Opinion
No. 05-98-02164-CR.
Opinion Filed March 31, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F98-02611-LU. Affirmed.
OPINION
Appellant Benito Guzman was convicted of the offense of capital murder and appealed his conviction to this court. In a published opinion, we sustained Guzman's second point of error and reversed Guzman's conviction because of perceived error in jury selection. See Guzman v. State, 20 S.W.3d 237, 244 (Tex.App. 2000), rev'd 85 S.W.3d 242 (Tex.Crim. App. 2002). The State then petitioned the court of criminal appeals for review, which was granted. In a 5-4 decision, that court reversed our decision and remanded the case to us with instructions that called for the trial court to make certain findings of fact. State v. Guzman, 85 S.W.3d 242, 255 (Tex.Crim.App. 2002). On remand, we first abated the appeal and ordered the trial court to conduct a hearing. The trial court did so and sent a record of that hearing to us, at which time we reinstated the appeal. After consideration of that record, as well as the original record on appeal, we affirm. The issue on appeal and on remand centers around the prosecutor's allegedly discriminatory strike exercised against an African-American, male venire person, number 17 on the panel of venire persons. See Batson v. Kentucky, 476 U.S. 79 (1986) (prohibiting racial discrimination in jury selection); J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, 146 (1994) (prohibiting gender discrimination in jury selection). Courts adjudicate complaints of racial or gender discrimination in jury selection under a three-step process. Guzman, 85 S.W.3d at 245-46. First, the party objecting to the peremptory strike must make a prima facie case of racial or gender discrimination. Second, once a prima facie case has been made, the striking party must tender race or gender-neutral reasons for the strike. Third, if race or gender-neutral reasons are tendered, the trial court then determines whether the objecting party has proven purposeful discrimination. Id. After the jury was selected, in the face of a Batson challenge, the prosecutor stated that the State struck juror number 17 in part because he was a single male without children, and the State preferred females. The prosecutor also stated juror number 17 slept through part of the voir dire. Appellant objected to the prosecutor's explanation on the ground it was not gender-neutral. Based on the prosecutor's explanation showing both permissible and impermissible reasons, we originally concluded that the State had not provided a gender-neutral explanation for the strike and, therefore, did not meet the requirement of the second step in our appellate analysis of the Batson claim. Guzman, 20 S.W.3d at 244. Thus, we concluded that the trial court's findings of no purposeful discrimination in the strike were clearly erroneous. Id. On discretionary review, the court of criminal appeals held that:
when the motives behind a challenged peremptory strike are `mixed,' i.e., both impermissible (race or gender-based) and permissible (race and gender-neutral), if the striking party shows that he would have struck the juror based solely on the neutral reasons, then the strike does not violate the juror's Fourteenth Amendment right to equal protection of the law.Guzman, 85 S.W.3d at 244. Because it was unclear to the court whether the trial court explicitly found, under step two of the Batson analysis, whether the prosecutor would have struck juror number 17 regardless of his gender, the case was remanded for a hearing to be conducted on that question. Id. at 255. Additionally, in the hearing, the trial court was to proceed to step three in the Batson analysis and explicitly determine whether appellant had failed to show, by a preponderance of the evidence, that the State's strike of the male venire person was based on, or because of, gender discrimination. Id. Finally, we were directed to conduct "further proceedings consistent with this opinion." Id. The record before us reflects that in the hearing on remand conducted by the trial court pursuant to our order on remand, the State presented the testimony of Lindsey Roberts, the prosecutor who questioned and selected the jury in Guzman's trial. In the Batson hearing during the trial, Roberts had explained his strike against juror number 17 as follows: Number 17, together with Mr. — number 15, Mr. Gallegos, they are the only two single males on the panel. It's the State's contention — single males with no children. It's the State's contention that this being a case that involves family violence, violence against a child, we prefer to have probably not only women but also individuals who have children who are going to be able to comprehend the issues that are going to be at hand. My co-counsel as well as myself and Ms. Yoo [another prosecutor] also noted that several times during the voir dire during the Court's voir dire that number 17, Mr. Laecher, fell asleep or shut his eyes for long extended periods of time. At the hearing on remand, Roberts reiterated that the strike was based on the belief that the venire person was a male with no children and slept during portions of the voir dire. Elaborating, Roberts went on to point out that the capital murder charge involved the death of a young child and the defense of accident. Thus, Roberts' motivation in jury selection was to have parents with children survive the peremptory strike process and be selected to serve on the jury. The fact that juror number 17 was a male was merely incidental and was peripheral to the main reason for the strike — juror number 17's status as a childless adult. Independent of this reason, Roberts went on to testify that he would have struck juror number 17 because the man appeared to be asleep during a good portion of Roberts' questioning of the panel. Regardless of gender, Roberts considered this as sufficient reason in and by itself to strike the venire person, and the strike was so motivated. On cross examination by Guzman's attorney, Roberts produced his original voir dire notations on the panel seating chart and also notes of facts about panel members. Roberts' notes reflect juror number 17 was asleep. Roberts admitted that he did not strike five childless females: juror numbers 7, 13, 19, 24 and 35 on the panel. Roberts explained that juror numbers 7 and 24 were schoolteachers and juror number 13 was married, thus in Roberts' mind both had more exposure to children than other panelists who were struck. Juror number 35 was a