SAINT MATTHEW EWING, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed August 6, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01092-CR
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SAINT MATTHEW EWING, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. F06-00405-TH
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OPINION
Before Justices Whittington, Richter, and Mazzant
Opinion By Justice Richter
        This is an appeal from a jury conviction and enhanced twenty-five year sentence for murder. In eight issues, Saint Matthew Ewing asserts the trial court erred in (a) overruling his Batson   See Footnote 1  objections to two prospective jurors peremptorily stricken by the State, (b) limiting the scope of his cross-examination of a friend of the victim, © denying his motion for continuance, (d) instructing the jury on provocation, (e) denying his request for a jury instruction on the defense of property, and (f) failing to sua sponte instruct the jury on the reasonable doubt burden of proof for extraneous offenses. We affirm.
Background
        The victim, David Wheelington, died of two stab wounds to his chest inflicted during a fight involving Wheelington, his mentally disabled brother Mark, and Ewing. The fight occurred on the street and was witnessed by a friend of the brothers-Robert Mayweather, Ewing's wife, and Walter LaFargue, Jr., who worked occasionally for Ewing. Ewing was arrested near the scene and gave a written statement that an unknown person had joined the fight and stabbed Wheelington.
        Ewing's trial lasted six days and consisted primarily of the testimony of Mark, Mayweather, LaFargue, and Ewing. Mark testified he and Wheelington were very close and Wheelington was very protective of him. The two were homeless and lived in a “camp” with Mayweather. They survived on Mark's monthly $300 disability check, by panhandling, and on the occasional money Wheelington earned helping Ewing with his cleaning business. According to Mark, Wheelington used drugs and often bought crack cocaine from Ewing.
        On the night of the murder, the two were with Mayweather at an overpass at Central Expressway and Park Lane in North Dallas. Mark was in a wheelchair at the time recovering from foot surgery and was panhandling while Mayweather stood nearby and Wheelington sat drinking and “watching over” Mark. Mark saw Ewing drive by and greeted him, but Ewing did not respond. Moments later, three men approached Wheelington and began beating him in the face. Mark tried to help Wheelington but was restrained by a fourth man. The men hit Wheelington about twenty times and left.
        Wheelington was “beat up pretty bad” and Mark, Wheelington, and Mayweather decided to go back to their camp. As they were walking, one behind the other, they saw Ewing in a parking lot standing outside of his car with his wife. According to Mark, Ewing approached him and slapped him in the face. Seeing this, Wheelington picked up a brick, threw it at Ewing, and ran. Ewing caught up and began hitting Wheelington. Wheelington was on the ground and trying to get away when Mark noticed that Ewing had a knife and had stabbed Wheelington. Hoping to stop Ewing and “knock him out,” Mark took the footrest off his wheelchair and hit Ewing with it. Ewing grabbed him, stabbed him in the back, went back to stab Wheelington again and “finish the job,” and then fled in his car. Wheelington died at the scene and Mark was hospitalized for several days. Mark testified he believed Ewing had been waiting for them in the parking lot and that Wheelington had nothing with which to defend himself.
        Mayweather testified similarly to Mark and added that “Red”-LaFargue-was with Ewing and Ewing's wife when Ewing killed Wheelington but was not involved in the fight. According to Mayweather, “there'[d] been some bad feelings between [Wheelington] and [Ewing]” in the days before the murder. Mayweather explained that Ewing had fronted Wheelington drugs and that Wheelington had promised to pay Ewing back when he visited his parents. To ensure payment, Ewing offered to drive Wheelington to his parents' house and the two agreed on a time. Ewing failed to show up, however, and Wheelington went without him and apparently did not pay Ewing.
        LaFargue testified he was homeless at the time of the murder and occasionally worked for Ewing. On the night of the murder, while at the DART rail station on Park Lane, he overheard Ewing tell “some guys” he would pay them $10 to beat up Wheelington. The “guys” left and returned minutes later “laughing and carrying on.” Hoping to “catch” Wheelington, Ewing had his wife drive him and LaFargue towards the expressway. As they approached the freeway, they saw Wheelington, Mark, and Mayweather. Wheelington started running towards the car but turned around midway. Ewing had his wife stop, jumped out of the car, and chased Wheelington. Ewing's wife followed Ewing but LaFargue stayed behind. From where he stood, LaFargue could see Ewing, Wheelington, and Mark fighting. According to LaFargue, Ewing knocked Wheelington down and got “over him.” LaFargue looked away for a moment and when he looked back, he saw Wheelington had gotten up and was running across the street. Ewing caught up with Wheelington, knocked him down again, and then returned with his wife to the car. Ewing was holding a knife and was bleeding from his face and back of his head. Ewing's wife drove to a nearby convenience store where they called 911. After officers arrived and Ewing had been treated by the paramedics, the three were taken to the police station and questioned.
