                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00263-CR

PHILLIP TORRES,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                          From the 249th District Court
                             Johnson County, Texas
                             Trial Court No. F46280


                          MEMORANDUM OPINION

      In three issues, appellant, Phillip Torres, challenges his convictions for burglary

of a habitation, a second-degree felony, and attempted burglary of a habitation, a third-

degree felony. See TEX. PENAL CODE ANN. §§ 15.01, 30.02(c)(2) (West 2011). Specifically,

appellant asserts that the trial court erred by: (1) denying his Batson challenge to the

State’s use of a peremptory strike during the jury-selection process; (2) allowing the

State to elicit testimony about appellant’s post-arrest silence; and (3) including a

voluntary-intoxication instruction in the jury charge. We affirm.
                                      I.     BACKGROUND

        This case involves the burglary and attempted burglary of two houses located in

Burleson, Texas, on February 11, 2012. Witnesses testified that, on the day in question,

appellant and Jose Olmos-Castillo attempted to burglarize a house located on Rand

Street. Likely believing that the house was vacant, appellant parked in the driveway

and approached the front door. The homeowner, Chris Gaus, reported that he observed

appellant trying to open his locked front door. When appellant noticed that Gaus was

home, appellant and Olmos-Castillo fled.

        Later that day, appellant and Olmos-Castillo noticed an open garage door at a

house on Thistle Meade Circle. Appellant parked his car, went inside the garage, and

took a Ryobi weedeater, a Sony DVD player, and a soaker hose.              Appellant also

attempted to steal a leaf blower; however, he dropped the leaf blower, which alerted the

homeowner, Robert Ward, to his presence. The homeowner yelled at and made eye

contact with appellant. Appellant got in his car and drove away.

        Based on descriptions of appellant’s vehicle given by Gaus and Ward, police

stopped appellant. When asked to step out of the vehicle, appellant refused. Witnesses

testified that appellant was very vocal at the time of the stop and that police had to

physically remove appellant from the vehicle. Police recognized the items stolen from

Ward’s garage in the back seat of appellant’s vehicle. Thereafter, Gaus and Ward

arrived at the scene of the traffic stop and identified appellant as the perpetrator of the

alleged crimes.

        On March 22, 2012, appellant was indicted for burglary of Ward’s garage and the

Torres v. State                                                                      Page 2
attempted burglary of Gaus’s house. Ultimately, a jury found appellant guilty of both

offenses. The jury sentenced appellant to eight years’ confinement in the Institutional

Division of the Texas Department of Criminal Justice on both counts; however, the

second count, which pertained to the attempted burglary of Gaus’s house, was probated

for a period of ten years. The trial court certified appellant’s right of appeal, and this

appeal followed.

                             II.    APPELLANT’S BATSON CHALLENGE

        In his first issue, appellant contends that the trial court clearly erred in denying

his Batson challenge to the State’s use of a peremptory strike against Juror 18, a twenty-

four year old, Hispanic male. See generally Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.

1712, 90 L. Ed. 2d 69 (1986). In Batson, the United States Supreme Court held that, while

a prosecutor ordinarily may exercise peremptory strikes for any reason related to his

views concerning the outcome of the trial, “the Equal Protection Clause forbids the

prosecutor to challenge potential jurors on account of their race.” Id. at 89, 106 S. Ct. at

1719.

        A Batson challenge to a peremptory strike consists of three steps:          (1) the

opponent of the strike must establish a prima facie showing of racial discrimination; (2)

the proponent of the strike must articulate a race-neutral explanation; and (3) the trial

court must decide whether the opponent has proved purposeful racial discrimination.

See Purkett v. Elem, 514 U.S. 765, 767-68, 115 S. Ct. 1769, 1770-71, 131 L. Ed. 2d (1995);

Young v. State, 283 S.W.3d 854, 866 (Tex. Crim. App. 2009). Once the State proffers race-

neutral explanations for its peremptory strikes, the burden is on the defendant to

Torres v. State                                                                       Page 3
convince the trial court that the prosecution’s reasons were not race-neutral. Ford v.

