VICTOR DYRELL THOMPSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed January 5, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-05-01486-CR
No. 05-05-01487-CR
No. 05-05-01488-CR
No. 05-05-01489-CR
 
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VICTOR DYRELL THOMPSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F04-57996-S, F05-01025-S, F05-01026-S, F05-01027-S
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OPINION
Before Justices Moseley, Francis, and Mazzant
Opinion By Justice Francis
        Victor Dyrell Thompson appeals his convictions for intoxication manslaughter, intoxication assault, and two charges of failure to stop and render aid. All of the offenses arose from a traffic accident that occurred early in the morning of November 7, 2004. The accident claimed the life of Jose Garcia and severely injured Kevin Hubbard. The State presented evidence that appellant caused the collision, was legally intoxicated at the time, and left the scene without assisting the victims.
        After appellant entered guilty pleas to the offenses, the jury found him guilty and found an enhancement paragraph true. The jury assessed appellant's punishment at ninety-nine years in prison for intoxication manslaughter, twenty years in prison for intoxication assault, and five years in prison for each offense of failure to stop and render aid. The jury also assessed $5,000 fines in each case. In eighteen issues, appellant contends the trial court abused its discretion by not permitting him to withdraw his guilty pleas, overruling his Batson objections, and admitting into evidence unduly prejudicial testimony and exhibits. Appellant also contends he received ineffective assistance of counsel in connection with his Batson claims.
        In his first issue, appellant contends the trial court abused its discretion by not permitting him to change his pleas of guilty in each case to pleas of not guilty. During a pretrial hearing, after signing the documents to enter pleas of guilty, appellant backed out and announced he wanted to go to trial. After voir dire, however, appellant changed his mind again and he entered pleas of guilty to the offenses and true to the enhancement paragraph. At several points during the trial, the trial court offered appellant the opportunity to change his pleas to not guilty. The trial court also conducted a brief hearing regarding whether the court should change appellant's pleas sua sponte. At each juncture, appellant declined to change his pleas.
        During final argument, the State argued that although appellant had pleaded guilty, he had not taken responsibility for his actions because he denied being intoxicated and blamed others for the accident. After listening to most of the State's argument, appellant leapt from his chair and proclaimed, “Well, I don't plead guilty then.. . .I don't plead guilty. . . . I ain't having nothing else to do with this.” The trial court called for the jury to be sent out while appellant stated, “You're liars, you the Devil. I change my plea. I ain't pleading guilty. I plead guilty to somebody that come around and lie have a chance to lie [sic]?”
        After a break for lunch, it was agreed appellant would listen to the remainder of the trial over an intercom in a holding cell. The trial court announced it would not “change his plea back to not guilty, because I think the jury's properly been charged. He had made it clear earlier to leave that where it is. And that's beyond that, we're ready to proceed.” Counsel then moved to change the pleas to not guilty and for a mistrial. The trial court denied the motions, stating its belief that “once the jury's [sic] been charged, arguments commenced, the law doesn't require it or probably permit it, his time to do that.”
        During final argument, counsel argued appellant did not actually intend to change his plea. Rather, counsel explained:
DWI is not like that. You don't have to intend to go out and drink and drive and intend to get in an accident, all right? And may be [appellant]'s not sophisticated enough to understand this. And that's some of his reactions, all right? But he-he still accepts his responsibility. He's not trying to say, I'm not guilty. He could have said not guilty the whole trial, but he-he understands he's guilty. He has a hard time accepting that guilt because he didn't intend to do this.
 
        A defendant may withdraw a guilty plea entered before a jury at any time before the jury retires to deliberate. Mendez v. State, 138 S.W.3d 334, 345 (Tex. Crim. App. 2004) (en banc); McWherter v. State, 571 S.W.2d 312, 313 (Tex. Crim. App. [Panel Op.] 1978). The trial court mistakenly asserted it was too late for appellant to change his pleas to not guilty because the jury had already received its instructions. Thus, the trial court erred in refusing to allow appellant to change his pleas. See McWherter, 571 S.W.2d at 313.
