OPINION
Aрpellant was convicted by a jury of aggravated robbery. The jury assessed punishment at life in prison and a $10,000 fine. We affirm.
BACKGROUND
Several days before Christmas in 1993, the Palmer home was invaded and the family was robbed by appellant and several other men bearing shotguns. The men gathered up the family in the den, and told everyone to lie on the ground and not to move. They then ransacked the entire house. During the robbery, Mrs. Palmer attempted to solace her panicked son who was next to her. Appellant shot Mrs. Palmer in the head with a shotgun, destroying the right side of her face.
DISCUSSION
Shackle
In his first three points of error, appellant contends that the trial court erred in shackling him during the course of the trial.
When a defendant is viewed by the jury in handcuffs or a shackle, his presumption of innocence is seriously infringed.
Cooks v. State,
Nonetheless, on appeal the role of this Court is to determine whether the trial court abused its discretion in authorizing the restraint.
Cooks,
In this case, there is absolutely no evidence that the jury could see the shackle. In fact, the record indicates that the trial judge went to great lengths to make sure the jury could not see the shackle. The trial judge sat in various areas of the courtroom and stated on the record that he could not see the shackle. He placed trash cans and partitions to block the jury’s view of the shackle. He ordered the desks moved ten feet closer to the bar to obscure the view of appellant’s legs. The judge also ordered that pictures be taken from the jury box and audience arеas as evidence that the jury could not see the shackle, and out of the jury’s presence, had the photographer testify on the record. Appellant’s counsel concedes that “[n]o evidence is on the record as to whether the shackles could be seen as the jury or any person entered the cоurtroom.” We need not decide whether the trial court abused its discretion, because even if it had, there would be no grounds for reversal.
Cooks,
In his second point of error, appellant conclusorily asserts that the shackling also violated his Fifth, Sixth, and Fourteenth Amendment rights under the federal constitution. Appellant does not sepаrately brief, cite any authority, or refer to the alleged federal violations in his combined handling of his first three points of error. Appellant has waived any error. Tex.R.App. P. 38.1(h);
see also Etheridge v. State,
We overrule appellant’s second point of error.
Batson Challenge
In his fourth point of error, appellant contends that the trial court erred in not reinstating several venire persons who were struck by the State. A
Batson
inquiry entails a three-step process. First, the opponent of a peremptory challenge must make out a prima facie case of racial discrimination.
Purkett v. Elem,
It is undisputed that appellant made a sufficient prima facie showing — he is black, and all three black venire persons, as well as a Hispanic venire person, were removed. It is also undisputed that the State provided racially neutral reasons for the venire persons remоval — the venire persons removed either had a family member who had been arrested or was in prison.
Chambers v. State,
We review the record of the
Batson
hearing and the voir dire examination in the light most favorable to the trial court’s ruling.
Cantu v. State,
Additionally, the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.
Purkett,
Appellant argues that he has shown disparate treatment, ie., that the State struck minority venire persons who had family who had been arrested or were in prison, but did not strike two similarly situated white venire persons. In his brief, appellant asserts that venire persons 17 and 40 had relatives accused of a crime. The jury list shows venire person 17 to be Cynthia Michelle Love and vеnire person 40 to be Dee Raymond Sanders.
With regard to Cynthia Love, there is no indication in the record that she had a family member that had been arrested or was in prison. Therefore, this venire person could not assist appellant in proving disparate treatment.
The record shows, however, that Dee Sanders did say he hаd a cousin who had been arrested for burglary. In responding to appellant’s claim of pretext, the prosecutor stated that his notes did not reflect that Sanders had a relative who had been arrested for burglary. The prosecutor then stated that if the record did reflect that Sanders had a relative arrested, he would offer to strike Sanders because he had one strike remaining. The trial judge denied the prosecutor’s request to strike Sanders because he felt this action was unnecessary unless jurors had been improperly removed. The sole is *694 sue before this Court is whether the trial court erred in not finding pretext.
Disparate treatment 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,
Thе trial judge had the opportunity to determine the prosecutor’s sincerity and was able to observe the prosecutor’s demeanor at length. Under the facts of this case, appellant has not met his burden of showing that this error was a pretext for race discrimination. We hold the trial court’s ruling in regard to the State’s use of peremptory challenges was not clearly erroneous.
We overrule point of error number four.
Line-Up Tampering
Appellant next complains in points of error five, six, and seven that the trial court erred in allowing the testimony of E.D. Worsham and John Breaux. John Breaux is a prisoner who appellant asked to “act suspicious” while he participated in appellant’s line-up. E.D. Worsham is a police officer who overheard appellant tell other people in the line-up that he would give them money if they would act suspicious.
