Baird

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Page 1
Affirmed and Opinion filed March 30, 2000.
In The
Fourteenth Court of Appeals
____________
NO. 14-98-00201-CR
____________
HENRY ANTONIO MORA,
Appellant
V.
THE STATE OF TEXAS,
Appellee
On Appeal from the 232
nd
District Court
Harris County, Texas
Trial Court Cause No.
757,522
O P I N I O N
Appellant was charged by indictment with the offense of aggravated robbery. The
indictment also alleged a prior felony conviction for the purpose of enhancing the range of
punishment. A jury convicted appellant of the charged offense. Appellant then pled true to
the enhancement allegation and the trial court assessed punishment at 75 years confinement
in the Texas Department of Criminal Justice--Institutional Division. Appellant raises six
points of error. We affirm.
Page 2
2
I. Sufficiency Challenges
The first point of error contends the evidence is legally insufficient to sustain the
conviction. The third point of error contends the trial court erred in denying appellant’s
motion for instructed verdict. The fourth point of error contends the evidence is factually
insufficient because the evidence is insufficient to corroborate the accomplice witness
testimony. To address these points, a comprehensive review of the evidence is necessary.
A. Factual Summary
Ememeleina Arhaja, the wife of the complainant, testified that on the alleged date she
and the complainant had just cashed a check and were waiting at a bus stop. Arhaja noticed
two men who appeared suspicious, therefore, Arhaja and the complainant moved to a
different bus stop. The two men re-appeared at the second bus stop and robbed the
complainant, taking his wallet and a necklace. The robbers also took a chain from Arhaja.
To facilitate the robbery, appellant’s co-defendant displayed a firearm and used it to strike
the complainant. After the attack, the complainant ran to a store and Arhaja chased after the
robbers. Arhaja saw the robbers enter a car, which was occupied by two females, and flee.
Arhaja got a partial license plate number from the vehicle. Arhaja identified appellant’s co-
defendant from a photo spread, a video line-up and in court. Arhaja identified appellant from
a line-up, but was not able to identify appellant in court.
The complainant, Geronimo Perez, testified that he moved from the first to the second
bus stop because of two men who appeared suspicious. After arriving at the second bus stop,
the two men surprised the complainant when they used a firearm to strike the complainant
in the head, grabbed his wallet and took his chain necklace. The necklace bore the
complainant’s name.
The complainant identified appellant’s co-defendant as the individual
wielding the firearm. The complainant identified appellant in court.
Houston Police Department Officer Juan Huezoh was the first officer on the scene.
Page 3
3
He separated Arhaja and the complainant, took their descriptions of the robbers and got a
partial license plate number from Arhaja.
Houston Police Officer Cheryl Clement heard the broadcast regarding the description
of the vehicle and a partial license plate number. Shortly thereafter, Clement noticed a
vehicle fitting the description in a parking lot about three quarters of a mile from the site of
the robbery. Clement saw two black males and one black female standing near the car. The
vehicle was later moved and abandoned. Clement contacted the robbery division to get a
“hold” on the vehicle, meaning the car could be towed because there was reason to believe
it had been involved in the robbery.
The vehicle was towed to the Houston Police
Department storage lot for further investigation.
Subsequent to the impounding of the
vehicle, Arhaja went to the storage lot and identified the towed vehicle as the one she had
seen the two suspects enter when they fled the scene.
After running the license plate, the police went to an apartment complex and received
the names of Tazzie Gray, Daisy Gray, Nico Gray, and Alvaro Gomez. A photo spread was
prepared with the photo of Alvaro Gomez, also known as Orobio Gamboa Quintilliano,
appellant’s co-defendant. Both the complainant and Arhaja identified the co-defendant. An
arrest warrant was issued for the co-defendant and he was subsequently arrested along with
Tazzie Gray. The co-defendant subsequently gave a video taped statement concerning his
participation in the robbery.
The investigation then led Clement to Darlene Cheeks. After Cheeks was arrested,
and provided Clement with the name of appellant, Cheek’s boyfriend, Clement then arrested
appellant.
Clement later placed appellant and his co-defendant in separate line-ups and video-
taped them. Both line-ups were shown to the complainant and Arhaja. Both identified the
co-defendant.
Arhaja was able to identify appellant from a video line-up, but the
complainant was not.
Cheeks directed Clement to a firearm hidden in the impounded
Page 4
1
Two firearms were admitted into evidence. The firearm recovered from Gray was State’s exhibit
10 and the firearm recovered from the impounded vehicle was State’s exhibit 11. The admission of these
exhibits is the subject of part III of the opinion, infra.
4
vehicle. A firearm was also recovered from the apartment of Tazzie Gray when she was
arrested.
1
Jesus Chagoyenn, a goldsmith who owned a jewelry shop, identified appellant and his
co-defendant as the men from whom Chagoyenn purchased a chain and a ring, which he later
melted down. Chagoyenn testified he did not normally buy jewelry, but the two men stated
they needed money for gas.
Darlene Cheeks testified as an accomplice. In exchange for her testimony, she agreed
to plead guilty to several pending aggravated robberies and the State agreed the charges
would be reduced to robbery and she would be sentenced to eight years concurrent for all
cases.
Cheeks stated she had been romantically involved with appellant and she was
acquainted with the co-defendant who was the boyfriend of Tazzie Gray.
On May 4, 1997, the four went looking for someone to rob. They went to a
convenience store, which Gray entered, and saw the complainant and Arhaja cashing a check.
They followed the complainant and Arhaja to a bus stop. The two men got out of the car
while Cheeks and Gray remained in the car. After five or ten minutes, the men returned with
a wallet, a necklace and a ring. Cheeks testified the firearm used was State’s exhibit 11.
Cheeks also pointed out the jewelry store on Chimney Rock where the items had been sold.
Houston Police Officer A.A. Cavasos assisted with the investigation of the robbery.
He testified Chagoyenn told him that the chain he bought and subsequently melted down
bore the moniker of “Geronimo,” the first name of the complainant. Chagoyenn testified at
trial he did not remember that, nor did he remember telling the officer that.
Appellant’s co-defendant testified that he did not commit the robbery. Although the
co-defendant had earlier given a video-taped statement confessing to the robbery, he testified
Page 5
5
that he had smoked marijuana and crack cocaine the morning of the statement and that he
was forced to give the statement.
B. Standards of Review
We must next determine the appropriate standard of appellate review for resolving
these points of error. When we are asked to determine whether the evidence is legally
sufficient to sustain a conviction we employ the standard of Jackson v. Virginia and ask
“whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
In Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993), the Court of Criminal
Appeals stated: “A challenge to the trial court's ruling on a motion for an instructed verdict
is in actuality a challenge to the sufficiency of the evidence to support the conviction.”
Therefore, when considering a point of error contending the trial court erred in overruling
a motion for instructed verdict, the reviewing court “will consider the evidence presented at
trial by both the State and appellant in determining whether there was sufficient evidence.”
Id. In other words, the standard of appellate review of a ruling on a motion for instructed
verdict is the same standard in reviewing legal sufficiency of the evidence. See Margraves
v. State, 996 S.W.2d 290, 302 (Tex. App.—Houston [14
th
Dist.] 1999, pet. ref’d) (citing
Roper v. State, 917 S.W.2d 128, 130 (Tex. App.—Fort Worth 1996, pet. ref'd); Griffin v.
State, 936 S.W.2d 353, 356 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d)).
When we determine whether the evidence is factually sufficient, we employ the
standard announced in Clewis v. State and view all of the evidence without the prism of “in
the light most favorable to the prosecution” and reverse the conviction only if it is so contrary
to the overwhelming weight of the evidence as to be clearly wrong and unjust. 922 S.W.2d
126, 129 (Tex. Crim. App. 1996). In Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997),
the court stressed the importance of the three principles that must guide a court of appeals
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6
when conducting a factual sufficiency review. The first principle is deference to the jury. A
court of appeals may not reverse a jury’s decision simply because it disagrees with the result.
Rather the court of appeals must defer to the jury and may find the evidence factually
insufficient only where necessary to prevent manifest injustice. See id. at 407. The second
principle requires the court of appeals to provide a detailed explanation supporting its finding
of factual insufficiency by clearly stating why the conviction is manifestly unjust, shocks the
conscience or clearly demonstrates bias, and the court should state in what regard the
contrary evidence greatly outweighs the evidence in support of the verdict. See id. at 407.
The third principle requires the court of appeals to review all of the evidence. The court must
consider the evidence as a whole, not viewing it in the light most favorable to either party.
See id. at 408.
C. Legal Sufficiency
As the standard of appellate review is the same, we will jointly consider the first and
third points of error.
A person commits aggravated robbery if he knowingly and
intentionally threatens or places another in fear of imminent bodily injury or death in the
course of committing theft, with the intent to obtain or maintain control of the property, and
uses or exhibits a deadly weapon. See T
EX
.P
EN
.C
ODE
§29.03.
From the facts presented, after viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
Both the complainant and Arhaja identified appellant, and
Cheeks further testified appellant had been involved in the commission of the crime.
Although appellant contends the identification by the complainant and Arhaja is infirm, the
jury is the exclusive judge of the facts proved, the credibility of the witnesses, and the weight
to be given to the testimony. See T
EX
. C
ODE
C
RIM
. P
ROC
. art. 38.04. The jury may believe
or disbelieve all or any part of a witness's testimony. See Sharp v. State, 707 S.W.2d 611,
614 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872, 109 S.Ct. 190, 102 L.Ed.2d 159
Page 7
7
(1988). The jury could rationally have believed the testimony of the complainant and Arhaja
in determining beyond a reasonable doubt that appellant was guilty of aggravated robbery.
The complainant was severely beaten and stated he feared for his life, recounting that when
the firearm was placed on his stomach, he “felt death.” The complainant’s money and
jewelry were taken without his consent. The evidence is legally sufficient to sustain the
conviction. The first and third points of error are overruled.
D. Factual Sufficiency
We now turn to the factual sufficiency challenge. Clewis directs us to set aside the
verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly
wrong and unjust. See Clewis, 922 S.W.2d at 129. When performing this review, the
appellate court must be "appropriately deferential" to avoid substituting its judgment for the
fact finder's. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); Clewis,
922 S.W.2d at 133. This requirement was reiterated in Cain’s instruction for us to defer to