        Having determined the trial court erred, we must consider whether the error harmed appellant. The right to withdraw a guilty plea is derived directly from the constitutional right to trial by jury. Fairfield v. State, 610 S.W.2d 771, 776 (Tex. Crim. App. [Panel Op.] 1981). Accordingly, we review the trial court's error under the standard for errors that are constitutional in nature. See Tex. R. App. P. 44.2(a); Abrego v. State, 977 S.W.2d 835, 839 (Tex. App.-Fort Worth 1998, pet. ref'd). Under this standard, we will reverse appellant's convictions unless we find beyond a reasonable doubt that the error either did not contribute to the conviction or had but slight effect. Phillips v. State, 193 S.W.3d 904, 913 (Tex. Crim. App. 2006). The failure to allow a defendant to timely withdraw a guilty plea is harmless if there is no evidence suggesting the defendant is not guilty or is guilty only of a lesser included offense. Abrego, 977 S.W.2d at 839.
        The record reflects the State presented overwhelming evidence of appellant's guilt. Appellant signed written judicial confessions to each offense. Appellant entered, through counsel, oral pleas of guilty and true before the jury. The judicial confessions, appellant's written pleas of guilty and true, and a copy of appellant's enhancement conviction of aggravated robbery were admitted into evidence.
        In addition to the confessions and pleas, the State introduced into evidence the testimony of numerous witnesses, documents, and photographs. The State's evidence showed Jose Martinez, Garcia, and several others left a celebration in Martinez's car. Martinez had been drinking and the passengers were concerned about his driving. To prevent Martinez from striking another car, Garcia grabbed the steering wheel and forced Martinez's car to the curb, disabling the car. Garcia elected to stay with Martinez while arrangements were made to tow the disabled car. Hubbard arrived to tow the vehicle on his flat bed tow truck. Hubbard parked his truck and activated its flashing lights. The tow truck was parked on a flat stretch of road with clear visibility.
        After Hubbard finished loading the car, appellant's car collided with the tow truck and ran over Garcia, who was standing in the road beside the truck. The collision killed Garcia instantly and severely injured Hubbard. Hubbard drifted in and out of consciousness for two weeks after the accident. Bones were broken in both of his arms and his pelvis and he suffered numerous lacerations. One laceration on his arm caused nerve damage leaving him unable to control his wrist. Hubbard, who was twenty-one years old at the time of trial, walks with the aid of a cane.         The State called two eyewitnesses, Willie Ward and Ollie Searcy, who observed the crash and its aftermath. Both Ward and Searcy identified appellant in open court as the driver of the car that struck the tow truck. Both Ward and Searcy had prior felony convictions and Ward had a pending felony case. Ward denied discussing any deal with the State in exchange for his testimony.
        Ward testified appellant was at fault in the accident. Before the accident, Ward first observed appellant in a nightclub; he was stumbling and obviously intoxicated. When the nightclub closed, appellant walked to his car and then went to sleep for five minutes with his head on the steering wheel. After bystanders roused appellant, a woman took his keys briefly until he successfully walked a short line for her. When appellant drove off, he went over a curb and drove across a median. Ward was concerned about appellant's driving and decided to follow him. Ward observed appellant swerving, driving on the wrong side of the road, and striking parked cars. Ward watched appellant collide with Hubbard's clearly visible tow truck and strike Garcia. After the collision, Ward saw appellant climb out of his car, walk past the accident site, ignore Hubbard's cries for help, and leave the accident scene.
        Searcy testified he passed the tow truck on his way to a convenience store. The tow truck was stopped and its lights were flashing, but Hubbard had not yet started to load Martinez's car. During the return trip, Searcy saw appellant's car drive straight into the tow truck without any apparent effort to swerve to avoid the crash. After the accident, Searcy saw appellant beating his steering wheel and cursing. Appellant got out of the car but left without making any effort to assist Searcy in tending to Hubbard or to check on Garcia.
        Several Dallas police officers who investigated the offenses testified for the State. Officer Jeffrey Lewis, aided by a helicopter unit, apprehended appellant one and one-half blocks from the accident scene. Lewis testified he found appellant hiding between two bushes. Appellant could not stand up, had bloodshot eyes, and a strong odor of alcohol. Lewis also observed glass particles on appellant's hands. In Lewis's opinion, appellant was intoxicated.
