                                                                                                ^
                                Court of Appeals
                      Jffiftfj Htstrfct of Qtexas at Dallas

                                     JUDGMENT

THOMAS WAYNE WILLIAMS, Appellant                 Appeal from the Criminal District Court of
                                                 Dallas County, Texas. (Tr.Ct.No. F98-
No. 05-98-01113-CR          V.                   45083-PH).
                                                 Opinion delivered by Justice Ovard, Justices
THE STATE OF TEXAS, Appellee                     Moseley and O'Neill participating.


      Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.




Judgment entered May 2.5» 2000.




                                                    HN OVARD
                                                 JUSTICE
AFFIRM; Opinion Filed May 2-5, 2000




                                              In The

                                  Court of Appeals
                        ifftftlj Htstrftt of Qtexas at Dallas
                                      No. 05-98-01113-CR
                                      No. 05-98-01114-CR



                         THOMAS WAYNE WILLIAMS, Appellant

                                                V.


                              THE STATE OF TEXAS, Appellee


                         On Appeal from the Criminal District Court
                                      Dallas County, Texas
                  Trial Court Cause No. F98-45083-PH and F98-45084-NH



                                          OPINION

                          Before Justices Ovard, Moseley, and O'Neill
                                   Opinion By Justice Ovard

       In a single trial appellant was convicted by a jury of unlawful possession of a firearm by a

felon and possession ofcocaine. Punishment was set attwenty years imprisonment and a$1000 fine

for the firearm offense and forty years imprisonment for the drug offense. In six points of error,

appellant generally complains thetrial court erred infailing tohold a hearing on appellant's Batson

objection and in failing to inform appellant he had a right to proceed pro se at trial. We affirm.

       In his first two points of error appellant contends the trial court committed reversible error

by failing to hold a hearing under Batson v. Kentucky, 476 U.S. 79 (1986) and article 35.261 of the
Texas Code of Criminal Procedure.1 At the close of voir dire, appellant's trial counsel moved to

dismiss the array on the ground that the prosecutor had exercised peremptory strikes in a racially

discriminatory manner. Counsel noted that appellant is a black male and stated the prosecutor had

struckjuror number 38, Robert Rodriquez, an Hispanic.2 Counsel argued that "[h]e was struck Ifeel
primarily because ofhis minority persuasion." Counsel did not indicate whether any other minority
members were included inthearray. The trial court held that appellant failed to make a prima facie

showing that the State had exercised its strikes in a discriminatory manner and therefore the burden

did not shift to the State to offer a racially neutral explanation for striking juror number 38. The

trial court therefore overruled appellant's Batson objection. Appellant complains the trial court

erred in failing to conduct a hearing to ascertain the prosecutor's reasons striking juror 38. We

disagree.

          The procedure for determining a Batson challenge is well established. To challenge the
State's use ofperemptory strikes under Batson, a defendant must first make a prima facie showing
that the State exercised peremptory strikes on the basis ofrace. See Batson, 476 U.S. at96; Bausley

v. State, 997 S.W.2d313, 316 (Tex. App.-Dallas 1999, pet. ref d). Once adefendant makes aprima

facie showing ofpurposeful discrimination, the State must provide a race neutral explanation for
striking the prospective jurors in question. See Batson, 476U.S. at 97; Bausley, 997 S.W.2dat316.
Ifthe State provides a race neutral explanation for its strikes, the defendant must rebut the State's


     1Appellant asserts separate points oferror under Batson and article 35.261. Article 35.261, prohibiting peremptory challenges based on race,
codifies and implements the holding in Batson. See Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 1989);///«v. State, 827 S.W.2d 860, 863 (Tex.
Crim. App. 1992). Appellant, however, argues both points together and does not claim that article 35.261 provides appellant with any relief other
than that available under Batson. Accordingly, we address both pointstogetheras well.

    2Appellanfs counsel also complained that the State struck juror 45, an Asian veniremember, but withdrew his comments concerning this juror
after realizinghe would not have been reached.




                                                                     -2-
explanation or show thatthe explanation was merely a sham or pretext. See Williams v. State, 804

S.W.2d 95, 101 (Tex. Crim. App. 1991); Bausley, 997 S.W.2d at 316. These later steps are never

reached, however, if the trial court first rules that the challenging party has failed to meet his initial

burden of making outa prima facie case of discrimination. Held v. State, 948 S.W.2d 45, 48 (Tex.

App-Houston [14th Dist] 1997, pet. refd); Bean v. State, 816 S.W.2d 115, 117 (Tex.

App.-Houston [14thDist] 1991, no pet).

         A prima facie case is "that minimum quantity of evidence necessary to support a rational

inference that theallegation of purposeful discrimination istrue." Harris v. Sate, 827 S.W.2d 949,

955 n.4 (Tex. Crim. App. 1992). The party challenging the strike is entitled to rely onthe fact that

peremptory challenges permit discrimination by one who has amind to discriminate and must show
that this fact, coupled with other relevant circumstances, raises an inference of the discriminatory

exercise of peremptory strikes. Harris, 827 S.W.2d at 955 (citing Batson, 476 U.S. at 96); Held,

948 S.W.2d at 48. As the party with the burden of proof, the challenging party is required to

produce evidence to avoid a finding that the allegation ofpurposeful discrimination is not true as
amatter oflaw. Dewberry v. State, 776 S.W.2d589,590 (Tex. Crim. App.l989);/fe/rf, 948 S.W.2d

at 48.


