Opinion
No. 03-96-00443-CR.
April 9, 1998.
Appeal from the District Court of Williamson County, 368th Judicial District, Burt Carnes, J.
Randall J. Pick, Enochs Pick, P.C., Taylor, for Appellant.
Ken Anderson, District Attorney, Jana K. McCown, Assistant District Attorney, Georgetown, for State.
Before POWERS, ABOUSSIE and B.A. SMITH, JJ.
A jury found appellant guilty of delivery of marihuana and the trial court sentenced him to forty-four years' confinement. Appellant's sole point of error is a Batson challenge. We must decide whether the prosecutor offered a race-neutral basis for challenging a Hispanic potential juror, and, if so, whether the trial court's decision to accept the prosecutor's explanation should be sustained, We find the trial court's ruling was not clearly erroneous and will affirm the conviction.
Appellant delivered 10 lbs. of marihuana on October 29, 1993. The law at the time of the offense made delivery of more than five pounds but less than 50 pounds marihuana a first degree felony. See Health Safety Code, 71st Leg., ch. 678, § 1, § 481.120, 1989 Tex. Gen. Laws 2230, 2938 (Tex. Health Safety Code § 481.120(a), (b)(5), since amended). Marihuana delivery of more than 5 but less than 50 lbs. is now a second degree felony. Tex. Health Safety Code Ann. § 481.120(a), (b)(4) (West Supp. 1998).
Trial Procedures and Standard of Review for Batson Challenges
Appellant contends the trial court erred by denying his Batson challenge to the State's peremptory strike of a Hispanic member of the venire panel. Appellant argues that the prosecutor used this strike in a racially discriminatory manner to exclude the veniremember from service on the jury because of his race. Excluding a person from jury service because of race violates the Equal Protection clause of the Fourteenth Amendment to the United States Constitution. U.S. Const. amend. XIV; Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See Tex. Code Crim. Proc. Ann. art. 35.261 (West 1989) (statute essentially codifies Batson standard).
The analysis used to test a Batson challenge consists of three steps. First, the defendant must establish a prima facie showing of discrimination by the State against an eligible veniremember, To make such a case, the defendant must show that relevant circumstances raise an inference that the State made a race-based strike. Only minimal evidence is needed to support a rational inference. The burden of establishing a prima facie case is not onerous. Second, if a prima facie case is made, the State then has the burden to come forward with a race neutral reason for the strike. The prosecutor's explanation must be clear and reasonably specific and must contain legitimate reasons for the strike related to the case being tried at the moment, Finally, once the State offers a race-neutral explanation, the burden shifts back to the defendant to persuade the trial court that the State's purported reasons for its peremptory strike are mere pretext and are in fact racially motivated. Lopez v. State, 940 S.W.2d 388, 389-90 (Tex.App.-Austin), pet ref'd, 954 S.W.2d 774 (Tex.Crim.App. 1997) (McCormick, P.J., dissenting to refusal of State's petition); see also Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); Hernandez v. New York, 500 U.S. 352, 111, S.Ct. 1859, 114 L.Ed.2d 395 (1991).
On appeal of a Batson challenge, this Court must apply a "clear error" standard of review. Lopez, 940 S.W.2d at 390 (citing Hernandez, 500 U.S. at 364-65, 111 S.Ct. at 1868-69). In applying this standard, we must review all of the evidence in the light most favorable to the district court's ruling and then determine if the ruling was clearly erroneous. If, after reviewing all the evidence, we cannot say that the trial court's ruling was clearly erroneous, we must uphold the ruling even if this Court would have weighed the evidence differently had we been sitting as the trier of fact. Lopez, 940 S.W.2d at 390. For us to conclude that the trial court's decision was clearly erroneous, we must be left with a "definite and firm conviction that a mistake has been committed." Vargas v. State, 838 S.W.2d 552, 554 (Tex.Crim.App. 1992).
