In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-26-00047-CR
MURPHY WARD, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 4
Tarrant County, Texas
Trial Court No. 1809888
Before Bassel, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
After a jury found Appellant Murphy Ward guilty of the second-degree felony
offense of aggravated assault with a deadly weapon and the trial court sentenced him
to thirty-five years’ confinement,1 he now appeals. See Tex. Penal Code § 22.02. In
three points, Ward argues that the trial court erred in calculating the strike zone2 for
alternate jurors, excluding criminal background information about the victim, and
overruling Ward’s Batson challenge. We will affirm.
II. BACKGROUND3
On August 14, 2022, Talon Connery was moving out of the apartment he had
shared with Ward. Ward also shared the apartment with Connery’s mother, Franita.
Because Connery and Ward had a contentious relationship, Connery had stored most
of his belongings in the trunk of Franita’s car while he lived in the apartment. After
spending time with Franita earlier in the day, Connery went back to his then-girlfriend
1
The indictment included one count of aggravated assault against a family member, one count—in two paragraphs—of aggravated assault with a deadly weapon, and one count of unlawful possession of a firearm. At trial, the State abandoned one paragraph of the second count that alleged aggravated assault by threat.
2
The term “strike zone” is not defined by statute but refers to “the group of potential jurors capable of being on the jury.” Comeaux v. State, 445 S.W.3d 745, 751 (Tex. Crim. App. 2014).
3
Because evidentiary sufficiency is not at issue, we recite here only the facts of the offense and reserve further detailed background as necessary for analysis.
2
Chelsea’s apartment, where he received repeated calls from Franita informing him that
Ward had thrown Connery’s belongings out of the trunk of the car and into the
parking lot.
While waiting for Connery to arrive, Franita moved his belongings away from
the back of the car and piled them on the pavement nearby. Ward backed the car out
of its parking space and stopped it in the lane of traffic facing the exit to the street.
Connery and Chelsea arrived a few minutes later, and Connery began collecting
his belongings. Franita helped him, and they argued while they worked. Chelsea
drove her car further into the lot, turned around, parked behind Ward in the lane of
travel, and then got out to help Connery and Franita.
While Franita and Connery argued, Ward drove the car slowly into the back of
Connery’s and Franita’s legs. Connery walked up to the car and slapped Ward.
Chelsea walked out of the parking lot and shouted to Connery that they should leave.
Ward stepped out of the car, argued with Connery, and then went back to the car.
Connery turned to resume collecting his belongings.4
4
The foregoing was based upon Connery and Franita’s testimony at the final trial in this case and surveillance video taken of the apartment complex. Ward recalled several of the events differently. He first denied that he drove into Connery and Franita with the car and then later said that “the car bumped them just a little bit.” The State asked him if “the car did it by itself.” He replied, “That’s correct.” Ward also stated that Connery did not slap him but struck him in the face with a closed fist, picked him up by his collar, pushed him against a nearby fence, and then pushed him back into the car.
3
Ward retrieved Franita’s gun from the locked glove compartment of her car
and shot Connery in the back from more than ten feet away.5 Police arrived shortly
thereafter and arrested Ward.
Ward was indicted for shooting Connery, pleaded not guilty, demanded a trial
by jury, and elected to have his punishment, if any, assessed by the trial court. At the
end of his trial, Ward was convicted of one count of aggravated assault with a deadly
weapon causing bodily injury and sentenced to thirty-five years’ confinement with no
fine. He now appeals.
III. DISCUSSION
In three points, Ward argues that he was deprived of a fair jury by the trial
court’s method of selecting alternate jurors, that his testimony about the victim’s prior
bad acts was improperly excluded, and that the trial court erred in denying his Batson
challenge.
5
At trial, Ward said that he did not recall this event because he was “having a seizure or something.” He said that Franita retrieved the gun from the glove compartment and that “from that point on, I remember she and I were wrestling for the gun.” On cross-examination, Ward said he did not recall wrestling with Franita over the gun. He said that while he did shoot Connery in the back, he did so in self-defense because as Connery left he said, “I’ll be back.” Because Ward had seen photographs of Connery with handguns, he was afraid that Connery would arm himself and return. Ward also testified that he did not recall how he got the gun and did not recall shooting Connery.
4
A. Calculation of Alternate-Juror Strike Zone
In his first point, Ward complains of the trial court’s method for selecting
alternate jurors from the venire panel. He argues that the trial court’s practice of
setting strike zones for the jury and for the alternate jurors before allowing the parties
to exercise their peremptory challenges deprived him of the right to intelligently
exercise his peremptory challenges. We begin by considering the process of which
Ward complains.
1. Background
The parties in this case each received ten peremptory challenges for jurors and
one additional peremptory challenge for alternates. See Tex. Code Crim. Proc.
arts. 33.011, 35.15. After resolving the parties’ challenges for cause, both Ward and
the State agreed with the trial court that the strike zone for the twelve jurors would be
veniremembers one through thirty-nine, exclusive of those already struck or released.
The trial court then set the strike zone for the alternate jurors to be the next four
veniremembers, numbered forty through forty-three.
Ward objected, arguing that the trial court erred by calculating the
alternate-juror strike zone before the parties had exercised their peremptory
challenges. The trial court asked Ward to “direct [it] to a provision in Chapter 35 of
the Texas Code of Criminal Procedure that would require the [court] to first
determine the [twelve] jurors and then adjust or move the strike zone in accordance
with” the objection. Ward responded that “there’s no law either way as to how the
5
[trial court] would decide which jurors are in the zone for being an alternate juror.”