the jury. 958 S.W.2d at 407.
Appellant was positively identified by both the complainant and Arhaja. He was
dating Cheeks, who admitted her involvement in the instant crime. The jeweler identified
appellant as one of two men selling him a chain and a ring, exactly the items Cheeks testified
were taken during the robbery. The test for factual sufficiency is whether the jury finding
of guilt was “so contrary to the overwhelming weight of the evidence as to be clearly wrong
and unjust." Clewis, 922 S.W.2d at 129. Under this standard, we cannot conclude that in
light of the foregoing record evidence, the finding of guilt was clearly wrong or unjust.
Consequently, we hold the evidence is factually sufficient to support the jury’s verdict. The
fourth point of error is overruled.
II. Accomplice Witness Corroboration
The second point of error contends the “conviction for aggravated robbery is void
Page 8
8
because it was had upon accomplice witness testimony that was not corroborated at trial by
other evidence that tended to connect appellant to the crime[.]” The Texas Code of Criminal
procedure provides:
A conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the
offense committed; and the corroboration is not sufficient if it merely shows
the commission of an offense.
T
EX
. C
ODE
C
RIM
. P
ROC
. art. 38.14. An accomplice witness is a discredited witness because
his or her testimony alone cannot furnish the basis for the conviction; no matter how
complete a case may be made out by an accomplice witness or witnesses, a conviction is not
permitted unless he or they are corroborated. See Walker v. State, 615 S.W.2d 728, 731
(Tex. Crim. App. 1981).
The test for weighing the sufficiency of corroborative evidence is to eliminate from
consideration the testimony of the accomplice witness and then examine the testimony of
other witnesses to ascertain if there is evidence which tends to connect the accused with the
commission of the offense. See Reed v. State, 744 S.W.2d 112, 125 (Tex. Crim. App. 1988).
If the testimony of Cheeks is eliminated, the identification of appellant as the robber
by both the complainant and Arhaja stands as the non-accomplice testimony against
appellant. The jury may believe or disbelieve all or any part of a witness's testimony. See
Sharp, 707 S.W.2d at 614. Arhaja’s eyewitness account and subsequent identification of
appellant as one of the robbers is sufficient evidence to connect appellant with the
commission of the instant offense. Point of error number two is overruled.
III. The Handguns
Points of error five and six contend the trial court erred in admitting into evidence
State’s exhibits 10 and 11, two different firearms, where the evidence showed that only one
firearm was used in the commission of the offense, because such evidence was not
Page 9
9
admissible under Texas Rules of Evidence 401, 402, or 403.
A. Preservation of Error
The State responds the error, if any, has been waived because appellant did not object,
thereby waiving any error, and further, the exhibits were never admitted into evidence. The
record belies these propositions. At trial, the following colloquy occurred:
The State: I would offer into evidence Judge State’s Exhibit Number
10 and State’s Exhibit Number 11. Let the record reflect that I’m tendering to
opposing counsel.
Mr. Alexander (counsel for co-defendant): That’s all right. Judge I
have the same objection as to 11 hadn’t been tied in, no predicate, no
relevance. At this point and time it’s prejudicial. It’s a gun waving at this
point. Judge I object to that.
The State: May I respond?
The Court: Mr. Gonzalez
Mr. Gonzalez (counsel for appellant): I’ll adopt his objection your
honor.
The Court: Let the record show. What says the State?
The State: Well the complainants have both stated that it was a black
gun with a longer barrel and it was a revolver. I’ve given the choice to the
complainants. They’ve looked at the gun and pointed it out. I believe I can
further in evidence –
The Court: That’s sufficient Counsel.
They’re both received and
admitted into evidence. State’s exhibit 10 and 11. (emphasis supplied)
Page 10
10
The record establishes the firearms were admitted into evidence and that appellant objected
to their admission. Therefore, the error, if any, has been preserved for appellate review.
B. Admissibility
Cheeks provided the police with State’s exhibit 11, which was hidden in the car
identified by Arhaja as the vehicle into which she saw the two suspects escape. Cheeks
stated State’s exhibit 11 was the firearm used in the commission of the offense.
Rule 401 defines relevancy for purposes of admission or exclusion under Rule 402.
“Relevant evidence” means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence. Rule 402 provides that “all relevant evidence is
admissible, except as otherwise provided by Constitution, by statute, by these rules, or by
other rules prescribed pursuant to statutory authority.
Evidence which is not relevant is
inadmissible.”
Evidence tending to affect the probability of the truth or falsity of a fact in issue is
logically relevant. See Montgomery v. State, 810 S.W.2d 372, 386 (Tex. Crim. App.
1991)(on rehearing). The court has broad discretion in determining the admissibility of
evidence, and its ruling will not be disturbed on appeal absent a clear abuse of discretion. See
Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991).
State’s exhibit 11 was identified as the firearm used in the robbery; therefore it is
directly relevant to the instant offense. Although appellant contends the State failed to show
this was the “robbery gun,” this does not affect the admissibility. Even if it was not the
robbery firearm, the introduction of a weapon submitted as being similar to the one used in
the commission of the crime is admissible as demonstrative evidence to aid the jury in
understanding oral testimony adduced at trial. See Simmons v. State, 622 S.W.2d 111,
113-14 (Tex. Crim. App. [Panel op.] 1981); Fletcher v. State, 902 S.W.2d 165, 167 (Tex.
Page 11
2
Texas Rule of Evidence 403 is essentially the same as its federal counterpart. Texas Rules of
Evidence Handbook 213 (3d ed. 1998).
11
App.—Houston [1st Dist.] 1995, pet. ref'd); Jackson v. State, 772 S.W.2d 459, 466 (Tex.
App.—Beaumont 1989, no pet.).
It is within the trial court's discretion to admit into
evidence a type of weapon or instrument similar to that used in the commission of an offense.
Simmons, 622 S.W.2d at 113. Therefore, State’s exhibit 11 was admissible under Rules 401
and 402.
C. Rule 403
The Court of Criminal Appeals favors “admission of relevant evidence and implies
a presumption that relevant evidence will be more probative than prejudicial.” See generally
T
EX
. R. E
VID
. 403. In Brimage v. State, 918 S.W.2d 466, 505 (Tex. Crim. App. 1994), cert.
denied, 519 U.S. 838, 117 S.Ct. 115, 136 L.Ed.2d 66 (1996), the Court of Criminal Appeals
held relevant evidence, which is not inflammatory or prejudicial and assists the jury in
deciding a case is admissible. The court has also held that Rule 403 requires exclusion of
evidence only when there exists a clear disparity between the degree of prejudice of the
offered evidence and its probative value. See Joiner v. State, 825 S.W.2d 701, 708 (Tex.
Crim. App.1992) and Brimage, 918 S.W.2d at 506.
In Old Chief v. United States, 117 S.Ct. 644, 650 (1997), the Court considered the
admissibility of evidence under Rule 403:
2
The principal issue is the scope of a trial judge's discretion under Rule 403,
which authorizes exclusion of relevant evidence when its "probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence." F
ED
. R. E
VID
. 403. Old
Chief relies on the danger of unfair prejudice.
The term "unfair prejudice," as to a criminal defendant, speaks to
the capacity of some concededly relevant evidence to lure the factfinder
into declaring guilt on a ground different from proof specific to the
Page 12
12
offense charged. See generally 1 J. Weinstein, M. Berger, & J. McLaughlin,
Weinstein's Evidence, ¶ 403[03] (1996) (discussing the meaning of "unfair
prejudice" under Rule 403). So, the Committee Notes to Rule 403 explain,
“'Unfair prejudice' within its context means an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an
emotional one.” Advisory Committee's Notes on Fed. Rule Evid. 403, 28
U.S.C.App., p. 860. (footnote omitted)(emphasis supplied)
The admission of State’s exhibit 11 was not the type of evidence to “lure the
factfinder into declaring guilt on a ground different from proof specific.” The weapon was
identified as the one used in the robbery, or at least similar to the one the complainant was
beat about the head with. The evidence was not more prejudicial than probative. Further,
the court's ruling on a rule 403 objection will only be reversed for a clear abuse of discretion.
See Matamoros v. State, 901 S.W.2d 470, 476 (Tex. Crim. App. 1995). Therefore, State’s
exhibit 11 was admissible under Rule 403.
D. Admissibility of State’s Exhibit 10
Because State’s exhibit 11 was identified as the firearm used in the robbery, State’s
exhibit 10 was not admissible as a similar weapon. See generally, Montgomery, 810 S.W.2d
at 386. Having found error in the admission of State’s exhibit 10, we must address whether
appellant was harmed by the trial court’s error.
In determining whether appellant was harmed, we apply the standard set out in Texas
Rule of Appellate Procedure 44.2(b) to non-constitutional errors. Under Rule 44.2(b),
appellant must show that a substantial right was affected. A substantial right is affected
when the error had a substantial and injurious effect or influence in determining the jury’s
verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A criminal
conviction should not be overturned for non-constitutional error if the appellate court, after
examining the record as a whole, has a fair assurance that the error did not influence the jury,
or had but a slight effect. See Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App.
Page 13
13
1998).
Appellant claims he was harmed not by the admission of either firearm individually,
but by the admission of two firearms. Appellant asserts that because two firearms were
admitted into evidence, the jury could have concluded that appellant also used a firearm
during the commission of the offense. The record does not support appellant’s assertion.
The State used both firearms twice during its case in chief. The first time, the State
showed both weapons to the complainant and asked if either weapon looked like the one used
in the offense. The complainant responded that State’s exhibit 10 looked like the firearm,
but the gun used in the offense had a shorter barrel than State’s exhibit 10. The complainant
was subsequently asked to identify “the man without the gun.”
The complainant then
identified appellant. The second time the State used both weapons was when the prosecutor
asked Officer Clement to testify as to how she recovered each weapon. Officer Clement did
not testify that both weapons had been used during the offense.
During Darlene Cheeks’ testimony, the State showed her State’s exhibit 11 and she
testified that the firearm belonged to appellant’s co-defendant. She further testified that
when appellant and the co-defendant left the car to commit the robbery, the co-defendant
carried the gun and when they returned to the car, the co-defendant was carrying the gun.
She never testified that appellant carried any weapon. During closing argument, the State
did not refer to either weapon. Further, the State did not lead the jury to believe that two
firearms had been used in the commission of the offense. Having examined the record as a
whole, we conclude the improper admission of State’s exhibit 10 did not influence the jury.
The fifth and sixth points of error are overruled.
The judgment of the trial court is affirmed.
Page 14
3
Former Judge Charles F. Baird sitting by assignment.
14
/s/
Charles F. Baird
Justice
Judgment rendered and Opinion filed March 30, 2000.
Panel consists of Justices Edelman, Wittig and Baird.
3
Do Not Publish — T
EX
.R.A
PP
.P. 47.3(b).

