JAIRUS BAKER, Appellant v. THE STATE OF TEXAS, Appellee

Annotate this Case

AFFIRM; Opinion issued December 18, 2008

In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01209-CR
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JAIRUS BAKER, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-69832-V
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OPINION
Before Justices Wright, Lang-Miers, and Mazzant
Opinion By Justice Mazzant
        Jairus Baker was convicted of capital murder and sentenced to life imprisonment. In seven issues, he complains about Batson error, legal and factual insufficiency, and evidentiary and jury charge error. We affirm the trial court's judgment.
Background
        In August of 2006, Marquis English lived at apartment 1187 of the Davenport Apartments in Dallas, Texas. Marquis and his friend, Jethro “Jeff” Laird, sold marijuana out of the apartment. Although he did not live there, Jeff paid some of the bills and supplied the marijuana, which was “taped and bricked” and covered in plastic. Appellant purchased small amounts of marijuana from Jeff and Marquis and occasionally gave them a ride in his green Cadillac. They did not know appellant's name but thought he stood out from their other customers as a “suspicious character.” Jeff referred to him as “that ni***r,” “that one,” and “that one guy.”
        On August 26, 2006, Marquis and Jeff spent most of the day at the apartment selling marijuana. Appellant had called “four to five times” that day about purchasing five pounds of marijuana then stopped by later in the afternoon to negotiate in person. After negotiating for five to ten minutes, however, he left without agreeing on a price. Jeff saw two or three other people in appellant's car when he left.
        Marquis and Jeff then left to run errands. While they were out, appellant called Jeff at around 8:00 or 9:00 p.m. and told him he was “in the area.” Concerned that appellant was going to try to take something from the apartment while they were away, Jeff spoke to his friend Donald “Donny” Williams and told him to go the apartment and wait outside until they returned. Marquis, meanwhile, received a telephone call from his friend Demarcus English, who wanted to watch a Dallas Cowboys pre-season game at the apartment with Marquis.
        When Marquis and Jeff parked their car and returned to the apartment, Demarcus was waiting for them. They walked to the apartment where Donny was sitting on the steps leading to the apartment. They saw appellant standing in a nearby courtyard with his hands behind his back. Marquis, Jeff, Donny, and Demarcus walked into the apartment. Appellant followed them inside. A moment later, however, appellant backed out of the door and said he needed to go back to the car and “get his money.” After appellant left, Marquis closed the door and the group talked about appellant's strange behavior and what “he was about to do.” Demarcus “made a comment about whether or not [they] had a gun.” Marquis, however, testified that there were no guns in the apartment. Although Jeff had previously brought guns to the apartment, there were no weapons in the apartment that day.         Jeff and Donny walked outside to determine whether appellant was still in the area. While they were outside, appellant called Jeff's cell phone, which was still in the apartment. Two or three minutes later, appellant knocked on the door and asked for Jeff. Marquis told him Jeff was in the parking lot. Shortly after appellant left, there was another knock on the door. Marquis opened the door and Jeff walked in followed by Donny and appellant. Demarcus was sitting on a sofa near the door.
        As Marquis turned around, he heard gunshots and fell to the ground after being shot in the side. He looked up and saw appellant holding a gun with a bandana wrapped around the handle. He also saw Jeff and Donny fall to the ground on top of each other. Appellant told them to “drop out,” which Marquis understood to be a demand for their money or drugs. Appellant looked at Jeff and said, “Did you think I was playing?” and “drop out.” Appellant then walked into the kitchen where Marquis and Jeff had measured the marijuana in appellant's presence earlier that day. He grabbed a red and white cooler containing the marijuana and headed for the front door. Before leaving the apartment, appellant dropped a clip out of his gun, put in another clip, and fired several more shots. He warned that he would shoot anyone who tried to follow him.
        After appellant left the apartment, Demarcus and Marquis checked on Jeff and Donny. Jeff was conscious, but Marquis could not get any response from Donny, and Marquis called 911. While waiting for the police and paramedics, Marquis loaded drug paraphernalia and “some things that were left over” into a cooler and threw it in “some bushes.” Demarcus also called 911 because he “felt like they w[ere] taking too long.” They waited approximately ten to fifteen minutes for the police to arrive.
        Dallas Police Officer David Feinstein was the first officer to respond to the 911 call. As he entered the apartment, he noticed two men lying flat on the ground who appeared to have been either shot or stabbed. One of the men was unconscious or possibly deceased while the other was conscious but “seemed to be in really bad shape.” Feinstein conducted a security sweep of the apartment to determine if the assailant was still inside. He asked the conscious victim several times “Who shot you?” The victim finally replied, “They call him J.”
        After the apartment was secured, paramedics arrived to treat the gunshot victims. Donny was pronounced dead at the scene. Jeff died a short while later at Parkland Hospital. According to the medical examiner, Donny and Jeff both died from multiple gunshot wounds.
        Dallas Police Detective Donald A. Whitsitt was responsible for photographing the crime scene and collecting and processing the physical evidence for the county lab. He found cartridge cases, bullets, and bullet fragments. He also recovered a Glock magazine, money, plastic baggies, and a “green leafy substance” that he believed to be marijuana. He observed and photographed “bullet defects” in the walls of the apartment. Officers also found a cell phone. In addition, officers found a Styrofoam cooler on a walkway between the apartments. Whitsitt photographed the contents of the cooler, which included a shoe box, a black plastic trash bag, and some marijuana.
