## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-22-00092- CR

MELVIN FORD , JR., Appellant
V.
THE STATE OF TEXAS , Appellee

On Appeal from the 85th District Court Brazos County, Texas Trial Court No. 21-01825- CRF -85

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Chief Justice Stevens2 

### ME MORANDUM OPINION
A Brazos County 1 jury convicted Melvin Ford, Jr. , of unlawful possession of a firearm by a felon. 2 Ford appeals, complain in g that (1) th e trial court erred by denying Ford’s Batson 3 challenge to the State’s use of a peremptory strike , (2) law e nforcement officers lacked reasonable suspicion to detain Ford , and (3) the trial court erred by denying Ford’s request to instruct the jury not t o c o nsider any illegally obtained evidence.
Because w e find that (1) the trial court properly deni ed Ford’s Batson challenge , (2) officers had reasonable suspicion to detain Ford , and (3) Ford was not entitled to the requested jury instruction , we aff irm t he trial court’s judgment

. I. Background
At 3:41 a.m. on March 5, 2021 , B ryan , Texas, police officers responded to a call of a sexual assault in progress

. The caller told dispatch, “He’s raping me!” Sergeant Scott Jones testified 4 that he and his partn er r eceived n o other details bes ides the location of the incident. Due to the hour and location , Jones did not expect the amount of traffic they encountered. 5
Jones testified , “There were people and there were vehicles in the roadway

. ” He also state d , “ [I] t

1 Originally a pp ealed t o the Tenth Court o f A ppeals, this case wa s transferred to this Court by th e Texas Supre me Court pursuant to its docket equalization efforts. Se e T EX

. G OV ’ T C ODE A NN . § 73.001. We are unaware of any conflict between pre cedent of the Tenth Court of Appe a l s and that of this Co u rt on any relevant i ssue. See T E X

. R. A PP . P. 41.3

.
2 See T EX

. P E NAL C ODE A NN

. § 46.04 ( Supp.)

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

.
4 Jones ’s testimony was essentially the same at the hearin g on Ford’s motion to supp ress an d a t trial.

5 Because t h ey were responding t o a reported sexual a ssault, Jones said h e was “lookin g for two people; maybe somebody intervening

-- a good Sa maritan intervening.”3 was a large r commotion th an I expected to see for that type of call.” Jones said that at least two vehicles were in the street , others were p a rked, and “there were some people milling around .” According to Jones , the emergency lights on the offi cers’ vehicle s wer e flashing when the y arriv ed at the scene

. The recording from Jones’s body cam was played for the jury. The recording reveals that Jones announced , “ [S] to p, police,” as soon as he got out of his police vehicle. A sports

- utility vehicle (SUV) d r o ve i n front of Jones and then stop ped

. Jones round ed the SUV , and a suspe ct, eventually shown to be Ford, was seen behind a pickup truck. Jones told
him to stop and keep his hands w h ere Jones could see them. At first, Ford complied, quickly raising h i s hands abo ve his head

. After about a secon d or two, Ford ’ s hands went down to his side or into the bed of the truck

. Ford ignor e d Jones’s commands to keep his hands visible. About four seconds later , F ord ran away. He was pursued by Jones and anothe r respondi ng officer

. Within fifteen seconds, F ord was tackled by the other officer. After resisting and struggling, three officer s finally subdued Ford , who had a pistol on his hip. It was proved at trial that Ford was a convicted felon a t the time of t h e inci dent

. Th o se facts led to Ford’s conviction for unlawfu l possession of a firearm by a felon.
II. T he App ellant Did Not Show a Batson Violation After voir dire, Ford claimed that the S tate used one of its peremptory strikes against an Africa n America n venireperson, in viola tion of Batson

. The State respond ed that Ford failed t o make a prima facie showing of that alleged violation

. T he trial court overruled Ford’s argument.4 A. S tandard o f Review Use of peremptory challenges to strike pot ential jurors on t he basis of race is pr ohibited by both the Equal Protection Clause of the Fou rteenth Amendment to the United States Constitution, U.S. C ONST . amend. XIV, § 1 ; see Batson , 476 U. S. at 85

– 86 , and Article 35.261 of the Te x a s Code of Criminal Pro cedure, T EX
. C ODE C RIM
. P ROC

. A NN . art. 35.261 . If the defendant suspects the State of m aking race

- based challenges, he may request a Batson hearing.
See T EX
. C ODE C R IM
. P ROC

