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


                  No. 06-13-00037-CR



            KENNETH GRAY, JR., Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 102nd District Court
                 Bowie County, Texas
             Trial Court No. 12F0430-102




       Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                       MEMORANDUM OPINION
           Kenneth Gray, Jr., had a decidedly negative reaction when he saw his ex-girlfriend,

Rebecca Block, appear at a house of some mutual friends with her new boyfriend, Roderick

Hale. 1 The hail of gunfire that followed resulted in three charges against Gray, burglary of a

habitation with intent to commit assault and twin charges for aggravated assault with a deadly

weapon, one for his allegedly shooting at Block, the other for shooting at Hale. A Bowie County

jury convicted Gray only of assaulting Hale, 2 and Gray appeals. We affirm Gray’s conviction

because (1) no Batson 3 error has been demonstrated, (2) admitting evidence of domestic violence

was within the trial court’s discretion, and (3) the claimed jury instruction error was not

preserved.

(1)        No Batson Error Has Been Demonstrated

           Gray contends that the trial court’s improper resolution of his Batson claim requires

reversal. The State made peremptory challenges against all three of the African-Americans on



1
 Gray’s multi-year relationship with Block had recently come to a bitter end. Gray had longtime friends who were
relatives of Block. While Gray was at his friends’ house, Block appeared with her new boyfriend in tow. From that
point, things went badly. There is evidence that Block and Hale arrived to find Gray inside the house. Block
testified that, on seeing the new couple, Gray ran out the back door, but then came back in through the front door,
and the shooting started. Many shots were fired. Early on, none hit. Gray retreated back into the yard, but Hale
continued to shoot until Gray was finally hit, wounded, and ran away.
          The circumstances of this case were blurred by inaccuracies in Hale’s and Block’s statements and their
efforts to hide Hale’s use of two pistols during the event. Police uncovered the inaccuracies when they realized that
three different caliber weapons were used during the shootout in the house, but Hale claimed to have none. They
found two guns and shell casings from the shootout that Hale and Block had hidden. Hale is a convicted felon, thus
possession of a firearm was itself an offense. The firearm used by Gray was not recovered.
2
 The jury assessed Gray’s punishment at ninety-nine years’ imprisonment and imposed a $10,000.00 fine, and the
trial court sentenced him accordingly.
3
    Batson v. Kentucky, 476 U.S. 79 (1986).

                                                         2
the panel, jurors numbered nine, eighteen, and twenty-nine. Gray raised a claim under Batson

and asked the trial court to dismiss the panel.

       A party is prohibited under the Equal Protection Clause from using peremptory

challenges to exclude otherwise qualified and unbiased persons from a jury solely on the basis of

their race. Batson, 476 U.S. at 88; see TEX. CODE CRIM. PROC. ANN. art. 35.261 (West 2006). A

Batson challenge calls for a three-step process. Ford v. State, 1 S.W.3d 691, 693–94 (Tex. Crim.

App. 1999).     First, the party challenging the strike must make a prima facie case of

discrimination by showing that the totality of the relevant facts gives rise to an inference of

discriminatory purpose. Batson, 476 U.S. at 93–94. The burden then shifts to the proponent of

the strike to make a reasonable race-neutral explanation for the strike. Id.; Williams v. State, 937

S.W.2d 479, 485 (Tex. Crim. App. 1996). As long as no discriminatory intent is inherent in the

explanation given, the explanation need not be persuasive or even plausible. Purkett v. Elem,

514 U.S. 765, 768 (1995); Williams, 937 S.W.2d at 485. Third, if the proponent of the strike

produces a race-neutral reason for the strike, the party making the challenge shoulders the burden

of proving intentional discrimination. Purkett, 514 U.S. at 768; Williams, 937 S.W.2d at 485.

“At that stage, ‘implausible or fantastic justifications may (and probably will) be found to be

pretexts for purposeful discrimination.’”     Miller-El v. Cockrell, 537 U.S. 322, 339 (2003)

(quoting Purkett, 514 U.S. at 768). The trial court must determine whether the party making the

challenge carried the burden of persuasion by proving purposeful discrimination. Id.; Purkett,

514 U.S. at 767.




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        In reviewing a ruling on a Batson challenge, we review the record in the light most

favorable to the trial court’s ruling to determine whether the trial court abused its discretion in

denying the challenges. Davis v. State, 329 S.W.3d 798, 815, 817 (Tex. Crim. App. 2010).

Although we review the evidence in the light most favorable to the court’s decision, the

statements made by the State’s counsel are not evidence and, although they will be considered as

the State’s explanations, will not be treated as evidence.

