TOMMY LEON PRATT, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion issued January 3, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-00688-CR
............................
TOMMY LEON PRATT, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-0348206-T
.............................................................
OPINION
Before Justices Moseley, Francis, and Mazzant
Opinion By Justice Mazzant
        Tommy Leon Pratt appeals his conviction for possession with intent to deliver cocaine. In
seven issues, he claims the trial court erred in denying his motion for continuance; erred in overruling his Batson objection to the State's use of peremptory challenges; erred in denying his amended motion for new trial alleging ineffective assistance of counsel; he suffered cruel and unusual punishment because the sixty-year sentence was “grossly disproportionate” to the offense; section 12.32 of the Texas Penal Code is unconstitutional; and the evidence is factually insufficient. We affirm the trial court's judgment.
         Continuance
        In his first issue, appellant claims the trial court erred by denying his motion for continuance. Appellant contends (1) the requested delay was only for a few weeks; (2) although this case had been set for trial for almost two years, defense counsel never asked for a continuance; (3) no other competent attorney was prepared for trial; (4) there would have been little or no inconvenience to the witnesses, opposing counsel, or the trial court; (5) the delay was for a legitimate reason; (6) a continuance would have given counsel more time to adequately investigate the facts of the case; (7) a more thorough investigation of the facts would have shown appellant was was set up by a drug dealer; and (8) appellant was prejudiced by the denial of the continuance because he was forced to proceed to trial with attorneys who were unprepared.
        Standard of Review
        The trial court's ruling on the motion for continuance is reviewed for abuse of discretion. Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002); Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995); see Tex. Code Crim. Proc. Ann. arts. 29.03, 29.06(6) (Vernon 1989). To establish an abuse of discretion, appellant must show he was actually prejudiced by the denial of his motion. Vasquez, 67 S.W.3d at 240; Heiselbetz, 906 S.W.2d at 511. A statement that counsel did not have enough time to prepare an adequate defense does not demonstrate prejudice; instead, appellant must establish a specific prejudice to his cause arising from the trial court's failure to continue the trial. See Heiselbetz, 906 S.W.2d at 511-12. Likewise, a bare assertion that counsel did not have adequate time to interview the State's potential witnesses does not alone establish prejudice. Id. at 512. Specific prejudice may include unfair surprise, an inability to effectively cross-examine the State's witnesses, or the inability to adduce crucial testimony that could have been given by potential witnesses. See Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996).
        Background
        On Monday April 25, 2005, the morning of trial, appellant's trial counsel filed a motion for continuance. During the hearing on this motion, defense counsel told the court he needed “a few more weeks” because he had a civil trial set for the following day in county court. Counsel claimed he had previously spoken to the prosecutor about this conflict and had been told they “possibly could pass the case” until June or July. On the Friday before trial, however, counsel spoke to the prosecutor again and was told the policy of the court had changed so that older cases were now being given priority.
        In response, the prosecutor noted this was the sixth jury trial setting and counsel had been notified on Friday that “this case was high on the list”and would likely be tried. The prosecutor also said he never “represented to Defense Counsel what will or won't go to trial” and pointed out that defense counsel “set this trial date with us and we are ready to go, [and] our officers are present.” Defense counsel reiterated that he was not prepared to go forward. The trial court denied the motion for continuance.
        Analysis
        Although appellant alleges the denial of his continuance rendered his trial counsel unable to prepare an adequate defense, he fails to establish any specific prejudice arising from the trial court's failure to continue the trial. According to his testimony at appellant's motion for new trial hearing, lead trial counsel was retained on September 3, 2003, a few months after appellant was arrested. At the time of trial, he had been appellant's attorney for nearly two years. He felt that he “fully investigated” the facts of the case. In particular, he spoke to appellant about the case, spoke to the prosecutor, visited the crime scene, interviewed witnesses, and engaged in discovery. Although he had not “gotten together as a threesome” with appellant and co-counsel to discuss trial strategy and related matters, counsel believed they were prepared for trial. He acknowledged that he exaggerated his lack of preparation in the motion for continuance in order to convince the trial court to grant his motion. When asked about his statement at the hearing that he was not prepared to go forward, counsel replied, “You always do that when you have a motion for continuance by the way. You don't have a motion for continuance and say you're prepared to go forward.” Counsel also pointed out that the trial judge gave them another day to prepare for trial, and during that time, he “got all the witnesses [appellant] told me to get down here and I got them down here and that is all I needed preparation time for.” In addition, the record suggests appellant's second attorney was an integral part of the defense and ably assisted lead counsel throughout the trial. It was co-counsel, for example, who cross-examined the two police officers that were the principal witnesses against appellant. Furthermore, while lead counsel may not have anticipated going to trial on April 25th, we note it was the sixth trial setting of this case.
        We do not believe the denial of a continuance resulted in unfair surprise to counsel. Nor has appellant shown how the denial of a continuance affected his counsel's ability to effectively cross-examine the State's witnesses or to adduce crucial testimony that could have been given by potential witnesses. Absent a showing of actual prejudice, we therefore conclude the trial court did not abuse its discretion by denying appellant's motion for continuance. See Heiselbetz, 906 S.W.2d at 512. We overrule appellant's first issue.
Batson
        In his second issue, appellant contends the trial court erred in overruling his challenge under Batson   See Footnote 1  to a peremptory strike exercised by the State against juror number twenty-five. Appellant claims the race-neutral reasons given for striking juror number twenty-five masked racially motivated reasons and the prosecutor engaged in disparate treatment.
        Background
        During his voir dire examination, the prosecutor spoke about the drug problem in Dallas and acknowledged that some of the jurors might have family members or close friends who have had experience with drugs. The prosecutor asked “[i]f you, a close family member or a close friend, someone that is close to you has been affected by drugs in their life.” In response, juror twenty-five, Ms. Ingram, raised her hand and stated she had a family member--her cousin--who was addicted to drugs:
 
