Opinion
No. 11-06-00161-CR
Opinion filed March 29, 2007. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the County Court at Law Erath County, Texas Trial Court Cause No. 36,157.
WRIGHT, C.J., MCCALL, J., and STRANGE, J.
OPINION
The jury convicted Luke Randolph Fambro of driving while intoxicated as a first offense. The trial court assessed punishment at confinement for 180 days in the county jail and a fine of $1,000. The trial court then suspended the confinement portion of the sentence and placed appellant on community supervision for 90 days. We affirm. In his sole point of error, appellant complains of a Batson error. He contends that the State's use of a peremptory strike on the only black member of the venire panel was racially motivated. The use of peremptory challenges to strike potential jurors on the basis of race is prohibited. TEX. CODE CRIM. PROC. ANN. art. 35.261 (Vernon 2006); Batson v. Kentucky, 476 U.S. 79 (1986). In Purkett v. Elem, 514 U.S. 765 (1995), the Supreme Court delineated the three-step process for properly determining a Batson challenge. First, the opponent of a peremptory challenge must make out a prima facie case of racial discrimination, essentially a burden of production. In the second step, the burden of production shifts to the proponent of the strike to respond with a race-neutral explanation. Third, if a race-neutral explanation has been proffered, the trial court must decide whether the opponent of the strike has proved purposeful racial discrimination. The burden of persuasion is on the opponent of the strike to convince the trial court that the strike was racially motivated. Purkett, 514 U.S. 765; Ford v. State, 1 S.W.3d 691, 693 (Tex.Crim.App. 1999); Camacho v. State, 864 S.W.2d 524, 529 (Tex.Crim.App. 1993). The record shows that appellant made a Batson challenge to the State's striking of Juror No. 6, Gregory A. Chivers, a 36-year-old black male. Defense counsel asserted that Chivers had not responded to any of the questions asked during voir dire and that the strike was racially motivated. The State responded that it struck Chivers for the same reason that it struck Juror No. 9, a Caucasian member of the venire panel. The race-neutral reason given by the State was that neither of the gentlemen were responsive to the State. The prosecutor stated:
We had good participation by the Voir Dire members, by most of them, and those two gentlemen were not responsive and the State did not get a good feeling about their participation in the case.
. . . .
I think there(s plenty to be garnered from no response. It wasn(t just that that juror, along with No. 9, was not responsive verbally, but visually I mean my take on it was that he didn(t want to be here and wouldn(t be interested in the proceedings just like No. 9. And I want a juror who(s going to be engaged and will listen to the evidence and sit in fair judgment of it.When asked to clarify what he had observed with respect to the two veniremembers, the prosecutor stated that he did not see any eye contact between those two and either of the attorneys. The prosecutor noted that neither of those two had engaged in the process like the rest of the panel had. In response, defense counsel noted that there were other members of the venire panel who did not "say anything" during voir dire and that these members were not stricken but, instead, were ultimately seated on the jury. Defense counsel, however, did not dispute the prosecutor's race-neutral reason regarding Chivers's nonverbal conduct his inattentiveness and demeanor. The trial court overruled appellant's Batson challenge. We must give great deference to the trial court's determination of fact and may not disturb the trial court's ruling on a Batson issue unless it was clearly erroneous. See Chamberlain v. State, 998 S.W.2d 230, 236 (Tex.Crim.App. 1999); Adanandus v. State, 866 S.W.2d 210, 224-25 (Tex.Crim.App. 1993). In this case, the State's explanation was reasonable and racially neutral, and appellant's rebuttal did not show that the State's race-neutral reason for striking Chivers was a pretext for discrimination. Yarborough v. State, 947 S.W.2d 892 (Tex.Crim.App. 1997); Moss v. State, 877 S.W.2d 895, 898 (Tex.App.-Waco 1994, no pet.); see also Purkett, 514 U.S. 765. Consequently, we hold that the trial court's determination of the Batson issue was not clearly erroneous. Appellant's point of error is overruled. The judgment of the trial court is affirmed.
Batson v. Kentucky, 476 U.S. 79 (1986).