Opinion
NO. 01-19-00967-CR
05-26-2022
Brandon Rashard LEDFORD, Appellant v. The STATE of Texas, Appellee
Jack Roady, Rebecca Klaren, Alan Keith Curry, Houston, for Appellee. Winifred Bandy Weber, for Appellant. Brandon Rashard Ledford, Pro Se.
Jack Roady, Rebecca Klaren, Alan Keith Curry, Houston, for Appellee.
Winifred Bandy Weber, for Appellant.
Brandon Rashard Ledford, Pro Se.
Panel consists of Chief Justice Radack and Justices Landau and Countiss.
Sherry Radack, Chief Justice
A jury convicted appellant, Brandon Rashard Ledford, of murder and assessed his punishment at 80 years’ confinement and a $10,000 fine. In two issues on appeal, appellant contends that the trial court abused its discretion in denying his Batson challenges. In a third issue, appellant contends that the evidence is insufficient. We affirm.
See Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
BACKGROUND
The Murder
On the night of April 9, 2017, Brandon Lozano was working as a bellman at the San Luis Resort in Galveston, Texas. While Lozano was taking luggage to a room on the sixth floor of the hotel, he looked out a window on the back side of the hotel and saw three men wearing black hoodies looking in various cars in the hotel's parking lot. As he watched, at least one of the men broke the glass on several vehicles and all three of the men began "going through the cars" in the parking lot. Lozano called his manager and told him to alert security. As Lozano continued to watch from the sixth floor, a security guard, Phillip Molis, pulled his vehicle around the building toward the parking lot.
Molis contacted another security officer, John Pike, to let him know what Lozano had seen and Pike, too, began to make his way toward the parking lot. Molis also called Lozano, who was still watching from the sixth floor, and Lozano directed Molis where to go in the parking lot. Lozano could see that Molis was using a flashlight and he also knew that Molis was unarmed.
Molis ran at one of the three men in an apparent attempt to scare him off. That man, who was wearing a black-hooded sweatshirt, backed away briefly before reaching toward his belt, pulling out a handgun, and firing multiple shots at Molis.
Lozano immediately left his vantage point and began running downstairs toward the parking lot. As he was running downstairs, he called his manager to let him know what had happened. Pike, the other security officer, and Thomas Bushek, a police officer who had been attending a conference next door, both reached Molis at approximately the same time. At 10:15 p.m., Pike reported the shooting to police and called an ambulance. As he lay on the ground after being shot, Molis indicated to Bushek and Lozano the direction in which the three men had fled. Molis, who had been shot ten times, died six days later.
The Aftermath
While in the parking lot that night, police recovered 12 shell casings in the area where Molis was shot. The shell casings were several different brands but had all been fired from the same weapon, a Beretta .9 mm handgun. Two fired bullets were also found and had been fired from the same handgun. In total, nine cars had been burglarized that night. Near one burgled car, the police recovered a makeup bag with a shoe print on it.
Officers began searching the area in which Molis indicated the three hooded men had fled. In a field just to the west of the San Luis, officers found a window punch, which is often used to break car windows during a burglary. Further west, in a nearby neighborhood, police recovered a black sweatshirt and some gloves. The sweatshirt had several shards of glass in its pockets. Police also found a Beretta .9 mm handgun nearby on a fence. Near where the handgun was recovered, a portion of the fence had been broken in a westward direction. Next to the fence where the handgun was recovered, police found an aloe-vera-type plant that had been stepped on leaving a shoe print.
The night of the shooting, the police also used K-9 officers and their dogs to search for the suspects. After approximately 30 minutes of searching, Officer J. Picard and his dog were returning to the San Luis to rest when Picard noticed a fenced-in air conditioning unit near the parking lot. As he passed the space, Picard saw the top of someone's head, and he instructed the suspect to come out. The suspect found hiding, Tyrone Rufus Davis Haynes, was handcuffed and arrested. Davis claimed that he was homeless and had been sleeping there, but, when searched incident to arrest, he was found to be in possession of a stack of $100 bills. When arrested, Davis was wearing tan pants, a t-shirt with the word "cocaine" on it, and a black-hooded sweatshirt. Shards of glass were also recovered from this sweatshirt. Davis's cell phone was also taken from him and police also recovered a pair of latex gloves from his hiding place.
Tyrone Rufus Davis Hayes was referred to as both "Davis" and "Haynes" in the record of this trial. For purposes of this opinion, we refer to him as "Davis," the name which seemed to have been used more frequently during the trial.
The Evidence Regarding Events Before the Murder
From information on Davis's cell phone, police developed appellant as a suspect. Specifically, on Davis's cell phone, police found videos created on April 6 and 8, 2017, shortly before the shooting, in which appellant was holding a weapon and wearing a sweatshirt, both of which were "strikingly similar" to those recovered from the neighborhood near the San Luis.
Police recovered video from Gaido's Seaside Inn, which was recorded on the day of the murder at 7:30 p.m. On the video, two men, one of which is appellant, approached the desk and asked about pricing for a room. Appellant was wearing a Spitfire t-shirt. Appellant and the other man left without renting a room. The hotel manager noticed that the two men went outside and left in a gold Lexus; she also noticed a third man in the driver's seat of the car.
Police later determined that Davis's cell phone had connected to the Quality Inn in Galveston on the day of the shooting. Records and video from the Quality Inn show that at 8 p.m. on the night of the murder, Davis and a third man, Marcus Moffett, rented adjoining rooms at the Quality Inn for one night. They were accompanied by appellant and a woman, Khevan Thorne. Appellant was still wearing the Spitfire shirt he had been wearing earlier in the evening at Gaido's.
Video showed that Thorne left the room by herself at 9:21 p.m. and the three men left together at 9:23 p.m. Appellant was wearing a black-hooded sweatshirt, the same Spitfire t-shirt, frayed jeans, and black and white Jordan tennis shoes. Davis was wearing a black-hooded sweatshirt, khaki pants, and black tennis shoes; he was wearing the same clothes when arrested later that night. Moffett was wearing a black, long-sleeved Michael Jordan shirt, a black baseball cap, blue jeans, and black shoes. Three minutes later, the men were captured on video in the hotel's parking garage. Moffett was no longer wearing the baseball cap, but he had put on a black-hooded sweatshirt. The men did not leave in the gold Lexus but departed the hotel on foot.
Video later showed appellant returning to the Quality In at 10:21 p.m.; he was alone, on foot, and traveling from the direction of the San Luis. Appellant was wearing the same Spitfire shirt, frayed jeans, and white and black Jordan shoes, but he was no longer wearing the black-hooded sweatshirt. Thorne arrived at the hotel later; she was seen pacing back and forth and appeared to be nervous. Moffett returned to the Quality Inn sometime after appellant and Thorne; he was wearing the same long-sleeved Michael Jordan shirt, blue jeans, and black shoes; his black-hooded sweatshirt was tied around his waist.
Thorne, appellant, and Moffett left the hotel in the gold Lexus at 11:02 a.m. the morning after the shooting. Later that day, Thorne drove the gold Lexus to the Galveston Police Station and attempted to bond Davis out of jail.