Ward argued that the strike zone as calculated could “render someone’s peremptory
challenges . . . ineffective.” He explained:
In other words, if we did it the [trial court’s] way and I exercised my
peremptory challenge on Venireperson [forty-three] and the last person
eligible to be on the jury is [forty-one], then I have been denied the
exercise of my peremptory challenge because I had to exercise it on
someone who wasn’t even . . . a possibility for the jury.
The trial court overruled Ward’s objection “[i]n accordance with 35.15 of the
Texas Code of Criminal Procedure” and recited again the two strike zones: after the
challenges were resolved, the jury would be formed from the first twelve eligible
veniremembers of those numbered one through thirty-nine, and the alternate jurors
would be the first two eligible veniremembers of those numbered forty through
forty-three.
After both sides exercised their peremptory challenges,6 the trial court selected
the first twelve eligible veniremembers to form the jury. The last selected juror’s
number was thirty-three. The trial court then selected two alternate jurors from
eligible veniremembers numbered forty through forty-three.7
There was one overlapping challenge, and the State exercised fewer than all its
6
challenges.
The State struck veniremember forty. Ward struck veniremember forty-three.
7
Veniremembers forty-one and forty-two were selected as alternate jurors.
6
After the trial court resolved Ward’s Batson challenges, he renewed his earlier
strike-zone objection and argued that because of the parties’ overlapping peremptory
challenge and the State’s having used fewer than all of its challenges, the trial court
should have recalculated the alternate-juror strike zone to begin with veniremember
thirty-seven.8 The trial court articulated its understanding of his objection:
And but for the Court’s earlier ruling[,] the two persons who have been
selected to serve as alternates, [veniremembers forty-one and forty-two],
according to you, . . . would not even have been within the window of
opportunity to serve as alternate jurors because the window of
opportunity to serve as an alternate juror would have been [thirty-seven],
[thirty-eight], [thirty-nine], and [forty]; is that correct?
Ward replied, “That is correct,” and then he elaborated:
And, also, when it came time to exercise our peremptory challenge for
the alternate, we exercised that on Venireperson [forty-three], and
Venireperson [forty-three] is way down the line and was not in the zone
of peremptory strikes for an alternate juror. That would have been
[thirty-seven], [thirty-eight], [thirty-nine], and [forty].
The trial court then released the unselected veniremembers and proceeded with the
trial.
Citing the Code of Criminal Procedure, Ward argues on appeal that “[s]election
of alternate jurors should be treated as distinct and separate from selection of the
We note that this objection directly contradicts Ward’s argument on appeal
8
that his use of his alternate-juror peremptory challenge on veniremember forty-three was “ineffectual because it fell outside the zone of venirepersons from which the alternate jurors were selected” because the trial court did recalculate the strike zone— which the record shows the trial court did not do.
7
primary panel.” We therefore consider the prescribed procedure for selection of
alternate jurors.
2. Applicable Law
The Code of Criminal Procedure does not directly address whether a trial court
should or even may calculate the strike zones for jurors and alternate jurors before
allowing the parties to exercise peremptory challenges, but neither does it require the
performance of two discrete processes. When forming juries in non-capital felony
cases involving a single defendant—such as this one—the State and defendant shall
each be entitled to ten peremptory challenges.9 Tex. Code Crim. Proc. art. 35.15(b).
The State and the defendant shall each be entitled to one additional peremptory
challenge if—as in this case—two alternate jurors are to be impaneled. Id.
art. 35.15(d). Additional peremptory challenges for alternate jurors may be used as to
an alternate juror only, and other peremptory challenges allowed by law may not be
used against an alternate juror. Id.10 “When the parties have made or declined to
If two or more defendants are tried together, each defendant receives six
9
peremptory challenges, and the State receives six peremptory challenges per defendant. Tex. Code Crim. Proc. art. 35.15(b).
10
The Government Code contains a very similar statute, providing “one peremptory challenge in addition to those otherwise allowed by law or by rule if one or two alternate jurors are to be impaneled.” Tex. Gov’t Code § 62.020(e). That statute also contains a restriction that additional challenges may be used against alternate jurors only and prohibition against the use of other peremptory challenges against alternates. Id. At least one court interpreting Section 62.020 has held that a trial court does not necessarily err when it does not recalculate the strike zone for alternate jurors when the strike zone for jurors subsequently changes during jury
8
make their peremptory challenges, they shall deliver their lists to the clerk” who
“shall . . . call off the first twelve names on the lists that have not been stricken” to
form the jury. Id. art. 35.26(a).
In a capital case in which the State seeks the death penalty, the court may direct
that two alternate jurors be selected and that the first fourteen names not stricken be
called by the clerk, with the last two names being the alternate jurors. Id. art. 35.26(b).
In a death-penalty case, “the selection of alternate jurors is treated as distinct and
separate from the primary panel.” McFarland v. State, 928 S.W.2d 482, 508 (Tex. Crim.
App. 1996). There is no analogous rule in non-capital felony cases. No statute or
case law prescribes a two-step procedure for peremptory challenges requiring that
peremptory challenges to alternates must be exercised after resolving peremptory
challenges to the jury.11 Rather, conduct of voir dire is left to the sound discretion of
the trial court. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002); Allridge v.
State, 850 S.W.2d 471, 479 (Tex. Crim. App. 1991). That discretion is not limitless
and is reviewable for an abuse of discretion. Allridge, 850 S.W.2d at 479.
selection due to juror reinstatement after a Batson challenge. See Boones v. State, 170 S.W.3d 653, 658 (Tex. App.—Texarkana 2005, no pet.).
