Moore v. State, 01-89-01120-CR

• Decision Date: 16 May 1991
• Docket Number: No. 01-89-01120-CR,01-89-01120-CR
• Parties: Sheddrick Jarrod MOORE, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 197

811 S.W.2d 197

Sheddrick Jarrod MOORE, Appellant, v. The STATE of Texas, Appellee.

No. 01-89-01120-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

May 16, 1991.

Rehearing Overruled June 6, 1991.

Published in Part Pursuant to Tex.R.App.P. 90.

Discretionary Review Refused

Sept. 25, 1991.

Peter Lewis, Houston, for appellant.

John B. Holmes, Harris County Dist. Atty., Alan Curry, Di Glaser, Asst. Harris Co. Dist. Attys., for appellee.

Before DUNN, BASS and HUGHES, JJ.

OPINION

DUNN, Justice.

A jury found appellant, Sheddrick Jarrod Moore, guilty of possession of a controlled substance, namely cocaine, and assessed punishment, enhanced by one prior felony conviction, at 30 years confinement.

In his third point of error, appellant contends that the trial court erred in failing to quash the jury panel. Specifically, appellant contends that the prosecutor systematically used her peremptory challenges to strike all black venirepersons from the jury panel.

A prosecutor is prohibited by the fourteenth amendment from striking potential jurors solely on the basis of their race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1718-19, 90 L.Ed.2d 69 (1986). A defendant can make out a prima facie case that the prosecutor's use of her peremptory strikes was racially motivated. Id. at 96, 106 S.Ct. at 1722-23. To establish a prima facie case: 1) the defendant must show that he is a member of cognizable racial group and that the prosecutor exercised her peremptory challenges to remove members of the defendant's race from the venire; 2) the defendant is entitled to rely on the undisputed fact that peremptory challenges constitute a jury selection practice that permits " 'those to discriminate who are of a mind to discriminate' "; and 3) the defendant must show the facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude venirepersons from the jury on account of their race. Id.

After the prosecutor exercised her peremptory challenges, the trial court took judicial notice that appellant was black and that no member of the jury was black. Appellant then objected to the prosecutor's use of peremptory challenges to eliminate every black venireperson. The trial court took judicial notice that venirepersons three, seven, and 30 were the only black members of the venire who were not struck for cause. Appellant moved to quash the entire jury panel under the U.S. CONST. amends. VI and XIV and Batson. The trial court then found that appellant had made a prima facie case that the prosecutor's use of her peremptory challenges was discriminatory and held a Batson hearing. We find the trial court's finding was supported by the record. See Jones v. State, 795 S.W.2d 32, 34 (Tex.App.--Houston [1st Dist.] 1990, no pet.) (when appellant stated, without correction or contradiction, that appellant was black and the prosecutor used peremptory challenges to eliminate four black venirepersons, appellant established a prima facie case of discrimination in the use of peremptory strikes); Allen v. State, 751 S.W.2d 931, 934 (Tex.App.--Houston [1st Dist.] 1988, no pet.) (trial court did not err in finding appellant made prima facie case where appellant established he was black, and prosecutor used peremptory strikes to eliminate four of six black venirepersons).

After the defendant demonstrates a prima facie case, the burden shifts to the prosecutor to show racially neutral reasons for the exercise of her strikes. Batson, 476 U.S. at 97, 106 S.Ct. at 1723. The prosecutor's explanations for the use of her strikes need not rise to the level of justifying a challenge for cause, but the prosecutor must articulate a racially neutral explanation related to the particular case. Id. at 97-98, 106 S.Ct. at 1723-24.

In the present case, the trial court found that the prosecutor offered racially neutral reasons for the exercise of her peremptory challenges and denied appellant's motion to quash the jury panel.

An appellate court reviews the record with "great deference" to the trial court to determine whether the trial court's ruling on a Batson issue was "clearly erroneous." Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Crim.App.1989) (op. on reh'g). An appellate court should not substitute its judgment on witnesses' credibility and the weight of the evidence for the judgment of the trial court. Tompkins v. State, 774 S.W.2d 195, 202 (Tex.Crim.App.1989), aff'd, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989).

The prosecutor indicated that she struck venireperson seven because, when appellant's counsel asked the venire if anyone was racially biased, venireperson seven laughed, began to raise her hand, and moved to get up. The prosecutor felt that venireperson seven's response indicated she was either racially biased or she thought it was a funny question. Furthermore, she appeared hesitant when answering the prosecutor's questions.

The prosecutor's explanation for striking venireperson seven was racially neutral. See Hawkins v. State, 793 S.W.2d 291, 294-95 (Tex.App.--Dallas 199, pet. ref'd) (trial judge's ruling that prosecutor's use of peremptory challenge was racially neutral was not error when prosecutor stated that venireperson made physical gestures that indicated to prosecutor she was not happy with either prosecutor or law); Levy v. State, 749 S.W.2d 176, 178 (Tex.App.--Houston [14th Dist.] 1988, pet. ref'd) (explanation for use of peremptory strikes that includes concern over facial expressions was racially neutral).

The prosecutor claimed she struck venireperson 30 because he was unresponsive and seemed bored and inattentive.

A venireperson's inattentiveness is a racially neutral reason for exercising a peremptory challenge. Daniels v. State, 768 S.W.2d 314, 317 (Tex.App.--Tyler 1988, pet. ref'd). The trial court was not clearly erroneous in finding that the prosecutor's explanation for striking venireperson 30 was racially neutral.

The prosecutor stated that she struck venireperson three because she indicated she would have a problem assessing punishment. During voir dire, the prosecutor asked venireperson three if she could consider the full range of punishment; venireperson three indicated she would be hesitant to impose a sentence of life, but would do it if she felt it was deserved. In addition, the prosecutor stated that she struck venireperson three because she indicated she was a member of a minority club, which the State felt might bias her in favor of appellant. Venireperson three stated that she was a member of a minority club, but she would not favor appellant just because he was a minority.

One of the reasons given by the prosecutor for striking venireperson three was not racially neutral. The prosecutor indicated that she struck venireperson three, at least in part, because she was a member of a minority club, and consequently, the prosecutor thought she would be biased in favor of appellant. During voir dire, the prosecutor, when questioning venireperson three about her affiliation with the minority club, specifically asked venireperson three if as a minority, she would always favor the defendant. The prosecutor's explanation of the peremptory challenge was not racially neutral. See Somerville v. State, 792 S.W.2d 265, 268-69 (Tex.App.--Dallas 1990, pet. ref'd) (explanation that venireperson was struck because he was a member of NAACP was an indication of racial motivation in the use of peremptory strikes); cf. Batson, 476 U.S. at 97, 106 S.Ct. at 1723 (prosecutor cannot rebut presumption of racial discrimination by stating that he or she exercised strikes because he or she felt venireperson would be partial to defendant bec...