Opinion
No. 13-03-246-CR.
Memorandum Opinion Delivered and Filed March 11, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 180th District Court of Harris County, Texas.
Before Justices HINOJOSA, YAÑEZ, and CASTILLO.
MEMORANDUM OPINION
A jury convicted appellant Barry Jerome Hysaw of sexual assault of a child. The trial court sentenced him as an habitual felony offender to forty-five years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. We affirm.
See Tex. Pen. Code Ann. § 22.011(a) (Vernon Supp. 2004).
See Tex. Pen. Code Ann. § 12.42(d) (Vernon 2003).
I. ISSUE ON APPEAL
The trial court has certified that this is not a plea-bargain case, and Hysaw has the right to appeal. See Tex.R.App.P. 25.2(a)(2). In a single issue, Hysaw asserts that the trial court's denial of his Batson motion violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. See Batson v. Kentucky, 476 U.S. 79 (1986). The record provides the complete voir dire examination and exercise of peremptory challenges by the parties. Hysaw argues: (1) the prosecutor's explanation for striking juror 26 was not race neutral; and (2) the record does not support the prosecutor's race-neutral explanations for striking juror 10. The State replies that Hysaw did not challenge the prosecutor's explanations at trial and therefore waived any Batson error.II. BATSON ANALYSIS A. The Burdens
The Equal Protection Clause prohibits the discriminatory use of peremptory challenges based on race. Id. at 96; see Tex. Code Crim. Proc. Ann. art. 35.261(a) (Vernon 1989); see also Gibson v. State, 117 S.W.3d 567, 570 (Tex. App.-Corpus Christi 2003, pet. filed). A three-step burden-shifting analysis applies to an accused's race-based Batson challenge. First, the accused must make a prima facie showing of racial discrimination, which is a burden of production, thereby raising an inference that the prosecutor peremptorily struck panelists because of their race. Ford v. State, 1 S.W.3d 691, 693 (Tex.Crim.App. 1999); Gibson, 117 S.W.3d at 570. Second, in recognition of the fact that peremptory challenges constitute a jury selection practice that permits invidious discrimination, the burden of production shifts to the prosecution to respond with a neutral explanation for the strike. Ford, 1 S.W.3d at 693; Young v. State, 826 S.W.2d 141, 145 (Tex.Crim.App. 1991); Gibson, 117 S.W.3d at 571. If the prosecution offers a neutral explanation, the third step requires the trial court to decide if the accused proved that the challenged strike was not neutral. Ford, 1 S.W.3d at 693; Young, 826 S.W.2d at 145; Gibson, 117 S.W.3d at 571. The ultimate burden of persuasion in this third step remains with the accused, who must show, by reference to the context of the voir dire or other relevant facts, that the explanation offered by the prosecutor is not neutral or is a pretext. Purkett v. Elem, 514 U.S. 765, 767-68 (1995); Guzman v. State, 85 S.W.3d 242, 254 (Tex.Crim.App. 2002); Ford, 1 S.W.3d at 693; Gibson, 117 S.W.3d at 571. A preponderance-of-the-evidence standard supplies the burden of proof in a Batson challenge. Williams v. State, 767 S.W.2d 872, 874 (Tex. App.-Dallas 1989, pet. ref'd) (en banc); Gibson, 117 S.W.3d at 571. The exercise of a peremptory challenge in a disparate manner on the basis of a single factor may support a claim of discriminatory intent. Esteves v. State, 849 S.W.2d 822, 824 n. 2 (Tex.Crim.App. 1993); Earhart v. State, 823 S.W.2d 607, 624 (Tex.Crim.App. 1991); Gibson, 117 S.W.3d at 571. Where the prosecutor offers only one reason for a challenged strike, the accused may discharge the burden of persuasion on a claim of disparate treatment on the basis of race to rebut the State's facially neutral explanation by showing that the State struck a panelist of one race but did not strike a panelist of a different race who presented the same reason. See Chamberlain v. State, 998 S.W.2d 230, 236 (Tex.Crim.App. 1999) (characterizing as "real rebuttal" in disparate-questioning Batson claim example "that no white venire members with similar views were ignored by the State."); Gibson, 117 S.W.3d at 571. A facially neutral explanation for striking a venire panelist may be suspect when the State does not strike persons with the same or similar characteristics. Gibson, 117 S.W.3d at 571; Doby v. State, 910 S.W.2d 79, 83 (Tex. App.-Corpus Christi 1995, pet. ref'd).B. The Standard of Review