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NUMBER 13-01-584-CR



COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS



CORPUS CHRISTI B EDINBURG



DANIEL DALLAS HAWKINS, JR. Appellant,



v.



THE STATE OF TEXAS, Appellee.





On appeal from the 252nd District Court of Jefferson County, Texas



O P I N I O N



Before Justices Hinojosa, Yañez, and Baird[1]

Opinion by Justice Baird

Appellant was charged by indictment with the offense of possession of a controlled substance, namely cocaine. The indictment also alleged multiple prior felony convictions for the purpose of enhancing the range of punishment. A jury convicted appellant of the charged offense. Following appellant=s plea of true, the jury found the enhancement allegations true, and assessed punishment at eighteen years confinement in the Texas Department of Criminal Justice--Institutional Division. Appellant raises six points of error. We affirm the conviction, but reverse and remand for a new trial on punishment.

Parts I, II, III, and IV of this opinion are not designated for publication.

I. Sufficiency of the Evidence.

The third point of error contends the trial judge erred in denying appellant=s motion for instructed verdict. The denial of such a motion is treated as a sufficiency challenge for the purposes of appellate review. Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993).

A. Standard of Appellate Review.

In determining whether the evidence is legally sufficient to sustain the conviction, we employ the standard of Jackson v. Virginia and ask Awhether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.@ Jackson v. Virginia, 443 U.S. 307, 319 (1979). The standard applies to both direct and circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154, 158 (Tex. Crim. App. 1991), overruled in part on other grounds, Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). In possession of controlled substance cases, two evidentiary requirements must be satisfied: first, the State must prove the defendant exercised actual care, control and management over the contraband; and, second, that he had knowledge that the substance in his possession was contraband. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App.1995). The mere presence of the accused at a place where contraband is located does not make him a party to joint possession, even if he knows of the contraband's existence. Oaks v. State, 642 S.W.2d 174, 177 (Tex. Crim. App. 1982). Whether the theory of prosecution is sole or joint possession, the evidence must affirmatively link the accused to the contraband in such a manner, and to such an extent that a reasonable inference may arise that the accused knew of the contraband's existence and that he exercised control over it. Travis v. State, 638 S.W.2d 502, 503 (Tex. Crim. App. 1982). When an accused is not in exclusive possession and control of the place where contraband is found, it cannot be concluded he had knowledge or control over the contraband unless there are additional independent facts and circumstances that affirmatively link him to the contraband. Brown v. State, 911 S.W.2d 744, 748 (Tex. Crim. App. 1995). Similarly, when the contraband is not found on the accused's person, or it is not in the exclusive possession of the accused, additional facts and circumstances must link the accused to the contraband. Menchaca v. State, 901 S.W.2d 640, 651 (Tex. App.BEl Paso 1995, pet. ref'd).

The affirmative links doctrine is the appropriate means of applying the Jackson rationality standard of appellate review. Jackson, 443 U.S. at 319; Martinets v. State, 884 S.W.2d 185, 188 (Tex. App.BAustin 1994, no pet.). Various factors may be considered when determining whether the evidence is sufficient to affirmatively link the accused with the contraband.[2] The number of the factors is not as important as the logical force the factors have in establishing the elements of the offense. Jones v. State, 963 S.W.2d 826, 830 (Tex. App.BTexarkana 1998, pet. ref'd); Hurtado v. State, 881 S.W.2d 738, 743 (Tex. App.BHouston [1st Dist.] 1994, pet. ref'd); Gilbert v. State, 874 S.W.2d 290, 298 (Tex. App.BHouston [1st Dist.] 1994, pet. ref'd). While affirmative links may be proved by circumstantial evidence, proof amounting to a strong suspicion or even a probability will not suffice. Grant v. State, 989 S.W.2d 428, 433 (Tex. App.BHouston [14th Dist.] 1999, no pet.) (citing Dubry v. State, 582 S.W.2d 841, 844 (Tex. Crim. App. [Panel Op.] 1979)). Ultimately, the question of whether the evidence is sufficient to affirmatively link the accused to the contraband must be answered on a case by case basis. Whitworth v. State, 808 S.W.2d 566, 569 (Tex. App.BAustin 1991, pet. ref'd).

B. Factual Summary.

In the instant case, the record evidence reveals the following: On the date of the alleged offense, Beaumont Police Officer Scott Lisenby traveled to a residence in search of an individual. Lisenby knocked on the front door of the residence, and appellant opened the door holding a crack pipe and pusher.[3] Lisenby also noticed a large bulge in appellant=s right front pocket. Upon seeing Lisenby, appellant slammed the door, and Lisenby could hear appellant running through the residence. Unable to enter the residence because the door was locked, Lisenby proceeded around the residence, and saw appellant exit through the side door. Lisenby detained appellant in the threshold of that doorway. From that location, Lisenby looked into the residence and saw on a kitchen counter a crack pipe, pusher and a loaded gun. Lisenby handcuffed appellant. While securing the weapon, crack pipe and pusher, Lisenby observed a substance he believed to be crack cocaine.[4] Lisenby also searched appellant=s wallet and found a plastic bag containing what Lisenby believed to be cocaine residue.[5] Lisenby testified two other males were in the residence at the time of appellant=s arrest: one man was in the bedroom; the second was young and mentally handicapped, and was sitting on the couch. Both of these individuals denied ownership of the gun.

Melissa Taylor, a chemist with the Jefferson County Regional Crime Laboratory, analyzed the contents of State=s Exhibit 6, and determined the exhibit contained 0.008 grams of crack cocaine. Charlyn Voight, another chemist with the same laboratory, examined the crack pipe which testified positive for cocaine residue. She also examined the plastic bag seized from appellant=s wallet, State=s Exhibit 9, and testified the exhibit contained cocaine residue.

Appellant offered the following testimony during his case-in-chief: Ray Brown testified he was in the residence when Lisenby knocked on the door. Brown testified that he did not see a crack pipe and pusher in appellant=s hand when he opened the door. Further, Brown did not see a gun. Brown testified that after appellant opened the door, he Aclosed it right back and left out through the back door.@ Brown said there was no young mentally handicapped man in the house. Brown further testified that he did not see cocaine, a crack pipe, pusher or gun on the kitchen counter. On cross-examination, Brown admitted being on felony probation for delivery of cocaine.

Rita Jones testified that she too had been at the residence on the date alleged in the indictment. She stated there was no young mentally handicapped male at the residence. Jones testified that while in the residence, she did not see any cocaine, a crack pipe or a gun. As Jones was driving away, a police vehicle pulled up, two officers approached the residence, used their night sticks to knock on the front door, and said: AIf you don=t come open this door I=m going to kick it down.@ On cross-examination, Jones stated that she had heard that appellant used crack cocaine. Jones also admitted having a prior conviction for theft and being on probation for delivery of crack cocaine.[6]

C. Analysis.

As noted above, the question of whether the evidence is sufficient to affirmatively link the accused to the contraband must be answered on a case by case basis. Whitworth, 808 S.W.2d at 569. In the instant case, the following factors tend to affirmatively link appellant to the contraband: the contraband was in plain view; appellant was not the owner of the premises, but was an invited guest in the residence where the contraband was found; the contraband was conveniently accessible to, and found in close proximity to appellant; appellant possessed other contraband when arrested; when opening the door, appellant possessed paraphernalia to use the contraband; opening and then quickly closing the door upon seeing Lisenby indicated a consciousness of guilt; and, appellant attempted to flee out the side door of the residence.

On the other hand, the following factors do not affirmatively link appellant to the contraband: appellant was not found with a large amount of cash; there was no strong residual odor of the contraband; appellant=s physical condition did not indicate the recent consumption of crack cocaine; beyond the closing of the door upon seeing Lisenby and appellant=s attempted flight, there were no furtive gestures; beyond his close proximity and convenient access, appellant had no special connection to the contraband; the occupants of the premises, both Brown and Jones, provided testimony which conflicted with the Lisenby=s testimony, but otherwise did not provide testimony which conflicted with each other; appellant made no incriminating statements connecting himself to the contraband; the quantity of the contraband was very small; and, there is no evidence the residence was a suspicious place or that appellant was there under suspicious circumstances.

Under the affirmative links standard of review, the number of links is not as important as the logical force the factors have in establishing the elements of the offense. Jones, 963 S.W.2d at 830; Hurtado, 881 S.W.2d at 743; Gilbert, 874 S.W.2d at 298. When the factors which affirmatively link appellant to the contraband are viewed in the light most favorable to the prosecution, we hold a rational trier of fact could have found beyond a reasonable doubt that appellant exercised actual care, control and management over the contraband, and did so with the knowledge that the substance was contraband. King, 895 S.W.2d at 703. Consequently, we hold the trial judge did not err in denying appellant=s motion for instructed verdict. The third point of error is overruled.

II. Jury Arguments.

The first point of error contends the trial judge erred in several respects during the State=s jury arguments. We read appellant=s brief as raising two separate claims: first, certain arguments were improper because they were outside the record; and, second, other arguments were improper because they invaded the province of the jury.

