DAVID LEWIS GREEN, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED as MODIFIED; Opinion Filed July 2, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00397-CR
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DAVID LEWIS GREEN, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F04-41302-QK
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OPINION
Before Justices FitzGerald, Lang-Miers, and Mazzant
Opinion By Justice Lang-Miers
        Appellant was convicted of capital murder and sentenced to life in prison. Appellant raises eight issues on appeal. In his first issue, appellant argues that the trial court erred in refusing to submit an instruction to the jury on the lesser-included offense of murder. In his second through fifth issues, appellant argues that the evidence was factually insufficient to support a capital-murder conviction. In his sixth issue, appellant argues that he has been denied an adequate appellate record because the record does not include questionnaires from three of the five prospective jurors who were the subject of his Batson challenge. In his seventh and eighth issues, appellant argues that the trial court erred in overruling his Batson challenge to the State's peremptory strikes of four prospective jurors. In a cross-point, the State asks us to modify the judgment to correct a clerical error. We sustain the State's cross-point, overrule appellant's issues, and affirm the trial court's judgment as modified.
Factual Background
 
        The victim, Janeen Read, owned a house in Mesquite, which she shared with three roommates: her boyfriend, Charles Taylor; his brother, David Taylor; and Tim Bankert. All of them had been friends for years. Appellant lived down the street with his family. Charles and David had known appellant for twenty years, but had lost contact with him. After they realized they were neighbors, appellant would come over “a few times a week” to visit Charles and David.
        Janeen was murdered early on a Sunday morning, sometime after midnight. Appellant had been at Janeen's house on the Friday before her murder. Charles told appellant that he was going on a weekend fishing trip with Tim and that his brother David had to work. Charles told appellant that Janeen was going to a concert.
        On the day before her murder, Janeen attended an all-day concert with her coworker, Ghada “Mona” Fanous. Mona and Janeen drove to the concert in Janeen's truck. The concert ended around 11:00 p.m., and they went straight back to Janeen's house. They parked in the driveway behind the house, walked through the garage, and entered the house through the door in the garage that led into Janeen's bedroom. They walked through Janeen's room into the den where Janeen's roommate David and his friend Kinda Taylor were watching television. Charles and Tim were not home; they were on an overnight fishing trip. Mona and Janeen sorted through their bag of concert souvenirs and Mona left. Kinda left a short time later, and David locked the front door behind her. Janeen and David talked for a few minutes, and Janeen told David she was going to take a shower and go to bed. David heard the shower running and “doze[d] off.” After her shower, Janeen woke David up and they talked for five or ten more minutes. Janeen said she was going to bed and closed her bedroom door. David went to bed and closed his door.         David's bedroom was next to Janeen's bedroom. By the time Janeen returned from the concert, David had been awake for more than twenty hours and had consumed three or four beers and smoked marijuana. He slept with a radio on and a fan turned up high because he “ha[s] to have noise” when he sleeps.
        When David woke up around 9:30 a.m., nothing was out of place inside the house and Janeen's door was still closed. Around 10:00 a.m., Charles and Tim returned from their overnight fishing trip and parked in the back of the house. Charles put away his fishing gear and entered the house through the door inside the garage that led into Janeen's bedroom, which was cracked open. He discovered her body lying sideways on the bed with her legs hanging over the edge; her t-shirt was pulled up above her chest and she was naked from the waist down. Charles “started screaming that Janeen was dead.” He placed a comforter over Janeen so that David and Tim would not see her nude body. They came to her room, “stashed the marijuana pipes and stuff that were in the house” because they did not “want Janeen's parents to know,” and then called the police.
        The police arrived and took Janeen's roommates to the police station where they questioned them separately. The three men were very cooperative and voluntarily gave written statements, fingerprints, DNA samples, and names of other people who had been in the house.
        Officer Jeff Smith is the crime-scene investigator who investigated the scene of Janeen's murder. He testified that they found Janeen's body on her bed, that there was a lot of blood on the bed and “her hair was soaked in blood.” The largest concentration of blood “was near the footboard and on the large pillow that was at the footboard of the bed.” Officer Smith collected physical evidence and fingerprints from the crime scene. Three of the fingerprints he collected were located on the footboard of Janeen's bed and “looked to be three fingers side by side, simultaneously placed on the bed.” He testified that the prints were found on the footboard in a position that would have required the person leaving the prints to “have had their back to the headboard” of the bed. The fingerprints “were on top of the top rail as if it was used for a brace or something.” Officer Smith testified that those prints “sent up a red flag for [him]” because they were “oriented over the concentration of blood where the victim probably died.” Officer Smith identified State's exhibit 30 as a photograph of “a lamp that's been knocked over on the end table, which would be on the left side of the bed.” The lamp “indicated that a struggle had taken place in that room” because the rest of the house “was immaculate, very clean.” Officer Smith testified that when he observed Janeen's body, his “first thought was that the victim had probably been raped” because “[t]he body was positioned with her legs hanging off the bed. But, also, her shirt was pulled up, exposing her breasts. And her panties had been pulled off and were laying on the floor directly under her feet.” He found a used tampon on the floor under the bed, which he described as “highly irregular” because it was otherwise “the cleanest house” in which he had “ever worked a crime scene.” Officer Smith and a person from the medical examiner's office saw wounds on Janeen's head. Officer Smith did not determine what weapon caused those injuries, but when asked whether the footboard of Janeen's bed could have caused them, Smith answered “[a]bsolutely.”
        Officer Smith also testified that he was present when the medical examiner performed the autopsy, which included “a rape kit.” During the autopsy, the medical examiner combed Janeen's pubic hair and located “a foreign hair.” The medical examiner also clipped Janeen's fingernails. Smith submitted the foreign hair and fingernail clippings for DNA testing. Officer Davis testified that in his opinion the location of a foreign pubic hair in Janeen's pubic hair was evidence of sexual assault, and that if someone “didn't complete” a sexual assault, it would be possible that no evidence of seminal fluid would be left.
        Dr. Reade Quinton, a medical examiner for Dallas County, performed the autopsy on Janeen. He testified that “there were blunt-force injuries, predominantly on the head, and a few on the upper chest and shoulders and the extremities. The second major group of findings consisted of injuries consistent with strangulation-type injuries.” He testified that Janeen's injuries were consistent with a possible struggle and the injuries around her neck were consistent with strangulation by hand. He also testified that he did not identify any bruising or tearing around Janeen's vagina, but he explained that
 
the area in question, when you're talking about the vaginal vault, is constructed for trauma. We don't normally refer to normal sexual practices as being traumatic, but it is a traumatic type of event. So the fact that there's no visible trauma doesn't necessarily mean that something did or did not happen. It just means we didn't see any evidence of it.
 
