Opinion
No. 10-07-00317-CR
Opinion delivered and filed May 20, 2009. DO NOT PUBLISH.
Appeal from the 54th District Court, McLennan County, Texas, Trial Court No. 2007-1417-C2. Reversed and remanded.
Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS (Justice REYNA dissenting).
MEMORANDUM OPINION
Derrick Dwayne Grant was charged with burglary of a habitation with a deadly weapon. TEX. PENAL CODE ANN. 30.02 (Vernon 2003). He pled guilty before the jury and proceeded to have the jury determine his punishment. The jury assessed punishment at 55 years in prison. Grant appeals. Because there was clear error in the trial court's acceptance of the State's proposed race-neutral reasons for striking a black member of the jury panel, we reverse the trial court's judgment.
Because of this disposition, we need not address Grant's other issue on appeal regarding alleged trial court error in allowing the State to ask Grant's witness whether Grant should be placed on probation.
BATSON CHALLENGE
Prior to the empanelling of the jury, Grant made a Batson challenge. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Grant informed the trial court that three black members of the jury panel were in the "strike zone," that the State struck all three members, and that Grant was a black male. The State did not dispute this presentation by Grant and when asked for a response, offered race-neutral reasons for its strikes. The trial court accepted those reasons. On appeal, Grant contends that the trial court erred in holding the State's peremptory challenges were not racially motivated.Three-step Process
Batson provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was based on race. Snyder v. Louisiana, ___ U.S. ___, 128 S.Ct. 1203, 1207, 170 L.Ed.2d 175 (2008). "`First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race[; s]econd, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question[; and t]hird, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.'" Id. (quoting Miller-El v. Dretke, 545 U.S. 231, 277, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2006) (Thomas, J., dissenting)). The exclusion of even one member of appellant's race from the jury panel for racial reasons invalidates the entire jury selection process. See Snyder, 128 S.Ct. at 1208. If the opponent of a challenged strike raises a question of purposeful discrimination and the trial court proceeds immediately to the State's race-neutral reasons for the strike, a reviewing court assumes that the opponent has satisfied the first step of the Batson process. Watkins v. State, 245 S.W.3d 444, 447 (Tex.Crim.App. 2008) (citing Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). The second step of the process does not demand an explanation that is persuasive, or even plausible. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). The issue is the facial validity of the prosecutor's explanation. Id. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral. Id. (quoting Hernandez, 500 U.S. at 360). It is not until the third step that the persuasiveness or the justification of the strike becomes relevant. Id. "At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Id. The prosecutor's proffered reasons for striking an individual must be evaluated in light of the circumstances of the case. See Snyder v. Louisiana, ___ U.S. ___, 128 S.Ct. 1203, 1210, 170 L.Ed.2d 175 (2008). On appeal, a trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous. Snyder, 128 S.Ct. at 1207; Watkins v. State, 245 S.W.3d 444, 448 (Tex.Crim.App. 2008). In reviewing the record for clear error, the reviewing court should consider the entire record of voir dire; it need not limit itself to arguments or considerations that the parties specifically called to the trial court's attention so long as those arguments or considerations are manifestly grounded in the appellate record. Watkins v. State, 245 S.W.3d at 448; accord Snyder, 128 S.Ct. at 1208.A Step 3 Review
In the early years of implementing the dictates of Batson by this State's courts, the Court of Criminal Appeals discussed and used a nonexclusive list of factors which would weigh against the legitimacy of a race-neutral explanation. Whitsey v. State, 796 S.W.2d 707, 713 (Tex.Crim.App. 1989). Those factors were:1. The reason given for the peremptory challenge is not related to the facts of the case;
2. There was a lack of questioning to the challenged juror or a lack of meaningful questions;
3. Disparate treatment — persons with the same or similar characteristics as the challenged juror were not struck;
4. Disparate examination of members of the venire, i.e., questioning a challenged juror so as to evoke a certain response without asking the same question of other panel members; and
5. An explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically.Id. at 713-714. The presence of any one of those factors tended to show the Court that the State's reasons for the strike were not actually supported by the record or were an impermissible pretext. Id. While the courts in this State have not embraced the use of those factors, the concept provides a useful guide for us that fits within the framework of the current state of Batson reviews as established by the United States Supreme Court and the Fifth Circuit. It is in light of the recent case law by these Courts and these factors that we review this appeal.
