Gabriel Silva v. State ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-12-00302-CR
_________________
GABRIEL SILVA, Appellant
V.
STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 11-06-06274-CR
________________________________________________________________________
MEMORANDUM OPINION
A jury convicted Gabriel Silva of the felony offense of possession with
intent to deliver or manufacture a controlled substance, cocaine, in an amount of
200 grams or more, in a drug-free zone. See Tex. Health & Safety Code Ann. §
481.112(e) (West 2010), § 481.134(c)(1) (West Supp. 2013). The jury assessed
Silva’s punishment at fifty-five years’ confinement and a fine of $6,500. The trial
court sentenced Silva in accordance with the jury’s verdict. Silva appeals his
1
conviction and presents four issues for review. Finding no reversible error, we
affirm the trial court’s judgment.
I. The Indictment
In his first issue, Silva argues the trial court erred by denying his request for
a ten-day continuance in accordance with article 28.10 of the Texas Code of
Criminal Procedure after the State amended the indictment by removing the word
“Conroe.” The State responds that the trial court did not err because it did not
amend the indictment. The original indictment alleged in relevant part:
And it is further presented in and to said Court that the
defendant committed the above offense within 1,000 feet of premises
owned by Kinder Care Daycare, a school, located at 24717 Oakhurst,
Conroe, Montgomery County, Texas.
After the jury was seated, but prior to the reading of the indictment, the prosecutor
made an oral motion to abandon the word “Conroe” from the indictment as
surplusage. Silva’s counsel objected to the prosecutor’s motion for lack of notice.
Silva’s counsel requested a continuance to allow him time to prepare a defense
against a different indictment. The trial court took the State’s motion under
advisement and instructed the State to read the indictment to the jury as it was
originally charged. The prosecutor read the indictment to the jury, including the
word “Conroe,” as instructed to do so by the trial court. The trial court withheld
ruling on the State’s motion until the close of evidence in the guilt phase of trial.
2
Ultimately, the trial court ruled that the word “Conroe” was surplusage and it
would allow the State to abandon it as requested. Our review of the appellate
record indicates that the State never physically altered the indictment to reflect the
court’s ruling, did not file an amended photocopy of the original indictment, and
did not file a written motion to indicate the proposed alteration to the indictment.
While Silva is correct that an amendment to the charging instrument is subject to
the limitations and requirements set out in article 28.10 of the Code of Criminal
Procedure, we find no evidence in the record that the State amended the indictment
to delete the word “Conroe.” See Puente v. State, 320 S.W.3d 352, 357-58 (Tex.
Crim. App. 2010) (indicating that although the trial court approved the parties’
agreement to amend the indictment, when the State made no physical changes to
indictment and did not file an amended photocopy of the indictment, changes to
defendant’s judicial confession alone were not enough to constitute an amendment
of the indictment); Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000)
(indicating State’s motion and trial judge’s granting thereof only constitute
authorization of eventual amendment of an indictment pursuant to article 28.10,
they do not comprise the actual amendment). Therefore, we overrule Silva’s
argument that the trial court erred in allowing the State to amend the indictment
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and in denying his request for a ten-day continuance pursuant to article 28.10. See
Tex. Code Crim. Proc. Ann. art. 28.10 (West 2006).
As part of his first issue, Silva also appears to argue that if the State includes
unnecessary allegations in the indictment that are descriptive of that which is
legally essential to charge a crime, the State is bound to prove the allegations, even
though needlessly stated. Silva specifically contends that because the State alleged
the exact address of the daycare, the State was required to prove the exact address
of the daycare as alleged in the indictment, including the city in which the daycare
operates. The indictment alleges Silva committed his offense “within 1,000 feet of
premises owned by Kinder Care Daycare, a school, located at 24717 Oakhurst,
Conroe, Montgomery County, Texas.” Silva further contends that the testimony of
the daycare’s central director was that the daycare was located in Spring, Texas.
Silva argues that because the State alleged the daycare was located in Conroe, the
State was required to prove this allegation in order to prove Silva committed the
offense in a drug-free zone. The cases Silva cites in support of his argument rely
ultimately on Burrell v. State, 526 S.W.2d 799 (Tex. Crim. App. 1975). See, e.g.
Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000); Wray v. State, 711 S.W.2d
4
631, 633 (Tex. Crim. App. 1986).1 In Burrell, the Court explained that
“‘[a]llegations not essential to constitute the offense, and which might be entirely
omitted without affecting the charge against the defendant, and without detriment
to the indictment are treated as mere surplusage, and may be entirely
disregarded.’” Burrell, 526 S.W.2d at 802 (quoting 1 Branch’s Ann. P.C., 2d ed.,
Sec. 517, p. 497 (1956)). The Court in Burrell also recognized an exception to the
general rule regarding surplusage—“where the unnecessary matter is descriptive of
that which is legally essential to charge a crime[,] it must be proven as alleged,
even though needlessly stated.” Id. However, the Court of Criminal Appeals
overruled the Burrell exception in Gollihar v. State, 46 S.W.3d 243, 256-57 (Tex.
Crim. App. 2001). In Gollihar, the Court held that when an appellant alleges a
variance between the evidence presented at trial and the allegations in the
indictment, the variance is fatal only if it is material and prejudices a defendant’s
substantial rights. Id. at 257 (quoting United States v. Sprick, 233 F.3d 845, 853
(5th Cir. 2000)). The Court of Criminal Appeals has since identified two ways in
which a variance in pleading and proof can occur: (1) a variance involving the
statutory language that defines the offense, and (2) a variance involving a non-
1
We note that Silva likewise relied on cases based on the Burrell exception
in making his arguments to the trial court. See Sattiewhite v. State, 600 S.W.2d 277
(Tex. Crim. App. 1979); Peters v. State, 652 S.W.2d 460 (Tex. App.—Houston
[1st Dist.] 1983, pet. ref’d).
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statutory allegation that is descriptive of the offense in some way. Johnson v. State,
364 S.W.3d 292, 294 (Tex. Crim. App. 2012).
To prove Silva committed his offense in a drug-free zone, the State is
required to prove that the offense was committed “in, on, or within 1,000 feet of
the premises of a school, the premises of a public or private youth center, or a
playground[.]” See Tex. Health & Safety Code Ann. § 481.134(c)(1) (West Supp.
2013). The State’s allegation that the daycare was located in Conroe was not
essential to prove that Silva committed the offense in a drug-free zone. See id. The
term “Conroe” simply described the location of the daycare premises. The State
alleged the essential fact that Silva committed the offense within 1,000 feet of
premises owned by a school. The State was not statutorily required to allege the
daycare’s specific address, so we conclude the variance involves a non-statutory
allegation. See id.
When reviewing a variance involving a non-statutory allegation for
materiality, we apply a two-prong test. Santana v. State, 59 S.W.3d 187, 195 (Tex.
Crim. App. 2001). First, we consider “‘whether the indictment, as written,
informed the defendant of the charge against him sufficiently to allow him to
prepare an adequate defense at trial[.]’” Id. (quoting Gollihar, 46 S.W.3d at 257).
Second, we determine if the “‘deficiently drafted indictment would subject the
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defendant to the risk of being prosecuted later for the same crime.’” Id. The Court
of Criminal Appeals has explained its approach to variances involving non-
statutory allegations:
[F]or non-statutory allegations we tolerate some variation in
pleading and proof. We tolerate “little mistakes” that do not prejudice
the defendant’s substantial rights but we will not tolerate a variance
that really amounts to a failure to prove the offense alleged. What is
essential about variances with respect to non-statutory allegations is
that the variance should not be so great that the proof at trial “shows
an entirely different offense” than what was alleged in the charging
instrument.
Johnson, 364 S.W.3d at 295. To the extent Silva argues a variance exists, we
believe any alleged variance is immaterial. Under the first prong of the test, Silva
must demonstrate that the variance actually surprised him—he must demonstrate
that he was not sufficiently informed of the charges against him to the extent that
he was unable to prepare an adequate defense. See Santana, 59 S.W.3d at 194-95.