        Officer Kelly Davis was the lead investigator assigned to investigate Janeen's murder. The police asked Janeen's roommates to identify everyone who had been in Janeen's house. Several people, including friends and family of Janeen and her roommates, contacted police and were interviewed and fingerprinted.
        Officer Davis went to appellant's house to question him after speaking with Janeen's neighbors and David. Appellant first told Officer Davis that on the night of Janeen's murder he was “at a friend named Martin's and, after being at Martin's, he went to a friend's named Toby.” But when Officer Davis asked appellant to “go over it one more time with me,” “suddenly he [appellant] went to Toby's first and then he went to Mark's [sic]. He flip-flopped his story on me.” Appellant did not identify Martin's last name, so Officer Davis was not able to question Martin. Appellant told Officer Davis that Toby's last name was Stribling, and Officer Davis went to see her. She told him, and also testified at trial, that on the night of Janeen's murder she and her daughters spent the night at Toby's mother's house, and that appellant was not with them.
        Officer Davis asked Officer Smith to compare the fingerprints he collected from appellant to the prints found on the footboard of Janeen's bed. After police determined that the prints matched, they got a search warrant to search appellant's house. Officer Smith executed the search warrant. He noted that appellant's house was down the street from Janeen's house, and that the same alley ran along the back of both houses. He found a trash bag in appellant's room containing “a large light blue denim-type, button-down shirt with the sleeves missing and some other clothing” and noticed blood stains on the front of the shirt.
        Officer Smith also conducted a search “on the person of David Green, the defendant.” Officer Smith collected appellant's DNA through a buccal swab, collected samples of appellant's head hair and pubic hair, and “clipped [appellant's] fingernails and kept those as well.”
        Michael Villarreal, a forensic chemist, tested the hair samples gathered at the crime scene, during Janeen's autopsy, and from appellant. He testified that one of the pubic hairs recovered from Janeen's pubic hair combing was “microscopically similar to the submitted hair from the suspect.” Another pubic hair recovered from a heating pad on Janeen's bed was “also microscopically similar to the suspect[']s known pubic hair standards.” Another pubic hair found on Janeen's comforter was also “microscopically similar to the known pubic hair standards from the suspect.” All of the remaining hairs recovered from the crime scene and autopsy were “visibly similar to the victim's hair standards.” Villarreal's conclusions were “verified by a second qualified examiner.” Villarreal testified that microscopic testing of hairs can only be used to compare one hair to another, it cannot be used “to make identification of people.” He explained that “the only way to determine whether or not it originated from that person would be to take it a step further and do some sort of DNA, whether it's nuclear DNA or mitochondrial DNA, depending on the root status.” On cross-examination, appellant's counsel asked Villarreal if he “later learn[ed] that the DNA testing showed that the pubic hair from the heading [sic] pad and from the comforter was from the victim,” and Villarreal answered, “No, sir. I haven't really been told any results of the further testing.”
        Amber Moss, a forensic analyst, tested some of the trace evidence found on the evidence collected at appellant's house, at the crime scene, and during the autopsy. She testified that no seminal fluid was detected on any of the evidence tested for the presence of semen. Janeen's DNA   See Footnote 1  was identified in the six stains found on the blue shirt collected from appellant's house, and appellant “is identified as the contributor of the DNA found in the deduced profile from the right hand fingernail clippings from Janeen Read, [and] the predominant DNA profile   See Footnote 2  from the hair from the victim's pubic hair combings.” She testified that appellant can also “be included as a possible contributor to the DNA found in the mixed profile from the left hand fingernail clippings from Janeen Read.” During cross-examination by appellant's counsel, Moss agreed that DNA testing cannot determine the date or time that DNA was placed on a piece of evidence. She also agreed that material can remain under fingernails for several days, depending on “other factors that are present, you know, [such as] the length of the nail, how often you wash your hands, how much you scrub your fingernails, and how often you shower.”
        Appellant testified in his defense. He testified that one day sometime during the two months before Janeen was murdered, he went to Janeen's house and drank and smoked marijuana with Janeen and her roommates. Appellant returned to his parents' house to work on a fishing boat parked behind the house. Appellant testified that Janeen drove by in her pickup truck and they began talking, so he asked her to pull into the driveway behind his parents' house. Appellant testified that he and Janeen then had consensual sex in her truck. He explained to the jury, “I have an ego. I think I'm just sort of a ladies' man. [ ] We were talking and one thing lead to a couple of kisses, and, the next thing you know, we were having sex in her truck.” He explained,
 
We were sitting in the seat and we were kissing and I pulled her on top of me. She climbed on top over me, and we were having intercourse for about ten minutes. [ ] Then she went on her cycle. [ ] I thought maybe she was just having a nice orgasm or something. She went on her cycle, and I noticed I had blood all over me.
 