A. Permissible Jury Argument.

To be permissible, the State's jury argument must fall within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) plea for law enforcement. Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990); Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). It has long been established that a prosecutor cannot use closing argument to place matters before the jury that are outside the record and prejudicial to the accused. Everett v. State, 707 S.W.2d 638, 641 (Tex. Crim. App. 1986). Arguments referencing matters that are not in evidence and may not be inferred from the evidence are usually "designed to arouse the passion and prejudices of the jury and as such are highly inappropriate." Borjan, 787 S.W.2d at 57. Counsel is allowed wide latitude in drawing inferences from the evidence so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith. Bigley v. State, 831 S.W.2d 409, 414 (Tex. App.BAustin 1992), aff'd, 865 S.W.2d 26 (Tex. Crim. App. 1993).

B. Arguments Outside The Record.

Appellant argues that five separate arguments were outside the record. We will address these seriatim.

i.

The following argument was made by the State after summing up the trial testimony: AI submit to you that that=s what goes on [at the residence]. They smoke crack. They sell crack. And that=s B@ Appellant=s objection was overruled by the trial judge. We find this argument was a reasonable deduction from the evidence in light of the testimony developed at trial, namely that both Brown and Jones were on community supervision for delivery of cocaine, and Jones having heard that appellant consumed cocaine. See id. Therefore, the trial judge did not err by overruling appellant=s objection.

ii.

The following argument was made by the State describing the conduct of appellant closing the door immediately upon seeing Lisenby: AWhat did he do next? Well, he ran to the back of the house and he threw the stuff down on the counter. . . .@ Appellant=s objection was overruled by the trial judge. We find this argument was a reasonable deduction from the evidence in light of Lisenby=s testimony that the crack pipe and pusher recovered from the counter were the same as those held by appellant when he opened the door. See id. Therefore, the trial judge did not err by overruling appellant=s objection.

iii.

The following argument was made by the State when apparently holding up State=s Exhibit 9, which was the plastic bag containing cocaine residue seized from appellant=s wallet: AAnd it=s a bag with some very little of -- if anything is left in here -- I see some residue in there.@ Appellant=s objection was sustained by the trial judge, who also instructed the jury to disregard the argument. The trial judge denied appellant=s motion for mistrial.

The State may use opinion argument if it is based on evidence, and not unsworn testimony. Allridge v. State, 762 S.W.2d 146 (Tex. Crim. App. 1988). As noted above, Charlyn Voight testified State=s Exhibit 9, contained cocaine residue. Therefore, we hold the State=s argument was permissible. Since the argument was proper, the trial judge did not err in denying appellant=s motion for mistrial. And even if the argument was improper opinion, any possible error was cured by the court's instruction to disregard. Bigley, 831 S.W.2d at 415.

iv.

Immediately after the trial judge denied appellant=s motion for mistrial following the argument complained of in part iii, supra, the prosecutor stated: ABut you all can look at [State=s Exhibit 9]. You can ask for it if you want to.@ Appellant objected and the trial judge overruled the objection stating: AHe can ask the jury to look at this.@ We hold this was a correct statement of the law. Article 36.25 of the Code of Criminal Procedure provides: AThere shall be furnished to the jury upon its request any exhibits admitted as evidence in the case.@ Tex. Code Crim. Proc. Ann. art. 36.25 (Vernon 1981). Therefore, the trial judge did not err in overruling appellant=s objection.

v.

The State mentioned in its argument a discussion that occurred at voir dire, but not during the trial. The trial judge sustained appellant=s objection, instructed the jury to disregard the argument, and denied appellant=s motion for mistrial. We hold this argument was improper because statements and comments made during voir dire do not constitute evidence. However, we further find that since the argument was not Aextreme or manifestly improper, violative of a mandatory statute, [nor] injected new facts harmful to the accused,@ the trial judge=s instruction to disregard the argument was sufficient to cure the error. Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992); Reed v. State, 991 S.W.2d 354, 362-63 (Tex. App.BCorpus Christi 1999, pet. ref=d). Consequently, the trial judge did not err in denying appellant=s motion for mistrial.

C. Arguments Invading Province Of The Jury.

Appellant cites three separate arguments as being improper because they invaded the province of the jury. We reject these claims for two reasons. First, appellant did not lodge an objection on this basis in the trial court. Therefore, this argument is not preserved for our review. Coffey v. State, 796 S.W.2d 175, 179 (Tex. Crim. App.1990) (a point of error that does not comport with the trial objection presents nothing for review). Second, the trial judge sustained each of these objections and instructed the jury to disregard the arguments. Consequently, any error stemming from the arguments was cured. Cooks, 844 S.W.2d at 727; Reed, 991 S.W.2d at 362-63. Consequently, the trial judge did not err in denying appellant=s motions for mistrial.

The first point of error is overruled.

III. Evidentiary Rulings.

The second point of error contends the trial judge erred in admitting State=s Exhibits 9 and 12 after the State had rested. These two exhibits were discussed at length during the State=s case-in-chief. However, the prosecutor failed to offer the exhibits during that portion of the trial. Immediately after resting, but before appellant moved for an instructed verdict, the State moved to reopen Ato offer these exhibits that I didn=t actually tender into evidence before I rested.@ The trial judge opted not to rule upon that request until appellant=s motion for instructed verdict could be heard. The trial judge ultimately overruled that motion. Defense counsel then made an opening statement, tendered the testimony of Brown and Jones, and rested. The jury was then retired, and the charge was discussed. Then the prosecutor offered State=s Exhibits 9 and 12 into evidence. Defense counsel objected to the exhibits on the basis that the offer was untimely, and that the proper predicate and chain of custody had not been established. The trial judge overruled those objections, and admitted the exhibits. The jury returned and the trial judge immediately read the final version of the jury charge.

Article 36.02 of the Code of Criminal Procedure grants to the trial court the power to "allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice." Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 1989). The decision of whether to re-open a case lies within the sound discretion of the trial court. Zayas v. State, 972 S.W.2d 779, 792 (Tex. App.BCorpus Christi 1998, pet. ref'd). The substance of the evidence is an important factor in determining whether an abuse of discretion occurred. Wright v. State, 644 S.W.2d 525, 527 (Tex. App.BCorpus Christi 1982, no pet.).

Appellant argues permitting the State to reopen was an abuse of discretion because A[e]ven though [a]ppellant had a chance to cross-examine [Voight], his right to probe further into the admissibility of the evidence was thwarted.@ App. br. pg. 14. The State responds that the judge Awas not asked to allow additional testimony but only to tender into evidence two exhibits that were identified and exhaustively discussed through examination and cross-examination by at least two witnesses.@ State=s br. pg. 17. We agree. We hold the trial judge=s decision to permit the State to offer exhibits 9 and 12, and to admit those exhibits was within the zone of reasonable disagreement, and we will not intercede. Reyes v. State, 69 S.W.3d 725, 735 (Tex. App.BCorpus Christi 2002, pet. ref=d). Because there was no abuse of discretion, we overrule the second point of error.

IV. Comment On Weight Of Evidence.

The fourth point of error contends the trial judge commented on the weight of the evidence. Specifically, appellant complains of the following italicized portion of an instruction within the jury charge:

Our law provides that a person commits an offense if he knowingly or intentionally possesses a controlled substance.



Cocaine is a controlled substance listed in Penalty Group I of the Texas Controlled Substance Act. The offense is a felony if the quantity possessed, including any adulterants and dilutants, has an aggregate weight of less than 1 gram.[7]



Appellant argues that the instruction Aas to what a felony is and how much constitutes a felony@ is a comment on the weight of the evidence. App. br. pg. 19.

This precise argument has been rejected by this Court. In Smith v. State, the appellant complained the trial court erred by informing the jury of the degree of the offense. Smith v. State, 761 S.W.2d 546, 548 (Tex. App.BCorpus Christi 1988, no pet.). The court held that the degree of the offense is "merely a part of the general definition and description of that offense as could properly be set forth in the jury charge." Id. at 549. Consistent with the holding in Smith, we hold it was not error to include the above italicized instructions in the jury charge. The fourth point of error is overruled.

V. Improper Prosecutorial Argument On Parole.

The fifth point of error relates to the prosecutor=s argument at the punishment phase of the trial. As required by article 37.07 of the Code of Criminal Procedure, the trial judge instructed the jury on the law of parole. See Tex. Code Crim. Proc. Ann. art. 37.07, ' 4 (Vernon 1981 & Supp. 2003). And the prosecutor made the following complained of argument:

One very important thing to remember has already been alluded to by [defense counsel] and that is the page on the B about good time credit and parole. We can=t tell you how the Board of Prisons and Parole is going to handle this particular inmate and when he=s going to be released.



The only thing we can tell you for sure because it=s the only thing we know for sure is that he will do B whatever your sentence is, you know he will do at least a quarter. When his time B plus good time credit equals a quarter, okay, so it would be less than a quarter, but that=s what we know for sure, okay.



I hope that makes sense to you. It=s pretty clearly written and explained here. But that=s the one thing that we can tell you for sure, okay. That when his good time and credit B his good time and actual time reaches one quarter of whatever you send back is what he will actually serve before he=s released back into your community.



DEFENSE COUNSEL: Your Honor, I object to that. That is a misstatement of the law.



THE COURT: Sustained.



DEFENSE COUNSEL: Ask the jury to disregard that statement.



THE COURT: The jury is so instructed.



DEFENSE COUNSEL: And, again, your Honor, I move for a mistrial.



THE COURT: That=s denied [defense counsel].



THE PROSECUTOR: I am not sure what I misstated, your Honor.



THE COURT: You said that he would be released back into the community. That=s improper, [prosecutor].



THE PROSECUTOR: That was a misstatement. I did not mean to say that. That is when he will be come eligible to be released. I=m sorry for that. That=s when he becomes eligible. That=s what you know for sure, okay.



Our law could not be more clear that a prosecutor must avoid applying the parole law specifically to the defendant on trial. Perez v. State, 994 S.W.2d 233, 237 (Tex. App.BWaco 1999, no pet.); Taylor v. State, 911 S.W.2d 906, 911 (Tex. App.BFort Worth 1995, pet. ref'd). Consequently, we hold that the complained of portion of the prosecutor's argument was improper.

