Opinion
14-22-00517-CR
12-19-2024
MARTEZ TRAVON VRANA, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish - Tex.R.App.P. 47.2(b).
On Appeal from the 78th District Court Wichita County, Texas Trial Court Cause No. DC78-CR2020-1072
Panel consists of Chief Justice Christopher and Justices Bourliot and Hassan.
MEMORANDUM OPINION
Meagan Hassan, Justice
Appellant Martez Travon Vrana appeals his conviction for capital murder, contending in four issues that (1) the evidence is legally insufficient to support his conviction; (2) the trial court "abused its discretion in failing to find purposeful discrimination in the State's use of a peremptory strike against a black juror"; (3) the trial court erroneously overruled Appellant's objections to extraneous offense evidence relating to a robbery; and (4) the trial court erroneously overruled Appellant's "motion for a mistrial based on an outburst from the audience during the State's opening statement." We affirm.
This appeal was transferred to the Fourteenth Court of Appeals from the Second Court of Appeals. In cases transferred by the Supreme Court of Texas from one court of appeals to another, the transferee court must decide the case in accordance with the precedent of the transferor court under the principles of stare decisis if the transferee court's decision otherwise would have been inconsistent with the precedent of the transferor court. See Tex.R.App.P. 41.3.
Background
Appellant was charged with the capital murder of Complainant Jason Baum. He proceeded to a jury trial in June 2022. The jury heard from numerous witnesses; we summarize relevant portions of the witnesses' testimonies below.
Alec Jaramillo
Alec Jaramillo was Complainant's friend. Jaramillo lived in a house on Meadow Lake Drive in Wichita Falls and sold marijuana out of a shed behind the house. In the evening of June 11, 2020, Jesse Olvera came to Jaramillo's shed and asked to buy more than one pound of marijuana. Because Jaramillo did not trust Olvera, Jaramillo told Olvera he would get Olvera marijuana later. Olvera left without buying any marijuana, but he was "very interested in knowing if [Jaramillo] had more" marijuana. When Olvera left, Jaramillo went back to the house.
Thereafter, Jaramillo's friend's brother, Dylan Amador, came by the house to pick up a charger. While Amador was waiting at the door, Jaramillo was startled by gunshots; it was about 10:30 p.m. Jaramillo ran outside and saw two people "running away from the alley," two muzzle flashes pointing down the alley, two people "with their arm out shoot[ing]," and then one of the two people "jumping the fence to the house behind" Jaramillo. Jaramillo went to the front door to tell Amador to leave. Jaramillo went inside the house to get his gun. He testified that he tried to call Complainant, who was supposed to come by the house to smoke and talk, but he could not reach Complainant. Jaramillo testified that he crawled outside and saw bullet holes in one of the cars there, but he did not see Complainant. However, he noticed his landlord's chest outside the shed underneath one of the carports. According to Jaramillo, his landlord stored the chest inside the shed, and it had been inside the shed when Jaramillo met with Olvera a little after 10:00 p.m.
Dylan Amador
Dylan Amador confirmed that he went to Jamarillo's house after 10:00 p.m. to pick up a charger for his brother's play station. While he was waiting at Jamarillo's door, he heard someone say, "Oh shit" and then heard five or six gunshots. Amador ran to his brother's car and they drove home.
Paul Linares
Paul Linares was an acquaintance of Complainant. Linares testified that Complainant picked him and Daniel Lozado up in Complainant's red Camaro to go to dinner. After dinner, they stayed at Complainant's house until about 10:00 p.m. From there, they drove to one house and continued to another house. Complainant pulled up at the back of the second house and got out of the car. Linares and Lozado stayed in the car. Linares was on his phone when he heard "like a firework." He looked up and saw the driver's side window was shot out. He saw Lozado get out of the car and he followed him. Both men ran away.
Daniel Lozado
Daniel Lozado was friends with Complainant. Lozado confirmed that Complainant and Linares went to dinner together and spent time at Complainant's house before driving to two different houses. Going to the second house, Complainant pulled into an alley and exited his car while Lozado and Linares stayed in the car. Lozado testified that within minutes, he heard a gunshot. When he looked up, a second shot hit the car window and the glass shattered into his face. He heard Complainant say, "Aw, f___k" when the window shattered.
Lozado testified that he looked up and saw to the left "a black figure running." Lozado believed that Complainant "had got hit or something and was running. So [Lozado] just started chasing him." Lozado could not catch up to the person and saw the person "hopped in another car and they took off" fast. Lozado testified the car was a white Chevy Malibu or Impala. Lozado then saw Linares, who had been jumping over fences. The two hid in the bushes until Lozado's aunt picked them up. Lozado and Linares went back to the scene, but police had already arrived.
