explanations were not pretextual.  See
Watkins, 245 S.W.3d at 452.  We consider the disproportionality in light of the other
relevant factors.  Id.
 Comparative Analysis
	Appellant argues that, in addition to the disproportionate use of strikes, "a
comparative analysis of the venire indicates a disparate treatment" of African-Americans.  Specifically, appellant asserts that the State executed strikes against juror
numbers 7 and 39, who were African-Americans, but did not strike similarly situated
non-African-American jurors.  To support his comparative analysis, appellant relies
almost exclusively on facts provided by the venire members in their juror information
cards.  The juror information cards were not admitted into evidence, and neither the
parties nor the trial court discussed the specific information on the non-minority juror
cards at trial.  A preliminary issue exists as to whether appellant can rely on this
information to support his comparative analysis.  
	While a defendant can make a comparative analysis for the first time on appeal,
the argument must be limited to "evidence presented to the trial judge during voir
dire and the Batson hearing."  Young v. State, 826 S.W.2d at 145-46 (emphasis
added).  Where the basis for the comparison is not in evidence or presented to the trial
court, either at the voir dire or at the subsequent Batson hearing, an appellate court
may not consider it in evaluating the Batson claim.  Cornish v. State, 848 S.W.2d at
145; Vargas v. State, 838 S.W.2d at 557(holding that juror information cards "not
mentioned or offered into evidence by either side" could not be considered). 
However, in Cornish, the Court of Criminal Appeals held that juror information
cards, although not admitted into evidence, could be considered on appeal where
"defense counsel specifically referred to the juror information cards for the purposes
of a comparison analysis" at trial and both parties and the trial judge relied on the
information in the Batson hearing.  848 S.W.2d at 145.  In Cornish, the State's
proffered explanation was that the venire member did not have children, and defense
counsel responded by pointing out to the trial judge that other nonminority panel
members also indicated on their juror information cards that they did not have
children but were not struck.  Id. at 144.  Accordingly, the Court rationalized that
consideration of the juror information cards was proper on appeal because the record
demonstrated that the comparative information from the cards was considered by the
trial court.  Id. at 145.
	In the present case, although we have obtained the juror information cards in
a sealed, supplemental record, the trial record establishes that appellant did not
introduce any of the juror cards into evidence and did not present comparative
analysis of the similarly situated panel members to the trial court.  See Crew v. State,
No. 05-08-00959-CR, 2009 WL 2712386 (Tex. App.--Dallas Aug. 31, 2009, no pet.
h.) (declining appellant's request to "look to juror questionnaires not specifically
referenced by the trial court during the hearing or admitted by the trial court as
evidence").  However, the prosecutor gave race-neutral explanations for panel
members 7 and 39 based on the information in those particular members' juror
information cards.  Accordingly, the information cards for those two particular panel
members can be considered on appeal.  See Cornish, 848 S.W.2d at 145.  The
comparison information of the non-minority panel members was never pointed out
to the trial court.  Thus, we cannot assume that the trial court considered those cards
in making its determination.  
	Further, appellant failed to offer any rebuttal argument. (6)  The court gave
appellant the opportunity to respond to the prosecutor's race-neutral explanations, but 
appellant indicated he did not have anything further.  This court has previously held
that where appellant's trial counsel indicated he "had nothing further," following the
prosecutor's explanation for her strikes, that the appellant did not attempt to rebut the
race-neutral explanation and therefore failed to meet the burden of persuasion on the
challenge.  McKinney v. State, No. 01-05-00804-CR, 2006 WL 2042517, *3 (Tex.
App.--Houston [1st Dist.] 2006, no pet) (mem. op., not designated for publication). 
Similarly, some courts have held that held that once the prosecutor offers reasons for
its peremptory challenges, a defendant must state his continuing objection in order
to preserve appellate consideration under the third prong of Batson.  United States v.
Arce, 997 F.2d 1123, 1127 (5th Cir. 1993) (holding that "[b]y failing to dispute the
prosecutor's . . . explanation in the district court, defendants have waived their right
to object to it on appeal."); United States v. Rudas, 905 F.2d 38, 41 (2d Cir.1990)
("Once the Government has offered reasons for its peremptory challenges, defense
counsel must expressly indicate an intention to pursue the Batson claim. . . .  By
failing to dispute the Government's explanations, [defense counsel] appeared to
acquiesce in them.").  
	We also note that not making the comparative analysis to the trial court is
distinguishable from failing to make any argument whatsoever in response to the
prosecutor's race-neutral reasons.  See Young, 826 S.W.2d at 142, 146 (holding that
comparative analysis, pointing to specific testimony, may be made for first time on
appeal, where defense counsel offered general rebuttal argument and "quarreled with
the State's reason" at trial).  In other words, the authority allowing for a comparative
analysis for the first time on appeal does not excuse defense counsel from making any
rebuttal argument whatsoever.  
	Our consideration should end here.  However, even when we compare the
information in the juror cards, appellant's argument still fails. 
 a.	Juror Number 7 - Mr. Baldwin
	With regard to juror number 7, Mr. Baldwin, the prosecutor explained, "that
person is unemployed and I wanted people with jobs on the jury."  For the first time
on appeal, appellant points to information from juror number 14's juror information
card to support his comparative analysis argument.  Appellant asserts that, juror
number 14, a white male, was similarly situated, as he was also unemployed, but was
not struck.
	Even assuming that we could properly consider the information contained in
the juror cards not brought to the attention of the trial court, we note that the juror
information card of juror 7 is significantly different from that of juror 14.  Juror 7, the
struck juror, identified his occupation as "unemployed" and his employer as "N/A." 
In contrast, juror 14 identified his occupation as "maintenance."   Although juror 14
wrote "unemployed" in the space provided to identify his employer, in addition to
describing his typical field of employment, he also wrote that he had only been
unemployed  for a period of two months.  Juror number 7 did not provide any such
qualifying information.  The cards thus belie appellant's contention that these jurors
were similarly situated and that the State treated these alleged similarly situated jurors
differently.  Appellant's comparative analysis between jurors 7 and 14 is not
persuasive.
		b.	Juror Number 39 - Mr. Boone
	In regard to juror number 39, the prosecutor explained that he "put in no
information on his juror information card." (7)  Appellant concedes in his brief that "the
juror information card does not list Juror 39, Mr. Boone's race," but, nevertheless,
asserts that the prosecutor's explanation for striking juror number 39 is "completely
false."  Specifically, appellant asserts that, "Mr. Boone's juror card is completely
filled out with the exception of his race and the type of accidental bodily injury Mr.
Boone had experienced." 
	"[P]retext is not shown merely because an explanation is factually incorrect." 
Greer v. State, 310 S.W.3d 11, 16 (Tex. App.--Dallas 2009, no pet.) (citing Johnson
v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002)).  "But when the State's
explanation for striking a juror is clearly contrary to the evidence," courts have held
that "there is no innocent mistake and reversed for Batson error."  Id. (citing
Reich-Bacot v. State, 789 S.W.2d 401, 404-05 (Tex. App.--Dallas 1990) (reversing
conviction where prosecutor's only reason for peremptory strike was flatly
contradicted by venire member's answers during voir dire), pet. dism'd per curiam
as improvidently granted, 815 S.W.2d 582 (Tex. Crim. App. 1991)).  
	Appellant argues that the State's explanation here is clearly contrary to the
