TONY RAY JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee

Annotate this Case

AFFIRMED; Opinion issued November 20, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-01237-CR
............................
TONY RAY JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-00777-US
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OPINION
Before Justices Morris, Whittington, and Richter
Opinion By Justice Whittington
        Tony Ray Johnson appeals his conviction for the capital murder of Pablo Rodriguez. After finding appellant guilty as charged and that he used or exhibited a deadly weapon during commission of the offense, the jury assessed punishment at life confinement. In eleven issues, appellant contends the evidence is legally and factually insufficient to support his conviction and the trial judge erred in (i) allowing the jury to return a non-unanimous guilty verdict, (ii) overruling his objections to the State's use of peremptory challenges, (iii) granting the State's challenge for cause of a venireman, and (iv) restricting appellant's questioning of a venireman. We affirm the trial court's judgment.
 
Sufficiency of the Evidence
        In his tenth and eleventh issues, appellant claims the evidence is legally and factually insufficient to support his conviction. After reviewing the record, we disagree.
        When reviewing challenges to the legal sufficiency of the evidence, we apply well- established standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001). We view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004), cert. denied, 544 U.S. 950 (2005); Simmons v. State, 109 S.W.3d 469, 472 (Tex. Crim. App. 2003). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, No. PD-469-05, 2006 WL 2956272, at *7 (Tex. Crim. App. Oct. 18, 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Watson, 2006 WL 2956272, at *8. We cannot conclude a conviction is “clearly wrong” or “manifestly unjust” simply because we would have voted to acquit. Watson, 2006 WL 2956272, at *8. In examining a factual sufficiency challenge, we also defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003).
        A person commits capital murder if he intentionally or knowingly causes the death of an individual and he (i) intentionally commits the murder in the course of committing or attempting to commit robbery or (ii) murders more than one person during the same criminal transaction. Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03(a)(2), (7) (Vernon 2003 & Supp. 2006).
        At trial, Maria Davila testified she lived in apartment 210 at the Meadow Oaks Apartments during the fall of 2004. She lived with a friend, Sergio, who dealt cocaine and crack cocaine out of the apartment for “the boss,” Saul. Sergio had a revolver for protection. In mid-November, Saul sent Antonio Garcia to stay with them because the apartment had been robbed and Sergio was concerned for his safety. Garcia brought a Mac-10 for protection.
        Davila testified she knew appellant because he lived in apartment 209 with his girlfriend, Kiki. Davila and Kiki got along well and talked a lot of “girl talk.” Appellant had a small, black automatic gun that he carried. When appellant came to apartment 210 to buy drugs, Davila translated because neither Sergio or Garcia spoke much English. Once, when appellant was there, he asked her where the drugs and money were kept in apartment 210. She told him Sergio and Garcia kept the money in their pockets and that the drugs were in the back bedroom, but she did not tell him specifically where the drugs were hidden. According to Davila, the drugs were often hidden in the handle of an Igloo ice chest or under the carpets.
        Around the end of November, Davila moved out of the apartment but left her computer. One day, after she moved, she asked appellant to help her get the computer. Davila gave appellant her key and told him to get the computer while she was out to dinner with Sergio. Davila testified that although appellant got the computer, he sold it and she never saw it again. Davila testified that appellant had her key to apartment 210 for about one hour and, near the apartment complex, there was business that made duplicates of keys. A few days after Davila moved out of the apartment, Kiki told her that the men in apartment 210 had been killed.         Stacy Hill testified that, at the time of the murders, she was living on the first floor of the Meadow Oaks Apartments with Clyde Buchanan. She played dominoes for several hours one night with appellant, Buchanan, and two friends named Chris and Byron. They were drinking beer and brandy in Buchanan's apartment. Appellant had a dark-colored automatic gun in his waistband and was smoking “primos” which Hill described as “cocaine and either weed or tobacco rolled up in a cigarette paper.” Hill remembered that, during the game, Kiki came to Buchanan's apartment to speak with appellant. After she left, appellant commented that he did not like the men in apartment 210, he “had his own personal problems with them,” and “wanted to get them.” He did not go into details.