        Both Marquis and Demarcus provided sworn, written statements. In his statement, Marquis indicated that he had seen the suspect, who he referred to by the nickname “D,” “four or five times” prior to the day of the shooting. According to the testimony of Mark Ahearn, the lead homicide detective on the case, Marquis also gave the police a physical description of the suspect and his clothing, i.e., blue jeans and a tan “polo-type” shirt with some sort of logo on it. Marquis told police that the suspect drove a dark green Cadillac with dark tinted windows. In his sworn statement, Demarcus provided a physical description of the suspect and said that he wore blue jeans and a gray t-shirt with maroon writing.
        Ahearn subsequently received a tip from a member of Donny's family about an individual from Louisiana known as “D” that might have been involved in the shooting. After talking to police officers who patrolled the neighborhood where the shooting occurred, Ahearn determined the suspect's identity. He then assembled a six-picture photographic lineup and showed it to Marquis, but Marquis was “adamant” that the suspect was not in the lineup and did not identify anyone. Continuing his investigation, Ahearn went to the North Central Police Substation and briefed the officers about the details of the offense, including a description of the suspect's vehicle. One of the officers at the substation recalled the dark green Cadillac and connected the vehicle with appellant.
        Ahearn obtained a photograph of appellant and used it in another six-picture photographic lineup that he showed to Marquis and Demarcus. Demarcus identified appellant's photograph and was “[a]round 80 percent” sure he was the shooter. At trial, he claimed he was “about 95 percent sure” that appellant was the shooter. Marquis looked at the photo lineup and immediately identified appellant as the person who shot him. Marquis also told police that he recalled Jeff referring to appellant as “that ni***r.”
        Ahearn reviewed another detective's notes for the cell phone recovered from the apartment and noticed that a call was received from an individual identified as “that ni,” which he assumed to be an abbreviation for “that ni***r.” Subpoenaed telephone records confirmed that the phone belonged to Jeff. According to those records, Jeff received telephone calls from one number, (214) 607-2975, at “numerous times during the . . . date of the offense.” The last call received from (214) 607-2975 was at 9:13 p.m. on August 26, 2006, and that caller was identified on Jeff's phone as “that ni.”
        Based on this information, Aheard prepared a probable cause affidavit and presented it to a Dallas County magistrate. On August 28, 2006, a warrant was issued for appellant's arrest. While officers were searching for appellant, Ahearn subpoenaed the telephone records for (214) 607-2975. According to the subpoenaed records, the subscriber name on the cell phone account was Kelly Baker, who provided the same address that police had on file for appellant. A total of ninety-seven calls were placed between (214) 607-2975 and Jeff's phone between June 25 and August 29, 2006. There were fifteen calls from (214) 607-2975 to Jeff's phone on the date of the offense. The records also indicated that the cell phone tower that transmitted the call to Jeff's phone at 9:13 p.m. on August 26 was less than a quarter of a mile from Marquis's apartment.
        On August 31, 2006, Officer Paul Inman and Officer Grajeda   See Footnote 1 of the Dallas Police Department's Gang Unit were searching in the vicinity of Interstate 20 and Lancaster Road because they had received information that appellant's cell phone was being used in that area. After they stopped at a truck stop to use the restroom, the officers saw appellant pumping gas nearby into a green Cadillac. Grajeda said to Inman, “That's him.” Appellant looked directly at the officers and asked, “What the f**k do y'all want with me?” When the officers got out of their car, appellant got into the driver's seat of the Cadillac and attempted to put the car into drive. Inman entered the passenger side of the Cadillac with his gun in his right hand and reached over with his left hand to keep the car from going into drive while Grajeda tried to pull appellant out of the car. As Inman and appellant tussled over the car's gear shaft, the vehicle “started moving forward.” Inman said, “I'm going to shoot you, if you don't stop.” Appellant replied, “Don't shoot me” and reached for Inman's hand. During the struggle, Inman dropped his gun and he and appellant fell out of the car and tumbled onto the ground. Inman managed to place one handcuff on appellant while appellant reached for Inman's empty gun holster. Grajeda tried to use his Taser gun on appellant, but it was not working. A nearby security guard and civilian bystander assisted Inman in handcuffing appellant. At the time of his arrest, appellant was wearing blue-jean-type shorts and a brown shirt “with some kind of logo on it.”
        After placing appellant under arrest, officers transported him to jail. The vehicle's contents were then inventoried. Officers found a live nine-millimeter cartridge round in the floorboard of the driver's side of appellant's car and an owner's manual to a Glock handgun in the trunk. Personal property was also found in the car, including a pair of sunglasses and a cell phone. Officers did not find any weapons in the car.
        Several other witnesses testified in addition to Demarcus, Marquis, and the police officers involved in the investigation. Robert Jolley, for example, lived across the hall from Marquis at the Davenport Apartments. On the night of August 26, 2006, he was on the balcony of his apartment smoking a cigarette when he saw a man walking towards Marquis' s front door. About five minutes later, this man walked right by him, stopped briefly to talk on a cell phone, and then walked around the corner. Jolley went back inside of his apartment and watched television. Two or three minutes later, he heard what he thought were fireworks. He opened the door to investigate but hesitated to walk outside because it might be “something different.” After hearing “another set of shots,” Jolley looked through the peephole and saw a black male running from Marquis's apartment holding a cooler. This man was wearing a dark brown shirt with “some kind of symbol on it” and dark blue jeans. Jolley identified appellant from a six-picture photographic lineup.
