Agnew, Nicky Charune ( 2015 )


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  •                                                            March 10, 2015
    _______________
    PD-0145-15
    _______________
    IN THE
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    ______________
    NICKY CHARUNE AGNEW, Appellant
    VS.
    THE STATE OF TEXAS, Appellee
    APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
    No. 12-13-00181-CR
    Court of Appeals
    Twelfth District of Texas
    On Appeal from the 7th District Court of Smith County, Texas
    007-1194-11
    ORAL ARGUMENT REQUESTED
    Carlo D’Angelo
    State Bar No. 24052664
    100 East Ferguson, Suite 1210
    Tyler, Texas 75703
    Tel. 903.595.6776
    Fax 903.407.4119
    carlo@dangelolegal.com
    Attorney for the Appellant
    IDENTITY OF PARTIES AND COUNSEL
    Attorney for Appellant
    Appellate Counsel:
    Carlo D’Angelo
    100 East Ferguson, Suite 1210
    Tyler, Texas 75703
    Trial Counsel:
    Michael J. Todd
    700 North Pearl Street, Suite 2170
    Tyler, Texas 75201
    Attorney for the State on Appeal
    Michael J. West
    Assistant District Attorney, Smith County
    4th Floor, Courthouse
    100 North Broadway
    Tyler, TX 75702
    ii
    TABLE OF CONTENTS
    IDENTITY OF PARTIES AND COUNSEL ......................................................ii
    TABLE OF CONTENTS.......................................................................................iii
    INDEX OF AUTHORITIES.................................................................................iv
    STATEMENT REGARDING ORAL ARGUMENT...........................................2
    STATEMENT OF THE CASE...........................................................................2-3
    STATEMENT OF PROCEDURAL HISTORY..................................................3
    GROUNDS FOR REVIEW...................................................................................3
    ARGUMENT...........................................................................................................4
    I.     The Court of Appeals erred by failing to find that the trial
    court committed clear error in its assessment of the
    prosecutor’s stated justifications his race-motivated strikes
    in this case…………………………………………………………….4
    II.    The court of appeals failed to apply the proper deference
    standard to the record facts in this case prior to denying
    relief as to Appellant’s suppression issue………………………6
    III.   The Court of Appeals failed to give adequate consideration to
    all the factors in support of Appellant’s request for an Article
    38.23 instruction……………………………………………..……..10
    CONCLUSION AND PRAYER .........................................................................12
    CERTIFICATE OF SERVICE ...........................................................................12
    APPENDIX............................................................................................................14
    iii
    INDEX OF AUTHORITIES
    Agnew v. State, Cause No. 12-13-00181-CR (Tex. App.—Tyler November 25, 2014)
    (not designated for publication) ……………………………...…………………….3
    Agnew v. State, Cause No. 12-13-00181-CR, 
    2015 WL 84726
    (Tex. App.—Tyler
    Jan. 7 2015) (not designated for publication)………………..……………………..3
    State v. Cullen, 
    195 S.W.3d 696
    , 699 (Tex. Crim. App. 2006) ……………………...8
    State v. Castleberry, 
    332 S.W.3d 460
    , 465 (Tex. Crim. App. 2011) …………………8
    Chambers v. State, 
    866 S.W.2d 9
    , 23 (Tex. Crim. App. 1993) …………………..…..4
    Hamal v. State, 
    390 S.W.3d 302
    (Tex. Crim. App. 2012)………………………….11
    Hernandez v. New York, 
    500 U.S. 352
    , 365 (1991)……………………………...……5
    State v. Garcia-Cantu, 
    253 S.W.3d 236
    , 241 (Tex. Crim. App. 2008)……………….9
    Garza v. State, 
    126 S.W.3d 79
    , 85 (Tex.Crim.App.2004) ……………………..….10
    Gibson v. State, 
    144 S.W.3d 530
    , 534 (Tex. Crim. App. 2004) ……………….…….4
    Keeton v. State, 
    749 S.W.2d 861
    , 868 (Tex. Crim. App. 1988)……….…………..….4
    Lujan v. State, 
    331 S.W.3d 768
    , 771 (Tex. Crim. App. 2011) ………………...……8
    United States v. U.S. Gypsum Co., 
    333 U.S. 364
    , 395 (1948) …………………………5
    STATUTES AND CONSTITUTIONAL PROVISIONS:
    TEX. CRIM. P. ARTICLE 38.23(a)...................................................................10
    TEX. R. APP. P. 66.3(c)……………………………………………………….…..9
    TEX. R. APP. P. 66.3(f) .....................................................................................5, 10
    iv
    _______________
    PD-0145-15
    _______________
    IN THE
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    ______________
    NICKY CHARUNE AGNEW, Appellant
    VS.
    THE STATE OF TEXAS, Appellee
    APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
    No. 12-13-00181-CR
    Court of Appeals
    Twelfth District of Texas
    On Appeal from the 7th District Court of Smith County, Texas
    007-1194-11
    Carlo D’Angelo
    State Bar No. 24052664
    100 East Ferguson, Suite 1210
    Tyler, Texas 75703
    Tel. 903.595.6776
    Fax 903.407.4119
    carlo@dangelolegal.com
    Attorney for the Appellant
    TO THE HONORABLE COURT OF CRIMINAL APPEALS:
    COMES NOW the Appellant, Nicky Charune Agnew, by and through his
    attorney of record, Carlo D’Angelo, and respectfully submits this Petition for
    Discretionary Review pursuant to Tex. R. App. P. 68.4 and would show as follows:
    STATEMENT REQUESTING ORAL ARGUMENT
    The Court of Appeal’s reasoning in this case is in direct conflict with well settled
    precedent in both this Court and the Supreme Court of the United States. Accordingly,
    this Court should grant oral argument so that counsel may more fully present its positions
    and answer any questions this Court may have after preliminarily reviewing this case.
    STATEMENT OF THE CASE
    On March 22, 2011, Texas Department of Pubic Safety (“DPS”) Trooper
    Jonathan Peters conducted a lawful stop of Appellant’s vehicle on Interstate 20 in Smith
    County, Texas (RR 20/14). After Trooper Peters had completed Appellant’s traffic
    citations, he called for a K-9 unit (RR 20/64). Deputy Constable Mark Waters later
    arrived and deployed his K-9 on Appellant’s vehicle. 
    Id. Constable Water’s
    K-9 gave a
    passive alert to the presence of drugs in Appellant’s vehicle. 
    Id. Deputy Peters
    thereafter
    conducted a search of Appellant’s vehicle and found a non-factory compartment in the
    backseat (RR 20/163). The compartment had a trunk latch which held the door in
    place. 
    Id. Peters ultimately
    tripped open the latch and discovered a quantity of suspect
    crack cocaine. 
    Id. Appellant was
    arrested for possession of a controlled substance and was
    transported to the Tyler DPS Office for booking. 
    Id. After a
    jury trial in the Seventh District Court of Smith County, Texas, Appellant
    was found guilty of the offense of possession of cocaine (greater than four grams, but less
    2
    than 200 grams) (RR 22/107). Appellant was thereafter sentenced to Life imprisonment
    in the Texas Department of Criminal Justice based in part upon his two prior felony
    convictions (RR 22/166).
    STATEMENT OF PROCEDURAL HISTORY
    On November 25, 2014, the 12th District Court of Appeals in Tyler, Texas issued
    an original opinion affirming Appellant’s conviction. See Nicky Charune Agnew v. State, Cause
    No. 12-13-00181-CR (Tex. App.—Tyler November 25, 2014) (not designated for
    publication). Appellant thereafter filed a timely motion for rehearing. On January 7,
    2015, the Court of Appeals overruled Appellant’s motion for rehearing, withdrew its prior
    opinion of November 25, 2014 and entered a new order of affirmance. See Nicky Charune
    Agnew v. State, Cause No. 12-13-00181-CR, 
    2015 WL 84726
    (Tex. App.—Tyler Jan. 7
    2015) (not designated for publication). On February 6, 2015, this Court granted
    Appellant’s request for an extension of time in which to file a PDR. Therefore, if filed on
    or by March 9, 2015, this Petition will be timely.
