                        IN THE COURT OF CRIMINAL APPEALS
                                    OF TEXAS

                                       NO. PD-1438-06

                           BRYAN KEITH WATKINS, Appellant

                                               v.

                                   THE STATE OF TEXAS

            ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE FIFTH COURT OF APPEALS
                             DALLAS COUNTY

       P RICE , J., delivered the opinion of the Court in which M EYERS, W OMACK, J OHNSON ,
K EASLER , H ERVEY , H OLCOMB and C OCHRAN, JJ., joined. K ELLER , P.J., filed a concurring
opinion.

                                        OPINION

       After a jury trial, the appellant was convicted of the offense of burglary of a habitation,

and his punishment was assessed by the jury at a term of twenty years in the penitentiary. On

direct appeal the appellant claimed, inter alia, that the State exercised a number of its

peremptory challenges to remove African-American panelists on account of their race. In an

unpublished opinion, the Dallas Court of Appeals held that the trial court’s ruling that the
                                                                                Watkins — 2

appellant failed to establish purposeful discrimination was not clearly erroneous.1 In his

petition for discretionary review, the appellant complains that the court of appeals conducted

an inadequate analysis of his claim in light of the opinion of the United States Supreme Court

in Miller-El v. Dretke,2 and that it ignored many of the arguments presented in his brief

explaining how the record establishes purposeful discrimination. We granted the appellant’s

petition in order to address these contentions.3

                                  THE LEGAL STANDARD

                                           1. At Trial

       Since the Supreme Court’s opinion in Batson v. Kentucky,4 a criminal defendant has

been able to demonstrate that the State has engaged in purposeful discrimination in the

exercise of its peremptory challenges “by relying solely on the facts concerning [jury]

selection in his case.”5 Proof of systematic exclusion of minority jurors over the course an

extended period of time is no longer required. The defendant must demonstrate, by a

preponderance of the evidence, that the prosecutor indulged in purposeful discrimination



       1

       Watkins v. State, No. 05-05-00568-CR (Tex. App.—Dallas, delivered May 16, 2006).
       2

       545 U.S. 231 (2005).
       3

       See T EX. R. A PP. P. 66.3(c).
       4

       476 U.S. 79 (1986).
       5

       Id. at 95 (emphasis in the original).
                                                                                        Watkins — 3

against a member of a constitutionally protected class in exercising his peremptory

challenges.6 As the process has been described by the Supreme Court:

                Under our Batson jurisprudence, once the opponent of a peremptory
        challenge has made out a prima facie case of racial discrimination (step one),
        the burden of production shifts to the proponent of the strike to come forward
        with a race-neutral explanation (step two). If a race-neutral explanation is
        tendered, the trial court must then decide (step three) whether the opponent of
        the strike has proved purposeful racial discrimination.7

At the second step of this process, the proponent of the strike need only tender an explanation

that is race neutral on its face.8 The ultimate plausibility of that race-neutral explanation is

to be considered as part of the third step of the analysis, in which the trial court determines

whether the opponent of the strike (usually the defendant) has satisfied his burden of

persuasion to establish by a preponderance of the evidence that the strike was indeed the

product of the proponent’s purposeful discrimination.9 Whether the opponent satisfies his



        6

        Guzman v. State, 85 S.W.3d 242, 255 & n.48 (Tex. Crim. App. 2002); Tompkins v. State,
774 S.W.2d 195, 202 (Tex. Crim. App. 1987); George E. Dix & Robert O. Dawson, 43 T EXAS
P RACTICE: C RIMINAL P RACTICE AND P ROCEDURE § 35.115 (2d ed.), at 536-37 (“Ultimately, the trial
court must decide whether the Batson claimant has shown by a preponderance of the evidence that
a strike was exercised for an unacceptable reason. * * * The claim must be proved by a
preponderance of the evidence.”).
        7

       Purkett v. Elem, 514 U.S. 765, 767 (1995); Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim.
App. 1999).
        8

