1 

In The 

Court of Appeals 

Ninth District of Texas at Beaumont 

_________________ 

NO. 09-12-00302-CR 

_________________ 

GABRIEL SILVA, Appellant 

V. 

STATE OF TEXAS, Appellee 

________________________________________________________________________ 

On Appeal from the 284th District Court 

Montgomery County, Texas 

Trial Cause No. 11-06-06274-CR 

________________________________________________________________________ 

MEMORANDUM OPINION 

 A jury convicted Gabriel Silva of the felony offense of possession with 

intent to deliver or manufacture a controlled substance, cocaine, in an amount of 

200 grams or more, in a drug-free zone. See Tex. Health & Safety Code Ann. § 

481.112(e) (West 2010), § 481.134(c)(1) (West Supp. 2013). The jury assessed 

Silva’s punishment at fifty-five years’ confinement and a fine of $6,500. The trial 

court sentenced Silva in accordance with the jury’s verdict. Silva appeals his 
2 

conviction and presents four issues for review. Finding no reversible error, we 

affirm the trial court’s judgment. 

I. The Indictment 

 In his first issue, Silva argues the trial court erred by denying his request for 

a ten-day continuance in accordance with article 28.10 of the Texas Code of 

Criminal Procedure after the State amended the indictment by removing the word 

“Conroe.” The State responds that the trial court did not err because it did not 

amend the indictment. The original indictment alleged in relevant part: 

And it is further presented in and to said Court that the 

defendant committed the above offense within 1,000 feet of premises 

owned by Kinder Care Daycare, a school, located at 24717 Oakhurst, 

Conroe, Montgomery County, Texas. 

After the jury was seated, but prior to the reading of the indictment, the prosecutor 

made an oral motion to abandon the word “Conroe” from the indictment as 

surplusage. Silva’s counsel objected to the prosecutor’s motion for lack of notice. 

Silva’s counsel requested a continuance to allow him time to prepare a defense 

against a different indictment. The trial court took the State’s motion under 

advisement and instructed the State to read the indictment to the jury as it was 

originally charged. The prosecutor read the indictment to the jury, including the 

word “Conroe,” as instructed to do so by the trial court. The trial court withheld 

ruling on the State’s motion until the close of evidence in the guilt phase of trial. 
3 

Ultimately, the trial court ruled that the word “Conroe” was surplusage and it 

would allow the State to abandon it as requested. Our review of the appellate 

record indicates that the State never physically altered the indictment to reflect the 

court’s ruling, did not file an amended photocopy of the original indictment, and 

did not file a written motion to indicate the proposed alteration to the indictment. 

While Silva is correct that an amendment to the charging instrument is subject to 

the limitations and requirements set out in article 28.10 of the Code of Criminal 

Procedure, we find no evidence in the record that the State amended the indictment 

to delete the word “Conroe.” See Puente v. State, 320 S.W.3d 352, 357-58 (Tex. 

Crim. App. 2010) (indicating that although the trial court approved the parties’ 

agreement to amend the indictment, when the State made no physical changes to 

indictment and did not file an amended photocopy of the indictment, changes to 

defendant’s judicial confession alone were not enough to constitute an amendment 

of the indictment); Riney v. State, 28 S.W.3d 561, 566 (Tex. Crim. App. 2000) 

(indicating State’s motion and trial judge’s granting thereof only constitute 

authorization of eventual amendment of an indictment pursuant to article 28.10, 

they do not comprise the actual amendment). Therefore, we overrule Silva’s 

argument that the trial court erred in allowing the State to amend the indictment 
4 

and in denying his request for a ten-day continuance pursuant to article 28.10. See 

Tex. Code Crim. Proc. Ann. art. 28.10 (West 2006). 

As part of his first issue, Silva also appears to argue that if the State includes 

unnecessary allegations in the indictment that are descriptive of that which is 

legally essential to charge a crime, the State is bound to prove the allegations, even 

though needlessly stated. Silva specifically contends that because the State alleged 

the exact address of the daycare, the State was required to prove the exact address 

of the daycare as alleged in the indictment, including the city in which the daycare 

operates. The indictment alleges Silva committed his offense “within 1,000 feet of 

premises owned by Kinder Care Daycare, a school, located at 24717 Oakhurst, 

Conroe, Montgomery County, Texas.” Silva further contends that the testimony of 

the daycare’s central director was that the daycare was located in Spring, Texas. 