. A NN . art. 35.26 1(a).
Courts us e a three

- st ep process i n determining Batson challenges. Snyder v. Louisia na , 552 U.S. 472, 476

– 77 (2008) ; Young v. State , 283 S.W. 3 d 854, 866 (Tex. Crim. App. 2009) (per curiam) . Initially, the defendan t mus t present a p rima facie case that the State exercised its peremptory challenges on the basis of race. Snyder , 552 U

. S

. at 476; Youn g , 283 S.W.3d at 866

. The State must then articulate a race

- neutral explanation for its challenged strikes. Snyde r , 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 , 5 00 U.S. 352, 360 (1991).
If n o discrimi natory intent is inherent in the explanation, then the reason is de emed race neu tral. Id. The defendant may rebut the State’s explanation, but the burden of proving purposefu l discrimination remains with the defend ant. Young , 283 S.W.3d at 866 . In the fina l step, the t rial court must determine whether the defendant “ has carried his burden of proving purposeful di scri mination. ” Purkett v. Elem , 514 U.S. 765, 768 ( 1995) (per curia m ) ; Hernande z , 500 U.S. at
359 ; Young , 283 S. W.3d at 866

.5 In reviewing a Batson ruling, we consider the record “ in the light most favorable to th e trial court’s ruling. ” Young , 283 S.W .3d at 866 . The tr ia l c ourt’s decision will not be di sturbed unless it is clearly erroneous. Hernandez , 500 U.S. at 369; Young , 283 S.W.3 d at 866 ; J ackson
v. State , 442 S.W.3d 771, 774 (Tex. App.

— Texarkana 2014 , no pet.). To determine whether t he trial court’s decision was clearly erroneous, we examine the record to see w hether we are left with a “definite and firm convict ion t hat a mista k e has been committed.” Gu zman v. State , 85 S.W.3d 242, 254 (Tex. Crim. App. 2002) (quoting United States v. Fernandez , 887 F.2d 564,
56 7 (5t h Cir. 1989 ) (per curi am) ). The trial court is in t he best position to deter mine wh et her the
State’s race

- neutral explanation is ge nuine, so we defer to its ruling barring exceptional circumstances

. Nieto v. State , 365 S.W.3d 673, 676 (Tex. Crim. A pp. 2012). The t r ial court

“ must focus on the genuinenes s of the asserted non

- rac ial mot iv e, rather than the reasonableness. ” Jackson , 442 S.W.3d at 774 (quoting Nieto , 365 S.W.3d at 676). In our

rev iew, we “ consider the entire record of the voir dire ,” and we are no t limited to “ the specific arguments broug ht forth to the trial cou rt by t he pa rties.” Nieto , 365 S.W.3d at 676 (citing Watki ns v. State , 245 S.W.3d 444, 448 (Tex. Crim. App. 20 08) ). We do n o t substitut e our judgment for the trial court’s when considering w hether th e S tate’s explanation was a pretext. Id. Lik e the trial court, we consider the genuineness, not the reasonable ness, of the proffered non

- racial explanation. Id. (citing Gibson v. Sta te , 144 S .W. 3d 530, 534 (Tex. Crim. App. 2004))

.6 B. Event s at Voir Dire After the parties conducted voir dire of the venire panel and executed their peremptory strikes, Ford c laimed that the St ate s truck “Juror No. 9,” 6 an African American, in violati on of
Bat son . The State responded that another African American, “Juror No. 16,” was on the jury an d argued that Ford had not made a prima facie showing of an alleged Batson viola tion. Ford disagr eed, s tati ng , “ If I make a Batson challenge, Ju dge, and challenge t he reason for their strike, they’ve got to mak e some explanation that the strike was for something other than r ace.” The trial court seemed to agree with the State, sayin g, “Got to make a prima faci e showing. I don’t think the mere fact of race [is suffi cient]

. ” The St ate cite d a case and told the t rial co urt ,

“ [T] here are two people within the strike zone that by their physical appearance appear to be
Af rican

- American; one was str uck, one is on t he jury.” A brief argument ensued

. Ford claimed tha t the State must offer a race

- neutral e xplanation for its peremptory strike of an African American . The State repeat ed that Ford had not made an adequate prima facie showing t o support h is alle g ed Batso n v iolation. T he trial court then overruled Ford’ s Batson challenge. Ford offered no further argument or any offer of proof.
C. Analysis “[T]he United States C onstitution is offended by so much as a single strik e exercised o n th e basis of race.” Linscomb v. State , 829 S.W.2d 164, 166 ( Tex. Crim. App. 1992). When Ford claimed a Batson violation to the trial court, he then bore the burden of making a prima facie