        Purkett v. Elem, supra, at 767-68.
        9

       Id. at 768 (“It is not until the third step that the persuasiveness of the justification [for the
peremptory strike] becomes relevant—the step in which the trial court determines whether the
opponent of the strike has carried his burden of proving purposeful discrimination.”).
                                                                                         Watkins — 4

burden of persuasion to show that the proponent’s facially race-neutral explanation for his

strike is pre-textual, not genuine, is a question of fact for the trial court to resolve in the first

instance.10

                                            2. On Appeal

        Once the opponent of the challenged strike raises a question of purposeful

discrimination, if the trial court then proceeds immediately to the second step by inquiring of

the proponent whether he had a non-discriminatory purpose, a reviewing court is to assume

that the opponent has satisfied his step-one obligation to make a prima facie case of

purposeful discrimination and address only the second and third steps.11 The reviewing court

should not overturn the trial court’s resolution of the Batson issue unless it determines that

the trial court’s ruling was clearly erroneous.12 In assaying the record for clear error, vel non,

the reviewing court should consider the entire record of voir dire; it need not limit itself to

arguments or considerations that the parties specifically called to the trial court’s attention so




        10

        Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004) (“The term ‘pretext’ is solely
a question of fact; there is no issue of law. Therefore, the trial court was in the best position to make
that credibility determination.”).
        11

        Hernandez v. New York, 500 U.S. 352, 359 (1991); Dix & Dawson, supra, § 35.113, at 528
(“When the trial court . . . goes directly to a Batson hearing on neutral reasons without making a
finding on the prima facie question, the question whether a prima facie case has been made becomes
moot if a full Batson hearing was conducted by the trial court.”).
        12

       Gibson v. State, supra, at 534; Herron v. State, 86 S.W.2d 621, 630 (Tex. Crim. App. 2002);
Whitsey v. State, 796 S.W.2d 707 (Tex. Crim. App. 1990) (Opinion on State’s motion for rehearing).
                                                                                      Watkins — 5

long as those arguments or considerations are manifestly grounded in the appellate record.13

But 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.14

                                      3. Miller-El v. Dretke

       But, as the Supreme Court has illustrated in its opinion in Miller-El v. Dretke,

“[d]eference does not by definition preclude relief.”15 Because Miller-El raised his Batson

claim in the context of a federal application for writ of habeas corpus, the standard he was

required to meet was rigorous indeed.16 The Supreme Court nevertheless held that Miller-El

met that demanding standard.

       The Supreme Court considered the combined impact of a number of factors in



       13

         Young v. State, 826 S.W.2d 141 (Tex. Crim. App. 1991); Vargas v. State, 838 S.W.2d 552,
556 (Tex. Crim. App. 1992). Cf. Miller-El v. Dretke, supra, at 241 n.2 (in context of federal habeas
corpus review under 28 U.S.C. § 2254, federal court could consider entirety of appellate record with
respect to voir dire and make comparative-juror analysis in determining plausibility of prosecutor’s
race-neutral explanations, though state court was apparently never specifically asked to make
comparative-juror analysis during Batson hearing).
       14

        Gibson v. State, supra, at 534.
       15

        545 U.S. at 240, quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
       16

         Id. (“Under the Antiterrorism and Effective Death Penalty Act of 1996, Miller-El may obtain
relief only by showing the Texas conclusion to be ‘an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.’ 28 U.S.C. § 2254(d)(2). Thus we presume
the Texas court’s factual findings to be sound unless Miller-El rebuts the ‘presumption of correctness
by clear and convincing evidence.’ § 2254(e)(1).”).
                                                                                      Watkins — 6

concluding that, by clear and convincing evidence, the prosecutors exercised two peremptory

challenges on a racially discriminatory basis, notwithstanding the race-neutral explanations

they offered at the Batson hearing.17 Those factors included:

       •       that the State exercised its peremptory challenges to eliminate a far
               greater proportion of the African-American veniremen than the non-
               African-American veniremen;18

       •       that the reasons the State asserted for eliminating the two African-
               American veniremen in question appeared to apply equally well to many
               of the non-African-American veniremen whom the State did not
               challenge;19

       •       that the State utilized its option to shuffle the jury panels in a manner
               that supported an inference of race discrimination;20

       •       that the State directed questions expressly designed to elicit grounds for
               peremptory challenges disproportionately, in a manner that suggested
               an intent to single out African-American veniremen for elimination;21
               and