Presiding Judge McCormick's dissent to the refusal of the State's petition for discretionary review in Lopez was partially based on his view that the Court of Criminal Appeals should "emphasize that the applicable' clearly erroneous' standard of appellate review to a trial court's ruling on a Batson claim is a highly deferential standard. See Hernandez v. New York, 500 U.S. 352, 362-66, 111 S.Ct. 1859, 1868-69, 114 L.Ed.2d 395 (1991)." Lopez, 954 S.W.2d at 776.
Great deference to the trial court's ruling is especially appropriate in the review of a Batson challenge because the credibility of the prosecutor's explanation is the heart of the matter and the trial court is in the best position to make that judgment.
Deference to the trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding "largely will turn on evaluation of credibility." In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies "peculiarly within a trial judge's province."Hernandez, 500 U.S. at 365, 111 S.Ct. at 1869 (citations omitted) (plurality opinion).
Discussion
Mandujano and his two codefendants are Hispanic. The case was tried with the assistance of an interpreter. At the conclusion of voir dire, the State exercised one of its peremptory challenges to excuse a male veniremember of Hispanic origin. It is this strike that appellant contends was racially motivated.
Appellant argued in the trial court that the State used two of its peremptory challenges to remove a Hispanic man and woman and that these two were the only Hispanics near the top of the panel list and thus likely to be chosen to serve. At the healing on appellant's challenge, the State offered its explanations for these strikes, and the trial court ruled adversely to appellant. The record does not disclose whether the trial court ever expressly determined that appellant had met his burden to make a prima facie case of discrimination. However, once a prosecutor articulates the reasons for a peremptory challenge and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant made a prima facie case becomes moot. Rhoades v. State, 934 S.W.2d 113, 124 (Tex.Crim.App. 1996), citing Wheatfall v. State, 882 S.W.2d 829, 835 (Tex.Crim.App. 1994). Appellant only brings forward on this appeal his challenge to the Hispanic male veniremember.
The State's first explanation of why it struck the Hispanic male was that he was the only veniremember to leave important papers in the courtroom when everyone went to lunch. The papers included the form he would have to use to get paid for jury duty and his jury questionnaire. The second reason the State offered was an answer he gave on the jury questionnaire. In response to the question whether he wanted to serve on the jury, he answered that he did want to serve because it would help him in case he were ever called to be on a jury again. The prosecutor explained that he considered that response illogical and nonsensical. Finally, the State explained that the combination of the first two reasons left the State with doubts about the juror's level of intelligence and his ability to understand the State's case.
Appellant's answer to the State's explanation was to discount the importance of leaving papers in the courtroom and simply to dispute that the answer on the questionnaire about why he wanted to serve was illogical or nonsensical. Appellant offered into evidence the questionnaires of two other venire members who were not struck by the State as being no more logical than the response of the Hispanic man the State did strike. One answered that he did not want to serve because of work constraints, but could serve; the other did not answer the question at all. After the hearing and argument, the trial court ruled that it did not believe that purposeful discrimination by the State had been demonstrated in the use of its strikes and denied appellant's challenge.
In our review, we begin by looking at the second step in the three-step process explained above, the State's articulation of a race-neutral explanation for striking the venire member. In evaluating the race-neutrality of a prosecutor's explanation, an appellate court must determine whether, assuming the reasons given are true, the use of the peremptory challenge violated the Equal Protection Clause as a matter of law. Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866.
A neutral explanation means an explanation based on something other than the race of the juror. Id. at 360, 111 S.Ct. at 1866-67. At this step, the issue is the facial validity of the prosecutor's explanation. "Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed neutral." M."The second step of this process does not demand an explanation that is persuasive, or even plausible." Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 1770-71, 131 L.Ed.2d 834 (1995).
