Opinion issued October 11, 2012.




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-08-00138-CR
                            ———————————
                        JAMES BLACKMAN, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 230th District Court
                            Harris County, Texas
                        Trial Court Case No. 1121171



                                  OPINION

      A jury found appellant, James Blackman, guilty of the offense of possession

with the intent to deliver a controlled substance, namely cocaine,1 and assessed his

1
      See TEX. HEALTH & SAFETY CODE ANN. §§ 481.002(5), 481.102(3)(D),
      481.112(a), (f) (Vernon 2010).
punishment at confinement for thirty years. In three points of error, appellant

contends that the evidence is legally and factually insufficient to support his

conviction and the trial court erred in denying his Batson2 challenge.

      We previously held that the evidence is legally insufficient to support

appellant’s conviction for the offense of possession of a controlled substance with

intent to deliver. Blackman v. State, 349 S.W.3d 10, 24 (Tex. App.—Houston [1st

Dist.] 2009), rev’d, 350 S.W.3d 588 (Tex. Crim. App. 2011). Having so held, we

did not address appellant’s second and third points of error. Id. The Texas Court

of Criminal Appeals, concluding that legally-sufficient evidence supports

appellant’s conviction, reversed our judgment and remanded the case to us to

address appellant’s remaining points. Blackman v. State, 350 S.W.3d 588, 596

(Tex. Crim. App. 2011). Additionally, we now review, in criminal cases, the

factual sufficiency of the evidence under the same appellate standard of review as

that for legal sufficiency. Ervin v. State, 331 S.W.3d 49, 52–55 (Tex. App.—

Houston [1st Dist.] 2010, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 894–

913 (Tex. Crim. App. 2010)). Accordingly, the only remaining point is appellant’s

Batson challenge.

      We reverse and remand.



2
      Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).

                                          2
                                   Background

      During its voir dire, the State asked a series of questions of certain venire

members who had indicated that they had previously served on a jury in a criminal

case, including venire member number 6, Ms. J. Fortune. The State asked Fortune

about the type of criminal case that she had served on, and she answered, “It was a

case where the person was accused of breaking and entering in a building or

something.” In response to further questioning, she stated that the case involved a

burglary of a habitation and she had served on the jury “about three years ago.”

When asked whether the jury had been “called in to assess punishment in the

case,” Fortune replied, “No.” The State did not ask whether the jury had reached a

verdict.   When asked whether her prior jury service “would influence or impact

[her] ability to be a fair and impartial juror in this case,” Fortune replied, “No.”

The State did not direct any further questions to Fortune. During appellant’s voir

dire, Fortune agreed, along with other jurors who were questioned about the

matter, that it was possible for a police officer to be untruthful on the witness

stand. Appellant’s counsel did not direct any further questioning to Fortune.

      The State exercised one of its peremptory challenges to strike Fortune from

the jury. Appellant objected and raised a Batson challenge to the State’s strike.

During the trial court’s Batson hearing, which was conducted at the bench,

appellant’s counsel explained that Fortune is African American and, in the “initial

                                         3
panel[,] except for those blacks that were challenged for cause . . . there were only

three blacks in the available group.” He explained that the State used two of its

strikes to “eliminate” two of the three remaining African Americans from the jury.

Appellant argued that there is “nothing in the record to indicate” that Fortune had

expressed any bias and the fact that one of the remaining African-American venire

members was seated on the jury did not excuse the State’s conduct.

      In response, the trial prosecutor explained that he struck Fortune based upon

a “vibe” that he got from her in “trying to make eye contact.” He asserted that,

before jury selection, Fortune had been “paying attention” to appellant’s counsel

“the whole time” and had “actually pointed” to the prosecutor “to tell” him that

appellant’s counsel wanted to “approach the bench.” The prosecutor also asserted

that he became “troubled” by Fortune’s responses to questions about her prior jury

service. He explained that Fortune “was the only person who used the term that

the defendant was accused of—I think burglary of a habitation for stealing

something and then we went to the part whether or not she got a verdict or this as

punishment she said they didn’t.” (Emphasis added.) The prosecutor further

explained:

      I just got the feeling—by the way, she said the word accused that she
      felt like he was wrongfully. I got based on the tone she was the only
      person who described it as—everyone else when asked about it, they
      said it was a theft case or it was this case. So, that was what troubled
      me with regard to [Fortune]. As you can see, I placed Juror No. 24

                                         4
      [another African-American panel member] on the panel. There [are]
      other people I struck for similar reasons.