       17

         Id. at 266 (“The state court’s conclusion that the prosecutors’ strikes [of two African-
American veniremen] were not racially determined is shown up as wrong to a clear and convincing
degree; the state court’s conclusion was unreasonable as well as erroneous.”).
       18

        Id. at 240-41.
       19

          Id. at 241-52. The Supreme Court also clarified that reviewing courts must take the
proponent of a peremptory challenge at his word when he identifies a race-neutral explanation for
his challenge. If that explanation proves circumstantially suspect, the reviewing court is not to
supply some other plausible, race-neutral basis for the challenge. “If the stated reason does not hold
up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine
a reason that might not have been shown up as false.” Id. at 252.
       20

        Id. at 253-55.
       21

        Id. at 255-63.
                                                                                   Watkins — 7


       •       that the particular county in which Miller-El was prosecuted had
               followed a formal policy to exclude minorities from jury service, as
               evidenced by a training manual that was still in circulation at the time
               of Miller-El’s trial and was known to at least one of the prosecutors at
               his trial.22

Viewing the collective and cumulative impact of these non-exclusive factors,23 the Supreme

Court observed that “its direction is too powerful to conclude anything but discrimination.”24

So powerful was the inference of racial discrimination, the Supreme Court concluded, that

it overcame even the heavy deference that federal courts must otherwise pay to state court

judgments under the Antiterrorism and Effective Death Penalty Act.

       In his petition for discretionary review, the appellant contends that, as in Miller-El, the

cumulation of all the relevant considerations demonstrates that the trial court’s failure to

recognize that two of the African-American veniremen on his panel were struck on the basis

of their race was clearly erroneous. He argues that the court of appeals did not even address

all of the circumstances he identified in his appellate brief in support of this conclusion. We

agree that the court of appeals failed to address all of the factors relevant to the determination

whether the prosecutor’s explanations were pretextual and purposeful discrimination

occurred. But when we take all of those factors into consideration, we hold that the court of

       22

        Id. at 263-64.
       23

        We identified other potentially relevant factors in Keeton v. State, 749 S.W.2d 861, 868
(Tex. Crim. App. 1988). See also Dix & Dawson, supra, § 35.128, at 549-50.
       24

        Miller-El v. Dretke, supra, at 265.
                                                                                       Watkins — 8

appeals did not err in finding that the trial court’s determination—that no discrimination

occurred—was not clearly erroneous. Consequently, we will affirm.

                                        THE VOIR DIRE

       According to the appellant, the court of appeals erred in failing to hold that two

African-American veniremen were struck by the State on the basis of their race: Pamela Berry

and Leonardine Davis. The court of appeals found that there was no need to inquire whether

the appellant had made out a prima facie case because the State had proceeded directly to

explain its peremptory strikes.25        The court of appeals then rejected the appellant’s

comparative juror analysis. Even if some of the non-African-American veniremen gave

similar answers to those that the State asserted as the bases for its peremptory challenges

against African-Americans, the court of appeals reasoned, such apparently disparate treatment

does not “automatically” impugn the prosecutor’s race-neutral explanation.26 The court of

appeals found the appellant’s reliance upon Miller-El to be unavailing because that opinion

simply “reaffirms prior case law that prohibits disparate treatment among jurors and does not

announce any new elements or criteria for determining a Batson claim.”27


       25

        Watkins v. State, supra (slip op. at 2 n.1).
       26

        Id. (slip op. at 3) (“Disparate treatment is not automatically imputed to every situation where
one of the State’s reasons for striking a venire member also technically applies to another venire
member whom the State did not strike. Adanandus v. State, 866 S.W.2d 210, 224-25 (Tex. Crim.
App. 1993).”).
       27

        Id. (slip op. at 5 n.5).
                                                                                 Watkins — 9

       The appellant now complains both that the court of appeals’s comparative juror

analysis was flawed and that, in any event, the court of appeals failed even to address other

relevant components of the pretext analysis that were broached in his appellate brief. Beyond

a comparative juror argument, the appellant also argued on appeal that:

       •      the State used its peremptory challenges at a disproportionate rate to
              strike African-American veniremen;

       •      the State directed questions designed to set up peremptory challenges
              at a disproportionate rate to African-American veniremen;

       •      the trial court actually found that one of the African-American
              veniremen had been struck in violation of Batson, suggesting that all of
              the other disproportionate strikes were likewise the result of purposeful
              discrimination; and

       •      a study conducted by the Dallas Morning News has demonstrated that
              a pattern of racially motivated peremptory challenges persists in Dallas
              County.