        Ladell Green testified that appellant was a cousin of his friend, William Baker. Green said he saw appellant at Baker's house in late August of 2006. Appellant asked if he could stay at Green's apartment for a couple of days. Green said yes and drove appellant to his apartment on Westmoreland and Ganon in the Oak Cliff area. Appellant brought with him a white bag with clothes in it, a black trash bag containing “a lot” of marijuana, and a gun. The next day, Green took appellant to a house on Mojave where he had left his car. Appellant was supposed to return to pick up the items he left at Green's apartment but never did. When the police arrived at Green's apartment, they told him they were “looking for a red cooler of some sort.” Green gave them permission to search. Inside the apartment, officers found a Lorcin nine-millimeter semi-automatic pistol, drugs, and marijuana.
        Angela Fitzwater, a forensic biologist at the Southwestern Institute of Forensic Sciences (SWIFS), performed DNA testing on several cartridges and an envelope found at Marquis's apartment. She also tested the pistol found at Green's apartment and the magazine found at the crime scene. She could not obtain DNA profiles from several of the items submitted for testing, and some of the DNA samples were of “very poor” or “degraded” quality. She identified Jeff's DNA on a scale found at Marquis's apartment and Jeff and Marquis's DNA on the envelope. DNA from an unknown male was found on several of the cartridges. Genetic markers consistent with appellant's were found on a swabbing taken from the pistol, but the DNA obtained from the pistol was of a “low and degraded quality.” The single genetic marker found on the magazine corresponded to Marquis, Demarcus, and appellant, but approximately one out of every two African- Americans share the same genetic marker.
        Heather Thomas was a firearm and toolmark examiner with SWIFS. She testified that all eleven of the nine-millimeter cartridge casings recovered from Marquis's apartment were fired from the same gun, a Glock pistol. She also testified that the gun recovered at Green's apartment could not have fired the cartridges or bullets found at Marquis's apartment.
        After the State rested, appellant presented the testimony of his mother, Jaquel “Kelly” Baker, who testified that appellant was living with her in August of 2006. She testified that she owned three vehicles, an Infiniti and two Cadillacs. During the last week of August 2006, she was driving her green Cadillac because her Infiniti was in the shop for repairs. According to appellant's mother, appellant did not have access to the green Cadillac until August 29, 2006, when she got her car out of the repair shop. Although appellant asked to borrow the green Cadillac on the night of August 26, 2006, she did not loan it to him because the vehicle was not in her possession. Jaquel also testified that she had inherited some money from her mother's estate in January 2006 and that she loaned her son $3,000 to invest in a “shoe business.” Appellant “knew he had access to whatever funds he needed.”
        Appellant testified that he first met Jeff in 2005 when he was living with his mother at the Davenport Apartments. A friend, T.K., introduced him to Jeff and told him that Jeff wanted to buy fifteen pounds of marijuana. Appellant, T.K., Jeff, and Jeff's friend, “Chico,” who also lived at the Davenport Apartments, went to the Huntington Ridge Apartments at Forest and Audelia to purchase fifteen pounds of marijuana from appellant's Jamaican friend, Tyo. When they arrived at the apartment, they examined the marijuana, which was compressed into bricks and wrapped in cellophane. Jeff had only $5400, so he told appellant that he would pay appellant's $225 “commission” at a later date. Appellant claimed Jeff was supposed to contact him about the $225 but never called. T.K. later brought appellant a quarter of a pound of marijuana from Jeff to settle the debt. Appellant told T.K. to tell Jeff that they were “even.” The next day, appellant was walking to a 7-Eleven when Chico, Jeff, and two other men drove up in a gray sedan and threatened him.
        Appellant claimed he did not see them again for nearly a year when he was living with his mother at the Ventana Apartments and selling shoes out of red Dodge Durango rented by his mother. He was at a car wash when he was approached by Jeff and Marquis about buying shoes. Jeff and Marquis both “bought a pair.” Jeff also told appellant that he “still sold marijuana and that he had a connection where if you purchase 20 or more that you will get it at $300 a pound.” The two of them exchanged telephone numbers. Appellant listed Jeff in his phone as “J-Rock.” Jeff listed appellant in his phone as “that ni***r.”
        Appellant and Jeff spoke several times over the next couple of weeks. Appellant claimed he sold only marijuana and that when one of his customers wanted cocaine, he called Jeff. On one occasion, appellant gave Jeff and Marquis a ride from a 7-Eleven to the Davenport Apartments. On the morning of August 26, 2006, Jeff called appellant and told him that a friend of his was “trying to get rid of” some marijuana for a price of $300 a pound with a minimum purchase of twenty “or more” pounds. Appellant decided to buy twenty-five pounds for $7500. Jeff called appellant several times during the day to see if he had the money. Appellant finally called Jeff after 6:00 p.m. and told him he was ready to make the purchase. He told Jeff to pick him up at the Ventana Apartments because he did not have a car.
        Appellant testified that Jeff came alone to pick him up. Appellant believed they were going to meet a man who lived in a condo across the street from the Galleria, but Jeff drove instead to the Davenport Apartments. When they arrived at the apartment complex and started walking to the apartment, appellant remembered that he left one of his cell phones in Jeff's car. He went back to the car to get it. After retrieving the phone, appellant called Jeff for directions to the apartment, which was number 1187.
        Appellant claimed he saw five men, including Jeff, inside the apartment. There were two handguns on a “middle table.” Appellant immediately suspected the apartment was “a trap,” which he described as a place for dealing drugs. After he sat on the sofa, Demarcus pointed a gun at him and said, “Ni***r, give me all of your money and drop out.” Appellant stood up and raised his hands. Donny came up behind him and went through his pockets, taking the $7500. Demarcus grabbed appellant's watch and reached for his neck chain. As Demarcus reached for the chain, appellant lunged at him and grabbed the hand that was holding the gun. Appellant and Demarcus wrestled, eventually falling on the floor. As they struggled, Demarcus fired the gun several times. When Demarcus stopped shooting, appellant fled the apartment. He heard several more shots after he left the apartment. Appellant did not know “who was shooting” or “what was being shot at.”
