TROY L. JACKSON, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed March 13, 1990.
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00034-CR
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TROY L. JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 291st District Court
Dallas County, Texas
Trial Court Cause No. F88-96485-RU
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O P I N I O N
Before Justices Whitham, Rowe, and Baker
Opinion By Justice Rowe
        Troy Lawrence Jackson was convicted by a jury of the offense of aggravated robbery. The jury assessed punishment enhanced twice at life imprisonment. On appeal, appellant contends that: (1) the in-court identification procedure was impermissibly suggestive and therefore constituted denial of due process; (2) Batson FN:1 error was committed; and (3) the State failed to prove the allegations contained in the enhancement paragraphs by failing to introduce judgments and sentences for the prior convictions. We overrule all points of error and affirm the judgment of the trial court.
        Thomas Hogan, the complainant and co-owner of a used car lot, was approached on the car lot by appellant, who offered to show Hogan where car parts stolen from the lot were hidden in exchange for $30. Hogan, his brother and co-owner of the lot, Horace Hogan, and Robert Thomas, a salesman at the car lot, inventoried their property and determined that they did not have any car parts missing. Appellant then asked to use the complainant's phone. In the complainant's office, appellant stabbed him in the cheek and the chest and took his billfold. Ten days later Horace Hogan, Robert Thomas, and the complainant each identified appellant in a photographic lineup of six photographs. Each witness testified that the police officer did not state that appellant's photograph was in the lineup or suggest any particular photograph to them. Each witness testified that he had observed appellant in daylight for significant periods of time, ranging from thirty minutes to one hour and forty-five minutes. In addition, the three witnesses also identified appellant in court.
        In his first point of error, appellant complains that the pretrial identification procedure used by the police was impermissibly suggestive and gave rise to a substantial likelihood of misidentification; therefore, the in-court identifications of appellant by the State's witnesses were not of independent origin. In particular, appellant contends that the five other photographs in the lineup were of much younger men than appellant and therefore were not similar in nature to appellant's photograph. We find no error and overrule appellant's first point of error.
        In reviewing appellant's contention, the standard is whether the identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. Simmons v. United State, 390 U.S. 377, 384 (1968); Bell v. State, 724 S.W.2d 780, 798 (Tex. Crim. App. 1986), cert. denied, 479 U.S. 1046 (1987). In Manson v. Brathwaite, 432 U.S. 98, 110 (1977), the Supreme Court rejected a per se exclusionary rule where the identification procedures were found to be unnecessarily suggestive and adopted a more lenient rule whereby the challenged evidence would be admissible if it possessed certain features of reliability. See Bell, 724 S.W.2d at 799. Factors to be considered in determining reliability include the witnesses' opportunity to view the defendant during the commission of the offense, the witnesses' degree of detention [sic], the accuracy of the prior description of the accused, the level of certainty of the identification, and the amount of time between the crime and the confrontation. Id. The determination is made from reviewing the totality of the circumstances. Jackson v. State, 657 S.W.2d 123, 127 (Tex. Crim. App. 1983).        
        The evidence shows that the witnesses had ample opportunity to view the appellant. The complainant spent one hour and forty-five minutes in appellant's presence. Horace Hogan testified that he was with appellant for approximately thirty minutes. Thomas stated that he had over one hour to observe appellant. The testimony also establishes that the degree of attention given to appellant by the witnesses was sufficient. The complainant stated that he had a good look at appellant. Horace Hogan stated that he observed appellant from a distance of only six to seven feet. In addition, Horace Hogan described appellant to the police at the time of the offense as a male in his thirties or maybe forty years of age, about five foot ten inches and one hundred and sixty pounds, wearing long pants and a sleeveless T-shirt. Thomas described appellant as five foot eight inches or nine inches, about one hundred and sixty-five pounds, around thirty-five years old, and wearing a blue cutoff shirt and blue jeans. No claim has been made that appellant did not possess the physical characteristics as described. See Manson, 432 U.S. at 115; Jackson, 657 S.W.2d at 129.
        Furthermore, all three witnesses made unequivocable identifications of appellant from the lineup and at trial. The record does not suggest that there was any doubt of the identification on the part of any witness. Moreover, only ten days passed between the commission of the offense and the photographic lineup, indicating that the witnesses' memory was not impaired by the passage of time.