        Testifying in his defense, Ewing denied giving a statement that a third person had stabbed Wheelington and admitted stabbing Wheelington and Mark himself. He maintained, however, that he had done so in self-defense and in defense of his property. Ewing explained that he, his wife, and LaFargue were in the car driving when they saw Wheelington, Mark, and Mayweather. Wheelington ran up to the car and demanded Ewing pay him money owed for work he had done. Ewing denied owing Wheelington money and when he refused to pay, Wheelington hit him twice in the face. Angered, Ewing got out of the car and put “his fists up” for a fight. Wheelington responded by hitting Ewing in the face with a brick and Ewing grabbed him and started “pushing him back.” As he fought with Wheelington, Ewing noticed Mark trying to get into his car. Ewing kept money in his car and knew Wheelington and Mark were aware of that. Concerned Mark might take the money, Ewing pushed Mark. Wheelington then came and “started fighting” with Ewing again. Mark joined in, hitting Ewing in the head with a metal object. Fearing for his life, Ewing took out a knife and started swinging, stabbing Wheelington and Mark.
        Based on the evidence, the trial court denied Ewing's requested instruction on defense of property but instructed the jury on the law of self-defense, limited by a further instruction on the law of provocation. Apparently rejecting Ewing's defensive theory, the jury found Ewing guilty and after hearing evidence of Ewing's criminal history and testimony from his mother urging leniency, assessed an enhanced sentence of twenty-five years.
Batson Error
        In his first two issues, Ewing, who is African-American, complains the trial court erred in overruling his Batson objections during jury selection. Specifically, Ewing challenges the State's strikes against juror 29, an African-American female, and juror 32, a Latino female, both whom the State struck for having a relative who had previously been convicted of a crime. Noting the State did not strike juror 39, a Caucasian male who served on the jury and also had a relative previously convicted of a crime, Ewing maintains the State struck jurors 29 and 32 because of their race and the State's reason for striking them, though race-neutral on its face, was a mere pretext. As a result of this “disparate treatment of similarly situated jurors,” Ewing urges his conviction should be reversed. We disagree.
        In Batson v. Kentucky, the United States Supreme Court held that the State's purposeful use of peremptory strikes in a racially discriminatory manner violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 96 (1986). Under Batson, to succeed on a challenge to the State's use of peremptory strikes, a defendant must first make a prima facie showing that the State exercised its peremptory strikes on the basis of race. Id.; Shuffield v. State, 189 S.W.3d 782, 785 (Tex. Crim. App.), cert. denied, 127 S. Ct. 664 (2006). Once a defendant makes this showing, the State must come forward with a race- neutral explanation-one that, on its face, does not deny equal protection-for striking the jurors in question. Batson, 476 U.S. at 97; Purkett v. Elem, 514 U.S. 765, 768-69 (1995) (per curiam); Shuffield, 189 S.W.3d at 785. The State's explanation does not have to be persuasive or even plausible, and as long as the discriminatory intent is not inherent, the State's explanation will be deemed race-neutral. Bausely v. State, 997 S.W.2d 313, 316 (Tex. App.-Dallas 1999, pet. ref'd) (citing Purkett, 514 U.S. at 768). If the State provides a race-neutral explanation for its strikes, the defendant must then rebut the State's explanation or show the explanation was merely a sham or a pretext. Watkins v. State, 245 S.W.3d 444, 453-54 (Tex. Crim. App. 2008), petition for cert. filed, (May 13, 2008) (No. 07-11037).
        The defendant may establish the State's explanation was a sham or pretext by showing disparate treatment of the prospective jurors including that the State did not question any of the minority prospective jurors yet struck them anyway or the State struck minority prospective jurors who answered similarly to non-minority prospective jurors the State did not strike. Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992); Johnson v. State, 959 S.W.2d 284, 292 (Tex. App.-Dallas 1997, pet. ref'd). When relying on the latter, the defendant must show more than the mere fact that the objectionable characteristic of a stricken juror was also possessed by an accepted juror of a different race. Cantu, 842 S.W.2d at 689. This is so because different jurors may possess the same objectionable characteristic but in differing degrees, causing a prosecutor to challenge one juror but not another. Id.
        The defendant bears the ultimate burden of persuasion regarding racial motivation and whether he satisfies his burden is a question of fact for the trial court. Purkett, 514 U.S. at 768; Watkins, 245 S.W.3d at 447; Peetz v. State, 180 S.W.3d 755, 758 (Tex. App.-Houston [14th Dist.] 2005, no pet.). In reviewing a Batson challenge, we examine the record in the light most favorable to the trial court's ruling, affording great deference to the trial court's factual finding and reversing the ruling only when it is clearly erroneous, that is, when we are left with the definite and firm conviction that a mistake has been committed. Watkins, 245 S.W.3d at 447-48.
 
