MACGREGOR YOGOE KAHN, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed June 9, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01223-CR
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MACGREGOR YOGOE KAHN, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 282nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-39699-S
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OPINION
Before Justices Richter, Lang-Miers, and Murphy
Opinion By Justice Richter
         A jury found appellant guilty of murder and sentenced him to eighty years' imprisonment. In five issues on appeal, appellant contends the trial court erred by denying his Batson challenge, overruling his motion to suppress, and admitting a certified judgment of a misdemeanor offense during the punishment phase of trial. Appellant also argues the sentence is disproportionate to the offense and therefore constitutes cruel and unusual punishment under the United States and Texas Constitutions. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.
 
I. background
 
         Appellant and three other men, “Pig,” “Reggie,” and “Jerome” planned to steal $10,000 from Darrin Mason that Mason had stolen from someone else days earlier. Stephen Strickland was at Mason's house at the time of the robbery. During the robbery, Strickland and Pig struggled over control of a gun, and Strickland was shot in the chest. After the shot, Mason ran up the stairs and appellant and Pig ran after him. Appellant and Pig stopped when they saw Mason and a “dude,” both armed with guns, coming back down the stairs. Appellant fired his gun and the bullet penetrated the wall at the top of the staircase. Appellant's written statement reflects that he saw “the dude” was armed and shot.
        Appellant was charged with capital murder for causing the death of Strickland by shooting him with a firearm during the commission of a robbery. Prior to trial, appellant moved to suppress the written statement he gave to police, and the trial court denied the motion. A jury found appellant guilty of the lesser-included offense of murder and sentenced him to eighty years' imprisonment. Appellant then filed a generic motion for new trial, claiming that the verdict was contrary to the law and the evidence. This appeal followed.
 
II. Analysis
 
A. Jury Selection
        In his first issue, appellant argues the trial court erred in overruling his Batson challenge to the State's peremptory challenge to prospective juror number 11. In reviewing a challenge to the selection of the jury under Batson v. Kentucky, 476 U.S. 79, 89 (1986), we reverse only if we determine the trial court's resolution of the issue was clearly erroneous. Hernandez v. New York, 500 U.S. 352, 369 (1991); Watkins v. State, 245 S.W.3d 444, 447- 48 (Tex. Crim. App. 2008). In Batson, the United States Supreme Court held that the State's purposeful use of peremptory strikes in a racially discriminatory manner violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Batson, 476 U.S. at 96. Under Batson, to prevail on a claim of discriminatory jury selection, the defendant must demonstrate, by a preponderance of the evidence, that the prosecutor indulged in purposeful discrimination against a member of a constitutionally protected class in exercising peremptory strikes. Watkins, 245 S.W.3d at 447.
        To invoke the protection of Batson and its progeny, a defendant must raise an inference of purposeful discrimination, and the trial court must determine that a prima facie case of discrimination exists by virtue of the prosecutor's use of peremptory strikes. Watson 245 S.W.3d at 447. A defendant establishes a prima facie case of discrimination by showing facts and relevant circumstances that raise an inference that the striking party used peremptory strikes to exclude veniremembers because of their race. J.E.B. v. Alabama, 511 U.S. 127, 144-45 (1994). When a party establishes a prima facie case, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation. Batson, 476 U.S. at 97; Purkett v. Elem, 514 U.S. 765, 768-69 (1995) (per curium); Shuffield v. State, 189 S.W.3d 782, 785 (Tex. Crim. App. 2006). The State's explanation does not have to be persuasive or even plausible, and as long as the discriminatory intent is not inherent, the State's explanation will be deemed race-neutral. Bausely v. State, 997 S.W.2d 313, 316 (Tex. App.-Dallas 1999, pet. ref'd) (citing Purkett, 514 U.S. at 768). If the State provides a race neutral explanation for its strikes, the trial court determines as part of the third step of the analysis whether the defendant has satisfied his burden of persuasion to establish the strike was the product of purposeful discrimination. Watkins, 245 S.W.3d at 447. The defendant has the ultimate burden of persuasion to establish that the allegations of purposeful discrimination are true. Bausley, 997 S.W.2d at 316.
        Once the State offers an explanation for striking a contested panelist and the trial court rules on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant made a prima facie case of discrimination is moot and not subject to appellate review. See Malone v. State, 919 S.W.2d 410, 412 (Tex. Crim. App. 1996) (citing Hernandez v. New York, 500 U.S. 352, 359 (1991)).
        During voir dire, the trial judge noted some of the venire members might have family or medical issues related to their ability to serve as jurors that they might wish to discuss with the court privately. After defense counsel completed his voir dire examination, one of the venire members inquired if there would be an opportunity to speak with the judge. In response, the judge told the venire he would send them out to the hallway and those who wished to address the court or the lawyers privately should form a line.
        After the panel retired from the courtroom, approximately ten venire members stood in line to address the court. As they were brought into the courtroom one by one, the first seven venire members articulated a reason why they believed they could not sit as a juror. Juror Number 11, Ms. Brown, was the eighth venire member to enter the courtroom, and when she approached the court, the following exchange ensued:
 