Sammy Worthy
Sammy Worthy was one of the men involved in the events leading to Complainant's death. He testified that on June 11, 2020, he and Antwan Williams were hanging out when he received a text from his best friend, Dimonique McKinney, who is also Appellant's cousin. At approximately 10:00 p.m., McKinney and Appellant came to Worthy's apartment to pick him and Williams up to "hit a lick." They stopped at a gas station so Appellant could get gas, which was confirmed by security video footage. All four men knew that they were going to "hit a lick"; Appellant, Williams, and McKinney were armed, and everyone in the car knew that McKinney had a gun.
Worthy explained that to "hit a lick" means to rob someone.
While they were at the gas station, McKinney received a text message telling him where to go to "hit the lick", but they had a hard time finding the place. Appellant drove them to Jaramillo's neighborhood; all four men exited the car and walked to Jaramillo's shed. Worthy testified they intended to steal marijuana from Jaramillo and sell it later. The men went into the shed to look for marijuana. They found the chest in the shed, but they did not look inside. As Appellant and McKinney carried the chest outside, Complainant drove up in his Camaro. Appellant had been wearing an orange ski mask, but when Complainant pulled up, McKinney asked Appellant for the ski mask and put it on. Complainant walked up under the carport and McKinney told him, "Give me everything." McKinney told Worthy, Williams, and Appellant to leave but only Worthy and Williams walked away; Appellant stayed next to a car parked by one of the carports. Worthy heard one gunshot and heard someone other than McKinney say, "Aw, fk." Worthy and Williams ran towards Appellant's white Chevy Malibu and heard more gunshots. They came to the car first, followed by Appellant. Appellant started driving away when McKinney arrived and banged with his weapon on the car window for Appellant to let him in the car. The men drove away, and McKinney told them that he had shot Complainant. Worthy also testified that Williams stated he saw Appellant shoot his weapon.
Officer Laughlin
Officer Laughlin is a detective with the Wichita Falls Police Department, who responded to the murder scene around 10:30 p.m. on June 11, 2020. As crime scene investigator, Officer Laughlin found the chest that had been carried out of the shed as well as a gun close to Complainant's body with the safety still engaged, showing that it could not have been fired. Officer Laughlin found a 9 millimeter bullet casing near one of the carports, a .40 caliber cartridge casing under another part of the carport, and two .40 caliber casings on the roadway. Based on the location of the casings and other evidence at the scene, Officer Laughlin concluded that the weapons had been fired from different locations at Complainant.
He further testified that there were "perforating defects" on the garage door and the fence, that Complainant's Camaro's window was shattered by a bullet, and that a projectile was recovered from the Camaro's fender. He also found two unopened condom packs at the crime scene - one on the ground by the shed and the other along the edge of the roadway. Evidence showed that the condom packs contained Appellant's DNA. Officer Laughlin also assisted with a search warrant of McKinney's apartment. Police found a .40 caliber handgun wrapped in a t-shirt just on the other side of a chain link fence in the backyard of McKinney's apartment. A ballistics expert concluded that three cartridge casings recovered at the crime scene came from the handgun recovered by the backyard of McKinney's apartment.
Detective McPherson
Detective McPherson with the Wichita Falls Police Department was the lead investigator for Complainant's homicide. Three days after Complainant's murder, Detective McPherson interviewed Appellant and found out he was driving a white Chevy Malibu. Detective McPherson impounded the car and found multiple condom packs "strewed out in the back of the vehicle." The packs had the same lot number as the two condom packs found at the crime scene. Detective McPherson also testified that Appellant made a phone call to his girlfriend from jail and based on that call, he executed a search warrant at Appellant's mother's home. Detective McPherson testified that he was told he would find and indeed found "an orange ski mask and some black canvas shoes with a white design on them" concealed in a gray pillowcase under the bed in Appellant's mother's bedroom. Video footage from the gas station where Appellant purchased gas showed him wearing the shoes Detective McPherson found in the pillowcase.
Kristen Cossota
Kristen Cossota is a forensic scientist with the Texas Department of Public Safety Crime Laboratory. She testified that the unopened condom pack found at the crime scene contained Appellant's DNA. She also testified that testing showed the orange ski mask Detective McPherson found concealed in the pillowcase in Appellant's mother's residence contained DNA from Appellant and McKinney.