        Officer Stephen Max Geron, an accident reconstruction expert, spoke briefly to appellant after he was apprehended. Geron smelled alcohol on appellant's breath and noticed his eyes were bloodshot. Geron testified a sober driver would have been able to avoid the accident. Geron told the jury appellant used his car as a deadly weapon.
        Officer Ronald Cathcart transported appellant to jail. Cathcart testified it was apparent appellant had been drinking because he had alcohol on his breath and bloodshot eyes. Cathcart related how appellant passed out in the police car on the short trip to the jail. During the trip, appellant mumbled something to Cathcart about a wreck. At the jail, Cathcart, a DWI officer, asked appellant some questions and checked his eyes for evenly-sized pupils and equal tracking to ensure appellant did not have a head injury. Finding no sign of a head injury, Cathcart administered sobriety tests to appellant. Cathcart determined appellant exhibited six of six possible clues of intoxication on a horizontal gaze nystagmus test. Appellant performed poorly on two balance tests, reciting a portion of the alphabet, and counting backwards. Cathcart opined appellant had lost the normal use of his mental and physical faculties and was intoxicated.
        Appellant consented to the drawing of a sample of his blood for testing. The testing indicated appellant's blood alcohol level was 0.23, almost three times the legal limit.
        Appellant did not testify during the defense case-in-chief, but he did testify after the State offered rebuttal testimony. Appellant agreed with counsel that he pleaded guilty because he was guilty and for no other reason. He admitted killing Garcia and injuring Hammond and apologized to the victims' families. Appellant testified he could not remember the accident or its aftermath other than remembering he tried to avoid something in the road.         Appellant denied alcohol caused him to kill Garcia or injure Hubbard. Appellant admitted he was legally intoxicated, but he denied not having the use of his mental and physical faculties and asserted he felt he was not intoxicated. Appellant recalled drinking five beers during the afternoon and two more drinks at the nightclub. When he left the nightclub, appellant encountered a group of men standing around his car admiring his tire rims. As he drove away, one of the men, Ward, followed him. He became alarmed, believing the man intended to carjack him. Appellant testified the accident occurred because he was distracted by Ward's pursuit. Appellant also suggested Hubbard bore some responsibility for not doing more to secure the area around the tow truck, and he faulted Garcia for standing in the road. Appellant did not know whether he ran from the police but he doubted it. Appellant admitted his automobile insurance had expired.
        The defense introduced into evidence several jail forms in which appellant requested medical treatment for symptoms including dizziness, blackouts, headache, and light sensitivity. To rebut appellant's medical forms, the State offered appellant's jail medical records into evidence. The medical records show appellant was seen by the jail nurse on November 29, 2004 for complaints of headache and dizziness; his primary complaint was a pre-existing back injury. In the nurse's opinion, appellant attempted to use his back injury to obtain “free world shoes” that were not medically necessary. The nurse described appellant's behavior as manipulative and indicated appellant cursed at her when she refused his request. When appellant's family brought him several pairs of shoes to help his back problem, it was discovered he was using the shoes to smuggle contraband items into the jail.
        The State introduced two letters appellant wrote to Hubbard's mother showing he denied being intoxicated, claimed he suffered a concussion in the accident, and claimed the accident happened because he was trying to avoid something in the road. Apparently mixing up his victims, appellant wrote Hubbard's mother that he had received a religious vision in which her deceased son wanted her to stop the prosecution.
        A person commits the offense of intoxication manslaughter if the person operates a motor vehicle in a public place while intoxicated and, by reason of that intoxication causes the death of another by accident or mistake. Tex. Pen. Code Ann. § 49.08(a) (Vernon 2003). If the person causes serious bodily injury instead of death, the offense is intoxication assault. Id. at § 49.07. The penal code defines “Intoxicated” as “(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol . . . into the body; or (B) having an alcohol concentration of 0.08 or more.” Id. at § 49.01(2).