Generally, improper jury argument may be cured by an instruction to disregard, unless "in light of the record as a whole it was extreme or manifestly improper, violative of a mandatory statute, or injected new facts harmful to the accused." Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992); Reed v. State, 991 S.W.2d 354, 362-63 (Tex. App.BCorpus Christi 1999, pet. ref=d). Article 37.07, Sec. 4, subsections (c) and (d) address the mandatory nature of the statute. See Tex. Code Crim. Proc. Ann. art. 37.07, ' 4 (c), (d) (Vernon Supp. 2003). The final portion of the instruction required by subsection (c) states:

You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.



Tex. Code Crim. Proc. Ann. art. 37.07, '4(c) (Vernon Supp. 2002). Subsection (d) of that section provides: AThis section does not permit the introduction of evidence on the operation of parole and good conduct time laws.@ Tex. Code Crim. Proc. Ann. art. 37.07, ' 4(d). In light of the above italicized portions, we hold the State=s argument violated a mandatory statute. Therefore, we hold the trial court=s instruction to disregard the argument did not cure the error.

Having determined the error was not cured, we must conduct a harm analysis. Wead v. State, No. 13-00-015-CR, 2002 Tex. App. LEXIS 8058, at *11 (Tex. App.BCorpus Christi, Nov. 13, 2002, no pet.). To gauge the harm resulting from this type of error, we employ Rule 44.2(b). Perez, 994 S.W.2d at 237. Under that rule, error that does not affect a substantial right must be disregarded. A substantial right is effected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)). If the error had no influence or only a slight influence on the verdict, it is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). However, if the reviewing court is unsure whether the error affected the outcome, the court should treat the error as harmful, i.e., as having a substantial and injurious effect or influence in determining the jury's verdict. Webb v. State, 36 S.W.3d 164, 182 (Tex. AppBHouston [14th Dist.] 2000, pet. ref=d). Neither party has the burden of proof under rule 44.2(b). Id. Rather, the appellate court will examine the record for purposes of determining harm. Id.

Applying this rule in the context of non-constitutional jury argument error, we apply the three factors recognized in Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998): (1) severity of the misconduct; (2) measures adopted to cure the misconduct; and, (3) certainty of conviction absent the misconduct. Id. In the instant case, the misconduct was severe. As noted above, the argument violated a mandatory statute. Moreover, this was not an isolated incident, but a repeated reference of how the law of parole would be applied to appellant, and how much time he would serve Abefore he=s released back into your community.@

Additionally, we may consider the additional acts of misconduct when conducting our harm analysis. Peak v. State, 57 S.W.3d 14, 19 (Tex. App.BHouston [14th Dist.] 2001, no pet.) (cumulative effect of improper argument is part and parcel of assessing the severity of the prosecutorial misconduct) (citing United States v. Friedman, 909 F.2d 705, 709 (2nd Cir. 1990); Floyd v. Meachum, 907 F.2d 347, 355 (2nd Cir. 1990)). The remainder of the prosecutor=s argument was filled with improper comments. To our count, the trial judge had sustained four objections prior to the complained of argument. These improper arguments resulted from arguments outside the record, and on how parole was applied to appellant in an earlier case. Arguments outside the record are highly inappropriate. Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990). Finally, even after the complained of argument, the prosecutor made yet another improper argument on a subject outside the record to which appellant objected and the trial judge instructed the jury to disregard.

We next consider the measures adopted to cure the misconduct. As noted above the trial judge instructed the jury to disregard. However, the instruction was nothing more than cursory, simply stating AThe jury is so instructed.@ Such a tepid instruction has limited curative effect. Compare Glauser v. State, 66 S.W.3d 307, 321 (Tex. App.BHouston [1st Dist.] 2000, pet. ref=d.) (recognizing Astrong instruction to disregard@). This is especially true in the context of this case where the prosecutor forced the trial judge to give four prior instructions before the complained of argument, and an additional instruction following the argument.

The State argues the fact that the prosecutor apologized for the argument militates toward a lack of harm. However, we reject this argument for two reasons. First, our law is clear that Aarguments of counsel cannot substitute for instructions by the court.@ Taylor v. Kentucky, 436 U.S. 478, 488‑89 (1978); Hutch v. State, 922 S.W.2d 166, 174 (Tex. Crim. App. 1996). Secondly, considering an apology as an integral part of a harm analysis would have the effect of permitting a prosecutor to both create and cure error. This would wholly undermine any meaningful harm analysis, and encourage prosecutors to repeat the error with impunity.

Finally, we consider the certainty of conviction absent the misconduct. However, since this argument occurred at the punishment phase, we must consider the certainty of the sentence. The instant offense was for possession of less than one gram of cocaine, specifically 0.008 grams. Normally, such an offense would be a state jail felony. However, appellant=s prior felony convictions caused the range of punishment to be that of a second degree felony. Tex. Pen. Code Ann. ' 12.42(a)(2) (Vernon Supp. 2003). The jury assessed punishment at eighteen years B the upper end of that range. In light of the very small amount of contraband in this case, we cannot say the severity of the punishment was certain without the prosecutor=s improper argument.

When the three factors of Mosley are fairly considered, we find the complained of argument was part of a studied pattern of improper remarks throughout the prosecutor=s summation resulting in severe misconduct. The curative action taken by the trial judge was tepid and ineffective in light of the severity of the misconduct. Finally, the near-maximum sentence militates toward a finding of harm. Consequently, we cannot say with confidence that the error stemming from the improper argument had no influence or only a slight influence on the punishment verdict. Johnson, 967 S.W.2d at 417. Therefore, we must treat the error as harmful. The fifth point of error is sustained.[8]

The trial court=s judgment of conviction is affirmed. However, because we sustain the fifth point of error, the judgment of the trial court is reversed as it relates to the sentence. This case is remanded to the trial court for a new trial on the issue of punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2003).







CHARLES F. BAIRD

Justice











Publish only the introductory paragraph and part V., of this opinion.

Tex. R. App. P. 47.2(b).



Opinion delivered and filed this

the 6th day of March, 2003.

[1] Former Court of Criminal Appeals Judge Charles F. Baird assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. ' 74.003 (Vernon 1998).

[2] Although not exclusive, the following is a list of the factors that may be considered:

1. Whether the contraband was in plain view or recovered from an enclosed place;

2. The accused was the owner of the premises or had the right to possess the place where the contraband was found;

3. The accused was found with a large amount of cash;

4. The contraband was conveniently accessible to the accused;

5. The contraband was found in close proximity to the accused;

6. A strong residual odor of the contraband was present;

7. The accused possessed other contraband when arrested;

8. Paraphernalia to use the contraband was in view, or found on the accused;

9. The physical condition of the accused indicated recent consumption of the contraband in question;

10. Conduct by the accused indicated a consciousness of guilt;

11. The accused attempted to flee;

12. The accused made furtive gestures;

13. The accused had a special connection to the contraband;

14. The occupants of the premises gave conflicting statements about relevant matters;

15. The accused made incriminating statements connecting himself to the contraband;

16. The quantity of the contraband; and,

17. The accused was observed in a suspicious area under suspicious circumstances.



Lassaint v. State, 79 S.W.3d 736, 740-41 (Tex. App.BCorpus Christi 2002, no pet.).



[3] A pusher was described as a multipurpose tool to facilitate the consumption and retention of crack cocaine when smoked.

[4] This substance was admitted into evidence as State=s Exhibit 6.

[5] This was admitted into evidence as State=s Exhibit 9.

[6] On cross-examination, Jones further testified that she and appellant had been involved in a relationship. That union produced one child.

[7] All emphasis added unless otherwise indicated.

[8] Having sustained this point of error, we need not address the sixth point of error.

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NUMBER 13-02-250-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG


WALTER CHARLES GIBSON, JR., Appellant,


v.



THE STATE OF TEXAS, Appellee.


On appeal from the Criminal District Court

of Jefferson County, Texas.


O P I N I O N


Before Chief Justice Valdez and Justices Rodriguez and Castillo

Opinion by Justice Castillo


A jury convicted appellant Walter Charles Gibson, Jr. of the second-degree felony offense of possession of a controlled substance. It sentenced him to twenty years imprisonment in the Institutional Division of the Texas Department of Criminal Justice and imposed a $10,000 fine. We reverse and remand. Without filing a motion for rehearing, the State filed a petition for discretionary review, arguing that this Court made an error of fact concerning the proceedings in the trial court. On review of the record, we sua sponte withdraw our opinion of August 5, 2003 and substitute the following opinion. See Tex. R. App. P. 50. The following is now our opinion.

I. ISSUES ON APPEAL

Represented by appointed appellate counsel, Gibson claims the State exercised its peremptory challenges of two jurors solely on the basis of race. Counsel certifies that four additional issues requested by Gibson do not present an arguable basis for reversal. See Anders v. California, 386 U.S. 738, 744-45 (1967).

II. APPLICABLE APPELLATE RULES

Gibson timely filed a notice of appeal on April 8, 2002. The rules of appellate procedure governing how appeals proceed in criminal cases were amended effective January 1, 2003. Generally, rules altering procedure do not fall within the prohibition in the Texas Constitution against retroactive application of laws that disturb vested, substantive rights. See Tex. Const. art. I, § 16; see also Ibarra v. State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999). Therefore, this Court applies the current rules of appellate procedure to this appeal. We may not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities. Tex. R. App. P. 44.3. We also are prohibited from affirming or reversing a judgment or dismissing an appeal if the record prevents the proper presentation of an appeal and can be corrected by the trial court. Tex. R. App. P. 44.4(a). Accordingly, we abated the appeal on July 21, 2003 and ordered a supplemental record to include, in compliance with rule 25.2(a)(2), the trial court's certification of Gibson's right of appeal. See Tex. R. App. P. 25.2(a)(2). We received a supplemental record on August 4, 2003 that includes the trial court's certification of Gibson's right of appeal. We now turn to the merits.