        These factors indicate that the identification procedure was reliable. All three witnesses saw appellant at close range, in daylight, and for an extended period of time. The identifications were unequivocally made at the lineup and at trial by each witness. The fact that the five other photographs depicted younger men does not per se defeat the identification procedure. Bell, 724 S.W.2d at 799. Although it might be better practice to have all the physical characteristics of the suspect match, there is no due process requirement for it. Turner v. State, 600 S.W.2d 927, 933 (Tex. Crim. App. 1980). See Chandler v. State, 743 S.W.2d 736, 740 (Tex. App.--Corpus Christi 1998, pet. granted) (defendant was the only individual with green eyes in the lineup); Bell v. State, 724 S.W.2d at 799 (defendant was the only person wearing bright white pants, was the tallest of the group, his number was underlined, and a triangle mark appeared above his number); Gaudette v. State, 713 S.W.2d 206, 210-11 (Tex. Civ. App.--Tyler 1986, pet. ref'd) (defendant's picture was smaller and of a different texture). Given the reliability of the identifications, there was not a substantial likelihood of misidentification, and therefore the pretrial identification evidence was not impermissibly suggestive. Appellant's first point of error is overruled.
        In point of error two, appellant complains that Batson error was committed during jury selection when the State struck Juror No. 16, a black venireperson. Appellant, a black person, objected specifically to this striking. The trial court overruled the objection when the State explained that Juror No. 16 was struck because she had a brother in the penitentiary. We disagree with appellant's complaint and overrule his point of error.
        In Batson v. Kentucky, the United States Supreme Court held that the equal protection clause forbids a prosecutor from challenging potential jurors solely on account of their race or on the assumption that jurors of the same race as a defendant, as a group, would be unable to impartially consider the State's case against that defendant. Batson v. Kentucky, 476 U.S. 79, 96 (1986); Keeton v. State, 724 S.W.2d 58, 64-65 (Tex. Crim. App. 1987) (Keeton I). To invoke the protection set forth in Batson, a defendant must first establish a prima facie case of purposeful discrimination by showing that: (1) he is a member of a cognizable racial group; (2) the prosecutor had exercised peremptory challenges to remove from the venire members of the defendant's race; and (3) these facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen on account of their race. Batson, 476 U.S. at 96; Tompkins v. State, 774 S.W.2d 195, 200 (Tex. Crim. App. 1987), aff'd, 109 S. Ct. 2180 (1989). If the court determines that a prima facie case is established, there is a presumption that the peremptory challenges were used to discriminate on the basis of a race. The State then has the burden of articulating a clear, specific, and legitimate reason for the challenge which relates to the particular case to be tried and which is nondiscriminatory. Keeton v. State, 749 S.W.2d 861, 867-68 (Tex. Crim. App. 1988) (Keeton II). The prosecutor must give clear and reasonably specific explanations of legitimate reasons for his use of peremptory challenges. Batson, 476 U.S. at 98 n.20. Such a requirement mandates that the trial judge evaluate the reasons given by the prosecutor in light of the circumstances of that trial to determine whether the explanations are merely a pretext. Keeton II, 749 S.W.2d at 868. In Keeton II, the Court of Criminal Appeals discussed a nonexclusive list of factors which weigh against the legitimacy of a race-neutral explanation, including that the reason given for the peremptory challenge is not related to the facts of the case, there was a lack of questioning to the challenged juror, or a lack of meaningful questions, there was disparate examination of the challenged juror, there was disparate treatment where there is no difference between responses given and unchallenged venirepersons, and an explanation based on a group bias with a group trait is not shown to apply to the challenged juror specifically. Keeton II, 749 S.W.2d at 866, citing Slappy v. State, 503 So. 2d 350, 355 (Fla. Dist. Ct. App. 1987), aff'd, 522 So. 2d 18 (Fla. 1988). In reviewing Batson challenges, the appellate court is to consider the evidence in the light most favorable to the trial judge's rulings and determine if those rulings are supported by the record. FN:2 If there is sufficient evidence to support the trial judge finding of no purposeful discrimination, the findings will not be disturbed on appeal. Keeton II, 749 S.W.2d at 870.
        We infer from the trial judge's action in directing the prosecutor to explain why Juror No. 16 was struck that appellant made out a prima facie case of purposeful discrimination. Further, we construe the trial court's denial of defense counsel's motion as a finding that the State articulated a clear and specific racially-neutral explanation for striking Juror No. 16. Therefore, the issue before us is whether the trial court's finding is supported by the evidence in the record.
        The prosecutor explained that Juror No. 16 was struck because she had a brother in the penitentiary and that Juror No. 39, a white juror with a son in the penitentiary, was struck for the same reason. Striking a juror for a relative's problems with the law is a sufficiently racially-neutral reason. Rasco v. State, 739 S.W.2d 437, 439 (Tex. App.--Houston [14th Dist.] 1987, pet. ref'd as untimely filed). Furthermore, there is no evidence of disparate treatment given that these two jurors with a similar characteristic were treated equally despite the difference in race. Moreover, the record shows that the prosecutor questioned Juror No. 16 extensively about her brother, asking about the offense charged, her assessment of her brother's guilt, his current location, and the way he was treated by the police, the district attorney's office, the judge and his own attorney. Reviewing the evidence in the light most favorable to the trial judge's ruling, we determine that his ruling was supported by the record. The State articulated a clear and specific racially-neutral explanation for striking Juror No. 16. which defeated appellant's claim of purposeful discrimination by the State. We will not substitute our judgment of the witnesses' credibility and evidentiary weight for those of the fact finder. Tompkins, 774 S.W.2d at 202. Appellant's second point of error is overruled.