        Here, the State does not dispute Ewing established a “prima facie case” of racial discrimination   See Footnote 2  and Ewing does not dispute the State's proffered reason for striking the challenged jurors-for having a relative who has been convicted of a crime-was legitimate and race-neutral. See, e.g., Emerson v. State, 851 S.W.2d 269, 272 (Tex. Crim. App. 1993); Vargas v. State, 838 S.W.2d 552, 555-56 (Tex. Crim. App. 1992); Montgomery v. State, 198 S.W.3d 67, 76 (Tex. App.-Fort Worth 2006, pet. ref'd). Ewing also does not dispute that he did not rebut the State's explanation. Instead, he contends the State treated the jurors disparately and the State's explanation was a sham or pretext. Given the record, however, we conclude Ewing failed to satisfy his burden of persuasion and the trial court's ruling on his Batson objection was not clearly erroneous.
        Although jurors 29, 32, and 39 all had relatives who had been convicted of crimes and thus shared the same objectionable characteristic, the circumstances of each were different. As the State points out, the record reflects juror 39 had a brother who served three years in prison for “drug dealing.” By contrast, juror 29's “objectionable characteristic” was of a larger degree. She had two brothers with felony theft convictions and one of those brothers had “been prosecuted as a habitual offender.” In explaining his reason for striking this juror, the prosecutor noted that
 