The day after the shooting, Steven Jones heard about the shooting at the San Luis and went to police to tell them about an encounter he had with three men in black-hooded sweatshirts that occurred before the shooting. Jones was attending a public safety conference at the Galveston Island Convention Center, which is near both the Hilton Galveston Island Resort and the San Luis Resort. He was walking in a group of 10 conference attendees from the San Luis to the Hilton, where they were staying. As they walked behind the IHOP restaurant, which is between the San Luis and the Hilton, three men in their mid-20s jumped out at them from behind some bushes. Jones suspected the men had ill intentions, but they nevertheless moved on, possibly because of the size of Jones's group. Jones believed that, had he been alone, the men would have mugged him. Police later showed Jones a photo array that included appellant, Davis, and Moffett. Jones was able to identify Davis. The Physical and Forensic Evidence
Surgeons removed several bullets from Molis's body. An analysis of the bullets showed that they were fired from the same Beretta .9 mm handgun that the officers recovered from the neighborhood between the San Luis and the Quality Inn.
All the shell casings and bullets recovered from the San Luis parking lot were fired from the same Beretta .9 mm handgun that the officers recovered from the neighborhood between the San Luis and the Quality Inn.
The shoeprint on the makeup container that was recovered from the San Luis parking lot was compared to the shoes appellant was wearing when arrested and they were found to be similar in size and tread design.
The Beretta .9-mm handgun that police recovered from the neighborhood between the San Luis and the Quality Inn was used to fire the bullets that struck Molis. A DNA analysis of the of the handgun revealed that there was a mixture of DNA from at least four contributors, at least two of which were male, but the DNA mixture was not suitable for comparison because of the excessive number of contributors. The handgun was "strikingly similar" to the gun that appellant was seen with in the videos recovered from Davis's cell phone, both of which were recorded a few days before the shooting.
The disposable latex gloves that were recovered from the neighborhood between the San Luis and the Quality Inn were analyzed and revealed that appellant was a major contributor to the DNA mixture on both gloves. The possibility that a randomly chosen unrelated individual would be included as a possible contributor to the major component of the DNA mixture was 1 in 40 septillion for African Americans on one glove and 1 in 11 octillion for African Americans on the other glove. A gunshot residue test was also performed on both gloves, and the result was consistent with the gloves having been in the immediate proximity of a weapon as it was being fired or coming into contact with a surface containing gunshot primer residue particles.
The shoeprint on the broken aloe-vera-type plant near the location where the gun was recovered was compared to the shoes appellant was wearing when arrested and were found to be similar in size and tread design.
The black-hooded sweatshirt that was recovered near the handgun and gloves in the neighborhood between the San Luis and the Quality Inn revealed a DNA mixture from at least five contributors, at least one of whom was male, but the DNA mixture was not suitable for comparison due to an excessive number of contributors. Shards of glass were discovered on the sweatshirt. When appellant returned to the Quality Inn on the night of the murder, he was not wearing the black-hooded sweatshirt that he had on when he left. In contrast, Davis was wearing a black-hooded sweatshirt when he was arrested, and Moffett had a black-hooded sweatshirt tied around his waist when he returned to the Quality Inn.
The clothes Davis was wearing when arrested were also analyzed. Davis's pants had a stain that appeared to be blood. Analysis of the stain showed that it was, in fact, blood and that the single DNA profile obtained from the pants was 43.9 nonillion times more likely if the DNA came from [Davis] than if the DNA came from an unrelated, unknown individual. A gunshot-residue test was performed on Davis and showed that he either fired a weapon or was in the immediate proximity of a weapon as it was being fired.
The gloves that were recovered from Davis's hiding place when he was arrested were also analyzed and revealed that Davis was a major contributor to DNA discovered on the gloves. The probability that a randomly chosen unrelated individual would be included as a possible contributor to the DNA mixture was 1 in 10 decillion for African Americans. Appellant, Moffett, and Molis were excluded as possible contributors to the major component of the DNA mixture found on the gloves recovered near Davis. A gunshot-residue test on the gloves did not reveal the presence of gunshot residue.
The Arrest of Appellant and Moffett
On April 15, 2017, Galveston Police officers were conducting surveillance when appellant was seen leaving the Galveston County Jail after apparently attempting to free Davis on bond. Appellant walked away from the jail toward a nearby post office where he got into the passenger seat of the gold Lexus. Officers followed the Lexus, and after several turns in different directions, the gold Lexus finally pulled into a Kroger parking lot near the neighborhood in which the gun, gloves, and sweatshirt had been found. When the gold Lexus began driving in and out of parking spaces at the Kroger, the officers were concerned that the occupants of the car were aware that they were being followed. However, the gold Lexus eventually left the Kroger parking lot and drove into the neighborhood from which the murder weapon had been recovered.
Sometime later, the gold Lexus returned to the parking lot and the officers decided to stop it. Moffett was driving, and, although he initially resisted, he was safely taken into custody. Appellant was not in the gold Lexus when it was stopped, so officers drove into the neighborhood looking for him. When officers located him and asked him for his name, appellant gave them a name other than his own. When he was arrested, appellant appeared to be wearing the same type of jeans and shoes that he had worn on the day of the offense.
The gold Lexus was taken to the police station and an inventory search was conducted. A great deal of ammunition was recovered from the car, including several rounds that were the same type as that recovered from the murder weapon. The police also recovered a window punch that was the same make and model as the one recovered near the San Luis. There were also shards of glass in the gold Lexus as well as items from the Quality Inn.
Officers also recovered a Spitfire t-shirt like the shirt appellant was wearing the night of the offense, and a black-hooded Crooks hooded sweatshirt and a long-sleeved Michael Jordan shirt like those that Moffett was wearing the night of the offense. A DNA analysis of the Spitfire t-shirt revealed that appellant was a major contributor to the DNA mixture on the shirt. A DNA analysis of the black hooded Crooks sweatshirt revealed that Moffett was a major contributor to the DNA found thereon. Several pairs of jeans and shoes, for whom Moffett was a major contributor, were also recovered. One pair of frayed jeans, similar in appearance to those appellant was wearing on the day of the offense and when he was arrested, showed that both appellant and Davis were major contributors to the DNA found thereon. A pair of Empyre jeans tested positive for blood and a DNA analysis showed a single DNA profile for which Moffett was a major contributor. Officers also recovered baseball caps that appeared similar to those Moffett and Thorne were wearing on the day of the offense.
The officers also tested the gold Lexus for fingerprints, and they found fingerprints belonging to appellant, Moffett, and Thorne. Moffett's fingerprints were on the driver's side door handle and appellant's fingerprints were recovered from the bottom of the trunk lid and the rear bumper. SUFFICIENCY OF THE EVIDENCE
In issue three, appellant contends that "the evidence is insufficient to prove appellant was guilty of murder under any of the State's seven murder theories." The State responds that "[w]hen viewed together, the circumstantial evidence in this case shows beyond a reasonable doubt that appellant committed the offense as the primary actor." Even though the jury charge authorized a conviction on multiple theories—including as a primary actor, as a party, and as a conspirator—and we must uphold the jury's verdict if the evidence is sufficient under any of the multiple theories, we will first review the theory argued by the State on appeal. That is, we will consider whether sufficient evidence to supports appellant's conviction as the primary actor.
