BLACKMAN v. STATE

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Court of Appeals of Texas,Houston (1st Dist.).

James BLACKMAN, Appellant v. The STATE of Texas, Appellee.

No. 01–08–00138–CR.

Decided: October 11, 2012

Panel consists of Justices JENNINGS, KEYES, and HIGLEY. Mandy Goldman Miller, Michelle Ruth Townsend, Assistant District Attorney, Houston, TX, for James Blackman. Rosa Alexander Eliades, Eliades Law, Houston, TX, for The State of Texas.

OPINION

A jury found appellant, James Blackman, guilty of the offense of possession with the intent to deliver a controlled substance, namely cocaine,1 and assessed his punishment at confinement for thirty years. In three points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction and the trial court erred in denying his Batson2 challenge.

We previously held that the evidence is legally insufficient to support appellant's conviction for the offense of possession of a controlled substance with intent to deliver. Blackman v. State, 349 S.W.3d 10, 24 (Tex.App.-Houston [1st Dist.] 2009), rev'd, 350 S.W.3d 588 (Tex.Crim.App.2011). Having so held, we did not address appellant's second and third points of error. Id. The Texas Court of Criminal Appeals, concluding that legally-sufficient evidence supports appellant's conviction, reversed our judgment and remanded the case to us to address appellant's remaining points. Blackman v. State, 350 S.W.3d 588, 596 (Tex.Crim.App.2011). Additionally, we now review, in criminal cases, the factual sufficiency of the evidence under the same appellate standard of review as that for legal sufficiency. Ervin v. State, 331 S.W.3d 49, 52–55 (Tex.App.-Houston [1st Dist.] 2010, pet. ref d) (citing Brooks v. State, 323 S.W.3d 893, 894–913 (Tex.Crim.App.2010)). Accordingly, the only remaining point is appellant's Batson challenge.

We reverse and remand.

Background

During its voir dire, the State asked a series of questions of certain venire members who had indicated that they had previously served on a jury in a criminal case, including venire member number 6, Ms. J. Fortune. The State asked Fortune about the type of criminal case that she had served on, and she answered, “It was a case where the person was accused of breaking and entering in a building or something.” In response to further questioning, she stated that the case involved a burglary of a habitation and she had served on the jury “about three years ago.” When asked whether the jury had been “called in to assess punishment in the case,” Fortune replied, “No.” The State did not ask whether the jury had reached a verdict. When asked whether her prior jury service “would influence or impact [her] ability to be a fair and impartial juror in this case,” Fortune replied, “No.” The State did not direct any further questions to Fortune. During appellant's voir dire, Fortune agreed, along with other jurors who were questioned about the matter, that it was possible for a police officer to be untruthful on the witness stand. Appellant's counsel did not direct any further questioning to Fortune.

The State exercised one of its peremptory challenges to strike Fortune from the jury. Appellant objected and raised a Batson challenge to the State's strike. During the trial court's Batson hearing, which was conducted at the bench, appellant's counsel explained that Fortune is African American and, in the “initial panel[,] except for those blacks that were challenged for cause ․ there were only three blacks in the available group.” He explained that the State used two of its strikes to “eliminate” two of the three remaining African Americans from the jury. Appellant argued that there is “nothing in the record to indicate” that Fortune had expressed any bias and the fact that one of the remaining African–American venire members was seated on the jury did not excuse the State's conduct.

In response, the trial prosecutor explained that he struck Fortune based upon a “vibe” that he got from her in “trying to make eye contact.” He asserted that, before jury selection, Fortune had been “paying attention” to appellant's counsel “the whole time” and had “actually pointed” to the prosecutor “to tell” him that appellant's counsel wanted to “approach the bench.” The prosecutor also asserted that he became “troubled” by Fortune's responses to questions about her prior jury service. He explained that Fortune “was the only person who used the term that the defendant was accused of—I think burglary of a habitation for stealing something and then we went to the part whether or not she got a verdict or this as punishment she said they didn't.” (Emphasis added.) The prosecutor further explained:

I just got the feeling—by the way, she said the word accused that she felt like he was wrongfully. I got based on the tone she was the only person who described it as—everyone else when asked about it, they said it was a theft case or it was this case. So, that was what troubled me with regard to [Fortune]. As you can see, I placed Juror No. 24 [another African–American panel member] on the panel. There [are] other people I struck for similar reasons.