         In deciding whether the requisite prima facie showing has been made, all relevant
circumstances should be considered. Harris, 827 S.W.2dat955 (citing Batson, 476U.S. at 96-97);

Held, 948 S.W.2d at 48 Judges at all levels must "frankly assess" the legitimate inferences to be

drawn from the evidence made available to them. Linscomb v. State, 829 S.W.2d 164, 166 (Tex.

Crim. App. 1992); Held, 948 S.W.2d at 48. The trial judge, however, is in the best position to
determine whether the circumstances are sufficient to raise a prima facie case that a strike against



                                                   -3-
a given veniremember was racially motivated. Held, 948 S.W.2d at 48; Muhammad v. State, 846

S.W.2d 432, 435 (Tex. App.-Houston [14th Dist] 1992, pet. ref'd). That trial judge "has an

opportunity to observe the makeup of the panel, the questions asked each veniremember, the

unspoken reactions of the attorneys and the potential jurors, the manner in which the other strikes

were exercised, and countless other factors." Held, 948 S.W.2d at 48. The United States Supreme

Court has expressed its "confidence that trial judges, experienced in supervising voir dire, will be

able to decide if the circumstances . . . [create] a prima facie case of discrimination." Batson, 476

U. S. at 97. Thus, we will afford deference to the trial court's judgment and review the record in the

light most favorable to the trial court's ruling, and we will not disturb that ruling unless we find it

to be clearly erroneous. See Adanandus v. State, 866 S.W.2d 210, 224 (Tex. Crim. App. 1993);

Williams, 804 S.W.2d at 101; Held, 948 S.W.2d at 49.

           In the present case, we conclude the trial court's finding that appellant failed to make a prima

facie showing of purposeful discrimination is not clearly erroneous. At best, appellant established

the State had struck a single Hispanic juror.3 The record does not disclose whether juror 38 was the

only Hispanic on the panel or whether an Hispanic, or any other minority member, served on the

jury. Striking a single member of an identifiable ethnic group does not in itself establish purposeful

discrimination. See Held, 948 S.W.2d at 49 (striking only remaining black juror insufficient to

establish prima facie showing of purposeful discrimination). While striking only one member of

the venire in a discriminatory manner violates the equal protection clause, Linscomb, 829 S.W.2d




       The State does not concede juror 38 was Hispanic simply because he had an Hispanic surname. Cf.Aguilar v. State, 826 S.W.2d 760, 763
(Tex. App.-Fort Worth 1992, pet. refd) (upholding trial court's determination that female venireperson who was married to man with Hispanic
surname was not Hispanic for purposes ofBatson). For purpose of this opinion, we assume juror 38 was Hispanic. We therefore do not reach the
issue of whether an Hispanic surname alone is sufficient to make a prima facie showing that the juror is a member of an identifiable ethnic group.
at 166, the party challenging the strike must nevertheless establish that the veniremember was struck

on account ofrace. See Held, 948 S.W.2d at 49-50; Aguilar, 826 S.W.2d at 763. "[T]he bare fact

of strikes exercised against persons of a certain race does not necessarily reveal the work of a

racially prejudiced mind." Linscomb, 829 S.W.2d at 166; see also Aguilar, 826 S.W.2d at 763

(holding that the strike ofone ofthree Hispanic venirem embers was insufficient to make out a prima

facie case of discrimination where the challenging party "failed to show any pattern or any other

evidence to the trial court which would raise an inference that the prosecutor used peremptory

strikes to remove [that veniremember] on account of her race").

       Cases in which courts have found that a prima facie case was established on the basis of a

single strike invariably also have involved the complete exclusion of a particular race or a racial

identity between the defendant and the excluded veniremember. See, e.g., Salazar v. State, 795

S.W.2d 187, 193 (Tex. Crim. App. 1990); Godine v. State, 874 S.W.2d 197, 203 (Tex.

App.-Houston [14th Dist] 1994, no pet.). In the present case, neither circumstance is applicable.

First, there is no evidence of racial identity; appellant is black and the excluded member of the

venire is Hispanic.     "[Although racial identity between the challenger and the excused

veniremember is not required to raise a Batson challenge, the absence of such an identity can

certainly impact the strength of the challenger's prima facie case of racial discrimination." Held,

948 S.W.2d at 50; see also Powers v. Ohio, 499 U.S. 400, 416 (1991) (noting that cases involving

racial identity "may provide one of the easier cases to establish both a prima facie case and a

conclusive showing that wrongful discrimination has occurred"). Second, the record does not

establish whether allHispanics wereexcluded from thejury because of the State's strike. Although

appellant argues thatwemust presume thatjurors 38and 45 were theonly minority members onthe
panel, we cannot presume this was so merely because the record is silent as to whether there were

other minority members on the panel. Appellant bears the burden of establishing a prima facie

showing of discrimination. He cannot meethis burden throughunsupported assumptions aboutthe

record.


