                                        NO. 12-14-00219-CR

                               IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

CHRISTOPHER DARELL KENNEDY,                              §        APPEAL FROM THE 114TH
APPELLANT

V.                                                       §        JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                 §        SMITH COUNTY, TEXAS

                                        MEMORANDUM OPINION
       Christopher Darell Kennedy appeals his conviction for the felony offense of possession
of a controlled substance. In his sole issue, he contends the trial court erred in overruling his
Batson1 motion. We affirm.

                                                 BACKGROUND
       Officers from the Tyler Police Department, while on patrol, noticed a parked vehicle
occupied by Appellant. The officers believed Appellant committed a traffic violation because he
parked his vehicle more than eighteen inches from the curb. When the officers made contact
with Appellant, they noticed the odor of marijuana emanating from the vehicle. Appellant
admitted possessing marijuana.            The officers arrested Appellant, searched his vehicle, and
discovered cocaine. Appellant was arrested and indicted for possession of a controlled substance
(cocaine) in an amount of one gram or more but less than four grams.
       Appellant pleaded “not guilty” to the charged offense, and the case proceeded to a jury
trial. Following the voir dire examination of prospective jurors, the State used two of its
peremptory challenges to strike African-American potential jurors. Appellant, who is African-

       1
           Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69 (1986).
American, made a Batson motion complaining of the State’s strikes. After an evidentiary
hearing, the trial court denied the motion.
       Following the presentation of the evidence and argument, the jury found Appellant guilty
of the charged offense. The jury sentenced Appellant to ten years of imprisonment and assessed
a $10,000.00 fine. This appeal followed.

                                         BATSON MOTION
       In his sole issue, Appellant contends that the trial court erred in overruling his Batson
motion.
Standard of Review and Applicable Law
       The Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution forbids a party from challenging potential jurors on the basis of their race. U.S.
CONST. amend. XIV; Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d
69 (1986). A trial court follows a three step process to evaluate a claim that a litigant has made a
peremptory strike based on race. Snyder v. Louisiana, 552 U.S. 472, 476, 128 S. Ct. 1203,
1207, 170 L. Ed. 2d 175 (2008). First, a defendant must make a prima facie showing that the
state has used a peremptory challenge to remove a potential juror on account of race. Id.;
Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770, 131 L. Ed. 2d 834 (1995). A
defendant may establish a prima facie case solely on evidence concerning the state’s exercise of
peremptory challenges at trial. Batson, 476 U.S. at 96, 106 S. Ct. at 1723. He also must show
that these facts and any other relevant circumstances raise an inference that the state has
excluded potential jurors from the petit jury based on race. See id.
       Once the defendant has made this prima facie showing, the burden shifts to the state to
come forward with a race neutral explanation for challenging the jurors. Snyder, 552 U.S. at
476–77, 128 S. Ct. at 1207; Batson, 476 U.S. at 97–98, 106 S. Ct. at 1723–24. If the state offers
race neutral reasons for the strikes, the burden shifts back to the defendant to show that the
state’s race neutral explanations for the strikes are contrived or a pretext to conceal a racially
discriminatory intent. See Shuffield v. State, 189 S.W.3d 782, 785 (Tex. Crim. App. 2006);
Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). The credibility of a prosecutor
who offers race neutral explanations for disparate striking of jurors can be measured by (1) the
prosecutor’s demeanor, (2) how reasonable or how improbable the explanations are, and (3)




                                                 2
whether the proffered rationale has some basis in accepted trial strategy. See Miller–El v.
Cockrell, 537 U.S. 322, 339, 123 S. Ct. 1029, 1040, 154 L. Ed. 2d 931 (2003). But those factors
are not exclusive, and we examine all relevant factors when evaluating the prosecutor’s
explanations for strikes that are alleged to be pretextual. See Miller–El v. Dretke, 545 U.S. 231,
253, 125 S. Ct. 2317, 2332, 162 L. Ed. 2d 196 (2005) (examining actual strikes, use of jury
shuffle, disparity in questioning, and history of excluding racial minorities from juries).
        We will disturb a trial court’s ruling on a Batson motion only if it is “clearly erroneous.”
Snyder, 552 U.S. at 477, 128 S. Ct. at 1207; Guzman v. State, 85 S.W.3d 242, 254 (Tex. Crim.
App. 2002). Generally, a fact finder’s decision is clearly erroneous when it leaves an appellate
court with a “definite and firm conviction that a mistake has been committed.” Guzman, 85
S.W.3d at 254. We review the evidence in the light most favorable to the trial court’s ruling and
afford great deference to that ruling. Jasper, 61 S.W.3d at 422. Furthermore, a claim that the
proffered race neutral reasons for strikes are pretextual presents a question of fact, and the trial
court is in the best position to evaluate such claims. See Watkins v. State, 245 S.W.3d 444, 447
(Tex. Crim. App. 2008); Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). The
ultimate plausibility of a race neutral explanation is to be considered in the context of whether
the defendant has satisfied his burden to show that the strike was the product of the prosecutor’s
purposeful discrimination. Watkins, 245 S.W.3d at 447.
Discussion
        Appellant contends that the State struck all of the potential African-American jurors from
the panel for non-race-neutral reasons, and consequently, he is entitled to a new trial.2
        The trial court did not expressly find that Appellant made a prima facie showing of racial
discrimination. However, the trial court asked the prosecutor his reasons for striking the panel’s
African-American members.              When questioned by Appellant’s counsel, the prosecutor
specifically denied that race played any role in striking Juror 16 and Juror 21.