    GROUNDS FOR REVIEW
    I. The Court of Appeals erred by failing to find that the trial court
    committed clear error in its assessment of the prosecutor’s stated
    justifications his race-motivated strikes in this case.
    At trial, Appellant asked the trial court to take judicial notice that he is African
    American and that there were five African American individuals that were on the panel
    within the strike range (RR 19/152). The State exercised peremptory challenges in
    striking all five of those individuals. 
    Id. The five
    African American jurors struck by the
    3
    State were Jurors Number 23, 24, 26, 28 and 44. 
    Id. As a
    consequence, the remaining
    jury panel was completely devoid of any African American representation.
    The Court of Appeals erred in holding that defendant failed to prove by a
    preponderance of the evidence that the reasons given by the State were a sham or a
    pretext for discrimination See Keeton v. State, 
    749 S.W.2d 861
    , 868 (Tex. Crim. App. 1988)
    (noting that a defendant must do more than simply disagree with the State's explanations
    in order to rebut the State’s race neutral reasons). The Court of Appeals compounded
    this error by affording the trial court's finding in this respect undue deference. See Chambers
    v. State, 
    866 S.W.2d 9
    , 23 (Tex. Crim. App. 1993).
    Although the trial court is typically in the best position to make a credibility
    determination concerning a prosecutor’s stated reasons for racially motivated strikes
    (Gibson v. State, 
    144 S.W.3d 530
    , 534 (Tex. Crim. App. 2004)), the trial court in the
    present case should not have been afforded such sweeping deference by the Court of
    Appeals.
    The trial court’s comments at trial concerning the state of the law regarding Batson
    claims gave the Tyler Court justifiable concern and prompted it to find those comments
    were “troubling”:
    [W]e can argue all day of whether they did it intentionally to get rid of
    African Americans or not. But without getting inside their heads, which the
    law, I don't think, lets that happen—I mean, if they've got race-neutral
    reasons, again, my personal opinion, that's the reason we don't see many
    Batson opinions any longer is that the problem that was there pretty much
    either fixed, number one, or just like all areas of the law, once it becomes
    under light of day, the parties figure out how to do it in a different fashion
    that is not really challengeable.
    See Agnew, 
    2015 WL 84726
    at *10
    4
    The Court of Appeals added that “under no circumstances should a trial court determine
    that the State's conduct in striking jurors on the basis of race is “not really challengeable.”
    See Agnew, 
    2015 WL 84726
    at *10 (emphasis added). The Twelfth Court nevertheless gave
    the trial court’s assessment of the State’s motivation for the racially motivated strikes
    undue deference by noting the trial court did ultimately elaborate on its assessment on the
    state of the law, stating, “But, again, I'm not saying that in this case”. 
    Id. Ultimately, the
    Court of Appeals held that the trial court’s denial of
    Appellant’s Batson objection was not “clearly erroneous” because the “trial court
    was able to observe and hear not only what the prosecutor said, but how he said
    it.” 
    Id. The Twelfth
    Court should not have, however, afforded the trial court’s
    findings such deference in light of its stated feelings with respect to the viability of a
    Batson claim. The trial court essentially stated that Batson objections are futile. The
    Twelfth Court set aside this obvious bias by the trial court and elected to afford it
    undue deference. Hernandez v. New York, 
    500 U.S. 352
    , 365 (1991). (holding “a trial
    judge has committed clear error when the appellate court after reviewing all of the
    “‘evidence [would be] left with the definite and firm conviction that a mistake
    ha[d] been committed”’) 
    Id. at 369
    (quoting United States v. U.S. Gypsum Co., 
    333 U.S. 364
    , 395 (1948)). Accordingly, Appellant is entitled to a rehearing as to merits
    of this claim given the trial court’s clear departure from the accepted and usual
    course of judicial proceedings. See Tex. R. App. P. 66.3(f).
    5
    II.      The court of appeals failed to apply the proper deference standard to
    the record facts in this case prior to denying relief as to Appellant’s
    suppression issue.
    Appellant filed a pretrial motion to suppress challenging the initial stop, the extended
    detention and the reliability of the K-9 Unit (CR 18-20). The Court of Appeals held that
    the trial court did not abuse its discretion by denying Appellant’s motion to suppress
    based upon Appellant’s extended detention during the traffic stop. See Agnew, 
    2015 WL 84726
    at *5. In reaching this holding, the Court of Appeals concluded that the trial court
    failed to make explicit findings of fact in support of its ruling. 
    Id. As a
    consequence, the
    Court of Appeals viewed the suppression evidence in the light most favorable to the trial
    court’s ruling and afforded the State “the strongest legitimate view of the evidence and all
    reasonable inferences that may be drawn from the that evidence.” 
    Id. at *3.
    Although trial counsel failed to request the court to make findings of fact, the
    record demonstrates that the trial court did in fact make explicit findings on the record
    with respect to its denial of the motion to suppress (RR 21/135-141)
    So with those things I find that there was a valid stop, as I've already
    indicated. I find that the officer did have a legitimate reason to make the
    initial stop. And through his continued investigation, he did have
    reasonable suspicion to bring about the subsequent events that happened.
    (RR 21/140).
    The trial court made a specific finding that the trooper in this case was diligent
    and did not detain Appellant for an unreasonable period of time prior to the K-9
    Unit’s arrival.
    And it certainly appeared, when we go back and look at the timing on this
    particular case, that there was diligence going on. There was, I think, points
    in the record there was testimony it might have been 15 minutes before
    Officer Peters -- Trooper Peters called for the dog. But, actually, the record
    6
    shows it was called much earlier than 15 minutes, roughly, around the six-
    and-a-half to seven minute mark, according to what I was seeing on the one
    that, I think, is the same one the jury watched.
    (RR 21/139).
    According to the trial record, Trooper Peters claimed that he observed Appellant’s
    hands shake as he handed over his insurance card (RR 20/17). Appellant informed
    Trooper Peters that he worked for a cleaning services, but was travelling to visit family in
    Kilgore, Texas where he planned to stay for two or three days (RR 20/19). Appellant
    had a small tote bag full of clothes in the vehicle that the Trooper surmised was an
    insufficient amount of clothing for a two or three day trip. 
    Id. Peters believed
    that based
    upon Appellant’s driving behavior, nervousness, the size of his tote bag, and his
    explanation as to the nature of his stay, his failure to make eye-contact with him as they
    spoke and his defeated posture that he was up to some criminal activity. 
    Id. Trooper Peters
    also found it odd that Appellant, who stated he worked for a cleaning service,
    would be travelling during a weeknight (RR 20/19). Trooper Peters acknowledged,
    however, that he did not ask Appellant about his work schedule or get any specific
    information about his job (RR 20/36 and 233).
    Trooper Peters asked if Appellant had anything illegal in the vehicle. 
    Id. He claims
    that Appellant looked away and said no but smiled. 
    Id. Peters thereafter
    asked for consent
    to search Appellant’s vehicle and he claims Appellant would not give a direct answer of
    yes or no but instead insisted that there was no reason to search his vehicle (RR 20/22).
    Despite the fact that Trooper Peters had already completed warning citations for the
    above traffic infractions, he continued to detain Appellant until a K-9 unit could arrive.
    
    Id. 7 After
    a lengthy detention, Deputy Constable Mark Waters and his K-9 Cros
    arrived to the scene (RR 20/64). Deputy Waters deployed his K-9 and conducted a free
    air search around the outside of Appellant’s vehicle. 
    Id. Waters claims
    that Cros alerted to
    the presence of drugs on the passenger side of Appellant’s vehicle. 
    Id. On appeal,
    the Twelfth Court incorrectly concluded that the trial court failed to
    make specific record findings in this case. See State v. Cullen, 
    195 S.W.3d 696
    , 699 (Tex.
    Crim. App. 2006) (noting that a trial court’s findings of fact and conclusions of law are
    sufficient if they are “recorded in some way, whether written out and filed by the trial
    court, or stated on the record at the hearing”).
    The Court of Appeals based it’s flawed finding upon Lujan v. State, 
    331 S.W.3d 768
    , 771 (Tex. Crim. App. 2011) (finding that when the trial court does not make express
    findings of fact, the reviewing court must view the evidence in the light most favorable to
    the trial court's ruling and should assume the trial court made implicit findings of fact that
    support its ruling as long as those findings are supported by the record). The Court of
    Appeals reliance upon Lujan is misplaced, however, because in the present case the trial
    court did in fact articulate specific findings.
