                                   NO. 07-00-0025-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL C

                                     APRIL 3, 2003

                        ______________________________


                       MICHAEL XAVIER SMITH, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

             FROM THE 282ND DISTRICT COURT OF DALLAS COUNTY;

           NO. F-9970058-MS; HONORABLE KAREN J. GREENE, JUDGE

                        _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.


                                       OPINION


      Michael Xavier Smith appeals from his conviction for capital murder and sentence

of life imprisonment. We affirm.
                                       BACKGROUND


       On November 22, 1998, Rudecindo Villatoro Alfara (Alfara) was sitting in his truck

outside his apartment with his nephew, Nelson Bladmir Alfara (Nelson). A group of three

men approached them. The men walked past Alfara and Nelson, then one of the men

returned. This man, who walked with a limp, demanded money, then immediately shot

Nelson with a revolver. Nelson died at the scene.


       Appellant was arrested and indicted for capital murder. The case was tried to a jury.

Appellant was convicted and sentenced to confinement in the Institutional Division of the

Texas Department of Criminal Justice for life.


       By two issues appellant urges that we reverse his conviction. First, he contends that

the trial court erred in finding that the State exercised its peremptory challenges in a

racially neutral manner and in overruling appellant’s Batson1 objection. Second, appellant

challenges the factual sufficiency of the evidence to support the jury’s verdict.


                           ISSUE 1: THE BATSON CHALLENGE


       By his first issue, appellant, a black male, alleges that the State engaged in

purposeful discrimination in exercising its peremptory strikes against black potential jurors

so that no black jurors would sit on the jury of appellant’s trial.




       1
           Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

                                               2
       The deliberate or purposeful denial of jury participation to citizens because of race

violates an accused’s rights under the Equal Protection Clause of the Fourteenth

Amendment to the Federal Constitution. Id. See also TEX . CODE CRIM . PROC . ANN . art.

35.261 (Vernon 1989). In Batson, the Supreme Court set out a three step test for the

courts to follow in determining whether there has been an equal protection violation in the

context of racial discrimination.       See Rhoades v. State, 934 S.W.2d 113, 123

(Tex.Crim.App. 1996). A defendant who challenges the State’s exercise of a peremptory

challenge must prove a prima facie case of racial discrimination. If such a prima facie

showing is made, the burden of production falls to the proponent of the strike to tender a

race neutral explanation. Id. If a race neutral explanation is tendered, the trial court must

evaluate the explanations in light of the circumstances to determine whether the reasons

tendered are merely a pretext.          See Johnson v. State, 879 S.W.2d 313, 316

(Tex.App.–Amarillo 1994, no pet.) The Court of Criminal Appeals has articulated a non-

exclusive list of factors for the trial court to consider in weighing race-neutral explanations.

See Whitsey v. State, 796 S.W.2d 707, 713 (Tex.Crim.App. 1989). Those factors are:


       (1) the reason given for the peremptory challenge is not related to the facts
       of the case;

       (2) there was a lack of questioning to the challenged juror or a lack of
       meaningful questions;

       (3) disparate treatment (persons with the same or similar characteristics as
       the challenged juror were not struck);

       (4) disparate examination of members of the venire such as questioning a
       challenged juror so as to evoke a certain response without asking the same
       question of other panel members; and



                                               3
       (5) an explanation based on a group bias where the group trait is not shown
       to apply to the challenged juror specifically.

Id. at 713-14.


       We review the evidence in the light most favorable to the trial court’s decision, and

determine whether the record supports the findings of the trial judge. See Pondexter v.

State, 942 S.W.2d 577, 581 (Tex.Crim.App. 1996). Our review is based on the evidence

that was before the trial court at the time of its ruling. See Parra v. State, 935 S.W.2d 862,

870 (Tex.App.–Texarkana 1996, pet. ref’d). If there is sufficient evidence to support the

trial judge’s finding of no purposeful discrimination, the finding will not be disturbed on

appeal. See Fuentes v. State, 991 S.W.2d 267, 278 (Tex.Crim.App. 1999).


       In the matter before us, we need not consider whether appellant proved a prima

facie case of racial discrimination because the trial court took evidence as to and ruled on

the ultimate issue of intentional discrimination. See Goode v. Shoukfeh, 943 S.W.2d 441,

445 (Tex. 1997); Johnson, 879 S.W.2d at 315. Thus, we consider whether the State

produced evidence of a race-neutral reason for the peremptory challenge. See Rhoades,

934 S.W.2d at 123. Evidence of a reason offered by the State, as long as it is facially valid

and not inherently discriminatory, is sufficient to rebut a prima facie case of intentional

discrimination. See Williams v. State, 937 S.W.2d 479, 485 (Tex.Crim.App. 1996);

Yarborough v. State, 983 S.W.2d 352, 354 (Tex.App.–Fort Worth 1998, no pet.).