        A person commits the offense of failing to stop and render aid if the person is involved in an accident resulting in injury to or death of a person and does not (i) immediately stop the vehicle at the scene of the accident or as close to the scene as possible; (ii) immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident; and (iii) remain at the scene of the accident until the operator complies with the requirements of Section 550.023. Tex. Transp. Code Ann. § 550.021(a) (Vernon 1999). Section 550.023 requires the vehicle operator to provide name, address, and insurance information and to provide reasonable assistance to persons injured in an accident. See id. at § 550.023. To be guilty of the offense, the defendant must know “the circumstances surrounding his conduct” and know an accident occurred. Goss v. State, 582 S.W.2d 782, 785 (Tex. Crim. App. 1979).
        Appellant contends the trial court's error in not allowing him to change his pleas harmed him because he was denied the opportunity to present evidence negating his guilt. He points to his own testimony suggesting he retained control of his faculties and blaming Ward's pursuit and “the circumstances of the scene of the breakdown, and the unfortunate manner in which the car was being assisted” as the factors causing the accident.
        Although appellant disputed whether he had the use of his faculties, the evidence establishes his blood alcohol level was substantially above the legal limit and he was driving his car at the time of the accident. Undisputed evidence establishes the ensuing accident killed Garcia and caused Hubbard serious bodily injury. Because appellant did not remember the accident, Ward's and Searcy's consistent accounts of the accident are substantially undisputed. Ward, Searcy, and the State's accident reconstruction expert concluded appellant caused the accident. Whatever evidence appellant may have had to negate his guilt in a trial is not in the record. We conclude no reasonable jury could reach any other conclusion but that appellant operated a motor vehicle on a public road while intoxicated, caused an accident resulting in Garcia's death and serious bodily injury to Hubbard. See Tex. Pen. Code Ann. §§ 49.01(2), 49.07, 49.08(a).
        Appellant does not provide any argument or authority showing how he was harmed by the trial court's determination not to allow him to withdraw his guilty pleas to the charges of failure to stop and render aid. Moreover, observations of his behavior after the accident amply demonstrate he understood his situation and engaged in purposeful conduct. Searcy testified appellant was hitting his steering wheel and cursing after the accident. Lewis told the jury appellant was trying to conceal himself between two bushes. Cathcart recalled appellant mumbling something about a wreck in the patrol car and detected no evidence appellant had suffered a head injury. We conclude appellant has not shown the trial court's error contributed to his conviction. See Phillips, 193 S.W.3d at 913; see also Wilson v. State, 515 S.W.2d 274, 275 (Tex. Crim. App. 1974) (error in not allowing defendant to withdraw plea was harmless in light of defendant's testimonial and written judicial confessions and overwhelming evidence of guilt); Abrego, 977 S.W.2d at 839. Thus, the trial court's error was harmless. We overrule appellant's first issue.
        In issues two through five, appellant contends the trial court erred in overruling his Batson challenges alleging the State improperly exercised peremptory strikes against four African-American females on the basis of race or gender. See U. S. Const. amend. XIV; Batson v. Kentucky, 476 U.S. 79, 96-98 (1986). Although the State gave race and gender neutral reasons for the strikes, appellant contends the State's explanations were insufficient to survive judicial scrutiny. Appellant argues the trial court conducted a perfunctory review of the prosecutor's reasons but did not adequately assess his claims of invidious strikes. Because the prosecutor's explanations were, in appellant's view, ambiguous, implausible, fantastic, vague, and insufficient, he contends the prosecutor's explanations do not meet the level of scrutiny required by Miller-El v. Dretke, 545 U.S. 231 (2005). We conclude appellant has failed to meet his burden of proving the State engaged in purposeful discrimination in using its peremptory strikes.
        Although appellant frames his appellate issue as contesting both race and gender discrimination, and the parties did identify the gender of the prospective jurors at issue, we interpret appellant's trial motion as alleging only racial discrimination. Counsel complained the four individuals were struck as members of a “minority.” Counsel agreed the State had given “race neutral reasons” for striking two other African-American jurors, one male and one female, and counsel complained some answers given by the struck jurors were “[t]he same as the white people's [answers]. . . .” In concluding his argument, counsel opined, “I would say those are not race neutral reasons, Judge, and we'd offer these for the record.” The trial court also apparently interpreted appellant's Batson motion as applying only to race because it ruled the strikes were race-neutral, but did not address whether they were gender-neutral. Appellant did not object to the omission of a ruling on whether the State's strikes were gender-neutral. To the extent appellant had issues with gender discrimination in the jury selection, we conclude the issue was not preserved for appeal. See Tex. R. App. P. 33.1(a)(2).