[PROSECUTOR:] . . . Ms. Ingram, you have a cousin.
 
 
 
PROSPECTIVE JUROR: I have a cousin that is addicted.
 
 
 
[PROSECUTOR:] Okay. And that being the case, Ms. Ingram, is that something that would weigh on your decision-making or can you put that aside and listen to the evidence in this case?
 
PROSPECTIVE JUROR: It wouldn't affect my decision.
 
 
 
[PROSECUTOR:] Okay. Thank you very much.
 
The response of juror number twenty-nine, Ms. McGee, suggested a more distant relationship with persons involved in drugs:
 
[PROSECUTOR:] Yes, Ms. McGee?
 
 
 
PROSPECTIVE JUROR: Friends, neighbor, relative, that's number 29.
 
 
 
[PROSECUTOR:] With that being the case, Ms. McGee, would that affect your decision-making [?]
 
 
 
PROSPECTIVE JUROR: No.
 
 
 
[PROSECUTOR:] You could place that aside?
 
 
 
PROSPECTIVE JUROR: Yes.
 
        At the conclusion of voir dire, after both sides had exercised their peremptory strikes and as the jury was being seated, appellant's lead trial counsel made a Batson motion asking the trial court to order the prosecutor to explain why he struck juror number twenty-five, who, like appellant, was African-American, and not juror number twenty-nine, who was Caucasian, even though they gave the same answers to the prosecutor's “question concerning relatives being addicted to narcotics.” The prosecutor replied that juror twenty-five stated she had a cousin who was currently addicted to drugs while juror twenty-nine alluded less specifically to “family, friends, neighbors . . . that had been involved in drugs.” After arguing with defense counsel about the wording of the question to juror number twenty-nine, the prosecutor added that juror twenty-five indicated she had a cousin who “is addicted right now” while twenty-nine's response did not suggest any relatives who were currently addicted to drugs. The trial court ultimately denied appellant's Batson challenge, concluding “[t]he strike was not made because of racial consideration.”
        Standard of Review
        When reviewing a Batson challenge, an appellate court examines the record in the light most favorable to the trial court's ruling and reverses only when the ruling is clearly erroneous. Herron v. State, 86 S.W.3d 621, 630 (Tex. Crim. App. 2002); Pondexter v. State, 942 S.W.2d 577, 581 (Tex. Crim. App. 1996); 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. Bausley, 997 S.W.2d at 315. 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.
        Applicable Law         To challenge the State's use of peremptory strikes under Batson, a defendant must first make
a prima facie showing that the State exercised peremptory strikes on an impermissible basis. Herron, 86 S.W.3d at 630; Bausley, 997 S.W.2d at 316. Once a defendant makes a prima facie showing of purposeful discrimination,   See Footnote 2  the State must provide a race or gender-neutral explanation for striking the prospective juror in question. Herron, 86 S.W.3d at 630; Pondexter, 942 S.W.2d at 581; Bausley, 997 S.W.2d at 316. This step does not demand a persuasive or even plausible explanation; rather, it requires an explanation devoid of inherent discriminatory intent. Bausley, 997 S.W.2d at 315 (citing Purkett v. Elem, 514 U.S. 765, 768 (1995)). An explanation is neutral in this context if the State bases it on something other than the juror's race or gender. See Hernandez v. New York, 500 U.S. 352, 360 (1991). Unless discriminatory intent is inherent, the courts will consider the explanation race or gender-neutral. See id. at 360. If the State provides a race or gender-neutral explanation for its strikes, the defendant may rebut the State's explanation or show that the explanation was merely a sham or pretext. See Herron, 86 S.W.3d at 630; Pondexter, 942 S.W.2d at 581; Bausley, 997 S.W.2d at 316. To meet this burden, the defendant may call witnesses and introduce evidence just as in any other evidentiary hearing. Bausley, 997 S.W.2d at 316. The defendant has the ultimate burden of persuasion to establish the truth of his allegations of purposeful discrimination. Id.
 