        After listening to the arguments of counsel, the trial court overruled Gray’s Batson

challenge as to jurors nine and twenty-nine, but sustained the challenge as to juror eighteen. The

trial court returned juror eighteen to the panel rather than dismissing the entire panel.

        The State claimed juror nine said she knew the defendant’s mother and some of her

children went to school with some Grays. 4 Here, the State inaccurately recounts the actual

statement made by the juror. The juror actually said that she thought she knew the mother

because she thought her daughter went to school with some Grays.

        The State explained to the trial court that juror twenty-nine was struck because “she said

that people shouldn’t have guns. Even if they’re felons, they shouldn’t have guns.” That

explanation inaccurately recounted that juror’s statements, as well. Juror twenty-nine correctly

guessed that convicted felons should not own firearms. The State also explained that it struck

juror twenty-nine because she had stated that she knew the brother of defense counsel.




4
 Quoting from the State’s explanation, “As far as No. 9 goes, we actually discussed striking her for cause because
she said very clearly in the front row that she knew the defendant’s mom and that her kids had gone to school with
some Grays. And that’s a reason to strike anybody.”
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       The trial court accepted the State’s reasons for striking jurors nine and twenty-nine. In

both instances, the State provided non-racially based reasons to strike that were facially

legitimate. However, in both instances the State also inaccurately summarized the content of

statements those jurors made during voir dire in a way that made the State’s explanations much

stronger than they really were.

       The State’s explanation of its strike of juror nine is, on its face, quite ordinary and

entirely supportable. Striking a juror because he or she knows the family of the defendant is

often done and is also not a racially motivated reason for the strike. The question as set out by

Gray, however, is whether the State’s inaccurate summary of the juror’s statements shows that

the State was scrambling for a pretext to explain its otherwise unlawful strike.

       Although we acknowledge the inaccuracy of the State’s rendition, we do not find the

erroneous statement controlling because even the much less compelling version actually shown

by the panelist’s statement provides a race-neutral reason for the strike of juror nine.

       The State’s explanation of its strike of juror twenty-nine is on its face also quite

supportable—a prosecution involving a gunfight between two shooters might be derailed by a

juror who believes no one should have a gun. In this case, based on the inaccuracies, one might

legitimately suspect the motivation of the State. However, that is not the only reason given. The

State also relied on the panelist’s statement that she knew the brother of defense counsel.

       Even discounting the first reason given as unsupportable, the second reason is an

explanation that is both supported by the record and race-neutral. We find that the trial court did




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not abuse its discretion by concluding that the reasons given for striking juror nine did not violate

Batson.

         As to juror eighteen, the State’s explanation was that this juror did not pay attention

during voir dire. But the trial court discounted that reason and put juror eighteen back on the

panel. Gray argues that this remedy is improper because the statute requires a different remedy,

dismissing the panel. See TEX. CODE CRIM. PROC. ANN. art. 35.261. Gray claims we should thus

reverse.

         We have previously recognized that Batson explicitly avoids making a particular remedy

mandatory. Batson, 476 U.S. at 99; Boones v. State, 170 S.W.3d 653, 656 (Tex. App.—

Texarkana 2005, no pet.). The sole remedy provided by Article 35.261 of the Texas Code of

Criminal Procedure is the dismissal of the entire panel. 5 That statute has been discounted by the

Texas Court of Criminal Appeals, however, because it “may be unconstitutionally restrictive.”

State ex rel. Curry v. Bowman, 885 S.W.2d 421, 424 (Tex. Crim. App. 1993). The court

reasoned that dismissing the entire array is “not a just and reasonable vindication of a

prospective juror’s right” and held that, notwithstanding the mandatory language of the statute,

the trial court “may fashion a remedy in its discretion consistent with Batson and its progeny.”

Id. at 425. In Bowman, the court held that the decision to reinstate the excluded veniremembers

to the jury was an acceptable remedy. Id.; see Craig v. State, 82 S.W.3d 451, 453 n.1 (Tex.

App.—Austin 2002, pet. ref’d).              The trial court’s reinstatement of juror eighteen was an

acceptable remedy. Thus, no error is shown in that respect.

5
 That Article provides, “If the court determines that the attorney representing the state challenged prospective jurors
on the basis of race, the court shall call a new array in the case.” TEX. CODE CRIM. PROC. ANN. art. 35.261(b).
                                                          6
        In connection with the Batson challenge, Gray contends that error is shown because

defense counsel was not given an opportunity to show how the prosecutor’s stated reasons were

unsupportable. See Yarborough v. State, 947 S.W.2d 892, 906–07 (Tex. Crim. App. 1997)

(under Batson, defendant to be allowed opportunity to rebut State’s explanation and show court

why prosecutor’s stated reasons indicate bad faith). However, after reviewing the interactions

surrounding this discussion, we find no indication that counsel was denied an opportunity to

engage in such questioning. Instead, when offered a general chance to respond, counsel stated

that he was standing on his previous argument and indicated no desire to question the State.

