Opinion
No. 06-04-00080-CR
Submitted: May 2, 2005.
Decided: August 3, 2005. DO NOT PUBLISH.
On Appeal from the 202nd Judicial District Court, Bowie County, Texas, Trial Court No. 99F0384-202.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
In selecting the jury for Cedric Kelley's aggravated robbery trial, the State used six of its ten peremptory strikes on black panel members. As a result, no blacks were selected to serve on the jury. Responding to Kelley's Batson challenge to the jury, the State provided a race-neutral explanation for each such strike, and the trial court overruled Kelley's challenge. On appeal, Kelley challenges the trial court's ruling on his Batson challenge. We affirm the trial court's judgment because we hold the trial court's ruling was not clearly erroneous. In Batson, the United States Supreme Court held that the State's purposeful use of peremptory challenges in a racially discriminatory manner violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Article 35.261 of the Texas Code of Criminal Procedure also specifically prohibits peremptory challenges based on race. TEX. CODE Crim. PROC. ANN. art. 35.261 (Vernon 1989). A Batson review involves a three-step analysis. Williams v. State, 937 S.W.2d 479, 485 (Tex.Crim.App. 1996). The first step requires the complaining party to make a prima facie case of racial discrimination. Id. (citing Purkett v. Elem, 514 U.S. 765, 767-69 (1995)). A prima facie case of discrimination may be made by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Batson, 476 U.S. at 93-96. After the complaining party establishes a prima facie case, the second step requires the party that has exercised the strike to come forward with a race-neutral reason for the strike. Williams, 937 S.W.2d at 485. This second step does not demand an explanation that is persuasive or even plausible. Purkett, 514 U.S. at 767-68. If the proponent of the strike can produce a race-neutral reason, then in the third and final step, the trial court must decide whether the opponent of the strike has proved purposeful racial discrimination. Id.; Ford v. State, 1 S.W.3d 691 (Tex.Crim.App. 1999). In reviewing a Batson challenge, we review the record in the light most favorable to the trial court's rulings and determine if the court's action was clearly erroneous. Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App. 1991). A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court is left with the definite and firm conviction that the trial court committed a mistake. Whitsey v. State, 796 S.W.2d 707, 721 (Tex.Crim.App. 1989). The trial court is the fact-finder at a Batson hearing, and it is that court's responsibility to weigh the evidence and determine the credibility of the witnesses. Tompkins v. State, 774 S.W.2d 195, 202 n. 6A (Tex.Crim.App. 1987), aff'd, 490 U.S. 754 (1989). We therefore accord great deference to the trial court's rulings. Robinson v. State, 851 S.W.2d 216, 226 (Tex.Crim.App. 1991). If the exercise of even one peremptory challenge was racially motivated, however, the entire jury selection process is invalidated and a new trial is warranted. Keeton v. State, 724 S.W.2d 58, 65 n. 5 (Tex.Crim.App. 1987); see Roberts v. State, 963 S.W.2d 894, 899-900 (Tex.App.-Texarkana 1998, no pet.). Kelley contends the State, in violation of Batson, exercised its peremptory strikes to strike all the potentially selectable black panelists from the jury panel. Since the State struck the panel members as it did, a prima facie case of discrimination was established. See Pondexter v. State, 942 S.W.2d 577, 581 (Tex.Crim.App. 1996) (striking all black veniremembers establishes prima facie case). The State was required to rebut this prima facie case, if it could, by articulating a race-neutral reason for each strike of a black panel member. This it did. Anthony Montgomery, panelist number one, was struck because he knew Kelley's father and had a criminal history. Lester Smith, panelist number five, was struck because she attended church with Kelley and one of the witnesses, visited a friend who was incarcerated, and "looked funny" at the State's attorney during voir dire. Debra Scott, panelist number nine, was struck because she had difficulty finding her seat on at least two occasions and had friends who were incarcerated at the time. Dajier Hodges, panelist number fifteen, was struck because she was young, did not have "enough" life experience, and had limited formal education. Curtis Woods, panelist number seventeen, was also struck because he had a friend who was incarcerated at the time. Verna Sanders, panelist number thirty-one, was struck because she attended church with Kelley. Once the State produced a race-neutral explanation for each of its strikes against black panelists, it became Kelley's burden to demonstrate the State's race-neutral explanations were untrue or pretextual. See TEX. CODE CRIM. Proc. ANN. art. 35.261(a). This is so because the defendant has the ultimate burden of proving the State excluded veniremembers on the basis of race. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Tompkins, 774 S.W.2d at 202 ("It is the burden of the accused to persuade the trial judge by a preponderance of the evidence that the allegations of purposeful discrimination are true in fact."). Kelley did not state why the race-neutral reasons were pretextual. Kelley emphasized his objection for Hodges, panelist number fifteen, a black woman working at a fast-food restaurant. The State argued that Hodges was struck because she was young, shy or quiet, and because of that she was more likely to be a follower. In reviewing this evidence, we are to determine not whether the State's explanations are credible, but rather whether the trial court's ruling on Kelley's Batson challenge was supported by the record and therefore not clearly erroneous. See Young v. State, 826 S.W.2d 141, 146 (Tex.Crim.App. 1991). Here, the State has articulated race-neutral reasons for its strikes of black panelists, and there is sufficient evidence to support the trial court's decision. We cannot say the trial court's ruling was clearly erroneous. We affirm the trial court's judgment.
Kelley was charged with robbing a fast-food restaurant in Texarkana, tried March 30, 2003, found guilty, and sentenced to eighteen years' imprisonment.
Batson v. Kentucky, 476 U.S. 79 (1986).
Thomas Hawks, panelist number fourteen, and Alexandra Cain, panelist number twenty-five, both white, were struck for the same reasons as Hodges.
In the range to be a candidate for alternate, Laura Spencer, panelist number forty-two, was struck because she is a retired social worker, and the State's attorney believed that social workers tend to be "very weak on punishment."