      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-03-00360-CR


                                   Timmy Rector, Appellant

                                                v.

                                  The State of Texas, Appellee



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT
         NO. 3020279, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING



                               MEMORANDUM OPINION


               Appellant Timmy Rector appeals his conviction for aggravated assault. See Tex. Pen.

Code Ann. § 22.02 (West 2003). He argues that the trial court erred by overruling an objection that

the State peremptorily struck a black man from the jury panel because of his race. We affirm the

judgment of the trial court.


                                        BACKGROUND

               A jury in this case convicted appellant, a black male, of aggravated assault and

assessed punishment at thirteen years’ confinement and a fine of $6,500. During the jury-selection

process before trial, the State used one of its ten peremptory challenges to exclude venire member

M.C., a black male. Before the jury was sworn, appellant made an objection to the use of the

peremptory challenge, arguing that the exclusion of M.C. was racially motivated. See Batson v.
Kentucky, 476 U.S. 79 (1986); see also Hernandez v. New York, 500 U.S. 352 (1991) (defendant

must challenge the peremptory strike on a venire member before trial judge and rebut prosecution’s

proffered reason). The trial court requested an explanation from the State for the peremptory

challenge to M.C. In response, the State replied that “he didn’t answer hardly any of the questions

in the questionnaire, but most of them were left blank.” The State added that “additionally, he had

a problem with one witness, convicting on the basis of one witness.” Appellant objected to M.C.’s

exclusion and requested that he be placed on the jury. The court responded by noting, “What about

the fact that he didn’t list his occupation and several things he left blank on his jury questionnaire?”

Appellant replied that the State had opportunities to ask M.C. about his occupation during the voir

dire. Appellant maintained his Batson objection, which the trial judge overruled. This appeal

followed appellant’s conviction.


                                           DISCUSSION

                In his sole issue, appellant argues that the trial court erred by overruling the Batson

objection. In particular, he asserts that the state peremptorily struck a black man from the jury panel

because of his race. See Batson, 476 U.S. 79. We disagree.

                When appellant makes a Batson challenge, the ruling of the trial court will be

overruled only if it is clearly erroneous. Hernandez, 500 U.S. at 368. We view the evidence

presented at the Batson hearing in the light most favorable to the trial court’s ruling, and we will not

reverse the ruling unless we have a firm conviction that a mistake has been committed. Robinson

v. State, 851 S.W.2d 216, 226 (Tex. Crim. App. 1991); Keeton v. State, 826 S.W.2d 861, 870 (Tex.

Crim. App. 1988). Therefore, our role is “not to determine whether the prosecution’s explanations



                                                   2
are credible, but rather, whether the trial judge’s ruling on appellant’s Batson motion was supported

by the record and therefore not clearly erroneous.” Young v. State, 826 S.W.2d 141, 146-47 (Tex.

Crim. App. 1991).

               A Batson challenge comprises three parts: (i) the defendant must make a prima facie

case that the State exercised a strike based on race; (ii) the burden then shifts to the prosecution to

give a race-neutral justification for the strike; and (iii) the defense must respond by refuting the

prosecution’s claim and proving purposeful discrimination. Batson, 476 U.S. at 97-98. When

making his Batson challenge, appellant asserted that M.C. was the only black male on the panel and

that the State’s exclusion of M.C. was not based on a race-neutral reason. The trial court did not

expressly address whether appellant had made a prima facie case that M.C.’s exclusion was based

on race, the first prong of a Batson challenge. However, that issue was made moot when the State

offered a race-neutral explanation before the court made an inquiry into the first prong. See Johnson

v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002). In addition, appellant does not challenge the

Batson ruling on the grounds that the State failed to give a race-neutral justification for the strike.

               Thus, we need only examine the third prong of the Batson challenge: whether

appellant refuted the State’s claim and proved purposeful discrimination. The reasons offered by

the State for using a peremptory strike need not be at the level of a challenge for cause, but must only

be plausibly race-neutral. Hernandez, 500 U.S. at 352. A defendant’s failure to offer any real

rebuttal to a proffered race-neutral explanation can be fatal to the claim. Chamberlain v. State, 998

S.W.2d 230, 236 (Tex. Crim. App. 1999).1 In addition, a venire member’s “initial lack of belief in


       1
          The court gave an example of what it considered a “real” rebuttal—when a defendant
establishes that no white venire members with views similar to the struck minority venire member

                                                   3
a case with one eyewitness is a plausible reason to strike her as not so favorable to the State, even

though she later said she could follow the law.” Vargas v. State, 838 S.W.2d 552, 555 (Tex. Crim.