Although raised as his third issue, we address appellant's sufficiency issue first because in it he seeks an acquittal. See Price v. State , 502 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no pet.) ("We address appellant's second issue first because it challenges the sufficiency of the evidence and seeks rendition of a judgment of acquittal."); see also King v. State , No. 01-18-00335-CR, 2019 WL 5432053, at *2 (Tex. App.—Houston [1st Dist.] Oct. 24, 2019, pet. ref'd) (mem. op., not designated for publication) (stating same); see also Benavidez v. State , 323 S.W.3d 179, 182 (Tex. Crim. App. 2010) (holding sufficiency of evidence, when raised, must be addressed before trial error because sustaining it results in acquittal and "would interpose a jeopardy bar to retrial").
See Green v. State , 495 S.W.3d 563, 572 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd).
Standard of Review and Applicable Law
When reviewing the sufficiency of the evidence, we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ; see Adames v. State , 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard is only standard to apply to determine sufficiency of evidence). The jury is the exclusive judge of the facts and the weight to be given to the testimony. Bartlett v. State , 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). As the sole judge of credibility, the jury may accept one version of the facts and reject another, and it may reject any part of a witness's testimony. Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
We afford almost complete deference to the jury's credibility determinations. Lancon v. State , 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We may not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the factfinder. Williams v. State , 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Rather, we determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Thornton v. State , 425 S.W.3d 289, 303 (Tex. Crim. App. 2014) (quoting Jackson , 443 U.S. at 319, 99 S.Ct. 2781 ). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State , 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient to establish guilt. Sorrells v. State , 343 S.W.3d 152, 155 (Tex. Crim. App. 2011). "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Analysis
Appellant points out that there was no direct evidence presented establishing his identity as the shooter. However, circumstantial evidence alone may be sufficient to establish guilt. Sorrells , 343 S.W.3d at 155. Thus, we consider whether the circumstantial evidence in this case was sufficient to establish the element of identity. We hold that it was.
The evidence established that appellant was a known associate of Tyrone Davis. In fact, police first developed appellant as a suspect after recovering videos of him taken from Davis's phone, which was seized when Davis was arrested and searched pursuant to a warrant. In the videos, taken just days before the murder, appellant was seen holding a gun and wearing a sweatshirt that were "remarkably similar" in appearance to those recovered after the murder in the neighborhood near the San Luis.
Based on the evidence presented at trial, the jury could have reasonably concluded that appellant was with Davis and Moffett in Galveston and at the San Luis on the night of the offense. Video from Gaido's Surfside Inn shows appellant and another man enter and then drive away from Gaido's in a gold Lexus; a third man was in the car. Shortly after the three men left Gaido's, video from the Quality Inn shows Davis and Moffett rent rooms, accompanied by appellant and Thorne. Evidence also places the men near the San Luis on the night of the offense. Steven Jones, who was attending a conference at the convention center near the San Luis, testified that three men jumped out at him and the group he was with as they were walking toward the San Luis. The men, one of whom Jones later identified as Davis, fled when they saw the number of people with Jones.
Though argument is not evidence, appellant's counsel admitted that appellant was at the San Luis on the night of the offense, stating to the jury in opening statements that "there is no doubt, no doubt whatsoever that [appellant] was in and around that parking lot that night. We're not arguing that ... he was somewhere else. He was in the parking lot."
Based on the evidence presented, the jury could have reasonably concluded that appellant discarded the murder weapon, his gloves, and his sweatshirt as he fled from the San Luis back to the Quality Inn. A handgun, later determined to be the weapon from which the bullets that killed Molis were fired, was found on a fence in the neighborhood between the San Luis and the Quality Inn.
Although no DNA analysis or fingerprints were recovered from the handgun, the handgun was located near some discarded latex gloves. Both gloves had a mixture of DNA, of which appellant was the major contributor. Davis and Moffett were excluded as contributors to the major component of DNA on the gloves. From this evidence, the jury could have concluded that these gloves were worn by appellant. At least one of the gloves also tested positive for a high level of gunshot-residue particles, meaning it was in the immediate proximity of a weapon as it was fired.
In contrast, the latex gloves that were recovered from Davis's hiding place also had a DNA mixture, of which Davis was the major contributor; appellant and Moffett were excluded as major contributors. From this evidence, the jury could have reasonably concluded that the gloves recovered near Davis were, in fact, worn by Davis. Although Davis had a small amount of gunshot residue on his person, the gloves found near him had none.
The murder weapon was also recovered near a black-hooded sweatshirt. The black-hooded sweatshirt—a black Nike sweatshirt that appeared similar to one that appellant was wearing in the videos on Davis's phone and on the video from the Quality Inn—had at least five DNA contributors, which was too many for a meaningful analysis. It was also not tested for gunshot residue because, according to the State, it was recovered more than four hours after the shooting. There were, however, shards of glass recovered from the sweatshirt. And, the evidence showed that when appellant, Davis, and Moffett left the Quality Inn on the night of the murder, all three were wearing black-hooded sweatshirts. Davis had his when he was arrested, and video from the Quality Inn showed that Moffett had his tied around his waist when he returned to the hotel after the shooting. Only appellant had lost his black-hooded sweatshirt during the evening. From this, the jury could have reasonably concluded that the sweatshirt found near both the murder weapon and the gloves with appellant's DNA and gunshot residue belonged to appellant.
The owner of the yard from which the sweatshirt was recovered told police that it did not belong to anyone living there.
Additionally, police recovered two partial footprints during the murder investigation; one from a make-up case from one of the burgled cars in the San Luis parking lot and one from an aloe-vera-type plant that was located near the murder weapon, which appeared to have been crushed as the suspect fled through the neighborhood. Jenny Lounsbury, a forensic scientist with the Texas Department of Public Safety, compared the partial prints against the shoes that appellant was wearing when arrested. On a scale of 1 to 5, with 1 being a match and 5 being an exclusion, the shoes appellant was wearing when arrested were classified as a 2C and were "similar in size and tread design" when compared to the footprints recovered by police. She concluded that the footprints "could have been made by [appellant's] shoe or any other shoe with similar characteristics." Lounsbury was able to exclude all the other shoes recovered by police during the investigation, including those recovered from the gold Lexus Moffett was driving when he was arrested and those recovered from Davis.
Appellant's behavior after the shooting could also be considered by the jury in determining whether the State proved that he was the shooter. First, he returned to the Quality Inn from the direction of the San Luis; he was captured on video acting nervously and pacing around. He was not wearing his black-hooded sweatshirt. Also, several days after the offense, appellant was seen leaving the Galveston County Jail, where Davis was being detained. Appellant got into the gold Lexus, which was being driven by Moffett, and returned to the neighborhood from which the gun, gloves with his DNA and gunshot residue, and black-hooded sweatshirt were recovered by police. When appellant was arrested walking through that neighborhood, he gave police officers a false name. From this evidence a jury could have reasonably concluded that appellant, who was not from Galveston, had returned to the neighborhood to try and recover incriminating evidence related to the crime, not knowing that it had already been discovered by police.