 
 
The Court: I had Ms. Brown. Yes, ma'am, what- - I'm sorry, what's your name?
 
 
 
        Juror 11: Tessie Brown
 
 
 
        The Court: Hello, Ms. Brown. What do we need to know?
 
 
 
        Juror 11: What do you need to know?
 
 
 
        The Court: Yeah, did you want to speak to me?
 
 
 
        Juror 11: Oh, no. Huh-uh, I didn't- - I didn't.
 
 
 
 
 
The Court: Okay. Ms. Brown didn't have anything to say to us. She was just being helpful making sure she didn't disappear. Go back and have a seat out in the hallway.
 
        After Ms. Brown left the courtroom, the venire members remaining in line addressed the court. Like the seven jurors before Ms. Brown, each proffered a reason why they would be unable to serve as a juror. The State exercised a peremptory challenge to strike Ms. Brown, and defense counsel lodged a Batson challenge to this strike. In so doing, defense counsel noted that Ms. Brown and appellant are both black.   See Footnote 1  The State responded that Ms. Brown had been stricken because she did not fill in any of the narrative portions of her questionnaire and because she stood in line to speak to the court without knowing why she was standing in line. As a result, the State maintained Ms. Brown's behavior reflected an insufficient grasp of the process. The court found the State's explanation was a race neutral reason for the strike.
        Appellant argues the strike was based on demeanor, which is generally recognized as a race neutral explanation to support a peremptory strike. See Davis v. State, 796 S.W.2d 813, 819 (Tex. App.-Dallas 1990, writ ref'd n.r.e.); C.E.J. v. State, 788 S.W.2d 849, 857 (Tex. App.-Dallas 1990, writ denied); see also Moore v. State, 265 S.W.3d 73, 83 (Tex. App.-Houston [1st Dist.] 2008,) pet. dism'd, improvidently granted, 286 S.W.3d 371 (Tex. Crim. App. 2009) (holding challenge based on inability to understand prosecutor's questions is race neutral). Nonetheless, appellant contends the strike lacks evidentiary support because the trial court failed to elaborate on its determination. In support of his argument, appellant relies on the United States Supreme Court's recent decision in Snyder v. Lousiana, 552 U.S. 472, 477 (2008). The facts in Snyder, however, are inopposite to the facts in this case. In Snyder, the Supreme Court declined to presume the trial court credited the prosecutor's assertion that a prospective juror appeared nervous because two explanations were proffered for the strike and the record did not indicate the trial court's determination was based on the appearance of nervousness. Id. at 479. In contrast, here the court expressly based its determination on the State's assertion that Ms. Brown demonstrated insufficient comprehension of the proceedings by standing in line to address the court. Significantly, although appellant now claims the record is inconclusive, at the hearing, neither appellant nor the trial court disputed this aspect of the State's observation.   See Footnote 2  Thus, the State's observations regarding Ms. Brown's demeanor are established for the record. Moreover, the trial court was in the best position to determine whether the prosecutor's characterization was correct. As the Snyder court observed, race neutral reasons for peremptory challenges often invoke a juror's demeanor, making the trial court's first-hand observations of even greater importance. Id. at 477. In these situations, “the trial court must evaluate not only whether the prosecutor's demeanor belies a discriminatory intent, but also whether the juror's demeanor can credibly be said to have exhibited the basis for the strike . . . .” Id. Because these determinations are “peculiarly within a trial judge's province . . . in the absence of exceptional circumstances, we . . . defer to the trial court.” Id.; see also Yarborough v. State, 947 S.W.2d 892, 893 (Tex. Crim. App. 1997) (stating trial courts evaluate credibility of statements concerning demeanor or appearance and these findings are reviewed deferentially by appellate courts); Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002) (stating appellate court must afford great deference to trial court's credibility and demeanor determinations in Batson inquiry).
        Because the explanation given by the State was facially valid and inherently nondiscriminatory, appellant had the burden to prove the explanation was a pretext for purposeful discrimination. But there is no evidence in the record to establish the State's race neutral reason for striking juror number 11 was pretextual. Therefore, based on the record before us, we conclude appellant failed to meet his burden of proving discrimination in the State's use of peremptory strikes, and the judge's ruling was not clearly erroneous. Appellant's first issue is resolved against him.
B. Motion to Suppress
         In his second issue, appellant contends the trial court erred in overruling the motion to suppress his written confession because the confession was involuntary and therefore inadmissible under the due process clause of the United States Constitution. In particular, appellant argues the trial court failed to consider the totality of the circumstances in determining the confession was voluntarily obtained. The State responds that there is nothing in the record to support appellant's contention, and a review of the totality of the circumstances supports the trial court's finding that appellant's written statement was voluntarily made. We agree with the State.