Silva argues that because the State alleged the daycare was located in Conroe, the 

State was required to prove this allegation in order to prove Silva committed the 

offense in a drug-free zone. The cases Silva cites in support of his argument rely 

ultimately on Burrell v. State, 526 S.W.2d 799 (Tex. Crim. App. 1975). See, e.g. 

Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2000); Wray v. State, 711 S.W.2d 
5 

631, 633 (Tex. Crim. App. 1986).1

 In Burrell, the Court explained that 

“‘[a]llegations not essential to constitute the offense, and which might be entirely 

omitted without affecting the charge against the defendant, and without detriment 

to the indictment are treated as mere surplusage, and may be entirely 

disregarded.’” Burrell, 526 S.W.2d at 802 (quoting 1 Branch’s Ann. P.C., 2d ed., 

Sec. 517, p. 497 (1956)). The Court in Burrell also recognized an exception to the 

general rule regarding surplusage—“where the unnecessary matter is descriptive of 

that which is legally essential to charge a crime[,] it must be proven as alleged, 

even though needlessly stated.” Id. However, the Court of Criminal Appeals 

overruled the Burrell exception in Gollihar v. State, 46 S.W.3d 243, 256-57 (Tex. 

Crim. App. 2001). In Gollihar, the Court held that when an appellant alleges a 

variance between the evidence presented at trial and the allegations in the 

indictment, the variance is fatal only if it is material and prejudices a defendant’s 

substantial rights. Id. at 257 (quoting United States v. Sprick, 233 F.3d 845, 853 

(5th Cir. 2000)). The Court of Criminal Appeals has since identified two ways in 

which a variance in pleading and proof can occur: (1) a variance involving the 

statutory language that defines the offense, and (2) a variance involving a non-

 1

 We note that Silva likewise relied on cases based on the Burrell exception 

in making his arguments to the trial court. See Sattiewhite v. State, 600 S.W.2d 277 

(Tex. Crim. App. 1979); Peters v. State, 652 S.W.2d 460 (Tex. App.—Houston 

[1st Dist.] 1983, pet. ref’d). 
6 

statutory allegation that is descriptive of the offense in some way. Johnson v. State, 

364 S.W.3d 292, 294 (Tex. Crim. App. 2012). 

To prove Silva committed his offense in a drug-free zone, the State is 

required to prove that the offense was committed “in, on, or within 1,000 feet of 

the premises of a school, the premises of a public or private youth center, or a 

playground[.]” See Tex. Health & Safety Code Ann. § 481.134(c)(1) (West Supp. 

2013). The State’s allegation that the daycare was located in Conroe was not 

essential to prove that Silva committed the offense in a drug-free zone. See id. The 

term “Conroe” simply described the location of the daycare premises. The State 

alleged the essential fact that Silva committed the offense within 1,000 feet of 

premises owned by a school. The State was not statutorily required to allege the 

daycare’s specific address, so we conclude the variance involves a non-statutory 

allegation. See id. 

When reviewing a variance involving a non-statutory allegation for 

materiality, we apply a two-prong test. Santana v. State, 59 S.W.3d 187, 195 (Tex. 

Crim. App. 2001). First, we consider “‘whether the indictment, as written, 

informed the defendant of the charge against him sufficiently to allow him to 

prepare an adequate defense at trial[.]’” Id. (quoting Gollihar, 46 S.W.3d at 257). 

Second, we determine if the “‘deficiently drafted indictment would subject the 
7 

defendant to the risk of being prosecuted later for the same crime.’” Id. The Court 

of Criminal Appeals has explained its approach to variances involving nonstatutory allegations: 

[F]or non-statutory allegations we tolerate some variation in 

pleading and proof. We tolerate “little mistakes” that do not prejudice 

the defendant’s substantial rights but we will not tolerate a variance 

that really amounts to a failure to prove the offense alleged. What is 

essential about variances with respect to non-statutory allegations is 

that the variance should not be so great that the proof at trial “shows 

an entirely different offense” than what was alleged in the charging 

instrument. 

