No. 05-05-00568-CR
Opinion issued May 16, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-73156-T. Affirmed.
Before Justices RICHTER, LANG, and MAZZANT.
Opinion By Justice MAZZANT.
Bryan Keith Watkins appeals his conviction for burglary of a habitation and twenty-year prison sentence. In two issues, he contends the prosecutor's use of peremptory challenges violated Batson v. Kentucky, 476 U.S. 79 (1986) and he was denied effective assistance of counsel at trial. We affirm the trial court's judgment.
Background
During the early morning hours of July 18, 2005, Ryan Higgins returned home to find his apartment at 7601 Churchill Way in Dallas, Texas, had been burglarized. Fingerprints recovered from the apartment matched appellant's fingerprints. The jury convicted appellant of burglary of a habitation as charged in the indictment. During the punishment phase of the trial, the State introduced evidence of two prior convictions, as well as testimony from several persons whose residences had been burglarized by appellant. The jury sentenced appellant to twenty years in prison. Discussion Peremptory Challenges to the Jury Panel
In his first issue, appellant argues the trial court's failure to find that the State violated Batson in the use of its peremptory strikes against prospective jurors was clearly erroneous. The State responds that the prosecutor provided race-neutral reasons for striking the prospective jurors and appellant did not rebut these reasons or show they were a pretext. We agree. Standard of Review
When reviewing a Batson challenge, an appellate court examines the record in the light most favorable to the trial court's ruling and reverses only when the ruling is clearly erroneous. Herron v. State, 86 S.W.3d 621, 630 (Tex.Crim.App. 2002); Pondexter v. State, 942 S.W.2d 577, 581 (Tex.Crim.App. 1996); Bausley v. State, 997 S.W.2d 313, 315 (Tex.App.-Dallas 1999, pet. ref'd). A ruling is clearly erroneous when, after searching the record, an appellate court is left with the definite and firm conviction that the trial court has made a mistake. Bausley, 997 S.W.2d at 315. If the record, including voir dire, the prosecutor's explanation of his peremptory challenges, appellant's rebuttal, and any impeaching evidence, supports the trial court's ruling, then the ruling is not clearly erroneous. Id. Applicable Law
To challenge the State's use of peremptory strikes under Batson, a defendant must first make a prima facie showing that the State exercised peremptory strikes on an impermissible basis. Herron, 86 S.W.3d at 630; Bausley, 997 S.W.2d at 316. Once a defendant makes a prima facie showing of purposeful discrimination, the State must provide a race- or gender-neutral explanation for striking the prospective juror in question. Herron, 86 S.W.3d at 630; Pondexter, 942 S.W.2d at 581; Bausley, 997 S.W.2d at 316. This step does not demand a persuasive or even plausible explanation; rather, it requires an explanation devoid of inherent discriminatory intent. Bausley, 997 S.W.2d at 315 (citing Purkett v. Elem, 514 U.S. 765, 768 (1995)). An explanation is neutral in this context if the State bases it on something other than the juror's race or gender. See Hernandez v. New York, 500 U.S. 352, 360 (1991). Unless discriminatory intent is inherent, the courts will consider the explanation race- or gender-neutral. See id. at 360. If the State provides a race- or gender-neutral explanation for its strikes, the defendant may rebut the State's explanation or show that the explanation was merely a sham or pretext. See Herron, 86 S.W.3d at 630; Pondexter, 942 S.W.2d at 581; Bausley, 997 S.W.2d at 316. To meet this burden, the defendant may call witnesses and introduce evidence just as in any other evidentiary hearing. Bausley, 997 S.W.2d at 316. The defendant has the ultimate burden of persuasion to establish the truth of his allegations of purposeful discrimination. Id. Application of Law to the Facts
At the conclusion of voir dire, after both sides had exercised their peremptory challenges, and before the jury was seated, appellant's trial counsel challenged the State's use of peremptory strikes to remove venire members Pamela Berry, Julia Harris, John Anderson, Leonardine Davis, Latonya Jones, and James Ingram. Pointing out that these venire members were African-American, appellant, who is also African-American, objected to the State's use of peremptory challenges against them and argued that the State struck them because of their race and in violation of Batson. The prosecutor responded that he (1) struck venire member Berry because "she said that she had a lot of trouble being able to give a life sentence" and indicated she "would need overwhelming facts" to impose a life sentence; (2) struck venire member Harris because she had been previously charged with bribery; (3) struck venire member Anderson because he had a nephew convicted of burglary of a habitation and the prosecutor believed the venire member "would be biased in that sense;" (4) struck venire member Davis because she indicated she would have trouble imposing a life sentence and because he was concerned she would hold the State to a higher burden than "beyond a reasonable doubt;" (5) struck venire member Jones because she had served on a jury in a domestic violence case and voted not guilty; (6) struck venire member Ingram because he had a nephew who had been convicted of a crime and because he expressed reservations about imposing a life sentence. At the conclusion of the Batson hearing, the trial judge, who observed both voir dire and the prosecutor's explanations, found the prosecutor had provided valid race-neutral reasons for five of the six challenged venire members. The trial judge found that one of the prosecutor's reasons was insufficient and reseated venire member Latonya Jones. The explanations offered by the prosecutor regarding venire members Berry, Harris, Anderson, Davis, and Ingram are race-neutral. See, e.g., Simpson v. State, 119 S.W.3d 262, 267 (Tex.Crim.App. 2003) (having nephew in prison race-neutral reason); Chambers v. State, 866 S.W.2d 9, 24 (Tex.Crim.App. 1993) (inability to consider full range of punishment race-neutral reason); Vargas v. State, 838 S.W.2d 552, 555 (Tex.Crim.App. 1992) (being previously arrested or having relatives arrested or convicted race-neutral reason); Kennerson v. State, 984 S.W.2d 705, 707-08 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd) (equivocation on imposing life sentence race-neutral reason); Garrett v. State, 815 S.W.2d 333, 335 (Tex.App.-Houston [1st Dist.] 1991, pet. ref'd) (concern venire member would hold State to higher burden of proof race-neutral reason). Because the explanations offered by the prosecutor are race-neutral, the burden shifts to appellant to rebut these explanations or show they were merely a pretext or a sham. One method of rebutting the prosecutor's explanation is by showing disparate treatment of similarly situated jurors. See Cantu v. State, 842 S.W.2d 667, 689 (Tex.Crim.App. 1992). One circumstance that indicates disparate treatment is the State striking minority venire persons who give answers similar to non-minority prospective jurors the State does not strike. See Johnson v. State, 959 S.W.2d 284, 292 (Tex.App.-Dallas 1997, pet. ref'd). Appellant argues that the State struck venire members Berry and Davis for reasons that were equally applicable to other non-black venire members who were not struck by the State. Appellant's trial counsel did not advance this argument at the Batson hearing, and he did not offer any rebuttal evidence regarding disparate treatment. The record also shows that counsel did not cross-examine the prosecutor about the proffered reasons or offer any evidence showing that the reasons given by the State were a pretext for racial discrimination. However, a defendant is not required to request a trial judge to make his findings on a Batson motion based on comparisons of venire members in order to have the same evidence considered on direct appeal. See Young v. State, 826 S.W.2d 141, 145-46 (Tex.Crim.App. 1991). We will therefore consider appellant's disparate treatment argument. In support of the disparate treatment argument, appellant conducts a detailed analysis of the voir dire record in which he compares the responses of Berry and Davis to the responses of venire members Epps, Shinn, Thomas, and Mendoza and Green, Roegstra, and Box. The record shows that, at the beginning of voir dire, the trial court asked for a show of hands from jurors who could not consider a life sentence for someone found guilty of burglary of a habitation. Venire members Roegstra, Green, Epps, Ingram, Lafour, and Mendoza raised their hands. Later in the voir dire, venire members Box, Shinn, and Thomas also expressed reservations about imposing a life sentence. According to the strike lists, Mendoza was struck by the defense. Venire members Epps and Ingram were struck by the State as were Shinn and Thomas. It is not clear what happened to Roegstra, Green or Box. Lafour was released to reassignment in another court. Our analysis is complicated by the fact that the record does not affirmatively demonstrate the racial or ethnic background of every potential juror on the panel. There are representations in the record from defense counsel that Epps and Ingram are African-American, but the race or ethnicity of the other venire members who showed some hesitation about imposing a life sentence is not indicated. The record does not contain the jury cards of the venire members, their seating order, the names of the jurors who were selected for the jury, or the venire members who were challenged for cause. Although we cannot assume facts that are not in the record, undisputed observations and uncontradicted statements of trial counsel can provide support in the record for assertions relative to a Batson claim. See Contreras v. State, 56 S.W.3d 274, 280 (Tex.App.