        We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We do not engage in our own factual review as the trial judge is the sole trier of fact and judge of credibility of the witnesses and the weight to be given to their testimony. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). Rather, we give almost total deference to a trial court's determination of historical facts, particularly when the trial court's findings are based on an evaluation of credibility and demeanor. St. George, 237 S.W.3d at 725; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same deference to mixed questions of law and fact if resolving those questions turns on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673; Guzman, 955 S.W.2d at 89. However, we review de novo the application of legal principles to a specific set of facts. See State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); Guzman, 955 S.W.2d at 87.          Prior to trial, appellant filed a motion to suppress his written confession and t he trial court conducted a hearing on the motion. The State presented Mesquite Police Detective Chad Copeland as a witness. Detective Copeland testified that appellant was arrested at his home at approximately 2:00 a.m. When appellant arrived at the police station, Detective Copeland told appellant he had been charged with murder and he needed to speak with him. Detective Copeland also told appellant the police had received an anonymous tip that appellant, Pig, and Reggie were involved in a murder. Appellant was subsequently processed and put in a cell.
        Detective Copeland testified that approximately one hour later, he received a call from a jailer advising that appellant wished to speak with him. Detective Copeland stated that once they were in the interview room, he advised appellant of his Miranda rights and asked appellant to tell him what happened. Appellant told the detective about the crime and the detective wrote the statement on the voluntary statement form.
        Detective Copeland identified State's exhibit 48 as the statement he had taken from appellant and confirmed that appellant had initialed the Miranda rights pre-printed at the top of the statement form and signed the bottom of each page of the form. On the last page of the written statement, appellant wrote “I read this statement and it is exactly what I said.” Detective Copeland further testified there was no separate handwritten statement by appellant. Appellant was not given or promised anything in exchange for his statement, and Detective Copeland did not tell appellant he would help him if he gave a statement.
        Appellant testified to a different version of events. Appellant stated that he was arrested at approximately 2:00 a.m., right after he arrived home. Earlier in the evening, appellant had taken a “downer,” which appellant referred to as a “handle bar.” Appellant claimed the arresting officers did not read him his Miranda rights and when he arrived at the police station, Detective Copeland told him he knew what had happened. According to appellant, Detective Copeland told him Pig and Reggie had already given statements, and Pig's statement implicated appellant. Appellant also stated that Detective Copeland asked him if he wanted to talk about it or give a statement, and told him he could “go down” if he did not give his side of the story. Appellant claimed he told Detective Copeland he was not the shooter, and requested an attorney.
        Appellant testified that he was in his cell for three to four hours, and fell asleep because he was tired and had taken a “handle bar” earlier that evening. When he awakened, he told one of the officers he wished to speak with the detective. Appellant testified that when Detective Copeland arrived, appellant told him he wanted to give a statement. According to appellant, Detective Copeland did not read him his Miranda rights before he gave his statement. Instead, appellant claims he was given a piece of lined paper that did not have any Miranda warnings printed on it, and he wrote his statement on this paper. Detective Copeland then transcribed the statement onto the voluntary statement form. Appellant further testified that after Detective Copeland transcribed his statement, he asked appellant to read the statement and sign it. After he signed the statement, Detective Copeland requested that appellant initial the Miranda rights. Appellant also testified that he did not talk to Detective Copeland about what had occurred until after he had written out his statement.
        Appellant admitted his signature is on the statement and his initials are on the Miranda warnings, but testified that the statement was not exactly what he wrote. When questioned further about the statement, appellant stated “I didn't read it thoroughly.” Appellant also claimed “I was under the influence. I didn't say any of those things. He wrote it down, I just signed it.” On cross-examination, appellant admitted that while the statement was a not “word for word” transcription of his handwritten statement, the transcribed statement did not contain anything that was not true. When the hearing concluded, the trial court found the statement was voluntary under article 38.22. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005).
         Appellant claims the trial court failed to consider the totality of the circumstances in determining that his statement was voluntarily made, and relies on three facts in support of his argument: (1) Detective Copeland transcribed the statement; (2) the transcribed statement does not mirror a statement appellant claims to have personally handwritten; and (3) appellant was questioned when he was tired and under the influence of a “downer.”
