STOREY v. STATE, AP-76,018 (Tex.Cr.App. 10-6-2010)

ooking at the evidence, that I could convince you, depending on the facts, that there are facts that could convince you that a Defendant is a future threat to society?

A. Yes. If the evidence that you present makes the case, yes.

Q. Okay. And if you did not believe that somebody was a future threat to society, your answer would be no to this question?

A. That is correct.

Q. And he would get a life sentence without parole. Okay?

A. Correct.

Q. All right. If you answer this question yes, then you move on to the second question.

And this is where we talked about the difference between should have anticipated and actually anticipated. Okay? Because you look at this question and it begins the same way, do you find beyond a reasonable doubt. Okay? Because that tells you [the prosecutor] has a responsibility. I have a job to do to prove to you that this answer must be yes. Okay?

A. Okay.

Later, defense counsel discussed the State's burden to prove all the elements of the offense beyond a reasonable doubt:

Q. Beyond a reasonable doubt is not legally defined. And it's kind of interesting because if — if we go to the Court in a civil suit, if you sue me for backing into your car in the parking lot and sue me for damages, whoever has — whoever proves their case by a preponderance of the evidence in a civil court is going to win.

And preponderance of the evidence is the standard of proof that is applied to making that decision by the jury, and it's legally defined. It's the greater weight and degree of the credible evidence. And we sometimes illustrate it with a set of scales. Whichever side can tip the scales one way or another, they're entitled to a verdict. Anything over 50 percent of the evidence, I win. See how that works?

A. Yes, sir.

Q. Okay. Beyond a reasonable doubt, while it's not defined, it is more than that. All right?

If the State comes in to try to terminate my parental rights of my seven-year-old son on the basis that I'm an unfit parent, the State has to prove that I am unfit by clear and convincing evidence. Okay? And that's legally defined.

And it means evidence of such a nature that would be sufficient to establish in the juror's mind a firm conviction or belief as to — as to the truth of the allegation that I'm unfit. Okay?

A. Okay.

Q. Proof beyond a reasonable doubt is more than that. Okay?

It says proof beyond a reasonable doubt. And — and I guess when — you know, the law says that that's not proof beyond all doubt because we presume there may be some doubts that are not based in reason. All right?

A. Okay.

Q. But any doubt, any reasonable doubt, is sufficient to return a verdict of not guilty. It's the highest burden recognized in the law.

You see — do you have some feel for what we're looking at in that regard?

A. Yes, sir.

Q. Okay. It's — and it's even more difficult because it's an individual standard. We don't tell the jury, go back there and come up with a definition for the group as to what beyond a reasonable doubt means. Okay?

A. Okay.

Q. It's that degree of satisfaction or confidence that you have to have acting as a juror that the evidence tells you you're doing the right thing, so to speak.

And if you don't have that confidence, if you don't have that degree of satisfaction, basically, that that's the right answer, if you've got some reasonable doubt based on the evidence, then you're — you find him not guilty. Okay?

A. Okay.

Q. Do you have any questions about that?

Do you feel like you have some understanding about what we're looking for or what we're talking about when we say proof beyond a reasonable doubt?

A. Yes, sir, I do understand that concept and I — I believe I can — based on the evidence and the facts, I can make a determination.

Q. Okay. Do you have some thought as to what it might personally mean to you? I mean, in light of all the — what we've discussed, as to what that standard might personally mean to [you]?

MS. JACK: I'm going to object. That calls for a commitment question.

THE COURT: Calls for a what?

MS. JACK: Commitment answer.

THE COURT: I'm sorry. I couldn't hear you.

MS. JACK: Commitment answer, Judge, as to what his personal definition of reasonable doubt is.

THE COURT: Okay. I'll sustain the objection to the question.

Q. (By Mr. Moore) Well, let me just ask you, what is your definition of beyond a reasonable doubt?

MS. JACK: Same objection, Judge.

THE COURT: I'll — I'm going to sustain the objection to the question.

MR. MOORE: Okay.

Q. (By Mr. Moore) Well, let me go on.

Whatever it means to you is the burden that you — you got to prove. Okay?