       The prosecutor stated that he struck jurors 2 and 6 because those jurors both had

either a friend or relative who had served time in the state penitentiary. In regard to juror

30, the prosecutor stated that she was struck because she had a problem with the “one-

                                              4
witness” rule2 and because she had a son who was, at the time of appellant’s trial, in jail

in Dallas County awaiting trial on a charge of unlawful carrying of a weapon. But, the fact

that a potential juror has or has had a family member in trouble with the law or formally

accused of a crime is a valid, race-neutral reason to exercise a peremptory strike against

that juror. See Whitaker v. State, 977 S.W.2d 869, 875 (Tex.App.–Beaumont 1998, pet.

ref’d); Ealoms v. State, 983 S.W.2d 853, 856 (Tex.App.–Waco 1998, pet. ref’d); Adams

v. State, 862 S.W.2d 139, 145 (Tex.App.–San Antonio 1993, pet. ref’d). Moreover, a

prosecutor’s belief that a potential juror could not convict on the testimony of one witness

has also been held to be a valid, race-neutral explanation for the State’s exercise of a

peremptory challenge. See Esteves v. State, 849 S.W.2d 822, 823 (Tex.Crim.App. 1993);

Tate v. State, 939 S.W.2d 738, 746-47 (Tex.App.–Houston [14th Dist.] 1997, pet. ref’d);

Garrett v. State, 815 S.W.2d 333, 335-36 (Tex.App.–Houston [1st Dist.] 1991, pet. ref’d).

Thus, the State articulated racially-neutral reasons for striking jurors 2, 6 and 30.


       Proceeding to the third step in the analysis, we next consider in light of the

circumstances of the case whether the race-neutral reasons offered by the State are

supported by the record or are merely pretexts for racial discrimination. See Johnson, 879

S.W.2d at 316. In this regard, appellant contends that the State disparately treated the

venire by failing to strike non-minority3 potential jurors who shared the same or similar



       2
           No objection was lodged to questions concerning the “one-witness rule.”
       3
        The record does not affirmatively demonstrate the racial or ethnic background of
every potential juror on the panel. For convenience, jurors not affirmatively demonstrated
to be black shall be referred to as “non-minority” jurors, regardless of any potential juror’s
actual status as a member of a racial or ethnic minority.

                                              5
characteristics the State found objectionable in black potential jurors who were struck, and

disparately examined the venire by failing to ask the same questions of non-minority

potential jurors who possessed the same or similar characteristics the State found

objectionable in black potential jurors in an attempt to manipulate the record so as to

disguise the State’s purposeful racial discrimination in the exercise of its peremptory

challenges.


       As previously noted, the State’s evidence was that it struck black potential jurors 2

and 6 for the racially-neutral reason that they had either a friend or relative who had served

time in the state penitentiary. The prosecutor stated that he challenged non-minority

potential jurors 7, 16, 19 and 24 for the same reason. The prosecutor stated specifically

that in exercising the State’s peremptory challenges he differentiated between potential

jurors who had friends or relatives who had been placed on probation versus potential

jurors who had friends or relatives who had served time in the state penitentiary. On cross-

examination, the prosecutor stated that he did not strike non-minority potential jurors 1, 12,

20 or 31 because his notes did not demonstrate that any of those jurors had friends or

relatives who had served time in the penitentiary.


       The record reflects that Juror 1 had an old friend who had been charged with

burglary of a house approximately seven years prior. Juror 1 never stated whether his

friend had been convicted or if his friend ever served any time in the state penitentiary.

Juror 12 stated that she had an uncle who was sentenced to probation approximately three

years prior. Juror 20 stated that he had a brother and a friend who had been charged with

“drugs” in Dallas County, and that he himself had been charged with DWI 14 years prior.

                                              6
Juror 20 never stated whether he, his brother or his friend had even been convicted or

served any time in the penitentiary. Juror 31 stated that he had two distant cousins who

had both been charged with child abuse. In the case of one cousin, Juror 31 stated that

the cousin was charged with and “punished” for child abuse. He did not elaborate on what

form of punishment his cousin received. In regard to the other cousin, Juror 31 stated that

his conviction was later overturned. He also stated that “now they’re not in the pen.”