        Regarding the standard to apply, we observe Miller-El did not alter the standard of review of Batson challenges on direct appeal. Murphy v. Dretke, 416 F.3d 427, 439 (5th Cir. 2005), cert. denied, 126 S. Ct. 1028 (2006). Thus, we continue to evaluate an objection to peremptory strikes under a three-step process. Hernandez v. New York, 500 U.S. 352, 358 (1991).
        First, a defendant must make a prima facie showing that the State exercised peremptory strikes on an impermissible basis. Id.; Herron v. State, 86 S.W.3d 621, 630 (Tex. Crim. App. 2002).
Second, if a defendant makes a prima facie showing of purposeful discrimination, the State must provide a race-neutral explanation for striking the prospective juror in question. Hernandez, 500 U.S. at 358-59; Herron, 86 S.W.3d at 630. Unless a discriminatory intent is inherent, the courts will consider the explanation race neutral. See Hernandez, 500 U.S. at 360. Finally, if the State provides a race-neutral explanation for its strikes, the defendant may rebut the State's explanation and show purposeful discrimination. Hernandez, 500 U.S. at 359; Herron, 86 S.W.3d at 630.
        Because the evaluation of a Batson challenge often turns upon an assessment of the credibility of the prosecutor's explanation and the prospective jurors' voir dire responses, we review the trial court's findings with great deference. See Hernandez, 500 U.S. at 364-65; Herron, 86 S.W.3d at 630. In reviewing a Batson objection, we examine the record in the light most favorable to the trial court's ruling and reverse only when the ruling is clearly erroneous. Bausley v. State, 997 S.W.2d 313, 315 (Tex. App.-Dallas 1999, pet. ref'd). A ruling is clearly erroneous when, after searching the record, an appellate court is left with the definite and firm conviction that the trial court has made a mistake. Id. If the record, including voir dire, the prosecutor's explanation of his peremptory challenges, appellant's rebuttal, and any impeaching evidence, supports the trial court's ruling, then the ruling is not clearly erroneous. Id.
        Appellant is an African-American. The record reflects the State exercised peremptory strikes against six African-Americans and three Caucasians. Seven of the stricken prospective jurors were women. Appellant did not challenge the State's strikes against one African-American man and one African-American woman because the defense was satisfied with the non-discriminatory rationale for those strikes.
        Regarding the other four African-Americans who were struck, prospective juror nos. 12, 37, 47, and 55, the prosecutor explained he struck them because of concerns raised by their jury questionnaires. The prosecutor explained he struck juror no. 12 because he found objectionable her response, “find the truth,” to a question about her impressions of criminal defense attorneys. The prosecutor explained he struck juror nos. 37 and 55 because they failed to complete their jury questionnaires. The prosecutor stated his concern that the prospective jurors did not comply with this simple request and indicated the omissions made it “hard for us to get a read on how they would be as a juror . . . .” The prosecutor noted he also struck Caucasian female prospective juror no. 44 for the same reason. The prosecutor explained he struck prospective juror no. 47 because she wrote on her form that only some police officers can be trusted. The prosecutor had struck a Caucasian male prospective juror for the same reason because he had expressed dissatisfaction in a federal case with the police, district attorney's office, and his lawyer.
        Appellant criticized the prosecutor's explanations because other prospective jurors were not struck who had also left blanks in their questionnaires. Appellant further argued that juror no. 44's questionnaire appeared to be completely filled out and juror nos. 37 and 55 had answered the questions, although some of the answers were “no comment.” After hearing argument and reviewing the forms, the trial court found that the reasons the prosecutor gave were race-neutral and, implicitly, overruled appellant's Batson challenges.
