








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0230-11


CHARLES FRANKIE NIETO, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS

SMITH COUNTY



 Meyers, J., delivered the opinion of the Court in which Keller, P.J.,
and Price, Womack, Keasler, Hervey, and Cochran, JJ., joined. Johnson, J.,
dissented. Alcala, J., did not participate.

O P I N I O N


	Appellant, Charles Nieto, appealed the trial court's denial of his Batson motion,
which he filed after all of the black venire members in the strike zone were struck by the
State. The First Court of Appeals held that the trial court clearly erred in failing to find
that the State's proffered race-neutral reasons were a pretext for racial discrimination.
Nieto v. State, No. 01-09-00226-CR, 2010 Tex. App. LEXIS 9953 (Tex. App.--Houston
[1st Dist.] Dec. 16, 2010, pet. granted) (mem. op., not designated for publication). The
State petitioned, asking this Court to affirm the conviction and sentence of the trial court.
The record here does not demonstrate that the trial court clearly erred by finding that the
reasons proffered by the State were facially sufficient to show race-neutral reasons for the
strike. Therefore, we will reverse the judgment and remand the case to the court of
appeals. 
PROCEDURAL BACKGROUND
 Appellant was convicted of murder in 1995. In 1997, the Twelfth Court of Appeals
affirmed the conviction, but criticized the adequacy of appellate counsel's briefing. (1)
Appellant subsequently filed an application for a writ of habeas corpus, alleging
ineffective assistance of counsel. We remanded the application to the trial court for a
hearing and then granted permission for Appellant to appeal the conviction within thirty
days of that order. Ex parte Nieto, No. AP-76,090, 2009 Tex. Crim. App. Unpub. LEXIS
94, at *1-2 (Tex. Crim. App. Feb. 4, 2009). 
	Appellant's new counsel timely filed a notice of appeal, alleging that the trial court
erred in denying his Batson challenge because the State's proffered reasons for exercising
its strikes were pretexts for racial discrimination. Nieto, 2010 Tex. App. LEXIS 9953, at
*4. The First Court of Appeals agreed, determining that the State's reasons for its strikes
were pretextual. Accordingly, it reversed the conviction and remanded to the trial court.
Id. at *18.  The State filed a petition for discretionary review, raising the following
grounds:
	1) Does the fact that a venireperson shares the same last name as a known criminal
family constitute a racially neutral reason for a prosecutor to exercise a peremptory
strike? 
 
	2) Does the fact that a venireperson is noted to be "glaring" at a prosecutor during
voir dire constitute a racially neutral reason for a peremptory strike?

	3) Did the 1st Court of Appeals fail to consider the "entire record of voir dire"
where it did not review the record regarding the prosecutor's racially neutral
reasons for striking four other minority venire persons.