    The Tyler court further compounded this error by reasoning that where the trial
    court makes “implicit” findings, the State is entitled to “the strongest legitimate view of
    the evidence and all reasonable inferences that may be drawn from that evidence.” See
    Agnew, 
    2015 WL 84726
    at *3 (emphasis added). The Twelfth Court’s reliance upon State v.
    Castleberry, 
    332 S.W.3d 460
    , 465 (Tex. Crim. App. 2011) in reaching this conclusion is
    therefore also misplaced. This Court in Castleberry held that:
    8
    When the trial judge makes explicit findings of fact, we afford those
    findings almost total deference as long as the record supports them,
    regardless of whether the motion to suppress was granted or denied.
    Therefore, the prevailing party is entitled to “the strongest legitimate view
    of the evidence and all reasonable inferences that may be drawn from that
    evidence.
    
    Id. at 465
    (emphasis added).
    As a consequence, the Court of Appeal erred in assigning the State such a high
    standard of deference when it evaluated the facts in the record that supported the trial
    court’s ruling. Because the trial court made explicit findings of fact in this case, the Court
    of Appeal should have conducted a de novo review of the facts in support of the court’s
    ruling that the detention in this case was reasonable. See State v. Garcia-Cantu, 
    253 S.W.3d 236
    , 241 (Tex. Crim. App. 2008) (noting that the question of whether a given set of
    historical facts amount to a consensual police-citizen encounter or a detention under the
    Fourth Amendment is subject to de novo review because that is an issue of law-the
    application of legal principles to a specific set of facts).
    As a consequence, the Court of Appeal’s reasoning in this case is in direct conflict
    with both this Court and the Supreme Court of the United States and necessitates further
    review under this Petition. See Tex. R. App. P. 66.3(c).
    The Court of Appeal wrongly concluded that the trial court made no explicit
    findings of fact in this case and therefore took it upon itself to imply the necessary findings
    in support of the trial court’s ruling. By doing so, the Tyler Court of Appeals failed to
    consider whether the evidence in this case, when viewed in the light most favorable to the
    trial court’s ruling, supported those implied findings of fact. The Tyler Court’s holding so
    9
    far departs from the accepted and usual course of judicial proceedings that this Court
    should exercise its power of supervision in this case. Tex. R. App. P. 66.3(f).
    III. The Court of Appeals failed to give adequate consideration to all the
    factors in support of Appellant’s request for an Article 38.23 instruction.
    The Court of Appeals held that the trial court did not err in refusing to provide an
    Article 38.23 jury instruction. See Agnew, 
    2015 WL 84726
    at *6. In reaching its holding,
    the Court of Appeals failed to fully consider the factual issues articulated in Appellant’s
    brief (Appellant’s Brief at 3, 5-20 and 42). See Garza v. State, 
    126 S.W.3d 79
    , 85
    (Tex.Crim.App.2004) (A jury instruction under article 38.23 is required only when there
    is a factual dispute concerning the legality of the seizure of evidence).
    The Court of Appeals states in its opinion that Appellant failed to “specifically
    delineate the issues of fact that the jury should have decided.” 
    Id. The Twelfth
    Court
    concluded that the only fact-issue raised by Appellant concerned whether he appeared
    nervous after he was detained. 
    Id. In reaching
    this conclusion, the Court failed to
    consider a number of additional fact-claims raised in Appellant’s brief that the jury should
    have decided and that justified the granting of an Article 38.23 instruction. Specifically,
    Appellant articulated the following facts that touched upon the impropriety of the seizure
    in this case.
    In the present case, the evidence heard by the jury raised an issue of fact
    that Appellant affirmatively contested. Specifically, Appellant contested the
    four factors alleged by Trooper Peters in support of the continued detention
    in this case; 1) driving behavior; 2) his nervousness; 3) his insufficient
    clothing for a 2 to 3-night trip; and 4) his mid-week trip for a cleaning job
    (RR 20/229). There is no doubt that these contested factual issues were
    material to the lawfulness of the prolonged detention in this case.
    Appellant’s Brief at 42.
    10
    Appellant also provided the Tyler Court with a detailed dissection of these
    four factors both in the Statement of Facts and in his first issue concerning the
    denial of the motion to suppress. 
    Id. at 3
    and 5 – 20. Appellant thereafter restated
    these fact-issues in support of the 38.23 jury instruction claim.
    Trooper Peters agreed with Appellant on cross examination that, prior to
    the continued detention, he was not aware of Appellant’s insufficient
    clothing for a 2 to 3-night trip (RR 20/246) or his mid-week trip for a
    cleaning job (RR 20/233).
    Appellant’s Brief at 42.
    Rather than addressing these factors, the Court of Appeals focused
    exclusively upon the issue of nervousness reasoning that this was the only disputed
    fact alleged. See Agnew, 
    2015 WL 84726
    at 6* (“His shaking hands were not the
    only evidence of his nervousness and therefore, no fact issue was present for the
    jury to decide”). The Twelfth Court went on to list the other instances of
    nervousness that justified the prolong detention including Appellant’s lack of eye
    contact, his clenched fist, his defeated posture and his nervous smile. 
    Id. But the
    Court failed to address any of the non-nervousness factors that Appellant took
    issue with and that the jury should have considered under an Article 38.23
    instruction.
    The Tyler court focused strictly on Appellant’s nervousness and thereby
    failed to consider any of the other disputed facts raised by Appellant. See Hamal v.
    State, 
    390 S.W.3d 302
    (Tex. Crim. App. 2012) (holding that although nervousness
    alone is not sufficient to establish reasonable suspicion for an investigative
    detention following a traffic stop, it can do so in combination with other factors).
    11
    These other disputed facts were equally material to Appellant’s claim that
    the evidence seized in this case was inadmissible.        Accordingly, Appellant is
    entitled to consideration of discretionary review of this claim. See Tex. R. App. P.
    66.3(f) (noting that a PDR should be granted when a court of appeals has so far
    departed from the accepted and usual course of judicial proceedings, or so far
    sanctioned such a departure by a lower court, as to call for an exercise of the Court
    of Criminal Appeals' power of supervision).
    CONCLUSION AND PRAYER
    Wherefore, premises considered, Appellant respectfully prays that the Court grant
    this Petition for Discretionary Review, that the case be set for submission in the Court,
    and, after submission, that the Court reverse the judgment of the appellate court and
    remand for further proceedings.
    Respectfully submitted,
    /s/ Carlo D’Angelo
    Carlo D’Angelo
    State Bar No. 24052664
    100 East Ferguson, Suite 1210
    Tyler, Texas 75703
    Tel. 903.595.6776
    Fax 903.407.4119
    carlo@dangelolegal.com
    Attorney for the Appellant
    CERTIFICATE OF SERVICE
    I certify that a true and correct copy of Appellant’s Petition for Discretionary
    Review was delivered to the following parties on 9 March 2015:
    12
    Michael West
    Assistant District Attorney
    Smith County District Attorney
    100 N. Broadway Avenue, 4th Floor
    Tyler, Texas 75702
    mwest@smith-county.com
    State Prosecuting Attorney
    P.O. Box 13046
    Austin, TX 78711
    /s/ Carlo D’Angelo
    Carlo D’Angelo
    13
    APPENDIX
    Agnew v. State, Cause No. 12-13-00181-CR, 
    2015 WL 84726
    (Tex. App.—Tyler Jan. 7
    2015) (not designated for publication)
    14
    NO. 12-13-00181-CR
    IN THE COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT
    TYLER, TEXAS
    NICKY CHARUNE AGNEW,                                   §       APPEAL FROM THE 7TH
    APPELLANT
    V.                                                     §       JUDICIAL DISTRICT COURT
    THE STATE OF TEXAS,
    APPELLEE                                               §       SMITH COUNTY, TEXAS
    MEMORANDUM OPINION ON REHEARING
    Nicky Charune Agnew filed a motion for rehearing, which is overruled. We withdraw
    our opinion dated November 25, 2014, and substitute the following opinion in its place.
    Nicky Charune Agnew appeals his conviction for possession of between four and two
    hundred grams of cocaine, for which he was sentenced to imprisonment for life. Appellant raises
    six issues on appeal. We affirm.