Nevertheless, appellant contends that the evidence is insufficient because there was (1) no DNA analysis conducted on the black-hooded sweatshirt because there were more than five DNA contributors, (2) no gunshot residue analysis conducted on the black-hooded sweatshirt, (3) no evidence that the shoeprint analysis was a match to appellant's shoes, and (4) no evidence that appellant had time between the shooting and the time he arrived back at the Quality Inn to have run the distance between the San Luis and the Quality Inn. All of these arguments focus on evidence that appellant claims is missing from the State's case. However, in conducting an analysis of the sufficiency of the evidence, we should not distinguish "missing" evidence in the case from evidence present in other cases. Murray v. State , 457 S.W.3d 446, 448 (Tex. Crim. App. 2015).
At trial and on appeal, appellant also urges a theory to explain the presence of his DNA inside the glove with the gunshot residue that police recovered from the neighborhood. Appellant contends that someone, likely Davis, put on his own glove, double-gloved a glove that appellant previously worn on top of it, and then fired the gun at Molis. This double-gloving theory, appellant contends, would explain the presence of his DNA inside the glove, with the presence of gunshot residue outside the glove, even if he did not fire the weapon. Appellant points out that this "double glove" theory would also explain why Davis had gunshot residue on his person but not his own gloves. The jury, however, heard and apparently rejected this theory. We are bound to defer to the factfinder's weighing of the evidence and its drawing of reasonable inferences. Zuniga v. State , 551 S.W.3d 729, 739 (Tex. Crim. App. 2018) (citing Wise v. State , 364 S.W.3d 900, 903 (Tex. Crim. App. 2012) ("For the evidence to be sufficient, the State need not disprove all reasonable alternative hypotheses that are inconsistent with the defendant's guilt ... Rather, a court considers only whether the inferences necessary to establish guilt are reasonable based on the cumulative force of all the evidence when considered in the light most favorable to the verdict.")). And, the jury's rejection of this theory is not unreasonable, especially since Davis was arrested near the two gloves containing his own DNA, in an area near the San Luis, but away from the glove recovered from the neighborhood, which appellant contends Davis might have "double gloved" over his own gloves.
From the circumstantial evidence detailed above, a rational jury could have concluded beyond a reasonable doubt that appellant shot and killed Molis. Accordingly, we overrule issue three.
DENIAL OF BATSON CHALLENGES
In his first and second issues on appeal, appellant contends that the State "improperly used [ ] peremptory strike[s] against [Venirepersons 8 and 16], African American[s], a racially discriminatory act in violation of the Equal Protection Clause of the United States Constitution and in violation of Article 35.261 of the Texas Code of Criminal Procedure [.]"
Background
At the end of voir dire, the State used two of its peremptory challenges to strike Prospective Jurors 8 and 16 from the venire panel. Appellant raised a Batson challenge to the strikes as follows:
[Defense Counsel]: Judge, the—prior to the swearing in of the panel, the defense has a Batson challenge, pursuant to the Texas Code of Criminal Procedure, Article 35.261. We ask that the Court take Judicial notice that [appellant] is an African American. There were two venire—
[Trial Court]: Please be—can you put on the white noise, please? I can't get the white noise on mine. Okay, go right ahead.
[Defense Counsel]: May I continue?
[Trial Court]: Yes.
[Defense Counsel]: There are two panel members of the venire, Juror No. I, Netobia Taylor and Juror No. 16, Curtis Isaac, Jr. [Appellant] is a—we ask the
Court to find that [appellant] is a member of an identifying racial group.
[Trial Court]: Okay. That will be done.
[Defense Counsel]: And then Jurors No. 8, No. 16 are of the same racial group. There were no questions posed to No. 8 or to No. 16 that would have led to a cause. They were basically silent as to what they were—responding, they were giving the answers. When they did, they were back and forth. We believe that these two jurors should be on the panel and they should not have been struck by the State. We believe there's a challenge for the basis—perfect challenge on the basis of race for No. 8 and No. 16.
[Trial Court]: Okay. State? Who is No. 8, the name of Juror No. 8?
[Defense Counsel]: Netobia Taylor.
[Trial Court]: Okay. Go right ahead.
[Prosecutor]: Your Honor, Juror No. 8 had a significant discussion by [the Prosecutor] regarding the law of parties that arose from Juror No. 48. No. 8 said that she would disagree with Juror No. 48 regarding that viewpoint of both parties. We feel an important viewpoint in terms of what 48 specified. So since Juror No. 8 disagreed with Juror No. 48, we removed her. Additionally, Juror No. 8's response to the defendant's—defense's questions, she gave low numbers which we felt that created a defense line to juror instead of a State's line to juror. To Juror No. 16 there were actually—
[Defense Counsel]: Juror 16 is Curtis Isaac, Jr.
[Trial Court]: Okay. I'm going to pick up her chart and her chart does imply No. 8 and what she [the prosecutor] put on the record. Now, looking at box No. 16. Go right ahead.
[Prosecutor]: Box No. 16 noted that there were no questions asked of No. 16, which does—which gave us little information about him. However, in all of the defense's skilled questions he answered number three, which means that he was just a neutral juror, he couldn't make a decision. And he was going to be a difficult time any sort of unanimous decision because his scores for defense's questions were all number three on the three skilled questions that the defense did. And so taking that into account, we did look at the defense's skilled questions when deciding our strikes. Our prefer strikes were because he couldn't pick a side. One side or the other, he neither strongly agreed nor disagreed with the defense's question. We feel that he would not be an appropriate person. That's why we struck No. 16.
[Trial Court]: Okay. Your motion is denied.
Standard of Review and Applicable Law
The racially motivated use of a peremptory strike violates the Equal Protection Clause of the United States Constitution. See Batson v. Kentucky , 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ; see also U.S. CONST. amend. XIV, § 1. The exclusion of even one juror with racial motive invalidates the jury selection process and requires a new trial. Jones v. State , 431 S.W.3d 149, 154 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd).
Named after the seminal Supreme Court decision, an objection that a peremptory strike was based on race is called a Batson challenge. The resolution of a Batson challenge involves a three-step process, which encourages prompt rulings on objections to peremptory challenges and reduces disruptions in the jury-selection process. Nieto v. State , 365 S.W.3d 673, 675–76 (Tex. Crim. App. 2012). First, the defendant must make a prima-facie showing of racial discrimination. Id. at 676. If the defendant makes the requisite showing, the burden shifts to the prosecutor in the second step, requiring him to articulate a race-neutral explanation for the strike. Id. Finally, the trial court determines whether the opponent of the strike has satisfied his burden of persuasion to establish by a preponderance of the evidence that the strike was indeed the product of purposeful discrimination. Blackman v. State , 414 S.W.3d 757, 765 (Tex. Crim. App. 2013).
To determine whether the defendant has proved purposeful discrimination, the trial court should consider all relevant factors, including, by way of example:
• whether there is a statistical disparity between the percentage of minority and white panelists who were struck;
• whether the record supports or contradicts the prosecutor's explanation for its strikes;
• whether the reason given for the peremptory challenge is related to the facts of the case;
• whether the prosecutor questioned the minority panelists before striking them;
• whether there was disparate examination of minority panelists, i.e., whether the prosecutor examined minority panelists so as to evoke a certain response without asking the same question of white panelists; and
• whether there was disparate treatment of minority panelists, i.e., whether the prosecutor's explanations for striking minority panelists apply equally well to white panelists who were not struck.