        When the game was over, appellant and Chris left. Byron and Hill went to bed. They awoke to the sound of gunshots. Later, Hill heard someone beating on the sliding glass door. When she looked out, she saw appellant. Because she did not want to be bothered, she ignored him. Buchanan later told her he had heard appellant beating on the front door of the apartment but did not open the door. The following morning, Buchanan told Hill the shooting had occurred in apartment 210 upstairs.
        Marqureta Duncan, known as Kiki, testified she lived with appellant in apartment 209 of the Meadow Oaks Apartments. They sold marijuana in dime bags from the apartment; Kiki explained that a dime bag was ten dollars worth of marijuana. On the night of the shootings, appellant was downstairs in Buchanan's apartment. She walked down to talk to him, then returned to the apartment. Appellant came home shortly thereafter, but left again. During his absence, Kiki dozed on the couch. She awoke when she heard two shots fired next door. The shots were fired seconds apart, and appellant returned to their apartment about four minutes later. He was wearing a black pullover, had his gun in the pocket, and had the Mac-10 under his arm. He put his gun in the vent in the bathroom ceiling and told Kiki, “I did them fools.” He told her he took some money from the victims as well. They sat on the couch for a while, then appellant asked Kiki to call 9-1-1. After the police came, appellant left to do some laundry. In the laundry basket, he had hidden the Mac-10. When he returned, he told Kiki he had sold the gun. They sat around, smoking some crack. Kiki also testified that appellant brought a radio, a child's battery toy car, and Igloo ice chest to their apartment from apartment 210. According to Kiki, they found cocaine inside the handle of the ice chest. Kiki identified the gun that appellant had on the day he was arrested as “the gun at our house.”
        Several police officers testified during trial. Detective Robert Quirk testified he went to appellant's apartment to ask more questions the day after the murders. When he knocked, Kiki answered the door, and she was bleeding. She told the officers appellant had hit her. Detective Quirk asked Kiki if appellant had anything to do with the shooting, and she said he told her he did it. Detective Joseph McNulty testified that, when he arrested appellant for domestic violence, appellant was asleep in bed with a .9mm Luger semiautomatic gun at his side. Detective Mike Epple testified that, on November 23, 2004, he processed several items from apartment 210, including a sleeping bag, a child's battery toy car, stereo equipment, and an Igloo ice chest. The following day, he returned to apartment 209 to collect evidence and processed (among other items) the same sleeping bag, child's battery toy car, stereo equipment, and Igloo ice chest. He also testified he found a key to apartment 210.
        Charles Clow, a firearm and tool mark examiner with the Southwestern Institute of Forensic Sciences, testified he examined the .9mm Luger recovered when appellant was arrested, two cartridge casings from apartment 210, the bullet removed from Rodriguez's body during the autopsy, and a bullet found in apartment 210 near one of the bodies. The two bullets and casings were fired from the .9mm Luger.
        Viewed in the light most favorable to the judgment, the evidence shows appellant had a .9mm Luger, knew the victims, had a key to their apartment, told four other people he “wanted to get” the victims, was not in his apartment at the time of the shooting, returned to his apartment shortly after the shooting, told his girlfriend he “did them fools” and took some money from them, and instructed his girlfriend to call 9-1-1. The evidence also shows that, when appellant was arrested, he had the .9mm Luger at his side and several items belonging to the victims were in appellant's apartment. Forensic evidence matched the bullet from Rodriguez's body as well as another bullet and two cartridge casings found at the scene of the murders, to the .9mm Luger in appellant's possession at the time of his arrest. From these facts, we conclude a rational jury could infer appellant (i) intentionally or knowingly caused Rodriguez's death and murdered Garcia during the same criminal transaction or (ii) intentionally or knowingly caused Rodriguez's death in the course of committing or attempting to commit robbery. See Tex. Pen. Code Ann. §§ 19.02(b)(1), 19.03(a)(2), (7). After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction for capital murder. We overrule appellant's tenth issue.