        Appellant initially ran toward his mother's apartment but went instead to a friend's apartment because he did not know whether he was being followed. Another friend later picked him up and drove him to his aunt's house on Mojave, where he stayed the night. Appellant admitted, however, that one of the reasons why he did not go to his mother's house was that he was on deferred probation for several offenses from 2005 and there was a warrant out for his arrest. Appellant and Ladell Green later went to Green's apartment, where they smoked marijuana and Green offered to sell appellant a Lorcin nine-millimeter pistol. The next day, according to appellant, Green drove appellant back to the house on Mojave to pick up his car. He drove the car to a gas station and was pumping gas when two police officers approached him. He tried to run because of the probation violations. Appellant denied trying to push the officer's gun away and claimed he was paralyzed when the Taser hit him. Appellant also denied wearing a brown shirt on the night of the murders. He claimed Demarcus fired all of the shots and that he did not know anyone had been hit when he ran from apartment 1187. He claimed all of the witnesses were lying.
Discussion
        Batson
        In his first issue, appellant claims the trial court erred in overruling his Batson challenge to the State's use of peremptory strikes of prospective jurors numbers 8, 17, 39, 48, and 49.
        When reviewing a Batson challenge, we examine the record in the light most favorable to the trial court's ruling and reverse only when the ruling is clearly erroneous. Herron v. State, , 630 (Tex. Crim. App. 2002); Pondexter v. State, , 581 (Tex. Crim. App. 1996); Bausley v. State, 997 S.W.2d 313, 315 (Tex. App.-Dallas 1999, pet. ref'd). A ruling is clearly erroneous if, after searching the record, we are left with the definite and firm conviction that the trial court has made a mistake. Bausley, 997 S.W.2d at 315. If the record, including voir dire, the prosecutor's explanation of his peremptory challenges, appellant's rebuttal, and any impeaching evidence, supports the trial court's ruling, then the ruling is not clearly erroneous. Id.
        To challenge the State's use of peremptory strikes under Batson, a defendant must first make a prima facie showing that the State exercised peremptory strikes on an impermissible basis. Herron, 86 S.W.3d at 630; Bausley, 997 S.W.2d at 316. Once a defendant makes a prima facie showing of purposeful discrimination, the State must provide a race or gender-neutral explanation for striking the prospective juror in question. Herron, 86 S.W.3d at 630; Pondexter, 942 S.W.2d at 581; Bausley, 997 S.W.2d at 316. This step requires an explanation devoid of inherent discriminatory intent. Bausley, 997 S.W.2d at 315 (citing Purkett v. Elem, , 768 (1995) (per curiam)). An explanation is neutral in this context if the State bases it on something other than the prospective juror's race or gender. See Hernandez v. New York, , 360 (1991). Unless discriminatory intent is inherent, the courts will consider the explanation race or gender- neutral. See id. at 360. If the State provides a race or gender-neutral explanation for its strikes, the defendant may rebut the State's explanation or show that the explanation was merely a sham or pretext. See Herron, 86 S.W.3d at 630; Pondexter, 942 S.W.2d at 581; Bausley, 997 S.W.2d at 316. To meet this burden, the defendant may call witnesses and introduce evidence just as in any other evidentiary hearing. Bausley, 997 S.W.2d at 316. The defendant has the ultimate burden of persuasion to establish the truth of his allegations of purposeful discrimination. Id. At this third step, the persuasiveness of the justification becomes relevant. See Purkett, 514 U.S. at 768.
        Following voir dire and the State's peremptory strikes, appellant's trial counsel objected that five of the State's six peremptory challenges were used to strike minorities. Appellant's counsel also complained that the five individuals peremptorily struck from the jury “comprised every minority on the panel eligible to serve on this jury” that was not successfully challenged for cause. In particular, counsel claimed the State struck prospective jurors 8, 17, 39, 48, and 49, who were African-American, for racially motivated reasons. The State responded with what it claimed were race-neutral reasons for striking the prospective jurors. Because the State offered its reasons for the strikes, the prima facie case inquiry is moot, and we determine whether the reasons offered are in fact race-neutral. Johnson v. State, , 649 (Tex. Crim. App. 2002).
        With respect to prospective juror number 8, Rowchelle Williams, the prosecutor claimed he struck Williams because she “voiced problems with eyewitness testimony.” A prospective juror's belief that eyewitness testimony is not reliable is a valid, race-neutral reason for striking a juror. Hughes v. State, 962 S.W.2d 89, 91 n.2 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd).
        Regarding prospective jurors 17, Dorthy Beard, and 39, Desiree Garcia, the prosecutor explained that he struck Beard because she “expressed concerns about bad experiences that people she knows have had with police officers” and that “[s]he also indicated initially that she's uncomfortable with the idea of assessing a life sentence without knowing anything about the defendant, particularly background, family matters, that type of thing.” In addition, Beard and Garcia both indicated that, on a scale of one to ten, they rated their local police officers as a “five” on their juror questionnaires. Garcia also stated that she would not say the police were “totally bad.” The prosecutor further explained that Garcia seemed “very youthful” and “immature” and that defense counsel did not ask her any questions, leading the prosecutor to believe that defense counsel saw “something that he liked in her.” These are valid, race-neutral reasons for striking prospective jurors. See Johnson, 68 S.W.3d at 649 (negative comments about police); Chambers v. State, , 24 (Tex. Crim. App. 1993) (en banc) (age); Ealoms v. State, 983 S.W.2d 853, 856-57 (Tex. App.-Waco 1998, pet. ref'd) (appearance and age); Brown v. State, 960 S.W.2d 265, 269 (Tex. App.-Corpus Christi 1997, no pet.) (age).