App. 1992).

               Appellant first argues that one of the State’s reasons for the strike—that M.C.

indicated that he would have difficulty convicting on the basis of one witness’s

testimony—misrepresents what M.C. stated during voir dire. Not including M.C., five venire

members indicated to the prosecutor that they would have difficulty convicting on the basis of one

witness’s testimony. All were struck from the jury by the prosecution except one.

               At the Batson hearing, the following dialogue occurred:


       [State]: My last question. I will ask you to raise your hand if you feel this way
                because it is real important: If there were only one witness to a crime and
                that witness testified and you believed that witness beyond a reasonable
                doubt, if you were not able to convict based on that, please raise your hand

                 ....

       M.C.:     I have a question about that. I guess [it] also depends on whether there is
                 evidence corroborating what the witness is saying. Obviously, the witness
                 is saying he saw Bob walk up to Joe, pull out a gun and shot Joe, this is an
                 example, then, yes, I believe that. If the witness says they were standing in
                 their yard, they saw Bob walk into Joe’s house, the screen door closed, Bob
                 stood there, heard a gunshot, and then watched him run away. Maybe not.
                 If there is someone else in the house, they could have done it.

       [State]: I understand.

       M.C.:     Something corroborating what the witness is saying or—




were removed by peremptory challenge. Chamberlain v. State, 998 S.W.2d 230, 236 (Tex. Crim.
App. 1999).

                                                 4
       [State]: Think we are talking more about eyewitness. Eye witnessing something.

       M.C.:     Yeah. You are talking about somebody specifically saw—

       [State]: You are okay with it?

       M.C.:     Yes, but there are circumstances you have to look out for.


               We could interpret M.C.’s response to the State’s questions either as disagreeing with

the proposition that one could convict on the basis of the testimony of one eyewitness or as

questioning the prosecutor as to the meaning of the question. Because the former is a reasonable

interpretation of the exchange, the trial court, in denying the Batson challenge on this ground, was

not clearly erroneous. See Vargas, 838 S.W.2d at 555; Young, 826 S.W.2d at 146-47.

               Next, appellant relies upon a comparison analysis of the juror questionnaire forms

to prove a racial motivation for the removal of a black male from the jury panel. Comparison

analysis is a tool used to determine discriminatory intent by analyzing the treatment of similarly

situated venire members. Tompkins v. State, 774 S.W.2d 195, 202 (Tex. Crim. App. 1987). Several

non-exhaustive factors may show disparate treatment of prospective jurors, including: (1) if the

State failed to question any of the minority jurors but struck them anyway; (2) if the State struck

minority jurors who gave answers similar to those of majority jurors whom the prosecutor did not

strike; and (3) if the State struck minority jurors who had the same characteristics, such as

professional, social, or religious characteristics, as majority jurors whom the State did not strike.

Young, 826 S.W.2d at 205.

               Because the State challenges appellant’s use of a comparison analysis of all of the

juror questionnaires, we must first decide whether appellant can employ a comparison analysis even

                                                 5
though he did not enter the questionnaires into evidence at the Batson hearing. The general rule

prohibits the use of juror-information cards as a basis for comparison on appeal if those same cards

were not introduced into evidence at the trial court. Vargas, 838 S.W.2d at 556. It would be

inconsistent to give great deference to a trial court’s ruling that is supported by the record and at the

same time analyze that ruling based on information that was “not in evidence nor presented to the

trial court at the time of the hearing.” Id. at 556-57 (emphasis added).