        An accused's statement is admissible evidence if the accused made it freely and voluntarily and without compulsion or persuasion. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). A statement may be deemed “involuntary” under three different theories: (1) failure to comply with article 38.22; (2) failure to comply with the dictates of Miranda; or (3) failure to comply with due process or due course of law because the statement was not freely given as a result of coercion, improper influences, or incompetency. See Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008); Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim. App. 1996). The court examining the admissibility of the confession must determine whether, in the totality of the circumstances, the defendant was coerced to such a degree that the coercion, rather than his free will, produced the statement. Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App.1995); Moore v. State, 233 S.W.3d 32, 44 (Tex. App.-Houston [1st Dist.] 2007, no pet.).
         Here, although appellant points to discrepancies in the testimony about when the Miranda warnings were given, he does not specifically challenge the voluntariness of the statement for failure to comply with the dictates of Miranda. And even if we were to construe his argument to include such a challenge, the trial court is free to believe or disbelieve, in whole or in part, any witness's testimony. Sells v. State, 121 S.W.3d 748, 768 (Tex. Crim. App. 2003). Thus, the trial court was free to afford appellant's testimony about when he was apprized of his constitutional rights whatever weight it deemed appropriate. In addition, there is nothing in the record to indicate appellant did not understand his rights or that he did not knowingly and freely elect to relinquish them.
        Appellant's due process concerns are similarly unfounded because there is no evidence of coercion, improper influences, or incompetency. Appellant affirmatively elected to give a statement and requested that the jailer contact Detective Copeland so that he could do so. Although he claims he was tired and under the influence of a “downer,” there is no evidence to establish that appellant lacked the mental acuity to understand his rights and the consequences of his waiver. Indeed, according to his own testimony, appellant was capable of writing his statement himself and was then able to discuss the events with Detective Copeland. According to appellant, all of this transpired after he had been in his cell for three to four hours following his arrest, and after he had taken a nap. Moreover, there is no evidence concerning the timing of appellant's ingestion of the drug; he stated only that it had been taken earlier in the evening before his arrest. Appellant's confession was signed at 5:21 a.m. As a result, the trial court could reasonably have concluded that the effects of the drug had diminished or worn off by the time of the confession.
        The differing testimony concerning Detective Copeland's transcription of appellant's statement is also of no constitutional consequence. Even if the trial court believed appellant's version of events and the transcription was not verbatim, appellant admitted that there is nothing in the statement that is not true. Therefore, viewing the totality of the circumstances, we conclude the record supports the trial court's finding that appellant's statement was voluntarily made. The trial court did not abuse its discretion in denying the motion to suppress. Appellant's second issue is overruled.
C. Cruel and Unusual Punishment
        In his fourth and fifth issues, appellant argues that his eighty-year sentence is constitutionally excessive under the Eighth Amendment of the United States Constitution and Article I, section 19 of the Texas Constitution because it is “grossly disproportionate” to the offense. The State responds that the complaint has not been preserved for appellate review. Again, we agree with the State.
        As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely and specific request, objection, or motion. Tex. R. App. P. 33.1(a). Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996) (finding waiver of cruel and unusual punishment argument for failure to object); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd) (holding claims of cruel and unusual punishment under both the state and federal constitutions waived because not properly raised in the trial court). Appellant has not shown, nor has our independent review of the record revealed, that appellant lodged this specific objection at the time his sentence was assessed or in any post-trial motion. Conceding the absence of an objection, appellant relies on rule 33 to insist no objection was necessary because the objection was “apparent and obvious.” Appellant's argument, however, is based upon a misreading of Tex. R. App. P. 33.
        The present case does not involve an imprecise objection; there was no objection at all. Although rule 33.1(a) (1) (A) provides that an explanation of the grounds for the ruling sought by the complaining party is not required when “ the specific grounds [are] apparent from the context,” the rule nevertheless requires that the “complaint be made to the trial court by a timely request, objection, or motion.” Tex. R. App. P. 33.1(a) (1) (emphasis added). In other words, a party must object, but an explanation of the grounds of that objection may not be necessary depending on the context in which the objection is made. Here, when the trial judge inquired if there was any reason why the sentence should not be imposed, defense counsel responded “No, sir.” Thus, there was no complaint before the trial court upon which appellant might have been required to expound.
