Young v. State

• Decision Date: 28 December 1992
• Docket Number: No. 05-89-00571-CR,05-89-00571-CR
• Parties: Lee Arthur YOUNG, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 203

848 S.W.2d 203

Lee Arthur YOUNG, Appellant, v. The STATE of Texas, Appellee.

No. 05-89-00571-CR.

Court of Appeals of Texas Dallas.

Dec. 28, 1992.

Discretionary Review Refused

June 16, 1993.

Rober T. Rogers, Dallas, for appellant.

Sharon Batjer, Dallas, for appellee.

Before ENOCH, C.J., and BAKER and ONION ¹, JJ.

OPINION ON REMAND

BAKER, Justice.

On original submission, we held the evidence sufficient to support the verdict and that the trial court did not err in overruling appellant's Batson ² motion. See Young v. State, No. 05-89-00571-CR (Tex.App.--Dallas, March 5, 1990) (not designated for publication), rev'd, 826 S.W.2d 141 (Tex.Crim.App.1991). We stated:

In his brief, appellant brings forth testimony from the voir dire which he asserts casts doubt on the prosecutor's explanations. Appellant urges that we compare the individuals that the State struck with those who were not struck and to use these alleged discrepancies to determine whether the State's explanations were credible. Because appellant did not urge the trial court to make the comparisons during the Batson hearing, they are not available on appellant's behalf for consideration by a reviewing court.

Young, slip op. at 7. In reaching this conclusion, we relied on Tompkins v. State, 774 S.W.2d 195, 202 n. 6A (Tex.Crim.App.1987), aff'd by an equally divided court, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989). In Tompkins, the court of criminal appeals stated:

Because the trial judge was not urged to make, and did not make, a finding based upon a comparison analysis in deciding the issue whether the prosecutors' neutral explanations were rebutted or impeached at the "Batson " hearing with evidence that unchallenged white veniremen also possessed the same purportedly undesireable [sic] characteristics, we do not consider this circumstance in reviewing the trial judge's findings in this cause.

Tompkins, 774 S.W.2d at 202 n. 6A.

On discretionary review, the court of criminal appeals agreed with appellant that the footnote in Tompkins was not a holding and declined to adopt it as one. See Young, 826 S.W.2d at 144. ³ The court of criminal appeals concluded that this Court erred by refusing to consider appellant's comparisons in reviewing the trial court's Batson ruling. See Vargas v. State, 838 S.W.2d 552, 557 (Tex.Crim.App.1992). The court of criminal appeals remanded the case to our Court not to determine whether the prosecutor's explanations were credible, but to determine whether the record supports the trial judge's ruling on appellant's Batson motion and was therefore not clearly erroneous. See Young, 826 S.W.2d at 146-47.

Upon remand of the cause to this Court, we advised appellant and the State of their right to rebrief the issue. See Robinson v. State, 790 S.W.2d 334, 335 (Tex.Crim.App.1990) (per curiam). Both appellant and the State filed briefs on remand. Appellant did not request oral argument. The State requested argument only if appellant requested oral argument. We submit the case on the briefs on remand. We proceed to determine whether the record supports the trial court's ruling on appellant's Batson motion and was therefore not clearly erroneous.

After reviewing the record, we find that the record does not support the trial court's ruling on juror number eleven, Mr. Jones. We conclude that the trial court made a mistake. We reverse the trial court's judgment. We remand the cause for a new trial.

STANDARD OF REVIEW

The standard of review for claims that the State used peremptory strikes in a racially discriminatory manner is the "clearly erroneous" standard. Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App.1992); 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). To determine whether the fact finder's decision is clearly erroneous, we look to the record to see if the record leaves us with the definite and firm conviction that the trial court made a mistake. Hill, 827 S.W.2d at 865; Whitsey v. State, 796 S.W.2d 707, 728 (Tex.Crim.App.1989) (op. on reh'g).

The clearly erroneous standard accords great deference to the trial court's findings and conclusions because the trial court bases its rulings in part upon a credibility determination that is not reviewable by the appellate court. Young, 826 S.W.2d at 152 (op. on reh'g). We review the evidence in the light most favorable to the trial court's ruling. Robinson v. State, No. 69,568, slip op. at 11, 1991 WL 57765 (Tex.Crim.App. April 17, 1991) (reh'g granted); Whitsey, 796 S.W.2d at 721.

The exercise of even one peremptory challenge for racial reasons invalidates the entire jury selection and mandates a new trial. See Linscomb v. State, 829 S.W.2d 164, 166 (Tex.Crim.App.1992); Keeton v. State, 724 S.W.2d 58, 65 n. 5 (Tex.Crim.App.1987). The aggrieved party need not show multiple instances of racial prejudice in jury selection to prove a constitutional violation. Linscomb, 829 S.W.2d at 166.