“The object of the doctrine of variance between allegations of an indictment is to
avoid surprise, and for such variance to be material it must be such as to mislead
the party to his prejudice.” Cole v. State, 611 S.W.2d 79, 82 (Tex. Crim. App.
1981) (internal citations and quotations omitted). The burden of demonstrating
surprise or prejudice rests with the defendant. Santana, 59 S.W.3d at 194. Silva
does not claim he was surprised by the evidence at trial that the daycare was
located in Spring. During a hearing before the trial court, the State informed the
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trial court that Silva’s counsel had received a copy of the offense report, which
indicated that the daycare was located in Spring, Texas, not Conroe. The State also
indicated that it had forwarded Silva’s trial counsel a map that had the correct
address written on it. Silva’s counsel did not refute having received these items
before trial. Further, there is no indication in the record that Silva did not know
which daycare the State claimed was located within 1,000 feet of where Silva was
found in possession of cocaine. There is no indication in the record that Silva was
misled by the State’s allegation that the daycare was located in Conroe, or that he
was surprised when the proof demonstrated the daycare was actually located in
Spring, Texas.
Silva also fails to show how the variance might subject him to subsequent
prosecution for the same crime. The indictment clearly identifies the offense, the
date of the offense, that the offense occurred “within 1,000 feet of premises owned
by Kinder Care Daycare,” and that Kinder Care Daycare was located at “24717
Oakhurst,” in Montgomery County, Texas. The Geographic Information Systems
coordinator for Montgomery County testified that in her position she creates maps
to help people visualize things spatially. In this case, she created a map that
depicted the premises located at 24717 Oakhurst Drive, Spring, Texas. She
testified that the appraisal district identifies Kinder Care Daycare at this address.
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The map depicts a 1,000-foot radius around the address. A licensing inspector from
the Department of Family and Protective Services and Child Care Licensing
testified that she is familiar with Kinder Care Daycare located at 24717 Oakhurst
Drive in Spring, Texas and confirmed that it is a daycare licensed by the State of
Texas. The center director for Kinder Care testified the daycare is located at 24717
Oakhurst in Spring, Texas. She testified that there are two other Kinder Care
facilities located in Montgomery County, both located in The Woodlands. She
testified that Kinder Care does not have a facility in Conroe, Texas. She testified
that there is only one Kinder Care located on a street named Oakhurst Drive in
Montgomery County. The evidence in the record supports that Silva was found in
possession of cocaine within 1,000 feet of the daycare facility located at 24717
Oakhurst Drive. If prosecuted again, Silva may avail himself of the entire record,
not just the indictment. See Gollihar, 46 S.W.3d at 258. Furthermore, the offense
here is possession of cocaine with the intent to deliver or manufacture within 1,000
feet of a school. The gravamen of the offense is that he possessed cocaine. If he
had possessed cocaine within 1,000 feet of twenty different schools, he would not
then be subject to twenty charges of possession. We conclude the State could not
prosecute Silva for the same possession offense again just because another daycare
is alleged to be within 1,000 feet of where he committed the offense of possession.
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After applying both prongs of the materiality test, we conclude that to the extent
Silva complains of a variance, the variance was immaterial. We overrule Silva’s
first issue.
II. Improper Jury Argument
In his second issue, Silva argues that statements made by the prosecutor in
closing arguments during the punishment phase of his trial were improper and
harmed him. The State contends Silva did not preserve this issue for review. To
preserve error for appellate review on an allegedly improper jury argument, a
defendant must make an objection, and then must pursue that objection to an
adverse ruling. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007);
Badall v. State, 216 S.W.3d 865, 872 (Tex. App.—Beaumont 2007, pet. ref’d); see
Tex. R. App. P. 33.1(a)(1)(A). If a trial court sustains a defendant’s objection, the
defendant must request an instruction to disregard and move for a mistrial to
preserve error for appeal. Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App.
1993). “It is well settled that when [an] appellant has been given all the relief he
requested at trial, there is nothing to complain of on appeal.” Id.; see Cockrell v.
State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).