-Houston [14th Dist.] 2001, pet ref'd); see also Emerson v. State, 820 S.W.2d 802, 804 (Tex.Crim.App. 1991). During the Batson hearing, defense counsel informed the court that the State had struck all but one of the African-Americans who were on the panel . These assertions were not contradicted by the State. However, even if we assume there were non-minority potential jurors who expressed reservations about imposing a life sentence but were not struck by the State, such treatment does not automatically lead to a finding of purposeful discrimination by the State. Disparate treatment is not automatically imputed to every situation where one of the State's reasons for striking a venire member also technically applies to another venire member whom the State did not strike. Adanandus v. State, 866 S.W.2d 210, 224-25 (Tex.Crim.App. 1993). Even when disparate treatment of venire members with similar characteristics is shown, the record must reflect more than the mere fact that the objectionable characteristic of a stricken juror was also possessed by accepted jurors of a different racial background. See Cantu, 842 S.W.2d at 689. Different jurors may possess the same objectionable characteristics but in differing degrees. Id. Such qualitative distinctions may cause a prosecutor to challenge one juror and not another. Id. The ultimate burden of proving the State exercised its peremptory challenges in violation of Batson rests with the opponent of the strike. See Purkett v. Elem, 514 U.S. 765, 767-69 (1995). Here, appellant did not meet his burden to show the State's race-neutral reasons for striking the jurors in question were pretextual. Therefore, under the circumstances of this case, there was sufficient evidence for the trial court to find that the State did not disparately exercise its peremptory challenges. Based on the record before us, we conclude appellant failed to meet his burden of proving discrimination in the State's use of peremptory strikes, and the judge's ruling was not clearly erroneous. We overrule appellant's first issue. Ineffective Assistance of Counsel In his second issue, appellant argues he was denied effective assistance of counsel at trial because trial counsel failed to preserve a more thorough record of his Batson objections. Specifically, appellant claims his trial counsel's performance was deficient because counsel did not introduce the juror cards of the venire members or their seating order, did not make a record of the names of the jurors chosen for jury service, did not make a record of the venire members challenged for cause, did not make a record of the strike lists, and did not make a record of the race or ethnicity of the members of the venire. We evaluate claims of ineffective assistance of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on an ineffective assistance of counsel claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. Appellate review of counsel's performance is highly deferential, and there is a presumption that counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Ordinarily, counsel should not be condemned as unprofessional or incompetent without an opportunity to explain the challenged actions. Id. at 836. When the record is silent regarding the reasons for counsel's conduct, a reviewing court defers to counsel's decisions if there is at least the possibility the conduct could have been a legitimate trial strategy. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002). Appellant has the burden to show ineffective assistance of counsel by a preponderance of the evidence. See Bone, 77 S.W.3d at 833. In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). With regard to ineffective assistance of counsel in a Batson context, the failure to preserve Batson error is not sufficient to support a finding of ineffective assistance. The court of criminal appeals has instructed that there must be some evidence to establish that counsel's failure to challenge the State's strikes was deficient performance and that the defendant was prejudiced when the alleged Batson error was not preserved. See, e.g., Batiste v. State, 888 S.W.2d 9, 15-16 (Tex.Crim.App. 1994). In the present case, the record is silent as to any strategic reasons defense counsel may have had for not making a more thorough record at the Batson hearing. The record indicates counsel was an active participant in the jury selection. He responded to remarks by both the trial court and the prosecutor. Counsel engaged in a detailed voir dire of the panel as a whole and questioned individual jurors. He used all of his peremptory challenges, raised Batson objections, and successfully argued that one of the venire members was improperly excluded. Counsel pointed out the race of the venire members in question, the disproportionate numbers of African-Americans who had been struck, and even asked to include the alternative juror in the Batson hearing. Counsel could have been satisfied with the State's race-neutral explanations and the trial court's ruling on the five peremptory challenges which were deemed race-neutral. There is no indication additional arguments or information would have produced a different result. Accordingly, we conclude there is no evidence to show that counsel's failure to preserve a more detailed record of his Batson challenge was not based on sound professional judgment or that a Batson violation, if any, prejudiced appellant's trial. There is no evidence to overcome the presumption counsel performed adequately. We overrule appellant's second issue. We affirm the trial court's judgment.