        Counsel commented on the record that he had written down the races of the venire members and he requested “a clean sheet so I can write them down, what the race is on the jury and who they strike.” Nevertheless, although counsel introduced the juror questionnaires into the record, appellant points to nothing in the record indicating the race of the individuals being questioned nor the ultimate racial composition of the jury selected. Thus, we cannot evaluate whether a disproportionate number of African-American prospective jurors were struck from the pool.
        Furthermore, appellant's responses to the prosecutor's explanations do not contain the concrete, specific information that would satisfy appellant's burden of proof to show purposeful discrimination. The record supports the prosecutor's contention regarding the questionnaire responses of juror nos. 12 and 47. Neither in the trial court nor on appeal has appellant pointed out any Caucasian juror who offered similar responses and was not struck. We note that juror no. 42, who served on the jury, did state he had met “some serious asshole cops.” However, there is no evidence or even argument regarding juror no. 42's ethnicity nor an explanation for why he was on the jury. Even if we assume juror no. 42 was a Caucasian, we may not automatically assume purposeful discrimination just because one of the State's reasons for striking a prospective juror technically applies to another prospective juror whom the State did not strike. Adanandus v. State, 866 S.W.2d 210, 224-25 (Tex. Crim. App. 1993). Without evidence, we cannot conclude appellant has met his burden to show purposeful discrimination.         The record supports the prosecutor's observations about juror nos. 37, 44, and 55 leaving blank portions on their jury questionnaires. Juror no. 37 failed to answer a question asking her to rank the three objectives of punishment in order of importance. Given appellant was entering a guilty plea, the jury's primary function would be assessment of punishment. Thus, we agree with the trial court that the State's concern over the prospective juror's failure to indicate her views on the objectives of punishment would constitute a race neutral ground for striking her.
        Counsel asserted juror nos. 44 and 55 did complete their jury questionnaires with some ambiguous answers. In fact, juror no. 44, the Caucasian female struck, failed to respond to a question asking her for her initial responses about police officers, prosecutors, and defense attorneys. She answered, “no com.” to a question asking her about her views of the criminal justice system. Likewise, juror no. 55, a black female, wrote, “No” when asked about her views of the criminal justice system. When asked her impressions regarding police officers, prosecutors, and defense attorneys, she put a check beside the police officers and left the other lines blank. When asked to numerically rank the punishment objectives, she put a check beside deterrence but left the other two objectives blank.
        The record does reveal, as defense counsel asserted, that more than three prospective jurors failed to complete their questionnaires. In addition to the three jurors identified by the prosecutor, juror nos. 2, 8, and 32 also left one or more questions blank, and juror no. 18 failed to sign her questionnaire. We note, however, that the State struck juror no. 2, a white male, for other reasons, while the defense struck juror nos. 18 and 32. Juror no. 8 indicated that he had been a victim of a burglary, but then failed to fill out the follow-up question regarding whether his experience would allow him to be fair to both sides. Although juror no. 8 did serve on the jury, his ethnic background is not reflected in the record. Moreover, the question juror no. 8 failed to answer was easily overlooked in light of the fact that it was a follow-up question that many prospective jurors did not need to answer. In contrast, the blanks and ambiguous responses of juror nos. 37, 44, and 55 were glaring and obvious.
        Juror nos. 2, 18, and 32 were struck by the parties for other reasons. We conclude juror no. 8's failure to answer questions did not rise to the level of magnitude of the omissions of juror nos. 37, 44, and 55. Thus, the record shows when black and white prospective jurors failed to respond to highly relevant questions on their juror questionnaires, the prosecutor responded by striking those individuals without regard to race. Thus, we cannot conclude the trial court's determination that the State's explanations were race-neutral was clearly erroneous. See Herron, 86 S.W.3d at 630; Bausley, 997 S.W.2d at 315. We overrule appellant's second, third, fourth, and fifth issues.
        In his sixth issue, appellant contends counsel rendered ineffective assistance of counsel in failing to properly assert and preserve his Batson challenges. To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. Strickland v. Washington, 466 U.S. 668, 669, 694 (1984). Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Ordinarily, counsel should not be condemned as unprofessional or incompetent without an opportunity to explain the challenged actions. Id. at 836. When the record is silent regarding counsel's reasons for his conduct, we will defer to counsel's decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). In most cases, ineffective assistance claims are better raised through a writ of habeas corpus than on direct appeal. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002) (en banc).