State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999). Thus, the burden of production shifts

from the defendant in step one to the State in step two; but the burden of persuasion

never shifts from the defendant. Id. The trial court’s ruling in the third step must be

sustained on appeal unless it is clearly erroneous. Grant v. State, 325 S.W.3d 655, 657

(Tex. Crim. App. 2010) (citing Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 1207-

08, 170 L. Ed. 2d 175 (2008)). “Because the trial court’s ruling requires an evaluation of

the credibility and demeanor of prosecutors and venire members, and because this

evaluation lies peculiarly within the trial court’s province, we defer to the trial court in

the absence of exceptional circumstances.” Id.; see Watkins v. State, 245 S.W.3d 444, 448

(Tex. Crim. App. 2008) (“[A] reviewing court should examine the 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 the conclusion

is, in the view of the record as a whole, clearly erroneous.”).

        The trial court conducted a hearing outside the presence of the jury on

appellant’s Batson challenge. At the hearing, appellant argued the following:

               Your Honor, on behalf of the defense, we would like to challenge,
        make [a] Batson challenge to the peremptory strike of Carlos Ortiz by the
        State. Mr. Ortiz was the only Hispanic male in the—the only Hispanic in
        the bubble after the cause were stricken, so we’re making [a] Batson
        challenge.

               And for the record, he didn’t speak very much during the hearing.
        He didn’t say anything at all when it came to, as far as I know, that came
        to—that was the weight of evidence to sentencing. There was no reason
        for them to strike him, in my opinion, other than the fact that he was a
        Hispanic male and would have been on the panel and roughly the same

Torres v. State                                                                        Page 4
        age of my client.

The prosecutor responded that he struck Ortiz from the panel because of his age. The

prosecutor noted that he struck Juror 29, who was twenty-two years old, Juror 34, who

was twenty-three years old, and Juror 1, who was twenty-three years old. In essence,

the prosecutor struck jurors who were under twenty-five years of age because “they

simply do not have enough life experience to properly serve on this jury.” The trial

court ultimately denied appellant’s Batson challenge.

        Here, appellant made a prima facie showing that the State’s strike may have been

racially motivated. However, the State responded with a race-neutral reason for using a

peremptory strike on Ortiz—striking every person on the venire panel that was under

the age of twenty-five. Appellant was unable to refute the prosecution’s explanation or

demonstrate that the State’s explanation was merely a pretext for discrimination.

Therefore, according great deference to the trial court’s denial of appellant’s Batson

challenge, we cannot say that, based on our review of the record, the trial court’s ruling

is clearly erroneous. See Snyder, 552 U.S. at 477, 128 S. Ct. at 1207-08; Grant, 325 S.W.3d

at 657; Watkins, 245 S.W.3d at 448; see also Robertson v. State, No. 10-12-00076-CR, 2012

Tex. App. LEXIS 10581, at **2-3 (Tex. App.—Waco Dec. 20, 2012, no pet.) (mem. op., not

designated for publication). Accordingly, we overrule appellant’s first issue.

                                  III.   POST-ARREST SILENCE

        In his second issue, appellant contends that the trial court erred by allowing the

State to elicit testimony regarding appellant’s post-arrest silence, which violates

appellant’s right to be free from compelled self-incrimination.

Torres v. State                                                                      Page 5
        Appellant complains about a portion of Burleson Police Officer Wesley Routson’s

testimony. Specifically, Officer Routson testified that he responded to the burglary

reports and participated in the traffic stop on appellant’s vehicle. Officer Routson

stated that he looked inside appellant’s vehicle and saw several items in the vehicle that

matched the description of the reported stolen items. Subsequently, the prosecutor

asked Officer Routson the following: “In the Defendant’s talking to you[,] did he offer

any explanation on why these stolen items were in the vehicle?” Appellant objected

and was permitted to voir dire Officer Routson. On voir dire, Officer Routson admitted

that appellant had not been read his Miranda rights after he was handcuffed. Later, the

prosecutor asked: “Okay. Now did Mr. Torres offer any explanation to you when he

was speaking as to why these items were in the back of his vehicle?” Officer Routson

replied, “No.” Appellant once again objected that Officer Routson’s testimony violated

appellant’s constitutional right to remain silent and requested a mistrial.       After a

hearing outside the presence of the jury, the trial court overruled appellant’s objection

and denied his request for a mistrial.     The trial court did mention, however, the

following:

        Okay. Basically what my ruling is I think the questioning of this witness
        needs to make clear as to whether or not the Defendant was under arrest
        or not under arrest and whether he was being interrogated or not being
        interrogated. And if he was not being interrogated, the proper question to
        ask the officer is what did the Defendant say, not what he didn’t say.