Merissa Vrana
Merissa Vrana was Appellant's girlfriend at the time of Complainant's murder, but she became Appellant's wife in 2021. She testified that she heard about Complainant's death through social media. During her testimony, the State played and discussed a jail phone call between her and Appellant. On the phone call, she told Appellant that the police had heard in a previous jail call that Appellant had asked her "to get rid of this stuff in the washroom" and questioned her about it at the police station. Merissa told Appellant that she first denied knowing anything but that the police had told her they knew about the mask and the shoes and that she then admitted putting the items away. Merissa also told Appellant that the police had told her that she would have gone to jail for tampering with evidence in a murder case had she actually gotten rid of the items.
During her testimony, Merissa acknowledged taking the orange mask and Appellant's canvas shoes in a pillowcase to his mother's apartment and putting the items in his mother's bedroom under the bed. Merissa did not want to say that Appellant instructed her to get rid of the items but claimed Appellant had told her to "do something with it" which she "assumed that meant to get rid of it" and that Appellant wanted her to hide the items; she therefore took the items to Appellant's mother's bedroom. Merissa testified that she previously had admitted to the police that she had put the mask and the pair of shoes away in Appellant's mother's bedroom.
Jazlyn Vaughn
Jazlyn Vaughn is Appellant's sister. She testified that McKinney is her and Appellant's cousin, and the three had grown up together. She acknowledged exchanging text messages with Appellant a day after Complainant's murder, including the following incriminating messages:
Vaughn: I think we need to talk I don't like what I'm hearing
Appellant: Prolly finna go away for a while. But I love you a lot
Vaughn: Are you serious bro
Appellant: I truly do
Vaughn: Martez I'm being fr It's my job to be a big sister and not let you get into shit you know better
Appellant: Im goin to pops house talk wit him real quicc
Vaughn: I talked to him first cause I don't want you in no trouble you know we too tight and why you think I want to see you locked up? You better than this Like I'm really mad and sad and confused Martez
During Vaughn's testimony, the State also introduced and discussed a text message exchange between Appellant and McKinney on March 27, 2020. Appellant and McKinney were discussing the logistics of committing a robbery together that night. They discussed using violence and guns to rob several men who were at a private home playing poker. Appellant even instructed McKinney to hit a man in the head with a gun while someone else checks the pockets for money.
Appellant
Appellant decided to testify after the State and the defense rested. He denied having any involvement in the death of Complainant and claimed he only drove McKinney, Worthy, and Williams to buy marijuana from Jaramillo in his white Chevy Malibu. He testified that when they arrived at Jaramillo's house, all four men got out and waited but Jaramillo did not come out and they drove away. According to Appellant, the others got a text message from Jaramillo so he drove back to Jaramillo's house. He claimed he stayed in the car and waited. He heard gunshots and McKinney, Worthy, and Williams ran back to his car. He testified that McKinney was wearing a mask but only rolled up as a fashion statement "as a beanie." Appellant claimed he did not know anyone got shot. He denied intending to rob anyone or steal something on June 11, 2020. He also denied having had any conversation about "setting up to hit a lick," robbing Jaramillo, robbing Complainant, or moving the chest out of the shed. He further testified that he did not expect Merissa to hide or destroy anything but just to move the items from one apartment to another because he and Merissa were intending to move.
Appellant admitted setting up a robbery in the March 27, 2020 text messages together with McKinney, McKinney's brother Gerrick, and Worthy. He admitted wearing a mask and going to a house to rob people at a poker game with weapons but claimed they backed out. Appellant agreed that "it's a reasonable foreseeability that when you have a conspiracy to commit a robbery and you go someplace with guns, somebody may end up dead."
Jehkia Jackson
Lastly, Jehkia Jackson was one of the victims of a robbery Appellant and McKinney were involved in the evening of January 8, 2020. She testified that her boyfriend Noah Leverett wanted to buy marijuana and set up a meeting. Jackson drove Leverett to the meeting place; her newborn baby was also in the car. When they arrived, Leverett started feeding the baby. A car pulled up next to Jackson's car and she recognized Andrew Calvin sitting in the car because they had been raised together. She got out of the car to talk to Calvin. Then she saw McKinney get out of the car and point a gun at Leverett's head while Leverett was still feeding the baby.
Jackson testified that she and Calvin started yelling at McKinney. McKinney went back to the car and drove off with Calvin and Appellant. Jackson saw Appellant sitting in the backseat of the car; she recognized Appellant because he had gone to school with her sister and had been popular in high school. Jackson followed McKinney's and Appellant's car; at some point, the car slowed down and McKinney got out of the car. McKinney started shooting at Jackson's car three or four times, striking her car's windshield and dashboard, and then driving off.
After hearing the evidence presented, the jury found Appellant guilty of capital murder, and the trial court assessed his punishment at life imprisonment. Appellant filed a timely notice of appeal.