    BACKGROUND
    Appellant was driving his vehicle in the left lane of eastbound Interstate 20 in Smith
    County, Texas. Texas Department of Public Safety Trooper Jonathan Peters was traveling in the
    same lane behind Appellant.           Peters flashed his patrol vehicle’s   high beam headlights at
    Appellant to signal to him to move his vehicle out of the left lane to allow Peters to pass, but
    Appellant failed to oblige. Instead, Appellant slowed down. Peters initiated a traffic stop based
    on  Appellant’s  driving  in  the  left  lane  when  not  passing  another vehicle.
    When Peters engaged his patrol vehicle’s  light bar to indicate to Appellant that he needed
    to pull over, Appellant initially allowed his vehicle to drift farther to the left toward the median.
    But Appellant eventually pulled over to the right side of the interstate. As Appellant slowed his
    vehicle,  Peters  noticed  that  one  of  Appellant’s  brake  lights  was  inoperable.
    Peters  made  contact  with  Appellant.    He  obtained  Appellant’s  driver’s  license  and  proof
    of insurance and instructed Appellant to exit the vehicle. Peters noticed that Appellant had a
    small bag in his back seat that appeared to contain only two or three items of clothing. Peters
    further observed that Appellant was acting nervously. Peters told Appellant that he was giving
    him a warning citation, but took note that Appellant’s  nervous  behavior persisted.
    Peters asked Appellant if he had a job, and Appellant answered that he worked for a
    commercial cleaning company. Peters also asked Appellant about the purpose of his trip, and
    Appellant answered that he was traveling to visit family in Kilgore, Texas, for two to three days.
    Peters doubted the veracity of Appellant’s  stated  purpose  of his trip for two reasons. First, Peters
    stopped Appellant during the work week, and Peters believed that a janitor working for a
    commercial cleaning company would be working on weeknights and could not miss that many
    days of work. Second, the clothing Peters observed in the back seat   of   Appellant’s   vehicle
    appeared to him to be insufficient for a two or three day trip.
    Peters determined that Appellant had no outstanding warrants and completed the warning
    citation for Appellant. But Peters suspected nonetheless that Appellant was committing a crime.
    Peters asked Appellant if there was anything illegal in his vehicle.    Appellant  answered,  “No,”
    but looked away and smiled as he answered.    Peters  requested  permission  to  search  Appellant’s
    vehicle. Appellant initially avoided  directly  answering  Peters’s request, but ultimately declined
    to give his consent to the search. In response, Peters requested that a K-9 Unit come to the
    scene.
    Deputy Mark Waters of the Smith County Precinct 5 constable’s   office   and   his   trained
    drug dog, Cros, arrived at the scene several minutes later. According to Waters, Cros gave a
    positive alert that  drugs  were  in  Appellant’s  vehicle.    As  a  result  of  Cros’s positive alert, Peters
    and other officers then on the scene began their search. During their search, the officers found a
    nonfactory   compartment   in   Appellant’s   vehicle, which contained a sizeable quantity of crack
    cocaine. Appellant was placed under arrest.
    Appellant was charged by indictment with possession of between four and two hundred
    grams   of   cocaine   and   pleaded   “not   guilty.”      The   indictment   further   alleged   that   Appellant had
    been convicted of two prior felonies. Appellant filed a motion to suppress, which the trial court
    denied.
    2
    The matter proceeded to a jury trial. Ultimately, the jury found Appellant “guilty”   as
    charged. Following a trial on punishment, the jury found the enhancement allegations to be
    “true”  and  assessed  Appellant’s  punishment  at  imprisonment for life. The trial court sentenced
    Appellant accordingly, and this appeal followed.
    MOTION TO SUPPRESS
    In his first issue, Appellant argues that the trial court erred in denying his motion to
    suppress because Peters unlawfully extended the traffic stop. In his second issue, Appellant
    contends that the trial court erred in denying his motion to suppress based upon the unreliability
    of the K-9 Unit.
    Standard of Review
    We review a trial court’s ruling on a motion to suppress under a bifurcated standard of
    review. Hubert v. State, 
    312 S.W.3d 554
    , 559 (Tex. Crim. App. 2010); Carmouche v. State, 
    10 S.W.3d 323
    , 327 (Tex. Crim. App. 2000). A trial court’s decision to grant or deny a motion to
    suppress is generally reviewed under an abuse of discretion standard. Shepherd v. State, 
    273 S.W.3d 681
    , 684 (Tex. Crim. App. 2008). We give almost total deference to a trial court’s
    determination of historical facts, especially if those determinations turn on witness credibility or
    demeanor, and review de novo the trial court’s application of the law to facts not based on an
    evaluation of credibility and demeanor. Neal v. State, 
    256 S.W.3d 264
    , 281 (Tex. Crim. App.
    2008). When deciding a motion to suppress evidence, a trial court is the exclusive trier of fact
    and judge of the witnesses’ credibility. Maxwell v. State, 
    73 S.W.3d 278
    , 281 (Tex. Crim. App.
    2002). Accordingly, a trial court may choose to believe or disbelieve all or any part of a
    witness’s testimony. See State v. Ross, 
    32 S.W.3d 853
    , 855 (Tex. Crim. App. 2000).
    When a trial court does not make express findings of fact, we view the evidence in the
    light most favorable to the trial court’s ruling and assume the trial court made implicit findings of
    fact that support its ruling as long as those findings are supported by the record. Lujan v. State,
    
    331 S.W.3d 768
    , 771 (Tex. Crim. App. 2011). Therefore, the prevailing party is entitled to “the
    strongest legitimate view of the evidence and all reasonable inferences that may be drawn from
    that evidence.” State v. Castleberry, 
    332 S.W.3d 460
    , 465 (Tex. Crim. App. 2011). When all
    evidence is viewed in the light most favorable to the trial court’s ruling, an appellate court is
    obligated to uphold the ruling on a motion to suppress if that ruling was supported by the record
    3
    and was correct under any theory of law applicable to the case. See 
    Ross, 32 S.W.3d at 856
    ;
    
    Carmouche, 10 S.W.3d at 327
    ; State v. Ballard, 
    987 S.W.2d 889
    , 891 (Tex. Crim. App. 1999).
    Governing Law
    A routine traffic stop closely resembles an investigative detention. Powell v. State, 
    5 S.W.3d 369
    , 375 (Tex. App.–Texarkana 1999, pet. ref'd); see also United States v. Brigham, 
    382 F.3d 500
    , 506 (5th Cir. 2004). Because an investigative detention is a seizure that implicates the
    United States and Texas Constitutions, the traffic stop must be reasonable. U.S. CONST. amend.
    IV; TEX. CONST. art. I, § 9; Francis v. State, 
    922 S.W.2d 176
    , 178 (Tex. Crim. App. 1996). To
    determine the reasonableness of an investigative detention, we conduct the inquiry set forth by
    the United States Supreme Court in Terry v. Ohio to determine (1) whether the officer’s action
    was justified at its inception and (2) whether it was reasonably related in scope to the
    circumstances that initially justified the interference. See Terry v. Ohio, 
    392 U.S. 1
    , 19-20, 88 S.
    Ct. 1868, 1879, 
    20 L. Ed. 2d 889
    (1968); Davis v. State, 
    947 S.W.2d 240
    , 242 (Tex. Crim. App.
    1997).
    Under the first part of the inquiry, an officer’s reasonable suspicion justifies an
    investigative detention. 
    Davis, 947 S.W.2d at 242
    –43. Specifically, the officer must have a
    reasonable suspicion that some activity out of the ordinary is occurring or has occurred. 
    Id. at 244
    (citing Garza v. State, 
    771 S.W.2d 549
    , 558 (Tex. Crim. App. 1989)). An officer has
    reasonable suspicion to detain a person if he has specific, articulable facts that, combined with
    rational inferences from those facts, would lead him reasonably to conclude that the person
    detained is, has been, or soon will be engaged in criminal activity. State v. Elias, 
    339 S.W.3d 667
    , 674 (Tex. Crim. App. 2011). This is an objective standard. 