The Court of Criminal Appeals recently referred to submission of all
11
challenges as a single list as “essentially follow[ing] the procedure for non-capital cases.” Chavez v. State, No. AP–77,117, 2026 WL 2435378, at *3 (Tex. Crim. App. Aug. 20, 2026).
9
3. Application
As a general proposition, we agree with Ward that no statute prohibits the trial
court from conducting two discrete processes for jurors and for alternates. But
neither is the practice prescribed, based upon the plain language of the statute.
Ward complains that the trial court miscalculated the range of veniremembers
who were eligible to be alternate jurors. He argues that, because veniremembers
thirty-seven, thirty-eight, and thirty-nine would have been eligible to serve as alternate
jurors,12 allowing him to exercise a peremptory challenge on veniremember forty-three
effectively denied him intelligent use of his alternate-juror peremptory challenge.13
12
Ward argues that the parties’ overlapping peremptory challenge and the State’s not having used all of its peremptory challenges shifted the alternate-juror strike zone and caused his exercise of his peremptory challenge against veniremember forty-three to be ineffectual because it fell outside the strike zone from which alternate jurors were finally selected. However, this is not what the record reflects. The trial court’s initial calculation of the alternate-juror strike zone—forty through forty-three—did not differ from the group of veniremembers from whom the alternates were selected. To the extent that Ward argues that the trial court would have erred had it recalculated the alternate-juror strike zone to comprise veniremembers thirty-seven, thirty-eight, thirty-nine, and forty-one after the parties exercised their peremptory challenges, we do not address hypothetical contentions because we cannot render advisory opinions. See Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App. 1991); see also Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam) (“Under article II, section 1 of the Texas Constitution, courts have no jurisdiction to issue advisory opinions.”).
13
Although neither party uses the terms, expressly raised the issue at trial, or provides citations to relevant authority on appeal, Ward’s objection at trial and argument on appeal seem to imply that the veniremembers who were not selected from the end of the first strike zone were, effectively, prospective jurors otherwise qualified to serve who were improperly excused sua sponte by the trial court. See Green v. State, 764 S.W.2d 242, 246 (Tex. Crim. App. 1989) (holding that a defendant
10
Ward states that the trial court’s “improper methodology and erroneous strike
zone calculation deprived [him] of the intelligent use of his peremptory challenge
against the potential alternate jurors, one of whom served on the jury,”14 which he
now argues was error of “State constitutional dimension.” However, Ward did not
object on any constitutional basis in the trial court.
Ward objected twice to the trial court’s alternate-juror selection process. In the
first objection, he argued that the alternate-juror strike zone could change if there
were overlapping or unused peremptory challenges, potentially depriving him of his
alternate-juror peremptory challenge. In his second objection, Ward argued that the
can show harm when a qualified juror is improperly excused by establishing that the State exhausted all its peremptory challenges); Goodman v. State, 701 S.W.2d 850, 856 (Tex. Crim. App. 1985) (“If the trial court erroneously excludes a qualified juror, then the state has in effect received the benefit of an additional peremptory strike.”); see also Warren v. State, 768 S.W.2d 300, 303 (Tex. Crim. App. 1989) (applying holding in Green to non-capital cases). In this case, the State exercised fewer than all its peremptory strikes. Even presuming Ward had made this argument, he could not show harm under this theory. See Green, 764 S.W.2d at 246.
14
After the unselected veniremembers were excused, one juror asked to address the trial court because, although he felt he could not say so before the assembled venire, he would give additional weight to police testimony and would assume Ward was guilty. Ward moved to challenge the juror for cause. The trial court granted the challenge, struck the juror, seated the first alternate in his place, and stated that trial would proceed with one remaining alternate. Asked if that “grant[ed] the relief that [he] requested,” Ward said that it did. Ward did not then object to veniremember forty-one as objectionable or ask for an additional peremptory strike. See Garcia v. State, 663 S.W.3d 92, 97 (Tex. Crim. App. 2022) (“A timely objection allows the trial court an opportunity to prevent or correct errors.”); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (“The two main purposes of requiring a specific objection are to inform the trial judge of the basis of the objection so that he has an opportunity to rule on it and to allow opposing counsel to remedy the error.”).
11
trial court should have recalculated the alternate-juror strike zone after striking
veniremembers based upon the parties’ peremptory challenges.
Although his argument at trial clearly preserved an objection to the trial court’s
alternate-juror selection process, Ward did not raise the constitutional argument he
now raises. When the trial court asked the legal basis of his objection, Ward said
there was none and offered no constitutional basis. See Tex. R. App. P. 33.1(a)(1)(A);
Harrison v. State, 187 S.W.3d 429, 433 (Tex. Crim. App. 2005); Heidelberg v. State,
144 S.W.3d 535, 537 (Tex. Crim. App. 2004). Failure to object can forfeit even an
error involving constitutional rights. Muniz v. State, 851 S.W.2d 238, 255 (Tex. Crim.
App. 1993). We will consider nonetheless the rights Ward argues were at issue.
For the proposition that the error was one of constitutional dimension, Ward
relies upon a federal case, Murphy v. Florida, 421 U.S. 794, 799–800, 95 S. Ct. 2031,
2036 (1975). In Murphy, the petitioner argued that he was deprived of a fair trial
because he was unable to challenge for cause several veniremembers who “had a
vague recollection of the robbery with which the petitioner was charged.” Id. at 800,
95 S. Ct. at 2036. Ward does not explain how this analogizes to a trial court’s alleged
error in calculating strike zones, and he does not suggest that he was prevented from
challenging any veniremember.
