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Court of Appeals of Texas, Dallas.


No. 05–11–00622–CR

Decided: June 22, 2012

Before FitzGerald, Murphy, and Fillmore


Opinion By Justice FitzGerald

A jury found appellant Glenn Dell Cosby guilty of possession of phencyclidine in an amount less than one gram.   The jury also found two enhancement paragraphs true and assessed appellant's punishment at twenty years' confinement.   In a single issue on appeal appellant contends the trial court erred in overruling his challenge, under Batson v. Kentucky, 476 U.S. 79 (1986), to the State's use of a peremptory strike.   Because the issue in this appeal involves the application of well-settled principles of law, we issue this memorandum opinion.   See Tex.R.App. P. 47.4.   We affirm the trial court's judgment.

Appellant, an African American, contends the trial court violated his Batson rights by peremptorily striking the single African–American member of the venire.   After voir dire, the following exchange took place before the court:

[Defense Counsel]:  Judge, I believe the State struck number 5, [the potential juror].   She was the only African American I believe in the first 40, and she would be a hundred percent of the African Americans struck by the State.   I'm going to object under Batson.   My client has the right to have a jury of his peers, and minorities are protected from being struck.   I'd like the State to state the reasons on the record.

The Court:  Mr. [Prosecutor].

[The Prosecutor]:  Well, Judge, I guess I agree, it was a hundred percent in that it was one;  but as far as the Batson challenge, Judge, our reasons for striking [the potential juror] was two reasons actually.   One, she never smiled, never looked, never paid any attention to my jury selection.   She seemed to be paying attention to the defense.   And that obviously was a reason.   Second, she's about the same age, and I think would be very sympathetic to the defendant's mother, who is I think almost certain to testify in this case.   And I think because of the likely identification of this juror with a defense witness, that was the reason I struck her.   Had there been any other jurors similarly who failed to pay attention or similarly who I thought would be extremely sympathetic to a particular defense witness, I would have struck them.

The Court:  The Batson challenge will be overruled.

Batson initially requires a defendant to establish a prima facie showing of racial discrimination in the State's exercise of its peremptory strikes.   Mathis v. State, 67 S.W.3d 918, 924 (Tex.Crim.App.2002).   The burden then shifts to the State to articulate race-neutral explanations for its questioned strikes.  Id. The third step requires the trial court to decide whether the defendant has proved purposeful racial discrimination.  Grant v. State, 325 S.W.3d 655, 657 (Tex.Crim.App.2010).   The defendant carries the burden of proving racial discrimination.  Mathis, 67 S.W.3d at 924.   We defer to the trial court's determination in the absence of exceptional circumstances, and we will not overturn the court's ruling on appeal unless it is clearly erroneous.  Grant, 325 S.W.3d at 657;  Mathis 67 S.W.3d at 924.

In this case, we must assume appellant satisfied his initial obligation to make a prima facie case of purposeful discrimination:  following his counsel's request for the State to state its reasons for striking the single African–American, the trial court immediately called on the prosecutor to respond.   See Watkins v. State, 245 S.W.3d 444, 447 (Tex.Crim.App.2008).   Accordingly, the burden shifted to the State to tender its race-neutral explanation for the strike.  Mathis, 67 S.W.3d at 924.   The State gave two reasons:  the potential juror was inattentive to the prosecutor, but not to the defense;  and—because she was approximately the age of appellant's mother—the prosecutor believed she might identify with the mother, who would be a witness at trial.   The court concluded those reasons were race-neutral and denied appellant's challenge to the strike.

As to the first reason, appellant relies upon Daniels v. State, 768 S.W.2d 314 (Tex.App.—Tyler 1988, pet. ref'd), which acknowledges inattentiveness and juror demeanor can be race-neutral grounds for striking a juror.   However, Daniels takes the position that such grounds must be supported in the record by individual questions of the juror so that inattentiveness will not be used as a “convenient talisman” to undermine Batson protections.  Id. at 317–18.   We are not persuaded by appellant's reliance on Daniels for two reasons.   First, the potential juror stricken in this case was asked questions, albeit by the defense:  she responded appropriately to two questions concerning reasonable doubt, stating that if she had a reasonable doubt she would vote not guilty.   So there was some interaction with the potential juror as a member of the venire.   And as to the State's lack of questioning, the Court of Criminal Appeals has recently directed that no single factor—including a lack of questioning by the State—should be given dispositive effect in discerning discriminatory intent.   Where the court of appeals had done so, the Court of Criminal Appeals reversed, saying:

Properly applying the standard of review, the Court should have given deference to the trial court's evaluation of the prosecutors' credibility and should not have given dispositive weight to the lack-of-questioning factor.   Based on our review of the record, the trial court's ruling denying the appellant's Batson challenge was not clearly erroneous.

Grant, 325 S.W.3d at 661.   The trial court was able to observe the demeanor of the potential juror in this case.   We will not allow the single factor of a lack of questioning by the State to override our deference to the trial court's ruling.

Our conclusion is supported by the fact that the State offered a second ground for its strike:  the age of the potential juror.   Age may constitute a race-neutral reason upon which to base the exercise of peremptory challenges.   Chivers v. State, 796 S.W.2d 539, 543 (Tex.App.—Dallas 1990, pet. ref'd).   The prosecutor explained precisely why the age of the potential juror was an issue:  she was approximately the same age as a key witness, the defendant's mother, making it likely she would empathize with the witness.

We conclude appellant has not shown purposeful discrimination in this case.   See Mathis, 67 S.W.3d at 924.   Therefore, the trial court's denial of appellant's Batson challenge was not clearly erroneous.   We overrule his appellate issue, and we affirm the trial court's judgment.


Court of AppealsFifth District of Texas at DallasJUDGMENT


No. 05–11–00622–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 422nd Judicial District Court of Kaufman County, Texas.  (Tr.Ct.No.29225–422).

Opinion delivered by Justice FitzGerald, Justices Murphy and Fillmore participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered June 22, 2012.

/Kerry P. FitzGerald/




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