III. BATSON ANALYSIS

By two issues, Gibson challenges the trial court's determination that the State's reasons for exercising peremptory challenges against juror 11 and juror 15 were race neutral. Gibson asserts that the trial court's ruling violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and was erroneous under Batson v. Kentucky, 476 U.S. 79 (1986). The record provides the complete voir dire examination and exercise of peremptory challenges by the parties. The trial court acknowledged Gibson's Batson motion and found that Gibson had timely raised his challenge by objecting before the jury was sworn. After a hearing, the trial court denied Gibson's motion.

At trial, the State presented three witnesses. One eye-witness, a police officer, testified he observed Gibson during a routine traffic stop of a car in which Gibson was a passenger. The officer said he saw Gibson hide a plastic baggie between his seat and the console. The State also presented a videotape of the traffic stop. (1) Two other official witnesses testified to the chain of custody of the plastic baggie and a laboratory analysis of the contents as being cocaine. Gibson testified in his own defense. He denied the cocaine belonged to him.

A. The Burdens

The Equal Protection Clause prohibits the discriminatory use of peremptory challenges based on race. Id. at 96; see Tex. Code Crim. Proc. Ann. art. 35.261(a) (Vernon 1989). (2) A three-step burden-shifting analysis applies to an accused's race-based Batson challenge. First, the accused must make a prima facie showing of racial discrimination, which is a burden of production, thereby raising an inference that the prosecutor peremptorily struck panelists because of their race. Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999). Second, in recognition of the fact that peremptory challenges constitute a jury selection practice that permits invidious discrimination, the burden of production shifts to the prosecution to respond with a neutral explanation for the strike. Id.; Young v. State, 826 S.W.2d 141, 145 (Tex. Crim. App. 1991). If the prosecution offers a neutral explanation, the third step requires the trial court to decide if the accused proved that the challenged strike was not neutral. Ford, 1 S.W.3d at 693; Young, 826 S.W.2d at 145. The ultimate burden of persuasion in this third step remains with the accused, who must show, by reference to the context of the voir dire or other relevant facts, that the explanation offered by the prosecutor is not neutral or is a pretext. Purkett v. Elem, 514 U.S. 765, 767-68 (1995); Guzman v. State, 85 S.W.3d 242, 254 (Tex. Crim. App. 2002); Ford, 1 S.W.3d at 693.

A preponderance-of-the-evidence standard supplies the burden of proof in a Batson challenge. Williams v. State, 767 S.W.2d 872, 874 (Tex. App.-Dallas 1989, pet. ref'd) (en banc). The exercise of a peremptory challenge in a disparate manner on the basis of a single factor may support a claim of discriminatory intent. Esteves v. State, 849 S.W.2d 822, 824 n.2 (Tex. Crim. App. 1993) (3); Earhart v. State, 823 S.W.2d 607, 624 (Tex. Crim. App. 1991). Where the prosecutor offers only one reason for a challenged strike, the accused may discharge the burden of persuasion on a claim of disparate treatment on the basis of race to rebut the State's facially neutral explanation by showing that the State struck a panelist of one race but did not strike a panelist of a different race who presented the same reason. See Chamberlain v. State, 998 S.W.2d 230, 236 (Tex. Crim. App. 1999) (characterizing as "real rebuttal" in disparate-questioning Batson claim example "that no white venire member with similar views were ignored by the State."). A facially neutral explanation for striking a venire panelist may be suspect when the State does not strike persons with the same or similar characteristics. Doby v. State, 910 S.W.2d 79, 83 (Tex. App.-Corpus Christi 1995, pet. ref'd).

B. The Standard of Review

In an appeal involving a Batson challenge, we apply a clearly erroneous standard of review. Hill v. State, 827 S.W.2d 860, 865-66 (Tex. Crim. App. 1992) (plurality op.). A ruling is clearly erroneous when, after searching the record, we form the definite and firm conviction that a mistake has been made. Id. In reviewing the trial court's ruling on a disparate-treatment Batson claim, we do not determine whether the prosecutor's explanations were credible but, rather, whether the trial court's ruling was supported by the record and therefore not clearly erroneous. Purkett, 514 U.S. at 769; see Guzman, 85 S.W.3d at 255; see also Young, 826 S.W.2d at 146.

After a prosecutor gives nondiscriminatory reasons for striking minority panelists from the venire, the trial judge must determine whether the facially neutral explanations are contrived to avoid admitting acts of discrimination. Emerson v. State, 851 S.W.2d 269, 273 (Tex. Crim. App. 1993). This must be done because a prosecutor, although not intentionally discriminating, may try to find reasons other than race to challenge a minority juror, when race may be the primary factor in deciding to strike the juror. Id. The trial judge as supervisor of the voir dire is in a position to readily perceive discrepancies during the jury selection process. Id. Evaluation of the prosecutor's state of mind based on demeanor and credibility lies peculiarly within the province of the trial court. Id. The trial judge may not, however, accept at face value the specific reasons given by the prosecutor. Id. Disparate treatment alone does not lead necessarily to the conclusion that the offered explanation was a pretext. Doby, 910 S.W.2d at 83. Rather, something more may be needed to overcome the presumption that the trial court's ruling was correct. Id.
C. The Scope of Review

We examine the record to determine if the State met its burden of production to provide a neutral explanation for its challenge of the venire panelist in question. Wright v. State, 832 S.W.2d 601, 604 (Tex. Crim. App. 1992); Williams v. State, 804 S.W.2d 95, 102 (Tex. Crim. App. 1991). We review the record, including the voir dire examination, the prosecutor's explanations, and the appellant's rebuttal and impeachment evidence, in a light most favorable to the trial court's ruling. Id.; see Guzman, 85 S.W.3d at 245 (reviewing record in "mixed motives" challenge). We accord great deference to the trial court's ruling. Jasper v. State, 61 S.W.3d 413, 421-22 (Tex. Crim. App. 2001); see Guzman, 85 S.W.3d at 255 (remanding for hearing to permit trial court to determine role of gender, offered by prosecutor as one of several reasons for strike, in exercise of peremptory challenge). We determine, in light of the record, if the accused rebutted the prosecution's neutral explanation in such a manner that it can be inferred that the prosecutor engaged in purposeful discrimination. Williams, 804 S.W.2d at 101.

In its initial analysis of disparate-treatment Batson claims, the court of criminal appeals held that an accused, in meeting the burden of persuasion, was not required to make comparisons of the panelists at the trial level to have the evidence considered on appeal. Young, 826 S.W.2d at 146. Next, the court of criminal appeals examined an assertion of disparate treatment where the appellant "did not present the trial judge with any comparison, general or detailed, of unchallenged white vernirepersons and the black venirepersons who were struck." Vargas v. State, 838 S.W.2d 552, 556 (Tex. Crim. App. 1992), op. withdrawn and substitute opinion issued, 1992 Tex. Crim. App. LEXIS 173 (Sept. 16, 1992) ("Vargas I "). (4) The court of criminal appeals reaffirmed in Vargas I its holding in Young that to have comparison evidence considered on appeal, a defendant is not required to either: (1) "request that the trial judge make [a] finding upon a comparison analysis"; or (2) "offer in evidence testimony from jury selection supporting such an analysis." However, the Vargas I court distinguished evidence outside the voir dire record from jury selection testimony:

The comparison "evidence" upon which appellant relies is at least partly based upon the juror information cards, which were not mentioned or offered into evidence by either side. It is not proper for an appellate court reviewing a trial court's decision on a matter to rely upon information that was not admitted as evidence at the Batson hearing in the trial court. Second, to allow an appellate court to rely upon such information undermines the standard of review for a Batson issue which gives great deference to the trial court.

Id. The court of appeals had relied on the juror information cards to identify disparate treatment by the prosecutor. Id. The court of criminal appeals held that "[a]n appellate court may not reverse a trial court's finding based upon information that was not introduced into evidence or elicited before the trial judge during the voir dire." Id. at 557. Accordingly, the court went on to find that "the appellate record also reveals that some evidence of the kind relied upon by Appellant for comparison with the racially neutral explanations given by the prosecutor does appear in the record of jury selection." Id. The court remanded the case to the court of appeals for "reconsideration of Appellant's Batson complaint in a manner not inconsistent with this opinion." Id. On remand, the court of appeals did not consider the juror information cards in comparing the prosecutor's facially neutral explanation for treating two panelists of different races differently. Vargas v. State, 859 S.W.2d 534, 535 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd) ("Vargas II "). Rather, the court of appeals looked to the voir dire record to conclude:

There is nothing other than racial motive in this record, however, to explain the fact that a black paralegal, [juror A], was struck, while a white paralegal seated near the top of the venire, [juror B], was not struck.


Id. In reversing the trial court for Batson error, the court of appeals cited a concurring opinion in Vargas I :

If occupation were really at the heart of the prosecutor's objections to [juror A], then surely he would have struck [juror B] first. As [juror B] and [juror A] had the same offending occupation, the only remaining difference between [juror A] and [juror B] is race. Thus the prosecutor's reason for striking [juror A] was not racially neutral but pretextual to avoid admitting discrimination. Therefore, there is enough evidence in the record to prove the prosecutor exercised at least one of his peremptory challenges in violation of Batson.

Id. (quoting Vargas I, 838 S.W.2d at 560, Baird, J., Miller J., and Overstreet, J., concurring). The end result of Vargas I and Vargas II was that an accused could rely on a comparison analysis on appeal and was not required, to preserve a disparate-treatment Batson claim, to either: (1) request that the trial court consider a comparison analysis; or (2) offer evidence in support of the comparison analysis unless the information on which the appellant sought to rely was not presented to the trial court through testimony during jury selection. Vargas I, 838 S.W.2d at 557.

Next, the court of criminal appeals re-examined the error-preservation question in Ford. Ford, 1 S.W.3d at 693. Without discussing either Young or Vargas, the court of criminal appeals held in 1999 that an accused, to preserve a disparate-treatment Batson issue on appeal, must claim at trial that the prosecution disparately treated similarly situated panelists. Id. (citing Purkett, 514 U.S. at 769-70).

Thus, Gibson's Batson challenge requires that we determine the extent to which Purkett controls our analysis of the claimed error as well as the extent to which Ford overrules Young and Vargas. We turn to the record.