See Nieto , 365 S.W.3d at 678 n.3.
The trial court's ruling in the third step must be sustained unless it is clearly erroneous. Id. at 676. 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. Id. The trial court must focus on the genuineness of the asserted non-racial motive, rather than the reasonableness. Id. We defer to the trial court's ruling in the absence of exceptional circumstances. Id. Whether the defendant satisfies his burden of persuasion to show that the State's facially race-neutral explanation for its strike is pretextual, not genuine, is a question of fact for the trial court. Blackman , 414 S.W.3d at 765.
An appellate court should consider the entire record of the voir dire and need not limit itself to the specific arguments brought forth to the trial court by the parties. Nieto , 365 S.W.3d at 676. A reviewing court may not substitute its judgment for the trial court's in deciding that the prosecutor's explanation was a pretext. Id. Just like the trial court, the reviewing court must focus on the genuineness, rather than the reasonableness, of the asserted non-racial motive. Id.
Analysis
1. Prima Facie Showing of Racial Discrimination
Step one of the Batson analysis, i.e., prima facie showing of racial discrimination, was rendered moot when the State moved to step 2 and offered race-neutral reasons for its strikes. See Watkins v. State , 245 S.W.3d 444, 447 (Tex. Crim. App. 2008) ("Once the opponent of the challenged strike raises a question of purposeful discrimination, if the trial court then proceeds immediately to the second step by inquiring of the proponent whether he had a non-discriminatory purpose, a reviewing court is to assume that the opponent has satisfied his step-one obligation to make a prima facia case of purposeful discrimination and address only the second and third steps.").
2. Race-Neutral Reasons for the State's Strikes
Step two of the Batson analysis requires the State to offer race-neutral reasons for its strikes against Jurors 8 and 16. A race-neutral explanation is one based on something other than the race of the panelist. Jones v. State , 431 S.W.3d 149, 155 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). At this step of the inquiry, the issue is simply the facial validity of the prosecutor's explanation. Id. Unless discriminatory intent is inherent in the explanation, the offered reason is race neutral. Id.
Regarding Juror No. 8, the State expressed concern about the juror's position on the law of parties. This Court has held that a juror's problem with the law of parties is an adequate race-neutral reason. See Ware v. State , No. 01-91-00214-CR, 1992 WL 85774, at *3 (Tex. App.—Houston [1st Dist.] Apr. 30, 1992, no pet.) (not designated for publication).
Regarding both Juror No. 8 and No. 16, the State relied on the jurors’ answers to defense questions, which required the jurors to assign a value between one and five to demonstrate whether they agreed or disagreed with certain statements. The State responded that Juror No. 8's "low numbers" to certain questions demonstrated that she tended to favor the defense over the State. The State was also concerned that Juror No. 16's consistent answers of "3" showed that the juror would be a neutral juror and that it would be difficult to reach a unanimous verdict with him on the panel. This Court has held that the State's reliance on a juror's answers to such questions to show that the juror would be either neutral or favorable to the defense is a race-neutral explanation. See Green v. State , No. 01-18-00162-CR, 2019 WL 2621738, at *11 (Tex. App.—Houston [1st Dist.] June 27, 2019, pet. ref'd) (mem. op., not designated for publication). Accordingly, we conclude that the State presented race-neutral reasons for the strikes.
3. Purposeful Discrimination
We must next determine whether appellant proved purposeful discrimination; that is, whether the trial court clearly erred in failing to find purposeful discrimination in the State's use of peremptory strikes. See Stewart v. State , 176 S.W.3d 856, 858–59 (Tex. App.—Houston [1st Dist.] 2005, no pet). The trial court must evaluate the facially race-neutral reasons given by the prosecutor to determine whether those explanations are genuine or merely a pretext for purposeful discrimination. Whitsey v. State , 796 S.W.2d 707, 713 (Tex. Crim. App. 1989).
For both Jurors No. 8 and No. 16, appellant argues that he has shown purposeful discrimination because the record shows that they, as African American jurors, received disparate treatment from white jurors who responded to the questions similarly. See Nieto , 365 S.W.3d at 678 n.3 (noting that disparate treatment of minority panelists—whether prosecutor's explanations for striking minority panelists apply equally well to white panelists not struck—is factor in considering purposeful discrimination).
The State responds, among other arguments, that appellant, by offering no rebuttal at all to the prosecutor's race-neutral reasons, has failed to carry his burden of persuasion on the third step of the Batson analysis. We begin by noting that the Texas Court of Criminal Appeals has held that a disparate treatment argument may be made for the first time on appeal. Young v. State , 826 S.W.2d 141, 145–46 (Tex. Crim. App. 1991). The issue presented, however, is not whether disparate treatment can be raised for the first time on appeal, but whether a defendant can raise disparate treatment when he did not offer any objection or evidence during the Batson hearing to rebut the State's proffered race-neutral reasons. This Court considered the issue in Adair v. State , 336 S.W.3d 680 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). In Adair , the defendant raised a disparate treatment argument for the first time on appeal. Id. at 689. This Court agreed that Young v. State permitted such an argument, provided that the argument was based on "evidence presented to the trial judge during voir dire and the Batson hearing." Id. (citing Young , 826 S.W.2d at 145–46 ). Because the appellant in Adair was relying on juror information cards that were not admitted at trial, this Court refused to consider them even though they had been provided to the Court in a "sealed, supplemental record," except to the extent that the juror information cards were discussed at the hearing. See id. The Court further noted that "appellant failed to offer any rebuttal argument," noting that "[a]ppellant never attempted to rebut the prosecutor's explanations at trial. Appellant never indicated to the court that he believed the explanations to be pretext. Also, appellant never attempted to make a comparative analysis of the information of the juror information cards to the trial court." Id. at 689, n.5. The Court also noted that "defense counsel did not even make a general argument that he believed the explanations to be a pretext; rather, he did nothing to put the court on notice that he was not satisfied with by the prosecutor's race-neutral explanations." Id. at 689, n.6.
This Court concluded that:
[N]ot making the comparative analysis to the trial court is distinguishable from failing to make any argument whatsoever in response to the prosecutor's race-neutral reasons. See Young , 826 S.W.2d at 142, 146 (holding that comparative analysis, pointing to specific testimony, may be made for first time on appeal, where defense counsel offered general rebuttal argument and "quarreled with the State's reason" at trial). In other words, the authority allowing for a comparative analysis for the first time on appeal does not excuse defense counsel from making any rebuttal argument whatsoever .
Id. at 690 (emphasis added).
The same is true in this case. Appellant relies on jury biographical forms that were not admitted at the Batson hearing, but were included in a sealed, supplemental clerk's record to this Court. Even if we were to consider the documents, we would, under the reasoning of Adair , still conclude that the trial court did not clearly err in concluding that appellant had not met his burden of persuasion to establish purposeful discrimination.