STANDARD OF REVIEW
	In Batson v. Kentucky, the United States Supreme Court held that the Equal
Protection Clause forbids a prosecutor from exercising peremptory strikes based solely on
the race of the potential juror. 476 U.S. 79, 89 (1986). The party exercising a peremptory
strike typically does not have to explain its rationale for the strike, unless the strike is
challenged under Batson. Lewis v. State, 911 S.W.2d 1, 4 (Tex. Crim. App. 1995); see
Tex. Code Crim. Proc. art. 35.14. 
	The Supreme Court outlined a three-step process for evaluating Batson claims,
which encourages prompt rulings on objections to peremptory challenges and reduces
disruptions in the jury-selection process. Hernandez v. New York, 500 U.S. 352, 358
(1991). First, the defendant must make a prima facie showing of racial discrimination.
Batson, 476 U.S. at 96-97. If the defendant makes the requisite showing, the burden shifts
to the prosecutor in the second step, requiring him to articulate a race-neutral explanation
for the strike. Id. at 97-98. Finally, the trial court must determine if the defendant has
proved purposeful discrimination. Id. at 98. (2)
	The trial court's ruling in the third step must be sustained unless it is clearly
erroneous. Snyder v. Louisiana, 552 U.S. 472, 477 (2008). The clearly erroneous standard
is highly deferential because the trial court is in the best position to determine if the
prosecutor's explanation is genuinely race neutral. Gibson v. State, 144 S.W.3d 530, 534
(Tex. Crim. App. 2004). The trial court must focus on the genuineness of the asserted
non-racial motive, rather than the reasonableness. Purkett v. Elem, 514 U.S. 765, 769
(1995). We defer to the trial court's ruling in the absence of exceptional circumstances.
Hernandez, 500 U.S. at 366.	
	An appellate court should consider the entire record of the voir dire and need not
limit itself to the specific arguments brought forth to the trial court by the parties. Watkins
v. State, 245 S.W.3d 444, 448 (Tex. Crim. App. 2008). A reviewing court may not
substitute its judgment for the trial court's in deciding that the prosecutor's explanation
was a pretext. See Gibson, 144 S.W.3d at 534. Just like the trial court, the reviewing court
must focus on the genuineness, rather than the reasonableness, of the asserted non-racial
motive. Id. at 533-34.
	The Supreme Court addressed the relevance of the defendant's race in Powers v.
Ohio, 499 U.S. 400 (1991). The Court eliminated the requirement that the defendant and
struck panelists must be of the same race, but indicated that racial differences may be a
relevant factor in other cases. Id. at 402, 416; see State v. Oliver, 808 S.W.2d 492, 495-96
(Tex. Crim. App. 1991) (interpreting Tex. Code Crim. Proc. art. 35.261 to allow a
defendant to challenge strikes of prospective jurors who are of racial groups different
from the defendant). 
THE BATSON CHALLENGE
	Sixty people were summoned for jury selection. The trial court conducted a voir
dire of the panel in the morning session. The State's lead prosecutor, District Attorney
Jack Skeen, Jr., could not attend that session, so David Dobbs, the chief felony prosecutor
for Smith County, attended in order to observe the jury panel. Dobbs did not participate in
the afternoon session or the remainder of the trial. 
	After the voir dire by both the State and Appellant, the trial court granted six
strikes for cause. Thirty-one jurors remained in the strike zone, and each side had ten
peremptory strikes available. The State struck all five black prospective jurors, leaving
one Hispanic male on the jury (Appellant is a Hispanic male). Appellant's counsel raised
a Batson challenge to the State's peremptory strikes. 
	The trial court followed the three-step process outlined in Batson. First, the court
found that Appellant made a prima facie showing of race discrimination based on the
number of peremptory strikes against minority members, the composition of the panel
before and after the exercise of the strikes, and the Appellant's race. 
	Next, the court required that the State show sufficient race-neutral reasons for the
exercise of the peremptory strikes. Skeen testified in narrative, describing the State's
reasoning for each strike against a black venireperson. The focus of this appeal is on the
strike of Gregory Mauldin, a black male. However, other black venirepersons were struck
because of criminal histories, participation in a "bad" jury, and a potential family
relationship. 
	Skeen explained that Mauldin shared his last name with defendants that Skeen had
recently prosecuted in a high-profile drug case. He also said that his strike was based on a
note from Dobbs, who was present during the morning voir dire, which stated that
Mauldin glared at him. Skeen added that he did not want to take the chance that Mauldin
was related to the drug family or had some resentment toward the prosecution. He
concluded that the circumstances, taken together, formed the basis for the strike.  
	Appellant's counsel cross-examined Skeen, asking if Skeen questioned Mauldin
about whether he was related to the Mauldins that he had prosecuted. Skeen responded
that, although Mauldin did not raise his hand when the entire panel was asked whether a
member of their family had ever been arrested or charged with a criminal offense, he did
not want to take the chance that Mauldin had been untruthful. Skeen also testified that he
did not ask Mauldin if he had any animosity toward anyone in the prosecutor's office. 
	After cross-examination, Appellant's counsel argued to the court, emphasizing that
Skeen did not sufficiently question Mauldin and other venirepersons. Appellant's counsel
contended that Skeen should have specifically asked Mauldin if he harbored animosity
against the District Attorney's office, and if so, if the animosity would affect his ability to
assess the merits of the case. The trial court found that Appellant did not prove purposeful
discrimination and the reasons given for the strikes were facially sufficient to show race-neutral reasons for the exercise of peremptory strikes. 
ANALYSIS
	The focus of this appeal is on the strike of Gregory Mauldin. We granted the
State's petition for discretionary review on three related grounds, which we now consider
separately. 
Venireperson's Family Relationships
	The first ground for review asks if the fact that a venireperson shares the same last
name as a known criminal family is a race-neutral reason for the State to exercise a
peremptory strike. Skeen testified that, although he did not ask Mauldin if he was related
to the family that he had recently prosecuted, he did not want to take the chance that
Mauldin was related to the convicted family, and consequently, had some animosity
toward the State or Skeen personally. The court of appeals concluded that it was
"unreasonable to suppose that Mauldin was related to the prior criminal defendants
merely because he had the same last name." Nieto, 2010 Tex. App. LEXIS 9953, at *12.
 The State argues that the court of appeals improperly substituted its judgment for
that of the trial court and disregarded the trial court's evaluation of the demeanor of the
prosecutor and the venire members in determining the prosecutor's genuineness.
Appellant contends that the court of appeals was correct in determining that the reasons
provided for the strikes were pretextual, given the prosecutor's lack of questioning of
Mauldin and other black potential jurors, plus the fact that 83% of the minority jurors in
the strike zone were struck by the State.
	This Court held that there was no Batson violation in Sterling v. State, 830 S.W.2d
114, 119 (Tex. Crim. App. 1992), in which the explanation for the peremptory strike was
that the potential juror was possibly related to several individuals who had been
prosecuted by the district attorney's office, he had been prosecuted by the district
attorney's office himself, and he had issues imposing the death penalty. We considered
"the prospective juror's voir dire as a whole and accord[ed] due deference to the trial
judge's ruling" in determining that the challenge was racially neutral. Id. at 118-19. As
here, the combination of the circumstances created a credible reason for the strike. 
	The lack of individual questioning was recently examined by this Court in Grant v.
State, 325 S.W.3d 655 (Tex. Crim. App. 2010). The court of appeals held that "[t]he State
must engage in meaningful voir dire examination on a subject it alleges to be concerned