The trial court then asked the prosecutor who he had struck for similar reasons, and the prosecutor identified (1) a white male that he had struck because of a bad “feel[ing]” and a lack of trust, (2) a female that he had struck because of a bad “feel[ing],” (3) a white male that he had struck for a bad “vibe” and for responses to questions that the prosecutor “disliked,” and (4) a white male that he had struck because he “seemed to be engaging more” with appellant's counsel during voir dire.

Appellant's counsel remarked that he was “troubled” by the prosecutor's explanation for striking Fortune because a defendant actually stands “accused” of a criminal offense and is presumed innocent until proven guilty. Appellant's counsel also noted that the record did not indicate that the jury on which Fortune had previously served acquitted the defendant and, thus, the prosecutor's reasons for striking Fortune constituted a pretext.

In response to the trial court's further questioning of him, the prosecutor clarified his prior explanation, noting that Fortune had stated that she had not assessed punishment during her prior jury service. The prosecutor agreed that Fortune had not stated that the jury on which she had served had been unable “to reach a verdict.” He maintained, however, that the way in which Fortune had “phrased” her answer about her prior jury service caused him “hesitation” because she referred to the defendant in the prior case as the “accused.” When further asked by the trial court about Fortune's reference to the defendant in the prior case as an “accused,” the prosecutor explained,

I understand that, but it was the way in which she said it was and then the fact that they did not assess punishment. I listened to it, then it caused me hesitation to think in the tone of voice she said it, the way the eye contact that I was not getting with her, the eye contact [appellant's counsel] was getting with her, the way she said I felt like she insinuations in my mind was that the I was [sic] wrongfully accused. I don't know what happened, that's all I have to go from. And so, based on the information I have been given, that's why that was the concern and also coupled with it with fact [sic] that prior to if you recall prior to [appellant' counsel] starting up jury selection, she had looked at—she was apparently watching him just more which is concern of mine and then when they needed me to approach, I wasn't paying attention. She was looking at me and point to me saying that [appellant's counsel] wanted me. So, you know, I put those things together, and I just—that's where I come up with my concerns.

The trial court then denied appellant's Batson challenge without explanation.

Batson Challenge

In his third point of error, appellant argues that the trial court erred in overruling his Batson challenge to the State's use of a peremptory strike against Ms. Fortune3 because the State's reasons for striking her constituted a “pretext for racial bias.” He asserts that the State may not rely upon a bad “vibe” or a venire member's reference to the “accused” in a criminal case as race-neutral reasons for striking an African American from the venire.

The use of a peremptory challenge to strike a potential juror because of race violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986). It also violates Article 35.261 of the Texas Code of Criminal Procedure. Tex.Code Crim. Proc. Ann. art. 35.261 (Vernon Supp.2012). In Batson, the United States Supreme Court provided a three-step process for trial courts to use in adjudicating a claim that a peremptory challenge is based on racial discrimination. 476 U.S. at 96–98, 106 S.Ct. at 1723–24; see also Snyder v. Louisiana, 552 U.S. 472, 476–78, 128 S.Ct. 1203, 1207–08, 170 L.Ed.2d 175 (2008); Miller–El v. Cockrell, 537 U.S. 322, 328–29, 123 S.Ct. 1029, 1035, 154 L.Ed.2d 931 (2003); Watkins v. State, 245 S.W.3d 444, 447 (Tex.Crim.App.2008). First, a defendant must make a prima facie showing that the peremptory challenge has been exercised on the basis of racial discrimination. Cockrell, 537 U.S. at 328–29, 123 S.Ct. at 1035. Second, if the prima facie showing has been made, the State must offer a race-neutral explanation for the strike. Id. Third, the trial court must decide whether the defendant has shown purposeful racial discrimination. Id.; Grant v. State, 325 S.W.3d 655, 657 (Tex.Crim.App.2010).