Appellant testified that he “had this blue shirt on that you have here as evidence,” and that he and Janeen used it to clean themselves off. Appellant testified that Janeen apologized and offered to take his shirt home and wash it. Appellant testified that Janeen returned appellant's shirt the next day, apologized again, and offered to buy him a new one. Appellant testified that he also had consensual sex with Janeen in her truck on the Thursday prior to her murder. Appellant testified that Janeen told him “that was our little secret.”
        Appellant testified that he had been in Janeen's bedroom “more than a half a dozen of times.” His counsel asked him whether he ever touched Janeen's footboard and he answered “[s]everal times . . . [p]robably every time I walked through there, I touched it.” He testified that he thinks he touched the footboard on the Friday before Janeen's murder when he went to visit Charles. He testified that he was afraid of Janeen's dog, a German Shepard mix, and “would never go over there without one of them being there in that house with that dog.” He testified that he spoke to Toby Stribling on the morning before Janeen's murder, and that in the afternoon he drove to Toby's house and waited for her, but she never appeared. Appellant testified that at approximately 8:30 p.m., he drove to an apartment in Garland “to see some Hispanic males. One was named Martin and one was named Cooky.” He did not know their last names. There were “about seven, eight, or nine guys hanging out” there, and he drank with them until 5:15 a.m. Appellant testified that he went next to the home of his “sister in law, Doris” to “sleep it off” before driving home and that he left her apartment at approximately 6:30 a.m. and went to his parents' house.
        He testified that when he first talked to police he did not mention that he had had sex with Janeen because he “didn't feel the need to tell them that” and did not want to “ruin her name.” When the State questioned him about the multiple blood stains on his blue shirt, he again explained that he and Janeen used it to wipe her blood off of them after they had consensual sex. He agreed with the prosecutor, however, that some of the stains were drops of blood, not smears. He explained that he touched the footboard of Janeen's bed each time he walked through because he's “a big person.” The prosecutor asked him, “Why would you touch the footboard of the bed when you were just walking straight through to the door [leading to the garage]? It's not even on the path.” Appellant responded, “There's no special reason. I don't know.” He said his fingerprints were found on the footboard of the bed because he sat on the footboard one time and “had one hand on the-on the board.” The prosecutor asked appellant, “Wouldn't the chest in front of the bed get in the way?” Appellant agreed that there was a chest in front of the bed but stated that he leaned over it because he is a tall person.
        He testified that on the night of Janeen's murder he drank “seven or eight beers and a couple of shots-a few shots,” but he denied being in Janeen's house that night. The prosecutor asked appellant why his brother told the police that appellant was home at his parents' house on the night of Janeen's murder. Appellant responded, “He may not have remembered. I don't know. I didn't know he told them that.”
        Appellant called Doris Jean Walker, his ex-sister-in-law, as a witness. She testified that appellant came to her apartment in North Dallas at approximately 5:15 a.m. one Sunday morning in the month of Janeen's murder, but she could not recall which Sunday. She testified that appellant's visit was “unexpected” and that she had never seen him before at “that time of night.” She testified that when he arrived she noticed alcohol on his breath. Appellant told her “he had just come from a party in Arlington and had a few drinks and he needed to sleep it off before he drove back to Mesquite.” During the State's questioning, the prosecutor showed Doris “a map showing the relevant portions of the metroplex area” and asked her where her apartment was located in relation to the City of Arlington and to appellant's house in Mesquite. The State then asked Doris, “From Arlington to his home in Mesquite, would it actually have been probably a shorter distance for him to just have driven on home than to drive up here to your house?” and Doris answered, “Yes, sir.” Appellant's counsel asked Doris, “Is it possible he told you Garland instead of Arlington?” Doris responded, “That I can remember, he did say Arlington.”
        Appellant's father testified in appellant's defense. He testified that appellant was not at home on the night of Janeen's murder-that he left the house “sometime around 7 to 7:30” p.m. on Saturday and did not return until around 7:00 a.m. on Sunday morning. He also testified that he did not know Janeen but that he saw her behind his house in a truck talking to appellant.
 
Issues on Appeal
 
Lack of Jury Instruction on Lesser-Included Offense of Murder
 
        Appellant was charged with capital murder for intentionally killing Janeen with a deadly weapon while committing or attempting to commit aggravated sexual assault. In his first issue, appellant argues that the trial court erred by denying his request for a jury instruction on the lesser- included offense of murder. Appellant claims that the record contains evidence from which the jury could have reasonably determined that Janeen's death was not caused during a sexual assault or attempted sexual assault and/or was unintentional. In response, the State argues that the trial court did not err when it refused to instruct the jury on the offense of murder because the evidence did not support that instruction. A.        Applicable Law
        Texas courts use a two-pronged test to determine if a charge on a lesser-included offense is required. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993) (citing Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981)). First, the courts determine whether the lesser- included offense is included within the proof necessary to establish the offense charged. Rousseau, 855 S.W.2d at 672-73. Second, the courts determine whether some evidence exists in the record that would permit a rational jury to find that if the defendant is guilty, he is guilty only of the lesser offense and not the greater offense. Rousseau, 855 S.W.2d at 672-73. “[I]n determining whether the second prong has been met, it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted.” Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003).
        We review the trial court's decision regarding a lesser-included-offense charge under an abuse-of-discretion standard. Dobbins v. State, 228 S.W.3d 761, 768 (Tex. App.-Houston [14th Dist.] 2007, pet. dism'd). B.        Analysis
        The parties agree that the first part of the two-pronged test has been met in this case because murder is a lesser-included offense of capital murder. See, e.g., McKinney v. State, 207 S.W.3d 366, 370 (Tex. Crim. App. 2006). If Janeen was not murdered during the commission or attempted commission of aggravated sexual assault, or if her death was not caused intentionally, appellant would not be guilty of capital murder under the penal code. See generally Tex. Penal Code Ann. § 19.02, .03 (Vernon 2003 and Supp. 2007). Consequently, we must determine whether, under the second prong, some evidence exists for a rational jury to find that appellant was guilty only of murder. Rousseau, 855 S.W.2d at 673.         The penal code enumerates alternative definitions for the offense of murder.   See Footnote 3  Appellant argues that the jury could have found him guilty only of murder instead of capital murder because the State's evidence was “at best dubious as to the occurrence of a sexual assault or attempted sexual assault” and “the State did not prove a specific intent to kill.” We address these two arguments separately.
 
 
1.
 
Evidence of Sexual Assault
 
        Appellant first argues that the evidence would have permitted a jury to have found appellant guilty only of the lesser-included offense of murder because the State's case “was based upon the mere fact that [Janeen] was found on her bed partially nude, with her underwear soiled and her shirt pulled up.” Appellant argues that this does not prove the occurrence of a sexual assault or attempted sexual assault because “there was no evidence of penetration, nor was any semen or seminal fluid found. Moreover, there was no sexual paraphernalia found or anything else to indicate a sexual motivation for an assault.” Appellant also argues that “there was no testimony to specifically indicate” that he “might have perpetrated a sexual offense” against Janeen “or even had any motive to do so.” We disagree.
        The undisputed evidence in this case demonstrates that Janeen's body was found with her underwear pulled off and lying on the floor and her shirt pulled up exposing her breasts. The blood evidence on the mattress and the final position of her body also demonstrate that Janeen was struck repeatedly with a deadly weapon before her body was moved to the side of the bed with her legs hanging off the bed in a position that would appear to facilitate a sexual assault. Janeen's bloody tampon had been removed and thrown on the floor in her otherwise “immaculate” house. Appellant's pubic hair was found in Janeen's pubic hair combings.
        The trial court is not required to submit an instruction on the lesser-included offense of murder simply because the jury could have disbelieved the evidence pertaining to the sexual assault element of the greater offense of capital murder. See Hampton, 109 S.W.3d at 441 (to warrant jury instruction on lesser-included offense, “it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense”). Additionally, appellant contends that he played no role in Janeen's murder, not that he killed her but did not sexually assault her. And “[e]vidence that shows no offense occurred at all is not adequate to raise the issue of a lesser-included offense, and a charge on a lesser-included offense is not required in that situation.” Smith v. State, 187 S.W.3d 186, 196 (Tex. App.-Fort Worth 2006, pet. ref'd) (citing Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001)).
        Consequently, we conclude that there is no evidence from which a jury could rationally find that appellant was guilty of murdering Janeen, but not guilty of committing or attempting to commit aggravated sexual assault during that crime. See generally Rousseau, 855 S.W.2d at 673 (evidence of lesser offense must be sufficient for rational jury to find defendant guilty only of lesser offense and not greater offense).
 