Johnson, 364 S.W.3d at 295. To the extent Silva argues a variance exists, we 

believe any alleged variance is immaterial. Under the first prong of the test, Silva 

must demonstrate that the variance actually surprised him—he must demonstrate 

that he was not sufficiently informed of the charges against him to the extent that 

he was unable to prepare an adequate defense. See Santana, 59 S.W.3d at 194-95. 

“The object of the doctrine of variance between allegations of an indictment is to 

avoid surprise, and for such variance to be material it must be such as to mislead 

the party to his prejudice.” Cole v. State, 611 S.W.2d 79, 82 (Tex. Crim. App. 

1981) (internal citations and quotations omitted). The burden of demonstrating 

surprise or prejudice rests with the defendant. Santana, 59 S.W.3d at 194. Silva 

does not claim he was surprised by the evidence at trial that the daycare was 

located in Spring. During a hearing before the trial court, the State informed the 
8 

trial court that Silva’s counsel had received a copy of the offense report, which 

indicated that the daycare was located in Spring, Texas, not Conroe. The State also 

indicated that it had forwarded Silva’s trial counsel a map that had the correct 

address written on it. Silva’s counsel did not refute having received these items 

before trial. Further, there is no indication in the record that Silva did not know 

which daycare the State claimed was located within 1,000 feet of where Silva was 

found in possession of cocaine. There is no indication in the record that Silva was 

misled by the State’s allegation that the daycare was located in Conroe, or that he 

was surprised when the proof demonstrated the daycare was actually located in 

Spring, Texas. 

Silva also fails to show how the variance might subject him to subsequent 

prosecution for the same crime. The indictment clearly identifies the offense, the 

date of the offense, that the offense occurred “within 1,000 feet of premises owned 

by Kinder Care Daycare,” and that Kinder Care Daycare was located at “24717 

Oakhurst,” in Montgomery County, Texas. The Geographic Information Systems 

coordinator for Montgomery County testified that in her position she creates maps 

to help people visualize things spatially. In this case, she created a map that 

depicted the premises located at 24717 Oakhurst Drive, Spring, Texas. She 

testified that the appraisal district identifies Kinder Care Daycare at this address. 
9 

The map depicts a 1,000-foot radius around the address. A licensing inspector from 

the Department of Family and Protective Services and Child Care Licensing 

testified that she is familiar with Kinder Care Daycare located at 24717 Oakhurst 

Drive in Spring, Texas and confirmed that it is a daycare licensed by the State of 

Texas. The center director for Kinder Care testified the daycare is located at 24717 

Oakhurst in Spring, Texas. She testified that there are two other Kinder Care 

facilities located in Montgomery County, both located in The Woodlands. She 

testified that Kinder Care does not have a facility in Conroe, Texas. She testified 

that there is only one Kinder Care located on a street named Oakhurst Drive in 

Montgomery County. The evidence in the record supports that Silva was found in 

possession of cocaine within 1,000 feet of the daycare facility located at 24717 

Oakhurst Drive. If prosecuted again, Silva may avail himself of the entire record, 

not just the indictment. See Gollihar, 46 S.W.3d at 258. Furthermore, the offense 

here is possession of cocaine with the intent to deliver or manufacture within 1,000 

feet of a school. The gravamen of the offense is that he possessed cocaine. If he 

had possessed cocaine within 1,000 feet of twenty different schools, he would not 

then be subject to twenty charges of possession. We conclude the State could not 

prosecute Silva for the same possession offense again just because another daycare 

is alleged to be within 1,000 feet of where he committed the offense of possession. 
10 

After applying both prongs of the materiality test, we conclude that to the extent 

Silva complains of a variance, the variance was immaterial. We overrule Silva’s 

first issue. 

II. Improper Jury Argument 

 In his second issue, Silva argues that statements made by the prosecutor in 

closing arguments during the punishment phase of his trial were improper and 

harmed him. The State contends Silva did not preserve this issue for review. To 

preserve error for appellate review on an allegedly improper jury argument, a 

defendant must make an objection, and then must pursue that objection to an 

adverse ruling. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); 

Badall v. State, 216 S.W.3d 865, 872 (Tex. App.—Beaumont 2007, pet. ref’d); see

Tex. R. App. P. 33.1(a)(1)(A). If a trial court sustains a defendant’s objection, the 

defendant must request an instruction to disregard and move for a mistrial to 

preserve error for appeal. Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 

1993). “It is well settled that when [an] appellant has been given all the relief he 

requested at trial, there is nothing to complain of on appeal.” Id.; see Cockrell v. 