        Concerning prospective juror number 48, Denise Phelps, the prosecutor explained that he struck Phelps because she ranked “rehabilitation as her primary consideration in assessing punishment,” failed to disclose her husband's criminal history, and left several questions blank on her juror questionnaire. All of these are race-neutral reasons for striking a potential juror. For example, striking a prospective juror because she failed to fully complete the juror information card is a race-neutral reason for exercising a peremptory challenge. See Satterwhite v. State, , 423 (Tex. Crim. App. 1993). In addition, striking a prospective juror because she believes rehabilitation is the primary goal of punishment is also a race-neutral reason. Montgomery v. State, 198 S.W.3d 67, 76 (Tex. App.-Fort Worth 2006, pet. ref'd). We also note that Texas courts have held that striking a prospective juror because she had a family member or close friend who had been arrested, charged, or convicted of a crime is race-neutral. See Montgomery, 198 S.W.3d at 76-77; Garcia v. State, 833 S.W.2d 564, 567 (Tex. App.-Dallas 1992), aff'd on other grounds, (Tex. Crim. App. 1993).
        As for prospective juror number 49, Angela Moore, the prosecutor offered two reasons for striking her from the jury panel. First, in response to the question “What are your feelings in general about the criminal justice system?” she originally wrote the word “unfair” and then “crossed that out and went on to write a different response.” Moore also indicated on her questionnaire that punishment in the criminal justice system was “too harsh” and that her brother had been sentenced to “too much time” in a case involving possession of a weapon and drugs. We again note that strikes of prospective jurors because they have relatives or friends who had been arrested, charged, or convicted of a crime have been held to be race-neutral. See Montgomery, 198 S.W.3d at 76-77; Garcia, 833 S.W.2d at 567.
        After the State presented race-neutral reasons for the peremptory challenges, the burden shifted to appellant to rebut the State's explanations or show they were pretexts for racial discrimination. Defense counsel did not cross-examine the prosecutor about the proffered reasons or present any evidence showing the reasons given by the State were a pretext for racial discrimination. He did not refute the State's explanation for striking Williams. In an effort to rebut the State's explanations concerning Beard and Garcia, both of whom had rated their local police officers as a “five,” defense counsel argued that prospective jurors 13 and 14, and one of the jurors who was eventually selected, also rated their local police as a “five.” According to the prosecutor, juror 13 was struck for cause and the State exercised a peremptory challenge on juror 14, a Caucasian. Defense counsel tried to clarify Garcia's statement that the police were not “totally bad” by arguing that the statement had been taken out of context, noting “she says not totally bad and not totally good in her explanation of the five.” Counsel argued that Phelps did not disclose her husband's criminal record because she thought only felonies had to be disclosed on the juror questionnaire. Appellant also argued that jurors other than Phelps had left their questionnaires “completely blank.” The prosecutor replied that jurors who left their questionnaires “completely blank were also excused.”
        Appellant now argues that the disparate treatment given to the African-American jurors suggests the prosecutor's explanations were merely a pretext for racial discrimination. When, however, the State offers multiple race-neutral reasons for challenging a potential juror, the fact that other jurors possessed one or more of the objectionable attributes is not sufficient to establish disparate treatment. “'Disparate treatment,' as such, cannot automatically be imputed in every situation where one of the State's reasons for striking a venire person would technically apply to another venire person whom the State found acceptable.” Cantu v. State, , 689 (Tex. Crim. App. 1992). “[I]t is unlikely that two venirepersons on one panel will possess the same objectionable attribute or character trait in precisely the same degree. Such quantitative distinctions may cause a prosecutor to challenge one venire person and not the other.” Id. Furthermore, we give great deference to the trial court's decision on the issue of purposeful discrimination because it requires an assessment of the credibility and content of the prosecutor's reasons and all other relevant facts and circumstances. Alexander v. State, , 8 (Tex. Crim. App. 1993). Based on the record before us, we conclude appellant has failed to meet his burden of proving discrimination in the State's use of peremptory strikes. We therefore overrule appellant's first issue.
        Legal and Factual Sufficiency
        In his second and third issues, appellant argues that the evidence is legally and factually insufficient to support the capital murder conviction.
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, , 319 (1979); Lane v. State, , 191-92 (Tex. Crim. App. 2004). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, , 524 (Tex. Crim. App. 2007); Watson v. State, , 415 (Tex. Crim. App. 2006); see also Marshall v. State, , 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
        Section 19.03(a)(7)(A) of the penal code provides that a person commits capital murder if he commits murder and murders more than one person during the same criminal transaction. Tex. Penal Code Ann. § 19.03(a)(7)(A) (Vernon 2003). To obtain a capital murder conviction, the State therefore had to prove that appellant intentionally and knowingly caused the death of Jethro “Jeff” Laird by shooting him with a firearm, a deadly weapon, and during the same criminal transaction, appellant intentionally or knowingly also caused the death of Donald “Donny” Williams by shooting him with a firearm, a deadly weapon. See id. §§ 19.02(b)(1), 19.03(a)(7)(A).   See Footnote 2
        Beginning with appellant's legal sufficiency challenge, Marquis and Demarcus testified that appellant entered the apartment and started firing a handgun, striking Marquis as well as Donny and Jeff. Both Donny and Jeff died as a result of multiple gunshot wounds. See Brown v. State, , 800 (Tex. Crim. App. 2003) (intent to kill may be inferred from use of deadly weapon).