D. The Record

1. The Prima Facie Case

At the close of jury selection, the following colloquy took place between the trial court and defense counsel:

THE COURT: Now, you have a Batson challenge, [Defense Counsel]. Would you tell me the jurors that you challenge or believe the State struck for racial reasons? I'd like the number only, please, and I will take judicial notice that the Defendant is - the Defendant's race.


[DEFENSE COUNSEL]: Your Honor, that would go to Juror Number 6, 11, 14 and 15.


THE COURT: Thank you, sir.


Will the State give me a race neutral reason why you struck Juror Number 6. . . ?


[PROSECUTOR]: Judge, I struck [Juror 6] among other reason because he's a substance abuse counselor.


THE COURT: Okay.


[PROSECUTOR]: And he told us as much during voir dire.

The State contends on appeal that Gibson did not meet his burden of showing a prima facie case of discrimination in the prosecutor's exercise of the State's peremptory challenges, arguing that the record does not reflect either Gibson's race or that of the venire panelists. We disagree. A record of the relative races of the defendant and the challenged venire panelists is no longer required. See Hutchinson v. State, 86 S.W.3d 636, 639 n.2 (Tex. Crim. App. 2002) (noting that Batson challenges in criminal cases are not limited to venire panelists who share defendant's race).

Further, participants in voir dire have an opportunity to make visual observations. Wamget v. State, 67 S.W.3d 851, 858 (Tex. Crim. App. 2001) (per curiam) (quoting Mejia v. State, 616 A.2d 356, 362-63 & n.8 (Md. 1992)). Both sides are equally aware of the criteria involved in a race-based Batson challenge. Wamget, 67 S.W.3d at 858. Thus, when a party does not challenge the other side's factual conclusion, made on the record, that a particular venire panelist is a member of a racial group against whom the use of a discriminatory peremptory strike is alleged, the fact is deemed established. Id. Here, the State did not object at trial that Gibson had not met his burden to prove a prima facie case of racial discrimination in the State's peremptory challenges of the four identified jurors. Nor did the State object that the identified jurors are not members of a cognizable racial group. On this record, we find it deemed that the challenged jurors are members of a cognizable racial group. See Wamget, 67 S.W.3d at 858; see also Fletcher v. State, 848 S.W.2d 761, 763 (Tex. App.-Corpus Christi 1993, no pet.) (finding that prosecutor's statement regarding challenged juror's criminal history supported racially neutral explanation in absence of appellant's objection or controverting evidence).

Nonetheless, the trial court did take judicial notice of Gibson's race. Then, the trial court required the State to provide race-neutral explanations for striking the four jurors identified by defense counsel as the subjects of Gibson's race-based Batson motion. On hearing the explanations, the trial court denied Gibson's motion. Once the State offers an explanation for striking a contested panelist, and the trial court rules on the ultimate question of intentional discrimination, the issue of whether the defendant made a prima facie case of discrimination is moot and not subject to appellate review. See Malone v. State, 919 S.W.2d 410, 412 (Tex. Crim. App. 1996). By asking the prosecutor for race-neutral explanations for striking the challenged jurors, the trial court implicitly found that Gibson satisfied his burden of proving a prima facie case of race-based peremptory challenges. See id. Accordingly, we do not address the State's argument that Gibson did not meet his burden of showing a prima facie case of discrimination. See id.

2. The State's Explanations

Gibson's first issue addresses the prosecutor's peremptory challenge of juror 11 In response to questioning by the trial court, the State provided its reason for striking juror 11:

[PROSECUTOR]: Judge, I struck [Juror 11] because she had spoken up and said that she would require more than one witness to testify.


THE COURT: All right.


[DEFENSE COUNSEL]: Your Honor, in response to that, [Juror 7] stated the same thing, that he would need more evidence than one witness though he was not struck by the State.


THE COURT: All right. Can you answer that, please?


[PROSECUTOR]: I can, Judge. He qualified his answer - And we can go back to the record. But he qualified his record at one point and said, but if there is more evidence I would be okay. And, in fact, there is more evidence in this case.


I can't state strongly enough, Judge - I don't want to - We want to give Mr. Gibson a fair trial and if there's anything here that's not fair -


THE COURT: Well, that's what I'm trying to find out. You struck Number 11 for the reason you stated and did not strike Number 7 for the reason you stated; is that correct?


[PROSECUTOR]: That is correct with the caveat I just added.


* * *


THE COURT: Okay, I'm going to deny the Batson challenge. . . . He's given race neutral reasons. Yes, sir.


[DEFENSE COUNSEL]: Just as a request to clarify your ruling. Their reason for striking [Juror 11], that he needed more evidence and the similar and same reason [Juror 7] was not struck, is that - has he given a sufficient race neutral reason to strike [Juror 11]?


THE COURT: In my judgment he has. They're pre-emptory [sic] challenges and he's given a race neutral reason.


When challenged by defense counsel about the prosecutor's different treatment of juror 7 and juror 11, the State did not object that the two jurors are members of the same racial group. The prosecutor had the same opportunity to visually observe the two jurors during voir dire and correct any conclusions reached by defense counsel. See Wamget, 67 S.W.3d at 858. Accordingly, on this record we deem it established that juror 7 is a member of a different racial group than juror 11. See id. To decide otherwise would require a conclusion that the trial court, for no apparent reason, questioned the prosecutor regarding disparate treatment of two jurors who are members of the same racial group. We decline the State's invitation to do so.

3. The Voir Dire Context

The voir dire record shows several colloquies between the prosecutor and juror 11 and juror 7, beginning in the following context:

[PROSECUTOR]: . . . Let's talk about that. I took - Stephanie, my wife and I took a car trip this weekend. We took her car and she had a bunch of her stuff in the car and she had - we brought some magazines with us. That's what we like to do when we travel, okay. And I brought a couple of salt water fishing magazines and she's got these Women's Day magazines, all right. And they're around the car, you know. I intended to bring that Salt Water Sportsman with me, okay. I wanted to have that to read. That's what I like to read, okay. I didn't intend to have the Women's Day magazines with me, all right.


Did I knowingly possess those Women's Day magazines?


UNKNOWN JURORS: Yes.


[PROSECUTOR]: Of course I did. Of course I did. What about if I were to borrow her car and those magazines are still in there and I pick up some of my buddies for lunch, okay. They start ripping me on these magazines; what are you doing with these sewing magazines and stuff like that. Yet, I'm still in possession of those magazines; correct?


UNKNOWN JUROR: Yes.


[PROSECUTOR]: Of course I am.


One other thing, there is a belief on the street I think that if you can get rid of something - The first thing you said about possession was that if it was on your person. There is a belief that if you can -


[DEFENSE COUNSEL]: Your Honor, I'm going to object to a belief that's on the street unless it's submitted into evidence.


THE COURT: Overruled.


[PROSECUTOR]: There's a belief that if you can get something away from your person that somehow you don't possess that item anymore, okay.


[PROSECUTOR]: And under the individual facts and circumstances of a case, that may be so - maybe so.


[PROSECUTOR]: [Juror 11].


[JUROR 11]: Yes.


[PROSECUTOR]: You had a reaction to what I just said. So, what do you think?


[JUROR 11]: What is the question?


[PROSECUTOR]: About if - about the act of trying to get something or hiding something - getting rid of something.


[JUROR 11]: It's still yours. You have it. You still have it. It's still in your possession.


* * *

[PROSECUTOR]: Have any of y'all been held up before or assaulted? Unfortunately, a lot of things like that happen with only one witness. Of course, it's perfectly within the law.


Anybody on the first row think that, even though you believe him beyond a reasonable doubt, you want something else?


Anybody.


[JUROR 7]: I do.


[PROSECUTOR]: You feel like you would?


[JUROR 7]: I could believe in a man's testimony, if he's a policeman, but still people make mistakes. And I have to have a little more evidence.


[PROSECUTOR]: Okay. That's fine. I appreciate your honesty.


[PROSECUTOR]: Okay. Anybody on the second row feel like [Juror 7], you need some additional evidence?


[UNKNOWN JUROR]: I probably would.


[PROSECUTOR]: You think you would?


[UNKNOWN JUROR]: Yeah.


[PROSECUTOR]: [Juror 11]?


[JUROR 11]: Because he was not a eye-witness; correct?


[PROSECUTOR]: No. He's an eye-witness. He's an eye-witness.


[JUROR 11]: Okay. He's an eye-witness?


[PROSECUTOR]: Yes, ma'am. We'll talk about that in just one second.


[JUROR 11]: Oh, okay.


[PROSECUTOR]: We're not going to talk about it right now.


Thus, juror 7, juror 11, and an unknown juror responded to the prosecutor's question regarding their need for additional evidence if only one witness testified. They were the only panelists to do so. The record does not show any additional voir dire on the issue of eye-witness testimony.

Later in the voir dire, defense counsel elicited the following information from juror 7:

[DEFENSE COUNSEL]: Okay. [Juror 7], you stated that you may need more evidence than the testimony of one officer?


[JUROR 7]: Yes.


[DEFENSE COUNSEL]: If the Judge were to - At the end of this and you were picked and the Judge were to give you what is called the Charge and these are all of the items; that mere presence alone is not - is not sufficient to convict somebody and whatever law you're supposed to apply in this case; would you follow that law? Say you had no more evidence than what the officer stated or would you say, no, I'm going to need more evidence before I can vote?


[JUROR 7]: Well, you know what I'm saying, people make mistakes and sometimes in the process of doing things you make mistakes. And if he's got more evidence to show and if I can see it. But if there's no more evidence and I have to take just the word of a policeman or anyone person, I have my doubts.


[DEFENSE COUNSEL]: Okay, but would you put the State to it's [sic] burden to prove beyond a reasonable doubt?


[JUROR 7]: Yes.


[DEFENSE COUNSEL]: So you would follow the law in this case?


[JUROR 7]: Yes, I would.


A later exchange between defense counsel and juror 7 regarding a defendant's right to remain silent also occurred:

[DEFENSE COUNSEL]: And [Juror 7] again, you would require the Defendant to speak?


[JUROR 7]: Yeah, I believe he needs to speak up for hisself and explain his part. I want to hear all stories.


