## In t he 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 Cleef2 

### ME MORANDUM OPINION
A Brazos County jury convicted Lawrence Auston of assault ing a peace officer

. 1 During a bench trial on punishment, Auston pled tr ue to the State’s punishment

- enhancement allegation , and the trial court sentence d him to forty

- five years’ imprisonment. On appeal, Auston argues that the trial court erred by denying his Batson 2 challenge 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 Overrul e Auston ’s Batson C h allenge Was Not Clearly Erroneous In his first point of error, Auston argues that the trial court e rred when it denied his Batson challenge after the State used a p eremptory strike against v enireperson 25, an African

American panelist

. A. Rel evant Casel aw 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 Crimin al Pro cedure. U. S. C ONST . amend. XIV, § 1; see Batson , 476 U.S. at 85

– 86; T EX
. C ODE C RIM
. P ROC
. A NN . art. 35.261. If the

1 Originally appealed to the Tenth Court of Appeal s, t his case was tran s f e rred to this Court by the Tex as Supreme Court pursuant to its docket equalization efforts. See T EX
. G OV ’ T C OD E A NN . § 73.001 (Supp.). We follow the precedent o f the Tenth Cour t of A ppeals in deciding this case. See T EX
. R. A PP
. P

. 41 .3.

2 Batson v. K

e n t ucky , 476 U.S. 79 (1986)

.3

defendant suspects the State of making race

- based challenges, he may request a Batson hearing. See T EX
. C ODE C RIM
. P ROC
. A NN . art. 3 5.261( a). Courts us e 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 faci e ca se tha t the State ex e rcised 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 rac e - 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

neu tra l.” Id. T he defendant may rebut the State’s explanation, but the “ burden of proving purposeful discrimination ” remains with the defendant. Young , 283 S.W.3d at 8 66. In the final step, “the trial court must determine whether the defendant has carried hi s burden of pr oving 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. S tandard of Review In reviewing a Batson ruling, we consider the record “in the light most f av orable to th e 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 e rrone o us , we exam ine the record to see whether we are left with a “definite and firm conviction that a mistake has been committed.” Guzman v. State , 854

S.W.3d 242, 254 (Tex. Crim. App. 2002) (quoting United States v. Fernandez , 887 F.2d 5 64, 567 (5th Cir. 1989 ) ( per curia m))

. T he tria l 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, 67 6 (Tex. Crim. App. 2012). T he t r ia l court

“ mus t 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 20 14, no pet. ) (quoting Nieto , 365 S.W.3d at 67 6). We do not substitute our judgme nt for the tri al court’s when considering whether th e State’s explanation w as 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 67 6 (ci ting Gibson v. Stat e , 144 S. W. 3d 530 , 533

– 34 (Tex. Crim. App. 2004)). “Whether the o ppon ent satisfies his burde n of persuasion to show that the proponent’s facially race

- neutral explanation for his strike is pre

- textual, not genuine, is a question of fac t for the trial cour t to reso lv e i n t he first instance.” Watkins v. State , 245 S.W.3d 444 , 447 (Tex. Crim. App. 2008)

. C. The Batson Hearing After the State used a peremptor y strike on v enir eperson 25, Auston argued , “ I don ’ t think that there ’ s any other r eason th e State can strike hi m but f o r his race.” In response, the State e xpla ined that it “struck everyone under age 25, anyone who is anywhere near that age
group ” and claimed that v enireperson 25 was struck because he was born in 2000. The State explained t hat it had also struc k another pane l ist because of age.5

In an effort to establish that the State’s race

- neutral explanation for striking

v enireperson 25 was pretextual, Auston noted that the State had also struck two more African American s in the strike zone . Eve n so, the State expl ained that it struck one of t he A frican

American panelist s because she was previously indicted for murder , and the other African

American panelist because he was charged with driving without a valid license, which was

“ espe cially con cern ing t o the State be cau se 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 r eviewing c ourt should examine a t ria l c our t’ 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. A pp. 2 0 13)

. Factors to consider may include: “(1 ) statistical evidence , (2) evidence of disparate questioning of similarly

- situated venirepersons, (3) side

- by

side comparis ons of the stricken venirepersons and the accepted ven irepersons, (4) whether the

r eco r d suppo rts the State’s explanations for its s trikes, and (5) any other relevant circumstances bearing on the issue of purposeful discrimination.” Compton v. State , 666 S.W.3d 685, 698 (Te x. Crim. App. 2023) (citing Flo wers v. Mississippi , 139 S. Ct. 2 22 8 , 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 crimi nal offenses

. There was no indication of disparat e que stion ing in the record , and a s to v enire person 25, the State explained6

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

. Ap p.