6 Although “Juror No. 9” did not in fact sit on the jury, we use the ident ifi cat ions used by the t ri a l court and the part ies for convenience and to protect the ve niremembers ’s and juror’s privacy.7 case that the State improperly used peremptory strikes to exclud e A f rican American s fro m the ju ry. A defendant makes a prima facie ca se by:
1. showing he is a member of a cognizable racial group, and the prosecutor has exercised peremp tory challenges to remove from the venire members of his race; 2. relyin g on the fact that peremptory challeng es const itu te a jury selection practice that pe rmits discrimination; and
3. showing these fa cts and other relevant circumstances which raise an infere nce t hat the prosecutor peremptorily struck veniremembers on account o f their race.
Youn g v. State , 826 S.W.2d 141, 14 5 (Tex. Crim. App. 1991) ( citing Bat son , 476 U.S. at 96–97)

. The prima facie case is not made merely by arguing that a member of a cogni zable r acial group was struck when a member of the same group is seated on the jury.
For example, in Aguilar v. Stat e , 826 S.W.2d 760 (Tex. App.

— Fort Wo rth 1992, pet. ref’d) , the Hispanic defendant complained of the State’s use of two peremptory strikes on veni re members with Hispanic surnames. One Hispanic made it to Aguil ar’ s jury , the Stat e struck one , anothe r was no t c hallenged , and the fourth was fo und to not have been Hispanic, but simply to have had a Hispanic married sur name. Id. at 76 2– 63. The Fort Worth Court of Appeals held that the State’s peremptory strike of one of three Hispan i cs did “not by i tse lf estab lis h a prima facie case abs ent any other evidence b eing proffered” and that “Agu ilar failed to show any pattern or any other eviden ce to the t rial court which would raise an inference that8 the prosecutor use d per emptory strikes t o remove” the s truc k venire per son “on account of her
race.” Id

. at 763. 7
The Fourteenth Court of Appeals reached a sim i lar result in Held v. State , 948 S.W.2d 45 (Tex. App .— Houston [14th Dist.] 1997, pet. ref’d). There, the Caucasian def enda nt made a
Ba tson challen ge after the pro sec ution struck the only remaining African American from the venire. Id

. at 48. 8 The court of appeals pointed out that Hel d ’s appellate argument was the same he made to the trial court —t hat the prosecution “str uck one hundre d p ercent of the Afric an American veniremembers on the panel.” Id

. at 49 (fo otnote omitted)

. While this statistic, on its face, might appear co mpel ling, the actual facts before the trial court when it rule d on appel lant ’ s prima facie case were far less so

. Here, the jud ge w itnessed th e State ’ s exercise of one of its three perem ptory strikes agains t an African American in a case where the defenda nt w as white and race was completely unrelated to the issues in the case

. The fact that the Sta te exercised its strike in s uch a ma nner tha t it effectively eliminated all the members of a particular race fro m the jury panel is far less significant when the nu mber stricken constitutes a grand total of one. Id. We co ntrast this analysis with that in Linscomb v. Sta te , 829 S.W. 2d 164 ( Tex. Cri m. App. 1992), where the State struck f our of six Afri can American s on the venire.
In Linscomb , the Texas Co urt of Criminal Appeals found that the court of app eals had

erre d in finding that the defendant failed to make a prima f a cie show ing of a ra tional i nfe rence

7 See also Hatchett v. State , 930 S.W.2d 844, 847 (Tex. App.

— Houston [14th Dist.] 1996, pet. ref’d) (i nsufficient data “to perform a st ati stical analysis of th e appellant’s prima facie case” wh ere the record only showed that four African American veniremembers were struck , the re was no evidence reflecting “the race of the venire members challenged for caus e or of th e venire members peremp to rily cha llenge d by ap p ellant , ” and appe llant “offered no other facts or circumstances which would give rise to an inference of purposeful discrimination”).