           It was incumbent on appellant as the party with the burden of proof to offer the trial court

with some evidence from which the court could conclude the State exercised the strike in a

discriminatory manner. See Held, 948 S.W.2d at 50. While the burden ofestablishing a prima facie

case is low, it "should not be so low as to constitute no hurdle at all." Id. "Batson is not a talisman,

the invocation of which automatically raises an inference of racial discrimination." Bean, 816

S.W.2d at 119. In this case, trial counsel's "feeling" that the State had used its strike in a

discriminatory manner is no evidence of purposeful discrimination and was insufficient to meet

appellant's burden. Because appellant failed to offer any evidence that the State struck juror 38 in

a racially discriminatory manner, appellant failed to establish a prima facie case as a matter of law.

Accordingly, we cannot conclude the trial court's ruling was clearly erroneous. We overrule

appellant's first and second points of error.

           In points of error three through six, appellant contends that the trial court erred in forcing

appellant to trial with counsel for which appellant had expressed a lack of confidence and in failing

to inform appellant of his right to self-representation under both the federal and state constitutions

and pursuant to state statutes.4 On the morning of trial, appellant informed the trial judge that he



     4
       Appellant asserts a right to self-representation pursuant to the Sixth Amendment of the United States Constitution, article I, section 10 of the
Texas Constitution, and articles 1.051 and 26.04(a) of the Texas Code of Criminal Procedure. Although appellant nominally asserts four separate
points of error, appellant argues each of the points together and does not contend that different standards apply to these various constitutional and
statutory provisions. Accordingly, we address appellant's points together as well.




                                                                        -6-
felt he was not being properly represented and expressed general dissatisfaction with his counsel

from thebeginning ofcounsel'sappointment. After inquiring about appellant's specific complaints,

the trial judge decided to begin the trial and told appellant to be seated. Appellant then asked the

court how he could get another attorney. The trial judge informed appellant that she would not

allow appellant to have appointed counsel of his choice and told appellant he could have other

counsel when he "c[a]me up withthe money to hire one." Appellant became agitated at the court's

response and elected to leave the courtroom and listen to the trial in a holdover cell. On appeal,

appellant complains the trial court should have informed appellant of his right to self-

representation.5

           Appellant had no right toappointed counsel ofhis choosing. Dunn v. State, 819 S.W.2d 510,

520 (Tex. Crim. App. 1991). Nor did he have the option ofwaiting until the day oftrial todemand

different counsel or to request thatcounsel be dismissed so that he could retain other counsel. See

Roblesv. State, 511 S.W.2d699,704 (Tex. Crim. App. 1979). Thus, appellant's only option attrial

was to proceed with his appointed counsel or proceed pro se. Appellant, however, did not request

to proceed pro se. He in fact specifically requested different counsel rather than requesting to
proceed pro se. A request for different counsel is not the same as invoking the right to self-
representation. See id. ("A request for other counsel is not a waiver ofthe right to counsel.").
While appellant insists the trial court had an obligation to inform appellant ofhis right to proceed
pro se, appellant cites no authority for his position, nor are we aware ofany. We decline appellant's
invitation to impose such a requirement upon the trial court. It is incumbent on the defendant to

    5Appellant argument that the trial court erred in forcing him to trial with counsel in whom he lacked confidence is based solely on appellant's
argument that he was denied his right to self-representation. Appellant does not contend the trial court improperly denied appellant's request for
different counsel.




                                                                      -7-
affirmatively invoke his right to self-representation. Cf. Burgess v. State, 816 S.W.2d 424, 429

(Tex. Crim. App. 1991) (after expressing dissatisfaction with appointed counsel, defendant

affirmatively invoked his right to self-representation and, after admonishment of risks of self-

representation, was properly allowed to represent himself) We overrule appellants third, fourth,

fifth, and sixth points of error.

        We affirm the judgment of the trial court.



                                                             •«m >—^ I-


                                                      )HN OVARD
                                                     JUSTICE
Do Not Publish
Tex. R. App. P. 47


Justice Moseley concurs w/o opinion




                                               -8-
                                       Fifth Court of Appeals
                                   Case Attorney Address List
                                                                                 Page:   1
                                                                   Date Printed: 05/25/2000


                       Case Number: 05-98-01113-CR Date Filed: 07/06/1998

Style: Williams, Thomas Wayne
       v.

       The State of Texas

Trial Judge:          Warder, Janice
Trial Court Reporter:       Belton, Mary
Trial Court:              CRIMINAL DISTRICT COURT # 1 Trial County:          DALLAS
APP    Sue Korioth
       ATT 011681975
       P.O. Box 600103
       Dallas, TX 75360-0103
       Phone 214/384-3864
        Fax    /   -


STA     Anne Wetherholt
        ATT 021235300
        Assistant Distrtict Attorney
        Frank Crowley Courts Building
        133 North Industrial Blvd. LB 19
        Dallas, TX 75207-4399
        Phone 214/653-3642
        Fax
