 Judgment affirmed and Opinion filed December 22,1994




                                           In The

                                 <Emtrt of Appeals
                                          For The

                              JTirst Itsirtri of Gfexas

                                   NO. 01-94-00463-CR


                             JERMAINE WRIGHT, Appellant
                                            V.

                            THE STATE OF TEXAS, Appellee


                         On Appeal from the 209th District Court
                                 Harris County, Texas
                              Trial Court Cause No. 666,949

                                      OPINION

              A jury convicted appellant Jermaine Wright of murder and assessed
punishment at 60-years confinement. In two points of error, appellant argues that the
State's use of peremptory challenges during jury selection violated Tex. Code Crim. P.
Ann. art. 35.261 (Vernon 1989) because itwas racially motivated. We affirm.
                                          Facts

              After both parties made their jury strikes, but before the jury was sworn,
appellant objected that the State's use of peremptory challenges to exclude six black
veniremembers from the jury was racially motivated. Batson v. Kentucky, 476 U.S. 79, 106
S.Ct. 1712 (1986). Appellant himself is black. The trial court held ahearing to determine
whether the State's reasons for exercising peremptory challenges against these prospective
jurors were racially neutral. On appeal, appellant complains of the strikes of two of these
jurors, Mr. Williams and Mi*. Roehelle.

              At the Batson hearing, the prosecutor explained his strikes as follows:
              Mr. Harpold (prosecutor): Okay. Mr. Williams was struck
              because in asking the question on punishment, he seemed to
              be leaning more towards not wanting punishment.

              Mr. Goode (defense counsel): Judge, I will object to that
              characterization.   I think the record reflects that he said the
             same thing as several, more than several, 20 people of the
             others. He said both. He didn't say, I'm leaning toward
             punishment.

             Mr. Harpold: He just said he would consider it to be a
             weighing process and that he would consider either.
             Furthermore, he was -- he listed in his jury information that
             he is a professor at a university. I feel the professors at the
             universities tend to be liberal, and that was why — another
             reason for that.




             Mr. Harpold: Mr. Roehelle was very slow in answering his
             questions. He seemed not to be understanding everything
             very well.

             Mr. Goode: I'll object to that characterization, Your Honor.
             The Court: And who do we get to rule on that?
             Mr. Goode: The Court saw.

             The Court: But this is a perceptual thing. It is difficult for me
             to read someone's mind. I wasn't impressed with his
             capability of grasping all the aspects that were being presented
             to him.

             Mr. Harpold: And he, also, as with several others that I struck
             on punishment, said that in weighing the process, that he was
             kind of somewhere in the middle from definite about it.

             The Court: Well, the difficulty here is did you strike others
             that said they could consider both?

             Mr. Goode: And I would also ask him, Judge, did he strike
             everyone who said they would consider both rehabilitation and


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              punishment. And I think the record shows he did not.

              The Court: That's what I just said.

              Mr. Harpold: Let me answer that question. It's no, but it was
              one of the reasons, coupled with the other reasons I've given
              this Court. If something — when I was making my striking
              procedure, if everything else the person said was good, except
              for just the either [sic] on the punishment question, I did not
              strike them, but if there were other factors coupled with their
              answer on punishment, then those are factors that I used then
              to strike them.

              During voir dire, the prosecutor asked veniremembers whether they
believed that the purpose of sentencing was to punish for the crime or to rehabilitate the
defendant.    Numerous veniremembers, including Mr. Williams and Mr. Roehelle,
indicated that they believed sentencing should serve both to punish and to rehabilitate a
defendant. The prosecutor testified that he did not strike every venireperson who favored
rehabilitation, only those who had an additional troubling characteristic.
                                    Standard of Review

              The State may not exercise peremptory challenges for reasons that are
purely racial. Batson, 476 U.S. at 89, 106 S.Ct. at 1719 (1986); Swain v. Alabama, 380
U.S. 202, 203-04, 85 S.Ct. 824, 826 (1965). Whenever the defendant in a criminal case
establishes a prima facie case that the prosecutor made racially motivated strikes against
eligible veniremembers, the prosecutor is required to explain his or her reasons for the
peremptory challenges. Linscomb v. State, 829 S.W.2d 164, 165 (Tex. Crim. App. 1992).
To establish a prima facie showing of purposeful racial discrimination, a defendant must
show that: (1) he or she is a member of a cognizable racial group; (2) the prosecutor has
exercised peremptory challenges to remove members of defendant's race from the jury
panel; and (3) these facts, along with other relevant circumstances, raise an inference that
the prosecutor used that practice to exclude the veniremembers from the jury because of
their race. Keeton v. State, 724 S.W.2d 58, 65 (Tex. Crim. App. 1987).
              Once a defendant has made a prima facie case of discrimination, the trial


                                            .-x.
court must hold a hearing on defendant's Batson motion.           The State must then offer

legitimate reasons, clearly explained with reasonable specificity, for the exercise of
peremptory strikes against the veniremembers in question. Whitsey v. State, 796 S.W.2d
707, 713 (Tex. Crim. App. 1990). The trial must evaluate these reasons "in the light of
the circumstances of that trial to determine whether the explanations are merely pretext."
Id.

