Opinion
No. 05-10-00325-CR
08-28-2012
THERON LECINQ LACEY, JR., Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM;
On Appeal from the Judicial District Court No. 282
Dallas County, Texas
Trial Court Cause No. F08-14820-YS
MEMORANDUM OPINION
Before Justices Moseley, Lang-Miers, and Murphy
Opinion by Justice Moseley
A jury convicted Theron Lecinq Lacey, Jr. of aggravated robbery. After the jury was selected and before the trial began, Lacey raised a Batson challenge to the State's use of peremptory strikes against African-Americans in the venire. Following a hearing, the trial court concluded there was no Batson violation. Presenting a single issue on appeal, Lacey asserts the trial court erred when it ruled the State's decision to strike veniremember number nine from the jury panel was not racially motivated. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment. Pursuant to the Supreme Court's decision in Batson v. Kentucky, a prosecutor cannot exercise a peremptory strike against a veniremember solely on account of the person's race. 476 U.S.79 (1986). When a defendant makes a Batson challenge, the trial court engages in a three-step analysis to determine whether the challenged peremptory strikes were based solely on a veniremember's race. The defendant bears the initial burden of making out a prima facie case of racial discrimination. Nieto v. State, 365 S.W.3d 673, 676 (Tex. Crim. App. 2012). If he carries his burden, the burden shifts to the State to provide a race-neutral reason for the strike. See id. Once the State proffers a race-neutral explanation, the trial court decides whether the defendant proved by a preponderance of the evidence "the existence of purposeful discrimination." Williams v. State, 804 S.W.2d 95, 97 (Tex. Crim. App. 1991) (quoting Whitus v. Georgia, 385 U.S. 545 (1967)); see also Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008). Throughout the Batson challenge, the defendant bears the burden of persuasion. See Tex. Code Crim. Proc. Ann. Art. 35.261 (West 2012). To satisfy this burden, the defendant may choose to present evidence in an effort to meet that burden before the trial court makes a final ruling. See Shuffield v. State, 189 S.W.3d 782, 785 (Tex. Crim. App. 2006) (citing Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003)). See also Watkins, 245 S.W.3d at 447 ("trial court determines whether the opponent of the strike (usually the defendant) has satisfied his burden of persuasion to establish by a preponderance of the evidence that the strike was indeed the product of the proponent's purposeful discrimination.").
We sustain the trial court's ruling on a Batson challenge unless it is clearly erroneous. See Nieto, 365 S.W.3d at 676; Greer v. State, 310 S.W.3d 11, 13 (Tex. App.-Dallas 2009, no pet.). A ruling is clearly erroneous if, after reviewing the voir dire record, we are left with the definite and firm conviction that the trial court committed a mistake. See Nieto, 365 S.W.3d at 676; Greer, 310 S.W.3d at 13 . In our review of the trial court's ruling on a Batson challenge, we consider the entire voir dire record-we are not required to limit our review to the arguments made to the trial court by the parties. See Watkins, 245 S.W.3d at 447. Because the trial judge had the unique opportunity to evaluate the credibility of the prosecutor and veniremembers, we defer to the trial judge absent exceptional circumstances. See Nieto, 365 S.W.3d at 676; Grant v. State, 325 S.W.3d 655, 657 (Tex. Crim. App. 2010). If the trial judge's decision is plausible, or if the judge chose between two permissible views of the evidence, we may not reverse even if we are convinced that we would have decided the matter differently had we been sitting as the trier of fact. See Greer, 310 S.W.3d at 14- 15.
Lacey does not assert the trial court erred when it found the State provided facially neutral reasons for striking veniremember nine. Therefore, the sole issue before us is whether the trial court's conclusion that Lacey did not carry his burden to show the existence of purposeful discrimination was clearly erroneous. See Williams, 804 S.W.2d at 97.
We consider the following factors in our analysis:
(1) whether the striking party used a jury shuffle in a racially discriminatory manner;Greer, 310 S.W.3d at 14-15. See also Watkins, 245 S.W.3d at 448-49 (citing Miller-El v. Dretke, 545 U.S. 231, 240 (2010)).