Analysis
 
        Disparate treatment is not automatically imputed to every situation where one of the State's reasons for striking a venire member also technically applies to another venire member whom the State did not strike. See Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992); Contreras v. State, 56 S.W.3d 274, 280 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). And even when disparate treatment of venire members with similar characteristics is shown, the record must reflect more than the mere fact that the objectionable characteristic of a stricken juror was also possessed by accepted jurors of a different racial background. See Cantu, 842 S.W.2d at 689. Different jurors may possess the same objectionable characteristics but in differing degrees. Id. Such qualitative distinctions may cause a prosecutor to challenge one juror and not another. Id.
        While jurors twenty-five and twenty-nine both raised their hands when asked whether they had close family members or friends who had been “affected by drugs in their life,” their explanations were different enough so the trial court could reasonably conclude the State did not disparately exercise its peremptory challenges. A cousin that “is addicted” to drugs is a more substantial reason on which to base a peremptory strike than a vague acknowledgment that “friends, neighbor, relative” have some unspecified involvement with drugs. As he indicated in response to appellant's objection, the prosecutor believed juror twenty-five “related it to right now” while juror twenty-nine did not. Under the circumstances of this case, there was sufficient evidence for the trial court to find the State did not disparately exercise its peremptory challenges. Appellant did not meet his burden of showing the State's race-neutral reason for striking juror number twenty-five was pretextual. Based on the record before us, we therefore 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. We overrule appellant's second issue.
Ineffective Assistance of Counsel
        In issues three and four, appellant contends the trial court abused its discretion by denying his motion for new trial and that he received ineffective assistance of counsel. Appellant claimed in his amended motion for new trial that he was denied effective assistance of counsel by his lead trial counsel. Evidence was presented at the motion for new trial hearing on June 24, 2005. Appellant maintains the trial court erred by not granting his motion because the evidence established that counsel's performance fell below an objective standard of reasonableness and it caused him prejudice.
        A trial court is given wide latitude in deciding whether to grant or deny a motion for new trial. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). We review the trial court's decision for an abuse of discretion. Id. A trial court abuses its discretion if its decision is arbitrary or unreasonable. Id. The trial court is the sole judge of the credibility of the witnesses at the hearing on the motion for new trial. Id.
        To prevail on a claim of ineffectiveness of counsel at trial, an appellant must establish by a preponderance of the evidence: (1) that trial counsel's representation fell below an objective standard of reasonableness in that counsel made errors so serious that counsel was not functioning as the reasonably effective counsel guaranteed by the state and federal constitutions, and (2) a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). The appellant must identify the specific acts or omissions that were not the result of professional judgment. Strickland, 466 U.S. at 690; Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). We indulge a strong presumption that defense counsel's conduct falls within the wide range of reasonable, professional assistance--that the challenged actions might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 770-71 (Tex. Crim. App. 1994). To defeat this presumption, “any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). When the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude that counsel's performance was deficient. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Jackson, 877 S.W.2d at 771.
        Background
        Appellant filed both a motion for new trial and an amended motion for new trial. The original motion for new trial, which alleged the verdict was contrary to the law and the evidence, was overruled on May 10, 2005. Shortly thereafter, appellant filed an amended motion for new trial alleging multiple instances of ineffective assistance of trial counsel. Specifically, the amended motion for new trial alleged that lead trial counsel failed to (1) interview witnesses before trial; (2) discuss the facts of the case with appellant and obtain a list of witnesses from him; (3) prepare the witnesses prior to their testimony; (4) visit the crime scene, measure crucial distances, or take photographs; (5) use photographs of the crime scene; (6) properly file a motion which would have prevented appellant's impeachment using his prior convictions; and that he (7) conducted ineffective cross-examination of the police officers. He also claimed counsel made representations that the case would be dismissed. A hearing was held on appellant's motion after which the trial court entered an order denying the amended motion for new trial.