        In his second point, appellant raises the same argument to challenge the factual sufficiency of the evidence. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude, after reviewing all the evidence in this case, that the great weight and preponderance of evidence contradicts the jury's verdict. See Watson, 2006 WL 2956272, at *8; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Because the jury was rationally justified in finding guilt beyond a reasonable doubt, we conclude the evidence is factually sufficient to support appellant's conviction. See Watson, 2006 WL 2956272, at *8. We overrule appellant's eleventh issue.
Non-unanimous Verdict
        In his first and second issues, appellant claims the trial judge erred in not requiring the State to elect which offense it would rely on for a conviction. Appellant claims the charge did not require the jurors to agree on whether he murdered Rodriguez (i) in the same transaction in which he murdered Garcia or (ii) in the course of committing a robbery. Appellant concedes he did not object to the charge but nevertheless claims the error caused him egregious harm.
        Jury unanimity is required in all felony criminal cases. Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005). Unanimity means each juror must agree that the defendant committed the same, specific criminal act. Ngo, 175 S.W.3d at 745. If the State charges different criminal acts, the jury must unanimously agree the defendant committed the same criminal act. See Francis v. State, 36 S.W.3d 121, 124 (Tex. Crim. App. 2000) (separate offenses of indecency with child). If, however, the defendant is charged with committing a single offense, the State may allege differing methods of committing the single offense in the indictment. Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (two different methods of committing single offense of capital murder); see Ngo, 175 S.W.3d at 746 (jury would not need to be unanimous on issue of whether defendant murdered “with premeditation or in the course of committing a robbery.”). When alternate theories of committing the same offense are alleged in the conjunctive in the indictment, “it is proper for the jury to be charged in the disjunctive.” Kitchens, 823 S.W.2d at 258. If asked to determine whether a defendant's right to a unanimous verdict was violated, we first examine whether the jury charge alleged different criminal acts or a different manner and means of committing the same criminal act. See Ngo, 175 S.W.3d at 744.
        In this case, the jury was instructed to find appellant guilty if the jury believed from the evidence beyond a reasonable doubt that, on or about November 23, 2004,
 
(i) appellant intentionally or knowingly caused Rodriguez's death by shooting him with a firearm, a deadly weapon, and appellant was in the course of committing or attempting to commit the offense of robbery of Rodriguez or
(ii) appellant intentionally or knowingly caused Rodriguez's death by shooting him with a firearm, a deadly weapon, and during the same criminal transaction, appellant intentionally or knowingly caused Garcia's death by shooting him with a firearm, a deadly weapon.
 
        Here, the jury was required to agree on whether appellant intentionally or knowingly caused Rodriguez's death; whether he did so (i) while committing robbery or (ii) during the same transaction in which he intentionally or knowingly caused Garcia's death goes to the manner in which he committed Rodriguez's murder, not whether he committed the act of Rodriguez's murder. See Ngo, 175 S.W.3d at 746 (“The preliminary factual questions of premeditation or robbery go to 'how' he committed the murder, not whether he committed the act of murder.”); Kitchens, 823 S.W.2d at 257-58 (concluding “there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict,” the court found no error in the jury charge although appellant claimed it did not require a unanimous verdict because “some jurors may have found him guilty of murder in the course of aggravated sexual assault while others may have found him guilty of murder in the course of robbery.”); Drew v. State, 76 S.W.3d 436, 457 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd) (concluding that the jury was not required to unanimously agree on whether defendant killed his victim in the course of committing a kidnapping or aggravated sexual assault). Thus, the jury had to unanimously agree that appellant caused Rodriguez's death but did not have to agree about whether he did so while robbing Rodriguez or during the same criminal transaction in which he caused Garcia's death. See Jefferson v. State, 189 S.W.3d 305, 313 (Tex. Crim. App. 2006) (comparing facts of Ngo in which three acts involved were separate criminal offenses with those in Jefferson in which three acts involved were means of committing single criminal offense), cert. denied, 127 S. Ct. 386 (2006). Because the jury in this case was required to be unanimous on the elements of Rodriguez's murder but not on the manner in which appellant committed the offense, appellant's right to a unanimous verdict was not violated. It follows that the trial judge did not err. We overrule appellant's first and second issues.