Analysis
Appellant presents four issues on appeal, which we address in turn.
I. Sufficiency of the Evidence
In his first issue, Appellant argues the evidence was legally insufficient to support his capital murder conviction because he "did not have the required intent since he had no knowledge that a robbery was going to be attempted or committed."
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the crime's essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full play to the factfinder's responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 319; Harrell v. State, 620 S.W.3d 910, 914 (Tex. Crim. App. 2021).
The factfinder alone judges the evidence's weight and credibility. See Tex. Code Crim. Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App. 2021). We may not re-evaluate the evidence's weight and credibility and substitute our judgment for that of the factfinder. Queeman, 520 S.W.3d at 622. Rather, we determine whether the necessary inferences are reasonable based on the evidence's cumulative force when viewed in the light most favorable to the verdict. Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018); see Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) ("The court conducting a sufficiency review must not engage in a 'divide and conquer' strategy but must consider the cumulative force of all the evidence."). We must presume the factfinder resolved any conflicting inferences in favor of the verdict, and we must defer to that resolution. Braughton, 569 S.W.3d at 608.
"[A] reviewing court is permitted to consider all evidence in the trial-court record, whether admissible or inadmissible, when making a legal-sufficiency determination." Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006) (citing Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Circumstantial evidence alone is sufficient to establish guilt. Id. Furthermore, the standard of review on appeal is the same for both direct and circumstantial evidence cases. Id. Each fact need not point directly and independently to the defendant's guilt, as long as the cumulative effect of all the incriminating facts is sufficient to support the conviction. Id.
To determine whether the State has met its burden to prove a defendant's guilt beyond a reasonable doubt, we compare the crime's elements as defined by the hypothetically correct jury charge to the evidence adduced at trial. See Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Baker v. State, No. 02-19-00292-CR, 2020 WL 2202324, at *5 (Tex. App.-Fort Worth May 7, 2020, pet. ref'd) (mem. op., not designated for publication). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Jenkins, 493 S.W.3d at 599; Baker, 2020 WL 2202324, at *5. The "law as authorized by the indictment" means the statutory elements of the charged offense as modified by the factual details and legal theories contained in the charging instrument. See Jenkins, 493 S.W.3d at 599.
B. Applicable Law
Appellant was indicted with committing capital murder by intentionally causing Complainant's death with a firearm in the course of committing or attempting to commit robbery. To prove capital murder as alleged in the indictment, the State was required to prove that Appellant intentionally caused Complainant's death in the course of committing or attempting to commit robbery. See Tex. Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(2).
A person commits capital murder if he intentionally causes the death of an individual in the course of committing or attempting to commit robbery. Id. §§ 19.02(b)(1), 19.03(a)(2). A person commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Id. § 29.02(a)(1), (2). "[T]he actual commission of the offense of theft is not a prerequisite to the commission of the offense of robbery; the gravamen of robbery is the assaultive conduct and not the theft." Burton v. State, 510 S.W.3d 232, 238 (Tex. App.-Fort Worth 2017, no pet.) (citing Ex parte Denton, 399 S.W.3d 540, 546 (Tex. Crim. App. 2013)).
The jury was instructed that it could find Appellant guilty of capital murder as a principal or under the law of parties. Under the law of parties, a person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Penal Code Ann. § 7.02(a)(2). Further, if in an attempt to carry out a conspiracy to commit one felony, "another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy." Id. § 7.02(b).
Proof of a culpable mental state invariably depends on circumstantial evidence. See Heckert v. State, 612 S.W.2d 549, 550 (Tex. Crim. App. [Panel Op.] 1981); Hernandez v. State, 470 S.W.3d 862, 870 (Tex. App.-Fort Worth 2015, pet. ref'd). A culpable mental state can be inferred from the acts, words, and conduct of the accused, "and 'is a matter of fact, to be determined from all of the circumstances.'" Hernandez, 470 S.W.3d at 870 (quoting Smith v. State, 965 S.W.2d 509, 518 (Tex. Crim. App. 1998) (en banc)). Evidence is sufficient to convict under the law of parties when the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. Salinas v. State, 163 S.W.3d 734, 739 (Tex. Crim. App. 2005); Frank v. State, 183 S.W.3d 63, 72 (Tex. App.-Fort Worth 2005, pet. ref'd). One can encourage the commission of an offense by having an agreement with the perpetrator to commit the offense prior to or contemporaneous with its commission. See Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985) (en banc). We may look to events occurring before, during, and after the commission of the offense in determining whether the defendant participated as a party. Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012); Salinas, 163 S.W.3d at 739-40; Frank, 183 S.W.3d at 73.