about." Grant v. State, 2009 Tex. App. LEXIS 3555, at *3 (Tex. App.--Waco May 20,
2009) (citing Miller-El v. Dretke, 545 U.S. 231 (2005)). The State claimed that the basis
for its strike was that a response on the written questionnaire led the prosecutor to believe
that the venireperson's wife knew the defendant's girlfriend because they worked at the
same facility. Grant, 325 S.W.3d at 657-58. The appellant argued, and the court of
appeals agreed, that the State should have specifically questioned the potential juror to
determine if the relationship existed. Id.
	We determined that the court of appeals should not have given dispositive weight
to the lack-of-questioning factor, which is merely one of several factors we articulated in
our holding in Whitsey v. State, 796 S.W.2d 707 (Tex. Crim. App. 1990), which can be
used to determine if the State's reasons for a strike are racially motivated. Id. at 661. (3) This
Court stated that "a lack of oral questioning to flesh out a written response has
significantly less persuasive value when prospective jurors are being questioned
together," particularly given the time constraints that are often imposed during the voir
dire examination. Id. We also held that the court of appeals failed to give proper
deference to the trial court's evaluation of the prosecutor's credibility. Id. 
	As in Grant, Appellant here argues that Mauldin and other venirepersons should
have been questioned before the State exercised its peremptory strike. Under our holding,
the lack of individual questioning is less of an issue when the jurors are questioned
together. However, this case is distinguishable from Grant, because here, Mauldin did not
respond when the panel was asked whether they or anyone they were related to had been
convicted or charged with a crime. As the State points out in its brief, a panelist's
response may be less than candid. In this case, two panelists failed to report their own
prior charges or convictions. 
	We do not infer from the record that Mauldin was untruthful, but we have held that
Batson leaves room for the State to exercise peremptory strikes based on a "hunch" or
past experience, as long as racial discrimination is not the motive. Keeton v. State, 749
S.W.2d 861, 865 (Tex. Crim. App. 1988) (citing State v. Antwine, 743 S.W.2d 51, 65
(Mo. 1987)). As the United States Supreme Court explained, the second step of the
Batson challenge process "does not demand an explanation that is persuasive, or even
plausible." Purkett v. Elem, 514 U.S. at 767-68. However, the reason for the strike by the
prosecutor must be credible given the whole of voir dire testimony and other
circumstances. See Miller-El, 545 U.S. at 252. 
	In Miller-El, 91% of the black panelists were struck. Id. at 241. The "more
powerful" evidence of racial discrimination was demonstrated by a comparison of
similarly situated white and black venire members. Id. The State struck a black male that
the Court viewed as an ideal juror for the State, but did not strike nonblack panelists with
similar viewpoints. Id. at 247. The prosecution also asked to shuffle the array again after
black venire members reappeared at the front of the panel. Id. at 254. Furthermore, the
prosecutors gave a bland description of the death penalty to almost all of the white
panelists before asking the individual's feelings on the death penalty, but used a graphic
description of the death penalty for more than half of the black venire members. Id. at
255-56. Finally, the prosecutor's office was known to use a manual that encouraged a
systematic policy of excluding black venire members from the jury. Id. at 264.
	The United States Supreme Court held that the circumstances present in Miller-El
clearly demonstrated racial discrimination. The level of suspicion raised by the
circumstances here is not nearly as significant as the bias demonstrated in Miller-El. Here,
a large percentage of minority jurors were struck, but as the Supreme Court articulated,
other circumstances, such as disparate treatment of minority and nonminority venire
members, is more powerful than "bare statistics." Id. at 241. The State struck two white
venirepersons who had a close family member that was convicted of a crime, and one
white venire member who was convicted of vehicular manslaughter. The prosecution
struck two black venirepersons with a criminal history, and two based on possible family
connections and the individual's demeanor. Unlike in Miller-El, we cannot find clear
evidence of disparate treatment here. Furthermore, there is no evidence on the record here
to suggest that the district attorney's office engaged in systematic racial discrimination. It
was sensible for Skeen to be cautious with Mauldin based on his recent conviction of the
Mauldin family, particularly when coupled with the note that Mauldin glared at another
prosecutor. Under these facts, the shared last name constitutes a race-neutral reason for
the prosecutor to exercise a peremptory strike. 
Venireperson's Demeanor 
	The second ground for review asks whether the fact that a venireperson is noted to
be "glaring" during voir dire constitutes a race-neutral reason for a peremptory strike.
Dobbs, who was not involved in later proceedings, noted that venireperson Mauldin
glared at him during the trial court's voir dire. On cross-examination, Skeen explained
that he deduced that the animosity toward Dobbs could be transferrable to the district
attorney's office because Dobbs is a well-recognized representative of the office. The
court of appeals determined that the legitimacy of the State's apprehension was "not
obvious" because Mauldin did not glare at Skeen, who prosecuted the Mauldin family.
Nieto, 2010 Tex. App. LEXIS 9953, at *12.
	We have held that the demeanor of a potential juror is a valid reason to exercise a
peremptory strike. Yarborough v. State, 947 S.W.2d 892 (Tex. Crim. App. 1997). A
minority venire member was struck on the basis that he had "poor" facial expressions and
body language, which indicated to the prosecutor that the potential juror did not wish to
be a part of the proceedings. Id. at 893. We held that the counsel's statement about the
panelist's demeanor was established as proved, because the statement, made on the
record, was undisputed by opposing counsel and unquestioned by the trial judge. Id. at
895. The Court emphasized the great deference that should be afforded trial judges
because the determination of race neutrality often turns on an evaluation of credibility. Id.
at 896. However, we noted that appellate courts are not bound to defer to the trial court
and can consider factors such as: 
	The quantity and quality of either party's examination of the challenged venire
member, whether the Batson movant cross-examined the counsel who made the
peremptory challenge, whether the Batson movant rebutted the description of the
venire member, whether the Batson movant proved that venire members of similar
demeanor were not struck, and whether the judge was asked to rule on any conflict
of fact. 
Id. 
	In applying the factors here, neither party examined Mauldin outside of his
response to the questions presented to the entire panel. Appellant's trial counsel cross-examined the prosecutor, questioning why Skeen did not ask Mauldin if he harbored any
animosity toward the State. Appellant's counsel did not rebut the description of Mauldin's
glaring, but asked if others made the same observation, which they had not. Another black
venire member was struck based on his demeanor, but there is no evidence on the record
indicating that a non-minority venire member had a negative demeanor, but was not
struck. The judge was not asked to rule on any issue of fact. 
	The State's description of Mauldin's demeanor is considered proved on the record
because Appellant's counsel did not rebut the observation. We require exceptional
circumstances to warrant the reversal of a trial court's ruling on a Batson motion, and find
no such circumstances here. The trial court's determination that the strike was racially
neutral was not clearly erroneous. Accordingly, we sustain the State's second point of
error.
Review of Additional Strikes
	The final ground for review asks whether the court of appeals failed to consider
the racially neutral reasons for striking the other four minority venirepersons. Because we
are granting relief to the State, we need not review this ground.
CONCLUSION