On appeal, a trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous. Snyder, 552 U.S. at 477–78, 128 S.Ct. at 1207. The “critical question” in determining whether the opponent of a strike has proved “purposeful discrimination” is “the persuasiveness of the prosecutor's justification for his peremptory strike.” Cockrell, 537 U.S. at 338–39, 123 S.Ct. at 1040. The State must “stand or fall on the plausibility of [its] reasons” for striking a juror. Miller–El v. Dretke, 545 U.S. 231, 252, 125 S.Ct. 2317, 2332, 162 L.Ed.2d 196 (2005). The State's proffer of a “pretextual explanation naturally gives rise to an inference of discriminatory intent.” Snyder, 552 U.S. at 485, 128 S.Ct. at 1212. “[W]hen the State's explanation for striking a juror is clearly contrary to the evidence, ․ there is no innocent mistake,” and the case must be “reversed for Batson error.” Greer v. State, 310 S.W.3d 11, 16 (Tex.App.-Dallas 2009, no pet.).

On appeal, the State identifies the trial prosecutor's stated reasons for striking Fortune as follows: his alleged belief that the jury on which Fortune had previously served had not reached a verdict and her statement that the jury did not assess punishment; Fortune's “tone” and referral to the defendant in the prior case as the “accused”; and her overall bad “vibe,” eye contact, and demeanor with the prosecutor in contrast to her attentiveness to appellant's counsel (including the alleged incident in which she “point[ed]” out to the prosecutor that he was wanted at the bench).

There is no factual basis in the record to support the State's argument that the jury on which Fortune had previously served did not reach a verdict. As the trial prosecutor agreed in subsequent clarifying remarks during the Batson hearing, Fortune only stated, in response to a direct question from the prosecutor, that the jury did not assess punishment. The prosecutor asked essentially identical questions of venire members seven and eight regarding whether they had assessed punishment during their prior jury service. As did Fortune, both of these venire members, who were not African American, similarly stated that they had not assessed punishment during their prior jury service. Despite their nearly identical answers to the prosecutor's question, venire members seven and eight were seated on the jury. The State offers no explanation as to why its purported race-neutral reason for striking Fortune, based upon the fact that she did not assess punishment during her prior jury service, did not apply to striking these other venire members. We conclude that the State's purported race-neutral explanation, which changed during the Batson hearing and ultimately is not supported by the record, for striking Fortune based upon her prior jury service, was not genuine and was pretextual. Thus, it “naturally gives rise to an inference of discriminatory intent.” See Snyder, 552 U.S. at 485, 128 S.Ct. at 1212.

The other reasons provided by the State for striking Fortune generally relate to her purported bad “vibe,” i.e., the tone of her voice, lack of eye contact with the trial prosecutor, and her contrasting attentiveness to appellant's counsel. The United States Supreme Court has addressed a Batson challenge based, in part, on similar concerns expressed about a venire member's demeanor during voir dire. See Snyder, 552 U.S. at 477–78, 128 S.Ct. at 1208. In Snyder, the Court considered two purported race-neutral reasons offered by a prosecutor to explain the peremptory challenge of an African–American venire member. Id. The prosecutor explained that he had struck the African–American venire member because he appeared “nervous” and had conflicting obligations as a student-teacher. Id. In regard to the first stated reason of “nervousness,” the Court acknowledged the “pivotal role” of trial courts in evaluating Batson challenges, noting that a trial court “must evaluate not only whether the prosecutor's demeanor belies a discriminatory intent, but also whether the juror's demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.” Id. The Court explained that an appellate court must therefore defer to a trial court's determinations of credibility and demeanor “in the absence of exceptional circumstances.” Id. It emphasized that deference to the trial court “is especially appropriate where a trial judge has made a finding that an attorney credibly relied on demeanor in exercising a strike.” Id. at 479, 128 S.Ct. at 1209. However, the Court noted that the record in the case before it did not reflect that the trial court had “actually made a determination concerning” the challenged venire member's demeanor but instead had “allowed the challenge without explanation.” Id. Because the trial court could have relied upon the second proffered reason for the strike, which did not concern the challenged venire member's demeanor, the Supreme Court could not “presume” that the trial court had credited the demeanor explanation. Id.