C. Application
Appellant argues the evidence is legally insufficient to support his capital murder conviction because "he did not have the required intent since he had no knowledge that a robbery was going to be attempted or committed." Appellant claims he did not intend to steal from anyone or rob anyone on June 11, 2020. According to Appellant, his participation was limited to him taking McKinney, Worthy, and Williams to buy marijuana. Appellant claims, "[t]herefore, a reasonable factfinder could not have found beyond a reasonable doubt that he committed an act making him criminally responsible for the acts of McKinney, Worthy, and A. W."
Contrary to Appellant's assertion, the evidence shows that (1) Appellant in fact "had knowledge that a robbery was going to be attempted or committed" and intended to steal and rob someone, and (2) this participation was not limited to driving McKinney, Worthy, and Williams to Jaramillo's house to buy marijuana.
Worthy testified that when Appellant and McKinney came to pick up Worthy and Williams the night of June 11, 2020, all four men knew they were "gonna hit a lick" which Worthy explained meant to rob someone. Worthy testified that Appellant knew they were going to rob someone because "McKinney told [Appellant]." McKinney was getting text messages about where to go, and Appellant was the driver. Worthy also testified that Appellant, Williams, and McKinney were armed, and everyone in the car knew that McKinney had a gun. Worthy testified that the four men intended to steal marijuana from Jaramillo in order to sell it later. Appellant drove the men to Jaramillo's place where all four went into the shed and found a chest. It was Appellant and McKinney who carried the chest out of Jaramillo's shed.
Worthy stated that Complainant drove up in his Camaro while Appellant and McKinney carried the chest. Worthy stated that during this time, Appellant was wearing the ski mask that police later found hidden in a pillowcase in Appellant's mother's apartment. Worthy testified that when Complainant pulled up, McKinney asked Appellant for the mask and put it on. McKinney told Complainant, "Give me everything" and told the others to leave. Only Worthy and Williams walked away, but Appellant stayed with McKinney. After Worthy heard gunshots, he and Williams ran to Appellant's car, followed by Appellant and McKinney. Appellant was the getaway driver after Complainant was killed. Worthy testified that McKinney told everyone in the car that McKinney had shot Complainant; Worthy further stated that Williams said he saw Appellant fire his weapon.
The jury also heard that this was not the first robbery Appellant and McKinney had planned and committed. Appellant knew that McKinney would shoot at a robbery victim because he had done it during the January 8, 2020 robbery when he not only pointed a gun at Leverett and Jackson's baby but actually shot at Jackson's car knowing she was driving her baby and Leverett. And during the March 27, 2020 robbery, Appellant not only encouraged McKinney to use violence during the robbery and instructed McKinney to hit one of the robbery victims in the head with a gun but Appellant testified that when he texted McKinney, "If they try anything after tonight den he get to c Jesus," he expressed his "intent and willingness to end the life of the person that may be able to identify Gerrick McKinney" who is McKinney's brother.
Appellant texted McKinney: "Hit one them niggas in the head wit that bitch so they no it's real make lil g checc they poccets why you got em up." Appellant testified that "bitch" meant gun and that he was instructing McKinney to hit one of the victims with his gun while someone else checks the victim's pockets.
Appellant complains that the "evidence to support Appellant's prior knowledge there was to be a robbery comes from Mr. Worthy, a man who admitted to lying to the police multiple times." However, Appellant was equally untruthful and admitted lying to the police. Moreover, the jury is the sole judge of the witnesses' credibility and was free to believe Worthy and disbelieve Appellant's testimony. The jury was also free to consider Appellant's actions after Complainant's murder, including telling his sister he will probably finally be going to jail for a while ("Prolly finna go away for a while") and also telling Merissa to get rid of his mask and shoes, which constituted incriminating evidence.
Based on the evidence in the record, the jury reasonably rejected Appellant's claim that he had no prior knowledge that McKinney, Worthy, and Williams planned to commit robbery and that "Appellant was merely giving them a ride to buy some marijuana and was truly caught in the wrong place at the wrong time." Viewing all the evidence in the light most favorable to the verdict, we conclude there is sufficient evidence that Appellant had prior knowledge and intended "to participate" in a robbery on June 11, 2020. Contrary to Appellant's contention, "a reasonable factfinder could [] have found beyond a reasonable doubt that Appellant committed an act making him criminally responsible for the acts of McKinney, Worthy, and A. W[illiams]."
Accordingly, we overrule Appellant's first issue.
II. Batson Challenge
In his second issue, Appellant contends "the trial court abused its discretion in failing to find purposeful discrimination in the State's use of a peremptory strike against" African-American venire members.