State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). 
11 

 Silva complains that the following statements, made by the prosecutor 

during his closing argument, were outside the record, and thus improper jury 

argument: 

[STATE]: And what does it tell us that when he has a 7-yearold, a 5-year-old and a 1-year-old he’s still dealing cocaine out of his 

house with those kids around? 

[DEFENSE]: Your Honor, I object; it hasn’t been proven 

beyond a reasonable doubt. 

[STATE]: That’s for the jury to decide, Your Honor. 

THE COURT: You may continue. 

[STATE]: Thank you, Your Honor. They want you to have 

sympathy and give him less time for that. Ladies and Gentlemen, I 

submit to you when somebody is still dealing coke with their kids 

around that’s a reason to give them more time and not less. 

[DEFENSE]: Objection, Your Honor. There’s no evidence in 

the record that he was dealing with his kids around. Absolutely none. 

 

THE COURT: Sustained. It’s true there’s no evidence in the record 

that I heard concerning him dealing when his kids were around. 

Although the trial court had initially overruled Silva’s objection, it later sustained 

the objection as to the statement that Silva had dealt drugs while his children were 

around.2

 The trial court then appears to make an effort to correct any 

 2

 We note Silva did not obtain an express ruling the first time he objected to 

the prosecutor’s statements; however, the trial court implicitly overruled this 

objection by directing the prosecutor to continue. See Ramirez v. State, 815 S.W.2d 
12 

misrepresentation of the evidence by stating there was no evidence in the record 

that Silva dealt drugs when his children were around. While the trial court did not 

formally instruct the jury to disregard the prosecutor’s statements, the trial court’s 

response reflected its disapproval to the jury of the prosecutor’s statements as not 

being supported by the evidence. 

Silva also contests the following statement made by the prosecutor during 

closing argument: 

[STATE]: Every single person he has sold cocaine to has been 

his victim. Every single child whose parent has been destroyed by 

cocaine that he has sold them is his victim. Every single child who has 

tried cocaine that he’s sold them is his victim. Remember his victims. 

[DEFENSE]: There’s no evidence that he sold to children and I 

ask the jury be instructed to disregard – 

THE COURT: Sustained. Please disregard that particular 

comment regarding selling to children. 

Here, the trial court sustained Silva’s objection and instructed the jury to disregard 

the improper comment made by the prosecutor. 

Silva contests the following statement also made by the prosecutor during 

the State’s closing argument: 

 

636, 650 (Tex. Crim. App. 1991) (holding the trial judge “implicitly overruled” 

defendant’s objection to the State’s question by directing witness to answer the 

question). 
13 

[STATE]: I ask that if you find any redeeming quality in him 

take a little bit off life, but start from there. Start from the place you 

can put him where he won’t put anybody else in jeopardy again, that 

he won’t keep filling our streets in Montgomery County with the 

poison that he has been selling so far. Because this poison is a cancer 

on our society. And he’s the tumor. Let’s cut him out. Let’s get him 

out of the way so we can at least try to be healthy. 

[DEFENSE]: Object to characterizing the defendant as a tumor 

and calling him names. 

THE COURT: Sustained. I will ask [that] the word tumor not 

be considered by the jury. 

The court once again sustained Silva’s objection and instructed the jury not to 

consider the word “tumor.” 

Silva objected to the prosecutor’s statements, and the trial court sustained his 

objections. The court then took measures to correct any misrepresentation created 

by the prosecutor’s statements. However, Silva did not follow up his objections by 

moving for a mistrial. Because the trial court granted Silva all the relief he 

requested and Silva did not pursue the objection to an adverse ruling, he has failed 

to preserve his complaints for review. See Tex. R. App. P. 33.1; see also Cook, 858 

S.W.2d 473. 