In an appeal involving a Batson challenge, we apply a clearly erroneous standard of review. Hill v. State, 827 S.W.2d 860, 865-66 (Tex.Crim.App. 1992) (plurality op.); Gibson, 117 S.W.3d at 571. A ruling is clearly erroneous when, after searching the record, we form the definite and firm conviction that a mistake has been made. Hill, 827 S.W.2d at 865-66; Gibson, 117 S.W.3d at 571. In reviewing the trial court's ruling on a disparate-treatment Batson claim, we do not determine whether the prosecutor's explanations were credible but, rather, whether the trial court's ruling was supported by the record and therefore not clearly erroneous. Purkett, 514 U.S. at 769; see Guzman, 85 S.W.3d at 255; see also Young, 826 S.W.2d at 146; Gibson, 117 S.W.3d at 571. After a prosecutor gives nondiscriminatory reasons for striking minority panelists from the venire, the trial judge must determine whether the facially neutral explanations are contrived to avoid admitting acts of discrimination. Emerson v. State, 851 S.W.2d 269, 273 (Tex.Crim.App. 1993); Gibson, 117 S.W.3d at 571. This must be done because a prosecutor, although not intentionally discriminating, may try to find reasons other than race to challenge a minority juror, when race may be the primary factor in deciding to strike the juror. Emerson, 851 S.W.2d at 273; Gibson, 117 S.W.3d at 572. The trial judge as supervisor of the voir dire is in a position to readily perceive discrepancies during the jury selection process. Emerson, 851 S.W.2d at 273; Gibson, 117 S.W.3d at 572. Evaluation of the prosecutor's state of mind based on demeanor and credibility lies peculiarly within the province of the trial court. Emerson, 851 S.W.2d at 273; Gibson, 117 S.W.3d at 572. The trial judge may not, however, accept at face value the specific reasons given by the prosecutor. Emerson, 851 S.W.2d at 273; Gibson, 117 S.W.3d at 572. Disparate treatment alone does not lead necessarily to the conclusion that the offered explanation was a pretext. Gibson, 117 S.W.3d at 572; Doby, 910 S.W.2d at 83;. Rather, something more may be needed to overcome the presumption that the trial court's ruling was correct. Gibson, 117 S.W.3d at 572; Doby, 910 S.W.2d at 83.C. The Scope of Review
We examine the record to determine if the State met its burden of production to provide a neutral explanation for its challenge of the venire panelist in question. Wright v. State, 832 S.W.2d 601, 604 (Tex.Crim.App. 1992); Williams v. State, 804 S.W.2d 95, 102 (Tex.Crim.App. 1991); Gibson, 117 S.W.3d at 572. We review the record, including the voir dire examination, the prosecutor's explanations, and the appellant's rebuttal and impeachment evidence, in a light most favorable to the trial court's ruling. Wright, 832 S.W.2d at 604; Williams, 804 S.W.2d at 102; Gibson, 117 S.W.3d at 572; see Guzman, 85 S.W.3d at 245 (reviewing record in "mixed motives" challenge). We accord great deference to the trial court's ruling. Jasper v. State, 61 S.W.3d 413, 421-22 (Tex.Crim.App. 2001); Gibson, 117 S.W.3d at 572.D. Preservation of Batson Disparate-Treatment Claim
To preserve a race-based disparate-treatment Batson issue on appeal, an accused must claim at trial that the prosecution disparately treated similarly situated panelists on the basis of race. Ford, 1 S.W.3d at 693 (citing Purkett, 514 U.S. at 769-70). We turn to the record.1. The Record
At the close of jury selection, defense counsel asked to approach the bench and then objected to the panel:[DEFENSE COUNSEL]: Your Honor, I'd like to make a Batson challenge.
THE COURT: Okay.
[DEFENSE COUNSEL]: Based on all the jurors of color were stricken. I know I struck one, and it's for cause. But several others —
THE COURT: Okay.
[DEFENSE COUNSEL]: — were struck. No — particularly No. 10, the race ground for that.
THE COURT: Tell me who they are.
* * *
[DEFENSE COUNSEL]: Be 10 and 26.
THE COURT: Okay. [The prosecutor] struck 10 and 26 because?
[PROSECUTOR]: Your Honor, for the record, I'd like to state that defense counsel has made his prima facie showing to raise a Batson [sic].
However, since [sic] on the record, make some things clear for the record.
THE COURT: Okay.
[PROSECUTOR]: . . . Juror No. 10 I struck for a few different reasons.I wasn't — he had answered the question about whether he'd ever been accused or a victim or a witness, checked it on his box, which always makes me nervous on juror information sheets. I didn't have time to elicit what that was. Also was fairly argumentative with me. Argumentative with me with regard to the one witness issue. Once he spoke up, he spoke very loudly, very rapidly. What you mean is, da, da, da. And I felt that negative response from him. The way I was trying to question the one witness question, and he was extremely vocal on that issue with me. Whether I misread him or not, I can't go into his head. But I took that as a sign of hostility toward me. Juror No. 26 had also checked the question that she had either been a prior victim or a witness or an accused of a criminal offense. I also believe that she was a big supporter of the — she was very animated and vocal with regard to his questions about the Fifth Amendment. Led me to believe she would be very favorable and more favorable to the defense on that issue. Those were the two main things I have had written down, whether or not she had priors, I had a question mark, and the issue that she seemed to favor the defense.
THE COURT: Okay. I'll find that the State's used [sic] peremptory challenges are based on race neutral reasons.And overrule your objection. The trial court then discharged the venire.