Affirmed and Memorandum Opinion filed April 9, 2019.




                                      In The

                Fourteenth Court of Appeals
                              NO. 14-17-00770-CR

                   JOSEPH ARTHUR ALRIDGE, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 75th District Court
                            Liberty County, Texas
                       Trial Court Cause No. CR31056


                     MEMORANDUM OPINION

      Appellant Joseph Arthur Alridge appeals his conviction for aggravated
robbery. A jury convicted appellant, he pleaded true to two punishment
enhancement allegations, and the trial court sentenced him to life in prison. In his
sole issue on appeal, appellant contends that the trial court erred in denying his
Batson challenge after the State used peremptory challenges to strike two African-
American prospective jurors. We affirm.
                                         Background

      Appellant was accused of robbing an Exxon service station and causing
bodily injury to a store clerk in the process. At the conclusion of voir dire, the State
used two of its peremptory challenges to strike two African-Americans from the
venire panel (venire members 11 and 23) who were of the same racial minority as
appellant. Appellant then raised a Batson challenge to the strikes.1

      In response, regarding venire member 11, one of the prosecutors stated that
the venire member “had appeared to react disfavorably when she was asked
questions and when she was answering questions directly to the state.” There was
also a concern among the prosecutors, based on the venire member’s last name
(Hebert), that she might be related to a former employee in the district court clerk’s
office whose employment was terminated after a “shouting match” with one of the
prosecutors in the case. Regarding venire member 23, one of the prosecutors stated
that the venire member was “noticeably asleep” several times during voir dire by
both sides and that the bailiff had to wake her up at one point. When the bailiff was
asked about this, he at first stated that he thought he had woken venire member 44,
but when further questioned, he changed his answer and said it was venire member
23.

      After the prosecutors provided explanations for the challenged strikes, the
trial judge asked appellant’s counsel if he had any other evidence in support of his
Batson challenge. Defense counsel stated, “No, Judge. Those were the only two
black individuals in the strike zone struck.” The trial judge then found that the
prosecutors had articulated a race-neutral basis for exercising their peremptory
challenges and overruled the Batson challenge.


      1
          Batson v. Kentucky, 476 U.S. 79, 86 (1986).

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                                  Governing Law

      In Batson v. Kentucky, the United States Supreme Court held that the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution
prohibits a prosecutor from exercising peremptory challenges based solely on the
race of potential jurors. 476 U.S. 79, 89 (1986); see also Nieto v. State, 365 S.W.3d
673, 675 (Tex. Crim. App. 2012). Even a single impermissible strike for a racially
motivated reason invalidates the jury-selection process and requires a new trial.
Snyder v. Louisiana, 552 U.S. 472, 478 (2008); Finley v. State, 529 S.W.3d 198,
205 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d).

      A Batson challenge consists of three steps. Nieto, 365 S.W.3d at 675. First,
the defendant must make a prima facie showing of racial discrimination in the
State’s use of a peremptory strike. Id. Second, once the defendant makes the
requisite showing, the State must articulate a race-neutral explanation for the
strike. Id. The race-neutral explanation is a burden of production only and does not
have to be “persuasive, or even plausible.” Purkett v. Elem, 514 U.S. 765, 767-68
(1995). The issue is the facial validity of the explanation; unless a discriminatory
intent is inherent, the explanation will be deemed race neutral. Id. Third, the trial
court must determine if the defendant has proved purposeful discrimination by a
preponderance of the evidence. Blackman v. State, 414 S.W.3d 757, 764-65 (Tex.
Crim. App. 2013); Nieto, 365 S.W.3d at 675. The burden of persuasion always
remains on the defendant. See Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim.
App. 2001).

      We review a trial court’s ruling on a Batson challenge for clear error,
focusing on the genuineness of the asserted non-racial explanation for the strike,
rather than the reasonableness. Nieto, 365 S.W.3d at 676. In conducting our
review, we must consider the entire voir dire record and are not limited to

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arguments or considerations that the parties specifically called to the trial court’s
attention so long as those arguments or considerations are firmly grounded in the
appellate record. See id.; Finley, 529 S.W.3d at 205-06. We afford great deference
to the trial court’s ruling on the issue of discriminatory intent because a finding
regarding intentional discrimination largely turns on the trial court’s evaluation of
the demeanor and credibility of the attorney who exercised the peremptory
challenge. Finley, 529 S.W.3d at 206. Additionally, race-neutral reasons for
peremptory challenges often invoke a juror’s demeanor, making the trial court’s
firsthand observations of even greater importance. Snyder, 552 U.S. at 477. We
will not disturb the trial court’s ruling unless we are left with a definite and firm
conviction that a mistake has been made. Hernandez v. New York, 500 U.S. 352,
369 (1991).