Viewed in a light most favorable to the trial court’s decision, his statements are insufficient

to conclude that either of his cousins had been in the penitentiary. The record, therefore,

does not mandate a conclusion that the State challenged only black jurors who had friends

or relatives who had served time in the penitentiary. In fact, the record demonstrates that

the State challenged non-minority potential jurors 7, 16, 19 and 24 for the same reason.4

Additionally, in regard to non-minority potential jurors 1, 12, 20 and 31, the prosecutor’s

statement that he did not strike those non-minority potential jurors because his notes did

not demonstrate that any of them had friends or relatives who had served time in the

penitentiary is supported by the record of voir dire.


       In regard to juror 30, the prosecutor stated that she was challenged for two reasons,

first, because she had a problem with the “one-witness rule,” and second, because she

had a son who was then incarcerated awaiting trial in the same jurisdiction for the offense


       4
        In regard to juror 24, a non-minority, the prosecutor stated at the Batson hearing
that he struck her because his notes showed that her ex-husband was in the penitentiary.
A review of the record of voir dire, however, reveals that juror 24 said that her ex-husband
had received probation. Therefore, in regard to juror 24, the prosecutor’s notes were not
correct. As the prosecutor made the statement in regard to a non-minority potential juror
that he struck, there is no issue concerning purposeful racial discrimination on the part of
the State due to the prosecutor’s inaccurate notes.

                                              7
of Unlawful Carrying of a Weapon. Appellant argues that the State failed to strike potential

non-minority jurors who also expressed problems following the one-witness rule. However,

the record demonstrates that the prosecutor struck juror 25, a non-minority, because she

also had a problem following the rule.


       Moreover, even assuming, arguendo, that there were other non-minority potential

jurors who expressed difficulty understanding or following the rule but were nevertheless

not struck by the State, such treatment does not automatically lead to a finding of

purposeful racial discrimination by the State. Disparate treatment in the exercise of

peremptory challenges cannot automatically be imputed to the State in every situation in

which the prosecutor states a combination of reasons for challenging a particular juror, and

one of the prosecutor’s stated reasons would technically apply to another potential juror

whom the prosecutor found acceptable. See Adanandus v. State, 866 S.W.2d 210, 224-25

(Tex.Crim.App. 1993). Different jurors may possess the same objectionable characteristic

but in differing degrees. See Cantu v. State, 842 S.W.2d 667, 689 (Tex.Crim.App. 1992).

Such qualitative distinctions may cause a prosecutor to challenge one such juror and not

another. Id. Here, the record shows that the State struck at least one non-minority

potential juror for the same reason as juror 30. Moreover, the prosecutor also stated that

he struck juror 30 for another reason which has already been discussed above and

determined to be racially neutral by the trial court, supported by the record, and non-

pretextual. Therefore, under the circumstances of the case, there was sufficient evidence

for the trial court to find that the State did not disparately exercise its peremptory

challenges.


                                             8
       For the first time on appeal, appellant further argues that the State failed to strike

four non-minority potential jurors seated on the fourth and fifth row of the jury panel, even

though the record conclusively demonstrates that these jurors had friends or relatives that

had served time in the state penitentiary. 5 Appellant argues that the State’s failure to strike

these non-minority potential jurors who shared the same characteristics which the State

found objectionable in black potential jurors amounted to purposeful racial discrimination

by the State in the exercise of its peremptory challenges.


       Appellant has preserved this issue for appeal.6 The record, however, contains no

evidence as to the prosecutor’s reasons for not striking the non-minority potential jurors in

question. It may be, for example, that the prosecutor did not intend to strike any jurors

after a particular number had been reached. See Williams v. State, 939 S.W.2d 703, 706

(Tex.App.–Eastland 1997, no pet.) (prosecutor’s explanation that he struck all jurors who

shared a particular characteristic up to juror number 58 constituted a legitimate race-

neutral reason for the exercise of peremptory challenges).


       The record contains affirmative evidence that the prosecutor’s strikes were for

legitimate race-neutral reasons. Viewing the evidence in the light most favorable to the trial

court’s decision, the State’s unexplained (and unexplored) failure to strike the venire-


       5
        Potential juror Taylor, a fourth-row juror, had a friend who received five years in the
state penitentiary. Another potential juror in the fourth row had a son who received four
years penitentiary time. Potential juror Curtis, seated in the fifth row, had a friend in the
state penitentiary. Potential juror Nelson, also seated in the fifth row, was then married to
a man who was serving a life sentence in the penitentiary. None of these non-minority
potential jurors were struck by the State.
       6
           See Young v. State, 826 S.W.2d 141, 146 (Tex.Crim.App. 1991).