[s]he has a brother who she said, Clifton Taylor, did pen time for theft. I looked up Clifton Taylor on the computer. He's got multiple convictions for aggravated robbery, starting in 1980. Attempted burglary, burglary of a building, burglary of a habitation, fraudulent claim, burg [lary] building. So it's beyond just someone [who] went to jail for theft. This guy has multiple convictions.
 
        With respect to juror 32, the record reflects she had an uncle who had been imprisoned, a brother-in-law who had been on probation, and a close friend who had been convicted of theft. Additionally, the prosecutor explained that
 
Not only does she have numerous friends and family members that have been not only pen time, but other experiences with the law. She's had her brother who's been - someone put a knife to his neck to steal his dirt bike. Based on the defense they are going to try to make it self-defense, make it sound like these are - our victims are these crazy homeless people that are out there. [Defense counsel's] said that in the past to [the co-prosecutor]. I felt those were - reasons were why I struck her.
 
This additional reason was facially race-neutral, see Catley v. State, 763 S.W.2d 465, 467 (Tex. App.-Houston [14th Dist.] 1989, pet. ref'd), and distinguished her from juror 39. We resolve Ewing's first two issues against him.
Scope of Cross-Examination
        Ewing's third issue stems from his cross-examination of Mayweather. Relevant to this issue, the record reflects Mayweather had been arrested for tampering with evidence shortly before trial, but was released the next day after the prosecuting authority determined not to file charges. Ewing sought to question Mayweather about the arrest in an effort to impeach him and diminish his credibility. However, because no charges were filed, the trial court refused to allow him. Noting that a defendant is entitled to preset evidence that a State witness is subject to a criminal charge to show the witness's bias or interest in helping the State, see Maxwell v. State, 48 S.W.3d 196, 199 (Tex. Crim. App. 2001), Ewing argues the court's limitation on his cross-examination of Mayweather was error. Again, we disagree.
        Cross-examination of a witness is a matter of right, and a defendant is entitled to pursue all avenues of cross-examination reasonably calculated to expose a motive, bias, or interest in the witness to testify. Alford v. United States, 282 U.S. 687, 690 (1931); Carroll v. State, 916 S.W.2d 494, 497, 500 (Tex. Crim. App. 1996). As such, the scope of appropriate cross-examination is necessarily broad and encompasses “all facts and circumstances, which when tested by human experience, tend to show that a witness may shade his testimony for the purpose of helping to establish one side of the cause only.” Carroll, 916 S.W.2d at 497-98 (quoting Jackson v. State, 482 S.W.2d 864, 868 (Tex. Crim. App. 1972)); Sansom v. State, 2008 WL 567757, *3-4 (Tex. App.-Houston [14th Dist.] 2008, pet. filed). We review a trial court's ruling limiting the scope of cross-examination under an abuse of discretion standard and will find abuse if the defendant establishes the evidence he sought to offer was relevant, that is, that a nexus or logical connection existed between the witness's testimony and the witness's potential motive to testify in favor of the other party. Woods v. State, 152 S.W.3d 105, 111 (Tex. Crim. App. 2004); Carroll, 916 S.W.2d at 498.
        Here, the record reflects no such “nexus or logical connection.” Outside the jury's presence, Mayweather testified he had not spoken to the arresting officer about his arrest or release. Additionally, the prosecutor represented to the court that the “DA's office did not have any part in [Ewing's release].” This testimony negates any suggestion that Mayweather might have been testifying in exchange for receiving favorable treatment from the State. Additionally, as the State points out, Mayweather's testimony at trial was similar to the facts he gave in his initial statement the night of the murder, and Mayweather's arrest, which occurred a year after the murder, could not have influenced this initial statement. Ewing's contention that the court erred in limiting his cross- examination of Mayweather is without merit. We resolve his third issue against him.
Motion for Continuance
        In his fourth issue, Ewing asserts the court erred in denying his motion for continuance. Ewing filed the motion five days into trial, seeking a one-week continuance to locate his wife whom he wished to call as a witness. The motion, however, was not sworn. See Tex. Code Crim. Proc. art. 29.08 (Vernon 2006); Dewberry v. State, 4 S.W.3d 735, 755-56 (Tex. Crim. App. 2000). Recognizing that an unsworn motion for continuance preserves nothing for our review, see Dewberry, 4 S.W.3d at 756, Ewing argues the motion should be considered an “equitable motion” subject to review under our “equitable powers.” However, the Texas Court of Criminal Appeals has specifically refused to exercise its equitable powers to review a motion for continuance that is unsworn, see id. n.22, and we will not contravene the court. We resolve Ewing's fourth issue against him.
Charge Error
        In issues five through eight, Ewing asserts charge error. Specifically, in his fifth and eighth issues, Ewing asserts the court erred in failing to sua sponte instruct the jury at guilt-innocence and punishment that it could consider evidence of extraneous offenses only if the State proved the offenses beyond a reasonable doubt. In his sixth issue, Ewing asserts the court erred in failing to instruct the jury on defense of property and in his seventh issue, Ewing asserts the court erred in instructing the jury on provocation. Ewing maintains that each of these errors was harmful, warranting reversal.
        We examine jury charge error under the standards set forth in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). When reviewing a challenge to the jury charge, we must first determine whether error actually exists in the charge. Id. In determining whether error exists, we examine the charge as a whole and look to see if it sets forth the law applicable to the case as determined by the allegations in the indictment and evidence presented at trial, including evidence on any defensive theory whether strong, credible, or uncontradicted.. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007); Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007); Cocke v. State, 201 S.W.2d 744, 747 (Tex. Crim. App. 2006), cert. denied, 127 S. Ct. 1832 (2007); Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). We also look to see that it includes such general admonishments as to the presumption of innocence, proof beyond a reasonable doubt, and unanimity of the verdict, as well as any properly requested limiting instructions and instructions on lesser-included offense. Delgado, 235 S.W.3d at 249-51. If we determine error exists and the charge is inadequate, we then assess whether any resulting harm requires reversal. Almanza, 686 S.W.2d at 171.
        When error has been properly preserved, we will reverse the conviction upon a showing of some harm. Id. When error has not been properly preserved, we will reverse only if the error is so egregious and created such harm that the defendant was denied a fair and impartial trial. Id.; Batiste v. State, 73 S.W.3d 402, 407 (Tex. App.-Dallas 2002, no pet.). We assess the actual degree of harm in light of the charge as a whole, the state of the evidence including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171; Batiste, 73 S.W.3d at 407.
Defense of Property
        Turning to Ewing's complaint in his sixth issue that the court reversibly erred in denying his request for an instruction on the defense of property, we conclude no error occurred. Under Texas Penal Code section 9.42, a defendant is entitled to an instruction on defense of property using deadly force upon a showing that he reasonably believed
 