evidence, demonstrating pretext.  Appellant's argument is premised on his
interpretation of the prosecutor's statement as suggesting that the venire member put
no information at all on his juror information card.  However, on appeal, we are
called to assess whether the trial court's determination was clearly erroneous after
review of the record "in the light most favorable to the trial court's ruling."  Young,
283 S.W.3d at 866. 
	Appellant's argument suggests that we make two factual findings because it
requires us to first make a factual finding regarding the meaning of the prosecutor's
explanation and then to, based on that interpretation, move to the "ultimate inquiry"
of whether the prosecutor "is telling the truth in his . . . assertion that the challenge
is not race-based."  United States v. Bentley-Smith, 2 F.3d 1368, 1375 (5th Cir. 1993). 
As previously noted, appellant's interpretation of the statement runs afoul of the
"clearly erroneous" standard of review.  "Where there are two permissible views of
the evidence, the fact-finder's choice between them cannot be clearly erroneous." 
Anderson v. City of Bessemer, 470 U.S. 564, 574, 105 S. Ct. 1504, 1511 (1985).  We
must give great deference to credibility and demeanor determinations made by the
trial court in connection with a Batson inquiry.  Snyder, 552 U.S. at 477-79, 128 S.
Ct. at 1208 (observing that "the best evidence of discriminatory intent often will be
the demeanor of the attorney who exercises the challenge").  We may not substitute
our opinion for the trial court's factual assessment of the neutrality of the prosecutor's
explanation for exercising strikes.  Gibson v. State, 144 S.W.3d 530, 534 n.5 (Tex.
Crim. App. 2004); see Snyder, 552 U.S. at 477-79, 128 S. Ct. at 1208 (holding "in
the absence of exceptional circumstances," deference should be given to trial court). 
 	Like appellant's argument, the dissent first interprets the statement in the light
least favorable to the trial court's decision, finding that the prosecutor's statement
was "objectively false." Substituting its opinion for the trial court's factual
assessment, the dissent then concludes that the prosecutor's strikes were race-based.
	Appellant concedes that juror number 39's information card was not
completely filled out, and, accordingly, we cannot conclude that the prosecutor's
explanation was "clearly contrary to the evidence" demonstrating pretext, as
suggested by appellant.  See Greer, 310 S.W.3d at 16.  It was, in fact, missing
information about the venire member's race, occupation, employer, and type of bodily
injury he had sustained.  As explained by the Court of Criminal Appeals, "Even if the
prosecutor was mistaken or exaggerating . . . , 'this is not equal to proving that the
reason given [for the peremptory challenge] was pretext for a racially motivated
strike.'" Watkins, 245 S.W.3d at 450 (quoting Ford v. State, 1 S.W.3d 691, 693 (Tex.
Crim. App. 1999)).  Thus, even if we were to strain the prosecutor's words to suggest
that juror number 39 provided absolutely no information, the explanation is not
"clearly contrary." (8)  Compare Greer, 310 S.W.3d at 16. 
	In his brief, appellant also makes a comparative analysis between the juror
information card of juror number 39 and the cards of nonminority panel members. 
Appellant notes that the juror's card contains some information and is partially
completed.  In support of his comparative analysis complaint regarding juror number
39, appellant complains that juror numbers 11, 15, and 32, who were not African-American, also did not fill out their cards in their entirety, and yet the State did not
strike these jurors.  Appellant did not present these comparative analysis arguments
to the trial court and did not introduce these juror cards into evidence or even refer
to the identified jurors or juror cards during the Batson hearing.  See Crew, 2009 WL
2712386.  Even assuming we can consider appellant's argument on appeal, we note
that juror number 39 failed to fill out his race, type of bodily injury sustained, and had
written "N/A" for occupation, employer, work phone, and length of employment, thus
leaving significant portions of his juror card incomplete.  With regard to appellant's
complaint that the State did not strike similarly situated non-African-American jurors
who had also not completely filled out their cards, the State also struck at least three
other jurors whose cards were also not completely filled out, one of whom was white. 
The two other jurors were African-American, but the State offered other facially
neutral reasons in support of striking of these two jurors, (9) and appellant agrees that
there is no evidence in the record to rebut these facially neutral reasons.  Where, as
here, the State strikes most, but not all, similarly situated venire members, we are
unable to say that the strike at issue was racially motivated.  See Watkins, 245 S.W.3d
at 453.
	With regard to jurors 11 and 32, who were not African-American and were not
struck, these jurors failed to identify either their wives or their wives' occupations. 
In contrast, the omitted information in juror number 39's card pertained to the juror's
own occupation and employment status.  Also, appellant fails to note the comparative
factors that are unfavorable to his argument.  For instance, juror number 11
volunteered that he had strong feelings about drugs, and appellant exercised one of
his strikes against him.  Clearly, this is a significant difference that would make him
a favorable juror to the prosecution in a drug related case, despite his failure to
completely fill out his juror information card.  As indicated in Miller-El, where the
comparative analysis reveals that a similarly situated juror has other "significant
difference," pretext cannot be shown.  545 U.S. at 247.
	In regard to juror number 15, there is no information in the record before us
pertaining to her race.  However, we note that appellant's own trial counsel exercised
a strike against her, which is some evidence that she was likely favorable to the
prosecution.  Further, the voir dire record in this case is replete with unidentified
comments by venire members favorable to the prosecution.   In most instances, the
attorneys identified the venire members by name, but appellant's trial counsel failed
to identify the sources of numerous comments that would have been favorable to the
prosecution.  Any of these could have been made by juror number 15.
	There is nothing in the record that demonstrates that the trial court's decision
was clearly erroneous.  Appellant had the opportunity and obligation to develop the
record, (10) but failed to avail himself of those opportunities.  Accordingly, we cannot
read the scant record as appellant suggests.  Appellant has not met his burden of
persuasion to show the strikes were motivated by race and that the prosecutor's
explanations were pretextual.  
	As appellant concedes, most of the Miller-El factors are not present.  See 545
U.S. at 240, 125 S. Ct. 2317 (finding a Batson violation where all five relevant factors
were present).  Based upon the above considerations, we hold that the trial court's
finding that appellant did not establish purposeful discrimination was not clearly
erroneous and, thus, that the trial court did not err in denying appellant's Batson
challenge.  Because the record, when read in the light most favorable to the court's
ruling supports the resolution of the fact question, "we cannot say that [the trial court]
clearly erred, even though the record might support an opposite resolution as well." 
Watkins, 245 S.W.3d at 457.
	We overrule appellant's first issue.
Enhancement Paragraphs
 In his second issue, appellant contends that the evidence was legally
insufficient to show that his two prior convictions were final for enhancement
purposes under section 12.42 of the Texas Penal Code.  See Tex. Penal Code Ann.
§ 12.42 (Vernon Supp. 2009).
	Section 12.42(d) of the Texas Penal Code provides,
Except as provided by Subsection (c)(2), if it is shown on the trial of a
felony offense other than a state jail felony punishable under Section
12.35(a) that the defendant has previously been finally convicted of two
felony offenses, and the second previous felony conviction is for an
offense that occurred subsequent to the first previous conviction having
become final, on conviction he shall be punished by imprisonment in the
Texas Department of Criminal Justice for life, or for any term of not
more than 99 years or less than 25 years.