      The trial court then asked the prosecutor who he had struck for similar

reasons, and the prosecutor identified (1) a white male that he had struck because

of a bad “feel[ing]” and a lack of trust, (2) a female that he had struck because of a

bad “feel[ing],” (3) a white male that he had struck for a bad “vibe” and for

responses to questions that the prosecutor “disliked,” and (4) a white male that he

had struck because he “seemed to be engaging more” with appellant’s counsel

during voir dire.

      Appellant’s counsel remarked that he was “troubled” by the prosecutor’s

explanation for striking Fortune because a defendant actually stands “accused” of a

criminal offense and is presumed innocent until proven guilty. Appellant’s counsel

also noted that the record did not indicate that the jury on which Fortune had

previously served acquitted the defendant and, thus, the prosecutor’s reasons for

striking Fortune constituted a pretext.

      In response to the trial court’s further questioning of him, the prosecutor

clarified his prior explanation, noting that Fortune had stated that she had not

assessed punishment during her prior jury service. The prosecutor agreed that

Fortune had not stated that the jury on which she had served had been unable “to

reach a verdict.” He maintained, however, that the way in which Fortune had

“phrased” her answer about her prior jury service caused him “hesitation” because
                                          5
she referred to the defendant in the prior case as the “accused.” When further

asked by the trial court about Fortune’s reference to the defendant in the prior case

as an “accused,” the prosecutor explained,

      I understand that, but it was the way in which she said it was and then
      the fact that they did not assess punishment. I listened to it, then it
      caused me hesitation to think in the tone of voice she said it, the way
      the eye contact that I was not getting with her, the eye contact
      [appellant’s counsel] was getting with her, the way she said I felt like
      she insinuations in my mind was that the I was [sic] wrongfully
      accused. I don’t know what happened, that’s all I have to go from.
      And so, based on the information I have been given, that’s why that
      was the concern and also coupled with it with fact [sic] that prior to if
      you recall prior to [appellant’ counsel] starting up jury selection, she
      had looked at —she was apparently watching him just more which is
      concern of mine and then when they needed me to approach, I wasn’t
      paying attention. She was looking at me and point to me saying that
      [appellant’s counsel] wanted me. So, you know, I put those things
      together, and I just—that’s where I come up with my concerns.

The trial court then denied appellant’s Batson challenge without explanation.

                                 Batson Challenge

      In his third point of error, appellant argues that the trial court erred in

overruling his Batson challenge to the State’s use of a peremptory strike against

Ms. Fortune3 because the State’s reasons for striking her constituted a “pretext for

racial bias.” He asserts that the State may not rely upon a bad “vibe” or a venire

member’s reference to the “accused” in a criminal case as race-neutral reasons for

striking an African American from the venire.

3
      At trial, appellant also raised a Batson challenge in regard to venire member
      number eleven, but appellant has dropped this challenge on appeal.
                                         6
      The use of a peremptory challenge to strike a potential juror because of race

violates the Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution. Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719

(1986). It also violates Article 35.261 of the Texas Code of Criminal Procedure.

TEX. CODE CRIM. PROC. ANN. art. 35.261 (Vernon Supp. 2012). In Batson, the

United States Supreme Court provided a three-step process for trial courts to use in

adjudicating a claim that a peremptory challenge is based on racial discrimination.

476 U.S. at 96–98, 106 S. Ct. at 1723–24; see also Snyder v. Louisiana, 552 U.S.

472, 476–78, 128 S. Ct. 1203, 1207–08 (2008); Miller-El v. Cockrell, 537 U.S.