Juror 20
At trial and on appeal, Grant complains about the State's use of a peremptory strike on Juror number 20, Jerrell Franklin. After Grant raised his Batson challenge and the trial court asked for a response, the State gave the following reason for striking Franklin.". . . [H]is actually comes from his juror card. He noted on his juror card that his wife works at the Wal-Mart return center, which is from the information we have where the Defendant's — I don't know if she's a new girlfriend or somebody who's just been a part of his life for some period of time — has been — our information is that she also works there. It's a girl who is, I guess, seeing the Defendant off and on throughout the time that the victim is seeing him also works with that juror's wife. And we had some concerns about that because, obviously, people who work together talk and people who go home to their spouses talk to them about why they're in court." (RR II 159).Grant responded,
"In terms of Juror Number 20 and the relationship of the — any girlfriend Mr. Grant may have to anybody who works at Wal-Mart that would be the subject of an inquiry in chambers to see if that actually existed. My point here, Judge, is I don't believe you can rely on surmise and speculation in order to prove — to disprove a prima facie case of systemic racial discrimination of blacks from this jury just based on the speculation that they may or may not know anybody. I believe it has to be the subject of specific inquiry into those arenas and areas in order for it to get over the prima facie case." (RR II 161).The trial court accepted the State's reason for the strike as race-neutral. Grant challenges the legitimacy of that reason. Specifically, Grant complains that the State did not question Franklin regarding the reason for its strike. The State must engage in meaningful voir dire examination on a subject it alleges it is concerned about. See Miller-El, 545 U.S. 231, 246, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2006). If the State does not engage in meaningful voir dire examination, that failure is some evidence that the asserted reason for the strike was a pretext for discrimination. Reed v. Quarterman, 555 F.3d 364, 376 (5th Cir. 2009). In reviewing the entire voir dire, we note that Franklin was asked a total of three questions. First, he was specifically asked how he decided if he believed someone. He answered, "What they're saying would have to make sense to me." Second, as the sixth person to answer a question about whether anybody could think of a reason why a victim might be scared to testify against her abuser, Franklin answered, "Pretty much the same," which was in reference to a previous response by another member of the panel. And third, as a group, the panel was asked which theory of punishment would be the most important. As the 19th person to respond, Franklin, said, "Number three" which he had been told was rehabilitation. None of Franklin's answers were investigated further by the State. And absolutely no exchange between Franklin and the State took place regarding the reason for striking him, that being his wife worked at the same place as Grant's girlfriend. In light of these circumstances, there was no meaningful examination of Franklin regarding the reason the State used to strike him. The State's reason for striking Franklin was not supported by the record and was, thus, a pretext for discrimination. Accordingly, the trial court's acceptance of the State's reason for striking Franklin was clearly erroneous. Grant's first issue is sustained.
CONCLUSION
Having sustained Grant's first issue, the trial court's judgment is reversed. This case is remanded for further proceedings consistent with this opinion.DISSENTING OPINION
The majority reverses Derrick Dwayne Grant's burglary conviction because of a finding that "there was clear error in the trial court's acceptance of the State's proposed race-neutral reasons for striking a black member of the jury panel." However, because I believe Grant failed to rebut the State's race-neutral reasons for exercising peremptory challenges against the three African American venire members in question, I would hold that the court did not abuse its discretion by denying Grant's Batson challenge. Thus, I respectfully dissent.Lack of Questioning is Not a Dispositive Factor
My primary disagreement with the majority arises from the following paragraph in the majority opinion:The State must engage in meaningful voir dire examination on a subject it alleges it is concerned about. See Miller-El[ v. Dretke], 545 U.S. 231, 246, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2006). If the State does not engage in meaningful voir dire examination, that failure is some evidence that the asserted reason for the strike was a pretext for discrimination. Reed v. Quarterman, 555 F.3d 364, 376 (5th Cir. 2009).I agree that the State's failure to engage in meaningful voir dire examination is a factor which may be considered, but I also believe that in the vast majority of cases a Batson challenge will not be successful if it rests solely on this factor. In my view, the majority misreads Miller-El and Reed. As the Fifth Circuit explained in Reed, the Supreme Court considered the State's failure to engage in a meaningful voir dire examination in the context of a comparative analysis between prospective jurors who were struck and similarly situated jurors who were not.
