In the

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-23-00090-CR

LAWRENCE AUSTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 361st District Court

Brazos County, Texas

Trial Court No. 19-02164-CRF-361

Before Stevens, C.J., van Cleef and Rambin, JJ.

Memorandum Opinion by Justice van Cleef
2

MEMORANDUM OPINION

A Brazos County jury convicted Lawrence Auston of assaulting a peace officer.

1

 During 

a bench trial on punishment, Auston pled true to the State’s punishment-enhancement allegation, 

and the trial court sentenced him to forty-five years’ imprisonment. On appeal, Auston argues 

that the trial court erred by denying his Batson2challenge and by overruling his objection to the

jury charge. 

We find that the trial court’s decision to overrule Auston’s Batson challenge was not 

clearly erroneous. We also find no error in the trial court’s jury charge. As a result, we affirm 

the trial court’s judgment. 

I. The Decision to Overrule Auston’s Batson Challenge Was Not Clearly Erroneous 

In his first point of error, Auston argues that the trial court erred when it denied his 

Batson challenge after the State used a peremptory strike against venireperson 25, an AfricanAmerican panelist. 

A. Relevant Caselaw 

Use of peremptory challenges to strike potential jurors on the basis of race is prohibited 

by both the Equal Protection Clause of the Fourteenth Amendment to the United States 

Constitution and Article 35.261 of the Texas Code of Criminal Procedure. U.S. CONST. amend. 

XIV, § 1; see Batson, 476 U.S. at 85–86; TEX. CODE CRIM. PROC. ANN. art. 35.261. If the 

1Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme 

Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We follow the

precedent of the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.

2Batson v. Kentucky, 476 U.S. 79 (1986). 
3

defendant suspects the State of making race-based challenges, he may request a Batson hearing. 

See TEX. CODE CRIM. PROC. ANN. art. 35.261(a).

Courts use a three-step process in determining Batson challenges. Snyder v. Louisiana,

552 U.S. 472, 476–77 (2008); Young v. State, 283 S.W.3d 854, 866 (Tex. Crim. App. 2009) 

(per curiam). Initially, the defendant must present a prima facie case that the State exercised its 

peremptory challenges on the basis of race. Snyder, 552 U.S. at 476; Young, 283 S.W.3d at 866. 

The State must then articulate a race-neutral explanation for its challenged strikes. Snyder, 552 

U.S. at 476–77; Young, 283 S.W.3d at 866. A race-neutral explanation is one “based on 

something other than the race of the juror.” Hernandez v. New York, 500 U.S. 352, 360 (1991). 

If no “discriminatory intent is inherent in the . . . explanation, the reason . . . [is] deemed race 

neutral.” Id. The defendant may rebut the State’s explanation, but the “burden of proving 

purposeful discrimination” remains with the defendant. Young, 283 S.W.3d at 866. In the final 

step, “the trial court must determine whether the defendant has carried his burden of proving 

purposeful discrimination.” Hernandez, 500 U.S. at 359; Young, 283 S.W.3d at 866; see Purkett 

v. Elem, 514 U.S. 765, 768 (1995) (per curiam).

B. Standard of Review 

In reviewing a Batson ruling, we consider the record “in the light most favorable to the 

trial court’s ruling.” Young, 283 S.W.3d at 866. The trial court’s decision will not be disturbed 

“unless it is clearly erroneous.” Id.; see Hernandez, 500 U.S. at 369. To determine whether the 

trial court’s decision was clearly erroneous, we examine the record to see whether we are left 

with a “definite and firm conviction that a mistake has been committed.” Guzman v. State, 85 
4

S.W.3d 242, 254 (Tex. Crim. App. 2002) (quoting United States v. Fernandez, 887 F.2d 564, 

567 (5th Cir. 1989) (per curiam)). The trial court is in the best position to determine whether the 

State’s race-neutral explanation is genuine, so we defer to its ruling barring exceptional 

circumstances. Nieto v. State, 365 S.W.3d 673, 676 (Tex. Crim. App. 2012). The trial court 

“must focus on the genuineness of the asserted non-racial motive, rather than the 

reasonableness.” Jackson v. State, 442 S.W.3d 771, 774 (Tex. App.—Texarkana 2014, no pet.)