A. Standard of Review and Governing Law
In Batson v. Kentucky, the Supreme Court held that the Fourteenth Amendment's Equal Protection Clause forbids the State from exercising its peremptory strikes based solely on the race of a potential juror. 476 U.S. 79, 89 (1986); see also Nieto v. State, 365 S.W.3d 673, 675 (Tex. Crim. App. 2012). Even a single impermissible strike for a racially motivated reason invalidates the jury selection process and requires a new trial. Snyder v. Louisiana, 552 U.S. 472, 478 (2008).
A Batson challenge consists of three steps. Nieto, 365 S.W.3d at 675; see Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curiam). First, the defendant must make a prima facie showing of racial discrimination in the State's use of a peremptory strike. Nieto, 365 S.W.3d at 675. If the defendant makes the requisite showing, the burden shifts to the State to provide a race-neutral explanation for its strike. Id. This race-neutral explanation is a burden of production; it does not have to be "persuasive, or even plausible." Purkett, 514 U.S. at 767-68. Rather, "'the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.'" Id. (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality op.)). Thus, any reason offered by the State, as long as it is facially valid and not inherently discriminatory, is sufficient to rebut the defendant's prima facie case of intentional discrimination. See id.
Finally, in evaluating the genuineness of the State's explanation, the trial court must determine if the defendant has proven purposeful discrimination by a preponderance of the evidence. Blackman v. State, 414 S.W.3d 757, 764-65 (Tex. Crim. App. 2013); Nieto, 365 S.W.3d at 675. For this step, the burden of persuasion remains on the defendant. Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001).
We review a trial court's ruling on a Batson challenge for clear error, focusing on the genuineness of the asserted non-racial motive for the strike rather than its reasonableness. Nieto, 365 S.W.3d at 676; Blackman, 414 S.W.3d at 765. We consider the entire voir dire record in assessing the trial court's determination. See Watkins v. State, 245 S.W.3d 444, 448 (Tex. Crim. App. 2008). Moreover, race-neutral reasons for peremptory challenges often involve evaluating a prospective juror's demeanor, warranting the trial court's firsthand observations greater deference. Snyder, 552 U.S. at 477. Accordingly, we will not disturb the trial court's ruling unless we are left with a definite and firm conviction that a mistake has been committed. Hernandez, 500 U.S. at 369.
B. Application
At the conclusion of voir dire, defense counsel raised a Batson challenge to the State's peremptory strikes of venire members 1, 8, 18, and 44. Defense counsel claimed that out of the State's ten strikes, "the State struck four African-American citizens." On appeal, Appellant challenges only the strike of venire members 8 and 18.
Step one of the Batson analysis, i.e., a prima facie showing of racial discrimination, was rendered moot when the State moved to step two and offered race-neutral reasons for its strikes. See Watkins, 245 S.W.3d at 447 ("Once the opponent of the challenged strike raises a question of purposeful discrimination, if the trial court then proceeds immediately to the second step by inquiring of the proponent whether he had a non-discriminatory purpose, a reviewing court is to assume that the opponent has satisfied his step-one obligation to make a prima facie case of purposeful discrimination and address only the second and third steps.").
Turning to step two, we conclude the State's explanation for striking venire members 8 and 18 is facially race-neutral. A race-neutral explanation is one based on something other than the venire member's race. See Hernandez, 500 U.S. at 360. At this step in the process, the issue is simply the facial validity of the State's explanation - "[u]nless discriminatory intent is inherent in the explanation, the offered reason is race-neutral." See id. With regard to venire member 8, the State provided the following explanation for the strike: "I utilized a challenge for cause because she had attended Hirschi High School where this defendant was a prominent schoolmate and quarterback of the football team. Also, she had viewpoints on the use of marijuana that I thought would be detrimental to the State's case." With regard to venire member 18, the State's explanation was:
Ms. Coleman, Number 18, in response to Mr. Stickels' hypothetical about the coyote hunting, her response about changing plans in the middle of the endeavor she thought would not lead to criminal responsibility. And I thought that had some squishiness to it, that I don't believe she was going to be able to follow my presentation as I believe the evidence will be presented in this particular case. I had some personal concerns. She's from England. I don't know how the UK - how she was brought up to view the possibility of mandatory sentencing, and for those reasons I employed a peremptory challenge.
The State's reasons for striking venire members 8 and 18 are race-neutral, and the State satisfied its burden of production.