(2) whether the party used strikes to eliminate a far greater proportion of African-Americans from the venire as compared to non-African-Americans;
(3) whether the party failed to question the struck veniremember;
(4) whether the party disproportionately singled out African-American veniremembers for questioning in a way designed to elicit grounds for peremptory strikes;
(5) whether the party gave reasons for striking African-American veniremembers that applied equally to non-African-American veniremembers that were not struck; and
(6) whether the party relied on reasons not related to the facts of the case.
The record does not show the State requested a jury shuffle.
Lacey does not argue the State disproportionately singled out black veniremembers for questioning, and the record does not reflect such questioning occurred.
The State used five of its ten peremptory strikes to remove black veniremembers, which had the effect of eliminating all black veniremembers from the strike zone. The seated jury included eleven white jurors and one Hispanic juror. Although the State struck all black jurors, this fact alone is not dispositive of the issue of discriminatory intent-it is indicative of discriminatory intent. Rather, the State's treatment of minority and nonminority veniremembers is more telling than "bare statistics." Nieto, 365 S.W.3d at 679 (quoting Miller-El, 545 U.S. at 241).
The venire was comprised of sixty-five people. Twenty-eight panelists were excused or challenged for cause-these twenty-eight people are not at issue in this appeal. Of the thirty-seven veniremembers who remained, twenty-four were white, seven were black, five were Hispanic, and one was not identified based on race. Each side had ten peremptory strikes it could use, and the trial court needed a jury of twelve jurors. Therefore, the first thirty-two people were in the strike zone. Of the veniremembers in the strike zone, five were black and two were Hispanic.
When the trial court asked the State to provide its reasons for striking each black juror, the State began by explaining: "The State in no way struck anybody for race reasons. We went back there, it was a team decision that we were going to get rid of every person on the questionnaire that checked rehabilitate first. And we did that all the way up till we ran out of strikes." The State then explained why it struck each black veniremember and the court found each explanation was race neutral. Once the State provided its explanations, Lacey's counsel globally questioned the State's purported strategy of "get[ting] rid of every person on the questionnaire that checked rehabilitate first." Lacey's counsel stated:
The juror questionnaire stated: "Rank the following objectives of criminal justice punishment in order of their importance to you." The objectives were "[r]ehabilitate those convicted," "[d]eter others from similar crime," and "[p]unish those convicted."
Well, Judge, the - - I would - - I'd like the record to reflect the State said they struck all the people that put rehabilitation down, yet there's [sic] three people on this jury - - there's [sic] three whites on here that put down rehabilitation, and they're - - they're on the jury panel."After a brief exchange with the prosecutor, Lacey's counsel added:
Well, but I know, you also - - [veniremember] number four was not rehab. Number nine was not a rehab. Number 11 was not a rehab. So there's three Blacks struck that you've got - - we've gone outside and struck three Blacks that weren't rehab for other reasons. If the rehab was the reason for striking, then all the rehabs would have been struck [sic] together before you went back and found reasons to strike the other three African-Americans.A discussion between the court and the prosecutor ensued about whether the State first struck everyone who listed rehabilitation as the primary goal of criminal punishment; the prosecutor conceded that had not been his strategy. The judge then asked the State to re-explain its reasons for striking each black veniremember. Although Lacey argues on appeal that the prosecutor's apparently inconsistent explanations show pretext, the trial court viewed the prosecutor's demeanor and could properly judge his credibility. See Nieto, 365 S.W.3d at 676. Relevant to this appeal, the State explained it struck veniremember nine because:
[D]idn't fill out rehab, deter, punish. Didn't fill out-basically didn't fill out half the questionnaire. And puts that criminal justice system is unfair. Didn't explain why. Also said he could not be fair in repeated questions throughout his questionnaire.In the trial court, Lacey's counsel did not specifically address any of the State's explanations for striking veniremember nine-he did not challenge the State's assertions that veniremember nine did not fill out half of the questionnaire, said the criminal justice system is unfair and failed to explain why, stated he could not be fair throughout the questionnaire, had a bad juror rating from Ellyce Lindberg, and was biased against the police.
Also, Judge, has bad juror rating from Ellyce Lindberg, who I happen to know. If I need to -and I vouch for her credibility. Talking about that he has a bias against police and could not give them a fair trial.
The prosecutor's explanation included the following exchange:
THE COURT: You said, point-blank, that we took all the jurors that ranked number one on rehabilitation and we struck all of those until we didn't have any more strikes.