In the analysis that follows, we will address each of these arguments in turn.

                               1. Race-Neutral Explanations

       At the Batson hearing, the State explained that it had exercised a peremptory challenge

against prospective juror number 13, Pamela Berry, because “in addressing the State she said

that she had a lot of trouble being able to give a life sentence. She would need overwhelming

facts to be able to reach that.” The appellant did not dispute the State’s representation during

the Batson hearing. We do not find any portion of the State’s voir dire that clearly indicates

that Berry made any such statement. However, the record does reflect that an unidentified

female prospective juror on the first row volunteered to the prosecutor she would “have to
                                                                                    Watkins — 10

hear the right facts” before she could assess a life sentence. The trial court found the State’s

explanation to be race neutral. Even if the prosecutor was mistaken or exaggerating about

what Berry told him during voir dire, “this is not equal to proving that the reason given [for

the peremptory challenge] was a pretext for a racially motivated strike.” 28

       As for prospective juror Leonardine Davis, the prosecutor explained that she was

peremptorily challenged because, before she was rehabilitated, she indicated that she would

hold the State to a higher burden than proof beyond a reasonable doubt, especially before she

could assess a life sentence. The record bears out this explanation, and the trial court found

it, too, to be race neutral. The trial court did not clearly err to find that the State satisfied its

step-two burden of production to tender explanations for its peremptory strikes that are race

neutral on their face. We next turn to step three of the analysis and examine the plausibility

of the State’s race-neutral explanations.

                                  2. Disproportionate Strikes

       As the court of appeals noted,29 the record of this non-capital voir dire does not always

reveal with crystal clarity everything that was going on. For example, we do not know the

names of every member of the jury panel, nor do we have a complete list of the order in which

they sat on the panel. The appellant had to supplement the appellate record to make it reveal

those veniremen who were ultimately selected for the jury. However, counsel for the

       28

        Ford v. State, supra, at 694.
       29

        Id. (slip op. at 3).
                                                                                      Watkins — 11

appellant did identify for the record which of the prospective jurors were African-American,

without objection or correction by the State. We are able to infer sufficient data from the

record to draw the following conclusions.

       Both sides exercised ten peremptory challenges, as per the statute,30 plus one extra

peremptory challenge for one alternate juror. Each side independently exercised a peremptory

challenge against prospective juror number 28, Nancy Pond. Thus, twenty-one prospective

jurors in all were peremptorily challenged.31 The last juror peremptorily challenged was

prospective juror number 37, an African-American named Epps who was struck by the State.

Of those first thirty-seven prospective jurors, a total of eight were African-American,

according to defense counsel’s representation on the record, which the State did not dispute.

Of those eight African-Americans, the State peremptorily challenged seven. The eighth,

prospective juror Cremena Thompson, apparently served as the alternate on the jury. The

appellant himself is an African-American.

       Thus, of the first thirty-seven prospective jurors–those who were “in range” to be

chosen as jurors or as the alternate juror–22% (or eight divided by thirty-seven) were African-


       30

        See T EX. C ODE C RIM . P ROC . art. 35.15(b).
       31

         The record also indicates that two veniremen, Ms. Box and Ms. Roegstra, were apparently
challenged for cause. We cannot tell for sure whether they were seated close to the front of the jury
panel. If they were, and assuming that the State could not count on the fact that there might be
“double strikes,” or prospective jurors that both the State and the defense would strike independently,
then as of the time at which they exercised their peremptory challenges, the parties could assume that
there would be a total of thirty-seven prospective jurors “in range”–that is to say, who could
conceivably be chosen for the jury after the exercise of challenges for cause.
                                                                                       Watkins — 12

American.32 A random selection would be expected to yield 2 or 3 (or 22% of 12 total jurors,

plus one alternate) African-Americans on the appellant’s jury. Instead, only one (8% of 12

total jurors, plus one alternate) was originally selected. Moreover, the State used 55% of its

peremptory challenges (six of eleven) to exclude 88% (seven of eight) of the African-

Americans from the prospective jury pool. Clearly, the State used a disproportionate number

of its peremptory challenges (55% of its challenges against an identifiable racial group that

made up only 22% of the venire that was “in range”) to exclude almost all of the African-

American veniremen from jury service in appellant’s case.