Marquis and Demarcus also testified that appellant grabbed a cooler containing marijuana and fled the apartment. Robert Jolley testified that he heard shots and identified appellant as the man he saw running from Marquis's apartment. The jury also heard testimony that appellant attempted to flee from Inman and Grajeda when they were trying to arrest appellant. See, e.g., Bigby v. State, , 883 (Tex. Crim. App. 1994) (en banc) (evidence of flight is admissible as a circumstance from which a jury may draw an inference of guilt). Officers found marijuana packaged like the marijuana taken from Marquis's apartment at the apartment where appellant stayed after the murders. As the finders of fact, the jurors were the exclusive judges of the witnesses' credibility and the weight to be given to their testimony. They were free to accept or reject any or all of the evidence presented by either side. Margraves v. State, , 919 (Tex. Crim. App. 2000); Harvey, 135 S.W.3d at 717. Viewing the evidence in the light most favorable to the verdict, the jury could have rationally concluded that appellant committed capital murder.
        As for the factual sufficiency of the evidence, although conflicting and inconsistent testimony was presented, the resolution of conflicts in the evidence and credibility of witnesses lies within the province of the jury, not the appellate court. We cannot conclude that a conviction is clearly wrong or manifestly unjust merely because we would have decided differently or because we disagree with the jury's resolution of the conflicts in the evidence. Watson, 204 S.W.3d at 417. Appellant's testimony and his mother's testimony that appellant did not have access to the green Cadillac on the night of the murders was not such strong evidence that the beyond-the-reasonable-doubt standard could not have been met. Accordingly, the jury's verdict was rationally justified and was in no way “clearly wrong or manifestly unjust” or “against the great weight and preponderance of the evidence.” See Roberts, 220 S.W.3d at 524; Marshall, 210 S.W.3d at 625. We overrule appellant's second and third issues.
        Rules 403 and 404
        In his fourth issue, appellant claims the trial court erred by admitting “extraneous offense” evidence that he tried to flee from police during his arrest.
        According to the record, appellant objected outside the presence of the jury to the admission of extraneous offense evidence that he tried to take a gun from the officer who was trying to arrest him. He argued the evidence was inadmissible under rule 401, rule 404(b), rule 403, and that the “unfair prejudice with regard to those allegations outweighs the probative value.” The State argued that evidence of appellant's fight with police and attempted escape showed “flight, which is clearly admissible as evidence of guilt.” The trial court overruled appellant's objections.
        We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Torres v. State, , 760 (Tex. Crim. App. 2002); Burden v. State, , 615 (Tex. Crim. App. 2001). As long as the trial court's ruling falls within the zone of reasonable disagreement, we should affirm. Moses v. State, , 627 (Tex. Crim. App. 2003).
        “'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401. Evidence of extraneous offenses is generally not admissible. Tex. R. Evid. 404(a). However, rule 404(b) allows evidence of other crimes, wrongs, or acts if the evidence has relevance apart from character conformity. Tex. R. Evid. 404(b); Carter v. State, 145 S.W.3d 702, 707 (Tex. App.-Dallas 2004, pet. ref'd). Evidence of other crimes, wrongs, or acts may be admissible to prove identity or intent, to establish motive, or to show opportunity or preparation. Tex. R. Evid. 404(b); Moses v. State, , 626 (Tex. Crim. App. 2003); Carter, 145 S.W.3d at 707. Rebuttal of a defensive theory such as mistake or accident is also one of the permissible purposes for which relevant evidence may be admitted under rule 404(b). Moses, 105 S.W.3d at 626.
        Although admissible under rule 404(b), evidence may still be excluded under rule 403 if the danger of unfair prejudice substantially outweighs its probative value. Tex. R. Evid. 403; Rogers v. State, , 266 (Tex. Crim. App. 1999). The court of criminal appeals has explained that the term “unfair prejudice”

refers not to an adverse or detrimental effect of evidence but to an undue tendency to suggest a decision on an improper basis, commonly an emotional one. Unfair prejudice does not arise from the mere fact that evidence injures a party's case. Virtually all evidence that a party offers will be prejudicial to the opponent's case, or the party would not offer it. Evidence is unfairly prejudicial only when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justifies its admission into evidence. The prejudicial effect may be created by the tendency of the evidence to prove some adverse fact not properly in issue or unfairly to excite emotions against the defendant.

See Casey v. State, , 883 (Tex. Crim. App. 2007) (citations omitted).
        Rule 403 favors the admission of relevant evidence, and it is presumed that relevant evidence will be more probative than prejudicial. Shuffield v. State, , 787 (Tex. Crim. App. 2006). “A proper Rule 403 analysis includes, but is not limited to, the following factors: (1) the probative value of the evidence; (2) the potential of the evidence to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence.” Prible v. State, , 733 (Tex. Crim. App. 2005).