322, 328–29, 123 S. Ct. 1029, 1035 (2003); Watkins v. State, 245 S.W.3d 444, 447

(Tex. Crim. App. 2008). First, a defendant must make a prima facie showing that

the peremptory challenge has been exercised on the basis of racial discrimination.

Cockrell, 537 U.S. at 328–29, 123 S. Ct. at 1035.       Second, if the prima facie

showing has been made, the State must offer a race-neutral explanation for the

strike. Id. Third, the trial court must decide whether the defendant has shown

purposeful racial discrimination. Id.; Grant v. State, 325 S.W.3d 655, 657 (Tex.

Crim. App. 2010).

      On appeal, a trial court’s ruling on the issue of discriminatory intent must be

sustained unless it is clearly erroneous. Snyder, 552 U.S. at 477–78, 128 S. Ct. at

1207. The “critical question” in determining whether the opponent of a strike has

                                         7
proved “purposeful discrimination” is “the persuasiveness of the prosecutor’s

justification for his peremptory strike.” Cockrell, 537 U.S. at 338–39, 123 S. Ct. at

1040. The State must “stand or fall on the plausibility of [its] reasons” for striking

a juror. Miller–El v. Dretke, 545 U.S. 231, 252, 125 S. Ct. 2317, 2332 (2005).

The State’s proffer of a “pretextual explanation naturally gives rise to an inference

of discriminatory intent.” Snyder, 552 U.S. at 485, 128 S. Ct. at 1212. “[W]hen

the State’s explanation for striking a juror is clearly contrary to the evidence, . . .

there is no innocent mistake,” and the case must be “reversed for Batson error.”

Greer v. State, 310 S.W.3d 11, 16 (Tex. App.—Dallas 2009, no pet.).

      On appeal, the State identifies the trial prosecutor’s stated reasons for

striking Fortune as follows: his alleged belief that the jury on which Fortune had

previously served had not reached a verdict and her statement that the jury did not

assess punishment; Fortune’s “tone” and referral to the defendant in the prior case

as the “accused”; and her overall bad “vibe,” eye contact, and demeanor with the

prosecutor in contrast to her attentiveness to appellant’s counsel (including the

alleged incident in which she “point[ed]” out to the prosecutor that he was wanted

at the bench).

      There is no factual basis in the record to support the State’s argument that

the jury on which Fortune had previously served did not reach a verdict. As the

trial prosecutor agreed in subsequent clarifying remarks during the Batson hearing,

                                          8
Fortune only stated, in response to a direct question from the prosecutor, that the

jury did not assess punishment.        The prosecutor asked essentially identical

questions of venire members seven and eight regarding whether they had assessed

punishment during their prior jury service. As did Fortune, both of these venire

members, who were not African American, similarly stated that they had not

assessed punishment during their prior jury service. Despite their nearly identical

answers to the prosecutor’s question, venire members seven and eight were seated

on the jury. The State offers no explanation as to why its purported race-neutral

reason for striking Fortune, based upon the fact that she did not assess punishment

during her prior jury service, did not apply to striking these other venire members.

We conclude that the State’s purported race-neutral explanation, which changed

during the Batson hearing and ultimately is not supported by the record, for

striking Fortune based upon her prior jury service, was not genuine and was

pretextual. Thus, it “naturally gives rise to an inference of discriminatory intent.”

See Snyder, 552 U.S. at 485, 128 S. Ct. at 1212.

      The other reasons provided by the State for striking Fortune generally relate

to her purported bad “vibe,” i.e., the tone of her voice, lack of eye contact with the

trial prosecutor, and her contrasting attentiveness to appellant’s counsel. The

United States Supreme Court has addressed a Batson challenge based, in part, on

similar concerns expressed about a venire member’s demeanor during voir dire.