        Appellant recognizes the “normative rules” concerning preservation of error, but also insists “many circumstances” exist in which an objection is not required to preserve a ground for appellate review. Arguing further, appellant claims that when an issue rises to the level of “constitutional infirmity,” it may be raised for the first time on appeal. We disagree with appellant's legal characterizations, and more importantly, find no such circumstance or infirmity here. Appellant does not claim, nor does the record reveal, any fundamental error. See Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004) (fundamental errors need not be preserved by objection). Appellant concedes the punishment assessed was within the statutory range prescribed by the legislature.   See Footnote 3  “Subject only to a very limited, exceedingly rare, and somewhat amorphous Eighth Amendment gross-disproportionality review,” a punishment within the legislatively prescribed range is not unconstitutional per se. See Ex Parte Chavez, 213 S.W.3d 320, 323-24 (Tex. Crim. App. 2006) (citing Lockyer v. Andrade, 538 U.S. 63, 72 (2003)) (considering defendant's claim of actual innocence in context of punishment within statutory range); Baldridge v. State, 77 S.W.3d 890, 893 (Tex. App.-Houston [14th Dist.] 2002, pet ref'd) (stating Eighth Amendment has narrow proportionality principle); see also Willis v. State, 192 S.W.3d 585, 595 (Tex. App.-Tyler 2006, pet. ref'd) (holding punishment within the statutory range not unconstitutional per se). But even when the error involves an allegedly disproportionate sentence, forfeiture is the consequence for non-compliance with rule 33. See Tex. R. App. P. 33.1(a); Jacobs v. State, 80 S.W.3d 631, 632-33 (Tex. App.-Tyler 2002, no pet.); Jacoby v. State, 227 S.W.3d 128, 130 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd).
        Despite his failure to preserve error, appellant nonetheless urges the court to perform a disproportionality review under Solem v. Helm, 463 U.S. 277, 290 (1983) and its progeny.   See Footnote 4  In support of his argument, appellant cites to appellate decisions in which courts have addressed the merits of disproportionate sentence complaints after concluding that the error had not been preserved for review. See e.g., Ray v. State, 119 S.W.3d 454, 459 (Tex. App.-Fort Worth 2003, pet. ref'd) (expressing confusion about application of the waiver principle in review of disproportionate sentence and addressing merits in the interest of justice and judicial economy). The discussion of the merits in the decisions appellant cites, however, is nothing more than dicta discussing alternative grounds upon which relief might be denied, and we decline appellant's invitation to infer otherwise. Because he did not raise an objection or otherwise preserve the issue for our review, appellant has forfeited his complaint that his sentence is disproportionate. See Stewart v. LaGrand, 526 U.S. 115, 119 (1999) (holding appellant waived Eighth Amendment complaint); Noland v. State, 264 S.W.3d 144, 151-52 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd) (holding appellant waived claim of disproportionate sentence). Appellant's fourth and fifth issues are overruled.
D. Evidence of Prior Convictions
        During the punishment phase of trial, the trial court admitted into evidence without objection certified copies of judgments reflecting that appellant had a prior conviction for burglary of a building, two prior convictions for evading arrest, and a prior conviction for possession of marijuana. The State also introduced evidence of a prior misdemeanor conviction for unlawfully carrying a weapon and defense counsel objected to this evidence. The trial court overruled the objection and admitted the evidence.
        In his third issue, appellant contends the trial court erred in admitting evidence of the conviction for unlawfully carrying a firearm because the State failed to produce sufficient independent evidence linking the conviction to appellant. But we need not consider whether the trial court erred because even if we assume error, it is harmless.         
        Other than constitutional error, any error, defect, irregularity, or variance that does not affect the appellant's substantial rights must be disregarded by an appellate court in determining whether to reverse the decision of a lower court. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury's verdict. Russell v. State, 113 S.W.3d 530, 549 (Tex. App.-Fort Worth 2003, pet. ref'd) (citing King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.1997)). In assessing reversible error, an appellate court should consider the entire record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the jury's verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). The reviewing court should also consider non-evidentiary elements of the trial, including voir dire, the State's theory, and any defensive theories, the jury instructions, and closing arguments. Id.
        The jury convicted appellant of murder. Appellant admitted he brought a loaded handgun to Mason's house to use in the robbery. The jury received evidence that appellant is a convicted felon, and as a result, was legally prohibited from carrying a weapon at the time of the offense. Despite this prohibition, appellant testified that he intentionally carries a handgun for protection. The evidence of appellant's other prior convictions was also before the jury. Therefore, under these circumstances, considering the entire record, we cannot conclude appellant was harmed by the admission of his prior conviction for the misdemeanor offense of unlawfully carrying a weapon. Appellant's third issue is overruled.
 