The Supreme Court then considered the second reason for the strike, i.e., the venire member's conflicting obligations. The Court held that the record refuted the prosecutor's conflicting-obligations explanation, and it noted that the “suspicious” nature and “implausibility” of this explanation was “reinforced” by the fact that the prosecutor did not strike white venire members who had disclosed conflicting obligations similar to those expressed by the struck venire member. Id. at 482–83, 128 S.Ct. at 1210–11. The Court held that, in light of the circumstances and the absence of anything in the record to show that the trial court had credited the prosecutor's demeanor explanation, the trial court had clearly erred in denying the defendant's Batson challenge. Id. at 485–86, 128 S.Ct. at 1212.

Here, the trial court did not make a finding that the State had credibly relied on Fortune's demeanor or her bad “vibe” in exercising the peremptory challenge against her. In fact, the record reveals that the trial court, based upon Fortune's prior jury service, actually engaged her in questioning to illustrate legal concepts to the venire panel.4 This counters any suggestion that the trial court would have credited the State's explanation that Fortune was inattentive or was sending a bad “vibe” in the courtroom. And there is nothing in the record to indicate that Fortune favored appellant or appellant's counsel. See Davis v. Fisk Elec. Co., 268 S.W.3d 508, 518 (Tex.2008) (stating that “[p]eremptory strikes may legitimately be based on nonverbal conduct, but permitting strikes based on an assertion that nefarious conduct ‘happened,’ without identifying its nature and without any additional record support, would strip Batson of meaning”).5

The trial prosecutor did not ask any questions of Fortune indicating that he was concerned with her general “vibe,” demeanor, or attentiveness. See id. (stating that “[n]onverbal conduct or demeanor, often elusive and always subject to interpretation, may well mask a race-based strike”; “verification” of non-verbal conduct giving rise to use of peremptory strike “may come from the bench if the court observed it,” “may be proved by the juror's acknowledgement,” or may be borne out by “detailed explanations of counsel”; and complained-of conduct must “be proved and reflected in an appellate record” and identified “with some specificity”). The substance of all of Fortune's answers, including her use of the term “accused” to describe a criminal defendant in a prior case, is unremarkable. Fortune's answers to the other questions concerning her prior jury service are consistent with those offered by other non-African-American venire members who the State did not strike from the jury.

We must conclude that the State offered a pretextual reason for striking Fortune, giving rise to an adverse inference of racial discrimination. And, as in Snyder,6 we cannot presume that the trial court relied on the trial prosecutor's explanation that he struck Fortune as a result of her general demeanor or bad “Vibe.” See Snyder, 552 U.S. at 479–86, 128 S.Ct. 1209–12. Accordingly, we hold that the trial court clearly erred in denying appellant's Batson challenge to the State's use of a peremptory strike against Fortune.

Conclusion

We reverse the judgment of the trial court and remand for proceedings consistent with this opinion.

DISSENTING OPINION

The majority holds that the trial court erred in denying appellant James Blackman's Batson challenge to the State's use of a peremptory strike. I respectfully dissent. I would hold that the trial court did not err, and I would affirm the judgment of the trial court.

Appellant bases his Batson challenge on the State's peremptory strike of venire member J. Fortune, one of three African Americans in the available pool of potential jurors, one of whom was seated on the jury. Appellant contends, and the majority agrees, that the trial court erred in overruling his Batson challenge to the State's use of a peremptory strike against Fortune because the State's reasons for striking her constituted a “pretext for racial bias.” I strongly disagree.