The Court's treatment of Miller-El's comparative analysis also reveals several principles to guide us. First, we do not need to compare jurors that exhibit all of the exact same characteristics. If the State asserts that it struck a black juror with a particular characteristic, and it also accepted nonblack jurors with that same characteristic, this is evidence that the asserted justification was a pretext for discrimination, even if the two jurors are dissimilar in other respects. Second, if the State asserts that it was concerned about a particular characteristic but did not engage in meaningful voir dire examination on that subject, then the State's failure to question the juror on that topic is some evidence that the asserted reason was a pre-text for discrimination. Third, we must consider only the State's asserted reasons for striking the black jurors and compare those reasons with its treatment of the nonblack jurors.Reed, 555 F.3d at 376 (first emphasis added) (citations omitted). In Miller-El, the Court conducted such a comparative analysis with respect to an African-American venire member (Fields) whom the prosecutor stated he struck primarily because "he said that he could only give death if he thought a person could not be rehabilitated." Miller-El, 545 U.S. at 243, 125 S. Ct. at 2327. The Court compared Fields's voir dire examination with that of "a number of white panel members" who expressed similar sentiments on rehabilitation but whom the prosecutor "accepted with no evident reservations." Id. at 244, 125 S. Ct. at 2327. In particular, the Court focused on three such jurors who "were not questioned further and drew no objection." Id. at 245, 125 S. Ct. at 2328. In addition, the Court expressed reservations about the credibility of the prosecutor's later explanation that he also struck Fields because his brother had a previous conviction. Id. at 246, 125 S. Ct. at 2328 ("It would be difficult to credit the State's new explanation, which reeks of afterthought."). Although the Court did note the prosecutor's failure to question Fields "about the influence his brother's history might have had," the Court's reference to this issue served only to "underscore" the "unlikelihood that his position on rehabilitation had anything to do with the peremptory strike" exercised against him. Id. at 245-46, 125 S. Ct. at 2328. That a prosecutor's failure to engage in a meaningful voir dire examination of a potential juror is not, standing alone, a dispositive Batson factor is borne out by the Supreme Court's summation of its determination that the State violated Batson by striking Fields.
In sum, when we look for nonblack jurors similarly situated to Fields, we find strong similarities as well as some differences. But the differences seem far from significant, particularly when we read Fields's voir dire testimony in its entirety. Upon that reading, Fields should have been an ideal juror in the eyes of a prosecutor seeking a death sentence, and the prosecutors' explanations for the strike cannot reasonably be accepted.Id. at 247, 125 S. Ct. at 2329 (footnote omitted). The Court made no mention of the State's lack of questioning in this summation. The majority also relies on what I shall refer to as the Keeton factors, one of which is "lack of questioning" or "a lack of meaningful questions." See Whitsey v. State, 796 S.W.2d 707, 713-14 (Tex.Crim.App. 1989) (citing Keeton v. State, 749 S.W.2d 861, 866 (Tex.Crim.App. 1988)). However, the Court of Criminal Appeals has made clear that the Keeton factors are not controlling.
Appellant's contention that the objective factors discussed in Keeton control the analysis is not correct. These factors certainly may be considered in evaluating the trial judge's overruling of a Batson claim, but they are not determinative.Vargas v. State, 838 S.W.2d 552, 554 (Tex.Crim.App. 1992) (emphasis added); accord Bridges v. State, 909 S.W.2d 151, 155 (Tex.App.-Houston [14th Dist.] 1995, no pet.).
Batson Analysis
The Batson three-step process is well-established.First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123 S. Ct. 1029, 1035, 154 L. Ed. 2d 931 (2003) (citations omitted); accord Snyder v. Louisiana, 128 S. Ct. 1203, 1207, 170 L. Ed. 2d 175 (2008); Watkins v. State, 245 S.W.3d 444, 447 (Tex.Crim.App. 2008). Grant informed the trial court, and it is not disputed, that the State struck the only three African-American venire members in the "strike zone," which were prospective jurors Veail, Franklin, and Hartfield. On appeal, Grant complains about the State's peremptory challenges against Veail and Franklin. The prosecutor explained that she struck Veail because Veail had stated in response to the State's voir dire questions that she might be familiar with the facts of the case. She had followed the media coverage of the burglary when it happened because her neighbor's daughter lived in the apartment complex where it occurred. The prosecutor explained that she was concerned Veail might know additional information about the complainant which might affect her ability to be fair and impartial. The prosecutor explained that she struck Franklin because his juror card indicated that his wife worked at the same Wal-Mart as the defendant's girlfriend, and the prosecutor was concerned that information about the case may have been communicated because they work in the same location. Grant responded to the State's explanations by first observing that the State had declined the court's opportunity to conduct additional questioning of individual venire members in chambers at the conclusion of the voir dire examination. Grant also complained that the State did not question Veail in more detail about her concerns or question Franklin at all about whether he had learned anything about the case through his wife. A co-prosecutor replied by vouching for the stated grounds. He confirmed that the employment of Franklin's wife at the same location as Grant's girlfriend was a concern when they first received the juror cards. Grant's Batson challenge focuses on the third step in the process — whether in light of the parties' submissions the defendant has shown purposeful discrimination. See Snyder, 128 S. Ct. at 1207; Watkins, 245 S.W.3d at 447. Resolution of his complaint should focus on two issues: (1) the burden of persuasion; and (2) the deference owed to the finder of fact.