                                               9
members in question is insufficient evidence of purposeful racial discrimination to justify

disturbing the trial court’s decision.


       Next, appellant argues that the State disparately examined black potential jurors so

as to develop a record that would support the State’s explanations for striking those jurors,

while not asking the same questions of non-minority potential jurors. Appellant alleges that

when a potential black juror indicated that he or she had a friend or relative who had

experienced trouble with law enforcement, the State consistently asked the potential juror

about the disposition of the case, whereas in regard to non-minority potential jurors, the

State consistently avoided asking about the disposition of any friends’ or relatives’ cases.

Appellant alleges that the disparate examination was the result of purposeful racial

discrimination by the State.


       An analysis of the record indicates that appellant’s allegation of disparate

examination is not correct. First, of the 29 potential jurors who indicated they had a friend

or relative who had experienced trouble with the law, 13 jurors volunteered information

regarding the disposition of such cases. The State questioned another 10 jurors regarding

the disposition of their friends’ and relatives’ cases. 7 Two of those jurors were black, while

the other eight were non-minority. The non-minority potential jurors who were questioned

included juror 7, juror 12, juror 19, juror 24, juror Margotta, and juror Matherson.

Furthermore, from the record of the strikes exercised by the State and the State’s

explanation of those strikes at the Batson hearing, the trial court could have concluded that


       7
       The remaining jurors either were not questioned by the State regarding disposition
or gave information that was non-responsive to the questioning.

                                              10
the jurors’ answers to the State’s questioning led directly to the striking by the State of non-

minority potential jurors 7, 19 and 24.8 Thus, the record demonstrates that the State

questioned both black and non-minority potential jurors regarding the disposition of their

cases. The State is not required to ask every potential juror any specified rubric of

questions. See Chambers v. State, 866 S.W.2d 9, 24 (Tex.Crim.App. 1993).


       In sum, the State provided racially-neutral justifications for striking each juror. The

State’s justifications and the trial court’s conclusions are supported by the record.

Appellant’s first issue is overruled.


                   ISSUE 2: FACTUAL SUFFICIENCY OF THE EVIDENCE


       By his second point of error, appellant contends that the evidence was factually

insufficient to support the jury’s verdict. He argues that the evidence was factually

insufficient because the State’s eyewitness vacillated in his identification of appellant, and

because there was evidence supporting appellant’s defensive alibi theory.


       When reviewing the factual sufficiency of the evidence, all of the evidence is

reviewed. See Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). Where, as

here, the verdict is in favor of the party with the burden of proof, the verdict is set aside only

if the proof of guilt is either so weak or so contrary to the overwhelming weight of the

evidence as to be clearly wrong and manifestly unjust. See Johnson v. State, 23 S.W.3d

1, 11 (Tex.Crim.App. 2000).



       8
           See n.4, supra, concerning the State’s peremptory strike of juror 24.

                                               11
       Unless the record clearly reveals that a different result is appropriate, an appellate

court must defer to the factfinder’s determination concerning what weight to give

contradictory testimonial evidence because resolution often turns on an evaluation of

credibility and demeanor, which is primarily a determination to be made by observation of

the witnesses giving the testimony. Id. at 8. The trier of fact has discretion to accept or

reject all or any part of any witness’s testimony and reconcile conflicts in the evidence.

See Losada v. State, 721 S.W.2d 305, 309 (Tex.Crim.App. 1986). The court of appeals is

not free to re-weigh the evidence and set aside a jury verdict merely because it believes

that a different result is more reasonable. See Cain, 958 S.W.2d at 407.


       At the outset, it should be observed that mistaken identification and alibi are

defensive theories offered to negate the identity element of the charged offense. See

Giesberg v. State, 945 S.W.2d 120, 124 (Tex.App.–Houston [1st Dist.] 1996 aff’d, 984

S.W.2d 245 (Tex.Crim.App. 1998). Therefore, appellant’s issue is treated as challenging

the sufficiency of the evidence to prove identity. Id.


       Alfara identified appellant in court as the person who shot his nephew Nelson.

Alfara testified that appellant and two other men walked up to them as they were sitting

outside his apartment; appellant said “The money, Bato”; and then appellant immediately

shot the victim. Alfara testified that appellant and the other men then slowly ran away, and

appellant was limping as he ran. Alfara testified that he got a good look at appellant, and

that he saw his face clearly.




                                             12
       Alfara testified that he previously identified appellant as the perpetrator on January

3, 1999 from a police photo-lineup. He also testified that in a pre-trial hearing the day

before appellant’s trial, he said that he was not sure if appellant was the perpetrator. Alfara

testified that the reason he said he was not sure was because he was afraid of what might

happen to him if he told the truth. He said that he was afraid because his brother told him

about someone in Houston who was killed after identifying someone.