        Concerning appellant's claims of inadequate investigation and trial preparation, both attorneys testified as to their efforts to investigate the case and prepare for trial. As noted previously, appellant's lead counsel testified that over the course of his representation he talked to appellant about the case, spoke to the prosecutor, went to the crime scene, interviewed witnesses, and engaged in discovery. He conceded that he had not “gotten together” with appellant and co- counsel to discuss trial strategy and related matters prior to trial. But he insisted that he was familiar with the facts of the case and prepared for trial: “I had worked on Mr. Pratt's case sufficiently to know the facts. I had investigated the facts. I had talked numerous times to the prosecutor.” He also talked to all of the witnesses whose names appellant provided. He pointed out, however, that appellant was not completely forthcoming with his attorneys and never asked for a specific witness to come to trial.
        Appellant's co-counsel testified that he went to the crime scene, examined photographs of the area, got information from appellant's bail bondsman, who functioned like an investigator on the case, and discussed the “the pros and cons of the case” with lead counsel “four or five times.” He talked to appellant a number of times but he “didn't have a four hour meeting with him.” He would have preferred to continue the April 25th trial setting “[b]ut based on what [lead counsel] had indicated as relates to the witness statements,” he felt comfortable going to trial on that day. Even so, he claimed he ended up doing more than he thought he was going to do.
        Although he would not say lead counsel was unprepared, he felt he “could have been more prepared.” He also said he “would have felt better” if he “had been lead counsel on the case. . . from day one.” During trial, he cross-examined the police officers and thought he “did a real good job on the first officer” but “could have done a little better on the second one.” His overall impression of lead counsel was that “he was a little scattershot.”
        Regarding impeachment and appellant's prior convictions, lead counsel testified that he was familiar with Theus v. State,   See Footnote 3  which discusses the factors for balancing probative value versus prejudicial effect under rule 609. Theus v. State, 845 S.W.2d 874, 880-82 (Tex. Crim. App. 1992). As part of his omnibus pre-trial motion, he included a request that would have allowed appellant “to testify at the guilt/innocence phase of the trial free from impeachment by any and all of his prior convictions that the State has given notice of an intent to use.” He did not recall if the trial judge ever ruled on this motion and believed he may have withdrawn the motion “after consulting with [appellant] who stated that he did not wish to testify at all in this trial.” According to the record, counsel did withdraw the motion at the pre-trial hearing. Counsel defended this action by pointing out that, since appellant told him “he didn't want to testify,” he was “not going to force him to testify.”
        As for the dismissal of the charges, appellant testified at the motion for new trial hearing that his attorneys assured him his case would be dismissed. He claimed co-counsel told him he could get the case dismissed because he was friends with the district attorney and played golf with him. Co-counsel denied promising appellant he would get the case dismissed. However, he “did tell him we were attempting to try to get that done if it could be done.” He also admitted that he was a childhood friend of Malcolm Harden, an assistant district attorney, but denied they played golf or socialized. He recalled talking to Harden about dismissing the charges but could not get him to agree. Lead counsel said he never expected the case to be dismissed because he talked to several assistant district attorneys about dismissing the charges but no one would agree. He also pointed out that appellant rejected several plea offers.
        Analysis