        This disproportionate use of peremptory challenges would obviously serve to establish

a prima facie case for purposeful discrimination,33 were one required on the facts of this case.

Beyond that, it also serves to support the appellant’s ultimate burden of persuasion that the

State’s proffered race-neutral explanations are a sham. But this factor does not alone

establish that the trial court’s conclusion, that the State’s explanations were not pretextual,

is clearly erroneous. In Miller-El, it was the combined weight of all the factors suggesting

pretext that ultimately convinced the Supreme Court that the deference ordinarily accorded

to the state court’s judgment was inappropriate. Similarly, a reviewing court should look to

all relevant factors in deciding whether the trial court’s finding was clearly erroneous.



        32

        All percentages are rounded up to the next integer, i.e., 21.621621 . . .% (eight out of thirty-
seven) is rounded up to 22%.
        33

        Linscomb v. State, 829 S.W.2d 164, 166 (Tex. Crim. App. 1992).
                                                                               Watkins — 13

                                 3. Disparate Questioning

       In the course of his voir dire of the panel, the prosecutor discussed three main topics.

First he wanted to know which of the prospective jurors had been victims of a burglary. He

did not single out any particular juror during this inquiry, but simply asked the veniremen to

volunteer that information. Several non-African-American veniremen spoke out.

       Next the prosecutor began to educate the jury about the difference between direct and

circumstantial evidence. This was obviously an important topic to the State, which hoped to

convict the appellant largely on the basis of fingerprint evidence found at the scene of the

burglary. Once the prosecutor educated the jury on the difference, he asked whether any

prospective juror might “have a problem with circumstantial evidence.” Rather than seek

volunteers as before, however, the prosecutor began to single out particular veniremen to

address this question to. The first two veniremen he singled out in this way were two

African-Americans who were apparently sitting next to each other, Julia Harris and John

Anderson. He then singled out three non-African-American veniremen to question about

their ability to convict based upon circumstantial evidence alone. Two out of the next three

prospective jurors he singled out to ask this question were African-Americans, Leonardine

Davis and Latonya Jones. After singling out one more non-African-American venireman to

question about this topic, the prosecutor asked for volunteers from the remainder of the panel

of anyone who might have a problem with circumstantial evidence.

       Thus, 45% (four of nine) of those whom the State singled out for questioning about
                                                                                      Watkins — 14

their ability to convict based upon circumstantial evidence were African-American, even

though only 22% (eight out of thirty-seven) of the veniremen who ultimately proved to be in

range for selection on the jury were African-American. This means that the prosecutor

singled out African-Americans for questioning on this topic at approximately twice the rate

that one would expect from a random selection. The prosecutor did eventually quit singling

out veniremen altogether, instead asking for volunteers, even though at least two prospective

African-American jurors, Ingram and Epps, remained in range.34

       The third main topic the prosecutor discussed with the jury panel was range of

punishment. He wanted to know whether any of the veniremen would have difficulty

assessing a life sentence for a burglary. At first he singled out fourteen veniremen who were

obviously on the first two rows. None of them was African-American. After that he once

again addressed the question globally to the remainder of the panel, and only then did one of

the African-American veniremen, Epps, volunteer that, upon reflection, he would have no

trouble assessing a life sentence.35 It is patently obvious that the prosecutor did not intend



       34

         It is possible to explain the prosecutor’s failure to single out Ingram and Epps in terms that
remain consistent with a conclusion of discriminatory intent. Both Ingram and Epps had already told
the trial court that they could not consider assessing a life sentence in a burglary case. Although
Epps would later retract this statement, the prosecutor may have believed he did not need to question
Ingram or Epps about circumstantial evidence because he already had a plausible basis for a
peremptory challenge against them. Indeed, he would later explain at the Batson hearing that he had
peremptorily struck both Ingram and Epps because of their reluctance to assess a life sentence.
       35

        Epps had originally responded to questioning from the trial court to the effect that he could
not assess a life sentence in a burglary case. See note 34, ante.
                                                                                 Watkins — 15

that this third line of questioning should serve to manufacture a pretext for excluding

prospective African-American jurors via peremptory challenges.

