                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-12-00744-CR

                                    James Davis MORRISON, Jr.,
                                             Appellant

                                                 v.

                                         The STATE of Texas,
                                               Appellee

                     From the 379th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2009CR7696
                              Honorable Ron Rangel, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: July 30, 2014

AFFIRMED

           This appeal stems from Appellant James Davis Morrison, Jr.’s capital murder conviction

and subsequent sentence of life imprisonment without the possibility of parole. On appeal,

Morrison contends that the State exercised peremptory strikes in a discriminatory manner, in

violation of his rights under the Fourteenth Amendment. U.S. CONST. AMEND. XIV; see also TEX.

CODE CRIM. PROC. art. 35.261.
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                                     FACTUAL BACKGROUND

       Morrison was charged by indictment with capital murder by intentionally causing the death

of two people in the same course of conduct. The State sought the death penalty. Morrison entered

a plea of not guilty and jury selection commenced on April 17, 2012. After the jury panel was

qualified, trial commenced on October 1, 2012. The jury returned a guilty verdict on October 12,

2012; and, on October 22, 2012, the trial court sentenced Morrison to a term of life in prison,

without the possibility of parole, consistent with the jury’s findings.

       On appeal, Morrison contends the State’s peremptory strikes of potential jurors, Venire

No. 67 and No. 107, violated the United State Supreme Court’s prohibition against the use of

peremptory challenges to strike individuals based on race and his rights under the Fourteenth

Amendment. U.S. CONST. AMEND. XIV; TEX. CODE CRIM. PROC. art. 35.261; Batson v. Kentucky,

476 U.S. 79 (1986).

                                       BATSON CHALLENGE

       Morrison argues the trial court committed reversible error by allowing the State, in

violation of Batson v. Kentucky, 476 U.S. 79 (1986), to use peremptory strikes to exclude Venire

No. 67 and Venire No. 107 because, like Morrison, the potential jurors were African-American.

The State contends it provided legitimate, race-neutral reasons to strike both potential jurors. For

the reasons set forth in this opinion, we conclude Morrison did not meet his burden of persuasion

under Batson. See Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999).

A.     Standard of Review

       “[A] reviewing court should examine a trial court’s conclusion that a facially race-neutral

explanation for a peremptory challenge is genuine, rather than a pretext, with great deference,

reversing only when that conclusion is, in view of the record as a whole, clearly erroneous.”

Watkins v. State, 245 S.W.3d 444, 448 (Tex. Crim. App. 2008). Because the trial court’s decision
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largely turns on its evaluation of credibility, we give the court’s decision great deference and will

not disturb the court’s ruling unless it is clearly erroneous. Ladd v. State, 3 S.W.3d 547, 563 (Tex.

Crim. App. 1999).

B.      Burden Shifting

        In Batson, the United States Supreme Court held that the State violates the Equal Protection

Clause when the State excludes a venire member based on race. Batson, 476 U.S. at 85–86. The

Court established a three-step process for evaluating Batson claims: (1) the defendant must make

a prima facie showing of racial discrimination; (2) if the defendant makes that showing, the burden

shifts to the prosecutor to articulate a race-neutral reason for the strike; and (3) the trial court must

determine if the defendant has proven purposeful discrimination. Id. at 96–98; Nieto v. State, 365

S.W.3d 673, 675–76 (Tex. Crim. App. 2012); accord Young v. State, 283 S.W.3d 854, 866 (Tex.

Crim. App. 2009); Ford, 1 S.W.3d at 693. Although the burden shifts between the State and the

defense, the burden of persuasion never shifts from the defendant. Ford, 1 S.W.3d at 693.

C.      Voir Dire of Venire No. 67

        In the present case, the individual voir dire questioning of Venire No. 67 continued for over

two hours. Because this case turns on the potential juror’s answers provided during voir dire, and

the trial court’s assessment of the State’s race-neutral reasons for the peremptory strike, we include

a detailed version of the testimony and arguments of counsel.

        Early in questioning, the eighteen-year-old potential juror indicated that he had a difficult

time concentrating and staying in one place for extended period of time and further averred that

his ADHD, dyslexia, and epilepsy would make it difficult for him to sit on the jury. In fact, the

potential juror even brought his sister to the jury selection as a “chaperone.” When asked about

the numerous blanks he left on his written questionnaire, Venire No. 67 acknowledged that he had

a difficult time understanding the questions and that he had a hard time reading, including his own
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writing. When asked by the prosecutor, Venire No. 67 affirmed that he would like to claim a

student exemption.

