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



                         DISSENTING OPINION

     The majority holds that the trial court erred in denying appellant James

Blackman’s Batson challenge to the State’s use of a peremptory strike.      I
respectfully dissent. I would hold that the trial court did not err, and I would

affirm the judgment of the trial court.

      Appellant bases his Batson challenge on the State’s peremptory strike of

venire member J. Fortune, one of three African Americans in the available pool of

potential jurors, one of whom was seated on the jury. Appellant contends, and the

majority agrees, that the trial court erred in overruling his Batson challenge to the

State’s use of a peremptory strike against Fortune because the State’s reasons for

striking her constituted a “pretext for racial bias.” I strongly disagree.

      In Batson, the United States Supreme Court held that using peremptory

challenges to exclude persons from a jury because of their race violates the Equal

Protection Clause of the Fourteenth Amendment to the United States Constitution.

Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717 (1986); Herron v.

State, 86 S.W.3d 621, 630 (Tex. Crim. App. 2002). Thus, in making a Batson

challenge to the prosecution’s exercise of a peremptory strike, “[t]he defendant

must demonstrate, by a preponderance of the evidence, that the prosecutor

indulged in purposeful discrimination against a member of a constitutionally

protected class. . . .” Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App.

2008).    First, the defendant must make a prima facie showing of racial

discrimination. Id. (quoting Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769,

1770 (1995)).    Second, if he does so, the burden of production shifts to the

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prosecutor to come forward with a race-neutral explanation for the strike. Id.

Third, the trial court must determine whether the defendant has proved purposeful

racial discrimination. Id. When the trial court goes directly to a Batson hearing on

neutral reasons and conducts a full hearing, without making a finding on the prima

facie showing of racial discrimination, the question of whether a prima facie case

was made becomes moot, and the reviewing court addresses only the second and

third steps in the analysis. Id. at 447 & n.11. Thus, appellate review concentrates

on the prosecutor’s race-neutral explanation for the peremptory strike and the

defendant’s rebuttal of the prosecutor’s explanation by a preponderance of the

evidence. See id.

      “[T]he question presented at the third stage of the Batson inquiry is ‘whether

the defendant has shown purposeful discrimination.’” Snyder v. Louisiana, 552

U.S. 472, 484–85, 128 S. Ct. 1203, 1212 (2008) (quoting Miller-El v. Dretke, 545

U.S. 231, 277, 125 S. Ct. 2317, 2346 (2005) (Thomas, J., dissenting)). At this step,

“[t]he trial court has a pivotal role in evaluating Batson claims.” Id. at 477, 128

S. Ct. at 1208. This step involves an evaluation of the prosecutor’s credibility, and

“the best evidence [of discriminatory intent] often will be the demeanor of the

attorney who exercises the challenge.” Id. (quoting Hernandez v. New York, 500

U.S. 352, 365, 111 S. Ct. 1859, 1869 (1991) (plurality opinion)). “In addition,

race-neutral reasons for peremptory challenges often invoke a juror’s demeanor

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(e.g., nervousness, inattention), making the trial court’s first-hand observations of

even greater importance.” Id. In such a case, the 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. . . . [T]hese determinations of

credibility and demeanor lie ‘peculiarly within a trial judge’s province.’”        Id.

(quoting Hernandez, 500 U.S. at 365, 111 S. Ct. at 1869).           Thus, except in

“exceptional circumstances,” the reviewing court defers to the trial court. Id.

      “[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.” Watkins, 245 S.W.3d at 448. An appellate

court misapplies the “clearly erroneous” standard of appellate review when it

substitutes its judgment for that of the trial court in deciding that the prosecutor’s

facially race-neutral explanation for striking a venire member was a pretext.

Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). This is because

“[t]he term ‘pretext’ is solely a question of fact; there is no issue of law.” Id.

Thus, “the trial court [is] in the best position to make that credibility

determination.” Id. To make the determination of whether the prosecutor’s race-

neutral explanation for his strike was a pretext, the reviewing court should consider

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the entire voir dire record, not merely those arguments or considerations the parties

specifically called to the trial court’s attention. Watkins, 245 S.W.3d at 448.