       In summary, while one of the prosecutor’s main lines of questioning seemed

suspiciously directed toward African-Americans, the two others manifestly were not. Again,

although there is some evidence here that would support a finding that the prosecutor’s

explanations were pretextual, the trial court found no pretext. Nor can we say that this

evidence, at least by itself, compels a conclusion that the trial court clearly erred.

                              4. Comparative Juror Analysis

       The State peremptorily challenged Pamela Berry because she would be unable to

assess a life sentence unless she heard “the right facts.” The State also exercised peremptory

challenges against two non-African-American veniremen, Elizabeth Shinn and Mariamma

Thomas, on the basis of their hesitation to assess a life sentence in a burglary case. It appears

that the State also successfully challenged another non-African-American venireman, a Ms.

Box, for cause on the basis that she could not assess a life sentence. The only other

prospective juror who expressed any reservation about assessing a life sentence was Arnulfo

Favela, a non-African-American who was not challenged by either party, and who served on

the jury. We are unable to say on this state of the record that Berry was struck on a basis that

did not apply equally to most of the non-African-American veniremen.

       Nor was venireman Leonardine Davis peremptorily struck for a reason that applied

equally to non-African-Americans. In response to the prosecutor’s questioning with respect
                                                                                 Watkins — 16

to circumstantial evidence, a number of non-African-American veniremen who were not

struck had initially expressed some reservations about relying upon circumstantial evidence

to convict. But only Davis stated that the prosecutor’s circumstantial evidence would have

to convince her of a defendant’s guilt “without a doubt.” The prosecutor was essentially able

to coach Davis on the difference between all doubt and reasonable doubt, and Davis

eventually acknowledged that she could convict on the basis of circumstantial evidence that

persuaded her to a level of confidence beyond a reasonable doubt. Still, Davis was the only

venireman during the course of this line of questioning who ever spontaneously suggested

that she might hold the State to a level of confidence greater than beyond a reasonable doubt.

For this reason she stood apart from those non-African-American veniremen who expressed

some initial hesitation about convicting on the basis of circumstantial evidence alone, but who

were eventually rehabilitated. For these reasons, we agree with the court of appeals that a

comparative-juror analysis yields no evidence of pretext.

                                    5. Venireman Jones

       During the Batson colloquy, the trial court actually found that one of the State’s

peremptory challenges, against prospective juror Latonya Jones, was impermissible, and

retroactively placed her on the jury. The appellant argues that this finding constitutes a

compelling basis for concluding that the peremptory challenges the State exercised against

Berry and Davis were likewise pretextual. As we view the record, however, it is unclear that

the trial court did in fact find that the State’s race-neutral explanation for its strike against
                                                                                Watkins — 17

Jones was pretextual. The trial court might have found, instead, that the State’s explanation

was not race-neutral on its face. If that is the case, it would lend less weight to the argument

that the State’s explanations of its peremptory challenges of the other African-American

veniremen, which the trial court found to be race neutral, were a sham.

       Jones was prospective juror number 25. The prosecutor asked a number of veniremen

whether they could convict on the basis of circumstantial evidence. Jones assured him that

she could. Later when the appellant’s counsel questioned her, Jones revealed that she was

a housewife who used to work as a data entry operator. Then the following exchange

occurred:

       [Appellant’s Counsel]:       And have you been on a jury before?

       [Jones]:       Yes.

       [Appellant’s Counsel]:       And what kind of case was that?

       [Jones]:       Domestic violence.

       [Appellant’s Counsel]:       Assault?

       [Jones]:       Yes.

       [Appellant’s Counsel]:       Did you reach a verdict in that case?

       [Jones]:       Yes.

       [Appellant’s Counsel]:       And was the jury selected to assess punishment?

       [Jones]:       No.

       [Appellant’s Counsel]:       And were you the Foreperson?
                                                                                     Watkins — 18

       [Jones]:        No.

       [Appellant’s Counsel]:          Anything about that that would prevent you being
                                       fair in this case?

       [Jones]:        No.

Appellant’s counsel then moved on to question another venireman.