(1) the deadly force was immediately necessary to prevent or terminate the unlawful interference with his property or recover property from which he was unlawfully dispossessed through the use of another's force,
 
 
 
(2) the deadly force was immediately necessary to prevent the other's night-time commission of or fleeing from the night-time commission of certain offenses or prevent the other who is fleeing from the night-time commission of those offenses from escaping with the property, and
 
 
 
(3) the property cannot be protected by any other means or the use of non-deadly force would expose him or someone else to a substantial risk of death or serious bodily injury.
 
Tex. Penal Code Ann. § 9.42 (Vernon 2003). Ewing argues that such an instruction was warranted based on his testimony that
 
*Wheelington ran up to his car demanding money and became violent when he was not paid,
 
*as he fought with Wheelington, he saw Mark approach his car “where his wife and money were,”
 
*David and Mark were both aware he kept money in his car, and
 
*when he pushed Mark away from the car, Wheelington started fighting him again and the fight escalated with Mark joining in and hitting him with his wheelchair's footrest.
 
This testimony, however, failed to show that an unlawful interference or dispossession of Ewing's property had occurred or that deadly force was necessary to protect his property. As the State points out, if Ewing felt threatened by David's actions before he got out of his car, he could have simply driven away. And, if he felt threatened by Mark, he also could have driven away once he pushed Mark away from the car. Given the evidence before the court, we conclude no error occurred in denying Ewing's requested instruction on defense of property. We resolve Ewing's sixth issue against him.
Instruction on Provocation
        We also resolve against Ewing his seventh issue in which he asserts the court reversibly erred in instructing the jury on provocation. The complained-of instruction reads as follows
 
        You are further instructed as part of the law in this case, and as qualification of the law on self-defense, that the use of force by the defendant against another is not justified if, under the circumstances as the defendant reasonably believes them to be, the defendant provoked the deceased's use or attempted use of unlawful force unless (a) the defendant abandons the encounter or clearly communicates to the deceased his intent to do so, reasonably believing he could not safely abandon the encounter, and (b) the deceased, nevertheless, continued or attempted to use unlawful force against the defendant or third party.
 
