       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-00-00201-CR



                                  Robert Rosales, Appellant

                                               v.

                                The State of Texas, Appellee




 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
        NO. 99-708-K368, HONORABLE BURT CARNES, JUDGE PRESIDING




              Appellant Robert Rosales appeals a judgment based upon a jury determination

finding him guilty of committing the offense of possession of a controlled substance with intent

to deliver. See Tex. Health & Safety Code Ann. § 481.112 (West Supp. 2000). The same jury

assessed punishment at twenty years’ confinement in the Texas Department of Criminal Justice

Institutional Division and a fine of $5, 000.00. 1 Appellant appeals by two points of error, both

based on Batson challenges. See Batson v. Kentucky, 476 U. S. 79 (1986). We must decide

whether the State offered a race-neutral basis for exercising peremptory challenges to strike an

African-American and a Hispanic as potential jurors and, if so, whether the district court’s

decision to accept the State’s explanation should be sustained. Because we hold that the district



   1
      On July 22, 1999, appellant was found to have in his possession 3.88 grams of cocaine and
drug paraphernalia.
court’s ruling was not clearly erroneous, we will overrule appellant’s points of error and affirm

the judgment.


Trial Procedures and Standard of Review for Batson Objections

                Appellant contends the district court erred by denying his Batson objections to the

State’s peremptory challenges of an African-American and a Hispanic member of the venire panel.

Appellant argues that the State used the strikes in a racially discriminatory manner to exclude the

venire members from service on the jury because of race. Excluding a person from jury service

because of race violates the Equal Protection clause of the Fourteenth Amendment to the United

States Constitution. U. S. Const. amend. XIV; Batson, 476 U. S. at 88; Mandujano v. State, 966

S.W.2d 816, 818 (Tex. App.—
                          Austin 1998, pet. ref’d).

                A Batson objection must satisfy the three-pronged test established in Purkett v.

Elem, 514 U. S. 765, 767-68 (1995). See also Mandujano, 966 S.W.2d at 818. First, the

defendant must establish a prima facie showing of discrimination by the State against an eligible

venire member. Mandujano, 966 S.W.2d at 818. To make such a case, the defendant must show

that relevant circumstances raise an inference that the State made a race-based strike. Id. Only

minimal evidence is needed to support a rational inference. Id. The burden of establishing a

prima facie case is not onerous. Id. Second, if a prima facie case is made, the State then has the

burden to come forward with a race-neutral reason for the strike. Id. The State’s explanation

must be clear and reasonably specific and must contain legitimate reasons for the strike related to

the case being tried at the moment. Id. Finally, once the State offers a race-neutral explanation,

the burden shifts back to the defendant to persuade the trial court that the State’s stated reasons

                                                 2
for its peremptory challenges are mere pretext and the strikes are in fact racially motivated. Lopez

v. State, 940 S.W.2d 388, 389-90 (Tex. App.—
                                           Austin 1997, pet. ref’d); see also Purkett, 514 U. S.

at 768; Hernandez v. New York, 500 U.S. 352, 359 (1991).

               On appeal of a trial-court ruling following a Batson inquiry, the appellate court

applies a “clear error” standard of review. Lopez, 940 S.W.2d at 390 (citing Hernandez, 500

U. S. at 364-65). In applying this standard, the court must review all of the evidence in the light

most favorable to the trial court’s ruling. Mandujano, 966 S.W.2d at 819. If, after reviewing

all the evidence, the appellate court cannot say that the trial court’s ruling was clearly erroneous,

it must uphold the ruling even if the reviewing court would have weighed the evidence differently

had it been sitting as the trier of fact. Lopez, 940 S.W.2d at 390. 2 To conclude that the trial

court’s decision was clearly erroneous, the appellate court must be left with a “definite and firm

conviction that a mistake has been committed.” Vargas v. State, 838 S.W.2d 552, 554 (Tex.

Crim. App. 1992).