        The record does not show appellant received ineffective assistance of counsel. Beginning with appellant's arguments concerning inadequate investigation or trial preparation, we note that both attorneys went to the scene of the offense, took photographs, spoke to witnesses, and engaged in discovery. While they went to trial sooner than they anticipated, the record does not indicate what negative effect, if any, this had on their trial performance. Co-counsel may have shouldered more of the trial burden than he anticipated, but this does not mean appellant was inadequately represented. On the contrary, the record shows that a number of pretrial motions were filed, including a motion to suppress. The police officers who arrested appellant were extensively cross- examined. Defense witnesses--appellant's sister, his employer, and the woman on whose porch he was sitting the night of his arrest--were called and testified. Furthermore, while both lead and co- counsel clearly tried to persuade prosecutors to dismiss the case against appellant, they insisted they made no promises to appellant. Lead counsel also testified that he withdrew the portion of the pre- trial motion concerning appellant's prior convictions only after consulting with appellant and being assured he did not wish to testify. Considering the totality of the circumstances, we therefore conclude the trial court did not err in denying appellant's motion for new trial for ineffective assistance of counsel based on the grounds asserted in the motion. We decide appellant's third and fourth issues against him.
Eighth Amendment
        In his fifth issue, appellant claims his sixty-year sentence is “grossly disproportionate to the offense” and therefore violates the Eighth Amendment of the United States Constitution, Article one, section thirteen of the Texas Constitution   See Footnote 4  and article 1.09 of the Texas Code of Criminal Procedure.   See Footnote 5 
        The legislature is vested with the power to define crimes and prescribe penalties. Willis v. State, 192 S.W.3d 585, 595 (Tex. App.-Tyler 2006, pet. ref'd). Courts have held that punishment which falls within the limits prescribed by a valid statute is not excessive, cruel, or unusual. See, e.g., Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Willis, 192 S.W.3d at 595. In the present case, appellant was convicted of possessing with the intent to deliver four grams or more but less than two hundred grams of cocaine, which is a first degree felony. See Tex. Health & Safety Code Ann. §§ 481.102(3), (D); 481.112(d) (Vernon 2003). A first degree felony is punishable by 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. Tex. Penal Code Ann. § 12.32 (Vernon 2003). Furthermore, appellant's indictment contained two enhancement paragraphs and the State's proof at trial showed he had been convicted of two felonies, which automatically raised the minimum available punishment to twenty-five years. See id. § 12.42(d). Because appellant's punishment falls within the range set forth by the legislature, his punishment is not prohibited as cruel, unusual, or excessive per se. See Willis, 192 S.W.3d at 595.
        Appellant urges us to follow Solem v. Helm, 463 U.S. 277 (1983), which holds that the proportionality of a sentence is evaluated by considering (1) the gravity of the offense and the harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and (3) the sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at 292. The application of the Solem test has been modified by Texas courts and the Fifth Circuit Court of Appeals in light of the Supreme Court's decision in Harmelin v. Michigan, 501 U.S. 957 (1991), to require a threshold determination that the sentence is grossly disproportionate to the crime before addressing the remaining elements. See, e.g., McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); see also Willis, 192 S.W.3d at 595; Jackson v. State, 989 S.W.2d 842, 845-46 (Tex. App.-Texarkana 1999, no pet.).
        In determining whether appellant's sentence is grossly disproportionate, we are further guided by Rummel v. Estelle, 445 U.S. 263 (1980), where the Court addressed the proportionality claim of an appellant who received a mandatory life sentence under a prior version of the Texas habitual offender statute for a conviction for obtaining $120.75 by false pretenses. Id. at 266. The life sentence was imposed because the appellant also had two prior felony convictions--one for fraudulent use of a credit card to obtain eighty dollars' worth of goods or services and the other for passing a forged check in the amount of $28.36. Id. After recognizing the legislative prerogative to classify offenses as felonies and considering the purpose of the habitual offender statute, the Court determined that appellant's mandatory life sentence did not constitute cruel and unusual punishment. Id. at 285.
        In the present case, appellant's offense is far more serious than the offense committed by the appellant in Rummel, and appellant's sixty-year sentence is less severe than the life sentence upheld in Rummel. It therefore follows that if the sentence in Rummel is not unconstitutionally disproportionate, then neither is the sentence in the present case. Accordingly, since we do not find the threshold test to be satisfied, we will not apply the remaining elements of Solem. See, e.g., Willis, 192 S.W.3d at 597 (forty-year sentence for delivery of four hundred or more grams of cocaine was not grossly disproportionate). Appellant's fifth issue is overruled.
 
