Blackman v. State

• Citation: 414 S.W.3d 757
• Decision Date: 11 December 2013
• Docket Number: No. PD–1575–12.,PD–1575–12.
• Parties: James BLACKMAN, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

414 S.W.3d 757

James BLACKMAN, Appellant

v.The STATE of Texas.

No. PD–1575–12.

Court of Criminal Appeals of Texas.

Dec. 11, 2013.

Rosa A. Eliades, Houston, TX, for Appellant.

Jessica Akins, Assistant District Attorney, Houston, TX, Lisa C. McMinn, State's Attorney, Austin, for The State of Texas.

OPINION

PRICE, J., delivered the opinion of the Court in which KELLER, P.J., and MEYERS, WOMACK, JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ., joined.

A jury convicted the appellant of the felony offense of possession with intent to deliver cocaine in an amount over 400 grams.¹ The trial court assessed his punishment at thirty years' confinement in the penitentiary. ² The appellant—an African–American himself—argued on appeal that the trial court erred to overrule his objection that the State used a peremptory challenge to strike an African–American prospective juror from service on his petit jury in violation of Batson v. Kentucky.³ The court of appeals agreed,⁴ finding that at least one of the prosecutor's purported explanations for the peremptory challenge was a pretext for racial discrimination, and reversed the appellant's conviction on authority of the United States Supreme Court's 2008 opinion in Snyder v. Louisiana.⁵ We granted the State's petition for discretionary review to examine the propriety of the court of appeals's reliance upon Snyder on the particular facts of this case. We now reverse.

FACTS AND PROCEDURAL POSTURE

The Peremptory Strike

Of the three African–American prospective jurors who were not successfully challenged for cause, the State peremptorily struck two, including Juror Number 6, Janina Louise Fortune. Early in the voir dire of the sixty-five-member jury panel, Fortune voluntarily responded to the trial court's pedagogical question regarding the State's burden to prove its case beyond a reasonable doubt—but not beyond all “possible doubt.” ⁶ Fortune affirmed that she would not inappropriately “raise the State's burden of proof.” Later, during his portion of the group voir dire, the prosecutor did not speak individually with Fortune. The appellant's counsel, on the other hand, engaged her in the following colloquy:

[DEFENSE COUNSEL]: Now, what I want to do is just go over there briefly on a number of you have indicated that you have had a prior criminal jury service. And those are the people I want to address just very, very briefly starting on row one.

The first one I have is Juror No. 6, Ms. Fortune?

VENIREPERSON: That's correct.

[DEFENSE COUNSEL]: Ma'am, what kind of case did you serve on?

VENIREPERSON: It was a case where the person was accused of breaking and entering in a building or something.

[DEFENSE COUNSEL]: Okay, was that a burglary of a habitation?

VENIREPERSON: Habitation.

[DEFENSE COUNSEL]: So, burglary of a habitation?

VENIREPERSON: Yes.

[DEFENSE COUNSEL]: How long ago was that, ma'am?

VENIREPERSON: About three years ago.

[DEFENSE COUNSEL]: Did your jury reach a verdict?

VENIREPERSON: We did.

[DEFENSE COUNSEL]: Okay, without telling me what the verdict was, was the jury called in to assess punishment in that case?

VENIREPERSON: No.

[DEFENSE COUNSEL]: Okay. Anything about that incident, that jury service that would influence or impact on your ability to be a fair and impartial juror in this case?

VENIREPERSON: No.⁷

Defense counsel subsequently engaged in a substantially similar colloquy with all thirteen of the other prospective jurors who had indicated on their juror questionnaires that they had previously served on a jury in a criminal case, asking each in turn whether they had “reach[ed] a verdict” and whether they had been “called upon to assess punishment.”

After their challenges for cause were ruled upon, the parties submitted their respective peremptory strike lists. The prosecutor struck Fortune and one other African–American, leaving the third African–American to serve on the appellant's jury. Once the names of all the jurors were called out but before the jury was collectively sworn in, defense counsel requested a bench conference, at which he made his Batson objection. When the trial court asked the prosecutor to respond, the following dialogue ensued:

[PROSECUTOR]: ... As for Juror No. 6, when we started based on the vibe I got from Juror No. 6, in trying to make eye contact, I just didn't feel like I had the same vibe that she had. For example, before we started jury selection when [defense counsel] wanted me to approach the bench, she 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 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 regards to Juror No. 6. As you can see, I placed Juror No. 24 on the panel. There is other people I struck for similar reasons.

THE COURT: For similar reasons, who?

[PROSECUTOR]: Well, for example, Juror No. 1. In talking to Juror No. 1, I didn't get a good feel for Juror No. 1. He's a white male. While he answered all the questions appropriately, there was responses in the way he answered that I didn't feel like I totally trusted him, so I struck him. Moving down to Juror No. Which was 11, Juror No. 11, we talked about Juror No. 12 that she indicated she can be fair. She could follow the law. But the way she was talking about things, I did not get a good feel for her. So, I struck her. Juror No. twelve. Going to Juror No. 33, while he didn't say anything, that was reason for cause. Juror No. 33 is a white male. I did not like the vibe I was getting from Juror No. 33. I didn't like the way he had responded to questions, so I struck Juror No. 33. Moving to Juror No. 42, another white male who answered all the questions appropriately, he seemed to be engaging more in what Mr. Nunnery was saying than others were saying, so based on that, I struck Juror No. 42. So, those are the reasons.

THE COURT: [Defense Counsel].

[DEFENSE COUNSEL]: With respect to Juror No. 6 again, I am troubled by the explanation I guess one is a citizen accused until he is convicted. So if—and I don't have a note here that said she said that it's was an acquittal, notwithstanding that if there was wasn't a conviction [Defense Counsel] a person is presumed to be innocent. So, her saying it is accused, I thinks it's absolutely reaching that is if one of those, Judge, I think twelve I didn't get a feel for that can be quantified or verified in this record.

Again, there is nothing that juror said about prior service that she indicated in any way ever adversely affect their ability to be a fair and impartial juror in this case. Obviously, I can't question going forward any of our other feelings that is very subjective. And personally to you but Judge, that's a pretext. To eliminate jurors who deny my client his right but also her right to serve.

THE COURT: I do recall Juror No. 6 indicating that she had prior jury service. Did she, in fact, say that the jury was not able to reach a verdict?

[PROSECUTOR]: She said they did not assess punishment. She didn't say they weren't able to reach a verdict, but the way she phrased it was they caused me hesitation because said he was accused of breaking into, stealing something, whatever.

THE COURT: [Defense Counsel]'s point, everyone accused.

[PROSECUTOR]: I understand that, but it was the way in which she said 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 he was getting with her, the way she said I felt like she insinuations in my mind that the I was 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 way that was the concern and also coupled it with the fact that prior to if you recall prior to [Defense Counsel] right 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 he wanted me. So, you know, I put those things together; and I just—that's where I come up with my concerns.

THE COURT: Anything else, [Defense Counsel]?

[DEFENSE COUNSEL]: No, Your Honor.

THE COURT: The Court deny's the defense's Motion. The Court finds that the State has offered race neutral reasons for exercising their strikes and Venireman No. 6 and No. 11. And the Court will deny the Batson, the defense Batson challenge.⁸

On Appeal

In sustaining the appellant's Batson claim on appeal, the court of appeals set out the facts and governing legal principles and then began its analysis with the following observation:

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 [the] appellant's counsel (including the alleged incident in which she “point [ed]” out to the prosecutor that he was wanted at the bench).⁹

Focusing on the first identified basis for the prosecutor's...