And they got to prove every element. Earlier Ms. Jack was talking to you about, you know, some elements — they got to prove it all, not — not just some. And some jurors have problems with looking at the elements of the offense. You know, it's a pretty easy decision if the question is did they get the right weapon, did they do it — you know, they pled that he hit him in the head with a brick and the evidence shows that they pushed him over the edge of a cliff.

You see what I mean?

A. I do.

Q. And the law says that the jury, if they have a doubt on any of the evidence, whether it's by mistake on their part or whatever it is, if they don't meet the burden of proof on any element, the result is the same.

* * *

And — and I guess that's the end of the story because — I mean, the end of the question because the jurors look at this and say, well, you know, if I find the guy not guilty because he hit him in the head with an ax instead of shooting him with a gun, the guy goes home, you know, and it's all over. Then I'm — I'm in a position of letting somebody off on a murder that I know that he committed, it's just because of some oversight, mistake or vagary of the proof that I'm being required to do that.

And it takes a certain degree of mental discipline and fortitude in order to do that in that circumstance. You see what I mean?

A. Yes, sir.

After counsel finished questioning Griffin, he challenged him for cause, asserting that the court erred by restricting the voir dire and not allowing him to ask Griffin his understanding of the term, "reasonable doubt." The challenge for cause was denied. Counsel had already exhausted his peremptory challenges, and so he moved for an additional peremptory challenge, asserting that Griffin was an objectionable juror, and that if he had an additional peremptory challenge, he would exercise it on Griffin. The trial court denied this motion. Griffin was seated as the twelfth juror. Appellant's proffered questions concerned a proper area of inquiry. Arguably, these questions were not repetitive because, when counsel asked them, Griffin had not yet been asked to provide his definition of reasonable doubt. However, a review of the whole voir dire reveals that the parties covered this area of inquiry thoroughly, and Griffin responded to their questions without equivocation. Griffin clearly stated that he would require the State to prove every element of the offense, and the first two punishment issues, beyond a reasonable doubt. Both parties explained the State's burden of proof, and Griffin affirmed that he understood this burden and that he would hold the State to it. When the State's objections to the proffered questions were sustained, counsel discussed the mental discipline and fortitude that might be required to hold the State to its burden of proving every element as charged. Griffin again affirmed that he understood and would follow the law. Even assuming that the trial court erred by sustaining the State's objections to the proffered questions, appellant was not harmed. A review of the entire voir dire reveals that Griffin's understanding of "reasonable doubt" would not render him challengeable for cause. He affirmed that he understood the parties' explanations of the State's burden of proof and that he would set aside his personal views and follow the law. See Murphy, 112 S.W.3d at 597-98; Wheatfall, 882 S.W.2d at 835. Griffin's answers to the proffered questions might have informed the intelligent exercise of a peremptory challenge, but appellant had already exhausted his peremptory challenges when Griffin came before the court for questioning. Appellant was not entitled to receive additional peremptory challenges. See Art. 35.15(a), (d); Hogue v. State, 711 S.W.2d 9, 28 (Tex. Crim. App. 1986) (whether to grant additional peremptory challenges is within the trial court's discretion). Accordingly, even assuming that the proffered questions were denied in error, appellant was not harmed. Points of error four and five are overruled. BATSON CHALLENGE In his sixth point of error, appellant alleges that the trial court erred in overruling his Batson objection to the State's use of a peremptory challenge on prospective juror Curtis Patterson, an African-American. Appellant argues that the State's proffered race-neutral reasons for challenging Patterson are not supported by the record and are insufficient to rebut the prima facie case of racial discrimination. Appellant further argues that he demonstrated that the prosecutor's proffered reasons were merely a pretext because defense counsel proved "that several white jurors preferred rehabilitation but were not challenged by the state and that no juror was sleeping." A defendant objecting under Batson must make a prima facie showing of racial discrimination in the State's exercise of its peremptory challenges. See Batson, 476 U.S. at 106; see also Mathis v. State, 67 S.W.3d. 918, 924 (Tex. Crim. App. 2002). The burden then shifts to the State to articulate race-neutral explanations for its strikes. Mathis, 67 S.W.3d at 924. Once the prosecutor has articulated race-neutral explanations, the burden shifts back to the defendant to show that the explanations are a pretext for discrimination. Id. The trial court must then determine whether the defendant has carried his burden of proving discrimination by a preponderance of the evidence. Id.; see also Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008). This step of the Batson inquiry involves an evaluation of the prosecutor's credibility, in which the trial court's firsthand observations of the demeanor of the prosecutor and, frequently, the demeanor of the prospective juror are of great importance. Snyder v. Louisiana, 552 U.S. 472, 477 (2008). The ultimate burden of persuasion regarding racial discrimination never shifts from the defendant. Purkett v. Elem, 514 U.S. 765, 768 (1995). When the prosecutor has articulated race-neutral explanations and the trial court has ruled on the ultimate question of discrimination, the issue of whether an appellant established a prima facie case becomes moot. Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992). On appeal, the trial court's determination is accorded great deference and the trial court's ruling will not be disturbed unless it is clearly erroneous. Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004); Mathis, 67 S.W.3d at 924. Here, during the State's voir dire, Patterson indicated that he had previously served on juries in criminal cases but he had never been called upon to reach a verdict because the cases were always dismissed or the parties reached a plea agreement. He did not recall that any of those cases involved an offense more serious than a traffic ticket. He indicated that his sister had once been employed as a jailer. Patterson did not express any confusion or hesitation about finding a defendant guilty in a capital case if the State proved the elements of the charged offense beyond a reasonable doubt. The questioning then focused on the requisite mental state for capital murder and the parties issues at guilt and punishment, and Patterson indicated that he understood the prosecutor's explanations. When the prosecutor's questioning turned to the future dangerousness issue, Patterson's responses revealed no confusion or hesitation. However, when the State asked Patterson whether he could keep an open mind in deciding whether to give an affirmative or negative answer to the mitigation issue, Patterson returned to the topic of future dangerousness:

Q. Okay. You — you will receive an instruction that a mitigating circumstance is a circumstance or evidence that a juror might regard as reducing the person's moral blameworthiness. Okay?

A. Uh-huh.

* * *

Q. But if you've answered those first two questions yes, you get this question. All right? And when you get to this question, it's asking you to step back and review all the evidence.

Some people might say, You know what? I found him guilty, I said he was a future danger, and he meant that this person die. Okay?

A. (Moving head up and down.)

Q. In their mind, there's never going to be something that outweighs all of that, okay —

A. Uh-huh.

Q. — that's sufficiently mitigating to warrant a life sentence. Okay?

A. (Moving head up and down.)

Q. Do you think that this is a question, depending on the circumstances, that could be answered yes or no?

Or is that one you'd be inclined, if you got this far, to answer it no so the death penalty resulted?

Or let me ask you the reverse. Would you be inclined at this point to always want to answer that yes to spare somebody the death penalty?

A. It has a lot to do with — if the person, to me, is going to go out and do all this over again, if — it has a lot to do with, you know, just like I say, his background, everything. Because this all has to play in there whether he's going to continue to do this.

Q. Okay. Remember, I don't have to prove he's going to kill again. All right?

He's — you know, a life sentence would be that he be locked up the rest of his life.

A. Well, I can — you know, I can see a life sentence for all that's been done, but as far as if you give him the death penalty, that's — you going to have to — you know, to me, I have to see it in my mind that he's going to be worse in the — in the prison system and go out there and hurt the population in the prison system to even go death penalty.

Q. Okay. So are you saying that I would have to — well, I mean, you remember in the first question you would have answered that you felt that he was a future danger, that he'd continue to commit criminal acts —

A. Right.

Q. — of violence, okay?

A. I mean, you can always do that in the prison system, too.

Q. So — okay.

So do you think that's something I would be — ever be able to prove to you, knowing that he would be locked up for the rest of his life?

I mean, would you require me to prove — I mean, you already required me to prove — or I'm required to prove that first question should be yes. Okay?

A. Uh-huh.

Q. But I want to make sure I understood your question — I mean, your — your answer that — when you said that I would have to prove it to you that he would continue to do this in prison?

A. Well, see, it's — it's just like that. Prison system is a population, too. It's just they're locked down.

Q. Uh-huh.

A. I mean, if you're going to go into the prison system and take lives, I mean, that tells me that it doesn't make any difference where you are, inside or out. That would probably be — I would lean — lean more towards, you know . . .