 
2.
 
Evidence of Intent
 
        Appellant further argues that the evidence presented would permit a jury to have found appellant guilty only of the lesser-included offense of murder because even if “the evidence presented was enough for the jury to find sexual assault or attempted sexual assault, a specific intent to kill was not proved in this case.” Appellant argues that, “while the medical examiner testified that the manner of death was a homicide, caused by strangulation and blunt force trauma, no evidence was offered to prove that the homicidal violence was necessarily knowing and intentional.” He argues that “there was nothing to indicate that the death did not occur from some mishap or misjudgment.” In short, appellant apparently contends that the jury could have found that he unintentionally killed Janeen during the course of committing or attempting to commit aggravated sexual assault. See Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004) (felony murder is unintentional murder committed in the course of committing a felony). We again disagree.
        “A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.” Tex. Penal Code Ann. § 6.03(a). Intent is almost always proven by circumstantial evidence. Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Meyers, J., concurring) (citing Robles v. State, 664 S.W.2d 91, 95 (Tex. Crim. App. 1984)). A jury may infer intent from any facts that tend to prove its existence, including the method of committing the crime and the nature of wounds inflicted on the victim. Id. (citing Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991)). If a deadly weapon is used in a deadly manner, the inference is almost conclusive that the defendant intended to kill. Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App. 1993).
        It is undisputed that Janeen suffered multiple severe wounds from which she bled profusely, including blunt-force injury to her head, and that she suffered petechial hemorrhaging as a result of being strangled. There is no evidence that these injuries are consistent with a “mishap or misjudgment.” Moreover, it is undisputed that appellant weighed 390 pounds at the time of trial,   See Footnote 4  and that Janeen weighed approximately 100 pounds at the time of her murder. The difference in size between appellant and Janeen also constitutes evidence of intent. See, e.g., Sadler v. State, 364 S.W.2d 234, 237 (Tex. Crim. App. 1963) (“the jury had, in this case, evidence from which they found an intention to kill, considering the relative size, weight and strength of the parties”-because male defendant, over 6 feet tall weighing 190 pounds, killed female 5 feet tall weighing 90 to 100 pounds, by hitting her face and head with his hands and fists); Martin v. State, 246 S.W.3d 246, 264 (Tex. App.-Houston [14th Dist.] 2007, no pet.) (difference in size “contributes to a showing of intent”).
        Additionally, the trial court is not required to submit an instruction on the lesser-included offense of murder simply because the jury could have disbelieved the evidence pertaining to the intent element of the greater offense of capital murder. See, e.g., Hampton, 109 S.W.3d at 441. And appellant testified that he was not involved in Janeen's murder, not that he did not intend to kill her. See Smith, 187 S.W.3d at 196.
        Consequently, we conclude that there is no evidence from which a jury could rationally find that appellant committed or attempted to commit aggravated sexual assault but did not intend to cause Janeen's death in the course of that crime. See Rousseau, 855 S.W.2d at 675. We overrule appellant's first issue.
 
Factual Sufficiency of the Evidence
 
        In his second through fifth issues, appellant argues that there was insufficient evidence that he “(1) was the perpetrator of the alleged offense, (2) possessed the specific intent to kill by striking [Janeen], (3) possessed the specific intent to kill by strangling [Janeen], and (4) killed [Janeen] during the course of a sexual assault or attempted sexual assault.”
A.
 
Applicable Law
 
        A person commits the offense of capital murder if the person intentionally causes the death of an individual in the course of committing or attempting to commit aggravated sexual assault. Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2007). A person commits aggravated sexual assault if the person uses or exhibits a deadly weapon in the course of committing a sexual assault. Id. § 22.021(a)(2)(A)(iv). Body parts, such as hands and knees, may be deadly weapons based on their manner of use or intended use and their capacity to produce death or serious bodily injury. Turner v. State, 664 S.W.2d 86, 90 (Tex. Crim. App. [Panel Op.] 1983); Petruccelli v. State, 174 S.W.3d 761, 770 (Tex. App.-Waco 2005, pet. ref'd); Gillum v. State, 888 S.W.2d 281, 288 (Tex. App.-El Paso 1994, pet. ref'd).
B.
 
Standard of Review
 
        In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S. Ct. 282 (2007);Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a judgment on a factual-sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417. In a factual-sufficiency review, we are permitted to substitute our judgment for the jury's when considering credibility and weight determinations, but only to a very limited degree. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (factual-sufficiency jurisprudence requires appellate court to afford due deference to jury's determinations), cert. denied, 128 S. Ct. 87 (2007). Unless the record clearly reveals that a different result is appropriate, we must defer to the fact-finder's determination concerning what weight is to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000). We measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Wooley v. State, No. PD-0861-07, 2008 WL 2512843, at *6 (Tex. Crim. App. June 25, 2008).
C.
 