Section 12.32
        In his sixth issue, appellant claims section 12.32 of the Texas Penal Code is unconstitutional both on its face and as applied to him. Appellant claims the sentence for a first degree felony--five to ninety-nine years or life--results in arbitrary and capricious imposition of punishment because the statute provides no guidance as to the appropriate level of punishment.
        The Supreme Court has recognized that Texas may exercise its discretion in determining which crimes should be felonies. See Rummel, 445 U.S. at 284. In Texas, the legislature has approved a range of available punishment for first degree felonies. Tex. Penal Code Ann. § 12.32 (Vernon 2003). This statutory range is restricted only by the habitual offender provisions of section 12.42 and the inherent discretion of the trial court to sentence convicted criminals. See Solem, 463 U.S. at 290. No Texas or federal case of which we are aware has held this sentencing scheme unconstitutional, and we decline to do so in this case.
        Appellant cites several death penalty cases to support his argument, but these cases are unpersuasive. See Gardner v. Florida, 430 U.S. 349, 358 (1977) (“death is a different kind of punishment from any other which may be imposed in this country.”); Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (“the death penalty is qualitatively different from a sentence of imprisonment, however long.”). Appellant's reliance on Weems v. United States, 217 U.S. 349, 381 (1910), is also unpersuasive. As the Supreme Court has noted,
 