        Texas law has long recognized that evidence of flight or escape is admissible evidence from which an inference of guilt may be drawn, subject only to the requirement of relevancy to the offense under prosecution. See Bigby, 892 S.W.2d at 883; Burks v. State, , 903 (Tex. Crim. App. 1994); Cantrell v. State, , 92 (Tex. Crim. App. 1987); Foster v. State, , 859 (Tex. Crim. App. 1989); Burks v. State, 227 S.W.3d 138, 148 (Tex. App.-Houston [1st Dist.] 2006, no pet.). Evidence of flight is admissible even though it may show the commission of other crimes. Cantrell, 731 S.W.2d at 92. Such evidence is also relevant to show efforts made to locate or apprehend a defendant, his pursuit and capture, and the circumstances of his arrest, including his resistance. Id. Flight is no less relevant if it is only flight from custody or to avoid arrest. See Burks, 227 S.W.3d at 148; Burks, 876 S.W.2d at 903; Foster, 779 S.W.2d at 859. In this case, evidence that appellant attempted to reach for a police officer's gun and flee from the truck stop was relevant because it showed the officer's efforts to apprehend appellant and the circumstances of his arrest. See Cantrell, 731 S.W.2d at 92.
        To have such evidence excluded, the burden shifted to appellant to affirmatively show that the escape and flight were directly connected to some other transaction and not connected to the offense at trial. See Wockenfuss v. State, , 632 (Tex. Crim. App. 1975); Burks, 227 S.W.3d at 148; Lee v. State, 176 S.W.3d 452, 462 (Tex. App.-Houston [1st Dist.] 2004), aff'd on other grounds, (Tex. Crim. App. 2006). Appellant did not meet this burden. He testified at trial that he attempted to flee from the officers because he was wanted for a probation violation and did not want to go back to jail. Such testimony, however, only showed that appellant had an additional reason for running from the police. It did not affirmatively show that his flight was unconnected to the capital murder offense. See Hodge v. State , , 873 (Tex. Crim. App. 1974) (op. on reh'g) (“If the defendant offers evidence that the escape and flight may have sprung from some other cause, but its connection to the offense on trial remains a logical one, the evidence [of flight] would still be admissible, the defensive evidence going only to the weight of evidence”); Wockenfuss, 521 S.W.2d at 632. Thus, the evidence was relevant and admissible. See Tex. R. Evid. 401, 404(b).
        Appellant also argued that the prejudice substantially outweighed the probative value of the evidence. Considering the rule 403 factors, the complained-of evidence was probative because it showed the context and circumstances of appellant's arrest. We further note that the State spent relatively little time developing this evidence as opposed to the total amount of time devoted to its case-in-chief. Inman was one of sixteen witnesses who testified for the State, and his testimony occupies only a small portion of the trial record. We are also not persuaded that the evidence had a tendency to suggest a decision on an improper basis or that it impressed the jury in an irrational way. And although appellant claims the risk of unfair prejudice substantially outweighed the probative value of the evidence, he fails to point out in what way the evidence was improper. We therefore conclude that the trial court did not abuse its discretion by overruling appellant's evidentiary objections. We overrule appellant's fourth issue.
        Self-defense
        In his fifth issue, appellant argues that the trial court erred by refusing to instruct the jury on the law of self-defense.
        At the charge conference, the trial court asked the parties if they had any objections to the proposed jury charge. The State offered no objections. Appellant, however, objected “that there be no instruction on self-defense, no instruction on the felony murder rule, and no lesser included offense of murder.” The trial court overruled each of these objections.
        We review alleged charge error by considering (1) whether error existed in the charge and (2) whether sufficient harm resulted from the error to compel reversal. See Middleton v. State, , 453 (Tex. Crim. App. 2003); Posey v. State, , 60 & n. 5 (Tex. Crim. App. 1998). When properly requested, the trial court must instruct the jury on every defensive theory raised by the evidence, and it makes no difference whether such evidence or testimony was produced by the prosecution or the defense or whether such defensive evidence or testimony might be strong, weak, unimpeached, or contradicted. Ferrel v. State, , 591 (Tex. Crim. App. 2001); Smith v. State, , 586-87 (Tex. Crim. App. 1984). However, before a defendant is entitled to a jury instruction on self-defense, the defendant must provide some evidence that, when viewed in the light most favorable to the defendant, will support the self-defense claim. Zuliani v. State, , 594 (Tex. Crim. App. 2003); Ferrel, 55 S.W.3d at 591; Hill v. State, 99 S.W.3d 248, 250 (Tex. App.-Fort Worth 2003, pet. ref'd). In other words, a defendant must provide some evidence that he was authorized to use deadly force under either 9.31 or 9.32 of the Texas Penal Code. See Tex. Penal Code Ann. §§ 9.31, 9.32 (Vernon Supp. 2008).
        In this case, appellant was not entitled to a self-defense instruction under section 9.31 or 9.32. In his testimony, appellant asserted that Demarcus fired the weapon. He never admitted to shooting Jeff and Donny with a firearm as alleged in the indictment. When he fled the apartment, appellant also claimed he did not know whether anyone had been shot. As the court of criminal appeals has stated,

. . . [W]hen the defensive evidence merely negates the necessary culpable mental state, it will not suffice to entitle the defendant to a defensive instruction. Rather, a defensive instruction is only appropriate when the defendant's defensive evidence essentially admits to every element of the offense including the culpable mental state, but interposes the justification to excuse the otherwise criminal conduct.

Shaw v. State, , 659 (Tex. Crim. App. 2007). Because appellant did not admit to the charged conduct, he was not entitled to an instruction on self-defense under section 9.31 or 9.32. We overrule appellant's fifth issue.
        Felony Murder
        In his sixth issue, appellant argues that the trial court should have submitted a jury instruction on the lesser-included offense of felony murder. See Tex. Penal Code Ann. § 19.02(b)(3) (Vernon 2003).