Tex. Penal Code. Ann. § 12.42(d).
	Here, the indictment alleged two enhancement paragraphs.  The first paragraph
alleged that appellant had been convicted in 1997 of the felony offense of possession
with intent to deliver a controlled substance. The second paragraph alleged that
before the commission of the primary offense and after the conviction for the 1997
offense had become final, appellant had been finally convicted of the felony offense
of evading arrest with a motor vehicle.  Prior to trial, in regard to the enhancement
paragraphs, appellant pled "not true at this time."  
	After the jury found appellant guilty, appellant signed a stipulation of evidence
that he had been convicted of the offenses alleged in the enhancement paragraphs in
the indictment, namely the evading arrest offense in 2002 and the delivery of
controlled substance offense in 1997. (11)  At the punishment hearing, the trial court
read appellant's stipulation into the record and then confirmed with appellant and his
trial counsel that appellant was stipulating to his convictions for the offenses
identified in the enhancement paragraphs.  The following exchange then occurred:
	[Trial court:]	You understand if I approve this stipulation and
enter it into evidence, this will effectively mean that
your plea of not true will be changed to true and you
are waiving the right to have the State prove beyond
a reasonable doubt that you are one and the same
[person] who was previously convicted of these
offenses?  Do you understand that?

	[Appellant:]	Yes, sir.