      The trial court’s factual findings are presumed to be sound unless the

defendant rebuts the presumption of correctness by clear and convincing evidence.

Id. at 448 n.16 (quoting Miller-El, 545 U.S. at 240, 125 S. Ct. at 2325).

      The Court of Criminal Appeals has cautioned,

      The [United States] Supreme Court also clarified [in Miller-El v. Dretke]
      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 449 n.19 (quoting Miller-El, 545 U.S. at 252, 125 S. Ct. at 2332). By the

same reasoning, if the prosecutor identifies a race-neutral explanation for his

challenge to a venire member that the trial court does not find circumstantially

suspect, the trial corut’s finding of racial neutrality does not fade into

insignificance because an appellate court can imagine a reason that the

prosecutor’s explanation for the strike might have been false.              Rather, the

defendant must rebut the trial court’s findings by “clear and convincing evidence.”

Miller-El, 545 U.S. at 240, 125 S. Ct. at 2325; Watkins, 245 S.W.3d at 448.

      Here, in direct contravention of the standard of review, the majority

substitutes itself for the trial court in deciding that the prosecutor’s facially race-
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neutral explanation for striking venire member Fortune was a pretext. See Gibson,

144 S.W.3d at 534 (holding that appellate court misapplied “clearly erroneous”

standard of review when it substituted its judgment for trial court’s in deciding that

prosecutor’s facially race-neutral reason for striking veniremember was pretext).

Rather than accepting the trial court’s finding that the prosecutor’s reasons for

striking Fortune were valid and race-neutral, and rather than requiring that the

defendant rebut the presumption of correctness by clear and convincing evidence,

the majority indulges its own presumption of incorrectness, essentially dismissing

the prosecutor’s explanation for striking Fortune out of hand. And, rather than

allowing the trial court to make the factual determination as to whether the

prosecutor’s stated reasons for the strike were a “pretext,” the majority ignores the

express finding of the trial court that the prosecutor’s reasons for the strike were

racially neutral. Instead, it determines for itself, based on its own evaluation of the

prosecutor’s and Fortune’s credibility from its review of the evidence, that the

prosecutor’s peremptory strike of Fortune was motivated by racial discrimination.

      The majority treats the prosecutor’s stated reasons for striking Fortune with

incredulity throughout its opinion, in direct opposition to the mandate of Watkins

that it “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




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deference.” Watkins, 245 S.W.3d at 448. It characterizes the prosecutor’s “stated

reasons” for striking Fortune with caveats and quotation marks:

      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 contract, 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).

Slip Op. at 8. It then declares, “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.” Slip Op. at 8.

      The majority’s characterization of the prosecutor’s testimony and its implied

conclusion that that testimony is not based on fact can only have been intended to

support the majority’s substitution of its own evaluation of the credibility of the

prosecutor for that of the trial court, in contradiction of the standard of review. See

Gibson, 144 S.W.3d at 534; see also Snyder, 552 U.S. at 477, 128 S. Ct. at 1208

(stating that step three requires evaluation of prosecutor’s credibility, of which best

evidence is often demeanor of prosecutor, as well as venire member’s demeanor,

“making the trial court’s first-hand observations of even greater importance”). The

majority then reasons, “The prosecutor asked essentially identical questions of

[white] venire members 7 and 8 regarding whether they had assessed punishment

during their prior jury service,” and, “[d]espite their nearly identical answers to the

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prosecutor’s question,” seated them on the jury. The majority concludes 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” and, therefore,

“naturally gives rise to an inference of discriminatory intent.”       Slip Op. at 9

(quoting Snyder, 552 U.S. at 485, 128 S. Ct. at 1212). It then simply dismisses the

reasons relating to Fortune’s demeanor that the State actually gave for striking

Fortune, including, as the majority puts it, “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.” Slip Op. at 9.