                                          9
See Snyder, 552 U.S. at 477–78, 128 S. Ct. at 1208.          In Snyder, the Court

considered two purported race-neutral reasons offered by a prosecutor to explain

the peremptory challenge of an African-American venire member.            Id.   The

prosecutor explained that he had struck the African-American venire member

because he appeared “nervous” and had conflicting obligations as a student-

teacher.   Id. In regard to the first stated reason of “nervousness,” the Court

acknowledged the “pivotal role” of trial courts in evaluating Batson challenges,

noting that a trial court “must evaluate not only whether the prosecutor’s demeanor

belies a discriminatory intent, but also whether the juror’s demeanor can credibly

be said to have exhibited the basis for the strike attributed to the juror by the

prosecutor.” Id. The Court explained that an appellate court must therefore defer

to a trial court’s determinations of credibility and demeanor “in the absence of

exceptional circumstances.” Id. It emphasized that deference to the trial court “is

especially appropriate where a trial judge has made a finding that an attorney

credibly relied on demeanor in exercising a strike.” Id. at 479, 128 S. Ct. at 1209.

However, the Court noted that the record in the case before it did not reflect that

the trial court had “actually made a determination concerning” the challenged

venire member’s demeanor but instead had “allowed the challenge without

explanation.” Id. Because the trial court could have relied upon the second

proffered reason for the strike, which did not concern the challenged venire

                                        10
member’s demeanor, the Supreme Court could not “presume” that the trial court

had credited the demeanor explanation. Id.

      The Supreme Court then considered the second reason for the strike, i.e., the

venire member’s conflicting obligations. The Court held that the record refuted the

prosecutor’s conflicting-obligations explanation, and it noted that the “suspicious”

nature and “implausibility” of this explanation was “reinforced” by the fact that the

prosecutor did not strike white venire members who had disclosed conflicting

obligations similar to those expressed by the struck venire member. Id. at 482–83,

128 S. Ct. at 1210–11. The Court held that, in light of the circumstances and the

absence of anything in the record to show that the trial court had credited the

prosecutor’s demeanor explanation, the trial court had clearly erred in denying the

defendant’s Batson challenge. Id. at 485–86, 128 S. Ct. at 1212.

      Here, the trial court did not make a finding that the State had credibly relied

on Fortune’s demeanor or her bad “vibe” in exercising the peremptory challenge

against her. In fact, the record reveals that the trial court, based upon Fortune’s

prior jury service, actually engaged her in questioning to illustrate legal concepts to

the venire panel.4 This counters any suggestion that the trial court would have


4
      During its remarks to the jury preceding voir dire, the trial court asked the venire
      panel why the law does not require the State to prove something beyond “all
      possible doubt.” Fortune answered that such a burden would be “close to
      impossible” and so the law requires “a reasonable doubt.” The trial court
      subsequently posed additional questioning to Fortune based upon the fact that she
                                           11
credited the State’s explanation that Fortune was inattentive or was sending a bad

“vibe” in the courtroom. And there is nothing in the record to indicate that Fortune

favored appellant or appellant’s counsel. See Davis v. Fisk Elec. Co., 268 S.W.3d

508, 518 (Tex. 2008) (stating that “[p]eremptory strikes may legitimately be based

on nonverbal conduct, but permitting strikes based on an assertion that nefarious

conduct ‘happened,’ without identifying its nature and without any additional

record support, would strip Batson of meaning”).5


      had previously served on a jury. In response to the trial court’s questioning,
      Fortune again agreed that the State must present evidence demonstrating guilt
      beyond a reasonable doubt.
5
      The Texas Court of Criminal Appeals has recently stated its position that the
      exercise of a peremptory challenge by the State based upon a venire member’s
      purported demeanor is “considered proved” if defense counsel does not “rebut the
      observation” of the State. See Nieto v. State, 365 S.W.3d 673, 680 (Tex. Crim.
      App. 2012). In addressing demeanor-based challenges in its Nieto opinion, the
      court of criminal appeals did not substantively discuss the United States Supreme
      Court’s opinion in Snyder, which we find to be more similar to the instant case.
      Nieto is distinguishable from both Snyder and the instant case because, in Nieto,
      the court concluded that the State’s non-demeanor based explanation passed
      muster and did not constitute a pretext. Id. at 679. Specifically, in Nieto, prior to
      addressing the State’s demeanor-based challenges, the court of criminal appeals
      concluded that the State’s use of a peremptory challenge to strike a venire member
      because he shared the same last name as the defendant was “sensible” and race-
      neutral. Id.