Q. Lean toward — more as toward what?

A. The — the death penalty.

If — if you cannot control yourself inside as well as, you know, what you're doing outside, I'm just saying I'm more likely to sign on as far as the death penalty goes.

Q. Okay.

A. But if you — you're already going to the prison and you've already, you know, kind of repented, then I'm more likely to see you as — you know, just go ahead and — and have him in there the rest of his life, and he's not going to hurt anybody else while he's in there.

Q. Okay. Because he's been behaving?

A. Yeah.

Q. Okay. And that — that would make you more likely than not to — to choose life over death?

A. More likely.

Q. And do you have any questions on that particular question?

A. (Moving head side to side.)

Q. Have I explained it adequately?

A. Well . . .

Q. I know that's a dangerous question.

A. Yeah. You — but as far as I'm concerned, I mean, there's a population inside prison, there's a population outside of prison. And the person shows repentance as he's going to prison and I know he's not going to hurt anybody else, well, then, you know, life sentence seems reasonable.

Now, did I confuse you?

Q. I'm not sure.

So I guess what you're telling me is that you'd need a pattern of conduct or threat of violence before you could ever answer that question?

A. No, not really. I — you know, I mean, if he's proved that — you can prove that he's done the deed and he's guilty of it, I can find him guilty, you know.

Q. Right.

A. Give him a life sentence.

Now, if he's a real bad character to the point where he's rabid and he's going to hurt even the prison population, you know, there's no point — you already convicted him. All you can do is give him life, okay, sentence.

He gets in there, he decides, I'm already here, might as well kill a few people while I'm here, hey, just go ahead and give him the death penalty and be done with it.

Q. Okay. Just so I — I mean, are you saying that you want me to show you that he'd kill again?

A. No, no, no.

Q. Okay.

A. His — his — his behavior —

Q. Okay.

A. — up to this point will tell you that, you know. That he's going to go and do his time and he's going to do whatever he has to do and — and act accordingly while he's there. Okay?

Q. Uh-huh.

A. And then, you know, he's not going to be a danger to anybody else in the prison system because you still got wardens, guards, and everything else.

And if he's likely to hurt people outside for just a few dollars, and he has no, you know, conscience, no repentance over that, then you put him into a prison system and he's going to take out a guard, regardless.

You see what I mean?

Q. Uh-huh.

A. Well, I'm — you know, then that person, to my mind, is — you know, is more likely to need the death penalty.

Q. Uh-huh.

I guess — you — you used the — take out a guard or — or kill again in prison.

A. Yeah, because he — my — that could easily have been my sister.

Q. Okay.

A. You see what I mean?

Q. Yeah.

I'm just curious how someone could prove that to you.

Q. Well —

MR. RAY: Judge, I'm going to object to asking for a specific set of facts. That would be binding.

THE COURT: Okay. I'll sustain the objection.

Q. (by Mr. Foran) Do you think that's some — well, based on your answers, are you going to require the State to prove to you that he would kill again?

MR. RAY: I object again. That's binding.

THE COURT: I'll sustain the objection again. I think he's answered that anyway, but I'll sustain the objection to the question that's being asked.

Q. (By Mr. Foran) Well, let's go back to the question number one, then, where we — you know, where we would have to prove to you that a person would commit criminal acts of violence.

In your mind, criminal acts of violence, would that mean that someone would have to kill again?

MR. RAY: I object again, Judge. It's binding.

MR. FORAN: Well —

MR. RAY: Kill again.

MR. FORAN: I'm entitled — I'm entitled to ask him his understanding.

MR. RAY: No, he's not.

MR. FORAN: Yes, I am.

MR. RAY: Kill — kill again is a binding question. He can ask him about acts of violence, but he cannot —

THE COURT: I'll sustain the objection to it.

MR. RAY: Thank you.

Q. (By Mr. Foran) I mean, you've repeatedly said on several occasions about whether or not someone would kill in prison. Okay? Is that right?

