Opinion
Nos. 05-05-01300-CR, 05-05-01301-CR, 05-05-01302-CR, 05-05-01303-CR, 05-05-01304-CR
Opinion Filed June 13, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F04-32995-Qs; F04-32997-Qs; F04-32999-Qs; F04-33001-Qs; and F04-56881-Pjs. Affirm.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
OPINION
Mark Zuniga pleaded guilty to five aggravated robberies, and a jury assessed punishment at fifty-five years in prison and a $5000 fine. In a single point of error, he complains the trial court erred in overruling his Batson challenge to one juror. We affirm. To successfully challenge the State's use of a peremptory strike, a defendant must initially make a prima facie showing of discimination. See Batson v. Kentucky, 476 U.S. 79, 97 (1986). A race-neutral explanation means any explanation based on something other than race. See Purkett v. Elem, 514 U.S. 765, 768 (1995). Unless a discriminatory intent is inherent in the prosecutor's explanation, the reasons offered will be deemed race neutral. Purkett, 514 U.S. at 768. If the prosecutor gives a race-neutral explanation, the defendant must rebut the explanation to show it was a sham or pretext. See Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App. 1991). We review a trial court's decision on a Batson challenge under a clearly erroneous standard of review. Hernandez v. New York, 500 U.S. 352, 365-69 (1991); Adanandus v. State, 866 S.W.2d 210, 224 (Tex.Crim.App. 1993). A reversal is mandated only if a review of the voir dire record, the State's explanation, the composition of the jury panel, and the appellant's rebuttal and impeachment evidence leaves us with a definite and firm conviction that the trial judge erred. Vargas v. State, 838 S.W.2d 552, 554 (Tex.Crim.App. 1992). At the conclusion of voir dire, appellant objected that the State had exercised six of its ten peremptory challenges on minority venirepersons. On appeal, appellant challenges the trial court's ruling only as to one, Juror No. 38. After appellant made his Batson objection, the prosecutor explained that he struck Juror No. 38 because he had a criminal record, a DWI, and failed to report an indecent exposure on the juror questionnaire. Defense counsel offered no evidence to rebut the State's reasons. Appellant now complains the State's reasons were insufficient because the record does not contain any evidence that Juror No. 38 had a criminal history. Without such evidence, appellant argues, the trial court's ruling is clearly erroneous. Finally, he argues that the State should be required to put on evidence of the criminal history before the reason is accepted as race-neutral. We disagree. A prior arrest or criminal history can be a race-neutral explanation for striking a prospective juror. Dennis v. State, 151 S.W.3d 745, 750 (Tex.App.-Amarillo 2004, pet. ref'd); see Partida v. State, 133 S.W.3d 738, 742 (Tex.App.-Corpus Christi 2003, no pet.); Brown v. State, 56 S.W.3d 915, 917-18 (Tex.App.-Houston [14th Dist.] 2001, no pet.). Additionally, the failure to disclose a criminal charge is a race-neutral reason to exercise a strike. See, e.g., Johnson v. State, 68 S.W.3d 644, 649-50 (Tex.Crim.App. 2002). Once the prosecutor provided race-neutral reasons for strking Juror No. 38, appellant, as the party making the Batson challenge, had the burden to show the explanation was merely a pretext for discrimination. A party's failure to offer any real rebuttal to a proffered race-neutral explanation can be fatal to his claim. See Johnson v. State, 68 S.W.3d at 649. Here, the State offered a race-neutral explanation for striking Juror No. 38, and appellant did not cross-examine the prosecutor or otherwise offer evidence to rebut that explanation. In fact, on appeal, appellant does not even provide this Court with the juror questionnaire. Appellant has failed to prove the prosecutor's explanation was incorrect, much less that it was a pretext for discrimination. Under these circumstances, we conclude the record does not leave us with a firm conviction that the trial court made a mistake. We overrule the sole point of error. We affirm the trial court's judgment.