       After Venire No. 67 continued to express difficulty with the prosecutor’s questions, the

trial court interrupted the proceedings and asked questions of the potential juror; specifically the

court inquired whether Venire No. 67 understood the document that was provided to the entire

venire explaining the process in a death penalty trial. Venire No. 67 indicated that he understood

the document, but when asked to explain what it meant, the court noted that Venire No. 67 sat in

silence for over twelve seconds.

       Trial Court:      In reading this document, did you understand what it referred to
                         when it talked about the two-phase jury trial? Do you know what
                         that means?
       Venire No. 67:    Yes.
       Trial Court:      Okay. What does that mean to you?
       Venire No. 67:    (No response)
       Trial Court:      Just for the record, the lady is taking the record. It’s been about
                         12 seconds or so.
                              ....
                         Do you have an understanding that every criminal trial in Texas
                         goes in two phases, right? The first phase is a guilt/innocence
                         phase. The second phase is we call the “punishment phase.”
                         Now, the first phase, the sole issue is did the State prove to you
                         beyond a reasonable doubt each and every element of the charge
                         or the indictment? Do you understand what that means?
       Venire No. 67:    No.
       Trial Court:      Okay. All right. Do you remember when I talked to you about the
                         presumption of innocence a couple of weeks ago?
       Venire No. 67:    (No response)

The judge proceeded to re-explain the presumption of innocence and the steps taken in a bifurcated

trial. The court further explained that in a capital murder case, the punishment phase would only

be one of two things, life in prison or the death penalty. To each of the questions, the potential

juror indicated that he understood the court’s explanation. The court continued:

       The Court:        Okay. I’m going to backtrack a little bit, okay? I just told you
                         that in every criminal case, there’s two phases. There’s a two-


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                          phase part to the jury—to a jury trial. Do you remember we
                          talked about that?
       Venire No. 67:     Yes.
       The Court:         What does that mean to you?
       Venire No. 67:     (No response)
       The Court:         And you can take your time. There’s no rush. Just for the record,
                          it’s been about10-15 seconds now.
       Venire No. 67:     I don’t understand the question.

The court attempted to ask the question a little differently:

       The Court:         When I told you that there was a two-phase jury trial, the first
                          phase was the guilt/innocence phase. What would be the issue in
                          that guilt/innocence phase that I just told you?
       Venire No. 67:     Uh.
       The Court:         And without answering this particular question, if you can,
                          because it’s been another 10 seconds or so, can you tell me what’s
                          going on in your mind right now?
       Venire No. 67:     The right side of my head hurts.
       The Court:         Okay. And for the record, the lady taking the record, I note that
                          you have your right hand pressed to your forehead as you’re
                          looking down. You look like you’re going through a little bit of
                          pain or are you just thinking?
       Venire No. 67:     I’m thinking.
       The Court:         Okay. So when you say “your head hurts,” what does that mean?
       Venire No. 67:     I’m really trying to remember.
       The Court:         Okay. And it’s been probably about a minute or two since we
                          talked about that first phase; is that about right?
       Venire No. 67:     Yes.
       The Court:         Okay. Do you remember – do you recall at all what we talked
                          about in regards to that first phase?
       Venire No. 67:     (No response)

The trial court then walked through the two part process again with Venire No. 67. When

discussing the punishment section, the court read the first special question: “Is there a probability

that the defendant would commit criminal acts of violence that would constitute a continuing threat

to society.” Venire No. 67, however, was unable to answer the court’s question and confirmed

that he did not “have an understanding of what’s going on.”




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        The prosecutor interjected that Venire No. 67’s sister had actually helped him with the

questionnaire and then re-urged her request that the court allow Venire No. 67 to use his student

exemption. The defense objected.

        Defense Counsel: We would object, Your Honor. Again, that this individual stated
                         to the Court that he attends school for one hour on Saturdays.
                         That would not conflict with the trial, under the Government
                         Code, first.

                                 Secondly, that under 35.16(a)(5), while he explained to the
                            Court that he may have some difficulty understanding, he clearly
                            told the Court that he understood what’s going to happen in
                            phase one, to find the guy guilty or innocent. And that the
                            answers to the questions on part two would dictate either life
                            without parole or death.

                                 I would also note for the Court that in his questionnaire, he
                            clearly understood a lot of the questions. Probably may not be
                            the best speller. He clearly expressed his feelings. And under
                            Article 1 of the Texas Constitution and under the Fifth and Sixth
                            Amendments and the Fourteenth Amendment of the U.S.
                            Constitution, this individual has the right to serve, and my client
                            has the right to a trial of his peers and to a fair trial.

