Opinion
Nos. 10-02-179-CR, 10-02-180-CR.
Opinion Delivered and Filed May 7, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
From the 252nd District Court, Jefferson County, Texas, Trial Court Nos. 82755 and 85454.
Before Justice VANCE, Justice GRAY, and Senior Justice HILL.
MEMORANDUM OPINION
Daryl Craig Moaning appeals his convictions, in two separate causes, for the offenses of delivery of a controlled substance, cocaine, in an amount less than one gram, and possession of a controlled substance, cocaine, in an amount of less than one gram. Moaning had previously received deferred adjudication for the delivery offense and been placed on community supervision. A jury convicted Moaning of the possession offense. This conviction appears to be the sole basis on which the court proceeded to adjudication on the charge for the delivery offense. The trial court proceeded to adjudication on the delivery offense, and assessed Moaning's punishment in each cause at ten years' confinement in the Texas Department of Criminal Justice, Institutional Division. Moaning contends in a single point in each cause that the trial court's ruling on his Batson motion in the jury trial of the possession offense was not supported by the record and was therefore clearly erroneous. We affirm. It is constitutionally impermissible to exercise peremptory strikes on the basis of race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69, 82-83 (1986). To raise a Batson challenge, the opponent of a peremptory strike must make a prima facie showing of the proponent's discriminatory use of the strike. Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 1770-71, 131 L.Ed.2d 834, 839 (1995); Emerson v. State, 851 S.W.2d 269, 271 (Tex.Crim.App. 1993). Once the opponent makes a prima facie showing, the proponent of the strike has the burden to produce a race-neutral explanation for the strike. Purkett, 514 U.S. at 767-68, 115 S.Ct. at 1770-71, 131 L.Ed.2d at 839. If a race-neutral explanation is given, the opponent of the strike must prove purposeful racial discrimination. Id. The burden of persuasion regarding racial motivation never leaves the opponent of the strike; therefore, the race-neutral explanation given by the proponent of the strike is not required to be persuasive, but merely facially valid. Id. The trial court's decision on whether the defendant has proved his Batson claim turns, in part, on its observations during the voir dire examination. As supervisor of the voir dire proceeding, the trial court is in a position to readily perceive discrepancies during the jury selection process. Young v. State, 826 S.W.2d 141, 145 (Tex.Crim.App. 1991). Therefore, the court's determination must be accorded great deference on appeal. Chambers v. State, 866 S.W.2d 9, 23 (Tex.Crim.App. 1993). A trial court's finding that peremptory strikes were not racially motivated will be upheld on appeal so long as the finding is not "clearly erroneous" in the light most favorable to that ruling. Pondexter v. State, 942 S.W.2d 577, 581 (Tex.Crim. App. 1996). We have held that a decision is "clearly erroneous" if the review of the record leaves us with a firm and definite conviction that a mistake has been made. Bryant v. State, 923 S.W.2d 199, 208-09 (Tex.App.-Waco 1996, pet. ref'd). The only strike Moaning complains of on appeal is that of juror No. 13, a Mr. Keller. At the voir dire hearing, Mr. Keller stated that he is in favor of making it illegal to possess certain sorts of drugs. During the hearing on the Batson motion, the State presented the following basis for striking Mr. Keller:
Judge, during the time that we were striking our list, I walked outside onto the sidewalk for a brief moment. Mr. Keller was outside talking with some of the other jurors and this is what I heard Mr. Keller say to some of the other jurors. He said, "You know, when a police officer does this (indicating) in a gesture, you know what he's really saying is this." And then he began to tell what his interpretation of a police officer was really saying in that fact situation. And it raised-caused concern to me that Mr. Keller would say what an officer is really saying. It indicates to me that he thinks that they're lying, distorting the truth and the facts and for that reason I struck Mr. Keller.The reason provided by the State for its strike of Mr. Keller was race-neutral. Once the State provided a race-neutral reason for its peremptory strike, the burden was on Moaning to rebut the State's reason by showing that the explanation was merely a sham or pretext for discrimination. Williams v. State, 804 S.W.2d 95, 101-02 (Tex.Crim.App. 1991). However, the record indicates that Moaning's trial counsel made no effort to rebut the State's reason. Moaning complains that he was not afforded the opportunity to show the explanation given by the prosecutor was a sham or pretext. He indicates that the court never acknowledged his counsel, merely denying his motion at the end of the State's explanations. He fails to note that his counsel made no effort to present anything to the court to show that the explanation given by the prosecutor was a sham or pretext. We overrule Moaning's sole point on appeal in both causes. The judgment is affirmed. Affirmed