See also United States v. Arce , 997 F.2d 1123, 1127 (5th Cir. 1993) (citing United States v. Rudas , 905 F.2d 38, 41 (2d Cir. 1990) ("Once the Government has offered reasons for its peremptory challenges, defense counsel must expressly indicate an intention to pursue the Batson claim.")); see also United States v. Brent , 300 Fed. Appx. 267, 270, 272 (5th Cir. 2008) (unpublished) (explaining that defendant waived Batson claim because he "objected to the government's peremptory strike but did not challenge the prosecution's race-neutral explanation").
Accordingly, we overrule issues one and two.
CONCLUSION
We affirm the trial court's judgment.
Landau, J., concurring, joined by Countiss, J.
CONCURRING OPINION
Sarah Beth Landau, Justice
Although we agree with the analysis and disposition of the sufficiency issue, the analysis of the racially motivated use of a peremptory strike under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), requires a closer look. Despite a timely and specific objection to the State's striking of two of three African American members of the venire based on race, the majority concludes that the defense waived its challenge because it did not rebut the State's proffered race-neutral explanation of its strikes. Because this Court has previously held that such a rebuttal is required, we are constrained to join the Court's opinion finding that Ledford waived his objection. But because (1) Batson does not require a rebuttal to preserve error and (2) the fundamental nature of the right militates against creating a hurdle to jury participation, this Court should revisit its opinion in Adair v. State , 336 S.W.3d 680 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd), en banc to right its Batson jurisprudence.
"Other than voting, serving on a jury is the most substantial opportunity that most citizens have to participate in the democratic process." Flowers v. Mississippi , ––– U.S. ––––, 139 S. Ct. 2228, 2238, 204 L.Ed.2d 638 (2019) (citing Powers v. Ohio , 499 U.S. 400, 407, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) ). The United States Supreme Court recognized as early as 1880 that states may not statutorily discriminate in jury selection, yet many jurisdictions used other less overt procedural tools to exclude citizens from jury participation on the basis of race, including peremptory strikes. Id. at 2239. This led to Batson .
Batson ’s shield against disparate treatment covers both the defendant and the prospective juror. Edmonson v. Leesville Concrete Co., Inc. , 500 U.S. 614, 616, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). As a result, it applies regardless of the race of the defendant. Powers , 499 U.S. at 400, 111 S.Ct. 1364. And the right applies in civil and criminal cases. Edmonson , 500 U.S. at 616, 111 S.Ct. 2077. There is no amount of race-based selection that is harmless or permissible. See Flowers , 139 S. Ct. at 2241 ("In the eyes of the Constitution, one racially discriminatory peremptory strike is one too many.").
The unmistakable principle of these precedents is that discrimination on the basis of race, "odious in all aspects, is especially pernicious in the administration of justice," Rose v. Mitchell , 443 U.S. 545, 555, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), damaging "both the fact and the perception" of the jury's role as "a vital check against the wrongful exercise of power by the State." Powers , 499 U.S. at 411, 111 S.Ct. 1364.
Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process. Enforcing that constitutional principle, Batson ended the widespread practice in which prosecutors could (and often would) routinely strike all black prospective jurors in cases involving black defendants. By taking steps to eradicate racial discrimination from the jury selection process, Batson sought to protect the rights of defendants and jurors, and to enhance public confidence in the fairness of the criminal justice system. Batson immediately revolutionized the jury selection process that takes place every day in federal and state criminal courtrooms throughout the United States.
Flowers , 139 S. Ct. at 2242–43. The exclusion of even one member from the jury panel for racial reasons invalidates the entire jury selection process. Whitsey v. State , 796 S.W.2d 707, 716 (Tex. Crim. App. 1989). That is because the right to be free from racial discrimination in jury selection is fundamental. See generally Flowers , 139 S. Ct. at 2238–39.
The treatment of race in jury selection is sufficiently invidious and was so pervasive that the Supreme Court designated the error as structural. Weaver v. Massachusetts , ––– U.S. ––––, 137 S. Ct. 1899, 1911, 198 L.Ed.2d 420 (2017) ; Bausley v. State , 997 S.W.2d 313, 318–19 (Tex. App.—Dallas 1999, pet. denied) (citing Arizona v. Fulminante , 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) ). As structural error, racially discriminatory jury selection requires reversal without a showing of harm because it can cause "fundamental unfairness, either to the defendant in the specific case or by pervasive undermining of the systemic requirements of a fair and open judicial process." Weaver , 137 S. Ct. at 1911. For this type of structural error, it would be "futile for the government to try to show harmlessness." Id. at 1908.
The Supreme Court has designated other errors as structural: (1) lack of an impartial trial judge; (2) the unlawful exclusion of members of the defendant's race from a grand jury; (3) the denial of the right to self-representation at trial; (4) the denial of the right to a public trial; and (5) an instruction that erroneously lowers the burden of proof for conviction below the "beyond a reasonable doubt" standard. See Johnson v. State , 169 S.W.3d 223, 235 (Tex. Crim. App. 2005) (citing Johnson v. United States , 520 U.S. 461, 468–69, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) ).
Batson itself was a reaction to the "crippling burden of proof" previously required under Swain v. Alabama , 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), to demonstrate purposeful racial discrimination. Williams v. State , 804 S.W.2d 95, 97 (Tex. Crim. App. 1991). In eliminating the dictate that " ‘several must suffer discrimination’ before one could object," Batson set forth a three-step analysis, not a four-step analysis. Batson , 476 U.S. at 96, 106 S.Ct. 1712. First, the defendant must make a prima facie showing of racial discrimination. Id. at 96–97, 106 S.Ct. 1712. If the defendant makes his showing, the burden shifts to the state, requiring it to articulate a race-neutral explanation for the strike. Id. at 97, 106 S.Ct. 1712. The state's proffered reason need not be persuasive, as long as it is not race based. Purkett v. Elem , 514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). Third and finally, the trial court determines whether the defendant has satisfied his burden of persuasion to show by a preponderance of the evidence that the strike was actually the product of purposeful discrimination. Id. Batson included no intermediate rebuttal step. Batson , 476 U.S. at 98–100, 106 S.Ct. 1712. Nor does the state's announcement of a race-neutral reason eviscerate the defendant's prima facie showing.
In the first post- Batson reversal in Texas, the failure to rebut the State's race-neutral reasons for its strikes of the only African American jurors posed no impediment to the Court of Criminal Appeals finding that the State's proffered reasons were insufficient as a matter of law to rebut the defendant's prima facie showing of racial discrimination in jury selection. Whitsey , 796 S.W.2d at 716 (reversing for a new trial despite defendant's lack of rebuttal because trial judge's finding that prosecutor's explanation was sufficient was unsupported by the record).