A. Uh-huh.

Q. Is that a yes? Because she's typing down everything you say.

A. Yes. I said yes.

Q. Okay. And so I'm trying to understand your — your response as it relates to this question here.

A. Okay. If — if there's a reasonable doubt that he's not likely to commit any criminal acts, I — I don't see it.

Q. Okay.

A. You know, I mean, if he's already done this and you can prove it to me, well, then I'm going to judge him accordingly as far as guilty. But —

Q. We're past that stage here.

A. Okay. I understand that.

But if he's — his behavior is so bad that if he's in the penal system that he's likely to hurt someone else, you know, why are you going to put him into a situation where he's going to go and hurt someone else in the penal system? You know what I mean?

Q. Well, and you said, "hurt someone else." Okay?

A. As far as taking a life.

Q. Taking another life?

A. Yeah.

Q. Okay.

A. And in — in that — in that venue.

Q. So that's what it means to you?

A. Yeah.

The prosecutor then began discussing the lesser-included offense of murder, but before he could pose any more questions, the trial court informed him that his hour was up and that he needed to "finish up real quick." The prosecutor then asked Patterson for his date of birth and whether he had ever lived on Willie Street. The trial court then recognized the defense. Defense counsel asked Patterson about his affirmative response on the questionnaire to Question Number 82, whether innocent people ever get convicted of crimes, and his written explanation that "back then we didn't have DNA." Patterson explained that it seemed that a lot of previously convicted people were being exonerated by DNA evidence, especially in rape cases. He did not express any confusion or hesitation about counsel's explanation of the State's burden of proof, the punishment questions, and the need for jury unanimity. At the conclusion of defense counsel's questioning, the prosecutor challenged Patterson for cause, asserting that Patterson would increase the State's burden of proof and that he could not impose the death penalty unless the State proved that the defendant would murder again. Defense counsel responded that he did not think Patterson had "said all that." The court agreed with defense counsel and denied the State's challenge for cause. The prosecutor then exercised a peremptory challenge. Defense counsel requested a Batson hearing, noting for the record that Patterson and the defendant were both African-American. The prosecutor then noted for the record that only two prospective jurors who had previously come before the court for questioning were African-American. One had been seated on the jury and the other had been disqualified by her views on the death penalty. The prosecutor then explained his reasons for exercising a peremptory strike against Patterson. The prosecutor's first reason for striking Patterson was that he would increase the State's burden of proof with respect to the future dangerousness question, in that he would define the issue in terms of the probability that the defendant would murder someone in the prison system. He would require the same type of evidence before he would give a negative answer to the mitigation question. Based on the facts of this case, where the defendant had a limited or nonexistent history of bad behavior while in custody, the State could never prove to Patterson's satisfaction that the answers to the punishment questions should result in the death penalty. Patterson's questionnaire was consistent with this view, in that he listed "mass murderers" as the best argument in favor of the death penalty. The second reason the prosecutor struck Patterson was that he indicated a general distrust of the criminal justice system on his questionnaire. To Question Number 37, which asked the prospective juror to explain why a life sentence might be appropriate in some cases, Patterson answered, "Depending on whether you can afford a good lawyer." Similarly, to Question Number 46, which asked for the prospective juror's "personal opinion about the criminal justice system and the way that it works," Patterson answered, "If you have enough money for a good lawyer, you have a chance to win." The prosecutor asserted that this answer was similar to the answer of another juror, who had stated on his questionnaire that the criminal justice system was corrupt and who had been excused by agreement. The third reason the prosecutor struck Patterson was his answer to Question Number 49 on the questionnaire, in which he ranked "punishing a person" as the least important purpose of the criminal justice system. The prosecutor preferred jurors who ranked punishment as the most important purpose. The fourth reason the prosecutor struck Patterson involved his previous jury service. Patterson had previously served on a jury in a criminal trial in which the defendant was charged with aggravated robbery with a deadly weapon. In that case, the jury acquitted the defendant. The prosecutor had a policy in felony cases of striking any venireperson who had ever served on a jury that found a criminal defendant not guilty. Additionally, the prosecutor was troubled by Patterson's failure to mention that case when the prosecutor questioned him about his previous jury service. Defense counsel then questioned the prosecutor about this fourth explanation for striking Patterson. During this questioning, it became apparent that in order to discover that Patterson had previously served on a jury that acquitted a defendant of aggravated robbery with a deadly weapon, the prosecutor had cross-referenced a jury record obtained from the county against a jury record that the district attorney's office maintained. Counsel noted for the record that the prosecutor had refused to provide him with the district attorney's jury records, and that when counsel had moved to compel production of these records, the trial court had denied the motion, ruling that these records were privileged attorney work product. The prosecutor then indicated that he would provide counsel and the court with copies of the records on which he was relying to strike Patterson. Once the State articulated race-neutral reasons for striking Patterson, the burden shifted back to the defendant to show that the State's explanations were a pretext for discrimination. Concerning the State's first stated reason for the strike, defense counsel argued that Patterson never said that he would increase the State's burden of proof. Concerning the State's second and third reasons for striking Patterson, counsel argued that although Patterson's questionnaire answers were potentially viable reasons for exercising a strike, the prosecutor did not question Patterson about these answers, and they were not "borne out by" what Patterson "said in fact" during voir dire. Concerning the State's fourth reason, counsel noted that he had no way to confirm the accuracy of the district attorney's jury record, which was based on information that prosecutors entered after jury selection. Counsel clarified that he was not disputing the accuracy of that record, but was pointing out that the defense did not have access to it. The trial court found that Patterson was not disqualified by his answers but that "he obviously said some things that the State would be very concerned with. . . . I think the State has its neutral reasons and I'm going to deny the motion, the Batson motion." Patterson was then excused. The trial court did not specify which of the State's four explanations constituted sufficiently race-neutral reasons. However, all of the State's explanations were facially race-neutral. "[W]hen the State has offered more than one plausible reason for striking a venireperson, it is proper to review these reasons in their entirety in order to assess whether the State's explanation was valid or merely pretextual." Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992). Here, it appears that the State's reasons were reasonable and credible bases for exercising a peremptory challenge. See, e.g., Mines v. State, 852 S.W.2d 941, 946 (Tex. Crim. App. 1992), vacated and remanded on other grounds, 510 U.S. 802 (1993) ("the circumstances in this case present the precise situation where a peremptory challenge is appropriate, viz: the prospective juror is not challengeable for cause, but the prosecutor does not believe the venireperson will be a favorable juror for the State"). Patterson's answers during voir dire conveyed the impression that he would not answer the future dangerousness issue affirmatively unless he was persuaded that the defendant was likely to kill someone in prison, and his written questionnaire answers expressed his opinion that a criminal defendant's ability to obtain a favorable result depended on his ability to afford a good lawyer. The trial court was in the best position to determine whether the State's explanations were sufficient and genuine, and this determination will not be overturned on appeal unless it was clearly erroneous. See Gibson, 144 S.W.3d at 533-34; Jasper v. State, 61 S.W.3d 413, 421-22 (Tex. Crim. App. 2001); see also Watkins, 245 S.W.3d at 447. Taking into consideration all relevant circumstances, we find that the trial court's determination that appellant failed to prove discrimination is supported by the record and is not clearly erroneous. Point of error six is overruled. RECORDS OF PAST JURY SERVICE In his seventh point of error, appellant alleges that the trial court erred by denying his motion for the State to provide records of prospective jurors' past jury service that were maintained in the district attorney's office. He asserts that he was harmed because the State's failure to provide this information with respect to Patterson deprived the defense of an opportunity to test the veracity of one of the State's proffered race-neutral reasons for striking Patterson. Appellant argues that the trial court erred because "the requested information is not privileged and its disclosure is mandated under the Texas Open Records Act." However, the trial court did not err by denying appellant's motion. See Etheridge v. State, 903 S.W.2d 1, 7 (Tex. Crim. App. 1994) ("We have previously held that `the State has no obligation to furnish counsel for the accused with information he has in regard to prospective jurors.'" (quoting Martin v. State, 577 S.W.2d 490, 491 (Tex. Crim. App. 1979))), superceded by statute on other grounds as stated in Diaz v. State, 110 S.W.3d 181, 184 (Tex. App.-San Antonio 2003); see also Enriquez v. State, 429 S.W.2d 141, 145 (Tex. Crim. App. 1968). Moreover, the record does not support appellant's claim of harm. When defense counsel explained at the Batson hearing that the defense had not had an opportunity to verify the jury records on which the State was relying to strike Patterson, the prosecutor stated that he would provide the defense with those records. The record on appeal is silent as to whether the prosecutor ultimately provided those records. If Patterson's jury records were never provided to the defense, or if they were provided and defense counsel discovered that they did not support the prosecutor's proffered reason for striking Patterson, it was incumbent upon the defense to present this matter to the trial court and develop the record. See, e.g., Word v. State, 206 S.W.3d 646, 652 (Tex. Crim. App. 2006) ("It is usually the appealing party's burden to present a record showing properly preserved, reversible error"); Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004) ("An appellate court may not consider factual assertions that are outside the record"); see also Moore v. State, 999 S.W.2d 385, 397-98 (Tex. Crim. App. 1999). The silent record on appeal does not support appellant's contention that the prosecutor never provided counsel with Patterson's jury records. The State's brief on appeal construes appellant's claim to be that he was harmed by the State's failure to provide this information with respect to all prospective jurors. We do not read appellant's claim so broadly. In any event, we need not reach the matter because we have already held that the trial court did not err by denying appellant's motion. Point of error seven is overruled. CONSTITUTIONALITY OF ARTICLE 37.071 In his twelfth and thirteenth points of error, appellant asserts, "Special Issue N[umber] Three of Article 37.071 [(the mitigation issue] is unconstitutionally vague and indefinite," in violation of his rights under the Fourteenth Amendment to the United States Constitution and Article I, Section 19, of the Texas Constitution. In his fourteenth and fifteenth points of error, appellant claims that the trial court erred in overruling his Motion Number 45, "Defendant's Supplemental Motion to Declare the Texas Death Penalty Procedure and Article 37.071, Texas Code of Criminal Procedure Unconstitutional," because Article 37.071 violates the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 13, and 19, of the Texas Constitution. In his sixteenth point of error, appellant claims, "The Texas death penalty scheme violates appellant's right to due process under the United States Constitution because the punishment special issue relating to mitigation fails to require that the State prove the absence of sufficient mitigating circumstances beyond a reasonable doubt." We have previously rejected these claims. See Busby v. State, 253 S.W.3d 661, 667 (Tex. Crim. App. 2008); Russeau v. State, 171 S.W.3d 871, 886 (Tex. Crim. App. 2005); Sells v. State, 121 S.W.3d 748, 767-68 (Tex. Crim. App. 2003); Brooks v. State, 990 S.W.2d 278, 288 (Tex. Crim. App. 1999); Raby v. State, 970 S.W.2d 1, 9 (Tex. Crim. App. 1998). Appellant raises nothing new to persuade us to reconsider them. Points of error twelve through sixteen are overruled. We affirm the judgment of the trial court.

Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure.

The record reflects that the Explorer was owned by appellant's mother, but appellant drove it regularly.

Appellant explained that this was his term for pumping gas into a vehicle and then driving away without paying.

In the body of his argument in support of his eighth point of error, appellant also asserts that evidence was seized during the search of his vehicle and residence in violation of the Fifth and Fourteenth Amendments to the United States Constitution, Article I, section 9, of the Texas Constitution, and Articles 1.04, 1.06, 38.22, and 38.23, of the Code of Criminal Procedure. Appellant mentions that he filed pre-trial motions to suppress this evidence based on the absence of valid consent and the absence of a valid search warrant. However, he does not assert or argue that the trial court erred by denying these motions. Nor does he allege any facts or cite any legal authority in support of these claims. To the extent that he intends to challenge the seized evidence, his point of error is inadequately briefed. It is also multifarious. See Tex. R. App. P. 38.1; Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000). We decline to address this portion of appellant's eighth point of error.

Because appellant does not argue that the Texas Constitution provides or should provide greater or different protection than the federal constitution, his tenth point of error is inadequately briefed and will not be addressed. See Murphy v. State, 112 S.W.3d 592, 596 (Tex. Crim. App. 2003).

Appellant's brief cites to Article 38.22, section 2, which governs the admissibility of written statements. The record in this case does not reflect that any written statements were admitted into evidence; rather, recordings of appellant's oral statements were admitted. The admissibility of oral statements is governed by Article 38.22, section 3. We presume that appellant intends to rely on Section 3.
Appellant also alleges that his statements were taken in violation of Article 1.05 and Article 38.23. However, except for his previous point of error alleging that his statements were involuntary, appellant does not describe how the taking of his statements violated these articles. Therefore, any additional grounds of error implicating Article 1.05 and Article 38.23 are inadequately briefed. See Tex. R. App. P. 38.1.