[Prosecutor]: Up to juror 50, is what I said. But I apologize if it wasn't clear. The last three was where I said we ran out. I'm pretty sure I made that clear to the Court. If I didn't, I apol - -
. . .
[Prosecutor]: We go, Judge - - I'll make clear. We went juror by juror, okay?
THE COURT: Okay. So you didn't go rehabilitation, strike all of those people first?
[Prosecutor]: What we did at first, is go juror by juror - -
THE COURT: Okay.
. . .
[Prosecutor]: And I apologize, and we went and looked at their complete issues on their questionnaire and what they told us. And the jurors who either said it was too severe or rehabilitation or had a brother or cousin or someone murdered, we struck; or couldn't be fair.
So when someone says they can't be fair, we obviously have to look at that more than just them not checking anything on rehab, punish or deter. When someone had a cousin who was murdered, we don't even get past the question of rehab, defer [sic], punish.
. . .
THE COURT: Okay. And that's why I asked at the beginning, was give me the reasons - -
. . .
THE COURT: - - of why you struck each one, rather than some blanket boiler plate which is now it's all confused. You know, there's a reason you struck [veniremember] four. Why? That's all I ask.
[Prosecutor]: I apologize. I messed up by saying that to you, obviously. Would you like me to repeat my reasons?
THE COURT: Yeah. I would.
Veniremember nine checked the "no" box in response to the question "Do you feel that the Criminal Justice System treats all citizens fairly? If No, please explain." He did not provide an explanation.
Several follow-up questions in the juror questionnaire asked whether a particular experience would cause the veniremember "to be UNFAIR to either or both side(s) in this case?" Veniremember nine checked "yes" in response to two of these questions and did not provide any explanations about why.
Ellyce Lindberg is not identified in the record or in the briefs on appeal.
In his juror questionnaire, veniremember nine answered "no" to the question "Have you, a family member, or close friend ever had a bad experience with police or law enforcement?" He then answered "yes" (but provided no written explanation) to the follow-up question: "Would this experience cause you to be UNFAIR to either or both side(s) in this case?"
Lacey argues on appeal that the State did not ask veniremember nine any questions about his juror questionnaire, even though the State relied on the questionnaire to justify the strike. However, not questioning an individual is one of many factors to consider when deciding whether the State's reasons for striking a juror were racially motivated, see Nieto, 365 S.W.3d at 678, and a veniremember's failure to answer questions is a race-neutral explanation for peremptory challenges, see Moore v. State, 265 S.W.3d 73, 86 (Tex. App.-Houston [1st Dist.] 2008), pet. dism'd, improvidently granted, 286 S.W.3d 371 (Tex. Crim. App. 2009). Moreover, the State's failure to question veniremember nine about his answers has less persuasive value because the venire was questioned as a group, rather than individually. See Nieto, 365 S.W.3d at 678. We also note that Lacey did not take any steps to rebut the State's statements about veniremember nine's answers to the questionnaire (such as questioning veniremember nine about his answers) even though Lacey, not the State, bore the burden of persuasion to show the State's discriminatory intent in striking veniremember nine.
Lacey also asserts the State did not strike white veniremembers for the reasons it struck black veniremembers, thus showing disparate treatment of similarly situated jurors. See Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992). Disparate treatment may be shown if the State strikes minority veniremembers who give answers similar to non-minority prospective jurors the State does not strike. See Johnson v. State, 959 S.W.2d 284, 292 (Tex. App-Dallas 1997, pet. ref'd). "We cannot, however, automatically impute disparate treatment in every case in which a reason for striking a minority venireperson also technically applies to a non-minority venireperson whom the prosecutor found acceptable." Leadon v. State, 332 S.W.3d 600, 612 (Tex. App.-Houston [1st Dist.] 2010, no pet.) (citing Cantu, 842 S.W.2d at 689). Whether to strike a veniremember "is a fluid process, often hinging on the interaction of a number of variables and permutations"; it "is unlikely that two venirepersons on one panel will possess the same objectionable attribute or character trait in precisely the same degree. Such differences . . . may properly cause the State to challenge one potential juror and not another." Cantu, 842 S.W.2d at 689.