Indeed, the Court of Criminal Appeals phrased the defendant's burden after the State's proffer as whether the defendant "continued to sustain his burden of persuasion in establishing purposeful racial discrimination by the State's use of peremptory challenges, thus rebutting any race neutral explanation given at the Batson hearing." Williams , 804 S.W.2d at 101. This follows the phrasing in the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. art. 35.261. There was no requirement that the defendant provide additional evidence or objection. Requiring the defendant "continue to sustain" a burden of proof to prevail is not the same as a rebuttal requirement. The "rebut or waive" approach in Adair is in tension with the fundamental nature of the right and the procedures safeguarding it. As the majority notes, a defendant may raise a disparate treatment argument for the first time on appeal. Young v. State , 826 S.W.2d 141, 145–46 (Tex. Crim. App. 1991). Both at the trial and appellate level, the court engages the entire voir dire record, not limited to the arguments of the parties. Nieto v. State , 365 S.W.3d 673, 675–76 (Tex. Crim. App. 2012). And yet, if the defendant fails to rebut the prosecutor's facially race-neutral reasons for its strikes, this Court is bound to conclude that any complaint about race-based jury selection is waived. Adair , 336 S.W.3d at 689–90. Presumably, this would be true even if the trial court had erred in finding that the State had articulated a race-neutral explanation for its strikes. It does not make sense to require robust evaluation of Batson claims at the trial and appellate level only to dispose of the claims as waived if the defendant did not present rebuttal.
This explanation in Williams was muddied somewhat by dicta in Chamberlain v. State , 998 S.W.2d 230, 236 (Tex. Crim. App. 1999), that the trial court did not err in concluding that the defendant did not carry his burden of persuasion due, in part, to "the absence of real rebuttal – for example, that no white venire members with similar views were ignored by the State." This assertion was unaccompanied by any citation and does not account for the trial court's role in the third step. This assertion has been cited in many cases for the proposition that a defendant's failure to offer "any real rebuttal" to a proffered race-neutral explanation "can be fatal to the claim." See, e.g., Johnson v. State , 68 S.W.3d 644, 649 (Tex. Crim. App. 2002).
Nieto confirms that Batson is a three-step process, not a four-step process. Nieto , 365 S.W.3d at 675–76.
There is also a practical problem with requiring immediate rebuttal on pain of waiver. While a prosecutor may be able to quickly refer to notes to proffer race-neutral reasons for strikes they made moments earlier, a comparative analysis of similarly situated jurors for a panel of 82 potential jurors in a criminal case takes time. Many lawyers go to trial alone. The record does not reflect the presence of a second lawyer on either side.
Even if it were a good idea, Adair ’s rebuttal requirement rests on a foundation of quicksand. First, Adair cites McKinney v. State , No. 01-05-00804-CR, 2006 WL 2042517 (Tex. App.—Houston [1st Dist.] July 20, 2006, no pet.) (mem. op., not designated for publication), which, as an unpublished memorandum opinion, had no precedential value. TEX. R. APP. P. 47.4(a). McKinney concludes that the defendant "did not attempt to rebut the prosecutor's race-neutral explanations and therefore failed to meet the burden of persuasion on his challenge[.]" McKinney , 2006 WL 2042517, at *3. The cases McKinney cites, however, do not hold that a defendant must rebut the race-neutral reason or face waiver. The cases only note that a defendant, who may rebut, has the ultimate burden of persuasion. Purkett , 514 U.S. at 768, 115 S.Ct. 1769 (ultimate burden of persuasion in Batson challenge rests with defendant); Jasper v. State , 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (defendant "has the opportunity to rebut" but the "burden of persuasion remains with the defendant"); Stewart v. State , 176 S.W.3d 856, 858 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (same). Having the opportunity to rebut is not the same as having a requirement to rebut.
Adair then relies on United States v. Arce , 997 F.2d 1123, 1126–27 (5th Cir. 1993), which concluded that the defendants’ failure to specifically contest the government's proffered race-neutral reasons, brief employment and an unexplored concern that because the juror spoke fluent Spanish, he might resist official translations of trial evidence. Id. Arce concluded, without citation, that the defense had not disputed that explanation, so "the district court had no need to rule on its validity." Id. at 1127. Later, the Arce court quoted United States v. Rudas , 905 F.2d 38 (2d Cir. 1990), which required defense counsel to "expressly indicate an intention to pursue the Batson claim" after the government has offered reasons for its peremptory challenges. Id. at 41. Notably, Rudas cited no authority nor provided any explanation for its conclusion that by failing to dispute the government's proffer, the defendant "appeared to acquiesce." Id. Rudas and Arce appear to only require a reurging of the Batson claim, but Adair suggests a substantive rebuttal requirement. No authority tied to precedent justifies the rebuttal requirement in Adair . These federal cases, with no authority or grounding in the Batson framework, cannot justify undermining so fundamental a right as that of a citizen to participate in the administration of justice or the defendant's right to be tried by a jury selected without racial discrimination.
Batson does not have a rebuttal requirement. In the 35 years since Batson , the Supreme Court has never imposed one. Instead, the Court has rebuffed state attempts to increase the burden on criminal defendants asserting Batson challenges. See, e.g., Johnson v. California , 545 U.S. 162, 170, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) (rejecting California's requirement that the defendant demonstrate at step one that the challenge was more likely than not the product of purposeful discrimination, rather than merely producing evidence supporting an inference of discrimination). Indeed, it is difficult to imagine any objection in a criminal trial, much less a key protection under the Equal Protection Clause, requiring rebuttal to preserve error. As Batson itself recognized, the job of enforcement rests "first and foremost" with trial judges. Flowers , 139 S. Ct. at 2243. Batson ’s third step is the trial judge's consideration of the race-neutral explanations in light of all the relevant facts and circumstances and the arguments of the parties. Id. It is not a rebuttal by the defense.
Fabrication of a rebuttal requirement in Adair found nowhere in Batson or its progeny has had two nefarious consequences. First, it improperly shunts otherwise valid Batson challenges to the garbage bin of waiver. Second, it relieves the trial court of performing the Batson -mandated analysis that this Court reviews. Adair ’s rebuttal requirement allows race-based juror selection to go unexamined.
The trial court, the primary enforcer of Batson , did not complete step three. First, the trial court did not, as required, Davis v. Fisk Elec. Co. , 268 S.W.3d 508, 515–16 (Tex. 2008), give the defendant an opportunity for any rebuttal. Second, the trial court was obligated to, but did not, evaluate the State's race neutral reasons for the strikes. Batson , 476 U.S. at 98, 106 S.Ct. 1712 ("The trial court then will have the duty to determine if the defendant has established purposeful discrimination."). The trial court did not make any findings or examine all relevant factors, instead immediately responding only, "Okay. Your motion is denied." The entire Batson proceeding lasted one minute.
Without the rebuttal requirement in Adair , the result here likely would have been different. Instead of being disposed of as waived, the proper disposition might have been to remand to have the trial court conduct a Batson third-step analysis in the first instance. See, e.g., Hutchinson v. State , 86 S.W.3d 636, 638–39 n.1 (Tex. Crim. App. 2002) ; Kassem v. State , 263 S.W.3d 377, 383 (Tex. App.—Houston [1st Dist.] 2008, no pet.). This would have allowed the trial court to examine "all relevant circumstances." Davis , 268 S.W.3d at 511. Several factors can show purposeful discrimination. Id. at 512–14 (citing Miller-El v. Dretke , 545 U.S. 231, 240–66, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) ). "[T]he presence of any one of these factors tends to show that the State's reasons are not actually supported by the record or are an impermissible pretext." Whitsey , 796 S.W.2d at 713.