Ward buoys his argument with cases standing for the proposition that the
constitutional right to counsel includes the right to intelligently exercise peremptory
challenges by questioning veniremembers broadly and that a trial court should, as a
12
general rule, give a defendant great latitude in such questioning. See Faulder v. State,
745 S.W.2d 327, 334–37 (Tex. Crim. App. 1987) (holding that a defendant was not
improperly denied his constitutional right to question jurors on voir dire when he was
limited in his questions about a newspaper article); Smith v. State, 703 S.W.2d 641, 643
(Tex. Crim. App. 1985) (holding that trial court erred by limiting questioning about
panel’s specific knowledge about pretrial publicity); Adams v. State, 577 S.W.2d 717,
724–28 (Tex. Crim. App. 1979) (holding that trial court did not abuse its discretion by
limiting leading questions, speculation, vague questions, duplicitous questions, and
duplicative questions), overruled on other grounds, 448 U.S. 38, 51, 100 S. Ct. 2521, 2529
(1980).
While Ward correctly asserts that trial courts must afford great latitude to
questions asked to the panel during voir dire, his objection in the trial court was not
made on the basis that he was prevented from asking any question. Further, the
record does not show that he was prohibited or restricted from asking any question of
any veniremember, much less the four veniremembers who were designated as the
strike zone for the alternate jurors before the parties exercised peremptory challenges
and from whom the trial court selected the two alternate jurors. Even had he
preserved this complaint by presenting a timely and specific objection to the trial
court—or were the error of a kind that may be raised for the first time on appeal, see
Mendez v. State, 138 S.W.3d 334, 340–42 (Tex. Crim. App. 2004) (elaborating on
requirements for preservation of “systemic requirement” error and fundamental error
13
and noting differences from “structural” error)—Ward does not show on appeal that
he was denied the constitutional right to intelligently use his peremptory strikes under
the theory he argues. Rather, the error he alleges and to which he objected was in the
trial court’s method of giving effect to the parties’ peremptory strikes as prescribed by
the Texas Code of Criminal Procedure.
Thus, at most, any error that occurred was a violation of a statute designed to
help ensure the protection of a constitutional right. See Gray v. State, 159 S.W.3d 95,
97 (Tex. Crim. App. 2005). Many statutes are designed to protect constitutional
rights, but having such a purpose does not convert a statutory right into one of
constitutional dimension. Id.
Assuming without deciding that Ward is correct and that a defendant has a
right to distinct processes for exercising peremptory strikes against jurors and
alternates in non-capital felony cases, any error would be a violation of statutory
procedure, not a violation of the constitutional provision itself. See Ex parte Long, 910
S.W.2d 485, 486 (Tex. Crim. App. 1995). Error in the decision to consolidate these
procedures would constitute violation of a purely statutory right, and such error is
subject to a harm analysis under Rule 44.2(b). See Tex. R. App. P. 44.2(b); Chavez v.
State, 91 S.W.3d 797, 801 (Tex. Crim. App. 2002). There is no right to have any
particular person on the jury. See Ford v. State, 73 S.W.3d 923, 924 (Tex. Crim. App.
2002). A record will show that the defendant is not harmed by an error in exclusion
of a particular person from the jury when the record contains no indication that those
14
who served on the jury were unfit for duty. See id.; Jones v. State, 982 S.W.2d 386, 394
(Tex. Crim. App. 1998).
Ward does not allege that any unfit veniremember served on the jury, and our
review of the record does not so suggest.15 Ward and the State both questioned
veniremembers forty-one and forty-two, whose answers did not indicate unfitness to
serve. Neither party moved to strike any of the proposed alternate jurors for cause.
We see nothing in the record to indicate that any veniremember who served as a juror
or as an alternate was unfit for duty. See Ford, 73 S.W.3d at 924.
Finally, because the law prohibits a judge from allowing exercise of peremptory
challenges for potential jurors against potential alternates, see Tex. Code Crim Proc.
art. 35.15(d), a trial judge’s setting distinct strike zones for both groups at the same
time does not, by itself, indicate that the rules were disregarded or that the jury
composition was not impartial. See Chavez, 2026 WL 2435378, at *3; Ford, 73 S.W.3d
at 926.
We overrule Ward’s first point.
15
Ward argues that “[t]his issue affected [his] rights because venireperson [forty-one], who was the first alternate, ended up serving on the jury and being one of the twelve jurors who decided that [Ward] was guilty of capital murder.” However, Ward was convicted of aggravated assault with a deadly weapon and was not charged with capital murder.
15
B. Exclusion of Victim’s Criminal History
In his second point, Ward complains that the trial court erred by excluding his
testimony about Connery’s prior bad acts. Ward argues that this testimony about
Connery’s criminal history and prior bad acts was necessary to show that Connery was
the first aggressor and that Ward was reasonably in fear of Connery. Ward argues that
specific acts of violence may be introduced to demonstrate the reasonableness of the
defendant’s fear of the complainant or that the complainant was the first aggressor.
See Torres v. State, 117 S.W.3d 891, 896–97 (Tex. Crim. App. 2003).
1. Background
Before trial, the trial court granted a motion in limine as to Connery’s prior
criminal history. On cross-examination at the trial, Ward asked Franita whether she
recalled that Ward and Connery had fought approximately one year before the
shooting. Franita did recall that they fought but could provide no additional details.
After Franita testified, Ward moved to lift the order in limine as to Connery’s
criminal history, arguing that it would be admissible as impeachment and, as a
“primary theory,” that the violent acts Connery had committed supported his being
the first aggressor in his confrontation with Ward. Ward offered documents detailing
Connery’s criminal history, including charges of assault causing bodily injury to a
family member, assault on a family member by impeding breath or circulation,
interference with emergency requests for assistance, possession of a prohibited
weapon, and violation of a bond or protective order. The State argued against their
16
admission because, with the exception of the Class A misdemeanor charge of
possession of a prohibited weapon for which Connery had completed community
supervision, the charges were dismissed or rejected. The trial court declined to rule
on the admissibility of the evidence at that time and left the order in limine in place.