                                      Analysis

      It is unclear whether appellant established a prima facie case of racial
discrimination, the first step of a Batson challenge. See generally Hassan v. State,
369 S.W.3d 872, 875 (Tex. Crim. App. 2012) (discussing circumstances for trial
court to consider in determining whether a prima facie case has been presented).
Appellant does not cite and the record does not appear to contain any information
regarding the ethnicity of any members of the venire panel besides numbers 11 and
23. It therefore cannot be determined on appeal what percentage of the jury pool
were minorities, what percentage of minorities that otherwise would have been
placed on the jury were struck by the State, or what the ultimate racial make-up of
the jury was. See, e.g., Nieto, 365 S.W.3d at 677 (noting trial court found
defendant “made a prima facie showing of race discrimination based on the
number of peremptory strikes against minority members, the composition of the
panel before and after the exercise of the strikes, and the [defendant]’s race”). It

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also cannot be determined whether the State treated the black venire members in a
disparate fashion from non-black venire members. See, e.g., id. at 679 (explaining
that disparate treatment of minority venire members is more powerful evidence of
discrimination than bare statistics); Finley, 529 S.W.3d at 210 (noting defendant
neither argued the State engaged in disparate treatment nor presented evidence of
the panel’s racial make-up).

       However, we need not determine whether appellant made a prima facie case
of racial discrimination because the State offered race-neutral explanations for its
strikes of venire members 11 and 23, thereby mooting the issue of appellant’s
prima facie case. See Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App.
2003) (“If, as here, the State offers a race-neutral explanation before any inquiry on
the prima facie case, the issue of a prima facie case is moot.”); Finley, 529 S.W.3d
at 206 (following Simpson). We turn then to the second step in the Batson process,
the State’s race-neutral explanations for the strikes.

       As discussed above, the prosecutors offered as their explanation for striking
venire member 11 that (1) she “appeared to react disfavorably” when being asked
and answering questions by the State, and (2) she shared a last name with a former
district clerk’s office employee whose employment was terminated after a
“shouting match” with one of the prosecutors.2 The Court of Criminal Appeals
addressed substantially similar circumstances in Nieto, where the prosecutors
provided as reasons for the strikes the fact that the struck venire member had the
same last name as a family that one of the prosecutors had recently prosecuted and
the venire member glared at one of the prosecutors during voir dire. 365 S.W.3d at

       2
          It should further be noted that when the venire panel was asked if any of them knew any
of the attorney’s in the case, venire member 11 acknowledged knowing the prosecutor who had
engaged in the “shouting match.” This lends credence to the concern that venire member 11 was
possibly related to the former district clerk’s office employee.

                                               5
677. The Court discussed the fact that, like here, the prosecutors did not ask any
questions to determine whether the venire member was related to the family in
question, but the court ultimately held that the combination of factors constituted a
race-neutral reason for exercising a peremptory strike. Id. at 679.3 Similarly, here,
although the State did not ask venire member 11 any follow up questions, the
reported negative reactions by venire member 11 to voir dire questioning by the
State coupled with the shared last name with someone who had had a life-altering
conflict with one of the prosecutor’s was sufficient to constitute a race-neutral
reason for the peremptory strike.

       Regarding venire member 23, one of the prosecutors stated that he observed
the venire member “noticeably asleep” several times during voir dire by both sides
and that the bailiff had to wake her up at one point. When the bailiff was asked
about this, he at first stated that he thought he had woken a different venire
member but then changed his answer to say it was venire member 23. We must, of
course, defer to the trial judge on issues of credibility pertaining to whether or not
venire member 23 was sleeping. See Finley, 529 S.W.3d at 206. Moreover, defense
counsel did not dispute the observation. See Nieto, 365 S.W.3d at 680 (treating
prosecutor’s statement regarding demeanor of venire member as proved because
opposing counsel did not rebut the observation). That the venire member was
sleeping during part of the voir dire process would certainly constitute a race-
neutral reason for the exemplary strike. See, e.g., Rhoades v. State, 934 S.W.2d

       3
           The Court specifically stated:
       It was sensible for [the prosecutor] to be cautious with [the venire member] based
       on his recent conviction of the . . . family, particularly when coupled with the note
       that [the venire member] glared at another prosecutor. Under these facts, the
       shared last name constitutes a race-neutral reason for the prosecutor to exercise a
       peremptory strike.
Nieto, 365 S.W.3d at 679.

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113, 124 (Tex. Crim. App. 1996); McGee v. State, 342 S.W.3d 245, 247 (Tex.
App.—Amarillo 2011, pet. ref’d); Lamons v. State, 938 S.W.2d 774, 778 (Tex.
App.—Houston [14th Dist.] 1997, pet. ref’d).

         Turning to the third step of a Batson challenge, when asked by the judge for
additional evidence suggesting the strikes were racially motivated, defense counsel
indicated that he did not have any further evidence and said “[t]hose were the only
two black individuals in the strike zone struck.” Although somewhat ambiguous,
this statement appears to suggest that other African Americans were not struck
from the eventual jury. More importantly, the total sum of evidence suggesting that
the challenged peremptory strikes constituted purposeful discrimination appears to
be that the struck venire members are African American, as is appellant. Under the
circumstances presented, appellant therefore fell short of his burden of proving
purposeful discrimination by a preponderance of the evidence. See Blackman, 414
S.W.3d at 764-65; see also Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App.
2002) (“[A]ppellant had the burden to show that the explanation given was merely
a pretext for discrimination. [A] party’s failure to offer any real rebuttal to a
proffered race neutral explanation can be fatal to his claim. Here, appellant has
failed to prove that the prosecutor’s explanation was incorrect, much less that it
was a pretext for discrimination.”). Accordingly, we overrule appellant’s sole
issue.

         We affirm the trial court’s judgment.


                                         /s/       Frances Bourliot
                                                   Justice


Panel consists of Justices Christopher, Bourliot, and Spain.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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