        2
           The trial court stated that it could not recall whether the strikes were exercised against all African-
American members within the strike zone. As the trial court noted on the record, Juror 23 did not answer the
question regarding race or ethnicity on the juror card, and the trial court could not recall whether Juror 23 was
African-American. The parties have represented that Juror 16 and Juror 21 were the only African-Americans in the
strike zone.




                                                        3
       With regard to Juror 16, the prosecutor stated that he struck her for her nonverbal
responses to comments made by another potential juror. Specifically, the prosecutor reasoned as
follows:

           And then Juror No. 16, the primary reason for striking Juror No. 16 was when [Appellant’s
       counsel] was questioning the panel, she actually was questioning Juror No. 12, who he was
       standing up. Juror No. 12 is . . . a white male. And [Appellant’s counsel] asked him a question
       about the Fifth Amendment right and reasons why somebody would not testify, and his response
       to those questions, Juror No. 12, began to list off a number of things, reasons why somebody
       might not testify, because they have—anyway, quite extensive. I felt that Juror No. 12’s answers
       were bad for the State. I didn’t think he was a State’s juror because he seemed to express, I guess,
       an over favoritism towards the Defense and reasons they may not testify.
           During Juror No. 12’s answering of that question, while he was saying his answers to that
       question, and he went on for some time, Juror No. 16, who I could see Juror No. 12 and Juror No.
       16 from where I was sitting, was actively nodding to his answers to that question, and it looked to
       me that she was agreeing with what he was saying, with the fact that—with the Fifth Amendment
       right. The reason they do not require the defendant testify is because whatever the defense
       attorney says is really what the defendant would testify to. That’s how I took Juror No. 12’s
       answers, which is why I struck Juror No. 12; also why I struck Juror No. 16, because she was very
       visibly nodding in agreement with the answer that Juror No. 12 gave.


       The prosecutor explained that he struck Juror 21 based on his youth, education level, and
employment at a low skilled job. Specifically, the prosecutor stated as follows:

          [Prosecutor:] Juror No. 21, we exercised a peremptory strike on because Juror No. 21 is 19
       years old. He’s young. I generally—well always, I guess, strike young jurors, especially ones
       with low education, and I guess blue collar, low-education-type jobs.
          Juror No. 21 is 19, just has a high school diploma, and he’s also a dock worker for the Tyler
       Morning Telegraph. The fact that he was young was the primary reason for striking him. Also,
       because he only had a high school diploma, and he’s a dock worker, which is, in my opinion, a
       low-education employment.

           ....

          [Appellant’s Counsel:] [O]n Juror No. 21, you stated the reason why you struck him is due to
       the fact he’s 19 years old and a dock worker. And what is the purpose from the past experiences?
       Is it your testimony a person who’s 19 years old, uneducated, or a blue collar worker is not
       capable of making decisions such as serving as a juror?

           [Prosecutor:] I didn’t say he wasn’t capable of serving as a juror. And it’s my experience that
       jurors of a younger age tend to be more liberal, as far as their morals, as well as political beliefs. I
       think that’s a pretty standard trend, not just in Smith County but everywhere.
            Generally, anyone who’s under the age of 25, I would strike for their age. Certainly anyone
       under the age of 30, I would consider striking for age, but definitely under the age of 25. I would
       strike anybody on the panel that’s younger than that because I find that to be relevant, one, to how
       conservative they are and, therefore, whether they would be a good State’s juror or not.
           But also given the number of life experiences that they’ve had. Generally, it’s my opinion that
       being on jury duty and assessing a prison sentence is a hard decision to make, and that is easier to
       do for someone who is older, who has had to make more of those tough life decisions.




                                                          4
          While the blue collar job is not somebody that I would strike somebody for on its own, there’s
       obviously many people with blue collar jobs, the fact that . . . Juror No. 21, who is 19, is a dock
       worker, seems to me to be a pretty basic job, not a lot of hard decisions to make there.
          That’s something, as a State—for State’s jurors, I’m looking for someone who can make hard
       decisions and make the tough call if they’re placed on the jury. I’m sure he’s capable of doing
       those, but I didn’t think he would be a preferable juror because of his age and because of his
       employment.