Under Batson, we should be occupied with the question of whether the State was racially motivated in the exercise of its peremptory challenges against even one juror of discernable race. Linscomb, 829 S.W.2d at 167. We examine each of the prosecutor's neutral explanations to determine if they are a pretext for a racially motivated peremptory challenge. Whitsey, 796 S.W.2d at 713.

COMPARATIVE ANALYSIS--DISPARATE TREATMENT

The trial judge's decision on whether the defendant proves a Batson claim turns, in part, on the trial court's observations during voir dire examination. As the voir dire supervisor, the trial judge can readily perceive discrepancies during jury selection process. These discrepancies may include: (1) the prosecutor failing to question any of the minority jurors yet striking them anyway; (2) the prosecutor striking minority jurors who gave answers similar to those of majority jurors whom the prosecutor did not strike; and (3) the prosecutor striking minority jurors who had the same characteristics professionally, socially, religiously, etc. as majority jurors whom the prosecutor did not strike. These factors may show disparate treatment of prospective jurors. These factors enter into the trial judge's assessment of the prosecutor's credibility and eventually the trial judge's determination of the racial neutrality of the prosecutor's peremptory challenges. See Young, 826 S.W.2d at 145.

THE STATE'S PEREMPTORY CHALLENGES

In his brief on remand, appellant contends that the State peremptorily challenged prospective jurors numbers two, eleven, and twelve for racially motivated reasons. The reasons the State gave for its strikes were:

1. Juror number two, Mr. Davis. This juror's brother was involved in a theft. He was seen nodding, and his head was down and his eyes were closed during the State's voir dire.

2. Juror number eleven, Mr. Jones. This juror had an uncle who had been in trouble with the law.

3. Juror number twelve, Ms. Jennings. This juror told the parties that she had a problem sitting because of back problems, and the State was concerned that her ability to pay attention and give her undivided time to the case would be affected.

APPELLANT'S CONTENTIONS

Appellant observes that the State struck seven blacks from the jury panel and that appellant struck one. No blacks served on the jury. Appellant is black. Appellant contends the State's explanations for striking the black veniremen were not racially neutral considering the disparate treatment of those jurors when compared with other jurors on the panel who shared the same or similar characteristics as the challenged jurors. Appellant offers the following as disparate treatment of the minority jurors whom the State struck:

1. Juror number two, Mr. Davis: The State struck him because he had a brother involved in a theft case and because he nodded off with his head down and his eyes closed during the voir dire conducted by the State. Appellant compares Mr. Davis to juror number one, Mr. Kudlacek, who had a brother charged with theft of meat for a barbecue. The State did not strike Mr. Kudlacek, who was white.

2. Juror number eleven, Mr. Jones: The State struck him because he had an uncle who had been in trouble with the law. Like Mr. Davis, appellant compares Mr. Jones to Mr. Kudlacek.

3. Juror number twelve, Ms. Jennings: The State struck Ms. Jennings because she had a back problem that the State felt could affect her ability to pay attention and give her undivided attention to the case. Appellant compares Ms. Jennings with juror number twenty-three, Mr. Penn, who was white. Mr. Penn also had a back problem, but the State did not strike him.

THE STATE'S RESPONSE

The State contends that, when viewed in the light most favorable to the trial court's ruling, the record shows that the trial court's decision on appellant's Batson motion was not clearly erroneous. The State's response on each prospective juror whom appellant claims the State struck for racial reasons is:

1. Juror number two, Mr. Davis: The State notes that the prosecutor struck Mr. Davis because he had a brother who had been involved in a theft case. The prosecutor also stated that Mr. Davis nodded off during the prosecutor's voir dire examination. The State notes that a juror's having a relative in trouble with the law is a legitimate reason for exercising a peremptory challenge. See Sims v. State, 768 S.W.2d 863, 865 (Tex.App.--Texarkana 1989), pet. dism'd per curiam, 792 S.W.2d 81 (Tex.Crim.App.1990). The State also argues that inattentiveness may be a sufficiently race-neutral reason to justify the use of a peremptory challenge. See Woods v. State, 801 S.W.2d 932, 937 (Tex.App.--Austin 1990, pet. ref'd).

2. Juror number eleven, Mr. Jones: The State notes that the prosecutor struck Mr. Jones because Mr. Jones had an uncle who had been in trouble with the law. The State argues that a relative's trouble with the law is a racially neutral reason for...