After the State’s direct examination of Connery, Ward again moved to lift the
order in limine. The trial court lifted the order as to Connery’s completed community
supervision for possession of a prohibited weapon but otherwise left it in place. On
cross-examination, Ward asked Connery about the offense and community
supervision. Connery acknowledged that he had been convicted and that he was
placed on community supervision for the offense.16
Ward also testified. He said that he was afraid and that Connery “was going to
beat [him] to death.” When Connery walked away from the car after striking Ward,
Ward heard Connery say, “I’ll be back.” Ward feared that Connery would return with
a handgun, which was why he shot Connery.
After Ward testified and while the jury was out of the courtroom, he made an
offer of proof related to his history with Connery “regarding the relationship between
[Connery] and his mother.” The offer of proof consisted of additional testimony.
16
Ward also asked Connery whether he ever fought with Ward and pushed him to the ground. Connery said that he had defended himself when Ward had choked him.
17
In the additional testimony comprising his offer, Ward said that he had gone to
Johnson County to get Connery out of jail “[b]ecause of Shara,[17] his girlfriend,” and
that he “thought it was for marijuana.” Ward had posted bond for Connery for
“being violent with Shara,” although Franita did “all the work with it” and Ward only
paid for the bond. Ward did not specify a timeframe when these events occurred and
did not recall any specific incident of violence. Ward also said he recalled that
Connery had been on probation for possession of a prohibited weapon but did not
specify when.
Ward recounted giving money to Connery and Shara for Christmas and
Connery’s being dissatisfied with the amount he received, saying he should have been
given more. Ward said he had seen Connery wrestle with Franita or grab her hand.
He also testified that Franita had once been brought home by police after driving
while intoxicated and that Connery “had jumped on her in the car and the store
owner called the police.”18
Ward recalled that Connery had once placed Ward’s wheelchair in front of a
neighbor’s apartment door. When the neighbor became angry, Connery cut through
the neighbor’s screen door with a pocket knife, and the neighbor shut Connery’s
17
Connery testified that he had dated Shara before dating Chelsea and that he was, at the time of trial, married to Shara.
18
Ward testified that he had paid a neighbor twenty dollars to retrieve the car.
18
fingers in the apartment door. Ward did not specify a date or time period or whether
police had been called.
Ward had also heard about an incident when Connery pushed a former
employer and was fired, although he had only heard of the event from Franita and did
not know any other details.
The trial court excluded the evidence.
2. Applicable Law
We review a trial court’s decision to exclude evidence under an
abuse-of-discretion standard. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App.
2003); Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). We will not
reverse a trial court’s decision to exclude evidence unless the record shows a clear
abuse of discretion. Zuliani, 97 S.W.3d at 595. An abuse of discretion occurs only
when the trial court’s decision was so clearly wrong as to lie outside that zone within
which reasonable persons might disagree. Id.
Evidence of specific bad acts by a victim of assault are admissible only to the
extent they are relevant for a purpose other than to show character conformity.19 See
Tex. R. Evid. 404(b). A defendant may not offer evidence of the victim’s prior
specific acts of violence to prove the victim’s violent character and hence that the
19
Citing Torres, Ward argues that “[w]hen a defendant in a homicide prosecution raises the issue of self-defense, he may introduce evidence of the deceased’s violent character.” See 117 S.W.3d at 894. While a correct statement of the law, Ward does not explain why this rule controls in this case.
19
victim acted in conformity with that character trait at the time of the assault. See
Seidule v. State, 622 S.W.3d 480, 490–91 (Tex. App.—Houston [14th Dist.] 2021, no
pet.) (citing In re Miller, 330 S.W.3d 610, 619 (Tex. Crim. App. 2009)). Because a
complainant’s unambiguous, violent, or aggressive act needs no explaining, evidence
of the complainant’s extraneous conduct admitted in conjunction with his
unambiguous act would have no relevance apart from its tendency to prove the
victim’s character conformity and, thus, would be inadmissible. James v. State,
335 S.W.3d 719, 728 (Tex. App.—Fort Worth 2011, no pet.); London v. State,
325 S.W.3d 197, 205–06 (Tex. App.—Dallas 2008, pet ref’d); Mai v. State, 189 S.W.3d
316, 321 (Tex. App.—Fort Worth 2006, pet. ref’d). Therefore, two conditions must
exist before a complainant’s extraneous act will be admissible to support a claim of
self-defense: (1) some ambiguous or uncertain evidence of a violent or aggressive act
by the victim must exist that tends to show the victim was the first aggressor; and
(2) the proffered evidence must tend to dispel the ambiguity or explain the victim’s
conduct. James, 335 S.W.3d at 728.
3. Application
Ward argues that the testimony was necessary to show that Connery was the
first aggressor and that Ward was reasonably in fear for his life.20
20
Although Ward details the testimony related to Connery’s criminal history, he challenges only the exclusion of his proffered testimony.
20
However, Ward admitted to bumping Connery and Franita with the car.
Connery’s conduct in striking Ward was unambiguously aggressive, whether a slap as
Connery claimed or a punch with a closed fist as Ward claimed. Consequently, the
conditions above are not met. See id.; see also Valencia v. State, No. 01-24-00260-CR,
2025 WL 2724018, at *4 (Tex. App.—Houston [1st Dist.] Sept. 25, 2025, no pet.)
(mem. op., not designated for publication) (holding trial court properly excluded
evidence of victim’s “generic assault cases” that defendant alleged would establish
victim’s intent or motive to attack him); Fish v. State, 609 S.W.3d 170, 179 (Tex.