III. Sentencing Evidence—Unadjudicated Extraneous Offenses 

 Silva argues the trial court abused its discretion in allowing the jury to 

consider evidence of his unadjudicated offenses during the punishment phase of 
14 

trial. Silva specifically contests the admission of evidence to show that on 

September 16, 2011, Silva committed the offense of possession of a controlled 

substance and possession of a firearm by a felon. Silva asserts two challenges to 

the trial court’s admission of evidence of his unadjudicated offenses. First, Silva 

argues the trial court erred in not previewing the evidence before admitting it to 

determine if sufficient evidence existed for the jury to reasonably find he 

committed the extraneous offenses beyond a reasonable doubt. Second, Silva 

argues the trial court abused its discretion by refusing to instruct the jury not to 

consider any evidence of his unadjudicated offenses, after the State failed to prove 

the chain of custody for the drugs and firearms by failing to establish the first link 

in the chain of custody and by failing to bring the physical evidence before the 

jury.

Article 37.07 of the Code of Criminal Procedure governs the admissibility of 

evidence during the punishment phase of a non-capital trial. See Tex. Code Crim. 

Proc. Ann. art. 37.07 (West Supp. 2013); see also Erazo v. State, 144 S.W.3d 487, 

491 (Tex. Crim. App. 2004). Article 37.07 provides that the State may offer 

evidence as to any matter the trial court deems relevant to sentencing, including 

evidence of an extraneous crime that is shown beyond a reasonable doubt to have 
15 

been committed by the defendant. Tex. Code Crim. Proc. Ann. art. 37.07, § 

3(a)(1). 

Relevant punishment evidence is anything that assists the jury in 

determining the appropriate sentence for a defendant: 

The Legislature has expressly provided that “relevant” punishment 

evidence includes, but is not limited to, both character evidence in the 

form of opinion testimony as well as extraneous-offense evidence. 

Because there are no discrete fact issues at the punishment phase of a 

non-capital trial, we have ruled that the definition of “relevant,” as 

stated in Rule 401 of the Texas Rules of Evidence, does not readily 

apply to Article 37.07. What is “relevant” to the punishment 

determination is simply that which will assist the fact finder in 

deciding the appropriate sentence in a particular case. When the jury 

assesses punishment, it must be able to tailor the sentence to the 

particular defendant, and relevance is simply “a question of what is 

helpful to the jury in determining the appropriate sentence for a 

particular defendant in a particular case.”

Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008) (footnotes omitted) 

(quoting Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim. App. 2006)). 

When the defendant makes an appropriate objection to extraneous offense 

evidence, the trial court has the responsibility to determine the threshold issue of 

admissibility. Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996). The 

trial court satisfies its responsibility by making an initial determination that a jury 

could reasonably find, beyond a reasonable doubt, that the defendant committed 

the extraneous offense. Mann v. State, 13 S.W.3d 89, 94 (Tex. App.—Austin 
16 

2000), aff’d, 58 S.W.3d 132 (Tex. Crim. App. 2001); see Mitchell, 931 S.W.2d at 

954. Article 37.07 does not require the trial court to conduct a hearing outside the 

presence of the jury to determine the admissibility of extraneous offenses during 

the punishment phase of trial. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1); 

see also Welch v. State, 993 S.W.2d 690, 697 (Tex. App.—San Antonio 1999, no 

pet.). “The trial court may determine whether there is sufficient evidence through 

an oral or written proffer of evidence, motions, pretrial hearings, and the trial, 

including any bench conferences.” See Arzaga v. State, 86 S.W.3d 767, 781 (Tex. 

App.—El Paso 2002, no pet.). 

After opening statements during the punishment phase of trial, the State 

called Officer Juan Martinez to testify. Before Martinez testified as to any details 

of Silva’s extraneous offenses, the court held a bench conference to determine 

whether there was sufficient evidence for a reasonable jury to find the extraneous 

offenses beyond a reasonable doubt. The prosecutor informed the court of the 

witnesses and evidence he intended to offer to prove the extraneous offenses. The 

State indicated it had filed notice of and intended to offer evidence that on 

September 6, 2011, Silva committed the offense of possession of a controlled 

substance and the offense of possession of a firearm by a felon. During the bench 

conference, the State informed the court it had two police officers and a chemist 
17 

prepared to testify in support of these offenses. The State explained that the 

witnesses would (1) testify as to Silva’s identity and the place where he was 

staying, (2) testify as to the details of a valid warrant and search of Silva’s place of 

residence, and (3) testify that during the search of the residence, officers found 

approximately 105 grams of cocaine and multiple weapons. 