	[Trial court:]	Have you talked it over with your attorney?

	[Appellant:]	Yes, sir.

	[Trial court:]	You understand that makes the minimum punishment
that the Court could assess in this case is 25 years
in the penitentiary?  Do you understand that?

	[Appellant:]	Yes, sir.

	(Emphasis added).  The trial court then confirmed with appellant's trial counsel
that he had reviewed these matters with appellant and that he believed appellant
understood these maters.  The trial court then approved the stipulation, entered the
stipulation into evidence, confirmed that the judgments and sentences from the
enhancement convictions were part of the stipulation and were included in the record,
found the allegations in the enhancement paragraphs to be true, and sentenced
appellant to 25 years confinement.   
	The trial court clearly explained to appellant and his counsel that, based upon
the stipulation, it intended to find the enhancement paragraph true and sentence
appellant accordingly.  The trial court also clearly explained to appellant that, with
his stipulation, he was changing his plea to the enhancement paragraphs from "not
true" to "true."  The trial court's judgment is consistent with the proceedings in the
trial court because it recites that appellant pled true to both enhancement paragraphs. 
We conclude that appellant's entry into the stipulation of evidence and plea of "true"
before the trial court constituted sufficient evidence to support the finality of the
enhancement allegations. See Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App.
1984); Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981); Dinn v. State,
570 S.W.2d 910, 915 (Tex. Crim. App. 1978); Kent v. State, 879 S.W.2d 80, 83-84
(Tex. App.--Houston [14th Dist.] 1994, no pet.).  Accordingly, we hold that the
evidence was legally sufficient to show that appellant's two prior convictions were
final and that the trial court did not err in sentencing appellant accordingly.
	We overrule appellant's second issue.
Jury Argument
	In his third issue, appellant contends that the trial court erred in overruling his
objection to the State's improper jury argument that he was a "dope dealer," "not just
an addict," and "the problem."    Appellant complains of the following arguments:
	[State]:		Now I'm going to tell you, a case like this is
different from some young adult who's busted
having a marijuana cigarette in his pocket.  Okay? 
This is different from that. This is not someone who
is young trying to experiment.  This is not the addict
who is a slave to the substances given to him.  This
is the problem.