        In Salinas v. Texas, the United States Supreme Court has recently stated the

following with regard to the constitutional protections of the Fifth Amendment:

        But regardless of whether prosecutors seek to use silence or a confession

Torres v. State                                                                      Page 6
        that follows, the logic of Berghuis applies with equal force: A suspect who
        stands mute has not done enough to put police on notice that he is relying
        on his Fifth Amendment privilege.

                  ....

        Before petitioner could rely on the privilege against self-incrimination, he
        was required to invoke it. Because he failed to do so, the judgment of the
        Texas Court of Criminal Appeals is affirmed.

2013 U.S. LEXIS 4697, at **18, 23, 133 S. Ct. 2174, 2182-84, 186 L. Ed. 2d 376 (June 17,

2013) (emphasis in original).

        In the instant case, appellant did not invoke his Fifth Amendment rights when he

refused to offer an explanation to police for the items found in the back seat of the

vehicle. See id. Moreover, the prosecutor’s questions touched on appellant’s failure to

offer an explanation for the items in the back seat of the vehicle, rather than

commenting on the issue of appellant’s silence. See Reyes v. State, 422 S.W.3d 18, 24-26

(Tex. App.—Waco 2013, pet. ref’d) (noting, among other things, that a “defendant’s

unexplained possession of property recently stolen in a burglary permits an inference

that the defendant is the one who committed the burglary” (citing Poncio v. State, 185

S.W.3d 904, 905 (Tex. Crim. App. 2006)). Therefore, based on the foregoing, we cannot

say that the trial court abused its discretion in overruling appellant’s objection to the

admission of Officer Routson’s testimony that appellant did not provide an explanation

for his possession of recently-stolen property. See Salinas, 2013 U.S. LEXIS 4697, at **18,

23, 133 S. Ct. at 2182-84; Reyes, 422 S.W.3d at 24-26; see also Tillman v. State, 354 S.W.3d

425, 435 (Tex. Crim. App. 2011) (stating that a trial judge’s decision on the admissibility

of evidence is reviewed under an abuse-of-discretion standard and will not be reversed

Torres v. State                                                                        Page 7
if it is within the zone of reasonable disagreement). We overrule appellant’s second

issue.

                                     IV.    THE JURY CHARGE

         In his third issue, appellant complains that the trial court erred by including an

instruction on voluntary intoxication in the jury charge. Specifically, appellant argues

that the issue of voluntary intoxication was not raised, nor was there sufficient evidence

in the record to suggest that he was intoxicated prior to or during the commission of the

charged offenses. We disagree.

A.       Standard of Review

         In reviewing a jury-charge issue, an appellate court’s first duty is to determine

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996). If error is found, the appellate court must analyze that error for harm.

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was

properly preserved by objection, reversal will be necessary if the error is not harmless.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was

not preserved at trial by a proper objection, a reversal will be granted only if the error

presents egregious harm, meaning appellant did not receive a fair and impartial trial.

Id. To obtain a reversal for jury-charge error, appellant must have suffered actual harm

and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.

App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).