        Assuming, without deciding, that counsel failed to preserve some portion of Batson error, this failure does not support an automatic finding of ineffective assistance of counsel. See Batiste v. State, 888 S.W.2d 9, 15-16 (Tex. Crim. App. 1994). Instead, some evidence must establish counsel's failure constituted deficient performance and appellant was prejudiced when the alleged Batson error was not preserved. Id. Appellant has not offered such evidence.
        Appellant asserts counsel failed to properly assert the Batson challenges and preserve a record for appeal thus allowing the State to strike prospective jurors on the basis of race or gender. Appellant does not explain why he thinks counsel's performance was deficient nor does he offer any evidence in the record to support his claim that the State was allowed to strike potential jurors on the basis of race or gender. Counsel asserted Batson challenges to four of the State's strikes, the prosecutor gave ostensibly proper grounds for the strikes, and the trial court concluded the strikes were not racially motivated. Appellant does not suggest what additional steps counsel should have taken to prevail in the Batson hearing, and no evidence in the record supports appellant's speculation that counsel failed to preserve a record showing purposeful discrimination.
        We presume the jury selected was impartial. Id. at 16. Appellant offers nothing to rebut the presumption. Appellant suggests the Court could abate these cases to the trial court for a retrospective Batson hearing, citing Hutchinson v. State, 86 S.W.3d 636, 638-39 n.1 (Tex. Crim. App. 2002). In Hutchinson, the court of criminal appeals allowed the court of appeals to abate an appeal for a supplemental Batson hearing where the record showed the defense challenged five of the State's peremptory strikes, but the ensuing Batson hearing had addressed only four of the strikes. See id. at 639-40. Our record, in contrast, reflects a full Batson hearing with the prosecutor's detailed explanations for each challenged strike, appellant's counter arguments, and the trial court's ruling that the State's explanations were race-neutral. Appellant does not disclose what he would expect to prove at a supplemental Batson hearing in the face of an apparently complete and substantial record. We conclude Hutchinson is distinguishable.
        We further conclude the record is insufficient to overcome the presumption that counsel performed adequately. See Batiste, 888 S.W.2d at 15; Tijerina v. State, 921 S.W.2d 287, 289 (Tex. App.-Corpus Christi 1996, no pet.) (concluding record did not support ineffective assistance claim for failure to mount Batson challenge). Thus, appellant has not shown counsel's performance fell below an objective standard of reasonableness nor has he shown a reasonable probability exists that, but for trial counsel's alleged errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. We overrule appellant's sixth issue.
        In issues seven through eighteen, appellant contends the trial court erred in allowing the State to introduce prejudicial evidence of the enhancement offense. Appellant entered a plea of true to an enhancement paragraph in the indictment alleging he had been convicted of the aggravated robbery of Kathy Luginbyhl. The disputed evidence, admitted over appellant's objection, consists of Luginbyhl's testimony about the robbery and her injuries and some photographs.
        Luginbyhl testified appellant robbed her in the parking lot of the grocery store where she worked. Appellant attacked her from behind and, as Luginbyhl related, “my head was beat into the pavement on the wheels of my car and I was left between two cars for-I guess to die.” As a result of the robbery, Luginbyhl suffered skin abrasions all over her face, a broken nose, a skull fracture, she had stitches around her eyes, and the force of appellant's blows almost caused her to bite off a portion of her tongue. The State's photographic exhibits showed blood on the concrete that could not be washed off, Luginbyhl's bloody uniform and jacket, and photographs of her injuries.
        During the punishment phase of trial, the trial court has broad discretion to admit any evidence that it “deems relevant to sentencing” including evidence of extraneous crimes, other bad acts, and character evidence. Tex. Code Crim. Proc. Ann. Art. 37.07, § 3(a) (Vernon Supp. 2006). Evidence is relevant if it assists the fact finder to assess an appropriate sentence. See Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999). However, even relevant evidence should be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See id. at 266.         We review the trial court's determination to admit evidence under an abuse of discretion standard. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial court does not abuse its discretion unless its determination lies outside the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g).