       During the brief Batson hearing, the State explained that it had exercised a peremptory

challenge against Jones because she “was a member of a jury who voted not guilty in a

domestic violence assault case.”36 Later in the hearing the trial court returned to the subject

of prospective juror Jones:

       THE COURT:              And again, on No. 25, Latonya Jones?

       [The State]: Judge, she was a jury member on a domestic violence assault
                    case in which she found the person charged not guilty.

       THE COURT:              Well, that’s as thin as it gets. I mean, we all know that
                               Class A domestic violence case not guilty could have
                               been any number of reasons why. And if you went back
                               and pulled her card and the State had a lockdown for sure
                               guilty case and, you know, you could bring me something
                               I could hold onto. But just because she followed the law
                               and the evidence that she believed you can’t exclude
                               someone for finding a not guilty previously. So your
                               objection to juror No. 25, Latonya Jones, is sustained. I
                               shall seat her.

       [The State]: Judge, we believe that just for the record that that is a race
                    neutral reason and she was, in fact, the only member in the strike


       36

       Jones’s voir dire did not indicate that she had voted not guilty in the domestic-violence case.
Because we do not have juror cards or questionnaires before us, we cannot tell whether the
prosecutor may have gleaned this fact (assuming it is factual) from some other source.
                                                                                     Watkins — 19

                      zone to serve on a jury and to also find someone not guilty.

       THE COURT:             Well, that’s, at this point, not going to get there.

From this point the trial court immediately went on to explain that the State’s asserted reason

for peremptorily challenging another prospective juror, Davis, was race neutral.

       It is difficult to say for certain on this record whether the trial court rejected the State’s

asserted explanation for striking Jones because it was not race neutral, or because the asserted

race-neutral explanation was a pretext. If the former, the trial court plainly erred, because a

prospective juror’s willingness to vote to acquit an accused in a domestic-violence

prosecution bears no relation to her race. Perhaps (although this seems less likely to us in

context) the trial court rejected the State’s asserted explanation as so insubstantial and

implausible a reason to exercise a peremptory challenge as to amount to a pretext. But

prosecutors frequently exercise peremptory challenges to eliminate potential jurors who have

acquitted criminal defendants in the past. That Jones may have voted to acquit a defendant

in a relatively minor classification of offense does not seem to us to make the State’s race-

neutral explanation significantly less plausible.

       On balance, we agree with the appellant that the trial court’s action in placing Jones

back on the jury is a circumstance that cuts in favor of a conclusion that the prosecutor’s other

peremptory challenges were race-based. But, given the colloquy above, we do not think it

necessarily compels that conclusion, even in combination with other factors that support an

argument of pretext. We regard it as a circumstance that weighs tenuously in the appellant’s
                                                                                  Watkins — 20

favor, to be factored into the totality of circumstances in deciding whether the trial court

clearly erred in failing to find that prospective jurors Berry and Davis were excluded on

account of their race.

                               6. The Dallas Morning News Study

       The appellant urges us to consider the results of a study commissioned by the Dallas

Morning News that he contends shows a continuing pattern on Dallas County’s part of

exercising peremptory challenges in a racially discriminatory manner. The court of appeals

refused to consider this study, which was not presented at trial, but proffered for the first time

in the appellant’s brief on direct appeal.37 The appellant contends that the court of appeals

should have taken judicial notice of this study. We disagree.

       Whether Dallas County persists in discriminatory practices in the exercise of its

peremptory challenges is unquestionably, in the context of a Batson hearing, a question of

adjudicative fact. Judicial notice of adjudicative facts is governed by Rule 201 of the Texas

Rules of Evidence.38 Under Rule 201(d), a trial court is required to take judicial notice “if

requested by a party and supplied with the necessary information.” Moreover, under Rule

201(f), “[j]udicial notice may be taken at any stage of the proceeding.” Professors Goode,

Wellborn and Sharlot have maintained that, consistent with these provisions of Rule 201, the

question of whether an appellate court should take judicial notice of an adjudicative fact when

       37

        Watkins v. State, supra (slip op. at 6 n.5).
       38

        T EX. R. E VID. 201.
                                                                                        Watkins — 21

the underlying data or materials in support of that notice are presented for the first time in that

court should be a matter of the appellate court’s discretion, never mandatory.39

         We do not think the court of appeals abused its discretion in refusing to judicially

notice the Dallas Morning News study on appeal. To do so would have put the State at a

distinct disadvantage in our adversarial system, because (if for no other reason than) the State

would have been given no opportunity to challenge the integrity or provenance of the study,

as it could have done had the study been presented for judicial notice at the Batson hearing.