    Id. Thus, when
    an officer has a
    reasonable basis for suspecting that a person has committed an offense, the officer may legally
    initiate an investigative stop. See 
    Powell, 5 S.W.3d at 376
    (citing Drago v. State, 
    553 S.W.2d 375
    , 377–78 (Tex. Crim. App. 1977)).
    Under the second part of the inquiry, the “investigative stop can last no longer than
    necessary to effect the purpose of the stop.”   Kothe v. State, 
    152 S.W.3d 54
    , 63 (Tex. Crim. App.
    2004). The issue is “whether the police diligently pursued a means of investigation that was
    likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain
    the defendant.” 
    Id. at 64–65
    (quoting United States v. Sharpe, 
    470 U.S. 675
    , 685–86, 
    105 S. Ct. 1568
    , 1569, 
    84 L. Ed. 2d 605
    (1985)). With regard to a traffic stop, an officer can conduct a
    4
    license and warrants check. 
    Id. at 63.
    An officer also may ask the driver to exit the vehicle. See
    Strauss v. State, 
    121 S.W.3d 486
    , 491 (Tex. App.–Amarillo 2003, pet. ref'd).
    An investigative stop that continues longer than necessary to complete the purpose of the
    stop is permitted if additional facts provide a reasonable suspicion of another crime or possible
    crime. Green v. State, 
    256 S.W.3d 456
    , 462 (Tex. App.–Waco 2008, no pet.). If a valid traffic
    stop evolves into an investigative detention for a drug related offense so that a canine sniff can
    take place, reasonable suspicion is necessary to prolong the detention. 
    Id. We examine
    the
    totality of the circumstances to determine the reasonableness of a temporary detention. Curtis v.
    State, 
    238 S.W.3d 376
    , 380–81 (Tex. Crim. App. 2007).
    While reasonable suspicion allows an officer to temporarily detain someone, the officer
    must act to confirm or dispel his suspicions quickly. See Matthews v. State, 
    431 S.W.3d 596
    ,
    603 (Tex. Crim. App. 2014). One reasonable method of confirming or dispelling reasonable
    suspicion is to have a trained K-9  unit  perform  an  “open  air”  search  of  the  vehicle.     
    Id. If the
    drug dog alerts, the presence of drugs is confirmed, and the officer may conduct a warrantless
    search. See 
    id. at 603–04.
    If the drug dog does not alert, generally, the temporary detention
    ceases. 
    Id. at 604.
            We look at the totality of the circumstances to determine whether a K-9 unit is reliable.
    Florida v. Harris, 
    133 S. Ct. 1050
    , 1055, 
    185 L. Ed. 2d 61
    (2013). A K-9   unit’s   satisfactory
    performance in a narcotics certification or training program can provide sufficient reason to trust
    the alert. 
    Id., 133 S. Ct.
    at 1057. If a bona fide organization has certified a K-9 unit after testing,
    we can presume,  subject  to  any  conflicting  evidence  offered,  that  the  drug  dog’s  alert  provides
    probable cause to search. 
    Id. But the
    defendant must have the opportunity to challenge the K-9
    unit’s reliability, whether by cross examination of the state’s  witnesses  or  introducing evidence
    from his fact or expert witnesses. 
    Id. Application In
    his pretrial motion to suppress, Appellant challenged the initial stop, the extended
    detention, and the reliability of the K-9 Unit. Later, Appellant abandoned his challenge to the
    validity of the initial traffic stop. We  address  Appellant’s  two  remaining  bases  for his motion to
    suppress.
    5
    Extended Detention During Traffic Stop
    Appellant first argues that the stop was unnecessarily lengthened to allow time for the
    K-9 Unit to arrive at the scene. Peters admitted that when he exited his vehicle the second time,
    he  should  have  had  Appellant’s  warning  citation  in  his  hand. Yet the K-9 Unit did not arrive for
    several more minutes.          Thus,   to   continue   Appellant’s   detention,   Peters   needed reasonable
    suspicion of another crime or possible crime. See 
    Green, 256 S.W.3d at 462
    . The State
    contends that Peters developed reasonable suspicion based on several observations he made
    during the course of his encounter with Appellant.
    First, Peters stated that Appellant drove in an unusual manner.                        Appellant ignored
    Peters’s flashing his   patrol   car’s high beam headlights and, instead, remained in the left lane.
    When Peters initiated the traffic stop, Appellant initially moved his vehicle toward the median
    rather than toward the outside shoulder. Then, Appellant slowed his vehicle substantially to the
    point that Peters was compelled to maneuver his vehicle into the middle of the two lanes of
    eastbound traffic to lessen the likelihood of Appellant’s causing an accident.
    Second, Appellant behaved nervously.                  As Appellant handed Peters his proof of
    insurance, Peters noticed Appellant’s   hands   were shaking. Peters admitted that Appellant’s
    shaking hands could not be seen in the video of the traffic stop. But he explained that the
    distance between Appellant and the camera and the quality of the video recording made
    Appellant’s   trembling hands indiscernible. Peters further testified that Appellant did not make
    direct eye contact with him and had his right hand clenched in a fist.                          As the encounter
    continued, Appellant slumped in a somewhat defeated posture. Moreover, when Peters asked
    Appellant  if  he  had  anything  illegal  in  the  vehicle,  Appellant  answered,  “No.”   But Peters noticed
    that Appellant smiled nervously as he answered.                   Peters testified that   Appellant’s   level   of
    nervousness was abnormal, especially after Peters told him he was receiving a warning citation
    rather than a ticket.
    Third,   Peters   did   not   believe   Appellant’s   stated   purpose   of   his   trip.   Peters stopped
    Appellant during the work week and doubted that a janitor working for a commercial cleaning
    company who would be required to work on weeknights could be absent for two to three
    6
    consecutive nights. Further, Peters observed a bag with only two or three items of clothing in it,
    which Peters believed was insufficient for a two or three day trip.1
    Finally, Peters stated that this portion of Interstate 20 is an often-used drug corridor.
    Thus, according to Peters, the totality of the circumstances gave him a high level of suspicion
    that Appellant was transporting drugs.
    Based on our review of the record, we conclude that the evidence supports the trial
    court's finding that Peters developed reasonable suspicion during his investigation of Appellant’s
    traffic violation to suspect that Appellant committed other crimes. Considering these facts, the
    trial court reasonably could have determined that Peters “diligently pursued a means of
    investigation that was likely to confirm or dispel [his] suspicions quickly, during which time it
    was necessary to detain [Appellant].” 
    Kothe, 152 S.W.3d at 64
    –65. Moreover, the trial court
    reasonably could have determined that Peters developed reasonable suspicion during his initial
    investigation to justify a prolonged detention for a canine sniff. See 
    Green, 256 S.W.3d at 462
    .
    Having given due deference to the trial court’s ruling, we hold that the trial court did not abuse
    its discretion by denying Appellant’s motion to suppress based   upon   Appellant’s   extended
    detention during the traffic stop. Appellant’s first issue is overruled.
    Reliability of K-9 Unit
    We   next   consider   Appellant’s   contention   that   the   K-9 Unit was unreliable. Waters
    testified that he was first certified as a K-9 handler in 2006 and that he and Cros completed their
    certification training in 2008. Waters further testified that before the events in question, he and
    Cros had been recertified four times by USK9 Unlimited (USK9) and once by National Narcotic
    Detector Dog Association (NNDDA).                      Waters stated that he and Cros also participated in
    numerous training sessions provided by local law enforcement agencies and had applied their
    acquired skills in several on-the-job situations.
    Waters admitted that his and Cros’s  results  were  not  perfect;;  there were several occasions
    where Cros alerted, but drugs were not found in a vehicle. However, Waters defended these
    unsubstantiated alerts on the basis that Cros had been trained to detect the odor of drugs, which
    can persist even after drugs have been removed from an area. Thus, the evidence demonstrated
    that   it   was   impossible   to   determine   Cros’s   percentage   of   proficiency   in his on-the-job vehicle
    1
    Appellant correctly asserts that Peters did not ask him to elaborate about his work schedule or the details
    of his trip.
    7
    searches. Waters stated that he believed Cros was proficient and accurate based   on   Cros’s
    performance in on-the-job searches and in training. Waters also stated that Cros was extremely
    reliable and accurate.