       Alfara was cross-examined regarding prior inconsistent statements. He testified that

he described the perpetrator to police as being tall and young, whereas appellant appeared

to him in court to be about 5' 6'’ or 5' 7'’9 and about 35 years old. Alfara also stated that

in the pre-trial hearing, he did not say anything about the perpetrator slowly running away.10


       Appellant also introduced evidence of an alibi. Appellant’s brother and two sisters

testified that appellant had spent the entire weekend of November 22, 1998, at his sister

Beatrice’s house in Pleasant Grove. Appellant’s witnesses all testified that appellant was

using crutches to walk that weekend and that appellant did not have a car to take him

anywhere. On cross-examination, however, appellant’s brother repeatedly testified that

he was not good at keeping up with dates and did not know the date, or even the month,

that appellant was at his sister’s house. Appellant’s brother also testified that appellant

could have used the bus for transportation. Appellant’s sister Lois Head testified that she

did not see appellant every day while he stayed with Beatrice. Moreover, she testified that


       9
           Alfara stated that he considered appellant to be tall at that height.
       10
       On re-direct, Alfara testified that in a statement he gave to police, he said “He shot
my nephew with a small, stainless revolver, and then walked away with no hurry.”

                                                13
she twice saw him walking without his crutches. Thus, appellant’s sister Beatrice Smith

was the only defense witness to testify that she was certain that appellant was at her house

the entire weekend that the murder was committed. She also testified that appellant was

at her house at about 11:30 or 11:45 on December 9, 1998.


       In rebuttal, the State presented three witnesses. The first witness was Christopher

Allen, a police officer with the City of Dallas. Officer Allen testified that he encountered

appellant in an area near the Apple Creek apartments just after midnight on December 10,

1998. Johanna Rodriguez, the manager of the Apple Creek apartments, testified that she

recalled seeing appellant in the vicinity of the Apple Creek apartments around

Thanksgiving. Finally, the State called Melvin Williams, a private security guard for the

Apple Creek apartments. Williams testified that he saw appellant at the apartment

complex the night after the murder.


       The positive identification of a defendant as the perpetrator is sufficient to support

a conviction. See Garcia v. State, 563 S.W.2d 925, 928 (Tex.Crim.App. 1978); Ford v.

State, 509 S.W.2d 317, 318 (Tex.Crim.App. 1974); Lopez v. State, 815 S.W.2d 846, 849

(Tex.App.–Corpus Christi 1991, no pet.). Regardless of Alfara’s prior statements, at trial

he positively identified appellant as the perpetrator of the crime. As appellant does not

challenge the admissibility or reliability of Alfara’s in-court identification, appellant’s

challenge goes to the weight of the evidence, not its admissibility. See Bledsoe v. State,

21 S.W.3d 615, 621 (Tex.App.–Tyler 2000, no pet.). The jury was in the best position to

judge Alfara’s demeanor and credibility and determine the appropriate weight to give his

in-court identification of appellant as the perpetrator. See Johnson, 23 S.W.3d at 8. The

                                             14
fact that Alfara may have previously been uncertain in his identification of appellant as the

perpetrator was merely a factor for the jury to consider in assessing the weight of his

testimony. See Garcia, 563 S.W.2d at 928; Bledsoe, 21 S.W.3d at 621.


       In regard to appellant’s alibi evidence, the jury is entitled to disbelieve evidence of

an alibi. See Ford, 509 S.W.2d at 318. Even if the prosecution fails to rebut alibi

evidence, the jury is not required to believe such evidence or acquit the defendant. See

Johnson v. State, 449 S.W.2d 479, 480 (Tex.Crim.App. 1970). Where, as here, there was

conflicting testimony regarding appellant’s alibi, the jury possessed the sole discretion to

decide which evidence to accept or to reject and to reconcile conflicts in the evidence. See

Losada, 721 S.W.2d at 309.


       In conclusion, there was sufficient evidence for the jury to resolve the issue of

identity against appellant and convict him of the offense. See Ford, 509 S.W.2d at 318.

The proof of guilt is not so obviously weak as to undermine confidence in the jury’s

determination, nor is the proof of guilt greatly outweighed by contrary proof. See Johnson,

23 S.W.3d at 11. The evidence is not factually insufficient to support the verdict.

Appellant’s second issue is overruled.


                                      CONCLUSION


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




                                                         Phil Johnson
Do not publish.                                          Chief Justice

                                             15
