Brewer v. State

• Decision Date: 13 June 1996
• Docket Number: No. 08-94-00253-CR,08-94-00253-CR
• Citation: 932 S.W.2d 161
• Parties: Walter BREWER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 161

932 S.W.2d 161

Walter BREWER, Appellant, v. The STATE of Texas, Appellee.

No. 08-94-00253-CR.

Court of Appeals of Texas,

El Paso.

June 13, 1996.

John Hagler, Dallas, for Appellant.

John Vance, Criminal Dist. Atty., Dallas, for State.

Before LARSEN, McCLURE and CHEW, JJ.

OPINION

McCLURE, Justice.

Walter Brewer appeals his conviction for the offense of possession of cocaine, enhanced by two prior felony convictions. The jury found Appellant guilty; the trial court found both enhancement paragraphs true and assessed punishment at imprisonment for a term of 45 years in the Texas Department of Criminal Justice, Institutional Division. We affirm.

BATSON CHALLENGE

In Point of Error No. One, Appellant contends the trial court erred in overruling his objection to the State's use of a peremptory challenge to exclude an African-American veniremember, Reginald Peoples, from the jury. Under Batson v. Kentucky, the defendant is required to make a prima facie showing by raising an inference of purposeful discrimination on the part of the prosecuting attorney. Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986); Belton v. State, 900 S.W.2d 886, 897 (Tex.App.--El Paso 1995, pet. ref'd). Once the accused establishes a prima facie case of racially motivated strikes, the burden of production shifts to the State to provide a race-neutral explanation. Emerson v. State, 851 S.W.2d 269, 271-72 (Tex.Crim.App.1993); Calderon v. State, 847 S.W.2d 377, 382 (Tex.App.--El Paso 1993, pet. ref'd). In this context, a race-neutral explanation means one based on something other than the race of the juror. Hernandez v. New York, 500 U.S. 352, 358-60, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991); Francis v. State, 909 S.W.2d 158, 162 (Tex.App.--Houston [14th Dist.] 1995, no pet. h.). It must relate to the particular case to be tried, but need not rise to the level justifying exercise of a challenge for cause. Batson, 476 U.S. at 97, 98, 106 S.Ct. at 1723, 1724; Francis, 909 S.W.2d at 162. Moreover, the explanation need not be persuasive, or even plausible. Purkett v. Elem, 514 U.S. ----, ----, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995); Francis, 909 S.W.2d at 162. The issue here is the facial validity of the prosecutor's explanation. Purkett v. Elem, --- U.S. at ----, 115 S.Ct. at 1771; Francis, 909 S.W.2d at 162. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral. Id.

If the prosecutor's explanation is facially valid, the burden of production shifts back to the accused to establish by a preponderance of the evidence that the reasons given were merely a pretext for the State's racially motivated use of its peremptory strikes. Salazar v. State, 818 S.W.2d 405, 409 (Tex.Crim.App.1991); Calderon, 847 S.W.2d at 382. The defendant must do more than simply state his disagreement with some of the State's explanations; he must prove affirmatively that the State's race-neutral explanations were a sham or pretext. Davis v. State, 822 S.W.2d 207, 210 (Tex.App.--Dallas 1991, pet. ref'd); Straughter v. State, 801 S.W.2d 607, 613 (Tex.App.--Houston [1st Dist.] 1990, no pet.).

In reviewing the findings of the trial court on Batson issues, this Court follows the clearly erroneous standard. Emerson, 851 S.W.2d at 273; Vargas v. State, 838 S.W.2d 552, 554 (Tex.Crim.App.1992); Davis, 822 S.W.2d at 210. We must analyze the decision of the trial court by reviewing the record in its entirety and by considering the voir dire process, including the make-up of the venire, the prosecutor's explanation, and the defendant's rebuttal and impeachment evidence. Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Crim.App.1990)(opinion on reh'g); Davis, 822 S.W.2d at 210. We examine the record in the light most favorable to the trial court's rulings. Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App.), cert. denied, 501 U.S. 1239, 111 S.Ct. 2875, 115 L.Ed.2d 1038 (1991); Davis, 822 S.W.2d at 210. It is incumbent upon Appellant, if he is to be successful, to provide a record illustrating that the trial judge's findings are clearly erroneous. Williams, 804 S.W.2d at 101; Mata v. State, 867 S.W.2d 798, 805 (Tex.App.--El Paso 1993, no pet.); see also Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App.1992); Wyle v. State, 836 S.W.2d 796, 797 (Tex.App.--El Paso 1992, no pet.).