In the third step, we examine whether Appellant proved the State's proffered explanation was pretext for purposeful discrimination; that is, whether the trial court clearly erred in failing to find purposeful discrimination in the State's use of peremptory strikes. Ledford v. State, 649 S.W.3d 731, 745 (Tex. App.-Houston [1st Dist.] 2022, no pet.); see also Blackman, 414 S.W.3d at 764; Nieto, 365 S.W.3d at 675. Here, Appellant did not proffer any evidence or argument of purposeful discrimination in response to the State's race-neutral explanations to meet his burden. Therefore, the trial court's ruling is not clearly erroneous and must be sustained. See Nieto, 365 S.W.3d at 675-76; Ledford, 649 S.W.3d at 74546; Randle v. State, No. 14-19-00140-CR, 2021 WL 388504, at *8 (Tex. App.- Houston [14th Dist.] Feb. 4, 2021, pet. ref'd) (mem. op., not designated for publication).
Accordingly, we overrule Appellant's second issue.
III. Extraneous Offense Evidence
In his third issue, Appellant asserts the trial court erred "in overruling Appellant's objection to extraneous offense evidence concerning the Leverett Robbery since it was not admissible under any theory of liability." But even if we assume arguendo that this evidence was erroneously admitted, we conclude its admission was harmless.
A. Standard of Review
Generally, the erroneous admission of evidence is nonconstitutional error governed by Rule 44.2(b). See Tex.R.App.P. 44.2(b); Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018); Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). That Rule requires us to disregard any nonconstitutional error that does not affect a defendant's substantial rights. Tex.R.App.P. 44.2(b). A substantial right is affected when the error had a "substantial and injurious effect or influence in determining the jury's verdict." Gonzalez, 544 S.W.3d at 373; Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005). Conversely, an error does not affect a defendant's substantial right if the appellate court has fair assurance from an examination of the record that the error did not influence the jury or that it had but a slight effect. Macedo v. State, 629 S.W.3d 237, 240 (Tex. Crim. App. 2021). "If the same or similar evidence is admitted without objection at another point during the trial, the improper admission of the evidence will not constitute reversible error." West v. State, 121 S.W.3d 95, 104-05 (Tex. App.- Fort Worth 2003, pet. ref'd); see also Merrit v. State, 529 S.W.3d 549, 556 (Tex. App.-Houston [14th Dist.] 2017, pet. ref'd); Starkey v. State, No. 02-18-00192-CR, 2019 WL 3819505, at *12 (Tex. App.-Fort Worth Aug. 15, 2019, pet. ref'd) (mem. op., not designated for publication).
B. Application
Here, the State elicited testimony from Jackson about what Appellant refers to as the Leverett robbery. Jackson testified that Leverett arranged to buy marijuana on January 8, 2020. When Leverett and Jackson arrived at the meeting place, McKinney, Appellant, and Calvin pulled up in their car. McKinney exited the car and pointed a gun at Leverett and Jackson's baby. When Calvin and Jackson yelled at McKinney, McKinney got back into the car and drove away. When Jackson followed the men in her car, McKinney stopped the car, got out, shot at Jackson's car, and drove off. Jackson testified Appellant "just sat" in the backseat of the car; and only McKinney exited the car, had a weapon, and shot at her car.
Similar evidence about a March 27, 2020 robbery Appellant, Worthy, McKinney, and McKinney's brother were involved in was introduced into evidence in the form of text messages. During Vaughn's testimony, the State went through numerous pages of text messages Appellant and McKinney had exchanged on March 27, 2020, in which they discussed in detail the logistics of committing the robbery together that night. They discussed using violence and weapons to rob several men who had been at a home playing poker. Appellant gave instructions regarding what to do, how to proceed, and even instructed McKinney to hit a man in the head with a gun while someone else checks the victims' pockets for money. Appellant also told McKinney that if the victims recognize McKinney's brother and "try anything after tonight [th]en [they] get to c Jesus."
On cross-examination, the State at length questioned Appellant about the March robbery text messages. Appellant admitted the messages show a discussion about how he, McKinney, and Worthy were operating and what they planned to do in order to rob several people at a private poker game. McKinney had been at the poker game and had been sending messages and a video to Appellant while Appellant was outside in his Chevy Malibu. Appellant admitted that he had texted with McKinney about how the robbery would occur and how many people were at the game, so Appellant would know what odds he would be facing "when he take[s] [his] shotgun and go[es] to work." Appellant conceded that his "get to c Jesus" text message "expresses [his] intent and willingness to end the life of the person that may be able to identify" McKinney's brother.