Batson Challenge   See Footnote 1 
        In his third, fourth, fifth, sixth, and seventh issues, appellant contends the trial judge erred in overruling his objections to the State's use of peremptory challenges against five jury panelists. Under these issues, appellant claims the trial judge did not “assess the plausibility of the State's facially neutral reasons” and therefore, we must reverse his conviction.
        When reviewing a Batson challenge, we apply well-known standards. See Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003), cert. denied, 542 U.S. 905 (2004); Mathis v. State, 67 S.W.3d 918, 924 (Tex. Crim. App. 2002); Keeton v. State, 749 S.W.2d 861, 870 (Tex. Crim. App. 1988). We reverse the trial judge's decision only when it is clearly erroneous. See Jasper v. State, 61 S.W.3d 413, 422 (Tex. Crim. App. 2001) (judge's decision is accorded great deference and will not be overturned unless clearly erroneous); Harris v. State, 827 S.W.2d 949, 955 (Tex. Crim. App. 1992) (same).
        To challenge the State's use of peremptory strikes under Batson, a defendant must first make
 
a prima facie case that a venireperson was excluded on the basis of race. Then, the prosecution must come forth with race-neutral reasons for exercising the peremptory challenge. The defendant has the opportunity to rebut those reasons. The burden of persuasion remains with the defendant. Finally, the judge rules on whether the neutral reasons given for the peremptory challenge were contrived to conceal racially discriminatory intent.
 
Jasper, 61 S.W.3d at 421; see Shuffield v. State, 189 S.W.3d 782, 785 (Tex. Crim. App. 2006), petition for cert. filed, (July 19, 2006) (No. 06-6055).
        In reviewing the explanation given by the State for striking a potential juror, we look at the facial validity of the explanation. See Purkett v. Elem, 514 U.S. 765, 768 (1995). Race neutral reasons for exercising a peremptory strike include striking a potential juror because he (i) hesitates, vacillates, equivocates, or is indecisive in answering, (ii) has relatives who have criminal records or have otherwise been “in trouble with the law,” (iii) shows resentment toward or vacillates in opinion of the police, and (iv) previously served on juries that resulted in “not guilty” or hung verdicts. See Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002) (holding State was entitled to believe that potential juror, who made some favorable testimony about police, would nevertheless be adverse to State's interests in light of other negative comments made); Ladd v. State, 3 S.W.3d 547, 563 (Tex. Crim. App. 1999) (holding State had legitimate and racially neutral reason for striking potential juror because she vacillated in opinion and had relative facing drug prosecution); Wheatfall v. State, 882 S.W.2d 829, 836 (Tex. Crim. App. 1994) (holding prosecutor had sufficient and racially neutral reason to exercise peremptory challenge on potential juror who vacillated in answers); Bausley v. State, 997 S.W.2d 313, 316 (Tex. App.-Dallas 1999, pet. ref'd) (concluding bad record during prior jury service is race neutral explanation for striking prospective jury member); Jack v. State, 867 S.W.2d 942, 947 (Tex. App.-Beaumont 1993, no pet.) (concluding striking potential juror because he previously served on two criminal juries, neither one of which reached verdict, was racially neutral reason.); cf. Chambers v. State, 866 S.W.2d 9, 24 (Tex. Crim. App. 1993) (State gave race-neutral explanation in striking venire person because her brother was convicted felon and she vacillated on death penalty).