Analysis
 
        Appellant combines his issues two through five in one argument. First, he argues that the evidence is factually insufficient to prove his identity as the perpetrator because it demonstrates only that he was in Janeen's house before she was murdered and that they had intimate contact. He also argues that “other testimony presented showed” that he “was, indeed, elsewhere that weekend.” Second, he argues that there was insufficient evidence of intent to kill because Janeen was menstruating when her body was found and the blood in her bedroom “could have originated from the menstruation process.” Appellant argues that his description of how Janeen's blood ended up on his shirt “is certainly not outlandish or unreasonable” and that “the presence of one person's blood on an intimate friend's clothing is not enough to make out an offense.” He also argues that “[t]he simple fact that [Janeen's] death resulted from homicidal violence does not, in and of itself, mean that she was knowingly and intentionally murdered.” Third, appellant argues that there was insufficient evidence of a sexual assault because there was no evidence of penetration or semen, and “[t]here was no sexual paraphernalia found or anything else to indicate a sexual motivation for an assault.” We disagree.
        We conclude that the evidence is factually sufficient to prove appellant's identity as the perpetrator. Janeen's pubic hair was trimmed short,   See Footnote 5  and she showered right before she went to bed. Appellant's pubic hair was found in Janeen's pubic hair combings, and appellant's DNA was found under Janeen's fingernail. And appellant's fingerprints were found on the footboard of Janeen's bed near the highest concentration of blood. Consequently, the evidence was not so obviously weak that appellant's conviction is clearly wrong and manifestly unjust, nor does the great weight and preponderance of the evidence contradict the jury's verdict.
        We further conclude that the evidence is factually sufficient to prove that appellant intentionally killed Janeen by striking her with a deadly weapon or choking her. A jury may infer intent from any facts that tend to prove its existence, including the method of committing the crime and the nature of wounds inflicted on the victim. Manrique, 994 S.W.2d at 649. And if a deadly weapon is used in a deadly manner, the inference is almost conclusive that the defendant intended to kill. Adanandus, 866 S.W.2d at 215. In this case, the crime-scene photographs and video admitted into evidence demonstrate that Janeen suffered multiple severe wounds from which she bled profusely, and that she suffered petechial hemorrhaging as a result of being strangled. Moreover, and as we noted previously, the difference in size between appellant and Janeen also constitutes evidence of intent. See, e.g., Sadler, 364 S.W.2d at 237; Martin, 246 S.W.3d at 264. Consequently, the evidence was not so obviously weak that appellant's conviction is clearly wrong and manifestly unjust, nor does the great weight and preponderance of the evidence contradict the jury's verdict.
        We also conclude that the evidence is factually sufficient to prove Janeen was killed during the course of a sexual assault or attempted sexual assault. The undisputed evidence in this case demonstrates that Janeen's body was found with her underwear pulled off and lying on the floor and her shirt pulled up exposing her breasts. The blood evidence on the mattress and the final position of her body also demonstrate that Janeen was struck repeatedly with a deadly weapon before her body was moved to the side of the bed with her legs hanging off the bed in a position that would appear to facilitate a sexual assault. Janeen's bloody tampon had been removed and thrown on the floor in her otherwise “immaculate” house. Appellant's pubic hair was found in Janeen's pubic hair combings. Consequently, the evidence was not so obviously weak that appellant's conviction is clearly wrong and manifestly unjust, nor does the great weight and preponderance of the evidence contradict the jury's verdict.
        We overrule appellant's second, third, fourth, and fifth issues.
 
Missing Questionnaires from Prospective Jurors
 
        In his sixth issue, appellant argues that he is entitled to a new trial because questionnaires from three of the five prospective jurors who were the subjects of the State's peremptory strikes and appellant's Batson challenge could not be located.
A.
 
Facts Relating to the Missing Questionnaires
 
        After appellant filed his appeal, his counsel filed a motion in this Court to supplement the appellate record with the juror questionnaires. We granted his motion and issued a subsequent order requiring the trial court to conduct a hearing and issue findings of fact in connection with the questionnaires.   See Footnote 6  In response to our order, the trial court issued findings of fact indicating that “questionnaires relating to 57 [prospective] jurors from the venire of 65 [prospective] jurors in this case” were located. The trial court also found that “questionnaires from seven members of the venire are missing” and that one questionnaire “is not available” for an eighth prospective juror because that person did not report for jury duty.
        Three of the seven missing questionnaires were from prospective juror numbers nine, eleven, and fifteen-three of the four prospective jurors whose peremptory strikes are the subject of appellant's seventh and eighth issues addressed below.   See Footnote 7 
B.
 
Analysis
 
        Appellant cites Texas Rule of Appellate Procedure 34.6(f) and argues that, because these questionnaires are missing, the appellate record in this case “is in a similar posture to a record which is lost or destroyed.” We disagree.
        An appellant may be entitled to a new trial pursuant to rule 34.6(f) “if, without the appellant's fault, a significant exhibit . . . has been lost or destroyed.” Tex. R. App. P. 34.6(f)(2). But in this case, the questionnaires at issue were never made “exhibits” in the trial court. And we cannot say that the questionnaires are missing “without the appellant's fault,” because appellant did not ask the trial court to admit the questionnaires into evidence.   See Footnote 8 
        More importantly, however, an appellant is only entitled to a new trial if “the lost or destroyed exhibit is necessary to the appeal's resolution.” Tex. R. App. P. 34.6(f)(3) (emphasis added). In this case, appellant did not dispute the State's characterization of the contents of those questionnaires at the time they were discussed as a basis for its strikes, and does not do so here.   See Footnote 9  Consequently, the missing questionnaires themselves would essentially be cumulative of the State's descriptions about them. Cf. Lindsay v. State, 102 S.W.3d 223, 230 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd) (“When a trial judge excludes cumulative evidence, it is harmless error.”). Based on this record, and as demonstrated by our analysis below, we conclude that the missing questionnaires are not necessary to resolve this appeal. See Tex. R. App. P. 34.6(f)(3).
        We overrule appellant's sixth issue.
Appellant's Batson Challenge
 
        In his last two issues, appellant challenges the trial court's decision to overrule his Batson challenge in response to the State's peremptory strikes of prospective jurors number two, nine, eleven, and fifteen.   See Footnote 10  In his seventh issue, appellant argues that the trial court's decision was clearly erroneous because the court did not “explor[e] the substance” of his counsel's rebuttal arguments or conduct “a disparate treatment comparison of the juror questionnaires.” In his eighth issue, appellant argues that the trial court's decision to overrule his Batson challenge was clearly erroneous because appellant established purposeful discrimination.
A.
 
Facts Relating to the Batson Challenge
 
 
 
At the conclusion of the voir dire, appellant's counsel raised a Batson challenge, as follows:
Your Honor, I would like to raise a Batson hearing at this time. For the record, my client is an African-American black male. On the jury panel, the number of Cause and Agreed strikes ran through Juror No. 44, and of the State's ten strikes, five were
 
        made on African-Americans, four of them black males and one black female.
 
Appellant's counsel then identified the black female as prospective juror number fifteen, and the four black males as prospective jurors number two, nine, eleven, and twenty-one.   See Footnote 11  The trial court found that appellant had made a prima facie showing of discrimination and asked for the State's response.
        The prosecutor stated that he struck each of those prospective jurors because of concerns raised by specific answers and blanks in their questionnaires and because of a statement one of them made during voir dire. In response, appellant's counsel made the following statement to the trial court:
 
Your Honor, I would respond as to Juror No. 2, there has been no reason given at that point other than the fact that he said he didn't understand some of the questions that were made. The issues about No. 11 and No. 15 leaving the questionnaires blank, there are a number of questionnaires that were submitted that were blank that are now members of this jury, so I would say to the Court that at least-proper explanation has not been given for 9, 11, and 15. And I would argue 2 as well.
 