The prosecutor provided explanations for the State's use of its peremptory challenges against certain African-American venirepersons and an Hispanic venireperson. ¹ He stated that he attempted to identify educated upper-class individuals or "at least folks that had some degree of education," and he struck Mr. Peoples because he is employed as a route driver for the City of Mesquite. He also found Mr. Peoples to be "slow" in his responses during voir dire. Other than his cross-examination of the prosecutor, Appellant offered no evidence in support of his Batson challenge.

Appellant argues that the State failed to carry its burden of proof by providing a reasonably clear, specific, and legitimate race-neutral explanation. The difficulty with this argument is that it combines the second and third steps of the Batson inquiry. In Purkett v. Elem, the United States Supreme Court reiterated that the burden of proving purposeful discrimination rests always with the party challenging his opponent's use of peremptory strikes. See Purkett v. Elem, --- U.S. at ----, 115 S.Ct. at 1771. It is error for an appellate court to combine the second step of a Batson inquiry, in which a challenged party offers race-neutral reasons for the challenged peremptory strikes, with the third step, in which the court determines whether the challenging party has carried his burden of proving purposeful discrimination. Id. Therefore, we will not consider the legitimacy of the explanation in determining whether the State carried its burden of providing a race-neutral explanation.

The prosecutor explained that he struck Peoples because of his occupation or position of employment and he seemed "slow" in his responses during voir dire. These explanations are related to the type of juror the prosecutor was seeking for this particular jury, that is, intelligent or educated individuals. Given Appellant's cross-examination of the prosecutor, the parties understood the prosecutor's reference to "slow" to mean slow-witted or possessing below-average intelligence. Lack of education or below-average intelligence has been held to be a race-neutral explanation for exercising a peremptory challenge. See Holt v. State, 912 S.W.2d 294, 299-300 (Tex.App.--San Antonio 1995, pet. ref'd); Godine v. State, 874 S.W.2d 197, 205 (Tex.App.--Houston [14th Dist.] 1994, no pet.). See also Jones v. State, 818 S.W.2d 532, 535 (Tex.App.--Houston [1st Dist.] 1991, no pet.). Further, the prosecutor's explanation that he struck Peoples because of his occupation is also race-neutral. Davis, 822 S.W.2d at 211 (a venireperson's occupation may serve as a race-neutral explanation for striking that venireperson); York v. State, 764 S.W.2d 328, 331 (Tex.App.--Houston [1st Dist.] 1988, pet. ref'd)(striking minority venireperson due to her occupation as a social worker is race-neutral explanation). For these reasons, the State met its burden of production and rebutted Appellant's prima facie case of purposeful discrimination. Appellant's first argument is without merit.

We will next consider whether Appellant carried his burden of establishing that the prosecutor's explanation is a sham or pretext. Appellant first argues that the record does not reflect that Peoples was "slow" in his responses to questions during voir dire. In recording the veniremembers' responses to questions, the court reporter did not identify them by name and referred to them only as "Prospective Juror." Thus, we are unable to determine whether or not the prosecutor directed questions at Peoples or whether his responses reflect that he was slow-witted or less intelligent than other prospective jurors. Whether a veniremember is sufficiently "intelligent" to serve as a juror for a particular case is a subjective evaluation on the part of the party exercising the strike and applies to all prospective jurors. Holt, 912 S.W.2d at 299. The capability of jurors to understand the complexities of a particular case is relevant to the facts of any case. Holt, 912 S.W.2d at 299-300. Jurors must be capable of intelligently considering the evidence and following the court's instructions. Holt, 912 S.W.2d at 300. Because of the clues which voice inflection, expression and appearance provide, great deference must be given to the trial judge's impressions in this area. Holt, 912 S.W.2d at 299. Since the record does not demonstrate that this explanation is a sham or pretext, Appellant's argument is without merit.

Appellant next points out that the prosecutor exercised a peremptory challenge against Lauren Henderson, a white college student, but did not strike Timothy Jones, who is an African-American venireperson employed as a maintenance man with DART. He argues that if education level or position of employment were a legitimate reason for exercising peremptory challenges, the prosecutor would have struck Jones, but not Henderson. The prosecutor explained that he struck Henderson because she is a student and based upon her responses during voir dire. Appellant did not cross-examine the prosecutor about Henderson's responses which concerned him, and the record does not otherwise reflect which answers are hers. Consequently, we are unable to conclude that his explanation for striking her is illegitimate. Further, Appellant did not cross-examine the prosecutor about his decision to retain Jones despite his possible lack of education or position of employment. Because the record fails to establish that the prosecutor's explanation is a sham or pretext, the trial court's decision to overrule the Batson challenge...