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Silva complains that the following statements, made by the prosecutor
during his closing argument, were outside the record, and thus improper jury
argument:
[STATE]: And what does it tell us that when he has a 7-year-
old, a 5-year-old and a 1-year-old he’s still dealing cocaine out of his
house with those kids around?
[DEFENSE]: Your Honor, I object; it hasn’t been proven
beyond a reasonable doubt.
[STATE]: That’s for the jury to decide, Your Honor.
THE COURT: You may continue.
[STATE]: Thank you, Your Honor. They want you to have
sympathy and give him less time for that. Ladies and Gentlemen, I
submit to you when somebody is still dealing coke with their kids
around that’s a reason to give them more time and not less.
[DEFENSE]: Objection, Your Honor. There’s no evidence in
the record that he was dealing with his kids around. Absolutely none.
THE COURT: Sustained. It’s true there’s no evidence in the record
that I heard concerning him dealing when his kids were around.
Although the trial court had initially overruled Silva’s objection, it later sustained
the objection as to the statement that Silva had dealt drugs while his children were
around.2 The trial court then appears to make an effort to correct any
2
We note Silva did not obtain an express ruling the first time he objected to
the prosecutor’s statements; however, the trial court implicitly overruled this
objection by directing the prosecutor to continue. See Ramirez v. State, 815 S.W.2d
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misrepresentation of the evidence by stating there was no evidence in the record
that Silva dealt drugs when his children were around. While the trial court did not
formally instruct the jury to disregard the prosecutor’s statements, the trial court’s
response reflected its disapproval to the jury of the prosecutor’s statements as not
being supported by the evidence.
Silva also contests the following statement made by the prosecutor during
closing argument:
[STATE]: Every single person he has sold cocaine to has been
his victim. Every single child whose parent has been destroyed by
cocaine that he has sold them is his victim. Every single child who has
tried cocaine that he’s sold them is his victim. Remember his victims.
[DEFENSE]: There’s no evidence that he sold to children and I
ask the jury be instructed to disregard –
THE COURT: Sustained. Please disregard that particular
comment regarding selling to children.
Here, the trial court sustained Silva’s objection and instructed the jury to disregard
the improper comment made by the prosecutor.
Silva contests the following statement also made by the prosecutor during
the State’s closing argument:
636, 650 (Tex. Crim. App. 1991) (holding the trial judge “implicitly overruled”
defendant’s objection to the State’s question by directing witness to answer the
question).
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[STATE]: I ask that if you find any redeeming quality in him
take a little bit off life, but start from there. Start from the place you
can put him where he won’t put anybody else in jeopardy again, that
he won’t keep filling our streets in Montgomery County with the
poison that he has been selling so far. Because this poison is a cancer
on our society. And he’s the tumor. Let’s cut him out. Let’s get him
out of the way so we can at least try to be healthy.
[DEFENSE]: Object to characterizing the defendant as a tumor
and calling him names.
THE COURT: Sustained. I will ask [that] the word tumor not
be considered by the jury.
The court once again sustained Silva’s objection and instructed the jury not to
consider the word “tumor.”
Silva objected to the prosecutor’s statements, and the trial court sustained his
objections. The court then took measures to correct any misrepresentation created
by the prosecutor’s statements. However, Silva did not follow up his objections by
moving for a mistrial. Because the trial court granted Silva all the relief he
requested and Silva did not pursue the objection to an adverse ruling, he has failed
to preserve his complaints for review. See Tex. R. App. P. 33.1; see also Cook, 858
S.W.2d 473.
III. Sentencing Evidence—Unadjudicated Extraneous Offenses
Silva argues the trial court abused its discretion in allowing the jury to
consider evidence of his unadjudicated offenses during the punishment phase of
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trial. Silva specifically contests the admission of evidence to show that on
September 16, 2011, Silva committed the offense of possession of a controlled
substance and possession of a firearm by a felon. Silva asserts two challenges to
the trial court’s admission of evidence of his unadjudicated offenses. First, Silva
argues the trial court erred in not previewing the evidence before admitting it to
determine if sufficient evidence existed for the jury to reasonably find he
committed the extraneous offenses beyond a reasonable doubt. Second, Silva
argues the trial court abused its discretion by refusing to instruct the jury not to
consider any evidence of his unadjudicated offenses, after the State failed to prove
the chain of custody for the drugs and firearms by failing to establish the first link
in the chain of custody and by failing to bring the physical evidence before the
jury.