Appellant's counsel did not question the prosecutor, did not challenge the accuracy of his description of the contents of the questionnaires, did not present the questionnaires to the court for review or comparison, did not ask the trial court to admit the questionnaires into evidence, and did not introduce any other evidence to demonstrate purposeful discrimination.         The trial court found that the State's reasons were “race neutral” and overruled appellant's
objections to the State's peremptory challenges.
B.
 
Applicable Law
 
        The Texas Code of Criminal Procedure prohibits the use of peremptory challenges to exclude prospective jurors on the basis of race. Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 2006). Additionally, striking a prospective juror on the basis of race violates the equal protection guarantees of the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 85 (1986).
        When one party believes that the other party has used its peremptory strikes to exclude prospective jurors for reasons based on race, the party makes what is commonly called a “Batson challenge” or a “Batson motion.” A Batson challenge can be raised by any party, including by a criminal defendant in response to the prosecutor's peremptory strikes.
        Resolution of a Batson challenge raised by a defendant is a three-step process:
 
First, the defendant must make a prima facie case that a [prospective juror] was peremptorily excluded on the basis of race. Next, the prosecution must come forward with race-neutral reasons for the peremptory strike. Finally, the defendant has the opportunity to rebut the State's explanations. The burden of persuasion remains with the defendant to prove purposeful discrimination. In Purkett v. Elem, the United States Supreme Court explained that “unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.”
 
Shuffield v. State, 189 S.W.3d 782, 785 (Tex. Crim. App. 2006) (internal citations omitted). In order to prevail on a Batson challenge, the defendant must persuade the trial court by a preponderance of the evidence that the allegations of purposeful discrimination are true. Williams v. State, 767 S.W.2d 872, 874 (Tex. App.-Dallas 1989, pet. ref'd). A defendant does not meet this burden by merely disagreeing with the State's explanation for its strike. Webb v. State, 840 S.W.2d 543, 544 (Tex. App.-Dallas 1992, no pet.).
 
C.
 
Standard of Review
 
        We examine a trial court's ruling on a Batson challenge under the “clearly erroneous” standard of review. Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). That standard “is a highly deferential standard because the trial court is in the best position to determine whether [the State's] facially race-neutral explanation for a peremptory strike is genuinely race-neutral.” Id.
        When we evaluate the State's explanations for its strikes, we focus on the genuineness, rather than on the reasonableness, of the State's asserted race-neutral reason. Id. at 533-34. In evaluating the genuineness of the explanations, we may consider many factors, including whether prospective jurors with the same or similar characteristics as the challenged prospective juror were not stricken, and whether the State meaningfully questioned the challenged prospective juror. See Watkins v. State, 245 S.W.3d 444, 448-49 (Tex. Crim. App. 2008), petition for cert. filed, --- U.S.L.W. --- (U.S. May 13, 2008) (No. 07-11037) ; Williams v. State, 804 S.W.2d 95, 105-06 (Tex. Crim. App. 1991). We may consider the entire record of voir dire to determine whether there is clear error. Watkins, 245 S.W.3d at 448. We are not limited to arguments or considerations that the parties specifically called to the trial court's attention so long as those arguments or considerations are manifestly grounded in the appellate record. Id. We also give great deference to the trial court's conclusion and reverse only when the record as a whole demonstrates that conclusion is clearly erroneous. Id. at 447-48.
D.
 