    Waters   testified   specifically   concerning   his   and   Cros’s   involvement   in   the   search   of
    Appellant’s  vehicle. Waters stated that he allowed Cros time to acclimate to the surroundings.
    Waters further stated that he had Cros run a  sweep  of  the  vehicle,  and  Cros  showed  a  “justified
    noticeable  difference”  at  the  passenger  side  door  seam  area  of  the  vehicle.    Waters testified that
    Cros exhibited a “final   response” by scratching at that portion of the vehicle. Waters further
    testified that he did not provide Cros any cues; he did not tap on any portion of the vehicle and
    did not provide Cros any indication that drugs were in the vehicle.
    Based on our review of the record, we conclude that the evidence supports the trial
    court's   findings   that   Waters   and   Cros   were   properly   trained   and   certified   and   that   Cros’s   alert
    provided   probable   cause   to   search   Appellant’s   vehicle.             See 
    Harris, 133 S. Ct. at 1057
    ;
    
    Matthews, 431 S.W.3d at 603
    –04. Having given due deference to the trial court’s ruling, we
    hold that the trial court did not abuse its discretion in denying Appellant’s motion to suppress
    based upon the lack of reliability of the K-9 Unit. Appellant’s second issue is overruled.
    JURY INSTRUCTION
    In   his   third   issue,   Appellant   contends   that   the   trial   court   erred   in   denying   Appellant’s
    request for a jury instruction under Texas Code of Criminal Procedure, Article 38.23(a).
    Applicable Law
    Under Article 38.23, evidence obtained in violation of the Constitution or laws of the
    United States or those of Texas may not be admitted in a criminal case. See TEX. CODE CRIM.
    PROC. ANN. art. 38.23(a) (West 2005). If a fact issue is raised about whether evidence was
    improperly obtained in this manner, the jury shall be instructed to disregard evidence that it finds
    was obtained in violation of the United States or Texas Constitution or laws. See id.
    A   defendant’s   right   to   the   submission   of   an   Article   38.23   jury   instruction   is   limited to
    disputed issues of fact that are material to his claim of a constitutional or statutory violation that
    would render evidence inadmissible. Madden v. State, 
    242 S.W.3d 504
    , 509-10 (Tex. Crim.
    App. 2007) (citing Pierce v. State, 
    32 S.W.3d 247
    , 251 (Tex. Crim. App. 2000)). To be entitled
    to an Article 38.23 jury instruction, the defendant must establish that (1) the evidence heard by
    8
    the jury raises an issue of fact, (2) the evidence on that fact is affirmatively contested, and (3) the
    contested factual issue is material to the lawfulness of the challenged conduct. Hamal v. State,
    
    390 S.W.3d 302
    , 306 (Tex. Crim. App. 2012). If there is no disputed factual issue, the legality of
    the conduct is determined by the trial judge alone as a question of law. 
    Madden, 242 S.W.3d at 510
    .
    Application
    In his brief, Appellant does not specifically delineate the issues of fact that the jury
    should have decided. Rather, Appellant claims that he raised a fact issue as to whether he was
    nervous after Peters stopped him because   the   video   recording   does   not   show   that   Appellant’s
    hands were shaking when he gave Peters his proof of insurance.
    As   we   stated   previously,   Peters   testified   that   he   saw   Appellant’s   hands   visibly   shaking
    when Appellant gave Peters his proof of insurance. But the video recording of the stop was not
    clear. We have reviewed the video recording and have observed that there may be some slight
    shaking of   Appellant’s   hands   or minimal exhibition of other nervous behavior by Appellant
    when he is walking toward Peters. Peters conceded this point at trial, but he attributed the fact
    that the video did not confirm his testimony to the distance of the camera from Appellant and the
    poor quality of the video recording.
    If we assume that the evidence creates a fact issue as to whether Appellant acted
    nervously because his hands were shaking when he gave Peters his proof of insurance, an Article
    38.23 jury instruction is still not required because that contested factual issue is not material to
    the lawfulness of the challenged conduct. See 
    Hamal, 390 S.W.3d at 306
    . Peters stated that
    Appellant exhibited other nervous behavior. The record reflects that Appellant was not making
    direct eye contact with Peters and had his right hand clenched in a fist. Further, as the encounter
    persisted, Appellant slumped slightly in a somewhat defeated posture. Moreover, when Peters
    asked  Appellant  if  he  had  anything  illegal  in  the  vehicle,  Appellant  answered,  “No,”  but  smiled
    nervously as he answered. Peters’s   observation   of   these exhibitions of nervous behavior by
    Appellant were not placed in issue by the video recording.
    Peters   claimed   that   Appellant’s   level   of   nervousness   was   abnormal,   especially   after   he
    was told that he was receiving a warning citation rather than a ticket. And Appellant failed to
    demonstrate that testimony concerning his shaking hands was material to the lawfulness of his
    continued detention. His shaking hands were not the only evidence of his nervousness and,
    9
    therefore, no fact issue was present for the jury to decide. Thus, the trial court did not err in
    refusing to provide an Article 38.23 jury instruction. Appellant’s  third  issue  is  overruled.
    EXCLUSION OF EXPERT WITNESS
    In his fourth issue, Appellant complains that the trial court erroneously excluded his
    expert witness, Lawrence Meyers.
    Standard of Review and Applicable Law
    We review a trial court's decision to admit or exclude scientific expert testimony under an
    abuse of discretion standard. See Sexton v. State, 
    93 S.W.3d 96
    , 99 (Tex. Crim. App. 2002).
    The trial court’s ruling will be upheld if it is within the zone of reasonable disagreement. 
    Id. A witness
    may offer an opinion if he possesses specialized knowledge, skill, experience,
    training, or education related to a fact in issue. TEX. R. EVID. 702. But the trial court serves as
    the gatekeeper to determine whether the proffered scientific evidence is sufficiently reliable and
    relevant. 
    Sexton, 93 S.W.3d at 99
    . For scientific evidence to be reliable, the proponent must
    show that the underlying scientific theory is valid, the technique applying the theory is valid, and
    the technique was properly applied on the occasion in question. 
    Id. at 100.
    For an expert's
    testimony to be relevant, the testimony must assist the trier of fact in understanding the evidence
    or determining a fact in issue. Jordan v. State, 
    928 S.W.2d 550
    , 555 (Tex. Crim. App. 1996);
    see also TEX. R. EVID. 702. Expert testimony that does not relate to a fact in issue is not helpful.
    
    Jordan, 928 S.W.2d at 555
    .
    Application
    At a pretrial hearing, Appellant represented to the trial court that he would not have an
    expert witness. However, Appellant changed his strategy and disclosed Meyers as an expert on
    K-9 units. Before trial, the State filed a motion to exclude Meyers’s testimony.
    Appellant represented to the trial court that Meyers was prepared to testify that the K-9
    Unit was not properly trained.       However,   at   the   hearing   on   the   State’s   motion   to   exclude
    Meyers’s testimony, Meyers stated that he could not give an opinion regarding the initial training
    of the K-9 Unit. Instead, he said that his major concern was whether Cros was being cued
    frequently by Waters. But Meyers declined to testify that Cros was being cued frequently by
    Waters because in his opinion, the K-9 Unit had not been properly tested for cuing. Meyers
    clarified his testimony––he was not asserting that Waters was intentionally cuing Cros, but
    10
    believed that unintentional cuing could be occurring. He further clarified his position, stating
    that he was not   offering   an   opinion   that   any   unintentional   cuing   occurred   in   Cros’s   search   of
    Appellant’s  vehicle. When asked if he was going to have an opinion concerning whether Cros
    was unintentionally cued or Waters acted inappropriately, he stated that he was not.
    Meyers also believed that Cros should have received more training and testing with odors
    that are close to the same odor as the illegal narcotics Cros was trained to detect. Specifically,
    Meyers opined that Cros may have mistaken an innocent odor for that of a controlled substance.
    Once again, however, Meyers clarified his position, stating that he was not offering an opinion
    that Cros detected an innocent odor in his search  of  Appellant’s  vehicle.    When  asked  if  he  had
    an opinion regarding whether Cros detected an innocent odor in this case, Meyers stated that he
    did not.