One factor is a statistical analysis of the state's peremptory strikes. Another is a comparative juror analysis to examine disparate treatment of potential jurors. The Supreme Court noted that "[m]ore powerful than these bare statistics, however, are side-by-side comparisons of some black venire panelists who were struck and white panelists who were allowed to serve." Miller-El , 545 U.S. at 241, 125 S.Ct. 2317. The Court explained that "[i]f 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." Id. The Court rejected the notion that struck venire members must be compared only to jurors who are identical in all respects: "A per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set of cookie cutters." Davis , 268 S.W.3d at 512 ; see Moore v. State , 265 S.W.3d 73, 86–88 (Tex. App.—Houston [1st Dist.] 2008, pet. dism'd) (finding no meaningful difference between failing to respond to a question on the juror questionnaire and a response of a series of question marks and concluding that the state's explanation applied equally to non-African American potential jurors).
A third factor the Supreme Court considered was the prosecution's use of the jury shuffle, a practice unique to Texas, that the district attorney's office had previously admitted to using to manipulate the racial makeup of juries. Davis , 268 S.W.3d at 513 (citing Miller-El , 545 U.S. at 254, 125 S.Ct. 2317 ). The fourth factor the Supreme Court relied on was the "contrasting voir dire questions posed respectively to black and nonblack panel members," giving black panel members a graphic account of the death penalty before querying them on their opinions while giving nonblack panel members a bland description." Davis , 268 S.W.3d at 513 (quoting Miller-El , 545 U.S. at 255, 125 S.Ct. 2317 ). Finally, the Supreme Court considered the Dallas County District Attorney's Office's history of "systematically excluding blacks from juries" using a manual distributed to line prosecutors. Davis , 268 S.W.3d at 514 (quoting Miller-El , 545 U.S. at 263, 125 S.Ct. 2317 (further quotation omitted)).
On appeal, we review for clear error, but that is just another way of saying that the trial court's conclusions must be supported by the record. Hill v. State , 827 S.W.2d 860, 866 (Tex. Crim. App. 1992) (stating that the clearly erroneous standard is "analytically and intellectually the same" as the supported by the record standard). While we cannot substitute our judgment for that of the trial court, we are not limited to the specific arguments presented at trial. Id. Instead, we review the voir dire record in its entirety. Watkins v. State , 245 S.W.3d 444, 448 (Tex. Crim. App. 2008). We engage that analysis here.
Ledford is African American. His complaint was that the State struck two African American potential jurors, No. 8 and No. 16, without an apparent race-neutral basis. Jurors 8 and 16 were two of the three remaining African American venire members on the panel. The State responded that No. 8 disagreed with No. 48's take on the law of parties and also "gave low numbers" to the defense's questions. As for No. 16, he gave a "neutral" number in response to the defense's questions so he "couldn't pick a side." This explanation is facially race-neutral, satisfying step two of the Batson procedure. Per Batson , the trial court should then have evaluated the State's reasons to determine whether those explanations were genuine or a pretext for purposeful discrimination. Whitsey , 796 S.W.2d at 713.
Here, the trial court only checked that the record did not contradict the State's race-neutral explanation. The trial court noted that the State had correctly recited Juror No. 8 and Juror No. 16's responses, but this is only one potentially relevant factor. See Jones v. State , 431 S.W.3d 149, 156 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) (whether the record contradicts the State's explanation for its strikes is one of many factors for the trial court to consider in its Batson evaluation). What the trial court did not do was to compare Juror No. 8 and Juror No. 16 with other similarly situated potential jurors. Without a comparative analysis, there was no way to evaluate the genuineness of the State's proffered explanations. See Nieto , 365 S.W.3d at 675–76. If there is no meaningful difference between those who were struck and those who were not, the proffered reason does not explain the basis for the strike.
Had the trial court held a full hearing and considered the entirety of voir dire and all relevant circumstances and given the defense an opportunity for rebuttal, the trial court would have seen that the State treated similarly situated jurors of different races differently. First, although the State correctly noted that No. 8, N. Taylor, disagreed with No. 48's statement about the law of parties, Taylor was not the only juror to do so. Indeed, No. 39, a white juror, responded the same way Taylor did, by holding up their juror number as someone who disagreed with No. 48. But No. 39 was not struck. The State did not interrogate either potential juror further about the law of parties. Even so, the State did receive more information about Taylor, who, after hearing more about the law of parties, did not hold up her juror card to agree that she could not follow the law of parties. Neither did No. 39. This would seem to overcome the State's race neutral explanation. But the State cited two facially neutral explanations, so we will look at both. See Cantu v. State , 842 S.W.2d 667, 689 (Tex. Crim. App. 1992).
The State also cited Taylor's "low numbers" on the defense's questions about (1) whether jurors agreed or disagreed with the idea that a defendant should present evidence and (2) whether an indictment was evidence of guilt. But looking at each prospective juror's responses to all questions requiring a numbered response, not just the defense's questions, puts Taylor on equal footing with No. 39, and belies the State's assertion that her responses "created a defense line to juror instead of a State's line to juror."
| Question | Juror No. 8 | Juror No. 39 |
|---|---|---|
| A defendant should testify | 3 (neutral) | 1 (strongly disagree) |
| Most important punishment factor | 1 (seriousness of the offense) | 1 (seriousness of the offense) |
| A defendant should present evidence | 1 (strongly disagree) | 3 (neutral) |
| An indictment is evidence of guilt | 1 (strongly disagree) | 1 (strongly disagree) |
| TOTAL: 6 | TOTAL: 6 |
Neither juror's responses created a "defense line" to a juror: they had the same total score when their answers were tallied. Taylor was African American; No. 39 was white. Taylor was struck; No. 39 was not. As the Supreme Court explained, "If a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack [panelist] who is permitted to serve, that is evidence tending to prove purposeful discrimination." Miller-El , 545 U.S. at 241, 125 S.Ct. 2317.
Second, the State explained that it struck Juror No. 16, C. Isaac, because "in all of the defense's [scaled] questions he answered number three, which means that he was just a neutral juror, he couldn't make a decision ... he couldn't pick a side." Although it is true that Isaac answered both defense questions as neutral, he was not the only one to do so. Juror No. 53, who was white, also answered both questions neutrally. Both jurors also answered the State's scaled question about the defendant testifying neutrally. But the State did not strike No. 53.
| Question | Juror No. 16 | Juror No. 53 |
|---|---|---|
| A defendant should testify | 3 (neutral) | 3 (neutral) |
| A defendant should present evidence | 3 (neutral) | 3 (neutral) |
| An indictment is evidence of guilt | 3 (neutral) | 3 (neutral) |
| TOTAL: 9 | TOTAL: 9 |
Who knows how many meritorious Batson claims have succumbed to this imaginary rebuttal requirement? Just as one racially discriminatory peremptory strike is one too many, Snyder v. Louisiana , 552 U.S. 472, 478, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), one trial tainted by unexamined Batson error is one too many. The Supreme Court has "vigorously enforced and reinforced [ Batson ] and guarded against any backsliding." Flowers , 139 S. Ct. at 2243. We must do the same.