No. 05-02-01145-CR.
Opinion filed February 23, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court Dallas County, Texas, Trial Court Cause No. F01-60247-SN. Affirmed.
Before Justices MOSELEY, RICHTER, and FRANCIS.
Opinion By Justice MOSELEY.
Appellant Aubrey Lewis Jones was indicted for possession of a controlled substance, cocaine, in an amount of four grams or more but less than 200 grams. The indictment contained an enhancement paragraph alleging a prior conviction for aggravated rape. After a jury found Jones guilty of the indicted offense, he entered a plea of true to the enhancement paragraph, and the trial court sentenced Jones to twenty years' confinement and a fine of $2,000. In his sole point of error, Jones contends that the trial court erred when it denied his Batson objection to the State's use of a peremptory challenge to a prospective juror because the State's explanation for the peremptory challenge was a sham or pretext for discrimination. We affirm.
APPLICABLE LAW AND STANDARD OF REVIEW
A defendant has a right to a trial by a jury whose members are selected in a racially-neutral, nondiscriminatory manner. Batson v. Kentucky, 476 U.S. 79, 85-86 (1986); see Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 1989). A Batson, inquiry entails a three-step process for evaluating objections to peremptory challenges. Hernandez v. New York, 500 U.S. 352, 358 (1991) (plurality op.). First, the defendant must make a prima facie showing that the State exercised its peremptory challenges on the basis of race. Id. at 358-59. To make out a prima facie case of race discrimination, the defendant must show that: (1) he is a member of a cognizable racial group; (2) the State exercised peremptory challenges to remove from the venire some members of a racial group; (3) any other facts and relevant circumstances which will raise an inference that the prosecutor excluded members of the venire on the basis of race. Batson, 476 U.S. at 96-98. Second, if the defendant makes the requisite prima facie case, the State must come forward with a racially-neutral explanation for the contested challenges. Purkett v. Elem, 514 U.S. 765, 767 (1995) (per curium). A racially-neutral explanation means only an explanation that, on its face, does not deny equal protection. Id., at 767-69. The State's explanation does not have to be persuasive or even plausible, and as long as the discriminatory intent is not inherent, the State's explanation will be deemed race-neutral. See Bausley v. State, 997 S.W.2d 313, 316 (Tex. App.-Dallas 1999, pet. ref'd) (citing Purkett, 514 U.S. at 768). Third, if the State presents a racially-neutral explanation for its challenges, the defendant must go forward with his burden to prove by a preponderance of the evidence that the explanation given by the State is a sham or pretext for discrimination. Keeton v. State, 749 S.W.2d 861, 868 (Tex.Crim. App. 1988). The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the challenge. Purkett, 514 U.S. at 767-69. We consider the evidence in the light most favorable to the trial court's ruling and determine if the ruling is supported by the record. Keeton, 749 S.W2d at 870. We will uphold the trial judge's ruling on a Batson objection unless it is clearly erroneous. Mathis v. State, 67 S.W.3d 918, 924 (Tex.Crim.App. 2002). A trial court's ruling is clearly erroneous when we are left with the "`definite and firm conviction that a mistake has been committed.'" Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim. App. 1992) (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985)). DISCUSSION
Following voir dire, the State and Jones submitted their peremptory challenges. The State exercised ten peremptory challenges. Pursuant to Batson, Jones objected to the State's peremptory challenges as to six venirepersons who were African-American men. On appeal, however, Jones complains only as to the State's peremptory challenge against the prospective juror identified as "Juror 24." Thus we will restrict our discussion this prospective juror. The State responded to Jones's Batson objection as to Juror 24 by explaining that Juror 24 raised his hand that "he had had a bad experience with police, which is consistent with other strikes" and that "his wife has a criminal record." The court overruled Jones's Batson objections. A bad experience with a police office is a race-neutral reason to justify a peremptory strike. Davis v. State, 964 S.W.2d 352, 355 (Tex. App.-Fort Worth 1998, no pet.). The arrest or conviction of a venireperson's relative is a race-neutral explanation for striking that venireperson. Jones v. State, 902 S.W.2d 102, 107 (Tex. App.-Houston [1st Dist.] 1995, pet. ref'd); Davis v. State, 822 S.W.2d 207, 211 (Tex. App.-Dallas 1991, pet. ref'd). We conclude the State presented race-neutral explanations. In response to the State's explanation that Juror 24 had a bad experience with a police officer, Jones argued that "if he did, speaking from experience, he said it was something that he could — wouldn't influence him in his decision." The State replied, "That question was not asked." In response to the explanation as to Juror 24's wife, Jones argued that he thought Juror 24's "wife's criminal record has no bearing as his service [sic]." The State explained further that the State exercised its strikes with two other jurors, not among those included in Jones's Batson challenge, who had bad experiences with police. On appeal, Jones argues that the State never questioned Juror 24 and the record is silent and does not support the State's explanations. However, if the State presents genuine race-neutral explanations for using its peremptory challenges, the burden then shifts back to the defendant to persuade the trial court by a preponderance of the evidence of the factual truth of his purposeful discrimination allegations. Davis, 822 S.W.2d at 210. The defendant must do more than simply state his disagreement with some of the State's explanations; he must prove affirmatively that the State's race-neutral explanations were a sham or pretext. Id. Illustrative of the types of evidence that can be used to show sham or pretext are: (1) the reasons given are not related to the facts of the case, and (2) there was a lack of questioning to the challenged juror, or a lack of meaningful questions. Keeton, 749 S.W2d at 868 (citation omitted). However, Jones did not cross-examine the State, did not bring forward any additional evidence, and made no further argument on his motion as to Juror 24. He failed to produce any evidence of the type that can be used pursuant to Keeton to show sham or pretext. We conclude that Jones failed to carry his burden to persuade the trial court by a preponderance of the evidence that his allegations of purposeful discrimination were true. See Davis, 822 S.W.2d at 210. After considering the evidence in the light most favorable to the trial court's ruling, we are not left with a definite and firm conviction that the trial court committed a mistake. See Hill, 827 S.W.2d at 865. Because the trial court's decision to overrule Jones's Batson objection as to Juror 24 was not clearly erroneous, see Mathis, 67 S.W.3d at 924, we overrule Jones's sole point of error. CONCLUSION
Having overruled Jones's sole point of error, we affirm the trial court's judgment.