                                 I will also note for the record that under his qualifications,
                            [Venire No. 67] listed himself in race as black, backslash,
                            Mexican—or M-E-X. M-E-X, I’m assuming, Your Honor, that
                            that meant Mexican; and that for the record, my client is an
                            African-American black male. And for all those reasons, we
                            would object the Court sua sponte excusing him, Your Honor,
                            under the sections of the Government—that the State mentioned.

The State continued the individual voir dire. Venire No. 67 was able to answer some questions,

and to others he simply provided no response. The trial court subsequently denied the article

35.16(a)(5) challenge for cause and denied the request for an exemption. TEX. CODE CRIM. PROC.

ANN. art. 35.16(a)(5) (West 2006) (“A challenge for cause may be made by either the state or the

defense [if] the juror has . . . such bodily or mental defect or disease as to render the juror unfit for

jury service, . . . and the court in its discretion is not satisfied that the juror is fit for jury service in

that particular case.”).
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        The State continued in questioning Venire No. 67:

        State:           And do you think that maybe some of the issues you’re having,
                         like the epilepsy and the ADHD, and right now you said you can’t
                         focus and you can’t keep up answering questions right now, is
                         that something that would hinder you during the trial also?
        Venire No. 67:   Yes.
        State:           And would you agree that if you’re hindered during the trial and
                         you can’t focus and can’t keep up with what’s going on, that you
                         can’t be a fair juror to anybody; is that right?
        Venire No. 67:   Yes.

The State highlighted Venire No. 67’s difficulty in remembering elements of the trial that were

explained earlier in the questioning. The potential juror explained:

        Venire No. 67:   I had to empty everything out because it was starting to hurt.
        State:           What do you mean “you have to empty everything out”?
        Venire No. 67:   I had to stop remembering everything because it was starting to
                         hurt.
        State:           Okay. What was starting to hurt when you had to empty
                         everything out?
        Venire No. 67:   My head.

The State reurged its objection to the juror under article 35.16(a)(5). Id. The court again denied

the request. Upon further questioning from the State, the potential juror again indicated that he

did not want to sit on the jury and that he did not think he “would be of any use.” The State passed

the potential juror and the defense counsel asked numerous questions, many of which the juror did

not answer.

        At the close of the defense questions, the State exercised a peremptory strike. The court

excused the juror and the defense challenged the State’s peremptory strike with a Batson

Challenge. Defense counsel stated on the record that the potential juror appeared to be African-

American male and confirmed the defendant, Morrison, was also African-American. Defense

counsel proceeded to identify other jurors the State used peremptory challenges on that were also

African-American, and concluded that the State excluded Venire No. 67 “on the basis that he is,

in fact, black.”
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       Based on the allegations raised by the defense, the burden shifted to the State to provide a

race-neutral reason for the strike. Batson, 476 U.S. at 96. The State argued in response:

       [T]here’s nothing at all with regards to race that’s at issue. The issue is the little
       boy that came in, [Venire No. 67], told us more than once that he’s in class, he’d
       like to exercise his exemption. The Court denied his exemption. Even though it’s
       just a Saturday class, one day a week, one class a week for an hour, he is in school
       full-time under the Government Code.

               He said he was in remedial classes. He reads okay, he says, but he can’t
       write. He can’t even read his own writing. In fact, there was one thing I asked him
       about that he had written on his questionnaire that he couldn’t read. And it was
       actually his own writing.

               He has stated when he was in here that his head was hurting. He was—
       couldn’t keep up answering all these questions. . . . [I]t was less than two hours that
       the State questioned him. Part of that time was when the Court was trying to explain
       to him what was going on. He was very clear by his facial expressions, it was very
       clear by his attitude that he was uncomfortable, he was having a hard time. With
       regards to any following of legal issues, he stated more than once that this was a
       situation where he felt that if someone doesn’t speak up on behalf of themselves,
       they’re probably guilty. And once I talked to him enough and he realized that the
       right answer should really be that he can follow the law, then he said, “Well, I can
       follow the law and I can just not think about that.”

              When his sister was in the room and she started crying because of the stress
       she saw her brother going through . . .

              It’s very clear, and I think the Court saw, the defense saw, everyone else
       saw how uncomfortable this child was when he was in here—this 18-year-old—
       how difficult it was for him to sit through this. There were long, long pauses when
       he was asked a question. When I asked him about the second prong, the mitigating
       circumstances, he didn’t understand clearly.