8 “Only two African American veniremembers were within the strike range. . .
. One of them was suc ce ssfull y challen ged fo r cause , and appel lant stipulated that there was no racial motivation for this particular challenge.” Held , 948 S.W.2d a t 47

– 48.9 that the State violated Batson when it struck fou r of the six African Americans on the venire (two African Americans were seated on the jury). Id. at 166. The Texas Court of Criminal Appeals pointed ou t that t he prose c ution used forty percent of it s peremptory str ikes

— four of ten —on African American venirememb ers, where African Ameri c ans comprised only nineteen percent

— six of the first thirt y- two memb ers —of the venire panel

. Because the appellant in He ld was of a di f ferent race than th e struck venireperson , that is

a significant distinction from Ford’s situa tion. 9 However, Ford’s c ase is similar to that in Aguilar

. And , as in Aguilar and Held , Fo rd offered no argument and pointed to nothing else in the record to su p port his bl anket al legation th at a Batson violation had occurred. 10 The situation at bar is al so distinguishable from t hat in Lin scomb , where substantially more strikes were use d agains t African American veniremembers. H ere, only one pere mpt ory strike wa s used again st a

mem ber of F ord ’s race, and one othe r African American was not struck and served on the jury. The rec or d shows that there were two African Americans on the venire —on e was sat as a juror, and the other was struck by the Stat e
. The trial c o urt could ha ve foun d that th ose were not “circumstances which fairly raise[d] an inference of racial motivat ion.” Id. at 167.
As a result, w e cannot say tha t the trial court’s ruli ng on Ford’s Batson allegation was clearly erroneous. We , therefore , ov errule Ford’ s first point of er ror
.

9 The court in He ld observed that “where racial identity between the pa rty asserting Batson and the stri ck en veniremember exi st s , ‘it may provide one of the easier cases to establish both a prima facie case and a con clusive showing that wrongful discrimination has occurred

. ’” Held , 948 S.W.2d at 50. “ Therefore, although rac ial identity between the challeng er and t he excuse d ve ni r emember is not required to raise a Batson cha llenge, the absence of such an identity can certainly impact the strength of the challenger's prima facie case of racial discrimination.” Id

.
10 “ Batson is not a talisman, the invocation o f which automatical ly raises an inference of racial discriminati on.” Bean v. State , 816 S.W.2d 115, 119 (Tex. App.

— Houston [14th Dist.] 1991 , no pet. ).10 III. The Trial Court Did Not Err In Denying Ford’s Motion to Suppress Ford’s seco nd point of error comp lai ns that officers lacked reasonable suspic ion t o detain him at the scene . We disagree. “Under the Fo urth Amendment, a warrantless detent i on of th e p erson that amounts to less than a f ull

- blown custodial arrest must be justified by a reasonable suspicio n
. ” Derichsweiler v.
State , 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). “[T]he relevant inquiry is not whe ther particu l ar conduct i s innoc e nt or cr imi nal, but the degree of suspicion th at attaches to particular types of non criminal acts.” Woods v. State , 956 S.W.2 d 33, 38 (Tex. Crim. App. 1997).
Rea son able suspicion to conduct an investigative detention must be “fo unde d on specific , artic u lable fa cts which, when combined with rationa l inferences from those facts, would lead the of ficer to conclude that a particul ar person actually is, has been, or so on will be engaged in criminal activity.” Crain v. Sta te , 315 S.W. 3d 4 3 , 52 (Tex. C rim. Ap p . 2010). “ Articulable facts
must amount to ‘ more than a mere inarticulate hunch, suspicion, or good faith suspicio n that a

cr ime was in progress.’” Id

. ( quoting W illi ams v. State , 621 S.W.2d 609, 612 (Tex. Crim. App. [Panel Op.] 1981 ) ). This stan dard is an objec tiv e one that disregards the actual subjective intent of the arresting officer and l ooks, instead, to whet her there was an object ively justifiable basis fo r the detention. It also looks to the totality of th e circumstances; t hose circu msta nces ma y all see m i nnocent enough in isolation, but if they combine to reasonably suggest the immine nce of criminal conduc t, an investigative det ention is justified

. D erichsweiler , 348 S .W.3d at 914 (footnotes omitted) ( citations omitte d)

. F ord essent ial ly ignores th e f act that , within s econds of bein g addressed by Officer Jones and initially comp lying with Jones’s co mmands, Ford ran from the scene. “Headlong fligh t

—11 wherever it occ urs

— is the consummate act of evasion: It is not nece ss arily i ndicative of

w rongdoing, but it is certainly s uggestive of such.” Illinois v. Wardlow , 528 U.S. 119, 124 ( 2000). In Wardlaw , o fficers were conducting a drive