                                         III. Conclusion
 
        Having resolved all of appellant's issues against him, we affirm the trial court's judgment.                         
                                                          
 
 
 
                                                          
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
 
 
 
 
 
Do Not Publish
Tex. R. App. P. 47
081223F.U05
 
 
 
 
                                                                  
 
 
 
Footnote 1 Counsel's statement during the hearing is the only evidence concerning race in the record before us. There is no information concerning the race of the other venire members, including those who may have been stricken. The jury questionnaires are also not part of the record, but because the trial court's rationale was not based on the incomplete questionnaire, they are not required.
Footnote 2 Appellant did address the State's observation concerning the completion of the jury questionnaire, but that aspect of the challenge is not before us.
Footnote 3 The applicable range of punishment for the first degree felony offense of murder is imprisonment for life or for any term of not more than ninety-nine years or less than five years and a fine not to exceed $10,000. See Tex. Penal Code Ann. § 12.32(a) (Vernon 2009). Here, appellant was sentenced to eighty years' imprisonment with no fine.
Footnote 4 The Solem court articulated a three-part test for evaluating the proportionality of a sentence, but the test was called into doubt by the court's subsequent opinion in Harmelin v. Michigan, 501 U.S. 957, 1005 (1991). In light of the Harmelin decision, the application of the Solem test has been modified by Texas courts and the Fifth Circuit Court of Appeals to require a threshold determination of gross disproportionality between the sentence and the crime before addressing any additional elements. See McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Jackson v. State, 989 S.W.2d 842, 845-46 (Tex. App.-Texarkana 1999, no pet.).