        Photographs are admissible if there are elements of the photograph that are genuinely helpful to the jury in making its determinations and any emotional and prejudicial aspects of the photograph do not substantially outweigh the helpful aspects. Erazo v. State, 144 S.W.3d 487, 491-92 (Tex. Crim. App. 2004). Determinations of the admissibility of photographs lie within the trial court's sound discretion. Rayford v. State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003). The trial court does not abuse its discretion as long as its determination lies within the zone of reasonable disagreement. Id.
        Appellant concedes the facts surrounding his prior conviction are relevant to the jury's determination of punishment. Appellant contends, however, that Luginbyhl's testimony and the associated photographs exceed the necessary recitation of the facts. Appellant contends the lengthy testimony, combined with the “bloody and pitiable” photographs, constitute an emotional, highly prejudicial presentation clearly calculated to inflame the minds of the jurors. As a result, appellant contends, he was harmed because the State was able to portray him as having a “maligned and violent character” and the jurors' minds were inflamed when they assessed punishment.
        The State denies the testimony and photographs were unduly prejudicial. The State points out the evidence was offered during the punishment phase of trial and it asserts the testimony was “intrinsically relevant to appellant's capacity and propensity for violence and viciousness.” The State asserts Luginbyhl's testimony took only eighteen minutes to present. The State notes the jury had already seen twenty-four photographs regarding the intoxication manslaughter offense, including autopsy photographs, photographs of medical treatment, and photographs of the crash scene. The State does concede that the photographs may be “marginally gruesome to certain laymen,” but it contends the photographs do no more than depict the injuries appellant inflicted. The State contends the photographs were essential support for Luginbyhl's testimony because her injuries were the aggravating factor in the robbery and thus were necessary for the jury to find the State had proven the enhancement paragraph beyond a reasonable doubt. Finally, the State characterizes any error in admitting the photographs as harmless because the evidence of appellant's guilt was overwhelming and the photographs showed no more than the injuries Luginbyhl described in her testimony. We agree with the State.
        Evidence regarding appellant's aggravated robbery was relevant to show appellant committed the enhancement offense. Appellant was convicted of an aggravated robbery offense grounded upon the infliction of serious bodily injury. See Tex. Pen. Code Ann. § 29.03(a)(1) (Vernon 2003). As the State contends, evidence establishing appellant inflicted “serious bodily injury” upon his victim was an essential part of the State's proof of the enhancement offense and, therefore, was both relevant and highly probative.
        Luginbyhl testified about her ordeal in a straightforward, descriptive manner revealing grisly details only because such details were necessary to adequately describe appellant's actions and the consequences of the offense. Moreover, the jury had already heard Hubbard describe his even more serious injuries and medical treatment. We conclude the probative value of Luginbyhl's testimony is not substantially outweighed by its prejudicial impact and, thus, we conclude the trial court did not abuse its discretion in admitting the testimony over appellant's objection.
        Although the photographs were in color, Luginbyhl is alive and fully clothed in the photographs depicting her. The jury had already seen Garcia's autopsy photographs and photographs depicting Hubbard's medical treatment. We cannot conclude the photographs of Luginbyhl caused an undue emotional impact upon the jury.
        We agree with the State that the photographs did no more than depict the results of appellant's beating of Luginbyhl during the robbery. The trial court does not abuse its discretion in admitting evidence that merely reflects what appellant did. See Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995) (en banc). We conclude the photographs would have been helpful to the jury in visually documenting and confirming Luginbyhl's description of her injuries. Cf. Harris v. State, 661 S.W.2d 106, 107-08 (Tex. Crim. App. 1983) (en banc) (concluding trial court did not err in admitting autopsy photographs that illustrated and clarified medical examiner's testimony about victim's injury). Although we may question whether the State needed three photographs of Luginbyhl's bloody clothing, we cannot conclude the trial court abused its considerable discretion by admitting those exhibits.
        Because the probative value of the evidence of appellant's aggravated robbery offense was not clearly outweighed by its prejudicial impact, we cannot conclude the trial court abused its discretion in overruling appellant's objections and admitting the evidence. We overrule issues seven through eighteen.
         We affirm the trial court's judgments.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
051486f.u05