        We follow a two-pronged test to determine whether a defendant is entitled to an instruction on a lesser-included offense. See Guzman v. State, , 188 (Tex. Crim. App. 2006); Salinas v. State, , 741 (Tex. Crim. App. 2005). The first step is to determine whether the offense is a lesser-included offense of the alleged offense. Hall v. State, , 535 (Tex. Crim. App. 2007); Salinas, 163 S.W.3d at 741. This determination is a question of law and does not depend on the evidence presented at trial. Hall, 225 S.W.3d at 535.
        An offense is a lesser-included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006). When the greater offense may be committed in more than one manner, the manner alleged will determine the availability of lesser-included offenses. Hall, 225 S.W.3d at 531.
        The second step is to determine if there is some evidence that would permit a rational jury to find that the defendant is guilty of the lesser offense but not guilty of the greater. Id. at 536; Salinas, 163 S.W.3d at 741; Feldman v. State, , 750 (Tex. Crim. App. 2002). Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a charge on the lesser offense. Hall, 225 S.W.3d at 536. “[I]t 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, , 441 (Tex. Crim. App. 2003). We review all evidence presented at trial to make this determination. Rousseau v. State, , 673 (Tex. Crim. App. 1993). If the evidence raises the issue of a lesser-included offense, a jury charge must be given based on that evidence, “whether produced by the State or the defendant and whether it be strong, weak, unimpeached, or contradicted.” Id. at 672.
        Felony murder is an unintentional murder committed in the course of committing a felony.
Fuentes v. State, , 271 (Tex. Crim. App. 1999). Felony murder occurs when an individual “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)(3) (Vernon 2003). The difference between capital murder and felony murder is that capital murder requires the specific intent to kill while felony murder requires only the intent to commit the underlying felony. See Salinas, 163 S.W.3d at 741. In felony murder, the culpable mental state for the act of murder is supplied by the mental state accompanying the underlying felony. Id. (citing Rousseau, 855 S.W.2d at 673). The general rule is that felony murder is a lesser-included offense of capital murder. See id.
        In this case, appellant claims he was entitled to an instruction on felony murder because his testimony at trial showed that “he was committing or attempting to commit a felony and in the course thereof committed an act clearly dangerous to human life that caused the death of an individual.” Appellant, however, does not identify the underlying felony offense (e.g., robbery, kidnapping), nor does he cite to the record in support of his argument. But regardless of the possible application of section 19.02(b)(3) to the facts of this case, felony murder is not a lesser-included offense of capital murder in this instance because the conduct establishing felony murder is not included within the conduct charged in the indictment, i.e., that appellant intentionally or knowingly caused the death of Jethro Laird by shooting him with a firearm, a deadly weapon, and during the same criminal transaction, appellant intentionally or knowingly caused the death of Donald Williams by shooting him with a firearm, a deadly weapon. See Tex. Penal Code Ann. § 19.02(a)(7)(A) (Vernon 2003). Therefore, the first prong is not satisfied and the trial court did not err by refusing to submit appellant's requested jury instruction on felony murder. See Hall, 225 S.W.3d at 531 (when greater offense may be committed in more than one manner, manner alleged will determine availability of lesser-included offenses); Irving v. State, , 846 (Tex. Crim. App. 2005) (“A trial court is not required to instruct a jury on a lesser-included offense where the conduct establishing the lesser offense is not 'included' within the conduct charged; i.e. within the facts required to prove the charged offense”).
        As for the second part of the test, appellant does not point to, nor do we find, any evidence indicating that he could have been found guilty of only felony murder and not of capital murder. According to the record, appellant either intentionally shot and killed both victims or, as appellant claims, he never fired a weapon at all. There is no evidence that he intended to commit only any act clearly dangerous to human life. See Mohammed v. State, 127 S.W.3d 163, 167 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd) (no evidence appellant intended to commit only an act clearly dangerous to human life that caused death of the complainant because evidence showed either that appellant committed an intentional killing or that he was completely unaware of the act that subsequently caused the victim's death). Given the evidence before us, a rational jury could not have found appellant guilty of only felony murder and not of capital murder. We overrule appellant's sixth issue.         Murder
        In his seventh issue, appellant argues that the trial court should have submitted a jury instruction on the lesser-included offense of murder. See Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003). The State argues there is no evidence that appellant was guilty of only murder.
        Under section 19.02(b)(1) of the penal code, a person commits the offense of murder if he intentionally or knowingly causes the death of an individual. See Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003). The State acknowledges that murder is a lesser-included offense of capital murder. See Threadgill v. State, , 665 (Tex. Crim. App. 2004). Thus, the question is whether there is some evidence that would permit a rational jury to find that appellant was guilty only of murder. Id.
        After reviewing the record, we conclude the second part of the test is not satisfied here because we find no evidence indicating that appellant could have been found guilty of only murder. No evidence presented at trial showed that appellant possessed one of the culpable mental states as to one of the victims, but not as to the other victim. In fact, appellant did not claim he intentionally or knowingly caused the death of either Jethro Laird or Donald Williams. He testified that Demarcus fired the gun. Accordingly, the trial court did not err by refusing to submit a jury instruction on the lesser-included offense of murder. We overrule appellant's seventh issue.
        We affirm the trial court's judgment.


                                                          AMOS L. MAZZANT
                                                          JUSTICE

Do Not Publish
Tex. R. App. P. 47
071209F.U05

Footnote 1 The record does not reveal the officer's first name.
Footnote 2 The indictment also charged that appellant intentionally or knowingly caused the death of Jethro Laird by shooting him with a firearm, a deadly weapon, and during a different criminal transaction but pursuant to the same scheme or course of conduct, appellant intentionally or knowingly also caused the death of Donald Williams by shooting him with a firearm, a deadly weapon. This theory was not submitted to the jury.

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