— Corpus Christi

– Edinburg 1 9 97 , 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 re sult, the Waco Court of Appea ls has determined that

“ striking ev e ry person o n the venire panel that was under the age of twenty

- five ” constitutes a
proper race - ne utral explanation. Torres v. State , No. 10

- 12

- 00263

- CR, 2014 WL 2720800 , at *3 (Tex. App.

—

Wac o June 12, 2014, no pet

. ) ( m em. op., not designated for publi c a ti on )

. Alth ough A uston attempts a side

- by

- side comparison of stricken and accepted venirepersons, the record shows that v enireperson 25 was the youngest person on the pane l and was born in 2000

. Auston compares the ag e of v enirepe rson 25 to other p ane l me mbers, 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 v enirepe rson 25. As did the Waco Co urt of Appeals in Torr es , w e must “ accord [] great d efer e n ce to the
tr ial 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 ). Ac cordi ngly, we overrule Auston’s fir st po i n t of error

. II. Ther e Was No Jury - Charge Error In his last point of error, Auston raises jury

- charge error. “ In reviewing a jury

- charge issue, an appellate cour t ’ s first duty is to determi ne whether the char ge contai ns error . ” Bri ceno7

v. State , 675 S

. W .3 d 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 indictm ent alleged that Auston inte ntionally, knowingly , or reck lessly cause d bodily injury t o a pe a c e officer b y the fol lowing manner and means: “b y striking [the officer] with his hand or foot, grabbing him with his h and or arm, or causing him to strike the ground or other hard object

. ” As a result , the tr ial court incorporated the alleged mann er an d me ans in th e followin g charge to the jury:

Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a r easonable doubt, t hat in Brazos County, Texas, on or about March 4, 2 019, the def endant, LAWRENCE AUSTON, did then a nd th e r e intentiona lly, know ingly, or recklessly cause bodily injury to C. Johnson, hereafter styled the complainant, by striking him with his hand or foot, g rabbing him with his hand or ar m, or causing him to strike the ground or other hard object, and th e def

e n da nt knew th at the co mplainant was a peace officer and was lawfully discharging an o fficial duty, namely attempting to arrest the defendant, then you will find the defendant guilt y of Assault of a Peac e Office r as charged in the indictment. Auston ’s ar g u me n t takes a im 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 be cause, accor ding to Aust on , th e evidence did not show that he struck Johns o n w i th his ha nd or foo t. As a result, he complains that the trial court erred by submitting that manner and means for the jury’s consideratio n. Accordingly, th e determination of w hether jury

- charge error

occu rred rests on the state of the evidence

. At t ri a l, Johnso n testifi ed that he stopped Auston for a traffic violation but smelled phencyclidine, commonly known as PCP, as he stood by the d river’s side door. According to Johnso n, Auston ap peared to be into xicated and could not produce a driver’ s lice n s e . When8

Joh nson atte mpted to place Auston in handcuffs, a len gthy struggle ensued. Johnson testified that Auston placed his arm around John son’s hand and tried to choke him, hook ed Johnson’s leg, picked John son up and slammed him on the ground, a nd dru g hi m across the p avement
. Johnson also said that Auston “actually tried to kick” him. When aske d if Auston was continuing to hit him during the fight, Johnson testified, “I honestly do n’t know if

- - just in t hat moment of all of the things going o n, I d o no t know if he struck me. ” Even so, when asked if Auston “r epeatedly kick [ed] , punch [ ed] , grab [bed] , and drag [ged] ” him, Jo hnson said, “Yes.” At the charge con ference, whe n Auston objec ted to the submission of the phrase by

“ striking him with hi s ha nd o r f oot , ” t he State respon ded that recorded footage showed that Auston had st r uck Johnson with his hand and foot. The trial court agreed and, as a re sult,

overru led Auston’s obj ection to the jury charge

. We see no error in the trial court’s ruling. I n add i t ion to Johnson’s testimon y that he was repeatedly kicked and punched, o ur review of the recording admi tted at trial show s that, while Johnson attempted t o arrest Auston, Aust o n used his hand and foot to strike Johnson. As a result, t here was no va r i a n ce between the indictment and proof at trial because the recording itself enabled the jury to conclude that th e State met its burden to prove the cha llenged mann er and means. B ecause we find no jury

- charge error, we overrul e Auston ’s l ast point of err o r . 3

3 M oreover , “[t]o obtain a reversal for jury

- charge error, [Auston] must have suffer ed actual harm and not merely theoretical harm.” B riceno , 675 S.W. 3d at 92 (citing Sanchez v. Sta te , 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 concl ude that Auston would be unab le to show harm from any alleged jury

- charge error.9

I II. Conclusion We affir m the trial court’s judgment.

Charles van Cleef Justice Date Submi tted: January 24, 2024 Date Decided: F ebruary 7 , 2024 Do Not Pub lish