In Batson, the United States Supreme Court held that using peremptory challenges to exclude persons from a jury because of their race violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 1717, 90 L.Ed.2d 69 (1986); Herron v. State, 86 S.W.3d 621, 630 (Tex.Crim.App.2002). Thus, in making a Batson challenge to the prosecution's exercise of a peremptory strike, “[t]he defendant must demonstrate, by a preponderance of the evidence, that the prosecutor indulged in purposeful discrimination against a member of a constitutionally protected class․” Watkins v. State, 245 S.W.3d 444, 447 (Tex.Crim.App.2008). First, the defendant must make a prima facie showing of racial discrimination. Id. (quoting Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 1770, 131 L.Ed.2d 834 (1995)). Second, if he does so, the burden of production shifts to the prosecutor to come forward with a race-neutral explanation for the strike. Id. Third, the trial court must determine whether the defendant has proved purposeful racial discrimination. Id. When the trial court goes directly to a Batson hearing on neutral reasons and conducts a full hearing, without making a finding on the prima facie showing of racial discrimination, the question of whether a prima facie case was made becomes moot, and the reviewing court addresses only the second and third steps in the analysis. Id. at 447 & n. 11. Thus, appellate review concentrates on the prosecutor's race-neutral explanation for the peremptory strike and the defendant's rebuttal of the prosecutor's explanation by a preponderance of the evidence. See id.

“[T]he question presented at the third stage of the Batson inquiry is ‘whether the defendant has shown purposeful discrimination.’ “ Snyder v. Louisiana, 552 U.S. 472, 484–85, 128 S.Ct. 1203, 1212, 170 L.Ed.2d 175 (2008) (quoting Miller–El v. Dretke, 545 U.S. 231, 277, 125 S.Ct. 2317, 2346, 162 L.Ed.2d 196 (2005) (Thomas, J., dissenting)). At this step, “[t]he trial court has a pivotal role in evaluating Batson claims.” Id. at 477, 128 S.Ct. at 1208. This step involves an evaluation of the prosecutor's credibility, and “the best evidence [of discriminatory intent] often will be the demeanor of the attorney who exercises the challenge.” Id. (quoting Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 1869, 114 L.Ed.2d 395 (1991) (plurality opinion)). “In addition, race-neutral reasons for peremptory challenges often invoke a juror's demeanor (e.g., nervousness, inattention), making the trial court's first-hand observations of even greater importance.” Id. In such a case, the trial court must evaluate “not only whether the prosecutor's demeanor belies a discriminatory intent, but also whether the juror's demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor․ [T]hese determinations of credibility and demeanor lie ‘peculiarly within a trial judge's province.’ “ Id. (quoting Hernandez, 500 U.S. at 365, 111 S.Ct. at 1869). Thus, except in “exceptional circumstances,” the reviewing court defers to the trial court. Id.

“[A] reviewing court should examine a trial court's conclusion that a facially race-neutral explanation for a peremptory challenge is genuine, rather than a pretext, with great deference, reversing only when that conclusion is, in view of the record as a whole, clearly erroneous.” Watkins, 245 S.W.3d at 448. An appellate court misapplies the “clearly erroneous” standard of appellate review when it substitutes its judgment for that of the trial court in deciding that the prosecutor's facially race-neutral explanation for striking a venire member was a pretext. Gibson v. State, 144 S.W.3d 530, 534 (Tex.Crim.App.2004). This is because “[t]he term ‘pretext’ is solely a question of fact; there is no issue of law.” Id. Thus, “the trial court [is] in the best position to make that credibility determination.” Id. To make the determination of whether the prosecutor's race-neutral explanation for his strike was a pretext, the reviewing court should consider the entire voir dire record, not merely those arguments or considerations the parties specifically called to the trial court's attention. Watkins, 245 S.W.3d at 448.

The trial court's factual findings are presumed to be sound unless the defendant rebuts the presumption of correctness by clear and convincing evidence. Id. at 448 n. 16 (quoting Miller–El, 545 U.S. at 240, 125 S.Ct. at 2325).

The Court of Criminal Appeals has cautioned,

The [United States] Supreme Court also clarified [in Miller–El v. Dretke ] that reviewing courts must take the proponent of a peremptory challenge at his word when he identifies a race-neutral explanation for his challenge. If that explanation proves circumstantially suspect, the reviewing court is not to supply some other plausible, race-neutral basis for the challenge. “If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.”