        In his third point of error, appellant complains that the allegations contained in the enhancement paragraphs were never proved since the State failed to introduce any judgments or sentences for the prior convictions. We disagree and overrule this point of error.
        The Court of Criminal Appeals has long held that only a prior final conviction is admissible as evidence of a defendant's criminal record. In order to be considered as evidence of a final conviction, a pen packet must contain a judgment and a sentence, properly certified. Langston v. State, 776 S.W.2d 586, 587 (Tex. Crim. App. 1989). In the absence of a showing to the contrary, however, it is to be presumed that a sentence is based upon a judgment and that the court acted in accordance with the law. Jones v. State, 449 S.W.2d 277, 278 (Tex. Crim. App. 1970); Chesteen v. State, 712 S.W.2d 553, 555 (Tex. App.--Houston [1st Dist.] 1986, pet. ref'd). When a foreign conviction is involved, in the absence of proof of the laws of the other state, the Court of Criminal Appeals presumes that its law is the same as that as the State of Texas. Langston, 776 S.W.2d at 587.
        The allegations in the enhancement paragraph are based on pen packets attested to and certified by the custodian of inmate records of the Louisiana Department of Public Safety and Corrections. The pen packets specifically pertain to two convictions: a 1979 conviction for armed robbery and a 1985 conviction for attempted simple burglary. Contained within the pen packet exhibit are the 32 pages of arrest information records, indictments, court minutes, reports of the district attorney and district judge, warrants of commitment, master prison records, sentence computation worksheets, certificates of parole, a discharge certificate, fingerprint records, and photograph indentification records. During the punishment hearing, Max Chester, a deputy with the Dallas County Sheriff's Office, testified that appellant's fingerprints matched both sets of fingerprints in the pen packets.
        The certified court minutes for March 7, 1979, recite with particularity that appellant entered a plea of guilty to the charge of armed robbery and was sentenced to serve seven years of imprisonment at hard labor with the Louisiana Department of Corrections. An accompanying warrant of commitment reflects that appellant was found guilty of the crime of armed robbery on March 7, 1979, and was sentenced to imprisonment at labor with the Department of Corrections for seven years. The certified court minutes for May 9, 1985, recite with particularity that appellant was in court for resentencing, that his previous sentence is set aside, and that appellant was sentenced to three years at hard labor with Department of Corrections and a fine of $500 plus costs, including jury trial and attorney fees of $500. An accompanying warrant of commitment to the penitentiary reflects that on March 18, 1985, appellant was tried and found guilty of the crime of attempted simple burglary and was resentenced for this cause on May 9, 1985, to three years hard labor in the Department of Corrections, a fine of $500, and costs, including jury trial and attorney fees of $500. Under the terms of both warrants, appellant was committed to the state prison to serve these sentences. Other materials show that in fact the sentences were served.
        We conclude that the pen packets amply demonstrate that appellant had been twice previously convicted for purposes of enhancement under article 12.42 of the Texas Penal Code. Unlike the record in Langston, 776 S.W.2d at 588, which nowhere recited that appellant was convicted of the offense in question, the record before us clearly reveals that appellant was convicted, sentenced, and served prison time for the two offenses described in the enhancement paragraphs. Appellant has not shown that these sentences were not based on valid judgments. We presume, therefore, that the sentences assessed against appellant were based on judgments and that the courts acted in accordance with the law. Jones, 449 S.W.2d at 278; Chesteen, 712 S.W.2d at 555. Thus, we hold that the State sufficiently proved the enhancement paragraphs. Appellant's third point of error is overruled.
        The judgment of the trial court is affirmed.
        
                                                          
                                                          GORDON ROWE
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
890034F.U05
 
 
FN:1 Batson v. Kentucky, 476 U.S. 79 (1986).
FN:2 We do not opine as what effect, if any, the recent decision in Meraz v. State, No. 982-86 and 983-86, slip. op. (Tex. Crim. App., January 17, 1990) (not yet reported) (reh'g denied, March 7, 1990), has on the standard for reviewing evidence introduced at a Batson hearing. The difference is of no consequence under this record because evidence which passes the Keeton standard a fortiori passes the Meraz standard.
File Date[03-13-90]
File Name[890034F]