App.—Houston [14th Dist.] 2020, pet. ref’d) (holding trial court properly excluded
victim’s past acts of violence against her ex-husband and boyfriend to explain
reasonableness of her son’s state of mind in hitting her with a car); Mai, 189 S.W.3d
at 321 (holding prior criminal acts were properly excluded where victim jumped on
defendant and pulled his hair); Reyna v. State, 99 S.W.3d 344, 346–47 (Tex. App.—Fort
Worth 2003, pet. ref’d) (holding trial court properly excluded evidence that victim had
been in unspecified prior fights, had been convicted of burglary of a habitation, had
carried a gun “from time to time,” and was a drug dealer when record showed that
victim flashed a gun and fired it). Under this analysis, Ward’s proffered testimony
about Connery’s prior acts does nothing more than attempt to show character
conformity, so the trial court did not abuse its discretion by excluding it. See Tex. R.
Evid. 404(b); James, 335 S.W.3d at 728; Mai, 189 S.W.3d at 321.
21
We overrule Ward’s second point.21
C. Denial of Batson Challenge
After voir dire, Ward objected to the State’s use of three of its peremptory
challenges to strike African-American veniremembers. The State offered reasons for
each of the three peremptory challenges that the trial court found to be facially
race-neutral and not to be pretextual. Ward now complains in his third point that his
objection to the State’s peremptory challenge against one veniremember—
twenty-eight—should have been sustained because the State’s proffered reason—
disliking the veniremember’s responses to a question—was pretextual.22
21
We also note that the trial court excluded the evidence, inter alia, as hearsay under Rule 802. See Tex. R. Evid. 802. Hearsay is generally not admissible unless a statute, rule of evidence, or other rule provides otherwise. See id. In the trial court, Ward did not offer any exception to the rule against hearsay and does not now challenge the propriety of the trial court’s exclusion as hearsay of his recitation of the events he said he only heard about through Franita. See Tex. R. Evid. 801(d), 803.
22
Because Ward concedes on appeal that the State offered valid, race-neutral, non-pretextual reasons for exercising its peremptory challenges as to the other two challenged veniremembers and our review reflects that the trial court properly denied his Batson motion as to those two, we do not further address those arguments. See Tex. R. App. P. 33.1(a)(5). We similarly do not address Ward’s bare contention that the State’s decision to exercise only eight of its ten peremptory challenges might have been a racially motivated attempt to avoid reaching another African-American veniremember. See Black v. State, 358 S.W.3d 823, 830 (Tex. App.—Fort Worth 2012, pet. ref’d) (overruling conclusory, unsupported subsidiary complaints as inadequately briefed); Dornbusch v. State, 262 S.W.3d 432, 438 n.3 (Tex. App.—Fort Worth 2008, no pet.) (declining to address inadequately analyzed contention on appeal).
22
1. Applicable Law
The Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution prohibits race-based jury selection. U.S. Const. amend. XIV, § 1;
Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719 (1986); Jasper v. State,
61 S.W.3d 413, 421 (Tex. Crim. App. 2001); see Tex. Code Crim. Proc. art. 35.261(a).
In the face of perceived purposeful discrimination, a defendant may object to one or
more of the State’s peremptory challenges to address the race-based concerns. See
Tex. Code Crim. Proc. art. 35.261(a); Jasper, 61 S.W.3d at 421 (citing Batson, 476 U.S.
at 89, 106 S. Ct. at 1719).
Trial courts follow a three-step process to resolve Batson challenges. Snyder v.
Louisiana, 552 U.S. 472, 476–77, 128 S. Ct. 1203, 1207 (2008); Young v. State,
283 S.W.3d 854, 866 (Tex. Crim. App. 2009). First, the movant must make a prima
facie case of racial discrimination. Snyder, 552 U.S. at 476, 128 S. Ct. at 1207; Watkins
v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008).
Once a prima facie showing has been made, the burden of production shifts to
the nonmovant to articulate a race-neutral explanation for its peremptory strike.
Snyder, 552 U.S. at 476–77, 128 S. Ct. at 1207; Watkins, 245 S.W.3d at 447. At this
second step, the explanation need only be race-neutral on its face. See Watkins,
245 S.W.3d at 447. The explanation must be reasonably specific and must be related
to the case being tried. See Williams v. State, 804 S.W.2d 95, 106 (Tex. Crim.
App. 1991). Plausibility of the race-neutral explanation is considered only in the third
23
step of the analysis. Purkett v. Elem, 514 U.S. 765, 767–68, 115 S. Ct. 1769, 1771
(1995). Although the burden of production shifts in this second step to the
proponent of the strike, the “ultimate burden of persuasion regarding racial
motivation rests with, and never shifts from, the opponent of the strike.” Ford v. State,
1 S.W.3d 691, 693 (Tex. Crim. App. 1999) (quoting Purkett, 514 U.S. at 767–68,
115 S. Ct. at 1770–71).
Finally, if the nonmovant tenders a race-neutral explanation, the trial court
must decide whether the movant has satisfied its burden of persuasion to prove
purposeful racial discrimination. Snyder, 552 U.S. at 477, 128 S. Ct. at 1207; Purkett,
514 U.S. at 767–68, 115 S. Ct. at 1771; Watkins, 245 S.W.3d at 447. To meet this
burden, the movant must prove by a preponderance of the evidence that the
allegations of purposeful discrimination were true in fact and that the race-neutral
reasons proffered were merely a sham or pretext. Watkins, 245 S.W.3d at 447, 452.