- through of “an ar ea known for heavy narcotics trafficking in order to i nvestig ate drug tr ansacti ons.” Id

. a t 121. As of fic ers drove through the area, the y observed Wardlaw holding “an opaque bag , ” and w hen he “looked in th e direction of the officers , ” he fled, run ning through an alley. Id

. at 122. Wardlaw challenged the
tr ia l court’s find in g that officers had r easonable s usp icion to deta in him. Id

. The U nited State s Supreme Court rejected that argument. While Wardla w’s fl ight was “not necessarily indicativ e of wrongdoing . . . it [wa]s certainly sugge stive of such.” Id

. at 124. In suc h a situat ion, “th e d et ermination of reasonable suspicio n must be based on co mmonsense judgments and inferences about human behavior. ” Id

. at 125. The Supreme Court found t hat the officer was “justified in suspecting Wardlaw was in volved in criminal acti vi ty, and therefor e, in investigat ing further.” Id

. Here, officers responded to an anonymous call alleging a sexual assault. They

enco untere d substantially more foot and vehicle traffic than expected. As Jones took steps to
cont rol the scene, Ford com pl ie d with Jones’s co m m and to stop an d raise his hands. Ford then d isobeyed Jones ’s commands by lowering his hands , and he appeared to be rea ching for something in the bed o f the truck in front of him or perhaps on his person. Then he ran from the

scene. Under those circ ums ta nce s, the o ffi cers had reasonable suspicion that Ford had just been, was, or was about to be involved in criminal activ ity. They had reasonable suspicion to pursue and detain Ford. The discovery of a pistol in Fo rd’ s possession was t herefo re lawful , an d the12 trial c our t did not err in denying Ford’s motion to suppress evidence. For these reasons, we overrule Ford’s second point of error.
IV. Ford Was Not Entitled to a n Article 38.23 11 Instruction In his third point of er ror , Ford compla in s that the trial co ur t should ha ve instructed the jury , pursuant to Ar ticle 38.23 of the Texas Code of Criminal Procedure, that the jury should not consider any evide nce it found to have been obtained in violation of the laws or either th e Texas

or Unite d States Constitut ion.
T o be enti tle d to a jury instruction under Article 38.23(a) of the Texas Code of Criminal
Pro ced u re , “ (1) [t] he evid ence heard by the jury must raise an issue of fact; (2) [t] he evidence on that fact must be affirma t ively contested; a nd (3) [t] hat co ntest ed fact ual iss ue must be material to the lawfulness of the ch allenged conduct in ob taining th e evidence.” Madden v. State , 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). “ There is, of course, nothing to instruct the ju ry a bout if the su ppression qu esti on is one of law on ly, and there is nothing to instruct the jury a bout unless there is a ffirmative evidence that raises a contested fact issue .” Holmes v. State , 248 S.W.3d 194, 199 (Tex. Crim. App. 2008). Ford argues that the only ev id ence befor e the jury “was that he was near an address where an anonymous report of a crime was made” an d that the resp onding police officers “ had no description of a suspect or a vehicle and they did not confirm any of the anonymous calle r’s info rmation. ” Ford ignores, t hough, evidence tha t he then disregarded Jones’s in struction s by

11 See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 38.23.13 lowering his h ands and then running from the scen e. That evidence was un controverted. Ford directs us to nothing in the record that would create a cont ested fact issue.
Mo r eo ve r, as w e discussed above, th e officers’ detention of Ford was supported by reasonable suspicion. O ffic ers responded to an alleged crime scene , whic h led to contact with Ford. Ford complied with Jones’s commands but then disregarded those instructions an d ran
away. Under those ci rc u mstances, the officers had reasona ble suspicion that Ford had just been,

w as, or was about to be involved in crimi nal a ctivity. They had reasonable suspicion to pursue and detain Ford. Because Ford offers no controverting fa cts ab ou t his detention tha t l ed to the discovery of a firearm i n his possession, the officer s’ reasona ble suspicion is a qu estion of law.
See Robi nson v. State , 377 S.W.3d 712, 719 ( Tex. Crim. App. 2012). Thus, h e was not enti tled
to an Art icle 38.23 instruction. For these reason s, we overrule Ford ’s third point of error.
V. Conclusion
We affirm the trial court ’s judgment.

Scott E. Stevens Chief Justice Date Submitted: December 1, 2022 Date Decided: January 24, 2023
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