	The trial court properly evaluated the Batson claim. The court was familiar with
the prosecutor because he appeared in front of the judge on numerous occasions, which is
reflected in the record. As we have held several times, the trial court is in the best position
to determine the genuineness of the State's proffered reasons for a strike, and a reviewing
court may not substitute its judgment for the trial court's.
	A review of the entire voir dire and the circumstances of the case does not
demonstrate a pretext. Given the combination of the potential family connection and
Mauldin's demeanor, plus the fact that the one Hispanic juror was not struck by the State,
we cannot conclude that the trial court clearly erred in finding that the State's proffered
reasons for the strike were not a pretext for racial discrimination. Therefore, we reverse
the judgment of the court of appeals and remand the case to the court of appeals to
consider any remaining issues. 

								Meyers, J.

Filed: May 9, 2012
Publish						
1.  The case was eventually transferred to the First Court of Appeals by the Texas Supreme
Court pursuant to its docket equalization efforts. Nieto, 2010 Tex. App. LEXIS 9953, at *1 n.1.
2.  In 1987, the Texas Legislature adopted the Batson analysis in Article 35.261 of the Code
of Criminal Procedure.
3.  We listed the following factors as tending to show that the State's reasons for a
peremptory strike are not supported by the record or are an impermissible pretext:
 
	1. The reason given for the peremptory challenge is not related to the facts of the case;
2. [T]here was a lack of questioning to the challenged juror or a lack of meaningful
questions;
	3. Disparate treatment--persons with the same or similar characteristics as the challenged
juror were not struck;
4. Disparate examination of members of the venire, i.e., questioning a challenged juror so
as to evoke a certain response without asking the same question of other panel members;
and
	5. [A]n explanation based on a group bias where the group trait is not shown to apply to
the challenged juror specifically.

Whitsey, 796 S.W.2d at 713-14.