               Great deference to the trial court’s ruling is especially appropriate in the review of

a Batson ruling because the credibility of the prosecutor’s explanation is the heart of the matter

and because the trial court is in the best position to make that judgment. Mandujano, 966 S.W.2d

at 819.



   2
       Presiding Judge McCormick dissented from the refusal of the State’s petition for
discretionary review in Lopez, partially based on his view that the court of criminal appeals should
“emphasize that the applicable ‘clearly erroneous’ standard of appellate review to a trial court’s
ruling on a Batson claim is a highly deferential standard. ” Lopez v. State, 940 S.W.2d 388 (Tex.
App.— Austin), pet. ref’d, 954 S.W.2d 774, 776 (Tex. Crim. App. 1997) (McCormick, P. J.,
dissenting) (citing Hernandez v. New York, 500 U.S. 352, 362-66 (1991)).

                                                 3
               Deference to the trial court’s findings on the issue of discriminatory intent makes

particular sense in this context because the finding “largely will turn on evaluation of credibility. ”

Batson, 476 U. S. at 98 (citing Anderson v. Bessemer City, 470 U. S. 564, 575-76 (1985)). In the

typical peremptory-challenge inquiry, the decisive question will be whether the prosecutor’s race-

neutral explanation for a peremptory challenge should be believed. Mandujano, 966 S.W.2d at

819. There will seldom be much evidence on the issue, and the best evidence often will be the

demeanor of the attorney who exercises the challenge. Id. As with the state of mind of a juror,

evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly

within a trial judge’s province.” Hernandez, 500 U. S. at 365.


Discussion and Conclusion

               The appellant, Rosales, is Hispanic. 3 At the conclusion of voir dire, the State

exercised peremptory challenges to excuse a male venire member of African-American origin and

a male venire member of Hispanic origin. Appellant contends that these strikes were racially

motivated.

               We will presume without deciding that appellant established a prima facie showing

of discrimination and address the State’s articulation of a race-neutral explanation for striking the

venire members. See Mandujano, 966 S.W.2d at 818. In evaluating the race neutrality of the

State’s explanation, an appellate court must determine whether, assuming the reasons given are




   3
        It is unnecessary for a defendant to share the same race as the excluded juror in order to
assert a Batson challenge. Powers v. Ohio, 499 U.S. 400, 402 (1991).

                                                  4
true, the use of the peremptory challenge violated the Equal Protection Clause as a matter of law.

Hernandez, 500 U. S. at 359.

               A race-neutral explanation means an explanation based on something other than the

race of the juror. Hernandez, 500 U.S. at 360. The issue is the facial validity of the State’s

explanation. “Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason

offered will be deemed neutral.” Id. “The second step of this process does not demand an

explanation that is persuasive, or even plausible.” Purkett, 514 U. S. at 767-68.

               The State’s intent, not the result of its action, is crucial. “Equal protection analysis

turns on the intended consequences of government classifications. Unless the government actor

adopted a criterion with the intent of causing the impact asserted, that impact itself does not

violate the principal of race neutrality. ” Hernandez, 500 U. S. at 362. In Batson, the Supreme

Court observed that the proponent of a strike that is challenged must provide a clear and

reasonably specific explanation of the legitimate reasons for exercising the strike. Batson, 476

U. S. at 98. In Purkett, the Supreme Court explained this requirement:


       This warning was meant to refute the notion that a prosecutor could satisfy his
       burden of production by merely denying that he had a discriminatory motive or by
       merely affirming his good faith. What is meant by a “legitimate reason” is not a
       reason that makes sense, but a reason that does not deny equal protection.


Purkett, 514 U. S. at 769. The Court pointed out that the focus of the inquiry is not upon the

reasonableness of the asserted non-racial motive, but on the genuineness of the motive. Id.; see

also Morris v. State, 940 S.W.2d 610, 612 (Tex. Crim. App. 1996) (“A ruling on a Batson

objection is a credibility determination.”). If the explanation is not a general denial and is not

                                                  5
racially based, the answer can be silly or superstitious or fantastic or implausible and need not be

even minimally persuasive. See Purkett, 514 U. S. at 768.