single, childless female who Roberts did not strike he said because of the rapport he established with her over a television show involving a nanny and an infant who died, a rapport he did not share with juror number 17 because he had not seen the show. Juror number 19 simply did not present the same problem as juror number 17, Roberts added. Rejecting Guzman's argument that the State's strike against juror number 17 was pretextual, the trial court found that Roberts would have struck the man regardless of gender. The trial court further found that Guzman had not met his burden to show by a preponderance of the evidence that the strike was based on intentional discrimination. The trial court then entered formal findings of fact to that effect, and ordered the record, consisting of the statement of facts and exhibits from the hearing, forwarded to this court. Obeying our mandate to conduct further proceedings consistent with the court of criminal appeals' opinion on discretionary review, we will review the trial court's findings of fact and reexamine Guzman's original point of error number two. As stated in our original opinion on direct appeal:
When reviewing a Batson challenge, we examine the record in the light most favorable to the trial judge's ruling. We reverse the trial judge's ruling only when it is clearly erroneous. A ruling is clearly erroneous when, after searching the record, we are left with the "definite and firm conviction that a mistake has been committed." If the trial judge's ruling is supported by the record, including the voir dire, the prosecutor's explanation of her peremptory challenges, appellant's rebuttal, and any impeaching evidence, then the trial judge's ruling is not clearly erroneous.Guzman, 20 S.W.3d at 241 (citing Bausley v. State, 997 S.W.2d 313, 315-16 (Tex.App.-Dallas 1999, pet. denied). Additionally, we are directed to show almost total deference to a trial court's findings of fact when those findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App. 1997). With this criteria in mind, we review the record to determine whether the trial court's findings of fact are supported by the record. As previously set out, the prosecutor explained with great detail his reasons for striking juror number 17. Two of the reasons, his desire to have persons familiar with young children on the jury and his longstanding practice of striking, without exception, sleeping venire persons, are facially race and gender neutral. The fact that juror number 17 was a male was incidental, in Roberts' reasoning. Juror number 17 would have been struck for either of the two gender-neutral reasons. Taking this testimony in the light most favorable to the trial court's finding of fact to that effect, we are far from having a definite and firm belief that a mistake has been committed. We conclude that this finding of fact is supported by the record. We now move on to our review of the trial court's finding under step three of the Batson analysis. Guzman attempted to prove purposeful discrimination by offering evidence that Roberts had not struck five childless women. Guzman argued that this fact led to the conclusion that Roberts' stated reason for striking juror number 17, that the man was childless, was a pretext covering up the true reason — gender bias. Roberts, seeking to dispel that notion, offered non-gender based reasons to explain why he did not strike the women. The trial court was therefore left with a decision to be made concerning the prosecutor's credibility vis-a-vis this explanation. Roberts also explained that juror number 17 appeared to be asleep during voir dire. Along with the only other venire person who slept during the questioning, Roberts sought to exclude juror number 17 from the jury for this reason. Sleeping during voir dire was an action that resulted in a virtually automatic peremptory strike from Roberts in every case he participated in. This reason alone, Roberts maintained, would have caused him to strike juror number 17 regardless of any other reason, gender based or not, that he had. In response, Guzman rationalized to the trial court that because, in his original explanation for the strike at trial, Roberts gave gender as his first reason, then that reason must be interpreted as the primary reason for the strike. The decision of the trial court concerning these two credibility challenges was decisively to accept Roberts' proffered gender-neutral reasons for the strike as true. On review of that trial court decision and as an adjunct to the "supported by the record" and "definite and firm conviction that a mistake has been committed" criteria set out above, we are mindful of the court of criminal appeals' admonition that we should show almost total deference to a trial court's findings of fact especially when those findings are based on an evaluation of credibility and demeanor. See Guzman, 955 S.W.2d at 89. In this vein, we are further admonished by the court that when evidence in the record is susceptible to two reasonable interpretations, and the trial court's decision is in accord with one of those interpretations, then the trial court's choice between those interpretations may not be deemed clearly erroneous by the reviewing court. See Trevino v. State, 864 S.W.2d 499, 500 (Tex.Crim.App. 1993). From our review of the record, the finding of the trial court, that Guzman had not met his ultimate burden of proof in showing that the prosecutor's strike of juror number 17 was based upon intentional discrimination, is amply supported by the record. Roberts' explanations met the accusation of gender-based discrimination head on. The trial court, which was in a position to observe Roberts' demeanor and appearance, voice inflection and intonations, delivery and enunciation, etc., chose in the face of Guzman's evidence and argument to accept those explanations as truthful. On review of the record, we are persuaded that the trial court's interpretation of the evidence is a reasonable one. Again, we are far from having a definite and firm belief that in ruling against Guzman on this issue, a mistake has been committed by the trial court. We therefore conclude that this finding of the trial court is supported by the record. Having found that the trial court's findings of fact are supported by the record and are not clearly erroneous, we overrule Guzman's second point of error. We affirm the judgment of the trial court.
In the only other point of error raised on direct appeal, we found the evidence legally sufficient.