	[Appellant]:   	. . . this is improper final argument, Judge.

	[Trial court]:	That will be overruled.

	[State]:		This defendant is the problem. He comes in here
trying to tell you that he didn't do this when we have
an officer that saw him come in.  There's no doubt
this stuff is illegal.  There's no doubt that it's
Ecstacy.  There's no doubt it is the amount that we
say it is.

				When you go back there, do not abandon your
common sense.  Do not-you know, when this case is
over, you're going to be able to go back and talk to
your family, you're going to be able to talk to your
friends. . . . Don't tell them you let a dope dealer
back on the street.

	[Appellant]:	That's an improper plea for law enforcement. I
object to it Your Honor.

	[Trial court]:	That will be overruled.

	On appeal, appellant asserts that "[w]hile there might arguably have been some
evidence to infer an intent to deliver, the State had the opportunity to charge appellant 
with possession with the intent to deliver but chose not to."
	Proper jury argument is limited to (1) summation of the evidence presented at
trial, (2) reasonable deductions from that evidence, (3) answers to opposing counsel's
argument, and (4) pleas for law enforcement.  Jackson v. State, 17 S.W.3d 664, 673
(Tex. Crim. App. 2000); Swarb v. State, 125 S.W.3d 672, 685 (Tex. App.--Houston
[1st Dist.] 2003, pet. dism'd).  To determine whether a party's argument properly falls
within one of these categories, we must consider the argument in light of the entire
record.  Swarb, 125 S.W.3d at 685.
	In Davis v. State, 830 S.W.2d 762, 766 (Tex. App.--Houston [1st Dist.] 1992,
pet. ref'd), the defendant was charged with possession of narcotics, and during
closing argument, the State argued that the jury could infer from the evidence that the
defendant intended to sell narcotics and was "out there selling dope."  The trial court
overruled appellant's counsel's relevance objections.  Id.  In considering these
arguments on appeal, this Court noted that "[a] prosecutor may freely draw inferences
from the evidence as long as they are reasonable, fair, legitimate, and offered in good
faith."  Id. (citing Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988)). 
The evidence in that case "showed that the [defendant] was arrested in a
neighborhood notorious for its use as a forum for drug transactions," the defendant 
"attempted to dispose of a matchbox which contained 21 individually wrapped bags"
of narcotics, and the defendant had on his person $671 in small bills at the time of his
arrest.  Id.  We concluded, based upon this evidence, that the State's inference that
the defendant "was a drug dealer [was] reasonable, fair, legitimate, and offered in
good faith," and, thus, the argument was permissible.  Id.
	Similarly, in Akin v. State, 981 S.W.2d 297, 300 (Tex. App.--Texarkana 1998,
no pet.), the defendant complained that the State, during closing arguments, had
characterized him as dope dealer, when he had been charged only with possession of
narcotics.  The Texarkana Court of Appeals concluded that the State's argument
"constituted a proper plea for law enforcement," and it stated that although the
defendant had been tried for possession, "evidence of the amount of the contraband
in his possession, together with evidence that he frequented the area where drug sales
commonly occurred, and testimony that the officers saw him with a known drug
trafficker, was sufficient to allow the prosecutor to draw the inference that [the
defendant] possessed the contraband for the purposes of sale."  Id.; see also Soto v.
State, 810 S.W.2d 861, 864 (Tex. App.--Fort Worth 1991, pet. ref'd) (finding any
reference to defendant in possession case as being "drug dealer" to be "a reasonable
inference from the record" based upon evidence of "drug manufacturing
paraphernalia and weapons"); Wiltz v. State, No. B14-90-00620-CR, 1993 WL
322923 (Tex. App.--Houston [14th Dist.] Aug. 26, 1993, pet. ref'd) (noting that
"prosecutor's argument in a drug prosecution allowing a jury to infer that the
defendant intended to sell drugs in his possession has been found permissible" by
Texas courts). (12)
	The facts in the present case are similar to those in Davis and Akin.   Here,
although appellant was charged with possession of ecstacy, officers testified that
appellant possessed bags that contained, among other things, individually sealed bags
containing ecstacy pills.  Appellant was also found in a business that a reasonable fact
finder could have concluded was operating as a front for dealing narcotics.  There
were large amounts of narcotics and narcotics paraphernalia discovered in the
business.  Appellant was also found to have on his person $1200 and a drug ledger,
which Officer Sinegal testified was a book used by drug dealers to record information
pertaining to narcotics transactions.  The book found on appellant contained names,
dollar amounts, and types of narcotics.  We conclude that the State's references to
appellant as a "dope dealer," "not just an addict," and "the problem" constituted
legitimate pleas for law enforcement and were based upon reasonable deductions
from the evidence and, thus, the trial court did not err in overruling appellant's
objections to these arguments.
	We overrule appellant's third issue. 
Conclusion
	We affirm the judgment of the trial court.
 