    After considering Meyers’s testimony outside the presence of the jury, the trial court
    determined that Meyers should be excluded as an expert witness. The court explained that while
    Meyers had some general opinions regarding K-9 units and their training, he had no specific
    opinions pertaining to Cros’s and  Waters’s search in this case.
    We agree with the trial court that Meyers lacked specific opinions concerning Cros’s and
    Waters’s search conducted in this case, which rendered his opinions unhelpful to the jury. See
    
    Jordan, 928 S.W.2d at 555
    . Therefore, we hold that the trial court properly fulfilled its role as
    gatekeeper, and did not abuse its discretion. Appellant’s  fourth  issue  is overruled.
    BATSON MOTION
    In his fifth issue, Appellant contends that the trial court erred in denying his Batson
    motion.2 Specifically, Appellant alleges that the State engaged in purposeful discrimination
    when it used its peremptory challenges to excuse all five African American individuals who
    could have served on the jury.
    Standard of Review and Applicable Law
    The Equal Protection Clause of the Fourteenth Amendment to the United States
    Constitution forbids a party from challenging potential jurors on the basis of their race. U.S.
    CONST. amend. XIV; 
    Batson, 476 U.S. at 89
    , 106 S. Ct. at 1719. A trial court follows a three
    step process to evaluate a claim that a litigant has made a peremptory strike based on race.
    2
    See Batson v. Kentucky, 
    476 U.S. 79
    , 89, 
    106 S. Ct. 1712
    , 1719, 
    90 L. Ed. 2d 69
    (1986).
    11
    Snyder v. Louisiana, 
    552 U.S. 472
    , 476, 
    128 S. Ct. 1203
    , 1207, 
    170 L. Ed. 2d 175
    (2008). First,
    a defendant must make a prima facie showing that the state has used a peremptory challenge to
    remove a potential juror on account of race. Id.; Purkett v. Elem, 
    514 U.S. 765
    , 767, 
    115 S. Ct. 1769
    , 1770, 
    131 L. Ed. 2d 834
    (1995). A defendant may establish a prima facie case solely on
    evidence concerning the state’s exercise of peremptory challenges at trial. 
    Batson, 476 U.S. at 96
    , 106 S. Ct. at 1723. He also must show that these facts and any other relevant circumstances
    raise an inference that the state has excluded potential jurors from the petit jury based on race.
    See 
    id. Once the
    defendant has made this prima facie showing, the burden shifts to the state to
    come forward with a race neutral explanation for challenging the jurors. 
    Snyder, 552 U.S. at 476
    –77, 128 S. Ct. at 1207; 
    Batson, 476 U.S. at 97
    –98, 106 S. Ct. at 1723–24. If the state offers
    race neutral reasons for the strikes, the burden shifts back to the defendant to show that the
    state’s race neutral explanations for the strikes are contrived or a pretext to conceal a racially
    discriminatory intent. See Shuffield v. State, 
    189 S.W.3d 782
    , 785 (Tex. Crim. App. 2006);
    Jasper v. State, 
    61 S.W.3d 413
    , 421 (Tex. Crim. App. 2001). The credibility of a prosecutor
    who offers race neutral explanations for disparate striking of jurors can be measured by (1) the
    prosecutor’s demeanor, (2) how reasonable or how improbable the explanations are, and (3)
    whether the proffered rationale has some basis in accepted trial strategy. See Miller-El v.
    Cockrell, 
    537 U.S. 322
    , 339, 
    123 S. Ct. 1029
    , 1040, 
    154 L. Ed. 2d 931
    (2003). But those factors
    are   not   exclusive,   and   we   examine   all   relevant   factors   when   evaluating   the   prosecutor’s
    explanations for strikes that are alleged to be pretextual. See Miller-El v. Dretke, 
    545 U.S. 231
    ,
    253, 
    125 S. Ct. 2317
    , 2332, 
    162 L. Ed. 2d 196
    (2005) (examining actual strikes, use of jury
    shuffle, disparity in questioning, and history of excluding racial minorities from juries).
    We will disturb a trial court’s ruling on a Batson motion only if it is “clearly erroneous.”
    
    Snyder, 552 U.S. at 477
    , 128 S. Ct. at 1207; Guzman v. State, 
    85 S.W.3d 242
    , 254 (Tex. Crim.
    App. 2002). Generally,  a  fact  finder’s decision is clearly erroneous when it leaves an appellate
    court with a “definite and firm conviction that a mistake has been committed.” 
    Guzman, 85 S.W.3d at 254
    . We review the evidence in the light most favorable to the trial court's ruling and
    afford great deference to that ruling. 
    Jasper, 61 S.W.3d at 422
    . Furthermore, a claim that the
    proffered race neutral reasons for strikes are pretextual presents a question of fact, and the trial
    court is in the best position to evaluate such claims. See Watkins v. State, 
    245 S.W.3d 444
    , 447
    12
    (Tex. Crim. App. 2008); Gibson v. State, 
    144 S.W.3d 530
    , 534 (Tex. Crim. App. 2004). The
    ultimate plausibility of a race neutral explanation is to be considered in the context of whether
    the defendant has satisfied his burden to show that the strike was the product of the prosecutor’s
    purposeful discrimination. 
    Watkins, 245 S.W.3d at 447
    .
    Application
    The members of the jury pool who ultimately served on the jury were Jurors 5, 13, 14,
    19, 20, 22, 25, 40, 43, 49, 52, and 53. None of the jurors who served were African American.
    African Americans in the strike range were Jurors 23, 24, 26, 28, and 44. The State used its
    peremptory strikes on all five of these jurors, as well as using peremptory strikes on Jurors 8, 27,
    35, 37, and 41.
    Appellant raised a Batson challenge  to   the  State’s  peremptory  strikes.    Appellant   noted
    that there were five African American individuals within the strike range, and the State used
    peremptory strikes on every one of these individuals. The trial court correctly found that
    Appellant carried his initial burden, thus requiring the State to provide a race neutral basis for the
    strikes. See 
    Batson, 476 U.S. at 96
    , 106 S. Ct. at 1723.
    The State responded that it used a peremptory strike on Juror 23 because she believed in
    the legalization of marijuana and had only a high school education. The State further responded
    that its decision to strike Juror 35, a white male, was similarly motivated.
    The State also claimed that it used a peremptory strike on Juror 24 because he believed in
    rehabilitation rather than punishment as the basis for sentencing and had been employed for only
    one year. The State further claimed that its decision to strike Juror 37, a white female, was based
    on the same rationale.
    The State next asserted that it used a peremptory strike on Juror 26 because she was
    separated from her husband. The State further asserted that its decision to strike Juror 41, a
    white female, was based on the same reasoning.
    Moreover, the State claimed that it used a peremptory strike on Juror 28 because she
    believed in rehabilitation rather than punishment as the basis for sentencing and had not
    completely filled out her juror questionnaire card.
    Finally, the State contended that its decision to use a peremptory strike on Juror 44 was
    based on the fact that he believed in rehabilitation rather than punishment as the basis for
    sentencing and he worked at Delek Refinery. The prosecutor claimed that in his eight years as a
    13
    prosecutor, he determined that individuals from Delek Refinery were more pro-defense and anti-
    State. It was further revealed that Juror 44 also believed in the legalization of marijuana.
    Appellant responded that Juror 13, a white male, also believed in the legalization of
    marijuana, but was not struck from the jury. Appellant asserted further that Jurors 14 and 22 had
    not received any degrees more advanced than a high school diploma. Moreover, Appellant
    claimed that Jurors 19, 43, and 52 believed that rehabilitation rather than punishment should be
    the main consideration underlying sentencing. Appellant further claimed that Jurors 20 and 25,
    both white males, did not completely fill out their juror questionnaires.3 The State did not use a
    peremptory strike on any of these jurors.
    The State replied that each of these jurors had some attribute other than race that
    distinguished each of them from those jurors who were struck. The State contended that Juror 13
    had a postgraduate degree, Jurors 14 and 22 did not believe in the legalization of marijuana, and
    Jurors 20 and 25 believed that punishment should be the focus of sentencing. Finally, the State
    asserted that although Jurors 19, 43, and 52 believed in rehabilitation, none of them were newly
    employed, each completely filled out his juror questionnaire, and none worked for Delek
    Refinery.