                Appellant contends, however, that this case fits within an established exception to this

rule. See Cornish v. State, 848 S.W.2d 144, 145 (Tex. Crim. App. 1993). Cornish was convicted

of involuntary manslaughter and appealed a Batson ruling by relying on juror information cards that

had not been entered into evidence. Id. At the Batson hearing, he attempted to enter the juror

information cards into evidence as part of a comparison analysis. Id. The court responded that “the

cards will speak for themselves.” Id. Cornish did not offer any evidence on the record or perfect

a bill of exception. Id. The court of criminal appeals relied on Heberling v. State2 to rule that

evidence not formally introduced into the record may still be considered on appeal if the evidence

had been treated by the trial court and the parties as though it had been admitted. Id. The court then

determined from the limited exchange between the attorneys and trial court that “the parties and the

trial judge regarded the juror information cards as a significant part of the evidence upon which a

resolution of appellant’s Batson claim would depend.” Id. The court thus allowed the use of




        2
          834 S.W.2d 350 (Tex. Crim. App. 1992). Heberling was not a Batson challenge but was
related to a broader dispute about the ability to use information presented to the trial court, though
never actually entered into evidence, to convict a defendant. Id. at 355.
                                                   6
comparison analysis and the juror-information cards and remanded to the court of appeals for a new

factual determination taking into account the juror-information cards. Id.

                  In this case, the court entered into evidence the juror questionnaires of M.C. and one

other, juror number thirty. All parties also discussed the content of the questionnaires of some other

venire members. For example,


       [Defense Counsel]: I am making a Batson challenge as to Number 11, [M.C.]. For
                          the record, my client is a black male and [M.C.], I believe, is the
                          only black male on the jury.

       The Court:              Objection to the panel.

       [Defense Counsel]: Panel. Sorry. And I am making a Batson challenge. Exclusion
                          of [M.C.] was on race and not race neutral reason.

       The Court:              What was the State’s reason for striking him?

       [State]:                He didn’t answer hardly any of the questions in the
                               questionnaire, but most of them were left blank.

       The Court:              Introduce that.

       [State]:                Sure. One other individual, Number 30, struck her.

       The Court:              Put that in the file marked as Court’s Exhibit.

       [State]:                Additionally, he had a problem with one witness, convicting on
                               the basis of one witness. Reasonable doubt. Number 30 as
                               well. Judge, for the record, we did not strike Number 40 in an
                               effort —

       [Defense Counsel]: Put on the record, this goes back to my original objection . . .
                          Think that is the only objection I could see him on, is the
                          question about would he convict on the basis of one witness.
                          We think that under that decision that question was improper
                          and as he is the only black male on the jury, and my client is a
                          black male, we object to his exclusion based on that and ask
                          that he be put on the jury.
                                                    7
       The Court:            What about the fact that he didn’t list his occupation and
                             several things he left blank on his jury questionnaire?

       [Defense Counsel]: Well, we would say they had a chance in voir dire to ask him
                          those questions. We are still going to urge a Batson challenge.

       The Court:            Your objection is overruled. Challenge is denied.


               In this case, the parties and the judge regarded the juror questionnaires of M.C. and

jurors eleven, thirty, and forty as a significant part of voir dire. See Cornish, 848 S.W.2d at 145.

Thus, we might be able to include the non-admitted questionnaires of jurors eleven and forty as part

of the record. See id. However, because the discussion in the Batson hearing referred to the racial

composition of the jury panel and because the claim on appeal concerns disparate treatment between

persons of different races on the venire, in the interest of justice we will consider all of the

questionnaires.3

               We now consider the substance of appellant’s disparate-treatment argument—that

another jury member, a white female, left a number of blanks comparable to M.C. on her jury

questionnaire. After discounting the questions on the questionnaire relating to a spouse or child (of

which M.C. had none), M.C. still left almost twice as many questions blank as any of the final jury

members. Another member of the venire, a white female, left most of her questionnaire blank and

was also struck. As a result, our analysis of the jury questionnaires does not reveal any disparate

treatment between white and black venire members. Thus, we cannot find that the court was clearly




       3
         We note, however, that the final jury of twelve contained one black female, six white
males, one Asian male, three white females, and one Hispanic male.
                                               8
erroneous in denying appellant’s motion on this ground. See Robinson, 851 S.W.2d at 226; Keeton,

826 S.W.2d at 870.

              Because we have no firm conviction that a mistake has been committed, the ruling

of the trial court must be affirmed. See Young, 826 S.W.2d at 146-47. We overrule appellant’s

issue.

                                        CONCLUSION

              Because we overrule appellant’s sole issue, we affirm the judgment of the trial court.




                                             __________________________________________

                                             W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Affirmed

Filed: April 8, 2004

Do Not Publish




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