Id. at 449 n. 19 (quoting Miller–El, 545 U.S. at 252, 125 S.Ct. at 2332). By the same reasoning, if the prosecutor identifies a race-neutral explanation for his challenge to a venire member that the trial court does not find circumstantially suspect, the trial corut's finding of racial neutrality does not fade into insignificance because an appellate court can imagine a reason that the prosecutor's explanation for the strike might have been false. Rather, the defendant must rebut the trial court's findings by “clear and convincing evidence.” Miller–El, 545 U.S. at 240, 125 S.Ct. at 2325; Watkins, 245 S.W.3d at 448.

Here, in direct contravention of the standard of review, the majority substitutes itself for the trial court in deciding that the prosecutor's facially race-neutral explanation for striking venire member Fortune was a pretext. See Gibson, 144 S.W.3d at 534 (holding that appellate court misapplied “clearly erroneous” standard of review when it substituted its judgment for trial court's in deciding that prosecutor's facially race-neutral reason for striking veniremember was pretext). Rather than accepting the trial court's finding that the prosecutor's reasons for striking Fortune were valid and race-neutral, and rather than requiring that the defendant rebut the presumption of correctness by clear and convincing evidence, the majority indulges its own presumption of incorrectness, essentially dismissing the prosecutor's explanation for striking Fortune out of hand. And, rather than allowing the trial court to make the factual determination as to whether the prosecutor's stated reasons for the strike were a “pretext,” the majority ignores the express finding of the trial court that the prosecutor's reasons for the strike were racially neutral. Instead, it determines for itself, based on its own evaluation of the prosecutor's and Fortune's credibility from its review of the evidence, that the prosecutor's peremptory strike of Fortune was motivated by racial discrimination.

The majority treats the prosecutor's stated reasons for striking Fortune with incredulity throughout its opinion, in direct opposition to the mandate of Watkins that it “should examine a trial court's conclusion that a facially race-neutral explanation for a peremptory challenge is genuine, rather than a pretext, with great deference.” Watkins, 245 S.W.3d at 448. It characterizes the prosecutor's “stated reasons” for striking Fortune with caveats and quotation marks:

his alleged belief that the jury on which Fortune had previously served had not reached a verdict and her statement that the jury did not assess punishment; Fortune's “tone” and referral to the defendant in the prior case as the “accused”; and her overall bad “vibe,” eye contract, and demeanor with the prosecutor in contrast to her attentiveness to appellant's counsel (including the alleged incident in which she “point[ed]” out to the prosecutor that he was wanted at the bench).

Slip Op. at 8. It then declares, “There is no factual basis in the record to support the State's argument that the jury on which Fortune had previously served did not reach a verdict.” Slip Op. at 8.

The majority's characterization of the prosecutor's testimony and its implied conclusion that that testimony is not based on fact can only have been intended to support the majority's substitution of its own evaluation of the credibility of the prosecutor for that of the trial court, in contradiction of the standard of review. See Gibson, 144 S.W.3d at 534; see also Snyder, 552 U.S. at 477, 128 S.Ct. at 1208 (stating that step three requires evaluation of prosecutor's credibility, of which best evidence is often demeanor of prosecutor, as well as venire member's demeanor, “making the trial court's first-hand observations of even greater importance”). The majority then reasons, “The prosecutor asked essentially identical questions of [white] venire members 7 and 8 regarding whether they had assessed punishment during their prior jury service,” and, “[d]espite their nearly identical answers to the prosecutor's question,” seated them on the jury. The majority concludes that “the State's purported race-neutral explanation, which changed during the Batson hearing and ultimately is not supported by the record, for striking Fortune based upon her prior jury service, was not genuine and was pretextual” and, therefore, “naturally gives rise to an inference of discriminatory intent.” Slip Op. at 9 (quoting Snyder, 552 U.S. at 485, 128 S.Ct. at 1212). It then simply dismisses the reasons relating to Fortune's demeanor that the State actually gave for striking Fortune, including, as the majority puts it, “her purported bad ‘vibe,’ i.e., the tone of her voice, lack of eye contact with the trial prosecutor, and her contrasting attentiveness to appellant's counsel .” Slip Op. at 9.