               I had asked him about—I explained to him what capital murder cases were,
       giving him some examples, and about 15 minutes later, he couldn’t remember. So
       I explained them to him again what it was, and probably three minutes later, he
       remembered one example, and that being the killing of more than one person.

               I think it was clear that he was not in a position to sit on a jury, Judge.

After listening to the individual voir dire of Venire No. 67, and the State’s and Defense’s

arguments, the court concluded:



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        [A]lthough the Court determined that [Venire No. 67] was understanding what was
        going on, it was a true—it was a borderline mental defect issue under Article 35.16
        (a)(5).

                The Court erred on the side of caution, but the—but the venireperson was
        clearly very slow. It was clearly—it was clear to the Court that that individual
        venireperson was taught to basically agree with everything that was posed to him.
        You could see that through the questioning. It was obvious he was having a
        difficult time being here. And without saying much more, I don’t know if I can
        make it any clearer than that.

The trial court concluded, “The Court finds that the State exercised a race-neutral strike.”

        We next look at the voir dire questioning regarding potential juror number 107.

D.      Voir Dire of Venire No. 107

        Unlike Venire No. 67, Venire No. 107 told the attorneys that he served on a criminal jury

in the 1990s and the jury returned a verdict of not guilty. When questioned about the death penalty,

the potential juror told the attorneys that he “would really, really, really . . . have to look at it and

study it very, very closely” based on his previous experience with “racial unrest” and “individuals

that were of the black community . . . who were charged with certain things that eventually they

found out that hey, this is not true.” In response to questions about imposing the death penalty,

Venire No. 107 indicated that he could not “ever picture [himself] giving the death penalty to

someone” and that he “would always vote for a life sentence [without the possibility of parole]

instead of the death penalty.” Upon further pressing from the State as to whether he could follow

the law knowing that the defendant would be sentenced to death, Venire No. 107 answered with

“I don’t know,” “maybe,” and “possibly.”

        Shortly after the defense began questioning Venire No. 107, the prosecutor interrupted and

informed the court that she intended to utilize a peremptory strike on the potential juror. Defense

counsel responded with a Batson challenge noting the potential juror was African-American and

had indicated on his questionnaire and in voir dire that he could follow the law.


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          In response, the State identified several examples, from his voir dire and his written

questionnaire, when Venire No. 107 indicated his opposition to the death penalty: “[H]e would

always vote for life sentence instead of the death penalty;” “[H]e was opposed to capital

punishment except in few cases;” “Life imprisonment without parole is more effective than capital

punishment;” “I’m not in favor of capital punishment;” “Everybody has a right to live;” and “I’m

not in to putting people—a person to death.” The State concluded “I don’t know how much more

clear it could be than that. I mean, he’s borderline challengeable for cause, he’s just not quite

there.”

          After the State tendered its voir dire notes and questionnaire to the defense, the trial court

denied the Batson challenge.

E.        Analysis

          The sole inquiry in a Batson challenge is whether the strike was the product of purposeful

discrimination. Watkins, 245 S.W.3d at 447. Although the burden shifted to the State to provide

a race-neutral explanation for the strike, the defense maintained the burden of persuasion. Ford,

1 S.W.3d at 693. Here, the record is replete with examples of why Venire No. 67 would have a

difficult time serving on a capital murder jury.           He had difficulty reading, writing, and

understanding the issues presented during the voir dire process. Similarly, Venire No. 107

expressed repulsion to the death penalty and questioned his ability to impose a death sentence.

          Viewing the record as a whole, and giving deference to the trial court’s factual

determinations, we conclude the trial court’s rulings on Morrison’s Batson challenges were not

clearly erroneous. Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004) (explaining

whether peremptory challenge is genuine “is solely a question of fact . . . [and] the trial court was

in the best position to make that credibility determination.”); accord Watkins, 245 S.W.3d at 448.



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The State provided ample evidence to support reasons for striking both Venire No. 67 and Venire

No. 107 were race-neutral, and nothing in the record suggests otherwise.

                                          CONCLUSION

       Because the State’s race-neutral reasons for striking Venire No. 67 and Venire No. 107 are

clearly supported by the record, we cannot say the trial court erred in overruling Morrison’s Batson

challenges. Accordingly, Morrison’s sole issue on appeal is overruled and we affirm the trial

court’s judgment.


                                                  Patricia O. Alvarez, Justice

DO NOT PUBLISH




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