(quoting Nieto, 365 S.W.3d at 676). 

We do not substitute our judgment for the trial court’s when considering whether the 

State’s explanation was a pretext. Id. Like the trial court, we consider the genuineness, not the 

reasonableness, of the proffered non-racial explanation. Nieto, 365 S.W.3d at 676 (citing Gibson 

v. State, 144 S.W.3d 530, 533–34 (Tex. Crim. App. 2004)). “Whether the opponent satisfies his 

burden of persuasion to show that the proponent’s facially race-neutral explanation for his strike 

is pre-textual, not genuine, is a question of fact for the trial court to resolve in the first instance.” 

Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008).

C. The Batson Hearing

After the State used a peremptory strike on venireperson 25, Auston argued, “I don’t 

think that there’s any other reason the State can strike him but for his race.” In response, the 

State explained that it “struck everyone under age 25, anyone who is anywhere near that age 

group” and claimed that venireperson 25 was struck because he was born in 2000. The State 

explained that it had also struck another panelist because of age. 
5

In an effort to establish that the State’s race-neutral explanation for striking 

venireperson 25 was pretextual, Auston noted that the State had also struck two more African 

Americans in the strike zone. Even so, the State explained that it struck one of the AfricanAmerican panelists because she was previously indicted for murder, and the other AfricanAmerican panelist because he was charged with driving without a valid license, which was 

“especially concerning to the State because that was what the arrest was for in this case which 

led to the assault of a peace officer.” After hearing the State’s explanations, the trial court 

denied the Batson challenge. 

D. Analysis

As explained above, “a reviewing court should examine a trial court’s conclusion that a 

racially neutral explanation is genuine, not a pretext, with great deference, reversing only when 

that conclusion is, in view of the record as a whole, clearly erroneous.” Blackman v. State, 414 

S.W.3d 757, 765 (Tex. Crim. App. 2013). Factors to consider may include: “(1) statistical 

evidence, (2) evidence of disparate questioning of similarly-situated venirepersons, (3) side-byside comparisons of the stricken venirepersons and the accepted venirepersons, (4) whether the 

record supports the State’s explanations for its strikes, and (5) any other relevant circumstances 

bearing on the issue of purposeful discrimination.” Compton v. State, 666 S.W.3d 685, 698 

(Tex. Crim. App. 2023) (citing Flowers v. Mississippi, 139 S. Ct. 2228, 2243 (2019)).

Here, the State struck all three African Americans in the strike zone, but it explained that 

two of them were struck because of being charged with criminal offenses. There was no 

indication of disparate questioning in the record, and as to venireperson 25, the State explained 
6

that it struck him because he was under twenty-five. “Age is an accepted criterion for 

peremptory challenges and does not violate Batson.” Brown v. State, 960 S.W.2d 265, 269 (Tex. 

App.—Corpus Christi–Edinburg 1997, no pet.) (citing Silva v. State, 800 S.W.2d 912, 914–15 

(Tex. App.—San Antonio 1990, no pet.); Moss v. State, 790 S.W.2d 731, 732 (Tex. App.—

Houston [14th Dist.] 1990, no pet.)). As a result, the Waco Court of Appeals has determined that 

“striking every person on the venire panel that was under the age of twenty-five” constitutes a 

proper race-neutral explanation. Torres v. State, No. 10-12-00263-CR, 2014 WL 2720800, at *3 

(Tex. App.—Waco June 12, 2014, no pet.) (mem. op., not designated for publication). 

Although Auston attempts a side-by-side comparison of stricken and accepted 

venirepersons, the record shows that venireperson 25 was the youngest person on the panel and 

was born in 2000. Auston compares the age of venireperson 25 to other panel members, but the 

next youngest person was born in 1993 and was well over twenty-five. As a result, the record 

supports the State’s explanation for its strike of venireperson 25. 

As did the Waco Court of Appeals in Torres, we must “accord[] great deference to the 

trial court’s denial of appellant’s Batson challenge” and “cannot say that, based on our review of 

the record, the trial court’s ruling [wa]s clearly erroneous.” Id. (citing Snyder, 552 U.S. at 477). 