At the conclusion of the bench conference, the trial court denied Silva’s 

request for a hearing outside the presence of the jury, and allowed the testimony 

concerning the extraneous offenses. While the trial court made no express ruling 

on the admissibility of the extraneous offense evidence, its denial of Silva’s request 

for a hearing constitutes an implied ruling of admissibility. See Moore v. State, 82 

S.W.3d 399, 408-09 (Tex. App.—Austin 2002, pet. ref’d), overruled on other 

grounds by Taylor v. State, 268 S.W.3d 571, 587 (Tex. Crim. App. 2008). As the 

trial court is not required to conduct a full hearing outside the presence of the jury, 

the trial court did not abuse its discretion by conducting a preliminary review in 

this manner. See Mann, 13 S.W.3d at 93-95; Arzaga, 86 S.W.3d at 781; Welch, 993 

S.W.2d at 697; see also Tex. Code. Crim. Proc. Ann. art. 37.07, § 3(a)(1). 

Accordingly, Silva’s contention that the trial court did not properly conduct a 

threshold inquiry into the admissibility of the extraneous offense evidence is 

without merit. 
18 

We next consider Silva’s argument that the trial court erred in failing to 

instruct the jury it could not consider the extraneous offenses in determining 

punishment when, according to Silva, the State failed to meet its burden of proving 

the extraneous offenses beyond a reasonable doubt. 

When the State offers evidence of extraneous offenses, the State is required 

to prove beyond a reasonable doubt that the defendant committed the said offense 

or acts, or at least that the defendant is criminally responsible for its commission. 

See Mitchell, 931 S.W.2d at 954. However, the trial court’s threshold 

determination is not a finding that the State has proven the extraneous offense 

beyond a reasonable doubt, but is instead a finding that sufficient evidence exists 

from which a jury could reasonably so find. Mann, 13 S.W.3d at 94 (“[T]he court 

must make an initial determination at the proffer of the evidence that a jury could 

reasonably find beyond a reasonable doubt that the defendant committed the 

extraneous offense.”). If the trial court finds sufficient evidence, the jury then, as 

the exclusive judge of the facts, determines whether the State has proved the 

extraneous offense beyond a reasonable doubt. Mitchell, 931 S.W.2d at 954. 

Here, the trial court properly instructed the jury in its written punishment 

charge that it was to consider extraneous offenses only if it determined that the 

State had proven beyond a reasonable doubt that Silva had committed such 
19 

extraneous offenses or could be held criminally responsible for the offenses. The 

jury is presumed to have followed the court’s charge. See Gamez v. State, 737 

S.W.2d 315, 324 (Tex. Crim. App. 1987). We overrule Silva’s third issue. 

IV. Batson Challenges 

 Silva argues the trial court committed reversible error by allowing the State, 

in violation of Batson v. Kentucky, 476 U.S. 79 (1986), to use peremptory 

challenges to exclude two African American venire members. The State responds 

that the trial court properly overruled Silva’s Batson challenge because it gave 

legitimate, race-neutral reasons for the strikes of the minority panel members. 

In Batson, the United States Supreme Court held that the State violates the 

Equal Protection Clause when the State excludes a venire member based on race. 

476 U.S. at 85-86. The Court established a three-step process for evaluating Batson

claims: (1) the defendant must make a prima facie showing of racial 

discrimination; (2) if the defendant makes that showing, the burden shifts to the 

prosecutor to articulate a race-neutral reason for the strike; and (3) the trial court 

must determine if the defendant has proven purposeful discrimination. Id. at 96-98; 

Nieto v. State, 365 S.W.3d 673, 675-76 (Tex. Crim. App. 2012). Because the trial 

court’s decision largely turns on its evaluation of credibility, we give the court’s 

decision great deference and will not disturb it unless it is clearly erroneous. Ladd 
20 

v. State, 3 S.W.3d 547, 563 (Tex. Crim. App. 1999); see also Watkins v. State, 245 

S.W.3d 444, 448 (Tex. Crim. App. 2008) (“[A] reviewing court should examine a 

trial court’s conclusion that a facially race-neutral explanation for a peremptory 

challenge is genuine, rather than a pretext, with great deference, reversing only 

when that conclusion is, in view of the record as a whole, clearly erroneous.”) 