B.       Applicable Law

         Under Texas Law, the trial court must provide the jury with “a written charge

Torres v. State                                                                      Page 8
setting forth the law applicable to the case; not expressing any opinion as to the weight

of the evidence, not summing up the testimony, discussing the facts or using any

argument in [its] charge calculated to arouse the sympathy or excite the passions of the

jury.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007); see Walters v. State, 247 S.W.3d

204, 208 (Tex. Crim. App. 2008). “This law requires the trial judge to instruct the jury on

statutory defenses, affirmative defenses, and justifications whenever they are raised by

the evidence.” Walters, 247 S.W.3d at 208-09 (citing TEX. PENAL CODE ANN. §§ 2.03, 2.04

(West 2011); Arnold v. State, 742 S.W.2d 10, 13 (Tex. Crim. App. 1987)).              “Some

information, such as the elements of the charged offense, must appear in the jury charge

and is without question the law applicable to the case.” Sakil v. State, 287 S.W.3d 23, 26

(Tex. Crim. App. 2009) (internal citations & quotations omitted).

        “But a section 8.04(a) instruction need not appear in every jury charge, and

therefore, there is no sua sponte duty to instruct the jury on that issue, but the judge may

do so, if the question of voluntary intoxication applies to the case.” Id. (citing Delgado v.

State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)). The Court of Criminal Appeals has

also stated that “a Section 8.04(a) instruction is appropriate if there is evidence from any

source that might lead a jury to conclude that the defendant’s intoxication somehow

excused his actions.” Sakil, 287 S.W.3d at 26. Moreover, a defendant need not rely upon

intoxication as a defense in order for the charge to include a Section 8.04(a) instruction.

Taylor v. State, 885 S.W.2d 154, 158 (Tex. Crim. App. 1994) (“Subsection (a) simply

provides that intoxication is not a defense. We do not believe that a defendant needs to

rely upon intoxication as a defense in order to implicate this provision. Rather, if there

Torres v. State                                                                        Page 9
is evidence from any source that might lead a jury to conclude that the defendant’s

intoxication somehow excused his actions, an instruction is appropriate.”).         “The

function of the jury charge is not merely to avoid misleading or confusing the jury, but

to lead and to prevent confusion.”       Sakil, 287 S.W.3d at 26 (internal citations &

quotations omitted).

C.      Discussion

        Here, Officer Randy Petty of the Burleson Police Department testified that

appellant had a can of “Jer-a-mix” in the cup holder in the front of the vehicle. Officer

Petty noted that the can appeared to contain paint thinner. Later, Officer Petty stated

that some people use paint thinner “as an intoxicant to huff it or something like that.”

And Officer Petty believed that appellant was “intoxicated on something” when he

spoke with appellant at the scene of the traffic stop. Nevertheless, Officer Petty poured

out the contents of the can.

        Officer Routson echoed Officer Petty’s sentiments. Specifically, Officer Routson

testified that a can of Humex, “a Mexican-type soda,” was found in the center console of

the vehicle. After observing the can, Officer Routson determined that the can’s contents

“were not soda contents.” Officer Routson noticed a “[v]ery strong” odor of paint

thinner. Based on his training and experience, Officer Routson stated that someone

would put paint thinner in a soda can “for huffing, to smell it to get high” and that

“[t]he fumes from it will make you intoxicated for awhile [sic].”       Officer Routson

acknowledged that he has encountered the huffing of paint thinner several times in his

experience as an officer with the Burleson Police Department.

Torres v. State                                                                   Page 10
        We conclude that the foregoing testimony raised the issue of voluntary

intoxication and, thus, empowered the trial court to issue a section 8.04(a) instruction in

the jury charge. See TEX. PENAL CODE ANN. § 8.04(a); see also Sakil, 287 S.W.3d at 26. The

fact that defendant did not request such an instruction and, instead, objected to the

inclusion of the instruction in the jury charge is of no consequence. See Taylor, 885

S.W.2d at 158. Accordingly, we cannot conclude that the inclusion of the section 8.04(a)

instruction in the jury charge was erroneous. See Sakil, 287 S.W.3d at 26; Delgado, 235

S.W.3d at 249; see also Hutch, 922 S.W.2d at 170. We overrule appellant’s third issue.

                                      V.     CONCLUSION

        Having overruled all of appellant’s issues on appeal, we affirm the judgments of

the trial court.


                                           AL SCOGGINS
                                           Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed June 12, 2014
Do not publish
[CR25]




Torres v. State                                                                     Page 11