Neither the State nor the defense challenged any of the panelists for cause. The record shows that no individual voir dire took place. Juror 7 took a seat on the jury that convicted Gibson. Juror 11 did not.

E. Analysis

The facially neutral explanation offered by the prosecutor in Purkett was the following:

I struck [juror] number twenty-two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared to me to not be a good juror for that fact, the fact that he had long hair hanging down shoulder length, curly, unkempt hair. Also, he had a mustache and a goatee type beard. And juror number twenty-four also has a mustache and goatee type beard. Those are the only two people on the jury . . . with the facial hair . . . . And I don't like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me.


Purkett, 514 U.S. at 766. The Supreme Court reversed the court of appeals for focusing "on the reasonableness of the asserted nonracial motive . . . rather than the genuineness of the motive" in analyzing whether the prosecution met the burden shifted to it by the accused's prima facie showing of discriminatory peremptory challenges. Id. at 769.

Here, the State said it struck juror 11 for speaking up about needing more evidence than one witness. Gibson then challenged the "genuineness" of that explanation, not its "reasonableness," by pointing out that the prosecutor had not struck juror 7 for the same reason. In response, the explanation the State gave for not striking juror 7 was: "He qualified his answer - And we can go back to the record. But he qualified his record at one point and said, but if there is more evidence I would be okay. And, in fact, there is more evidence in this case." Thus, we find Purkett inapposite here. The record shows that Gibson challenged the "genuineness" of the prosecutor's facially neutral explanation, not its "reasonableness." See id. at 769.

We also distinguish Gibson's challenge at trial from the facts in Ford. Ford, 1 S.W.3d at 693. The voir dire record in Ford showed confusion in the prosecutor's recollection between what the two compared jurors had said. Id. However, as noted by the court of criminal appeals, the appellant in Ford did not complain at trial that the prosecution treated similarly situated panelists differently on the basis of race. Id. at 692. By contrast, in response to the prosecutor's facially neutral explanation for striking juror 11, Gibson presented to the trial court that the prosecutor had not struck juror 7, who had responded to the prosecutor's question regarding a need for additional evidence in the same way as juror 11. When the prosecutor responded that juror 7 had "qualified his answer" and was therefore rehabilitated, Gibson repeated to the trial court, "Their reason for striking [Juror 11], that he needed more evidence and the similar and same reason [Juror 7] was not struck, is that - has he given a sufficient race neutral reason to strike [Juror 11]?"

Further distinguishing this case from the facts in Ford, the record here shows that no confusion between what the two jurors had said was possible. Neither of the two jurors responded exactly in the manner recalled by the prosecutor. Further, to the extent juror 7's answer to defense counsel's questions can be interpreted to mean juror 7 qualified his response by saying he would be okay if the State presented more evidence, juror 11's response similarly can be interpreted to mean she qualified her answer by saying she would be okay if the sole witness was an eye-witness.

The record shows that Gibson presented to the trial court a comparison of the prosecutor's treatment of juror 11 and juror 7. The only thing further Gibson could have done with regard to his objection that the prosecutor treated juror 11 and juror 7 differently would have been to put the voir dire record itself into evidence. We read Ford as silently overruling Young and the first component of Vargas. Compare Ford, 1 S.W.3d at 693 (requiring presentation to trial court of Batson claim based on comparison analysis to preserve issue) with Young, 826 S.W.2d at 146 (holding that appellant could raise disparate-treatment Batson challenge for first time on appeal) and Vargas I, 838 S.W.2d at 556 (holding that appellant was not required to: (1) request that trial court consider comparison analysis; or (2) offer evidence in support of comparison analysis unless information on which appellant relies was not presented to trial court through testimony during jury selection). The appellant in Ford had not presented the disparate-treatment Batson claim to the trial court. Ford, 1 S.W.3d at 693. Consequently, Ford did not reach the issue of whether an appellant who does preserve the issue may rely on the voir dire record on appeal to demonstrate the comparison. Id. We do not read Ford as silently overruling the second component of Vargas by requiring the challenger to put a record of the voir dire questioning into evidence to discharge the burden of persuasion in a claim of disparate treatment of similarly situated panelists.

We decline to extend Ford beyond the facts in that case, that is, beyond the requirement that the accused must challenge at trial a prosecutor's facially neutral explanation for a strike by pointing to a similarly situated panelist not struck by the State. See Ford, 1 S.W.3d at 693. We find that by pointing out and then reiterating to the trial court that the prosecutor had stuck a juror of one race but did not strike another juror of a different race for "the similar and same reason," Gibson discharged his burden of persuasion. See Chamberlain, 998 S.W.2d at 236 (giving example of "real rebuttal" in disparate-questioning claim). We hold that Gibson, having discharged his burden of persuasion at trial, is entitled to rely on the record of voir dire testimony on appeal to prove he rebutted the prosecution's neutral explanation in such a manner that it can be inferred that the prosecutor engaged in purposeful discrimination. (5) See id.

In addition to the voir dire record, the record on appeal shows that the State presented only one witness to link Gibson to the cocaine, an eye-witness police officer. Even interpreting juror 7's remarks as indicating he would be okay if the State produced more evidence than one witness, in fact the State did not produce more than one witness to link Gibson to the cocaine. Thus, the record does not support the prosecutor's statement during voir dire that the State had more evidence than a single witness as his explanation for not striking juror 7. Moreover, after informing juror 11 during voir dire that the only witness was an eye-witness, the prosecutor did not ask any follow-up questions about the effect of that fact on her reservation about one witness. Finally, the voir dire record shows that juror 7, in response to defense counsel's question, indicated he would require a defendant to testify. However, the record also shows that juror 11 agreed with the prosecutor on an issue specifically relevant to the State's drug possession case against Gibson. Accordingly, the record shows that both jurors answered questions about voir dire subjects other than the one-witness issue in a manner favorable to the State. (6) Therefore, to the extent "something more" than disparate treatment may be required to rebut the prosecutor's facially neutral explanation, this record presents more than prosecutorial confusion in attributing one venire panelist's response to another, as was the case in Ford. See Ford, 1 S.W.3d at 693; see also Doby, 910 S.W.2d at 83. The record shows that the State struck a juror of one race for indicating one specific reservation and did not strike a juror of another race who expressed the same specific reservation. The record does not support the State's only explanation for treating the two panelists differently.

As in Vargas, the State had to bypass juror 7 to strike juror 11. See Vargas II, 859 S.W.2d at 535. If a need for additional evidence was really at the heart of the State's objection to juror 11, then surely the State would have struck juror 7 first. See id. Juror 7 and juror 11 had voiced the same reservation about one witness. As discussed above, the record shows that the only remaining difference between juror 7 and juror 11 is race. See id. Thus, the prosecutor's reason for striking juror 11 was not racially neutral. See id. The record on appeal contains enough evidence to prove the prosecutor exercised at least one peremptory challenge in violation of Batson. See id. We find, in light of this record, that Gibson met his burden to rebut by a preponderance of the evidence the prosecution's neutral explanation. See Williams, 804 S.W.2d at 101. We have formed the definite and firm conviction that a mistake has been made. See Hill, 827 S.W.2d at 865-66.

F. Conclusion

We hold that the trial court's denial of Gibson's Batson challenge is not supported by the record and is, therefore, clearly erroneous. See Wright, 832 S.W.2d at 605. We sustain Gibson's first issue. Further, Batson error is not subject to a harm analysis. Sparks v. State, 68 S.W.3d 6, 12 (Tex. App.-Dallas 2001, pet. ref'd). Finally, the exclusion of even one panelist from the jury on an unconstitutional basis invalidates the entire jury selection process. Whitsey v. State, 796 S.W.2d 707, 716 (Tex. Crim. App. 1989) (op. on reh'g) (plurality op.). Accordingly, we do not reach Gibson's remaining issues. See Tex. R. App. P. 47.1. We reverse and remand for a new trial.

ERRLINDA CASTILLO

Justice


Chief Justice Valdez not participating.


Publish.

Tex. R. App. P. 47.2(b).


Opinion delivered and filed

this 6th day of October, 2003.

1. The videotape is not part of the record.

2. The prohibition against discrimination in the exercise of peremptory challenges also applies to litigants who exercise a strike based on the juror's: (1) gender (J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146 (1994); Fritz v. State, 946 S.W.2d 844, 847 (Tex. Crim. App. 1997)); and (2) ethnicity and nationality (Hernandez v. New York, 500 U.S. 352, 355 (1991); Wamget v. State, 67 S.W.3d 851, 857 (Tex. Crim. App. 2001) (per curiam)). Guzman v. State, 85 S.W.3d 242, 245 (Tex. Crim. App. 2002). Gibson asserts racial discrimination.

3. We note that the court of criminal appeals regards footnotes in its opinions as dictum, not holdings of the court. Edwards v. State, 813 S.W.2d 572, 582 n.1 (Tex. App.-Dallas 1991, pet. ref'd) (en banc) (Baker, J., dissenting) (citing Young v. State, 826 S.W.2d 141, 145 n.5 (Tex. Crim. App. 1991)).

4. In an apparent publication error, the substitute opinion is not published. However, we note that the published version differs from the unpublished version in only one significant respect, which is to delete language from the published version that affirmed the case, contrary to the actual holding, which reversed and remanded the case to the court of appeals. As a consequence, the published version, despite its withdrawal, has been cited more than one hundred and eighty times to date. We do so as well.

5. Batson and its progeny require the trial court to note and give weight to subtle clues that disclose the prosecutor's intent. Somerville v. State, 792 S.W.2d 265, 269 (Tex. App.-Dallas 1990, pet. ref'd). Our holding today should not be read as concluding that the prosecutor in this case engaged in conscious disparate treatment.

6. We note that a prosecutor, in the exercise of the State's duty to uphold the integrity of the jury system, may challenge for cause a potential "State's juror" venire panelist who cannot be fair and impartial to the defendant. Guerra v. State, 771 S.W.2d 453, 467 (Tex. Crim. App. 1988). Here, the prosecutor did not articulate bias in favor of the State as a reason for striking juror 11 or as a reason for not striking juror 7.