The Prosecutor's intent is crucial, not the result of his action. "Equal protection analysis turns on the intended consequences of government classifications. Unless the government actor adopted a criterion with the intent of causing the impact asserted, that impact itself does not violate the principal of race neutrality." Hernandez, 500 U.S. at 362, 111 S.Ct. at 1867-68. In Batson, 476 U.S. at 98, 106 S.Ct. at 1723-24, the Court said that the proponent of a strike that is challenged must provide a clear and reasonably specific explanation of his legitimate reasons for exercising the strike. In Purkett, the Court explained this requirement:
This warning was meant to refute the notion that a prosecutor could satisfy his burden of production by merely denying that he had a discriminatory motive or by merely affirming his good faith. What is meant by a "legitimate reason" is not a reason that makes sense, but a reason that does not deny equal protection.
Purkett, 514 U.S. at 768, 115 S.Ct. at 1771 (emphasis added).
The Court pointed out that the focus of the inquiry is not upon the reasonableness of the asserted non-racial motive, but on the genuineness of the motive. Id. See Morris v. State, 940 S.W.2d 610, 612 (Tex.Crim.App. 1996) ("A ruling on a Batson objection is a credibility determination.").
At the second step of the analysis, the inquiry is whether a reasonably specific and facially neutral explanation has been given. If the explanation is not a general denial and is not racially based, the answer can be silly or superstitious or fantastic or implausible and need not be even minimally persuasive. See Purkett, 514 U.S. at 768, 115 S.Ct. at 1771.
After the prosecutor has provided an adequate explanation as described above, then the third step shifts the focus back to the opponent of the strike to persuade the trial court that the race-neutral explanation is merely a pretext for purposeful discrimination. See Batson, 476 U.S. at 98, 106 S.Ct. at 1723-24; Hernandez, 500 U.S. at 359, 111 S.Ct. at 1866 (plurality opinion); Purkett, 514 U.S. at 768, 115 S.Ct. at 1771. It is at this point that the persuasiveness of the prosecutor's justification becomes relevant. "At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Purkett. 514 U.S. at 768, 115 S.Ct. at 1771.
In this instance, appellant's response to the prosecutor's explanation was that he did not believe the prosecutor. He thought "leaving papers in the courtroom" was not important; he introduced other potential jurors' answers to the questionnaire that were no less irrational, but did not cause the veniremembers to be struck. Appellant made the assertion that the State's reasons were merely a pretext for an impermissible strike. The trial court determined that appellant had not demonstrated purposeful discrimination and denied the Batson claim. We cannot say that the trial court clearly erred by declining to find that the State struck the man because of his ethnicity.
Appellant's burden in a case such as this one is substantial and often there will be little evidence to show purposeful discrimination. The system for determining a challenge places the burden on the opponent of a peremptory strike. While difficult, it is not impossible for a defendant to successfully challenge a strike on the basis of Batson. See Lopez, 940 S.W.2d 388. Upon a minimal prima facie showing of discrimination, the State must disclose its reason for the strike. A general denial of discriminatory intent is not sufficient. "I didn't like the way he looked" is not sufficiently specific, while "I didn't like the way he looked because he had long, unkempt hair and wore both a mustache and a goatee" is likely to be a sufficiently valid race-neutral reason, at least at the second step. See Purkett; at 767-70, 115 S.Ct. at 1770-72; Lee v. State, 949 S.W.2d 848, 851 (Tex.App.-Austin 1997, pet. ref'd) (sufficient where one man had two earrings, another had both long hair and a goatee). Finally, the trial court must determine the credibility of the prosecutor's explanation. In the instant case, the trial court obviously did not believe the State was motivated by racial discrimination, even though the reasons given might seem slight and flimsy.
Conclusion
The State provided race-neutral explanations for the challenged strike. Appellant only asserted that the State's reasons were not believable. The other juror questionnaires were not persuasive evidence that the prosecutor's stated explanation for the strike was pretextual. Appellant did not introduce any evidence or raise an inference that the State had a race or ethnicity-based reason for the strike. Because the trial court's ruling was not clearly erroneous, we affirm the judgment.