      In contrast, here, similar to the facts in Snyder, the alternative, non-demeanor
      based explanation put forth by the State for striking Fortune was pretextual.
      Additionally, we note that although appellant’s trial counsel did not directly rebut
      the trial prosecutor’s assertion that Fortune gave him a bad “vibe,” appellant’s trial
      counsel emphasized that there was “nothing” in the record indicating that
      Fortune’s prior jury service had adversely affected her ability to be an impartial
      juror, and he noted that the prosecutor’s “other feelings” were “very subjective.”
      The record also reflects that during the questioning of Fortune, the prosecutor did
                                            12
      The trial prosecutor did not ask any questions of Fortune indicating that he

was concerned with her general “vibe,” demeanor, or attentiveness. See id. (stating

that “[n]onverbal conduct or demeanor, often elusive and always subject to

interpretation, may well mask a race-based strike”; “verification” of non-verbal

conduct giving rise to use of peremptory strike “may come from the bench if the

court observed it,” “may be proved by the juror’s acknowledgement,” or may be

borne out by “detailed explanations of counsel”; and complained-of conduct must

“be proved and reflected in an appellate record” and identified “with some

specificity”). The substance of all of Fortune’s answers, including her use of the

term “accused” to describe a criminal defendant in a prior case, is unremarkable.

Fortune’s answers to the other questions concerning her prior jury service are

consistent with those offered by other non-African-American venire members who

the State did not strike from the jury.




      not make any reference to any purported negative tone or “vibe.” Nor did the
      prosecutor express any concern when Fortune referred to the defendant in the prior
      case in which she had served on a jury as the “accused.” Finally, as discussed
      herein, the record reveals that on at least two occasions during voir dire the trial
      court engaged in a series of questions with Fortune to illustrate legal concepts to
      the venire and, afterwards, the trial court thanked Fortune for participating in these
      discussions. There is nothing in the record before us to substantiate a claim that
      Fortune was not being attentive to all parties in the proceeding or was sending a
      bad “vibe” in the courtroom.




                                            13
      We must conclude that the State offered a pretextual reason for striking

Fortune, giving rise to an adverse inference of racial discrimination. And, as in

Snyder,6 we cannot presume that the trial court relied on the trial prosecutor’s

explanation that he struck Fortune as a result of her general demeanor or bad

“vibe.” See Snyder, 552 U.S. at 479–86, 128 S. Ct. 1209–12.           Accordingly, we

hold that the trial court clearly erred in denying appellant’s Batson challenge to the

State’s use of a peremptory strike against Fortune.




6
      The Supreme Court has since further explained its holding in Snyder. In Thaler v.
      Haynes, the Court stated that, in Snyder, it “concluded that the record refuted the
      explanation that was not based on demeanor and, in light of the particular
      circumstances of the case,” the prosecutor’s exercise of the peremptory challenge
      “could not be sustained on the demeanor-based ground, which might not have
      figured in the trial judge’s unexplained ruling.” 130 S. Ct. 1171, 1174–75 (2010).
      The Court cautioned that it had not created in Snyder a blanket rule that a
      “demeanor-based explanation must be rejected if the [trial court] did not observe
      or cannot recall the juror’s demeanor.” Id. at 1174. Our holding is consistent with
      Snyder, as further explained by Thaler, because, in this case, the State provided
      both a demeanor-based explanation, which is not substantiated in the record, and a
      second explanation that we have concluded is pretextual. Because the second
      explanation is pretextual, we cannot presume that the trial court relied on the
      State’s demeanor-based explanation. See id. at 1174–75.
                                          14
                                    Conclusion

      We reverse the judgment of the trial court and remand for proceedings

consistent with this opinion.




                                             Terry Jennings
                                             Justice

Panel consists of Justices Jennings, Keyes, and Higley.

Justice Keyes, dissenting.

Publish. TEX. R. APP. P. 47.2(b).




                                        15
