Opinion
NO. 01-17-00045-CR
03-29-2018
JOSE LUIS SALAS-BUSTAMANTE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court Harris County, Texas
Trial Court Case No. 1499064
MEMORANDUM OPINION
A jury found appellant, Jose Luis Salas-Bustamante, guilty of murder and assessed his punishment at life imprisonment in the Texas Department of Criminal Justice, Institutional Division. In one point of error, appellant contends that the trial court erred in denying his Batson challenge. We affirm.
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).
Background
Appellant was charged with the murder of his girlfriend, Brandy Renger. The case proceeded to trial on January 3, 2017.
Following the judge's instructions to the venire panel, the State began its voir dire. After introducing herself and informing the venire of its role in voir dire, the prosecutor stated as follows:
I'm going to make sure that everyone here talks at least once. I have a question that's up here on the screen. And for you guys in the back corner, don't worry. I'm going to read it. The question is: I feel that police officers in my community do a good job. And you're going to fill in the blank. Answer number one, all the time. Two, most of the time. Three, some of the time. Four, occasionally. Five, never.
I want you guys to think about that statement and pick out which number response best fits how you feel about your law enforcement community whether that's Bellaire, South Houston, H.P.D., Sheriff's Department, whatever comes to mind when you think, "Police officer in my community."
The prospective jurors answered the question one by one. Of the sixty-five prospective jurors, eleven answered "three," indicating they believed law enforcement does a good job some of the time, and three answered "four," indicating they believed law enforcement occasionally does a good job. No prospective juror answered "five." Thus, in total, fourteen prospective jurors answered "three" or higher on the law enforcement question. The record also reflects that every one of these fourteen prospective jurors was either struck by the State or by agreement.
Prior to the jury's being impaneled, defense counsel exercised a Batson challenge to six of the State's strikes, stating as follows:
Your Honor, they struck a lot of Latinos; and, of course, our client, Jose Salas-Bustamante, is Latino. So, the Hispanics, which I use interchangeably with Latinos, will include State strikes for Juror Number 5, Juror Number 13, Juror Number 28, Juror Number 30, Juror Number 36, Juror Number 43, Mr. Turcios. He lists his nationality as white male, but I think Mr. Turcios is, in fact, Hispanic.
In response, the prosecutor stated that she struck Prospective Jurors 5, 28, 30, and 36 based on their responses to the law enforcement questions:
Although the prosecutor said Prospective Juror 15, the record reflects that she intended to say Juror 5 because she subsequently stated, "I struck Juror Number 5, as I've already said . . . ."
I struck Juror Number 5, as I've already said, because he stated he had an issue with law enforcement officer credibility and he rated law enforcement officers lowly on my first scale question indicating to me that he would be less likely to believe law enforcement officers.
. . .
I struck Juror Number 28 because he was again one that I had moved to strike for cause but was denied on specifically for law enforcement officer credibility. He rated law enforcement officers as a three on my scaled question, which again is below my two threshold, which was why I struck him.
I struck Juror Number 30 because he also gave law enforcement a three on my first scaled question.
I struck Juror Number 36 because again that was someone that I had moved to strike for cause but been denied on. And I moved to strike for him based on law enforcement officer credibility, again on the negative side. He rated law enforcement as a three on the first scaled question, which again was below my threshold of a two.The prosecutor also explained her reasons for striking Prospective Juror 13:
I struck Juror Number 13 because he has a prior conviction for criminal trespass. In addition to that, he was very vocal and contrary with both myself and slightly with defense counsel. It made me think that he was someone who would want to oppose authority.The prosecutor also responded that she did not strike Prospective Juror 43 because he was never reached by the parties.
Appellant also lodged a challenge to the State's strikes on the basis of gender, stating "we believe that the State should articulate gender neutral reasons for those strikes." However, appellant did not identify the jurors to whom he was referring and, on appeal, he does not complain about the denial of his Batson challenge on the basis of gender.
Defense counsel asserted that the State's explanations for striking the Latino jurors could apply to non-Latino jurors that the State elected not to strike. When the State asked appellant to specify the prospective jurors to whom he was referring, defense counsel did not respond but, instead, stated that he disagreed with the State's recitation of the facts. Defense counsel then argued that only one out of thirteen Latinos was selected and concluded, "the State struck a bunch of Latinos who were qualified to be jurors," and "they have not exercised their strikes in a race neutral manner." The trial court found that the State's explanations were race neutral and denied appellant's challenge.
Batson Challenge
In his sole point of error, appellant contends that the trial court erred by denying his Batson challenge because the State used a scaled question during jury selection designed to create race-specific pretextual bases for striking Latino members of the jury panel. The State argues that the trial court properly denied appellant's Batson challenge because the State gave race-neutral reasons for its peremptory strikes, and appellant has not shown that the proffered reasons were pretextual.