        Following voir dire, appellant objected to the jury selected “based on Batson” because five of the State's strikes were African-American.   See Footnote 2  In response, the prosecutor stated she struck juror one because she had served previously on a hung jury, had a father who went to prison for drugs, stated police officers were sometimes unfair, and felt her father was not given a fair sentence. Jurors five, eleven, and twenty-three indicated they would have a hard time following the law and assessing appellant an automatic life sentence without knowing or considering his background. Juror thirty- five had a brother who went to prison for aggravated robbery and stated she had a bad experience with police. With respect to jurors five, eleven, twenty-three, and thirty-five, appellant did not offer any argument or evidence to rebut the State's explanation or show the explanation was merely a sham or pretext. With respect to juror one, he argued that it was not clear whether that juror “was hung for conviction or acquittal” and that other jurors not stricken had family members that had been in trouble with the law or had been imprisoned. The judge ruled the prosecutor's reasons were racially neutral and overruled appellant's objections. Although appellant now claims the judge erred, we cannot agree.
        Examining the record in the light most favorable to the trial judge's ruling, we conclude the State articulated race neutral reasons for striking juror one. See Bausley, 997 S.W.2d at 316; Jack, 867 S.W.2d at 947. The prosecutor's explanations did not reflect an inherently discriminatory intent. And although appellant disagreed with the State's reasoning, arguing that other jurors had family members who had served prison sentences, the prosecutor stated she did not know where juror one stood on the issue of the hung jury and that issue alone-that a juror “might have problems making a decision in a case”-was reason enough for striking that juror. Because the record supports the trial judge's decision, we cannot conclude her ruling was “clearly erroneous” with respect to juror one. See Simpson, 119 S.W.3d at 268. We overrule appellant's third issue.
        With respect to the remaining four jurors, the State's reasons for striking these jurors were also race-neutral. Johnson, 68 S.W.3d at 649; Ladd, 3 S.W.3d at 563; Wheatfall, 882 S.W.2d at 836. Appellant did not attempt to rebut the State's reasons by offering evidence or questioning the prosecutor about her reasoning. Because the trial judge's finding that the prosecutor's explanations were race-neutral is also supported by the record, we cannot conclude the trial judge erred. See Simpson, 119 S.W.3d at 268. We overrule appellant's fourth, fifth, sixth, and seventh issues.
Challenge for Cause
        In his eighth and ninth issues, appellant contends the trial judge erred in not permitting appellant to question venire member, Wallace, about her answer to a question on the jury questionnaire and in granting the State's challenge for cause of Wallace.
        Trial judges have broad discretion over the process of selecting a jury. Sells v. State, 121 S.W.3d 748, 755 (Tex. Crim. App. 2003). Without the judge's ability to impose reasonable limits, voir dire could go on indefinitely. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002) (citing Faulder v. State, 745 S.W.2d 327, 334 (Tex. Crim. App. 1987)). Therefore, we leave the propriety of a particular question to the trial judge's discretion and do not disturb the judge's decision absent an abuse of discretion. Sells, 121 S.W.3d at 755; Barajas, 93 S.W.3d at 38. A trial judge abuses her discretion when she prohibits a proper question about a proper area of inquiry, such as a question asking about a juror's views on an issue applicable to the case. Sells, 121 S.W.3d at 755-56; Barajas, 93 S.W.3d at 38. However, a judge may prohibit a question that attempts to commit the juror to a particular verdict based on particular facts or is so vague or broad in nature as to constitute a global fishing expedition. Sells, 121 S.W.3d at 756; Barajas, 93 S.W.3d at 38-39.
        Appellant first complains the trial judge erred in refusing to allow him to ask certain questions of Wallace. We conclude this issue has not been preserved for our review. To present such an issue, appellant must demonstrate “that he was prevented from asking particular questions that were proper.” In this case, the record does not reflect what questions appellant would have asked. Because the trial judge might have allowed proper questions even though she did not generally approve of the line of inquiry, we cannot address, without first knowing the questions appellant sought to ask, whether her refusal was error. See Sells, 121 S.W.3d at 756 (“To preserve error, appellant must show that he was prevented from asking particular questions that were proper. That the trial court generally disapproved of an area of inquiry from which proper questions could have been formulated is not enough because the trial court might have allowed the proper question had it been submitted for the court's consideration.”) (emphasis in original). In light of this and because the propriety of a particular question is left to the trial judge's discretion, we cannot conclude the trial judge erred. We overrule appellant's eighth issue.