 
							George C. Hanks, Jr.
							Justice

Panel consists of Justices Jennings, Hanks, and Bland.

Justice Jennings, dissenting.

Publish.  Tex. R. App. P. 47.2(2), 47.4.
1. 	See Tex. Health & Safety Code Ann. § 481.103(a)(1) (Vernon 2003 & Supp.
2007), § 481.116(d) (Vernon 2003).
2.  Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717 (1986).
3. 	See Tex. Penal Code Ann. § 12.42 (Vernon Supp. 2009).
4. 	Appellant did not challenge the striking of one other African-American, admitting that
this  juror was a problem for all parties.  
5. 	Appellant never attempted to rebut the prosecutor's explanations at trial.  Appellant
never indicated to the court that he believed the explanations to be a pretext.  Also,
appellant never attempted to make a comparative analysis of the information on the
juror information cards to the trial court.
6. 	We find it significant that defense counsel did not even make a general argument that
he believed the explanations to be a pretext; rather, he did nothing to put the court on
notice that he was not satisfied with by the prosecutor's race-neutral explanations. 
Accordingly, nothing in the record brings the non-minority panel members'
information cards into consideration.  
7. 	Appellant notes in his brief that "the juror information card does not list Juror 39, Mr.
Boone's race."  Appellant notes that trial counsel in making the Batson challenge
listed number 39 as part of his challenge and argues that the unobjected-to statement
is sufficient to show Juror 39 was African-American.
8. 	The record indicates that the Batson challenge and the prosecutor's response occurred
"[a]t the bench."  Because of the close proximity to the judge, it is possible that the
prosecutor was pointing to particular fields on the juror information card as he
explained that juror number 39 put no information.  The fact that appellant's trial
counsel never disputed the explanation at trial is further indication that all parties
understood his explanation to be either an exaggeration or referring to particular
missing information.
9. 	The State explained that one of these jurors had admitted to previously serving on a
jury that "hung" and another juror had a "history of bad checks."
10. 	For instance, appellant's trial counsel did not cross-examine the prosecutor,  Salazar
v. State, 795 S.W.2d 187, 192-93 (Tex. Crim. App. 1990), offer argument or evidence
(such as the juror information cards) refuting the prosecutor's race-neutral
explanation, id., or attempt to discover the prosecutor's voir dire notes and offer them
into evidence.  See, e.g., Pondexter v. State, 942 S.W.2d 577, 582 (Tex. Crim. App.
1996) (holding that appellant is entitled to prosecutor's voir dire notes if they were
actually used to refresh his memory).
11. 	Appellant also stipulated to a conviction for one other offense.
12. 	In support of his argument that the State's jury argument was improper, appellant cites
Carr v. State, No. 06-99-00156-CR, 2000 WL 1160686 (Tex. App.--Texarkana Aug.
17, 2000, pet. ref'd).  In Carr, in evaluating a claim for ineffective assistance, the
Texarkana Court of Appeals considered the defendant's counsel's failure to object to
the State's argument that the defendant was a "big fish" in the local narcotics scene. 
Id. at *4.  The court concluded that the State's "big fish" argument and the State's
comparison of the culpability of a drug dealer versus a drug user was improper
because the defendant "was on trial for possession of cocaine and not for selling it,
and for the further reason that there is nothing in the record from which any inference
could be drawn that [the defendant] was a major player on the local drug scene."  Id. 
To the extent that some of the language in Carr can be construed as conflicting with
Davis and Akin, we find the reasoning in Davis and Akin to be more persuasive.