A. Standard of Review and Applicable Law
The use of a peremptory challenge to strike a potential juror because of race violates the equal protection guarantee of the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717 (1986); Stewart v. State, 176 S.W.3d 856, 858 (Tex. App.—Houston [1st Dist.] 2005, no pet.). A defendant faced with perceived purposeful discrimination may request a Batson hearing, which involves a three-step process. Purkett v. Elem, 514 U.S. 765, 767-68, 115 S. Ct. 1769, 1770-71 (1995); Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003).
First, the defendant must present a prima facie case of racial discrimination. Purkett, 514 U.S. at 767, 115 S. Ct. at 1770; Simpson, 119 S.W.3d at 268; Stewart, 176 S.W.3d at 858. If the defendant meets this burden, the burden of production shifts to the State to present a racially neutral explanation for the challenged strike, a reason that is "a clear and reasonably specific explanation of [the] legitimate reasons" for exercising its strike. Miller-El v. Dretke, 545 U.S. 231, 239, 125 S. Ct. 2317, 2324 (2005). The dispositive issue at this second step is "the facial validity" of the State's explanation; unless "a discriminatory intent is inherent" in the State's explanation, the "reason offered will be deemed race neutral." Purkett, 514 U.S. at 768, 115 S. Ct. at 1771; Stewart, 176 S.W.3d at 859 (interpreting Purkett as "clarifying that the reasons offered by the State do not have to be persuasive, or even plausible, to meet the State's burden of production, as long as they are racially neutral"). When the prosecutor responds by offering a race-neutral explanation, the inquiry whether the defendant has made a prima facie case becomes moot, and the defendant may rebut the State's explanation. Simpson, 119 S.W.3d at 268; Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001).
In the third step, the trial court decides whether the defendant has established purposeful discrimination. Purkett, 514 U.S. at 768, 115 S. Ct. at 1771; Stewart, 176 S.W.3d at 858-59. Throughout the challenge process, however, the burden of persuasion remains with the defendant, who has the opportunity to rebut the State's explanations before the trial court rules on the defendant's objection. Jasper, 61 S.W.3d at 421; Stewart, 176 S.W.3d at 858-59; see also Purkett, 514 U.S. at 768, 115 S. Ct. at 1771 (stating, "[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the [peremptory] strike.").
A reviewing court examines jury selection from a cold record. Satterwhite v. State, 858 S.W.2d 412, 415 (Tex. Crim. App. 1993). We may not substitute our opinion for the trial court's factual assessment of the neutrality of the prosecutor's explanation for exercising strikes, and we focus on the genuineness, rather than the reasonableness, of the prosecutor's asserted nonracial motive. Gibson v. State, 144 S.W.3d 530, 534 n.5 (Tex. Crim. App. 2004) (citing Purkett, 514 U.S. at 765, 115 S. Ct. at 1771-72). We cannot reverse a trial court's ruling on a Batson challenge unless it is clearly erroneous. See Gibson, 144 S.W.3d at 534. To hold that a trial court clearly erred, we must have a "definite and firm conviction that a mistake has been committed." Goldberg v. State, 95 S.W.3d 345, 385 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd).
B. Analysis
At the outset, we note that we need not decide whether appellant made a prima facie case of discrimination. By offering an explanation for its strikes to the trial court, the State rendered this step of the analysis moot. See Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003); Moore v. State, 265 S.W.3d 73, 78 (Tex. App.—Houston [1st Dist.] 2008, pet. dism'd).
Turning to the second step, we conclude that the State's explanations for striking Prospective Jurors 5, 13, 28, 30, and 36 are facially race neutral. A race-neutral explanation is one based on something other than the race of the venire member. Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 1866 (1991). 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.
We do not include Prospective Juror 43 in our analysis because the State did not strike him, as he was never reached by the parties.
Here, the State explained that it struck Prospective Jurors 5, 28, 30, and 36 based on their responses to the question regarding law enforcement credibility and the ratings they gave when asked how well a job the police in their community do. See Jones v. State, 431 S.W.3d 149, 155 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) (concluding that State's explanation that use of peremptory strikes was based on ratings that venire members returned for their local law enforcement was facially race neutral). The State also explained that it struck Prospective Juror 13 because he had a prior conviction for criminal trespass, and "he was very vocal and contrary" with counsel on both sides, suggesting that he would be someone who opposes authority. See Vargas v. State, 838 S.W.2d 552, 555 (Tex. Crim. App. 1992) (finding that State's explanation that it struck venire member because he had previous arrest was race-neutral reason). Because race plays no overt role in these explanations, they are facially race neutral.
In the third step, we must determine whether the defendant 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, 176 S.W.3d at 858-59. The trial judge 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).