Article 37.07 of the Code of Criminal Procedure governs the admissibility of
evidence during the punishment phase of a non-capital trial. See Tex. Code Crim.
Proc. Ann. art. 37.07 (West Supp. 2013); see also Erazo v. State, 144 S.W.3d 487,
491 (Tex. Crim. App. 2004). Article 37.07 provides that the State may offer
evidence as to any matter the trial court deems relevant to sentencing, including
evidence of an extraneous crime that is shown beyond a reasonable doubt to have
14
been committed by the defendant. Tex. Code Crim. Proc. Ann. art. 37.07, §
3(a)(1).
Relevant punishment evidence is anything that assists the jury in
determining the appropriate sentence for a defendant:
The Legislature has expressly provided that “relevant” punishment
evidence includes, but is not limited to, both character evidence in the
form of opinion testimony as well as extraneous-offense evidence.
Because there are no discrete fact issues at the punishment phase of a
non-capital trial, we have ruled that the definition of “relevant,” as
stated in Rule 401 of the Texas Rules of Evidence, does not readily
apply to Article 37.07. What is “relevant” to the punishment
determination is simply that which will assist the fact finder in
deciding the appropriate sentence in a particular case. When the jury
assesses punishment, it must be able to tailor the sentence to the
particular defendant, and relevance is simply “a question of what is
helpful to the jury in determining the appropriate sentence for a
particular defendant in a particular case.”
Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008) (footnotes omitted)
(quoting Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim. App. 2006)).
When the defendant makes an appropriate objection to extraneous offense
evidence, the trial court has the responsibility to determine the threshold issue of
admissibility. Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996). The
trial court satisfies its responsibility by making an initial determination that a jury
could reasonably find, beyond a reasonable doubt, that the defendant committed
the extraneous offense. Mann v. State, 13 S.W.3d 89, 94 (Tex. App.—Austin
15
2000), aff’d, 58 S.W.3d 132 (Tex. Crim. App. 2001); see Mitchell, 931 S.W.2d at
954. Article 37.07 does not require the trial court to conduct a hearing outside the
presence of the jury to determine the admissibility of extraneous offenses during
the punishment phase of trial. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1);
see also Welch v. State, 993 S.W.2d 690, 697 (Tex. App.—San Antonio 1999, no
pet.). “The trial court may determine whether there is sufficient evidence through
an oral or written proffer of evidence, motions, pretrial hearings, and the trial,
including any bench conferences.” See Arzaga v. State, 86 S.W.3d 767, 781 (Tex.
App.—El Paso 2002, no pet.).
After opening statements during the punishment phase of trial, the State
called Officer Juan Martinez to testify. Before Martinez testified as to any details
of Silva’s extraneous offenses, the court held a bench conference to determine
whether there was sufficient evidence for a reasonable jury to find the extraneous
offenses beyond a reasonable doubt. The prosecutor informed the court of the
witnesses and evidence he intended to offer to prove the extraneous offenses. The
State indicated it had filed notice of and intended to offer evidence that on
September 6, 2011, Silva committed the offense of possession of a controlled
substance and the offense of possession of a firearm by a felon. During the bench
conference, the State informed the court it had two police officers and a chemist
16
prepared to testify in support of these offenses. The State explained that the
witnesses would (1) testify as to Silva’s identity and the place where he was
staying, (2) testify as to the details of a valid warrant and search of Silva’s place of
residence, and (3) testify that during the search of the residence, officers found
approximately 105 grams of cocaine and multiple weapons.