[g]iven the unique nature of the punishments considered in Weems and in the death penalty cases, one could argue without fear of contradiction by any decision of this Court that for crimes concededly classified and classifiable as felonies, that is, as punishable by significant terms of imprisonment in a state penitentiary, the length of the sentence actually imposed is purely a matter of legislative prerogative.
 
Rummel, 445 U.S. at 274. Appellant's sixth point of error is overruled.
Factual Insufficiency
        In his seventh issue, appellant contends the evidence is factually insufficient to support the conviction. Appellant claims the contrary proof offered at trial outweighs the State's evidence.
        Standard of Review
        In a factual sufficiency review, we consider all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, No. PD-469-05, 2006 WL 2956272, *7 (Tex. Crim. App. Oct. 18, 2006). Before we may reverse for factual insufficiency, we must be able to say the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at *8. Under either a factual or legal sufficiency review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        Affirmative Links
        To support a conviction for unlawful possession of a controlled substance, the State must prove, either directly or circumstantially, that the defendant (1) exercised actual care, custody, or management over the contraband and (2) knew the substance in question was contraband. Tex. Health & Safety Code Ann. § 481.002(38) (Vernon 2003); Porter v. State, 873 S.W.2d 729, 732 (Tex. App.-Dallas 1994, pet. ref'd). When the accused is not in exclusive possession of the place where the contraband is found, we cannot conclude the accused had knowledge of and control over the contraband unless the State establishes an “affirmative link” between the accused and the contraband. Rhyne v. State, 620 S.W.2d 599, 601 (Tex. Crim. App. 1981). In other words, the State must establish that the accused's connection with the substance was more than just fortuitous. Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995). No set formula exists to dictate a finding of affirmative links sufficient to support an inference of knowing possession of contraband. Taylor v. State, 106 S.W.3d 827, 831 (Tex. App.-Dallas 2003, no pet.). It is the “logical force” of the factors, not the number of factors present, that determines whether the elements of the offense have been established. Id.; see also Smith v. State, 176 S.W.3d 907, 916 (Tex. App.-Dallas 2005, pet. ref'd).
        Analysis
        In the present case, a Dallas police officer saw appellant standing by the sidewalk at 1734 Toronto, in Dallas, Texas, dressed in blue mechanics coveralls or overalls. A car would drive up and park, and appellant would approach and enter the car, then exit and go behind a bush and either kneel down or disappear, after which appellant would walk back to the car and give the occupant what was in his hand. The officer saw “between four and five” of what he believed were “hand-to- hand” drug transactions during a five minute period. Behind the bush, in plain view, another officer found a metal “TV tray” with 72 rocks of crack cocaine arranged in “neat rows.” Chemical analysis subsequently revealed a total weight of 5.9 grams of cocaine.
        Appellant points out there is no testimony indicating that money was found either in his possession or at the scene. There was, however, testimony that the Dallas police department does not seize funds under $1,000. Furthermore, there was expert testimony that drug dealers often do not keep their money with them for fear of robbery. Appellant also calls our attention to testimony indicating (1) he had never before been seen selling drugs; (2) he was only outside waiting for his sister to return his car; (3) none of the four or five cars that allegedly drove up to the house and purchased drugs were stopped by the police; (4) another individual, possibly Terrence Lowe or Damian Wafer, had been seen selling drugs that night; and (5) the police were mistaken as to the distances from their vantage point to the porch of the house. Appellant also questions the veracity of the officer's testimony that he saw appellant complete four or five “hand-to-hand” drug transactions in only five minutes. It was within the province of the jury to reconcile these discrepancies in testimony and determine what weight, if any, to give that testimony.
        Viewing all of the evidence in a neutral light, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. Watson, 2006 WL 2956272 at *7. We need not further detail the rest of the evidence. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We conclude the evidence is factually sufficient to support the conviction. We therefore overrule appellant's seventh issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
050688F.U05
 
Footnote 1 In his brief, appellant challenges the trial court's decision under article 35.261 of the Texas Code of Criminal Procedure which codifies the Batson decision and directs the trial court to dismiss the array if the prosecutor exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race. Tex. Code Crim. Proc. Ann. art. 35.261(a) (Vernon 1989). However, we find appellant waived this argument by failing to make an objection in the trial court specifically referencing article 35.261. See Camacho v. State, 864 S.W.2d 524, 527-28 (Tex. Crim. App. 1993). Appellant also cites Tex. Const. art. I, §§ 10, 15, but offers no reason for construing the Texas Constitution as conferring any greater protection than the federal constitution. Therefore, we will not address his state constitutional argument. See Muniz v. State, 851 S.W.2d 238, 251-52 (Tex. Crim. App. 1993) (holding that failing to provide a rationale for interpreting the state constitution more broadly than the federal constitution will forfeit error on the state ground) (citing Heitman v. State, 815 S.W.2d 681, 690-691 n. 23 (Tex. Crim. App. 1991) (explaining that state and federal constitutional claims should be argued in separate grounds providing a separate substantive analysis or argument for each ground)).
Footnote 2 Although the trial court did not formally find the defense made a prima facie case, it is well-settled that once the State offers an explanation for striking a contested panelist and, as in this case, 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. The prosecutor's explanations, not the prima facie showing, are reviewed by the appellate court. 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)).
Footnote 3 In the amended motion, appellant claimed that, although his prior convictions were more than ten years old, counsel failed to file a motion that would have allowed him to testify free from impeachment as provided in Theus.
Footnote 4 We conclude that we need not address appellant's Texas constitutional claims. Appellant offers no argument or authority concerning the protection afforded by Tex. Const. art. I, § 13 or how it differs from the protection afforded by the United States Constitution. See, supra, footnote one. State and federal constitutional claims should be argued in separate grounds, with separate substantive analysis or argument provided for each ground. Muniz, 851 S.W.2d at 251; Heitman, 815 S.W.2d at 690-91 n.23.
Footnote 5 Tex. Code Crim. Proc. Ann. art. 1.09 is a codification of Tex. Const. art. I, § 13, and provides that “[e]xcessive bail shall not be required nor excessive fines imposed nor cruel and unusual punishment inflicted.”