In substituting itself as fact-finder for the Batson inquiry, the majority completely ignores the purpose of the exchange between the prosecutor and the trial court at the Batson hearing, during which the trial court evaluated the prosecutor's demeanor and credibility. When asked for his race-neutral reasons for striking Fortune, the prosecutor referenced the aspects of Fortune's demeanor the majority sets out and then stated,

For example, before we started jury selection when [appellant's counsel] wanted me to approach the bench, [Fortune] was paying attention to him the whole time and then actually pointed me out to tell me that he wanted me. That of and in itself isn't that big of a deal but then coupled when she was asked about her prior jury service, I was troubled because she was the only person who used the term that the defendant was accused of—I think burglary of habitation for stealing something and then we went to the part whether or not she got a verdict or this as punishment she said they didn't. I just got the feeling—by the ways, she said the word accused that she felt like he was wrongfully. I got based on the tone she was the only person who described it as—everyone else when asked about it, they said it was a theft case or it was this case. So, that was what troubled me with regard to Juror No. 6․ [Y]ou can see, I placed Juror No. 24 on the panel. There [are] other people I struck for similar reasons.

The court then asked who the other jurors were whom he struck “for similar reasons,” and the prosecutor responded with references to jurors number one (a white male), eleven (an African–American female), twelve (a white female), thirty-three (a white male), and forty-two (a white male), referencing the similarities in their demeanor to that of Fortune.

After the prosecutor explained his reasons for the strike, the trial court recognized appellant's counsel for rebuttal. Appellant's counsel returned to the prosecutor's statement that he was troubled by Fortune's calling the defendant in the prior case in which she served as a juror “the accused,” and he reminded the court that everyone is innocent until proved guilty. The trial court then questioned the prosecutor more closely about the defense's objection to the strike, and the prosecutor emphasized in his answer that it was not just the fact that the jury had not assessed punishment that caused him to strike Fortune, but “the way she phrased it” and “the tone of voice she said it, the way the eye contact that I was not getting with her, the eye contact [defense counsel] was getting with her, the way she said I felt like she insinuations in my mind was that the I was wrongfully accused [sic].” Also, she had been “watching [defense counsel] just more which is [a] concern of mine,” and she had pointed to the prosecutor to approach the bench when he was not paying attention, “saying that [defense counsel] wanted me. So, you know, I put those things together; and I just—that's where I come up with my concerns.”

After listening to the prosecutor's explanation, the trial court—an experienced and highly respected African–American female criminal district court judge—immediately found on the record “that the State has offered race neutral reasons for exercising their strikes [on] Venireman No. 6 [Fortune] and No. 11,” and she denied the defense's Batson motion. The majority states, however, that “[t]he trial court then denied appellant's Batson challenge without explanation,” and “the trial court did not make a finding that the State had credibly relied on Fortune's demeanor or her bad ‘vibe’ in exercising the peremptory challenge against her .” Slip Op. at 6. In fact, the trial court did expressly find on the record that the State had “offered race neutral reasons” for exercising a peremptory strike on Fortune.

Having made the incorrect statement that the trial court denied appellant's Batson challenge without explanation, the majority continues its substitution of itself for the trial court in the Batson inquiry, stating in the next sentence, “In fact, the record reveals that the trial court, based upon Fortune's prior jury service, actually engaged her in questioning to illustrate legal concepts to the venire panel.” It concludes, “This counters any suggestion that the trial court would have credited the State's explanation that Fortune was inattentive or was sending a bad ‘vibe’ in the courtroom.” Slip Op. at 11–12.