Analysis
 
        It is undisputed that the trial court found that appellant made a prima facie showing of discrimination, and appellant concedes that the State responded by offering “facially neutral reasons for the strikes.” See Shuffield, 189 S.W.3d at 785. Consequently, our review is limited to determining whether the trial court clearly erred in determining that appellant did not meet his burden to establish by a preponderance of the evidence that the prosecutor's stated reasons for his strikes were actually pretexts for purposeful discrimination on the basis of race. See id.
        In appellant's seventh issue, he argues that the trial court's decision to overrule his Batson challenge was clearly erroneous because the trial court did not conduct “a proper comparative analysis.” More specifically, he argues that the trial court was required to “explore the substance of Appellant's rebuttal or conduct [ ] a comparative analysis of the juror questionnaires.” Appellant argues that the United States Supreme Court's recent decision in Miller-El v. Dretke, 545 U.S. 231 (2005), “substantially altered the method of analysis for scrutiny of a prosecutor's reasons for the exercise of strikes on minority members of the venire.” He argues that under Miller-El, “trial courts are required to specifically analyze the reasons given and evaluate those reasons, in the light of any defense rebuttal, for purposeful discrimination.” Based upon our analysis of appellant's eighth issue, however, we conclude that we need not address appellant's seventh issue because the result would not have been different if the trial court had conducted a comparative analysis. We overrule appellant's seventh issue.
        In his eighth issue, appellant argues that the trial court's decision to overrule his Batson challenge was clearly erroneous because he established purposeful discrimination on the basis of race. To support his argument, appellant first generally notes that “the prosecutor struck five minority members of the venire.” We assume that appellant is arguing here that the State used a disproportionate number of its peremptory strikes to challenge non-minority potential jurors. But even assuming that is true,   See Footnote 12  this fact alone would not demonstrate that the trial court clearly erred when it concluded that the State's race-neutral reasons for striking the potential jurors in question were not pretexts for purposeful discrimination on the basis of race. See Watkins, 245 S.W.3d at 452 (disproportionate use of peremptory strikes “does not alone establish that the trial court's conclusion, that the State's explanations were not pretextual, is clearly erroneous.”).
        Prospective Juror Number Two
        During the hearing on appellant's Batson challenge, the prosecutor explained that he struck prospective juror number two because he (1) did not answer the questions on his juror questionnaire regarding how he feels about the criminal-justice system or whom he most and least admires, (2) indicated that someone in his family was arrested two years ago, and (3) answered “don't know why” when the prosecutor asked him why it would be important for the State not to have to prove motive. In response, appellant's counsel argued that “there has been no reason given at that point other than the fact that he said he didn't understand some of the questions that were made.” He also argued that other prospective jurors who also left answers blank on their questionnaires were not stricken from the jury pool.
        On appeal, appellant concedes that prospective juror number two left answers blank on his questionnaire,   See Footnote 13  but contends that the prosecutor “did not engage in any voir dire, much less meaningful voir dire,” regarding those blanks. He also concedes that prospective juror number two may not have understood some of the questions on the questionnaire, but argues that “it would not have been reasonable to conclude that the juror lacked familiarity with written English.” These arguments, however, are essentially disagreements with the State's decision to strike prospective juror number two and do not demonstrate that the prosecutor's proffered reasons apply equally to an otherwise similar non-minority prospective juror who was permitted to serve. See Miller-El, 545 U.S. at 241. Significantly, he does not challenge the other two reasons given for the strike.
        Consequently, we conclude that the record does not demonstrate that the trial court clearly erred when it found that appellant did not meet his burden of proving that the State's peremptory strike of prospective juror number two was a pretext for purposeful discrimination based on race.
        Prospective Juror Number Nine
        During the hearing on appellant's Batson challenge, the prosecutor explained that he struck prospective juror number nine because (1) he “had an assault, family violence case dismissed that he never brought up,” and (2) he wrote “it depends on the evidence” under the questions of whether he had “any moral or religious beliefs that would prevent you from returning a life sentence” and whether those beliefs would prevent him from finding someone guilty of capital murder for which there is an automatic life sentence. In response, appellant's counsel stated that “proper explanation has not been given” by the prosecutor, but did not explain what he meant by that statement.
        On appeal, appellant argues that he has established purposeful discrimination because the prosecutor's proffered reasons for striking prospective juror number nine were “equally applicable to members of the venire who actually served on the jury.” But appellant does not identify which members of the jury he contends gave similar answers as prospective juror number nine. We have compared the information in our record about prospective juror number nine to the information about the members of the jury. The record does not demonstrate that any of the actual jurors was charged with a crime that he or she “never brought up” during voir dire, as the prosecutor raised with respect to prospective juror number nine. And the record demonstrates that, unlike prospective juror number nine, all of the members of the jury answered “no” to the questions of whether they had “any moral or religious beliefs that would prevent you from returning a life sentence” and whether those beliefs would prevent them from finding someone guilty of capital murder for which there is an automatic life sentence.
        Appellant also generally argues on appeal, with respect to prospective jurors number nine, eleven, and fifteen, that “questionnaires from four of the jurors raise questions of disparate treatment.”   See Footnote 14  Appellant notes that juror number twenty-four “gave the same two word answer-'the law'” “when asked what the first thing was that came to his mind with respect to Police Officers, Prosecutors and Defense Attorneys.” He argues that this answer “was not much to go on” and that the prospective juror “might as well have left these answers blank.” He also notes that juror number twenty-five “checked a box on the questionnaire indicating he had health problems that would prevent him from giving his full attention to the trial” but “did not, as instructed on the questionnaire, explain what those health problems were or otherwise complete the question.” He contends that juror number thirty-eight “did not 'rank 1, 2 or 3' her beliefs about the objectives of punishment, but merely checked 'Punish those convicted.'” Additionally, he argues that juror number forty-one answered the question “regarding his feelings about the criminal-justice system, with a single word: 'neutral'” and that his answer “is hardly illuminating and might as well be blank for all the assistance it provides to counsel seeking to exercise peremptory strikes.”
        We conclude, however, that the State's decision not to strike four non-minority prospective jurors who gave one short or partially incomplete answer as described above does not demonstrate that the State purposefully discriminated on the basis of race when it used a peremptory strike on a black prospective juror who indicated that he had moral or religious beliefs that might prevent him from returning a life sentence. Moreover, the record undermines appellant's allegation of disparate treatment because it demonstrates that the State used another one of its peremptory strikes to strike prospective juror number five-a white prospective juror who answered “yes” to the question of whether he had any moral, religious, or personal beliefs that would prevent him from returning a life sentence.         Consequently, we conclude that the record does not demonstrate that the trial court clearly erred when it found that appellant did not meet his burden of proving that the State's peremptory strike of prospective juror number nine was a pretext for purposeful discrimination based on race.
        Prospective Juror Number Eleven
        During the hearing on appellant's Batson challenge, the prosecutor explained that he struck prospective juror number eleven because he (1) did not list any of the people he admires, and (2) was nineteen years old and the State “struck everybody under 25.”   See Footnote 15  In response, appellant's counsel generally argued, as he did regarding all of the prospective jurors subject to his Batson challenge, that “proper explanation has not been given” by the prosecutor because other prospective jurors who also left answers blank on their questionnaires were not stricken from the jury pool.
        On appeal, appellant generally argues that he established purposeful discrimination because the prosecutor's proffered reasons for striking prospective juror number eleven were “equally applicable to members of the venire who actually served on the jury.” But appellant does not identify which members of the jury he contends gave similar answers as prospective juror number eleven. And by comparing the information in our record about prospective juror number eleven to the information about the jury, the record demonstrates that, unlike prospective juror number eleven, all of the members of the ultimate jury were over twenty-five years old and listed at least one person in response to the question about whom they admire.
        Appellant also makes the same general argument set forth above about the four jurors whose questionnaires he contends “raise questions of disparate treatment.” We conclude, however, that the incomplete answers on those four questionnaires do not demonstrate that the State's stated reason that it struck prospective juror number eleven-because he was under twenty-five-was really a pretext for purposeful discrimination based on race.
        Consequently, we conclude that the record does not demonstrate that the trial court clearly erred when it found that appellant did not meet his burden of proving that the State's peremptory strike of prospective juror number eleven was a pretext for purposeful discrimination based on race.
        Prospective Juror Number Fifteen
        During the hearing on appellant's Batson challenge, the prosecutor explained that he struck prospective juror number fifteen because she did not answer the question on her questionnaire about her feelings concerning the criminal-justice system. In response, appellant's counsel generally argued as to all of the prospective jurors subject to his Batson challenge that “proper explanation has not been given” by the prosecutor because other prospective jurors who also left answers blank on their questionnaires were not stricken from the jury pool.
        On appeal, appellant generally argues that he established purposeful discrimination because the prosecutor's proffered reason for striking prospective juror number fifteen was “equally applicable to members of the venire who actually served on the jury.” And as described above, appellant notes that juror number forty-one answered the question on his questionnaire about his feelings concerning the criminal-justice system “with a single word: 'neutral.'” Appellant contends that this answer “is hardly illuminating and might as well be blank for all the assistance it provides to counsel seeking to exercise peremptory strikes.” We conclude, however, that juror number forty-one's short answer to this question is different from no answer at all.   See Footnote 16  And by comparing the information in our record about prospective juror number fifteen to the questionnaires from the jury, the record demonstrates that, unlike prospective juror number fifteen, all of the members of the jury answered the question about their feelings concerning the criminal-justice system.
        Consequently, we conclude that the record does not demonstrate that the trial court clearly erred when it found that appellant did not meet his burden of proving that the State's peremptory strike of prospective juror number fifteen was a pretext for purposeful discrimination based on race.
        In summary, we conclude that a comparative analysis of the questionnaires does not demonstrate that the trial court clearly erred when it overruled appellant's Batson challenge as to the prospective jurors in question. Consequently, we overrule appellant's eighth issue.
 