              It is the defendant's burden to convince the trial judge "by a preponderance
of the evidence that the allegations of purposeful discrimination are true in fact."
Tompkins v. State, 11A S.W.2d 195, 202 (Tex. Crim. App. 1987), affd, 490 U.S. 754, 754
109 S.Ct. 2180, 2180 (1989), The trial court's decision must be reviewed in the light most
favorable to its ruling. Woods v. State, 801 S.W.2d 932, 935 (Tex. App.-Austin 1990, pet.
refd). The trial court's decision will not be disturbed on appeal unless it is clearly
erroneous and unless the reviewing court is left with the clear conviction that a mistake
has been made. Harris v. State, 827 S.W.2d 949, 955 (Tex. Crim. App. 1992); Hill v.
State, 827 S.W.2d 860, 865 (Tex. Crim. App. 1992). The best evidence from which to
make such a determination is the demeanor of the prosecutor. Because the trial court is
peculiarly situated to ascertain the credibility of the prosecutor, great deference is given to
its ruling. Hernandez v. New York, 111 S.Ct. 1859, 1869 (1991).
                                     Peremptory Strikes

              In points of error one and two, appellant contends that the trial court erred
in permitting the State to exclude veniremembers Melvin Williams and Earl Roehelle from
the jury. He argues that the State's use of peremptory challenges was racially motivated
and therefore in violation of Tex. CodeCrim. P. Ann. art. 35.261 (Vernon 1989).
                                    Common Treatment

              The prosecutor testified that he struck Mr. Williams and Mr. Roehelle
because, in addition to sharing a belief that sentencing should be used both for



                                            -4-
punishment and rehabilitation, each exhibited an additional objectionable characteristic.
The prosecutor did not strike every venireman who favored rehabilitation, only those who
also exhibited some other negative trait.

                Disparate treatment cannot be imputed in every situation where one of the

State's reasons for striking a veniremember might also apply to another, acceptable,
veniremember. Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim, App. 1992), cert, denied,
113 S.Ct. 3046 (1993); Roberts v. State, 866 S.W.2d 773, 777 (Tex. App.-Houston [1st
Dist.] 1993, pet refd) ("The State's decision to strike some venire members who
expressed sympathy concerns is not undermined by its failure to strike all members who
expressed the same concerns."). A decision to exercise a peremptory challenge against a
particular veniremember cannot be rigidly quantified. Cantu, 842 S.W.2d at 689. It is
unlikely that any two veniremembers will posses the same problematic characteristic in

precisely the same degree. Id. Thus, to find the trial court's ruling clearly erroneous, the
record must reflect something beyond the fact that veniremembers who were not struck
possessed the same objectionable characteristic as those struck by the State. Cantu, 842

S.W,2d at 689; Lemon v. State, 837 S.W.2d 163, 169 (Tex. App.«El Paso 1992), rev'd on
other grounds, 861 S.W.2d 249 (Tex. Crim. App. 1993).
                The record clearly reflects that several other veniremembers believed that

sentencing should serve both as punishment and as rehabilitation. They were not struck
because they did not exhibit an additional negative characteristic, as did Mr. Williams and
Mr. Roehelle.

                                         Occupation

                The prosecutor testified that he struck Mr. Williams from the jury because,
in addition to his beliefs about sentencing, he was a college professor. College professors,
in his opinion, are too liberal.

                The Court of Criminal Appeals has recently held that occupation alone is




                                            -5-
not a legitimate reason for a peremptory strike. Emerson v. State, 851 S.W.2d 269, 274
(Tex. Crim. App. 1993). In that case, occupation was the sole reason given by the
prosecutor for the peremptory strike. The prosecutor did not question the venireperson
to inquire whether the traits allegedly associated with the profession in general applied to
the venireperson in particular. In this case, Mr. Williams's employment, in addition to his
views on punishment, were the reasons given for the peremptory strike. His occupation
separated him from the other jurors who had expressed the belief that sentencing should
serve as rehabilitation. Together, these reasons constitute a race-neutral reason for the
prosecutor's peremptory strike.

                                  Failure to Grasp the Issues

              The prosecutor struck Mr. Roehelle because of his views on sentencing and
because he had difficulty understanding voir dire and was slow to answer questions. These
observations were confirmed by the trial court, who noted that he was "not impressed with
[Mr. Rochelle's] capability of grasping all the aspects that were being presented to him."
              The court of appeals must defer to the trial judge's observations of a
veniremember's answers and demeanor during voir dire. Alexander v. State, 866 S.W.2d
1, 8 (Tex. Crim. App. 1993). The prosecutor's explanation that he struck Mr. Roehelle
because of his difficulty in grasping the issues involved, together with his views on
sentencing, constitutes a racially neutral reason for the strike.
              The trial court's ruling that the prosecutor's strikes were racially neutral is
not clearly erroneous. Accordingly, we overrule points of errorone and two.
              We affirm the judgment of the trial court.



                                                 /&/ AdeleHedges
                                                 Adele Hedges
                                                 Justice



Justices Cohen and Wilson also participating.
Do not publish. Tex. R. App. P. 90.

Judgment rendered and opinion delivered
True Copy Attest:




Margie Thompson
Clerk of Court




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