Lacey asserts the State treated seven non-black veniremembers whose questionnaires reflected their beliefs that the criminal justice system is unfair differently from veniremember nine. Of these seven veniremembers, only two were seated on the jury (veniremembers thirty-five and fifty). Veniremembers nine, thirty-five, and fifty all answered "no" to the inquiry about whether the criminal justice system treats all citizens fairly. However, veniremembers thirty-five and fifty explained their answers as requested by the questionnaire-which veniremember nine did not. Thus, while their answers might initially seem similar to the response by veniremember nine, additional inquiry into the three people's answers show they are not.
Veniremember thirty-five explained, "Those with best lawyers have advantage."
Veniremember fifty explained, "The past still haunts us. But as with everything there is change."
--------
Lacey next argues the State did not strike six non-black veniremembers who left "significant portions" of their questionnaires blank, even though it justified, in part, striking veniremember nine because he failed to complete the questionnaire. Of those six veniremembers, four were on the jury (veniremembers seven, twenty-four, thirty, and forty-one). Lacey claims veniremember nine left eleven parts of his jury questionnaire blank, while number seven left three portions blank, number twenty-four left seven parts blank, number thirty left five parts blank, and number forty-one left six parts blank.
The juror questionnaire included twelve questions, and some questions included subparts. After reviewing the questionnaires for veniremembers seven, twenty-four, thirty, and forty-one, we conclude veniremembers seven, twenty-four, and forty-one each left one question blank (the question veniremember twenty-four failed to answer was, "[a]nything else you feel the parties should know about you that would affect your ability to be a fair juror in this case?"), and veniremember thirty left two questions unanswered. However, veniremember nine failed to respond to four questions, including the question about rehabilitation, deterrence, and punishment-a question the State stated was important in its analysis-and provided inconsistent responses to several other questions. Unlike veniremember nine, veniremembers seven, twenty-four, thirty, and forty-one answered the question about rehabilitation, deterrence, and punishment. Moreover, every veniremember who became a juror answered the rehabilitation, deterrence, and punishment question.
Lacey's arguments of disparate treatment are not persuasive. The reasons the State struck veniremember nine do not apply to the non-black veniremembers who became jurors.
Finally, Lacey complains about the State's assertion that Ellyce Lindberg gave veniremember nine a bad juror rating because the "State did not introduce evidence of [veniremember nine's] supposed bad juror rating, and failed to question [veniremember nine] on whether he has a bias against police." Lacey's argument improperly attempts to shift the burden to prove the bad juror rating to the State-if Lacey sought to undercut the State's proffered, race-neutral explanation about a bad juror rating, Lacey bore the burden to prove by a preponderance of the evidence the State was discriminating. See Watkins, 245 S.W.3d at 447; Shuffield, 189 S.W.3d at 785. Yet Lacey did nothing-Lacey did not question the prosecutor about his assertion, request the State produce evidence of the poor juror rating, or examine Ellyce Lindberg about her assessment. Lacey failed to carry his burden of persuasion.
Although Lacey disagrees with the State's reasons for striking veniremember nine, disagreement alone is insufficient to meet his burden to show discrimination. See Straughter v. State, 801 S.W.2d 607, 613 (Tex. App.-Houston [1st Dist.] 1990, no pet.). Lacey's counsel did not question the prosecutor or challenge the accuracy of his description of the contents of veniremember nine's questionnaire; he did not challenge the prosecutor's statement that veniremember nine received a bad juror rating, ask the State to prove the basis for the bad rating, or put on evidence that the bad juror rating was unfounded; and he did not show veniremember nine received disparate treatment. In short, he did not show the State discriminated. Lacey was required to prove by a preponderance of the evidence that the objected-to strike was the product of the State's discrimination. See Watkins, 245 S.W.3d at447. The trial court concluded Lacey did not prove the State engaged in racial discrimination with respect to veniremember nine. After reviewing the entire record of voir dire and the Batson hearing, we cannot conclude the trial court clearly erred in reaching that conclusion. We overrule Lacey's sole issue and affirm the trial court's judgment.
JIM MOSELEY
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100325F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
THERON LECINQ LACEY, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00325-CR
Appeal from the Judicial District Court No. 282 of Dallas County, Texas. (Tr.Ct.No. Cause No. F08-14820-YS).
Opinion delivered by Justice Moseley, Justices Lang-Miers and Murphy participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 28, 2012.
JIM MOSELEY
JUSTICE