State's Cross-point
 
        In the State's cross-point, it argues that the judgment should be modified to correct a clerical error. This Court has the power to modify an incorrect judgment to make the record speak the truth when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
        The record demonstrates that appellant pleaded not guilty in this case. The judgment, however, states that he pleaded guilty. We conclude that the judgment contains a clerical error. We sustain the State's cross-point and modify the judgment to reflect appellant's plea of not guilty.
 
Conclusion
 
        We sustain the State's cross-point, overrule appellant's issues, and affirm the trial court's judgment as modified.
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060397F.U05
 
Footnote 1 Moss also explained how scientists are able to analyze DNA evidence to determine its source. With respect to the shirt stains, for example, Moss explained that she was able to conclude that the blood belonged to Janeen because “the frequency of finding another random individual within the three main populations in North America that would also match this [DNA] profile barring any identical twins, in the Black race it would be 1 in 10.5 quintillion. In the caucasian race, it would be 1 in 11.4 quadrillion, and in the Hispanic race it would be 1 in 75.2 quadrillion.” She also explained that the population of the Earth is approximately 6 billion people. Using the lowest probability, 1 in 11.4 quadrillion, Moss answered “yes” when the State asked her, “So, basically, in two hundred planet Earths would be the likelihood of us repeating this profile?”
Footnote 2 Moss testified that a predominant profile
 
 
is an instance where we've tested a piece of evidence and the profile that we get from that, it does have an indication that there's more than one person present but that second person is contributing a very small amount of DNA. It's actually so little DNA that we're not able to determine who that-that, you know, extra DNA is coming from. We have a predominant profile that's present, we can determine who that came from, and then, the extra that are present, we're not able to identify who that came from.
Footnote 3 Specifically, section 19.02(b) of the Texas Penal Code provides that a person commits murder if the person:
 
 
 
(1) intentionally or knowingly causes the death of an individual;
 
 
 
(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or
 
 
 
(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
 
TEX. PENAL CODE ANN. § 19.02(b).
Footnote 4 During its opening argument, the State told the jury that appellant weighed approximately 370 pounds at the time of his Janeen's murder, but the record only reveals appellant's approximate weight at the time of his trial.
Footnote 5 During appellant's testimony, he agreed with the prosecutor that it appeared from the photographic evidence that Janeen's pubic hair was trimmed short.
Footnote 6 We issued the subsequent order because appellant objected after the clerk supplemented the record with juror questionnaires from another case.
Footnote 7 The trial court was able to locate the questionnaire for prospective juror number two, the fourth prospective juror whose peremptory strike by the State is challenged in this appeal.
Footnote 8 Appellant also argues that either the State or the trial court should have had the burden to ensure that the questionnaires were included in the record. First, he argues that because the prosecutor pointed to the contents of the questionnaires to justify the peremptory strikes challenged by appellant, it should have been “incumbent on the prosecutor to offer the questionnaires as exhibits.” Alternatively, he suggests that “since the questionnaires were done at the behest of the trial court in the first instance,” the trial court should have “insured that these questionnaires became part of the permanent record of the trial.” We do not address this issue because, as we explain below, we do not need the questionnaires themselves to resolve this appeal. See Tex. R. App. P. 34.6(f)(3). We note, however, that rule 34 does not identify juror questionnaires among the items that must be included in the appellate record. See Tex. R. App. P. 34.
Footnote 9 Appellant's only argument about why we need those questionnaires is his general assertion that the questionnaires would “[o]stensibly . . . provide enable [sic] this Court to most clearly assess the assured validity” of his challenge to the State's peremptory strikes.
Footnote 10 Appellant also raised a Batson challenge in response to the State's peremptory strike of prospective juror number twenty-one, but does not challenge that strike on appeal.
Footnote 11 Appellant does not complain on appeal about the State's peremptory strike of prospective juror number twenty-one.
Footnote 12 The record demonstrates that the venire panel consisted of the sixty-five prospective jurors. After accounting for the peremptory and agreed strikes, prospective juror number forty-one was the last person empaneled as a juror. Of the first forty-one prospective jurors, twenty-six were white, six were black, and nine were Hispanic, Asian, or Indian. Ten whites, one black, and one Hispanic served on the jury. The State used five peremptory strikes on black prospective jurors, three peremptory strikes on white prospective jurors, and one peremptory strike on a Hispanic prospective juror.
Footnote 13 Prospective juror number two is the only person who was a subject of appellant's Batson challenge whose questionnaire was located by the trial court for inclusion in the appellate record.
Footnote 14 We note that this argument is different than the limited arguments appellant raised during the hearing on his Batson challenge. Nevertheless, if arguments concerning a Batson challenge are “manifestly grounded in the appellate record,” we can consider them for the first time on appeal. Watkins, 245 S.W.3d at 448. And although the questionnaires and juror information cards were not introduced into evidence, the trial court was able to locate and include most of the questionnaires and all of the information cards in our supplemental record. Consequently, we are able to evaluate appellant's arguments and the genuineness of the State's race-neutral explanations based on all of the information that is included in our supplemental record.
Footnote 15 The record also suggests that the prosecutor was concerned about how prospective juror number eleven ranked the objectives of punishment, but the basis for the prosecutor's concern is unclear. In the reporter's record, his stated concern reads, “And then on rehab on rank and file in order of punishment.”
Footnote 16 Moreover, even if we accepted appellant's argument that a one-word answer constitutes no answer at all, we could not conclude that this record demonstrates disparate treatment of prospective juror number fifteen on the basis of race, because the record demonstrates that the State used another one of its peremptory strikes on prospective juror number thirty-a white prospective juror who also gave a one-word answer, “OK,” to the question about her feelings concerning the criminal-justice system.