In his fifth and sixth points of error, appellant generally asserts that the introduction of this testimony was a violation of both the Texas Constitution and the United States Constitutiоn. However, because appellant does not argue each authority separately, we will address the alleged error only on the law on which appellant has based his argument, and consider the rest as inadequately briefed and therefore waived. Tex.R.App. P. 38.1(h);
Etheridge,
The only argument appellant has briefed relаtes to Tex.R.CRIM. Evid. 404(b), and is the basis of point of error seven. Accordingly, we overrule points of error five and six.
In point of error seven, appellant complains that the introduction of the testimony of Worsham and Breaux violated the notice requirement of rule 404(b) of the Rules of Criminal Evidence. Rule 404(b) provides:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided, upon timely request by the accused, reasonable notice is given in advance of trial of intent to introduce in the State’s ease in chief such evidence other than that arising in the same transaction.
Tex.R.CRIM. Evid. 404(b) (emphasis added).
In this case, appellant did not file a rule 404(b) notice that would trigger the reasonable notice requirement. As such, the State was not required to give appellant notice of its intent to introduce extraneous offenses, and the trial court did not err in permitting their introduction.
Espinosa v. State,
In appellant’s supplemental brief, as well as in oral argument before this Court, appellant’s counsel argues that a rule 404(b)
*695
motion was filed in a previously dismissed case that arose out of the same trаnsaction. This motion is insufficient for two reasons. First, it was filed in the previously dismissed case, and appellant did not file a motion to adopt the pleadings from that case.
See Hanie v. State,
We overrule point of error seven.
Hearsay
Appellant cоmplains in his eighth and ninth points of error that the trial court erred in permitting hearsay testimony of Marva Sears and Tara Johnson. Appellant again conclusorily asserts that the admission of this testimony violated both federal and state law. Because appellant did not separately brief any federal violation, point of error eight is waived.
Etheridge,
Sears testified that she overheard appellant and several other individuals “rapping.” In the lyrics of this “rap,” an individual other than appellant sung about the shooting of a Pearland white woman. Johnson testified that she overheard a discussion appellant was involved in sometime before Christmas. 1 She testifiеd that she overheard one of the parties to the conversation say they went to Brazoria County.
Appellant again conclusorily asserts that the admission of this testimony violated both federal and state law. Because appellant did not separately brief any federal violation, point of error eight is waivеd.
Etheridge,
The testimony of both witnesses is very unclear as to whom and what the witnesses were referring when they were describing what was said, making a determination of whether the testimony was hearsay or not virtually impossible. Assuming, without deciding, that the complained-of testimony was improperly admitted, our examination of the record in its entirety leads us tо conclude that the alleged error did not affect a substantial right of appellant. Tex.R.App. P. 44.2(b);
King v. State,
The testimony of the two witnesses was brief and unclear. Numerous eyewitnesses identified appellant as the perpetrator. The witnesses had ample opportunity to observe appellant during the robbery and identified him only a short period of days later. In addition, the prosecutor did not emphasize Sears’s or Johnson’s testimony whatsoever, nor did he raise or refer to it again.
Even if the jurors considered Sears’s and Johnson’s testimony, it is unlikеly they would have placed substantial weight on it. Accordingly, the introduction of this testimony was not “substantial or injurious.”
King,
Motion to Suppress
In his tenth point of error, appellant complains that the trial court erred in denying his motion to suppress certain identification testimony. In his eleventh point of error, appellant complains that the trial court erred in denying his motion for new trial request ing the suppression of this identification testimony.
*696
A defendant who claims on appeal that a trial court erred in allowing identification testimony has a difficult and heavy burden.
Herrera v. State,
On appellate review, the evidence presented at the suppression hearing is viewed in the light most favorable to the trial court’s ruling to determine whether the trial court abused its discretion in denying the motion to suppress.
Whitten v. State,
Appellant first argues that because the police had informed several witnesses that a suspect had been developed, a later photo line-up was impermissibly suggestive. However, the witnesses were told that they were under no obligation to pick anyone out of the line-up and that the suspect may or may not be present. The fact that an eyewitness knows that the police have developed a suspect does not by itself make a line-up impermissibly suggestive so as to give rise tо a substantial likelihood of irreparable misidentification.
Webb v. State,
Appellant also conclusorily asserts that having several witnesses together at the same time during the drawing of the composite sketch was impermissibly suggestive. Appellant does not state how having the witnesses together was suggestive, nor does he cite any case authority to support this proposition. No error has been preserved for review. Tex.R.App. P. 38.1(h).
Appellant next complains that having several witnesses together at the time of a livе line-up was impermissibly suggestive. The mere fact that the eyewitnesses viewed the line-up together is not impermissibly suggestive. Bur
ns v. State,
Because the trial court did not err in denying appellant’s motion to suppress, it did not err in denying the motion for new trial on this same basis. Tex.R.App. P. 21.3(b)
We overrule appellant’s tenth and eleventh points of error.
We affirm the judgment.
Notes
. The robbery occurred on December 19, 1993.