Considering that the jury heard at length unchallenged evidence about the March 2020 armed robbery on which the State focused considerably more compared to the short testimony from Jackson about the January 2020 extraneous offense, we cannot conclude that Appellant's substantial rights were affected. Based on the record before us, we conclude that any alleged error in the admission of the January 2020 extraneous offense evidence is harmless. See West, 121 S.W.3d at 104-05; Merrit, 529 S.W.3d at 556; Starkey, 2019 WL 3819505, at *12; see also Macedo, 629 S.W.3d at 240.
Accordingly, we overrule Appellant's third issue.
IV. Mistrial
In his fourth issue, Appellant argues the trial court erroneously overruled "Appellant's motion for a mistrial based on an outburst from the audience during the State's opening statement."
A. Standard of Review and Governing Law
We review a trial court's denial of a motion for mistrial under an abuse of discretion standard. Balderas v. State, 517 S.W.3d 756, 783 (Tex. Crim. App. 2016); Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010). We review the evidence in the light most favorable to the trial court's ruling and consider only those arguments that were before the court at the time of the ruling. Turner v. State, 570 S.W.3d 250, 268 (Tex. Crim. App. 2018).
A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009) (per curiam); Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (en banc). A trial court may properly exercise its discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Hawkins, 135 S.W.3d at 77.
The court of criminal appeals has held that an outburst from a bystander or witness that interferes with the normal proceedings of a trial will not result in reversible error unless the defendant shows that there is a reasonable probability that the conduct interfered with the jury's verdict. Coble, 330 S.W.3d at 292; Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). In the context of such outbursts, the trial court's instructions to disregard are generally considered sufficient to cure the impropriety because it is presumed that the jury will follow those instructions. Coble, 330 S.W.3d at 292; Gamboa, 296 S.W.3d at 580.
B. Application
At one point during the State's opening statement, there was "[l]oud weeping from the audience." On appeal, Appellant claims the "trial court did not instruct the jury to disregard the outburst and decide the case based solely on the facts. Therefore, the prejudice to the jury was not cured by an instruction" and, according to Appellant, the trial court abused its discretion by denying his motion for mistrial.
However, Appellant did not request such an instruction. When a defendant moves for a mistrial without requesting a curative instruction to disregard, he forfeits his complaint unless an instruction to disregard would not have cured the harm flowing from the prejudicial event. See Unkart v. State, 400 S.W.3d 94, 99 (Tex. Crim. App. 2013) (finding that solely moving for mistrial will preserve error if instruction to disregard would not have cured the harm flowing from the improper comment); Brewer v. State, 367 S.W.3d 251, 253 (Tex. Crim. App. 2012) ("The appellant did not request a curative instruction before moving for a mistrial-a choice that forfeited appellate relief for an error that could have been cured by such an instruction." (citation omitted)); Rau v. State, No. 02-15-00208-CR, 2017 WL 1289351, at *21 (Tex. App.-Fort Worth Apr. 6, 2017, pet. ref'd) (mem. op., not designated for publication).
Courts have found similar or more extreme outbursts to be curable with an instruction to disregard. Coble, 330 S.W.3d at 290-92 (finding capital murder defendant was not entitled to mistrial based on victim's sister's and defendant's cousin's outbursts during their respective testimony at punishment phase of trial when the jury was instructed to disregard); Gamboa, 296 S.W.3d at 580 (finding capital murder defendant was not entitled to a mistrial based on an outburst by the victim's family member shouting, "You did this for 200 dollars?", during the testimony of a prosecution witness when the trial court instructed the jury to disregard); Brown v. State, 92 S.W.3d 655, 661-62 (Tex. App.-Dallas 2002) (finding victim's father's outburst of sobbing and stating, "Give my son justice, please" during murder trial was cured by trial court's instructions to disregard his comment), aff'd on other grounds, 122 S.W.3d 794 (Tex. Crim. App. 2003); Miles v. State, No. 06-21-00120-CR, 2022 WL 837961, at *1-2 (Tex. App.-Texarkana Mar. 22, 2022, no pet.) (mem. op., not designated for publication) (finding no abuse of discretion in denying mistrial based on murder victim's mother's "emotional outburst" and loud wailing in the jury's presence when the trial court instructed the jury to disregard).
Here, there is nothing in the record showing that a jury instruction to disregard an audience member's weeping would have been insufficient to cure any impropriety, and Appellant fails to present any argument why such an instruction would have been insufficient. Because mistrial is an extreme remedy and an instruction to disregard would have sufficed to cure any prejudice, we cannot conclude the trial court abused its discretion in denying Appellant's motion for mistrial based on the loud weeping from the audience.
Accordingly, we overrule Appellant's fourth issue.
Conclusion
Having overruled Appellant's issues, we affirm the trial court's judgment.