The ultimate plausibility of that race-neutral explanation is to be considered as part of the third step of the analysis, in which the trial court determines whether the opponent of the strike (usually the defendant) has satisfied his burden of persuasion to establish by a preponderance of the evidence that the strike was indeed the product of the proponent's purposeful discrimination. Whether the opponent satisfies his burden of persuasion to show that the proponent's facially race-neutral explanation for his strike is pre-textual, not genuine, is a question of fact for the trial court to resolve in the first instance.Watkins, 245 S.W.3d at 447 (footnotes omitted); see Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995) (per curiam) ("the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike"). "[A] trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous." Snyder, 128 S. Ct. at 1207. And "in the absence of exceptional circumstances, we [sh]ould defer to [the trial court]." Id. at 1208 (quoting Hernandez v. New York, 500 U.S. 352, 366, 111 S. Ct. 1859, 1870, 114 L. Ed. 2d 395 (1991) (plurality opinion)); accord Watkins, 245 S.W.3d at 448 (trial court's decision should be examined "with great deference"). The majority focuses on the State's exercise of a peremptory challenge against Franklin, so I begin with him. The Court of Criminal Appeals has rejected a Batson claim raised against a similar peremptory challenge. In Chambers v. State, the State struck a venire member "primarily because she worked with appellant's sister at Wal-Mart." 866 S.W.2d 9, 25 (Tex.Crim.App. 1993). "Absent evidence of disparate treatment," the Court was unable to conclude that the trial court's rejection of the defendant's Batson challenge was erroneous. Id. Here, there is one additional degree of separation in the pertinent relationships as the State struck Franklin because his wife worked with Grant's girlfriend. Nevertheless, this does constitute a facially valid, race-neutral basis for a strike. See id. Grant and the majority fault the prosecutor for failing to question Franklin about whether he had learned anything about the case through his wife's employment. However, the Court of Criminal Appeals has expressly rejected the notion that a prosecutor's lack of questioning is a strong indicator of the prosecutor's discriminatory intent. "While it is true that the lack of questioning might expose the weakness of a State's explanation, the State is not required to ask a specified rubric of questions." Id. at 24. Thus, appellate courts have repeatedly rejected Batson claims in which the appellant complained that the prosecutor's failure to ask questions of a challenged venire member indicated discriminatory intent. See, e.g., Akeen v. State, No. 05-04-01639-CR, 2006 Tex. App. LEXIS 127, at *22 (Tex.App.-Dallas Jan. 6, 2006, no pet.) (not designated for publication); Smith v. State, No. 07-00-00025-CR, 2003 Tex. App. LEXIS 2948, at *15-16 (Tex.App.-Amarillo Apr. 3, 2003, pet. dism'd, untimely filed); Whitaker v. State, 977 S.W.2d 869, 876 (Tex.App.-Beaumont 1998, pet. ref'd); Tate v. State, 939 S.W.2d 738, 745 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd). It was Grant's burden to prove the prosecutor struck Franklin for a purposefully discriminatory reason rather than a race-neutral reason. See Purkett, 514 U.S. at 768, 115 S. Ct. at 1771; Watkins, 245 S.W.3d at 447. But Grant did not call any witnesses, cross-examine either prosecutor, present a comparative analysis with similarly situated white jurors, or otherwise contest the stated factual basis for the prosecutor's decision to strike Franklin. See Vargas, 838 S.W.2d at 556; Akeen, 2006 Tex. App. LEXIS 127, at *23. Therefore, because there are no "exceptional circumstances" presented under this record, I cannot say that the trial court's ruling with regard to Franklin is clearly erroneous. See Snyder, 128 S. Ct. at 1208; accord Watkins, 245 S.W.3d at 448. With regard to the State's exercise of a peremptory challenge against Veail, Veail herself volunteered that she was familiar with the case because she had followed the media coverage of the burglary when it happened. She explained that she had done so because her neighbor's daughter lived in the apartment complex where it occurred. In response to Grant's Batson challenge, the prosecutor stated that she was concerned Veail might be privy to additional information about the complainant which might affect her ability to be fair and impartial. While the latter concern is somewhat speculative, the fact that Veail was admittedly familiar with the case was a sufficient race-neutral basis, standing alone, to justify the State's exercise of a peremptory challenge. See C.E.J. v. State, 788 S.W.2d 849, 856 (Tex.App.