Both the majority's statement that the trial court did not make a finding on Fortune's credibility and its statement that the trial court “actually” engaged Fortune “to illustrate legal concepts to the venire panel” serve only to justify its own evaluation of the prosecutor's credibility and its complete lack of deference to the trial court's evaluation and ruling by showing what the trial court “really” thought about Fortune, and thus to justify its rejection of the trial court's finding that the prosecutor's reasons for striking Fortune were race neutral. In short, the majority imagines a plausible reason for the trial court to have ruled other than it did on the defendant's Batson challenge, in contradiction of the standard set out in Miller–El, Gibson, and Watkins, which forbids the reviewing court from substituting itself for the trial court in the third step of the Batson inquiry. See Miller–El, 545 U.S. at 252, 125 S.Ct. at 2332; Watkins, 245 S.W.3d at 449 n. 19; Gibson, 144 S.W.3d at 534.

Moreover, the majority bases its imagined reason for reaching a ruling contrary to the ruling of the trial court on a misleading representation of the record. The trial court did not engage Fortune “to illustrate legal concepts” to the venire in order to show its approbation of her as a potential juror capable of instructing the others, as the majority implies. Instead, the trial court conducted the initial voir dire before turning it over to counsel for the parties. In that period, at the beginning of voir dire, the court posed a hypothetical situation to the venire in which she asked the venire members to suppose that “[t]he State called 50 witnesses. The other side had a chance to ask questions and didn't do so. So, everything those 50 people had to say must be the truth. I am going to find this guy guilty in no time flat and be on my way home.” The court then asked, “Ms. Fortune, since you've been on a jury before, do you think that's the right approach the jury should take in that circumstance?” When Fortune replied, “No, Your Honor,” the court asked, “Why?” Upon receiving the answer, “Because the evidence has to prove beyond a reasonable doubt,” the court probed further and then asked another juror, “What do you think about that?” Getting the answer, “I agree,” the court asked that juror further questions and then thanked both and explained the jury's function to the venire. It is extremely misleading to imply, as the majority does, that the trial court, having heard Fortune's answer to the prosecution's questions about her jury service during voir dire, then turned to Fortune with approbation of her legal knowledge and experience as a juror as illustrative of proper juror behavior for the other venire members.

Unlike the majority, I do not conclude that Fortune's answers to questions about what the State would have to prove for her to find the defendant guilty to be mere questioning to illustrate legal concepts. I take the trial court's questioning of Fortune to be its examination of her to determine what jurors who had previously served thought the role of a juror was. That questioning offered the trial court the opportunity to hear Fortune's answers and to observe her demeanor in answering them, just as the rest of the voir dire offered the trial court the opportunity to witness all the potential jurors' answers and demeanor, along with that of counsel for both sides. Thus, the questioning, among other things, allowed the court to develop a basis for determining the constitutional validity of a peremptory strike, should a Batson challenge be made. Likewise, the Batson hearing itself offered the trial court the opportunity to evaluate the demeanor and credibility of the prosecutor and to determine whether his concerns about Fortune were valid or motivated by purposeful discrimination. See Snyder, 552 U.S. at 477, 484–85, 128 S.Ct. at 1208, 1212 (holding that question presented at third step of Batson inquiry is “whether the defendant has shown purposeful discrimination,” and “best evidence” is often demeanor of attorney who exercised strike).

The fact that the trial court overruled the defendant's Batson challenge following questioning of the prosecutor in response to rebuttal argument by defense counsel indicates to me that the trial court satisfied herself that the State's concerns about Fortune were justified in light of the court's own observations and the answers to her questions both before and during the Batson hearing. Because the State also struck other potential jurors, both black and white, male and female, for similar reasons and seated one of three available black jurors on the jury, and nothing indicates that the trial court was not in a position to evaluate the demeanor and credibility of both the prosecutor and Fortune, I would defer to the trial court's ruling. I see absolutely no “exceptional circumstances” that would justify overruling the trial court's determination regarding the propriety of the strike based on Fortune's demeanor in answering the State's questions during voir dire under the circumstances of this case. See Snyder, 552 U.S. at 477, 128 S.Ct. at 1208.

I would overrule appellant's third issue, urging his Batson challenge, and I would affirm the judgment of the trial court.

TERRY JENNINGS, Justice.

Justice KEYES, dissenting.

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