At the conclusion of the bench conference, the trial court denied Silva’s
request for a hearing outside the presence of the jury, and allowed the testimony
concerning the extraneous offenses. While the trial court made no express ruling
on the admissibility of the extraneous offense evidence, its denial of Silva’s request
for a hearing constitutes an implied ruling of admissibility. See Moore v. State, 82
S.W.3d 399, 408-09 (Tex. App.—Austin 2002, pet. ref’d), overruled on other
grounds by Taylor v. State, 268 S.W.3d 571, 587 (Tex. Crim. App. 2008). As the
trial court is not required to conduct a full hearing outside the presence of the jury,
the trial court did not abuse its discretion by conducting a preliminary review in
this manner. See Mann, 13 S.W.3d at 93-95; Arzaga, 86 S.W.3d at 781; Welch, 993
S.W.2d at 697; see also Tex. Code. Crim. Proc. Ann. art. 37.07, § 3(a)(1).
Accordingly, Silva’s contention that the trial court did not properly conduct a
threshold inquiry into the admissibility of the extraneous offense evidence is
without merit.
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We next consider Silva’s argument that the trial court erred in failing to
instruct the jury it could not consider the extraneous offenses in determining
punishment when, according to Silva, the State failed to meet its burden of proving
the extraneous offenses beyond a reasonable doubt.
When the State offers evidence of extraneous offenses, the State is required
to prove beyond a reasonable doubt that the defendant committed the said offense
or acts, or at least that the defendant is criminally responsible for its commission.
See Mitchell, 931 S.W.2d at 954. However, the trial court’s threshold
determination is not a finding that the State has proven the extraneous offense
beyond a reasonable doubt, but is instead a finding that sufficient evidence exists
from which a jury could reasonably so find. Mann, 13 S.W.3d at 94 (“[T]he court
must make an initial determination at the proffer of the evidence that a jury could
reasonably find beyond a reasonable doubt that the defendant committed the
extraneous offense.”). If the trial court finds sufficient evidence, the jury then, as
the exclusive judge of the facts, determines whether the State has proved the
extraneous offense beyond a reasonable doubt. Mitchell, 931 S.W.2d at 954.
Here, the trial court properly instructed the jury in its written punishment
charge that it was to consider extraneous offenses only if it determined that the
State had proven beyond a reasonable doubt that Silva had committed such
18
extraneous offenses or could be held criminally responsible for the offenses. The
jury is presumed to have followed the court’s charge. See Gamez v. State, 737
S.W.2d 315, 324 (Tex. Crim. App. 1987). We overrule Silva’s third issue.
IV. Batson Challenges
Silva argues the trial court committed reversible error by allowing the State,
in violation of Batson v. Kentucky, 476 U.S. 79 (1986), to use peremptory
challenges to exclude two African American venire members. The State responds
that the trial court properly overruled Silva’s Batson challenge because it gave
legitimate, race-neutral reasons for the strikes of the minority panel members.
In Batson, the United States Supreme Court held that the State violates the
Equal Protection Clause when the State excludes a venire member based on race.
476 U.S. at 85-86. The Court established a three-step process for evaluating Batson
claims: (1) the defendant must make a prima facie showing of racial
discrimination; (2) if the defendant makes that showing, the burden shifts to the
prosecutor to articulate a race-neutral reason for the strike; and (3) the trial court
must determine if the defendant has proven purposeful discrimination. Id. at 96-98;
Nieto v. State, 365 S.W.3d 673, 675-76 (Tex. Crim. App. 2012). Because the trial
court’s decision largely turns on its evaluation of credibility, we give the court’s
decision great deference and will not disturb it unless it is clearly erroneous. Ladd
19
v. State, 3 S.W.3d 547, 563 (Tex. Crim. App. 1999); see also Watkins v. State, 245
S.W.3d 444, 448 (Tex. Crim. App. 2008) (“[A] reviewing court should examine a
trial court’s conclusion that a facially race-neutral explanation for a peremptory
challenge is genuine, rather than a pretext, with great deference, reversing only
when that conclusion is, in view of the record as a whole, clearly erroneous.”)