Courts have held that a number of factors, if present, tend to show purposeful discrimination. See Miller-El, 545 U.S. at 265, 125 S. Ct. at 2339 (considering combined impact of a number of factors in concluding that prosecutors struck prospective jurors on racially discriminatory basis); see also Whitsey, 796 S.W.2d at 713-14 (setting forth "nonexclusive list of factors which weigh against the legitimacy of a race-neutral explanation"). Appellant argues that the State's explanation was not genuine and therefore a pretext for discrimination because (1) the State's explanation for striking Latino jurors applied equally to non-minority jurors whom the State did not strike and (2) the Harris County District Attorney's Office has a formal policy to exclude minorities from jury service. See Miller-El, 545 U.S. at 264-65, 125 S. Ct. at 2339 (noting that evidence showing prosecution's reasons for eliminating minority jurors applied equally to non-minority jurors, and that particular entity that prosecuted defendant had formal policy to exclude minorities from jury service, should be considered at Batson's third step).
With respect to his first argument, appellant did not provide a record upon which this court can conduct the comparative analysis necessary to gauge any disparate treatment. The record does not contain any evidence establishing each venire member's race or ethnicity, the race or ethnicity of the venire members stricken, or the race or ethnicity of the venire members selected. See TEX. R. APP. P. 34.5 (stating that appellant has burden to develop record to show nature and source of error); Jones v. State, 531 S.W.3d 309, 318 (Tex. App.—Houston [14th Dist.] Sept. 7, 2017, pet. ref'd). Without this crucial information, we cannot perform an analysis to compare whether the State treated venire members of different races or ethnicities differently. See Miller-El, 545 U.S. at 240-63, 125 S. Ct. at 2325-2338 (noting that important factor in determining racial bias is comparing way prosecutors treated venire members of different races). Appellant acknowledges that "[t]he juror information sheets were not made part of the record" but concludes that "the ethnicities of many of the panelists can be pieced together from the Batson hearing." The record before us does not establish the ethnicity of the venire members, and we will not assume their ethnicity. See Contreras v. State, 56 S.W.3d 274, 280 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) (refusing to assume ethnicity of venire member where ethnicity was not in record); Sanchez v. State, 797 S.W.2d 951, 956 (Tex. App.—Dallas 1990, no pet.) (agreeing with trial court that race or ethnic origin of venire member cannot be conclusively proven for purposes of Batson hearing based solely upon person's surname).
Furthermore, the record does not support appellant's contention that the State's explanation for striking Prospective Jurors 5, 28, 30, and 36, i.e., because they answered "three" or higher to the scaled law enforcement question, applied equally to non-Latino jurors whom the State did not strike. The record shows that all fourteen prospective jurors who answered "three" or higher were either struck by the State or by agreement of the parties.
With respect to his second argument, appellant asserts that "there is evidence of a formal policy to exclude minorities within the State's choice of the scaled question regarding law enforcement and with this, a removal of all but one Latino from the jury pool." See Miller-El, 545 U.S. at 264-65, 125 S. Ct. at 2339. Appellant then cites several studies he contends support his assertion that minority venire members will most likely score a scaled law enforcement question such as the one asked by the prosecutor in this case higher than non-minority venire members. Thus, he concludes, "[t]his evidences a formal policy to exclude minority venire members."
Appellant's contention is unavailing for at least two reasons. First, appellant did not offer these studies, upon which he now relies, in the trial court. We may not reverse a trial court's finding based upon information that was not introduced into evidence or elicited before the trial judge during voir dire. See Vargas, 838 S.W.2d at 556 ("It is not proper for an appellate court reviewing a trial court's decision on a matter to rely upon information that was not admitted as evidence at the Batson hearing in the trial court.") To do so would undermine the standard of review for a Batson challenge which affords great deference to the trial court. Id.
Second, appellant's argument that the Harris County District Attorney's Office has a formal policy of discrimination is based on conjecture. In Miller-El, the United States Supreme Court found that there was clear and convincing evidence showing that the trial court's factual findings of no discrimination in the State's use of its peremptory challenges to excuse ten of the eleven black venire members were wrong. See Miller-El, 545 U.S. at 265-66, 125 S. Ct. at 2339-40. In particular, the Court noted that it had known for decades that the Dallas County District Attorney's Office had followed a specific policy of systematically excluding blacks, based on evidence that included the testimony of several former Dallas County assistant district attorneys as well as a manual disseminated to prosecutors that contained an article by a former prosecutor outlining the reasoning for excluding minorities from jury service. See id. at 264, 125 S. Ct. at 2338-39. Here, by contrast, appellant has not presented any evidence showing that the Harris County District Attorney's Office has a formal policy to exclude minority venire members.
For these reasons, we conclude that appellant has not met his burden to establish purposeful discrimination. See Jasper, 61 S.W.3d at 421-22; Stewart, 176 S.W.3d at 858-59. We hold that the trial court did not clearly err in denying appellant's Batson challenge. Accordingly, we overrule appellant's sole point of error.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Justices Keyes, Brown, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).