On appeal, “a reviewing court should examine a trial court’s conclusion that a
facially race-neutral explanation for a peremptory challenge is genuine, rather than a
pretext, with great deference, reversing only when that conclusion is, in view of the
record as a whole, clearly erroneous.” Watkins, 245 S.W.3d at 448; see Snyder,
552 U.S. at 477, 128 S. Ct. at 1208. The “clearly erroneous” standard is highly
deferential because the trial court is in the best position to determine if the
prosecutor’s explanation is genuinely race neutral. Nieto v. State, 365 S.W.3d 673, 676
(Tex. Crim. App. 2012); Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004).
24
When determining whether a race-neutral explanation was a pretext for
purposeful discrimination, we examine whether comparative evidence demonstrates
disparate treatment of minority veniremembers. See Miller–El v. Dretke, 545 U.S. 231,
241, 125 S. Ct. 2317, 2325 (2005). We must look to the entire record to determine if,
despite a similarity, there are any significant differences between the characteristics
and responses of the veniremembers that would, under the facts of the case, justify
different treatment. See id. at 247, 125 S. Ct. at 2329.
Thus, we review the relevant portions of the voir dire process.
2. Background
During voir dire, when the State asked whether any veniremember had a
question about the definition of “immediate necessity” in the context of justification
of deadly force used in self-defense, veniremember twenty-eight volunteered, saying
he had questions.
Veniremember twenty-eight asked first whether a victim who was being
attacked and had a history of being the victim of violence—whether by a dating
partner or anyone else—would be justified in the use of deadly force, and second, he
asked whether the attacker’s size and reputation for fighting using martial arts or
boxing would be a consideration in the use of deadly force. He stated that he would
presume that an attacker with superior size and training would necessarily intend to
use deadly force and that a victim would necessarily be justified in using deadly force
in self-defense. He went on to assume that such an aggressor would be striking for
25
the victim’s trachea and would intend to incapacitate or kill. The State answered that
if an aggressor with a reputation as a trained fighter were to attack, the veniremember
might be justified in using a cane,23 for example, to defend himself. Veniremember
twenty-eight disagreed, stating that he would “snap kick” the aggressor in his kneecap
because the cane would bend and be less effective as a weapon. He stated that he
would consider such a kick to the kneecap to be an appropriate response to the
aggressor’s attempt to strike him.
After the parties exercised their peremptory challenges, Ward objected to the
State’s peremptory challenges directed against three African-American
veniremembers—including veniremember twenty-eight—on the ground that the
strikes were racially motivated. The prosecutor responded by arguing generally that
other African-American veniremembers were not struck and that he had not exercised
a peremptory challenge against a fourth African-American veniremember in the strike
zone.
The prosecutor then offered the following reason for striking veniremember
twenty-eight in particular:
Number [twenty-eight] was the gentleman that was standing over there.
He was the one with the cane that was asked about the self-defense. He
gave the answer about the -- you know kicking someone in the leg, and
he gave a bunch of answers about disproportionate abilities, and I didn’t
particularly like the answer there.
Veniremember twenty-eight carried a cane.
23
26
Ward argued to the trial court that “a lot of the State’s answers were very
superficial.” Without specifying any single veniremember, Ward stated that he
thought that “there [were] probably people on this venire that have the same
attributes that have been on the jury or were not struck by the State that are attributed
to the people that they exercised their peremptory challenges on.” Ward did not
cross-examine the prosecutor or present comparative juror evidence.
The trial court overruled Ward’s objection. Ward argues on appeal that the
trial court erred because the prosecutor’s articulated explanation for striking
veniremember twenty-eight “is an easily contrived explanation that merited healthy
skepticism from the court” because it was “in part non-sensical and in part contrary to
the record” and that it was therefore “no explanation.”
We now consider whether the State carried its burden of production to offer a
race-neutral reason for striking veniremember twenty-eight and whether Ward carried
his burden of persuasion to show that the explanation was pretextual.
3. Application
We do not consider whether Ward made a prima facie case of racial
discrimination because the State proffered a race-neutral reason for its peremptory
strike, rendering step one of the Batson analysis moot. See Colone v. State, 573 S.W.3d
249, 263 (Tex. Crim. App. 2019); Johnson v. State, No. 02-24-00419-CR, 2025 WL
3119086, at *2 (Tex. App.—Fort Worth Nov. 6, 2025, no pet.) (mem. op., not
designated for publication).
27
In step two, the prosecutor’s proposed race-neutral reason referred to his
dislike of a particular set of answers given by veniremember twenty-eight to a
question about self-defense and his opinions about disparate ability and violent
retaliation to a victim’s perceived reputation for violence or physical ability. The
prosecutor said, “I didn’t particularly like his answer there.” The proffered reason is,
in effect, veniremember twenty-eight’s attitude about an issue in the case—
self-defense and the use of force with an attacker and victim of disparate physical
abilities—and answer to a particular question, which is a race-neutral explanation. See
Hall v. State, 663 S.W.3d 15, 41 (Tex. Crim. App. 2021) (holding State’s proffered
reasons related to defenses relevant to the case at bar were race-neutral); Blackman v.
State, 414 S.W.3d 757, 769 (Tex. Crim. App. 2013) (holding prosecutor’s dislike of
juror’s tone, demeanor, and seeming partiality for defense constituted race-neutral
reasons); Joseph v. State, 916 S.W.2d 657, 660 (Tex. App.—Houston [14th Dist.] 1996,
no pet.) (holding that prosecutor’s explanation that he disliked veniremember’s
response to a question was race-neutral because question did not touch on race).