      In substituting itself as fact-finder for the Batson inquiry, the majority

completely ignores the purpose of the exchange between the prosecutor and the

trial court at the Batson hearing, during which the trial court evaluated the

prosecutor’s demeanor and credibility. When asked for his race-neutral reasons for

striking Fortune, the prosecutor referenced the aspects of Fortune’s demeanor the

majority sets out and then stated,

      For example, before we started jury selection when [appellant’s
      counsel] wanted me to approach the bench, [Fortune] was paying
      attention to him the whole time and then actually pointed me out to
      tell me that he wanted me. That of and in itself isn’t that big of a deal
      but then coupled when she was asked about her prior jury service, I
      was troubled because she was the only person who used the term that
      the defendant was accused of—I think burglary of habitation for
      stealing something and then we went to the part whether or not she
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      got a verdict or this as punishment she said they didn’t. I just got the
      feeling—by the ways, 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 Juror No. 6. . . . [Y]ou can see, I placed Juror No. 24 on the
      panel. There [are] other people I struck for similar reasons.

The court then asked who the other jurors were whom he struck “for similar

reasons,” and the prosecutor responded with references to jurors number one (a

white male), eleven (an African-American female), twelve (a white female), thirty-

three (a white male), and forty-two (a white male), referencing the similarities in

their demeanor to that of Fortune.

      After the prosecutor explained his reasons for the strike, the trial court

recognized appellant’s counsel for rebuttal. Appellant’s counsel returned to the

prosecutor’s statement that he was troubled by Fortune’s calling the defendant in

the prior case in which she served as a juror “the accused,” and he reminded the

court that everyone is innocent until proved guilty. The trial court then questioned

the prosecutor more closely about the defense’s objection to the strike, and the

prosecutor emphasized in his answer that it was not just the fact that the jury had

not assessed punishment that caused him to strike Fortune, but “the way she

phrased it” and “the tone of voice she said it, the way the eye contact that I was not

getting with her, the eye contact [defense counsel] was getting with her, the way

she said I felt like she insinuations in my mind was that the I was wrongfully

                                          9
accused [sic].” Also, she had been “watching [defense counsel] just more which is

[a] concern of mine,” and she had pointed to the prosecutor to approach the bench

when he was not paying attention, “saying that [defense counsel] wanted me. So,

you know, I put those things together; and I just —that’s where I come up with my

concerns.”

      After listening to the prosecutor’s explanation, the trial court—an

experienced and highly respected African-American female criminal district court

judge—immediately found on the record “that the State has offered race neutral

reasons for exercising their strikes [on] Venireman No. 6 [Fortune] and No. 11,”

and she denied the defense’s Batson motion. The majority states, however, that

“[t]he trial court then denied appellant’s Batson challenge without explanation,”

and “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.” Slip Op. at 6. In fact, the trial court did expressly find on the record

that the State had “offered race neutral reasons” for exercising a peremptory strike

on Fortune.

      Having made the incorrect statement that the trial court denied appellant’s

Batson challenge without explanation, the majority continues its substitution of

itself for the trial court in the Batson inquiry, stating in the next sentence, “In fact,

the record reveals that the trial court, based upon Fortune’s prior jury service,

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actually engaged her in questioning to illustrate legal concepts to the venire panel.”

It concludes, “This counters any suggestion that the trial court would have credited

the State’s explanation that Fortune was inattentive or was sending a bad ‘vibe’ in

the courtroom.” Slip Op. at 11–12.

      Both the majority’s statement that the trial court did not make a finding on

Fortune’s credibility and its statement that the trial court “actually” engaged

Fortune “to illustrate legal concepts to the venire panel” serve only to justify its

own evaluation of the prosecutor’s credibility and its complete lack of deference to

the trial court’s evaluation and ruling by showing what the trial court “really”

thought about Fortune, and thus to justify its rejection of the trial court’s finding

that the prosecutor’s reasons for striking Fortune were race neutral. In short, the

majority imagines a plausible reason for the trial court to have ruled other than it

did on the defendant’s Batson challenge, in contradiction of the standard set out in

Miller-El, Gibson, and Watkins, which forbids the reviewing court from

substituting itself for the trial court in the third step of the Batson inquiry. See

Miller-El, 545 U.S. at 252, 125 S. Ct. at 2332; Watkins, 245 S.W.3d at 449 n.19;

Gibson, 144 S.W.3d at 534.