The appellant asserts that the study is subject to judicial notice on appeal because “it is based

on sound scientific statistical principles that are capable of accurate and ready determination

by resort to sources whose accuracy cannot reasonably be questioned.”40 But he does not

identify those sources, much less explain why their accuracy is beyond reproach.

         Judicial notice on appeal should be taken, if at all, “where necessary to avoid an unjust

judgment.”41 Because he has not adequately established the indisputability of the Dallas

Morning News study, the appellant has not demonstrated that judicial notice on appeal was



         39

          Steven Goode, Olin Guy Wellborn III & M. Michael Sharlot, 1 T EXAS P RACTICE: G UIDE TO
THE   T EXAS R ULES OF E VIDENCE § 201.7 (3d ed. 2002), at 75.
         40

        Appellant’s Brief in Support of Petition for Discretionary Review, at 35, citing Mata v. State,
46 S.W.3d 902 (Tex. Crim. App. 2002). See T EX. R. E VID. 201(b) (“Kinds of Facts. A judicially
noticed fact must be one not subject to reasonable dispute in that it is . . . (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot reasonably be questioned.”).
         41

         Goode, Wellborn & Sharlot, supra, citing Sparkman v. Maxwell, 519 S.W.2d 852, 855 (Tex.
1975).
                                                                               Watkins — 22

necessary to avoid an unjust judgment. We cannot say the court of appeals abused its

discretion not to consider the Dallas Morning News study in gauging whether the trial court

clearly erred to deny the appellant’s Batson claim.

                                       CONCLUSION

       This case presents a closer question than the court of appeals acknowledged in its

analysis. As we have demonstrated, there was evidence in the record from which a rational

judge could have concluded that the State’s race-neutral explanations for its peremptory

challenges against Berry and Davis were but a pretext for race-based exclusion. The numbers

support the appellant. The State exercised its peremptory challenges against African-

American veniremen at a grossly disproportionate rate as compared to non-African-

Americans. This fact serves not only to establish the appellant’s prima facie case of racial

discrimination (if that were needed in this case), but also as evidence in support of his

ultimate burden of persuasion. Moreover, the prosecutor directed at least one line of

questioning designed to ferret out objectionable jurors toward African-American veniremen

at twice the rate one would expect from random selection. The trial court may (or may not)

have found that the prosecutor’s motive in peremptorily striking another African-American

prospective juror was racial. These facts militate in favor of a finding of pretext, and would

have supported a trial court’s ruling to that effect.

       But this is not a case, like Miller-El, in which every relevant factor firmly supports a

conclusion of pretext. The prosecutor’s explanations for why he peremptorily struck Berry
                                                                                     Watkins — 23

and Davis were manifestly race-neutral. It was the appellant’s ultimate burden to persuade

the trial court that those explanations were incredible or disingenuous. The State struck other,

non-African-American veniremen for the same reason that it struck Berry. And it is apparent

that Davis was struck because she gave an answer that was different from, and more

objectionable to the State than, the answers it received from non-African-Americans to the

same line of questioning. Thus, the record also supports a conclusion that the State’s race-

neutral explanations were not a pretext.

       In Miller-El v. Dretke, the Supreme Court treated the question of pretext as a question

of fact.42 We also regard it as a fact question, for the trial court to resolve, subject to reversal

on appeal only for clear error.43 Because the record supports the trial court’s resolution of this

fact question, we cannot say that it clearly erred, even though the record might support an

opposite resolution as well. Accordingly, we affirm the judgment of the court of appeals.


Delivered:     February 13, 2008
Publish




       42

        545 U.S. at 240 (“This case comes to us on review of a denial of habeas relief sought under
28 U.S.C. § 2254, following the Texas trial court’s prior determination of fact that the State’s race-
neutral explanations were true[.]”).
       43

        Gibson v. State, supra, at 534.