       A prospective juror’s nonverbal reactions and body language can be race neutral reasons
for exercising a peremptory strike. See Nieto v. State, 365 S.W.3d 673, 680 (Tex. Crim. App.
2012). Youth has been held to be a racially neutral reason for exercising a peremptory strike.
Moss v. State, 790 S.W.2d 731, 732 (Tex. App.—Houston [14th Dist.] 1990, no pet.).
Employment and education status can also be racially neutral reasons for exercising strikes. See
Middleton v. State, 187 S.W.3d 134, 142 (Tex. App.—Texarkana 2006, no pet.) (panel
member’s employment is race neutral explanation, if prosecutor has had poor success with that
type worker); Brewer v. State, 932 S.W.2d 161, 165 (Tex. App.—El Paso 1996, no pet.)
(education status).
       Appellant acknowledges that these explanations are facially race neutral. However, he
argues that the State’s proffered reasons were contrived as a pretext for purposeful racial
discrimination. Specifically, he claims on appeal that the prosecutor’s strike against Juror 16
was an impermissible “sight strike.” A “sight strike” is exercised against anyone who does not
fit within any type of group that the state would ever want to put on a jury. See Davis v. State,
796 S.W.2d 813, 819 (Tex. App.—Dallas 1990, pet. ref’d). The State’s strike against Juror 16
was not a sight strike. It was based on a specific nonverbal reaction indicating agreement with
comments made by another juror that the prosecutor deemed unfavorable to the State. The State
also struck that juror, who is a white male. A prosecutor’s reason for striking a juror based on
her demeanor is established when the statement is made on the record, undisputed by opposing
counsel, and unquestioned by the trial judge. Yarborough v. State, 947 S.W.2d 892, 895 (Tex.
Crim. App. 1997).
       Appellant also contends that even though the gesture occurred during Appellant’s voir
dire, the State had an opportunity to clarify Juror 16’s nonverbal responses and that it failed to do
so. While a lack of meaningful questioning is a factor to consider in determining whether the
trial court’s ruling was clearly erroneous, it is not determinative. See Johnson v. State, 959
S.W.2d 284, 290-91 (Tex. App.—Dallas 1997, pet. ref’d). The trial court judge was able to



                                                       5
personally observe the proceedings. Therefore, we defer to the trial court’s assessment of the
prosecutor’s credibility in explaining his reasoning.
       After the prosecutor provided his reasons for striking Juror 16 and Juror 21, Appellant
simply argued that the State had failed to show that his reasons for striking those jurors were race
neutral. The entirety of Appellant’s argument at the Batson hearing was as follows:

       Your Honor, I feel like this jury—this panel should not be seated due to the fact that [the
       prosecutor] just said from his experience, but just from your experience, you really don’t know
       that—I feel as though [Juror No. 21] was struck due to the fact of him being African-American,
       along with Juror No. 16, because [the prosecutor] said [s]he was—she was nodding, but there’s
       nowhere in the record but from his testimony.


       Appellant did not point out any discrepancies in the reasons given or show that the
reasons were merely pretext. Appellant relied solely upon the fact that two African-American
members of the panel were struck and identified no other meaningful facts or circumstances to
support his claim of discrimination. He did not present any evidence to refute the State’s
explanations.
       Appellant also argues that with respect to Juror 21, “while an age-based striking does not
perhaps evidence a discriminatory intent as strongly, the Court nonetheless should consider the
strike in light of the State’s actions with Juror 16.” We have already concluded that the trial
court’s ruling denying the Batson challenge for the State’s strike against Juror 16 was not clearly
erroneous. Since this argument depends upon our finding the State’s strike of Juror 16 was a
pretext for racial discrimination, we need not address it. See TEX. R. APP. P. 47.1.
       After reviewing the record, we conclude that Appellant failed to carry his burden to rebut
the State’s explanation or to establish that the reasons were merely a pretext for purposeful
discrimination. See Ford v. State, 1 S.W.3d 691, 694 (Tex. Crim. App. 1999). The facially
plausible reasons articulated by the State were not contradicted. Accordingly, we are not left
with a “definite and firm conviction that a mistake has been committed” and cannot conclude
that the trial court’s ruling was clearly erroneous. See Hill v. State, 827 S.W.3d 860, 865 (Tex.
Crim. App. 1992).
       Appellant’s sole issue is overruled.

                                              DISPOSITION
       Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.


                                                     6
                                                                BRIAN HOYLE
                                                                   Justice


Opinion delivered June 10, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                          7
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JUNE 10, 2015


                                         NO. 12-14-00219-CR


                             CHRISTOPHER DARELL KENNEDY,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee


                                Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-0383-14)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