Accordingly, we overrule Auston’s first point of error.

II. There Was No Jury-Charge Error 

In his last point of error, Auston raises jury-charge error. “In reviewing a jury-charge 

issue, an appellate court’s first duty is to determine whether the charge contains error.” Briceno 
7

v. State, 675 S.W.3d 87, 92 (Tex. App.—Waco 2023, no pet.) (citing Hutch v. State, 922 S.W.2d 

166, 170 (Tex. Crim. App. 1996)). Here, we find no such error. 

The State’s indictment alleged that Auston intentionally, knowingly, or recklessly caused

bodily injury to a peace officer by the following manner and means: “by striking [the officer] 

with his hand or foot, grabbing him with his hand or arm, or causing him to strike the ground or 

other hard object.” As a result, the trial court incorporated the alleged manner and means in the

following charge to the jury:

Now, bearing in mind the foregoing instructions, if you find from the 

evidence beyond a reasonable doubt, that in Brazos County, Texas, on or about 

March 4, 2019, the defendant, LAWRENCE AUSTON, did then and there 

intentionally, knowingly, or recklessly cause bodily injury to C. Johnson, 

hereafter styled the complainant, by striking him with his hand or foot, grabbing 

him with his hand or arm, or causing him to strike the ground or other hard object, 

and the defendant knew that the complainant was a peace officer and was lawfully 

discharging an official duty, namely attempting to arrest the defendant, then you 

will find the defendant guilty of Assault of a Peace Officer as charged in the 

indictment.

Auston’s argument takes aim at the language accusing him of striking Johnson with his 

hand or foot. He argues that there was a material variance between the indictment and evidence 

at trial because, according to Auston, the evidence did not show that he struck Johnson with his 

hand or foot. As a result, he complains that the trial court erred by submitting that manner and 

means for the jury’s consideration. Accordingly, the determination of whether jury-charge error

occurred rests on the state of the evidence. 

At trial, Johnson testified that he stopped Auston for a traffic violation but smelled 

phencyclidine, commonly known as PCP, as he stood by the driver’s side door. According to 

Johnson, Auston appeared to be intoxicated and could not produce a driver’s license. When 
8

Johnson attempted to place Auston in handcuffs, a lengthy struggle ensued. Johnson testified 

that Auston placed his arm around Johnson’s hand and tried to choke him, hooked Johnson’s leg, 

picked Johnson up and slammed him on the ground, and drug him across the pavement. Johnson 

also said that Auston “actually tried to kick” him. When asked if Auston was continuing to hit 

him during the fight, Johnson testified, “I honestly don’t know if -- just in that moment of all of 

the things going on, I do not know if he struck me.” Even so, when asked if Auston “repeatedly 

kick[ed], punch[ed], grab[bed], and drag[ged]” him, Johnson said, “Yes.” 

At the charge conference, when Auston objected to the submission of the phrase by 

“striking him with his hand or foot,” the State responded that recorded footage showed that 

Auston had struck Johnson with his hand and foot. The trial court agreed and, as a result, 

overruled Auston’s objection to the jury charge. 

We see no error in the trial court’s ruling. In addition to Johnson’s testimony that he was 

repeatedly kicked and punched, our review of the recording admitted at trial shows that, while 

Johnson attempted to arrest Auston, Auston used his hand and foot to strike Johnson. As a 

result, there was no variance between the indictment and proof at trial because the recording 

itself enabled the jury to conclude that the State met its burden to prove the challenged manner 

and means. 

Because we find no jury-charge error, we overrule Auston’s last point of error.

3

 

3Moreover, “[t]o obtain a reversal for jury-charge error, [Auston] must have suffered actual harm and not merely 

theoretical harm.” Briceno, 675 S.W.3d at 92 (citing Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 

2012)). In light of the discussion about immaterial variances in Johnson v. State, 364 S.W.3d 292, 297–98 (Tex. 

Crim. App. 2012), we conclude that Auston would be unable to show harm from any alleged jury-charge error. 
9

III. Conclusion 

We affirm the trial court’s judgment. 

Charles van Cleef

Justice

Date Submitted: January 24, 2024

Date Decided: February 7, 2024

Do Not Publish