        Regarding appellant's complaint that the trial judge erred in granting the State's challenge for cause of Wallace, we similarly cannot conclude the judge erred.
        When examining a complaint about the trial judge's granting of a State's challenge for cause, we give the judge considerable deference because she is in the best position to evaluate a prospective juror's demeanor and responses. Colburn v. State, 966 S.W.2d 511, 517 (Tex. Crim. App. 1998) (citing Wainwright v. Witt, 469 U.S. 412, 429 (1985)). We examine the entire record to determine if there is sufficient evidence to support the judge's ruling. Patrick v. State, 906 S.W.2d 481, 488 (Tex. Crim. App. 1995). We reverse only if the judge clearly abuses her discretion. Russeau v. State, 171 S.W.3d 871, 879 (Tex. Crim. App. 2005), cert. denied, 126 S. Ct. 2982 (2006). Therefore, if a prospective juror's answers are vacillating, unclear, or contradictory, we accord deference and will not second-guess the trial judge's decision. Russeau, 171 S.W.3d at 879; see Smith v. State, 907 S.W.2d 522, 529-30 (Tex. Crim. App. 1995).
        A challenge for cause may be made by the State if the potential juror has a “bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.” Tex. Code Crim. Proc. Ann. art. 35.16(b)(3) (Vernon 2006). Bias against the law is the refusal to consider or apply relevant law. Sadler v. State, 977 S.W.2d 140, 142 (Tex. Crim. App. 1998). Bias “exists when a venireperson's beliefs or opinions 'would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath.'” Sadler, 977 S.W.2d at 142.
        Before voir dire examination, jurors were given questionnaires to complete. After the State concluded its portion of the voir dire, appellant asked the trial judge if he could ask follow-up questions to Wallace's “yes” answer to the question, “Do you have any moral, religious, or personal beliefs that would prevent you from sitting in judgment of another?” The judge denied his request, stating it was “the policy of the Court not [to] do that.” At the conclusion of voir dire, the State challenged Wallace for cause because she indicated in the questionnaire she had a problem sitting in judgment of another and said “I'm not the judge to place someone [sic].” Appellant argued against the State's position; however, the trial judge disagreed and granted the challenge. Appellant assigns this ruling as error, claiming Wallace answered affirmatively that she could be a fair juror and assess an automatic life sentence.
        The record shows the venire panel was asked by the prosecutor whether each individual could assess an automatic life sentence if appellant were found guilty. Several veniremembers indicated it would be difficult to do so, including Wallace who said it would be “hard to do.” When asked if she “was okay” with assessing a life sentence, Wallace shook her head, appearing to indicate she did not agree. Stating she could not “read [Wallace's] mind” and did not “want there to be a problem later,” the prosecutor then asked if Wallace could assess a life sentence. Wallace answered, “I think-I think I could.” Appellant did not ask Wallace any questions during voir dire.
        On the face of this record, we cannot conclude the trial judge abused her discretion. We give great deference to the judge because she is present during voir dire and is able to observe the demeanor of the venireperson and hear the tone of her voice. See Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002). We give particular deference when the venireperson's answers are vacillating, unclear, or contradictory. Feldman, 71 S.W.3d at 744. Under these circumstances, we cannot conclude the trial judge abused her discretion. We overrule appellant's ninth issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
051237F.U05
 
Footnote 1 See Batson v. Kentucky, 476 U.S. 79 (1986).
Footnote 2 Appellant challenged all seven strikes in the trial court but, on appeal, complains of only five strikes. Therefore, we confine our discussion to the five potential jurors struck by the State.

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