               Appellant first argued in the district court that the State used three of its peremptory

challenges to remove an African-American man, a Hispanic man, and a woman with a Hispanic

surname. Second, appellant argued that only one minority within the strike range for the State

was not struck and remained on the jury. Appellant finally argued that three-fourths of the

potential minority members were removed by the State’s peremptory strikes. Appellant asserts

on appeal only his objections to the State’s use of peremptory challenges to the African-American

and the Hispanic male venire members.

               The State explained that it struck the African-American because he had a thick

accent and was difficult to understand. Appellant, in response, discounted the importance of

understanding his speech and focused on the venire member’s many years of higher education in

English in the United States. Appellant presented the potential juror’s questionnaire to illustrate

his comprehension of and education in the English language. Appellant did not address the

difficulty others might have had understanding the potential juror’s accent. After the hearing and

argument, the district court noted that the court, too, had some difficulty understanding the venire

member and subsequently ruled that he did not believe that purposeful discrimination by the State

had been demonstrated in the use of its strikes.

               The State explained that it struck the Hispanic because that the prosecutor had

reason to believe that the prospective juror “had a DWI” and that the prospective juror had family




                                                   6
members who had drug problems. 4 Appellant’s response to the State’s DWI assertion was that

he was not privy to that information and no questions were asked of the potential juror to clarify

whether he in fact had a DWI.        Concerning the prospective juror’s family members’ drug

problems, appellant asserted that a majority of the jurors responded that they had family members

or friends who had drug and alcohol problems. However, no other juror mentioned having a

DWI. Additionally, most of the jurors who had family or friends with substance-abuse problems

identified the problem as that of alcohol, not drugs. There was no evidence that any other

potential juror had both a DWI and family or friends with substance-abuse problems. However,

no other juror mentioned actually having a DWI. Additionally, most of the jurors who had family

or friends with substance-abuse problems identified the problem as that of alcohol, not drugs. The

court could consider that appellant was on trial for an illegal substance offense; there was no

evidence that any other potential juror had both a DWI and family or friends with substance-abuse

problems. After the hearing and argument, the district court observed that the potential juror had

approached the court at the general qualification of prospective jurors and advised the court of his

DWI.

               Appellant asserted that the State’s reasons were merely pretexts for impermissible

strikes. The district court determines the credibility of the State’s explanation. Mandujano, 966

S.W.2d at 821. The district court determined that appellant had not demonstrated purposeful

discrimination and denied the Batson claims. Appellant’s burden in a case such as this is

substantial, and often there will be little evidence to show purposeful discrimination. Mandujano,


   4
       The record is unclear whether the DWI was pending or had been resolved.

                                                 7
966 S.W.2d at 821. The system for determining a challenge places the burden on the opponent

of a peremptory strike. Id. While difficult, it is not impossible for a defendant to successfully

challenge a strike on the basis of Batson. See Lopez, 940 S.W.2d 388. Upon a minimal prima

facie showing of discrimination, the State must disclose its reason for the strike. Mandujano, 966

S.W.2d at 821. A general denial of discriminatory intent is not sufficient. Id. “I didn’t like the

way he looked” is not sufficiently specific, while “I didn’t like the way he looked because he had

long, unkempt hair and wore both a mustache and a goatee” is likely to be a sufficiently valid

race-neutral reason. Purkett, 514 U. S. at 767-70; Lee v. State, 949 S.W.2d 848, 851 (Tex.

App.—
    Austin 1997, pet. ref’d) (holding explanation sufficient where one man had two earrings,

another had both long hair and a goatee). Here, the district court was not persuaded that the State

was motivated by racial discrimination. We cannot say that the district court clearly erred by

declining to find that the State struck the venire members because of ethnicity.

               We overrule appellant’s points of error and affirm the district court’s judgment.




                                             Lee Yeakel, Justice

Before Justices Jones, Kidd and Yeakel

Affirmed

Filed: November 16, 2000


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