      Moreover, the majority bases its imagined reason for reaching a ruling

contrary to the ruling of the trial court on a misleading representation of the record.

The trial court did not engage Fortune “to illustrate legal concepts” to the venire in

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order to show its approbation of her as a potential juror capable of instructing the

others, as the majority implies. Instead, the trial court conducted the initial voir

dire before turning it over to counsel for the parties.      In that period, at the

beginning of voir dire, the court posed a hypothetical situation to the venire in

which she asked the venire members to suppose that “[t]he State called 50

witnesses. The other side had a chance to ask questions and didn’t do so. So,

everything those 50 people had to say must be the truth. I am going to find this

guy guilty in no time flat and be on my way home.” The court then asked, “Ms.

Fortune, since you’ve been on a jury before, do you think that’s the right approach

the jury should take in that circumstance?” When Fortune replied, “No, Your

Honor,” the court asked, “Why?”        Upon receiving the answer, “Because the

evidence has to prove beyond a reasonable doubt,” the court probed further and

then asked another juror, “What do you think about that?” Getting the answer, “I

agree,” the court asked that juror further questions and then thanked both and

explained the jury’s function to the venire. It is extremely misleading to imply, as

the majority does, that the trial court, having heard Fortune’s answer to the

prosecution’s questions about her jury service during voir dire, then turned to

Fortune with approbation of her legal knowledge and experience as a juror as

illustrative of proper juror behavior for the other venire members.




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      Unlike the majority, I do not conclude that Fortune’s answers to questions

about what the State would have to prove for her to find the defendant guilty to be

mere questioning to illustrate legal concepts. I take the trial court’s questioning of

Fortune to be its examination of her to determine what jurors who had previously

served thought the role of a juror was. That questioning offered the trial court the

opportunity to hear Fortune’s answers and to observe her demeanor in answering

them, just as the rest of the voir dire offered the trial court the opportunity to

witness all the potential jurors’ answers and demeanor, along with that of counsel

for both sides. Thus, the questioning, among other things, allowed the court to

develop a basis for determining the constitutional validity of a peremptory strike,

should a Batson challenge be made. Likewise, the Batson hearing itself offered the

trial court the opportunity to evaluate the demeanor and credibility of the

prosecutor and to determine whether his concerns about Fortune were valid or

motivated by purposeful discrimination. See Snyder, 552 U.S. at 477, 484–85, 128

S. Ct. at 1208, 1212 (holding that question presented at third step of Batson inquiry

is “whether the defendant has shown purposeful discrimination,” and “best

evidence” is often demeanor of attorney who exercised strike).

      The fact that the trial court overruled the defendant’s Batson challenge

following questioning of the prosecutor in response to rebuttal argument by

defense counsel indicates to me that the trial court satisfied herself that the State’s

                                          13
concerns about Fortune were justified in light of the court’s own observations and

the answers to her questions both before and during the Batson hearing. Because

the State also struck other potential jurors, both black and white, male and female,

for similar reasons and seated one of three available black jurors on the jury, and

nothing indicates that the trial court was not in a position to evaluate the demeanor

and credibility of both the prosecutor and Fortune, I would defer to the trial court’s

ruling.   I see absolutely no “exceptional circumstances” that would justify

overruling the trial court’s determination regarding the propriety of the strike based

on Fortune’s demeanor in answering the State’s questions during voir dire under

the circumstances of this case. See Snyder, 552 U.S. at 477, 128 S. Ct. at 1208.

      I would overrule appellant’s third issue, urging his Batson challenge, and I

would affirm the judgment of the trial court.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Justices Jennings, Keyes, and Higley.

Keyes, J., dissenting.

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




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