In the third step, considering whether the State’s race-neutral explanation was
pretextual, courts have considered a group of non-exclusive factors. See Compton v.
State, 666 S.W.3d 685, 698 (Tex. Crim. App. 2023) (citing Flowers v. Mississippi,
588 U.S. 284, 298, 139 S. Ct. 2228, 2241 (2019)); Watkins, 245 S.W.3d at 448–49
(citing Miller–El, 545 U.S. at 240–64, 125 S. Ct. at 2325–39). The first factor we
consider is whether the State had struck a higher percentage of African-Americans
28
than non-African-Americans. See Watkins, 245 S.W.3d at 448–49. We note that the
State used three of its eight peremptory challenges—or 37.5%—against
African-American veniremembers. The record reflects that the three veniremembers
whom the State challenged and one whom they did not were all African-American.
The number of African-American veniremembers was at least four out of
thirty-two—or 12.5%—and the State struck 75% of them.24 See Henderson v. State,
No. 02-15-00397-CR, 2017 WL 4172591, at *10 (Tex. App.—Fort Worth Sept. 21,
2017, pet. ref’d) (mem. op., not designated for publication) (holding that where the
State used 20% of its challenges to strike 67% of the African-American
veniremembers in a panel in which 9.375% were African-American, the State had
used a disproportionate number of strikes against African-American veniremembers).
The disproportionate use of strikes may “support the appellant’s ultimate burden of
persuasion that the State’s proffered race-neutral explanations are a sham.” Watkins,
245 S.W.3d at 452. But, as the United States Supreme Court in Miller–El noted, a
comparative analysis is “[m]ore powerful” than “bare statistics,” and thus we move on
to consider the next factor, the State’s proffered reason for striking veniremember
twenty-eight. See Miller–El, 545 U.S. at 241, 125 S. Ct. at 2325; Henderson, 2017 WL
4172591, at *10.
The record does not indicate the race of every veniremember.
24
29
Ward argues that because the State referred to the answer as “kicking someone
in the leg,” the reason was “non-sensical” and “contrary to the record.” However, we
cannot say that the State’s substituting “leg” for “knee” suggests a mistake that belies
genuineness. See Williams, 804 S.W.2d at 104, 106–07 (holding that, although
appellant argued that the State “totally misunderstood” answers from one juror, the
State’s proffered reason was racially-neutral because it was related to her answer to an
appropriate question); Henderson, 2017 WL 4172591, at *11 (holding prosecutor’s
nonspecific recollection that a veniremember’s brother was arrested for “either
aggravated assault or robbery” did not indicate subterfuge). Further, although the
State’s reference to a kick to the leg was not precise, the answer proffered was still
essentially based on veniremember twenty-eight’s attitude toward a matter relevant to
the case at bar—and demeanor in providing that answer—and so we defer to the trial
court’s finding. See Blackman, 414 S.W.3d at 770. We therefore conclude that the trial
court could have reasonably found that the State did not have a discriminatory intent
when it struck veniremember twenty-eight for the reason provided. See Snyder,
552 U.S. at 477, 128 S. Ct. at 1207; Blackman, 414 S.W.3d at 770; Watkins, 245 S.W.3d
at 448.
The remaining Miller–El factors support the trial court’s ruling. Neither party
requested a jury shuffle in this case, and no evidence in the record suggests that
Tarrant County has a formal policy of excluding minority jurors from service. See
Watkins, 245 S.W.3d at 448–49; Henderson, 2017 WL 4172591, at *11.
30
Ward makes the bare statement that the “State engaged in disparate questioning
by targeting questions on the difficult subject of self-defense primarily to
African-American venirepersons.” However, our review indicates that the State asked
a general question to the panel about self-defense and immediate necessity and called
on three veniremembers. Of those three veniremembers, one was African-American.
Challenged veniremember twenty-eight, conversely, volunteered and asked a clarifying
question before expounding on his personal views about reciprocal force and the
necessity of deadly force. See Henderson, 2017 WL 4172591, at *11; Watkins,
245 S.W.3d at 453 (holding that while prosecutor singled-out African-American
veniremembers for one question out of three, this was insufficient alone to show
pretext).
Reviewing the record as a whole and applying great deference to the trial
court’s ruling, we cannot say that the trial court was clearly erroneous in overruling
Ward’s Batson challenge as to veniremember twenty-eight. See Watkins, 245 S.W.3d
at 448. Although the statistical analysis indicates that the State used a
disproportionate number of peremptory challenges on African-Americans, our
comparative analysis of veniremember twenty-eight demonstrates that the State’s
reasons for striking him were facially race-neutral, and Ward has not carried his
31
burden to prove that the reason was pretextual. See Watkins, 245 S.W.3d at 448, 453–
54; Henderson, 2017 WL 4172591, at *11–12.25
Thus, we overrule Ward’s third point.
IV. CONCLUSION
Having overruled Ward’s three points, we affirm the judgment of the trial
court.
/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: October 15, 2026
The State also argues that we may consider as some evidence against pretext
25
the prosecutor’s statement to the trial court that he did not realize that veniremember twenty-eight was African-American when he exercised his peremptory challenges. See Walker v. State, No. 01-01-00705-CR, 2002 WL 1435991, at *2 (Tex. App.—Houston [1st Dist.] July 3, 2002, pet. ref’d) (mem. op., not designated for publication). However, this statement was made only about veniremembers eight and twenty and did not extend to veniremember twenty-eight. Accordingly, we did not consider that statement in our analysis.
32