    Appellant did not cross examine the prosecutor. Thus, we are left with a very limited
    record from which  to  evaluate  whether  the  prosecutor’s  reasons  were  pretextual.     But based on
    the record before us, we conclude that some  of  the  prosecutor’s  reasons for striking these jurors
    at least raise the possibility of pretext. For instance, if the prosecutor was, in fact, concerned
    about prospective jurors who have worked at Delek Refinery, it would be reasonable to ask if
    any of them had worked there previously since several of the potential jurors indicated on their
    jury questionnaire that they were retired or unemployed. But the prosecutor never asked any of
    the jurors if he or she had any connection with Delek Refinery and, ultimately, one retired person
    was selected for the jury.4
    We also note that the following statement made by the trial court is troubling:
    3
    Each of the three jurors who failed to complete the questionnaire left one question blank. Juror 20 did not
    put his age on the questionnaire, Juror 25 did not put his work telephone number on the questionnaire, and Juror 28
    did not put the range of ages for her five stepchildren on the questionnaire.
    4
    We  note  that  the  prosecutor’s  aversion  to  jurors  who  are  or  were  employees of Delek Refinery is a curious
    one. The record is silent concerning how long he has imposed the rule that he uses peremptory strikes against any
    Delek Refinery employees, and the prosecutor did not volunteer this information to the trial court. Appellant did not
    inquire about this information during the hearing on his Batson motion.
    14
    [W]e can argue all day of whether they did it intentionally to get rid of African Americans or not.
    But without getting  inside  their  heads,  which  the  law,  I  don’t  think,  lets  that  happen   – I mean, if
    they’ve  got  race-neutral  reasons,  again,  my  personal  opinion,  that’s  the  reason  we  don’t  see  many
    Batson opinions any longer is that the problem that was there pretty much either fixed, number
    one, or just like all areas of the law, once it becomes under light of day, the parties figure out how
    to do it in a different fashion that is not really challengeable.
    We stress that the trial court certainly has the duty to determine   whether   the   State’s   proffered
    reasons are its true motivations or a subterfuge. And under no circumstances should a trial court
    determine   that   the   State’s   conduct   in   striking   jurors   on   the   basis   of race   is   “not   really
    challengeable.”
    Nonetheless, we note that the trial court elaborated on its assessment on the state of the
    law, stating, “But,   again,   I’m   not   saying   that   in   this   case.”   The State persisted, however, and
    repeated this incorrect standard, asserting, “I  believe  the  [trial  court is] correct in saying as long
    as we articulate race neutral  reasons,  that’s  sufficient.    Whether  other  individuals  did  or  did  not
    have   the   same   criteria   that   were   not   minorities   and   they   made   the   jury   or   not,   I   don’t   believe
    that’s   an   issue   for   Batson.”      In response, Appellant’s   counsel   sought to emphasize the correct
    standard, stating that “[t]rial  judges  are  not  without  ability  to  detect  pretext.” Ultimately, the trial
    court found that  it  did  not  “have  any  evidence  that  would  suggest  that  [race]  was  the  sole  reason
    that  the  State  struck  those  individuals” and denied  Appellant’s  Batson challenge.
    The   prosecutor’s   race   neutral   explanations   may   be   reasonable,   and   we   are   mindful   that
    the trial court was able to observe and hear not only what the prosecutor said, but how he said it.
    See 
    Watkins, 245 S.W.3d at 447
    . Based on the record at hand, we conclude that the trial court
    reasonably could have  determined  that  the  prosecutor’s  race  neutral  explanations  were  true  after
    it measured   the   prosecutor’s   demeanor   and the reasonableness or improbability of the
    explanations he gave, and after considering whether those explanations have some basis in
    accepted trial strategy. See 
    Cockrell, 537 U.S. at 339
    , 123 S. Ct. at 1040. Therefore, we hold
    that   the   trial   court’s   denial   of   Appellant’s   Batson motion   was   not   “clearly   erroneous.”
    Appellant’s fifth issue is overruled.
    15
    MOTION FOR MISTRIAL
    In his sixth issue, Appellant contends that the trial court erred by denying his motion for
    mistrial.    Appellant’s  motion  was  based  on  an  improper comment by the prosecutor during his
    closing argument.
    Standard of Review and Applicable Law
    We review the denial of a motion for mistrial under the abuse of discretion standard.
    Simpson v. State, 
    119 S.W.3d 262
    , 272 (Tex. Crim. App. 2003). A trial court does not abuse its
    discretion if its decision is within the zone of reasonable disagreement. Archie v. State, 
    221 S.W.3d 695
    , 699 (Tex. Crim. App. 2007). Furthermore, mistrial is appropriate only for “highly
    prejudicial and incurable errors.” See Wood v. State, 
    18 S.W.3d 642
    , 648 (Tex. Crim. App.
    2000). A   trial   court   grants   a   mistrial   “to   end   trial   proceedings   when   faced   with   error   so
    prejudicial   that   ‘expenditure   of   further   time   and   expense   would   be   wasteful   and   futile.’”
    Simpson v. State, 
    119 S.W.3d 262
    , 272 (Tex. Crim. App. 2003) (quoting Wood v. State, 
    18 S.W.3d 642
    , 648 (Tex. Crim. App. 2000)).
    Application
    Appellant failed to return to the courtroom after a recess in the trial. In response, the trial
    court provided the following instruction to the jury:
    The whereabouts of [Appellant] are unknown to us, at this time, to either the parties or the Court.
    Our statutes in Texas provide that if [Appellant voluntarily] absents himself after pleading to the
    indictment in the trial, that the trial may  proceed  to  its  conclusion.    So  I’m  directing  that  the  case
    proceed   in   the   absence   of   [Appellant].      Now,   I’m   instructing   you,   as   well,   not   to   draw   any
    conclusion, either for or against [Appellant] because he is absent; because we do not know, at
    present,  why  he’s  not  here.
    The  State  chose  not  to  abide  by  the  trial  court’s  instruction, however, and instead asked the jury
    to draw a conclusion against Appellant based on his absence as follows:
    Neither  can  [Appellant’s  counsel]  get  up  about  reasonable  suspicion and probable cause because
    it’s   not   in   here.      Already   been   dealt   with   by   the   judge.      So   let’s   talk   about   intentionally   or
    knowingly  because  that’s  what  we’re  left  with.    And  maybe  it’s  because  it’s  not  in  the  charge  that
    we’re  short  one.
    Appellant’s  counsel  objected.    The  trial  court  had  counsel  for  the  State  and  Appellant  approach
    the  bench.    The  trial  court  then  warned  the  State,  “I  don’t  want  to  hear  another  comment  in  the
    16
    State’s   argument   about   [Appellant’s]   not   being   here.      I’ve   just   instructed the jury for [his] not
    being   here.      If   you   do   it   again,   I’m   going   to   declare   a   mistrial.”      Appellant then moved for a
    mistrial,  and  the  trial  court  denied  Appellant’s  motion.    The  State  continued  its  argument.    The
    State did not again make reference to Appellant’s  absence.
    Based on our review of the record, we conclude that the   State’s   error   was   not   so
    prejudicial that continuation of the trial was wasteful and futile. See 
    Simpson, 119 S.W.3d at 272
    .    The trial court had previously instructed the jury to not draw a conclusion against
    Appellant based on his absence. When the State sought to have the jury do otherwise, Appellant
    objected. However, Appellant did not ask for the trial court to iterate its instruction to the jury.
    We presume that the jury abided  by  the  trial   court’s  instruction  and  did   not   draw  a  conclusion
    against Appellant based on his absence. See Gamboa v. State, 
    296 S.W.3d 574
    , 580 (Tex. Crim.
    App. 2009). Therefore, we hold that  the  trial  court  did  not  err  in  denying  Appellant’s  motion for
    mistrial. Appellant’s  sixth  issue is overruled.
    DISPOSITION
    Having  overruled  Appellant’s  six  issues,  we  affirm the trial  court’s  judgment.
    BRIAN HOYLE
    Justice
    Opinion delivered January 7, 2015.
    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
    (DO NOT PUBLISH)
    17
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    Date Filed                                    03/09/2015 04:04:43 PM
    Case Number                                   PD­0145­15
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    Attorney                                      CARLO D'ANGELO
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    mwest@smith­                                                EServe                         Sent       Yes
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