This instruction followed the court's instruction on self-defense and tracked the language of section 9.31(b)(4) of the penal code. See Tex. Penal Code Ann. § 9.31(b)(4) (Vernon Supp. 2008). In arguing the issue, Ewing maintains no evidence existed that he intended to provoke the difficulty with Wheelington as a pretext to kill or seriously injure him.
        An instruction on provocation is required when there is sufficient evidence that (1) the defendant did some act or used some words which provoked the attack on him, (2) such act or words were reasonably calculated to provoke the attack, and (3) the act was done or the words were used for the purpose and with the intent the defendant would have a pretext for inflicting harm upon the other. Smith v. State, 965 S.W.2d 509, 513 (Tex. Crim. App. 1998); Harrod v. State, 203 S.W.3d 622, 628 (Tex. App.-Dallas 2006, no pet.). Whether the defendant acted with the requisite intent is a question of fact to be determined from the totality of the circumstances, including any words said or actions taken by the defendant before, during, and after the provocation. Smith, 965 S.W.2d at 513; Harrod, 203 S.W.3d at 628. In reviewing the propriety of a provocation instruction, we view the evidence in the light most favorable to the instruction and ask whether sufficient evidence existed from which a rational juror could have found provocation beyond a reasonable doubt. Smith, 965 S.W.2d at 514; Harrod, 203 S.W.3d at 629.
        The evidence here, viewed in the light most favorable to the instruction, shows that there had been some “bad feelings” between Ewing and Wheelington in the days before the murder. The evidence further shows Ewing paid “some guys” to beat up Wheelington and then had his wife drive him towards the expressway in “hopes of catching” Wheelington. When he saw Wheelington, he asked his wife to stop the car, jumped out of the car, and slapped Mark-who is mentally disabled and was in a wheelchair at the time, prompting Wheelington to throw a brick at him. When Wheelington fled, Ewing chased after him and stabbed him. When Wheelington managed to get away, Ewing chased him again and stabbed him again. From this evidence, we conclude a rational juror could have found provocation beyond a reasonable doubt. Ewing's contention to the contrary is without merit.
 
Reasonable Doubt Instruction
        Finally, we also conclude no merit exists to Ewing's contention in his fifth and eighth issues that the court reversibly erred, at the guilt-innocence and punishment stages of trial respectively, in failing to sua sponte instruct the jury on the State's burden of proof for extraneous offenses. Ewing argues the court should have included the instruction even though not requested because of the evidence showing that he sold drugs to Wheelington and paid “some guys” to beat Wheelington up. The State concedes error occurred at punishment but argues no error occurred at guilt-innocence. We agree with the State.
        At the punishment phase of trial of a non-capital case, the use of extraneous offense evidence is governed by article 37.07 of the Texas Code of Criminal Procedure. Delgado, 235 S.W.3d at 252. Under this article, evidence of extraneous offenses-acts of misconduct not shown in the charging instrument-is admissible at punishment for any relevant purpose but only if the State can prove those offenses beyond a reasonable doubt. Tex. Code Crim. Proc. art. 37.07, §3(a)(1) (Vernon Supp. 2008); Delgado, 235 S.W.3d at 252. This article is the “law applicable” to all non-capital punishment proceedings and must be included in the punishment charge regardless of whether it was requested. Delgado, 235 S.W.3d at 252. However, no such “law' applies to extraneous offense evidence at the guilt-innocence phase of trial. Id. As such, a trial court must include the reasonable doubt instruction only upon request. Id. at 254.
        Here, no error occurred in the court's failure at guilt-innocence to instruct the jury on the State's burden of proof concerning extraneous offenses because Ewing did not request such an instruction. Id. Accordingly, we resolve Ewing's fifth issue against him.
        We also resolve Ewing's eighth issue against him even though error occurred at punishment when the court failed to sua sponte instruct the jury in accordance with article 37.07. Id. At 252. Viewing the record as a whole, the trial testimony supported the charge of murder against Ewing. The testimony showed Ewing stabbed Wheelington, who was unarmed, once and then returned to “finish him off.” This testimony alone supports the twenty-five year sentence the jury assessed. See, e.g., Allen v. State, 47 S.W.3d 47, 52 (Tex. App.-Fort Worth 2001, pet. ref'd) (concluding facts surrounding offense supported sentence). Moreover, the record reflects the State sought punishment “at the high end,” yet the jury assessed punishment “at the low end.” See, e.g., Brown v. State, 45 S.W.3d 228, 232 (Tex. App.-Fort Worth 2001, pet. ref'd) (concluding jury did not base punishment on extraneous offense evidence where jury assessed punishment well below what State sought). Given the record, we conclude Ewing was not egregiously harmed by the court's failure to sua sponte include the reasonable doubt instruction at punishment.
 
We affirm the trial court's judgment.
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 47
061092F.U05
 
Footnote 1 See Batson v. Kentucky, 476 U.S. 79 (1986).
Footnote 2 The record reflects the trial court specifically found Ewing had made a prima facie showing of racial discrimination, noting the racial make-up of the seated jurors was seventy-five percent Caucasian and twenty-five percent African-American.