Under these facts, this complaint has not been preserved for our review. See TEX. R. APP. P.

33.1.

(2)     Admitting Evidence of Domestic Violence Was Within the Trial Court’s Discretion

        Gray contends that the trial court erroneously allowed the State to introduce inadmissible

character evidence at the guilt phase of the trial. In the complained-of testimony, the State asked

Gray’s former girlfriend, Block, if Gray had ever physically abused her. Counsel’s objection

was overruled, as was his follow-up objection asking the court to perform the required balancing

test between prejudice and probative value. See TEX. R. EVID. 403.

        Counsel obtained a running objection to the entire line of testimony. Block testified that

Gray had blacked her eyes several times, kicked her, and beat her, and that, after their breakup,

he had kicked in the door of her friend’s house, dragged her out by the hair, and deposited her in

the back of his car. The State initially appeared to have no particular interest in questioning this

witness about the events for which Gray was being prosecuted. But the State quickly barreled

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directly into questions asking if Gray had “on several occasions” physically abused her. The

State questioned her at length about specific acts and concluded by asking her whether she

considered this to have been an abusive relationship.

          After laying the groundwork about Gray’s abusive nature with the jury and then covering

the area again, the State then began questioning her about the days leading up to the incident and

finally about the incident itself.

          Gray argues that the trial court erred in admitting the evidence because it has no

relevance apart from character conformity. See TEX. R. EVID. 404(b); Montgomery v. State, 810

S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g). Rule 404(b) prohibits the use of

extraneous bad acts to prove the defendant acted in conformity therewith, but allows the

evidence if it is used “for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident . . . .” TEX. R. EVID.

404(b).

          The State takes the position that the evidence about the prior relationship and physical

altercations was admissible because it would show motive or criminal intent.

          The simple end to a multi-year romantic relationship and Block’s appearance with a new

boyfriend could explain Gray’s anger and even suggest to the jury that Gray had a motive for bad

behavior. While evidence of prior violence toward Block runs the risk that the jury might find

him guilty based simply on character evidence, it also helps explain his motive or intent at the

time of this offense. It could help establish that the breakup motivated Gray to act violently

toward Block and by extension toward the boyfriend who had taken his place, beyond the

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tendency of the evidence to show Gray’s inclination toward violence. Because there was a

reason that would justify admission of the evidence, we are not prepared to say that the trial court

was outside the zone of reasonable disagreement by admitting the evidence.

(3)    The Claimed Jury-Instruction Error Was Not Preserved

       Gray next contends that the court erroneously commented on the weight of the evidence

when it instructed the jury about the admission of State’s Exhibit 80—a picture of a revolver.

The gun in the photograph was not identified as Gray’s gun, but a witness testified that it was the

type of gun he was carrying. In an effort to limit the jury’s consideration of Exhibit 80, the trial

court instructed jurors that the gun in the photograph “may be similar to the one that [Gray]

used.” Here, counsel argues that the trial court commented on the weight of the evidence by

informing the jury that a revolver was used in the crime and that Gray used a revolver in the

crime. The instruction did assume that Gray used a gun similar to the one in the photograph,

thus commenting on the weight of the evidence.

       The record reveals, however, that trial counsel made no objection to the instruction given.

The only objection relative to Exhibit 80 was to the photograph itself and made the point that it

was never identified as—and, in fact, did not portray—the actual gun used in the crime.

Generally, a claim that the trial court erred by commenting on the weight of the evidence during

trial or while ruling on evidentiary matters must be preserved by objection before we may

consider it. Woods v. State, 569 S.W.2d 901 (Tex. Crim. App. 1978); Morgan v. State, 365

S.W.3d 706, 710 (Tex. App.—Texarkana 2012, no pet.). A failure to object to an instruction that




                                                 9
is later claimed to be faulty fails to preserve the claimed issue for our review. See Young v.

State, 382 S.W.3d 414, 422 (Tex. App.—Texarkana 2012, pet. ref’d). We overrule this point.

       We affirm the judgment of the trial court.



                                            Josh R. Morriss, III
                                            Chief Justice

Date Submitted:       October 14, 2013
Date Decided:         January 2, 2014

Do Not Publish




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