Within this argument, appellant further asserts that his arrest was illegal because the arrest warrant was not proper and not based on probable cause, and so his third statement, which was taken after his arrest, was the result of an illegal arrest and the fruit of the poisonous tree, in violation of the Fourth Amendment of the United States Constitution and Article I, section 9, of the Texas Constitution. Appellant does not describe the contents of the arrest warrant or allege any facts in support of his conclusory assertions. Therefore this complaint is inadequately briefed. It is also multifarious. See Tex. R. App. P. 38.1. We decline to develop appellant's argument for him. See Cardenas, 30 S.W.3d at 393.

State's Exhibits 2, 4, and 6 are unredacted audiovisual recordings of the three interviews that the judge reviewed in making her decisions on appellant's motions to suppress his statements.

The United States Supreme Court has held that peremptory challenges are not required by the United States Constitution, and so the fact that a proffered question would prompt "a revelation [that] would be of some use in exercising peremptory challenges" does not mean that such a question is compelled by the federal constitution, so long as the failure to ask it does not render the trial fundamentally unfair. Mu'Min v. Virginia, 500 U.S. 415, 425 (1991).

The erroneous prohibition of proper questioning of individual prospective jurors is subject to the harm analysis traditionally applied to the erroneous denial of a defendant's challenge for cause. For the erroneous denial of challenges for cause, a defendant is harmed only if (1) he exhausts all of his peremptory challenges, (2) he requests more challenges, (3) his request is denied, and (4) he identifies an objectionable person seated on the jury on whom he would have exercised a peremptory challenge. Anson v. State, 959 S.W.2d 203, 204 (Tex. Crim. App. 1997) (citing Janecka v. State, 937 S.W.2d 456, 470-71 471 n. 9 (Tex. Crim. App. 1996)).

Batson v. Kentucky, 476 U.S. 79 (1986).

Appellant asserts that defense counsel proved "that several white jurors preferred rehabilitation but were not challenged by the state and that no juror was sleeping." However, defense counsel never mentioned during voir dire that white jurors who "preferred rehabilitation" were not challenged by the State, and the record is devoid of any reference to a sleeping juror. Appellant has not identified any non-African-Americans who served on the jury and who were similarly situated to Patterson.

The State's third explanation-that Patterson ranked punishment as the least important purpose of the criminal justice system-is somewhat problematic. The State failed to question Patterson about this ranking, and moreover the State did not strike four other prospective jurors who ranked "punishing the person" as the least important purpose of the criminal justice system. "If a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step." Miller-El v. Dretke, 545 U.S. 231, 241 (2005). On the other hand, when the State offers numerous race-neutral reasons for a peremptory challenge, "we cannot say that the fact that there were other acceptable jurors possessing one or more of these objectionable attributes, is sufficient to establish disparate treatment." Adanandus v. State, 866 S.W.2d 210, 225 (Tex. Crim. App. 1993).
Concerning the State's fourth explanation, appellant now asserts that Patterson's previous jury service is "not a sufficiently neutral reason to strike a juror." However, this argument is inadequately briefed because appellant offers only his bare assertion, in a single sentence, that Patterson's previous jury service is not a sufficiently race-neutral reason for striking him. See Tex. R. App. P. 38.1; see also Watkins v. State, 245 S.W.3d 444, 455 (Tex. Crim. App. 2008) ("prosecutors frequently exercise peremptory challenges to eliminate potential jurors who have acquitted criminal defendants in the past").

In his motion, appellant asked the trial court to order the State to provide the defense with the State's prior histories of the prospective jurors summoned in this case. He requested that these histories be provided to the defense after the venire was initially seated but prior to the time for the defendant to move for a jury shuffle.

Arguably, once the jury service records with respect to Patterson were expressly cited by the prosecutor during the Batson hearing, the trial court would have erred by denying a defense motion to disclose those records. However, appellant does not allege, and the record does not show, that he moved for disclosure at that time.