-Dallas 1990, writ denied) (State proffered race-neutral basis for strike of venire member who had read about case in newspapers, even though venire member stated that her previous knowledge would not affect her decision); see also McGee v. State, 909 S.W.2d 516, 520-21 (Tex.App.-Tyler 1995, pet. ref'd) (State proffered race-neutral basis for strike of venire member who lived near a family with same last name as defendants recently prosecuted in a high profile case); Chairs v. State, 878 S.W.2d 250, 253-54 (Tex.App.-Corpus Christi 1994, no pet.) (State proffered race-neutral basis for strike of venire member who knew appellant and his mother and who had learned about the case from the newspapers and "gossip" from her own children). Grant complains that the State failed to inquire further about Veail's knowledge of the facts of the case or her familiarity with the complainant, but Grant failed to call any witnesses, cross-examine either prosecutor, present a comparative analysis with similarly situated white jurors, or otherwise contest the stated factual basis for the prosecutor's decision to strike Veail. See Vargas, 838 S.W.2d at 556; Akeen, 2006 Tex. App. LEXIS 127, at *23. Accordingly, I would hold that Grant failed to meet his burden to prove the prosecutor struck Veail for a purposefully discriminatory reason rather than a race-neutral reason. See Purkett, 514 U.S. at 768, 115 S. Ct. at 1771; Watkins, 245 S.W.3d at 447. Therefore, because there are no "exceptional circumstances" presented under this record, I cannot say that the trial court's ruling with regard to Veail is clearly erroneous. See Snyder, 128 S. Ct. at 1208; accord Watkins, 245 S.W.3d at 448. Finally, Grant argues that the prosecutor's stated grounds for striking Franklin and Veail are based on speculation and conjecture and are similar to the grounds recently rejected by the Supreme Court in Snyder. I disagree. In Snyder, the voir dire record provided a much clearer basis for sustaining the defendant's Batson challenge. The prosecutor exercised a peremptory challenge against prospective juror Brooks because he appeared nervous and because the prosecutor was concerned that he might be inclined to return a hasty guilty verdict on a lesser-included offense to avoid a punishment trial because of his student-teaching responsibilities. See Snyder, 128 S. Ct. at 1208. Focusing primarily on the second explanation, the Supreme Court noted that the trial court and attorneys questioned Brooks about his schedule and then the court at Brooks's suggestion contacted his dean. Id. at 1209-10. The dean informed the court that Brooks's jury service would not be a problem, and, after Brooks was informed of this, he expressed no further concern about serving. Id. at 1210. The prosecution did not question him further about the issue. Id. But in addition to this, the record reflected that the prosecutor anticipated a short trial during voir dire, which undermined the prosecutor's stated concern, and the prosecutor declined to exercise peremptory challenges against several white venire members with similar conflicting obligations. Id. at 1210-12. Under this record, the Court concluded that a Batson violation was shown. Id. at 1212. Speculation is a two-way street. The prosecutor in this case necessarily engaged in some speculation in exercising her peremptory challenges, but she offered facially valid, race-neutral reasons for exercising those challenges. A defendant cannot establish the requisite discriminatory intent by speculating about possibly discriminatory motivation on the prosecutor's part. Rather, the defendant must present a record which gives the trial court a factual basis on which to conclude the prosecutor acted with a discriminatory intent. See Vargas, 838 S.W.2d at 556; Akeen, 2006 Tex. App. LEXIS 127, at *23. Grant does not challenge on appeal the prosecutor's decision to exercise a peremptory challenge against Hartfield. From the record, I cannot say that the trial court's ruling with regard to Franklin or Veail is clearly erroneous. Thus, I would overrule Grant's first point.