During voir dire, Silva made a Batson challenge to the State’s peremptory 

strikes of venire member 10 and venire member 19 because both members are 

African American women that are available to serve and no other African 

Americans were serving on the jury. The trial court gave the State the opportunity 

to provide a race-neutral reason for the strikes. The prosecutor responded: “As to 

Juror Number 10, she had informed the Court that she was the wife of a criminal 

defense attorney. And on that basis we struck her.” The prosecutor then stated, “As 

for 19, she was the one who said that she thought that users should be punished 

more than dealers.” The trial court found that the reasons given for the strikes were 

sufficient to show race-neutral reasons for the peremptory strikes. 

Silva claims the State’s use of two of its ten peremptory strikes to eliminate 

all of the African Americans in the strike zone shows the State’s proffered reasons 

for striking venire members 10 and 19 were a pretext to purposeful discrimination. 

In support of his position, Silva relies on Greer v. State, 310 S.W.3d 11 (Tex. 
21 

App.—Dallas 2009, no pet.). But Greer is distinguishable because the Dallas Court 

of Appeals first emphasized in Greer that the State used all of its peremptory 

strikes against African Americans, who made up only 27% of the venire panel. See 

id. at 15. We are unable to tell by the record how many African Americans were 

members of the venire panel in this case. According to Silva, the State did not use 

all of its strikes against African Americans; only two of its ten were used against 

African Americans. The court in Greer also considered that the State’s proffered 

reasons were implausible given that a very similar white juror had not been struck. 

Id. at 15-19. Unlike Greer, in this case, there is no evidence that the facially raceneutral reasons provided by the State were implausible. Silva does not use 

comparative juror analysis with regards to venire member 10, but does compare 

venire member 19 with venire member 7. Specifically, Silva references the 

following question posed by the State during voir dire, “Is there anybody that 

thinks that using drugs is worse than selling drugs?” Silva correctly points out that 

venire members 19, 7, 61, and 3 all responded affirmatively to this question. 

However, the State then followed up with another question: “Is there anybody who 

thinks that dealers should be treated lighter than users?” While initially none of the 

venire members answered affirmatively to this question, later venire member 19 

indicated that she believed “people who deliver [drugs] should be judged lighter 
22 

than those who use [drugs.]” Silva argues that the State’s disparate treatment is 

revealed by comparing venire member 7 and 19 because the State did not strike 

venire member 7, who was not an African American, when venire member 7 also 

agreed that using drugs was worse than selling drugs. However, venire member 7 

did not agree that a dealer should receive lighter punishment than a user, the 

express reason given by the State for striking venire member 19. 

Silva argues the State’s basis for striking venire member 10 was also 

pretextual. Silva contends the reason given by the State for striking member 10 

was inaccurate because venire member 10 did not actually say her husband was a 

“criminal defense attorney,” she merely stated that her husband was a “criminal 

attorney.” In presenting his basis for striking venire member 10, the prosecutor 

stated, “she had informed the Court that she was the wife of a criminal defense 

attorney.” From the arguments Silva’s trial counsel made to the trial court, it is 

likely that Silva’s trial counsel also understood venire member 10’s statement to 

mean that her husband was a criminal defense attorney. Silva’s counsel argued, 

“simply being married to a criminal defense attorney does not disqualify them 

from serving on a jury.” While it is certainly plausible that venire member 10 

meant that her husband was a prosecutor, the State is not required to root out every 

possible interpretation. See Whitsey v. State, 796 S.W.2d 707, 722 (Tex. Crim. 
23 

App. 1989) (“‘If the district court’s account of the evidence is plausible in light of 

the record viewed in its entirety, the court of appeals may not reverse it even 

though convinced that had it been sitting as the trier of fact, it would have weighed 

the evidence differently. Where there are two permissible views of the evidence, 

the fact-finder’s choice between them cannot be clearly erroneous.’”) (quoting 

Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985)). 

Because the State offered race-neutral motives for its strikes, and Silva 

failed to rebut those motives, we cannot say the trial court’s rulings were “clearly 

erroneous.” See Watkins, 245 S.W.3d at 448. Silva’s fourth issue is overruled. 

Having overruled Silva’s four issues on appeal, we affirm the judgment of 

the trial court. 

AFFIRMED. 

 

______________________________ 

 CHARLES KREGER 

 Justice 

Submitted on December 3, 2013 

Opinion Delivered June 11, 2014 

Do not publish 

Before McKeithen, C.J., Kreger, and Horton, JJ.