During voir dire, Silva made a Batson challenge to the State’s peremptory
strikes of venire member 10 and venire member 19 because both members are
African American women that are available to serve and no other African
Americans were serving on the jury. The trial court gave the State the opportunity
to provide a race-neutral reason for the strikes. The prosecutor responded: “As to
Juror Number 10, she had informed the Court that she was the wife of a criminal
defense attorney. And on that basis we struck her.” The prosecutor then stated, “As
for 19, she was the one who said that she thought that users should be punished
more than dealers.” The trial court found that the reasons given for the strikes were
sufficient to show race-neutral reasons for the peremptory strikes.
Silva claims the State’s use of two of its ten peremptory strikes to eliminate
all of the African Americans in the strike zone shows the State’s proffered reasons
for striking venire members 10 and 19 were a pretext to purposeful discrimination.
In support of his position, Silva relies on Greer v. State, 310 S.W.3d 11 (Tex.
20
App.—Dallas 2009, no pet.). But Greer is distinguishable because the Dallas Court
of Appeals first emphasized in Greer that the State used all of its peremptory
strikes against African Americans, who made up only 27% of the venire panel. See
id. at 15. We are unable to tell by the record how many African Americans were
members of the venire panel in this case. According to Silva, the State did not use
all of its strikes against African Americans; only two of its ten were used against
African Americans. The court in Greer also considered that the State’s proffered
reasons were implausible given that a very similar white juror had not been struck.
Id. at 15-19. Unlike Greer, in this case, there is no evidence that the facially race-
neutral reasons provided by the State were implausible. Silva does not use
comparative juror analysis with regards to venire member 10, but does compare
venire member 19 with venire member 7. Specifically, Silva references the
following question posed by the State during voir dire, “Is there anybody that
thinks that using drugs is worse than selling drugs?” Silva correctly points out that
venire members 19, 7, 61, and 3 all responded affirmatively to this question.
However, the State then followed up with another question: “Is there anybody who
thinks that dealers should be treated lighter than users?” While initially none of the
venire members answered affirmatively to this question, later venire member 19
indicated that she believed “people who deliver [drugs] should be judged lighter
21
than those who use [drugs.]” Silva argues that the State’s disparate treatment is
revealed by comparing venire member 7 and 19 because the State did not strike
venire member 7, who was not an African American, when venire member 7 also
agreed that using drugs was worse than selling drugs. However, venire member 7
did not agree that a dealer should receive lighter punishment than a user, the
express reason given by the State for striking venire member 19.
Silva argues the State’s basis for striking venire member 10 was also
pretextual. Silva contends the reason given by the State for striking member 10
was inaccurate because venire member 10 did not actually say her husband was a
“criminal defense attorney,” she merely stated that her husband was a “criminal
attorney.” In presenting his basis for striking venire member 10, the prosecutor
stated, “she had informed the Court that she was the wife of a criminal defense
attorney.” From the arguments Silva’s trial counsel made to the trial court, it is
likely that Silva’s trial counsel also understood venire member 10’s statement to
mean that her husband was a criminal defense attorney. Silva’s counsel argued,
“simply being married to a criminal defense attorney does not disqualify them
from serving on a jury.” While it is certainly plausible that venire member 10
meant that her husband was a prosecutor, the State is not required to root out every
possible interpretation. See Whitsey v. State, 796 S.W.2d 707, 722 (Tex. Crim.
22
Ohio App. 1989) (“‘If the district court’s account of the evidence is plausible in light of
the record viewed in its entirety, the court of appeals may not reverse it even
though convinced that had it been sitting as the trier of fact, it would have weighed
the evidence differently. Where there are two permissible views of the evidence,
the fact-finder’s choice between them cannot be clearly erroneous.’”) (quoting
Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985)).
Because the State offered race-neutral motives for its strikes, and Silva
failed to rebut those motives, we cannot say the trial court’s rulings were “clearly
erroneous.” See Watkins, 245 S.W.3d at 448. Silva’s fourth issue is overruled.
Having overruled Silva’s four issues on appeal, we affirm the judgment of
the trial court.
AFFIRMED.
______________________________
CHARLES KREGER
Justice
Submitted on December 3, 2013
Opinion Delivered June 11, 2014
Do not publish
Before McKeithen, C.J., Kreger, and Horton, JJ.
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