      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                             444444444444444444444444444
                               ON MOTION FOR REHEARING
                             444444444444444444444444444


                                      NO. 03-03-00614-CR




                                    Edward Fultz, Appellant

                                                 v.

                                  The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
         NO. 9024191, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING



                            MEMORANDUM OPINION


                We withdraw our opinion and judgment of October 13, 2005, and issue this opinion

in its place.

                Appellant Edward Fultz was convicted of burglary of a habitation with intent to

commit aggravated assault, and the trial court sentenced him to twenty years’ confinement in the

Texas Department of Criminal Justice, Institutional Division. See Tex. Pen. Code Ann. § 30.02

(West 2003). On appeal, Fultz accuses the State of racial discrimination in the use of its peremptory

strikes. See Tex. Code Crim. Proc. Ann. art. 35.261 (West 1989); see also Batson v. Kentucky, 476

U.S. 79, 88-89 (1986). We will affirm.
                                         BACKGROUND

                About a year and a half after a dating relationship between Fultz and Deborah

Kapchan ended, Fultz broke into Kapchan’s apartment. Fultz woke Kapchan by strangling her and

repeatedly threatened to kill her with a box cutter. Kapchan reported the incident to the Austin

Police Department. Fultz was charged with burglary of a habitation with intent to commit

aggravated assault and was convicted after a trial before a jury.1 See Tex. Pen. Code Ann. § 30.02.

                Fultz is African-American, and his sole issue in this case concerns a Batson challenge.

See Tex. Code Crim. Proc. Ann. art. 35.261; see also Batson, 476 U.S. at 88-89. During voir dire,

the State used a peremptory challenge to remove Joan Blake, one of the two panel members who was

African-American.2 The defense raised the following objection to the challenge:


       Yes, your Honor, at this time we would object to the use of the preemptory [sic]
       strikes used by the State, that they were used in an impermissible manner. And if I
       can elaborate, my client is black. The jury questionnaires and a view of the jurors
       reflect that there are two blacks that were within the jury panel within the strike zone,
       No. 27 and No. 30. The record reflects that neither one of those jurors was ever
       asked any questions or made any response whatsoever to any questions or voluntary
       statements by myself or by the prosecutor.


See Batson, 476 U.S. at 94-96. In response, the prosecutor stated that he struck Blake because she

had three arrests:3 one for discharging a firearm, see Tex. Pen. Code Ann. § 42.12(a) (West 2003)


       1
           Fultz was charged with three other offenses as well, but was not convicted.
       2
           The other African-American panel member, Nicole Dove, served on the jury.
       3
          Blake’s criminal history was not discovered until after juror applications were submitted.
In her juror application, Blake had indicated that she had never been an accused in a criminal case.
The State obtained Blake’s criminal history, along with those of the other panel members, from the
Texas Crime Information Center and the Federal Bureau of Investigation’s Crime Information
Center.

                                                  2
(class A misdemeanor); one for harassing communication, see id. at § 42.07 (West 2003) (class B

misdemeanor); and one for family violence, see id. at § 71.004 (West 2003) (class A misdemeanor).

Fultz then attempted to create a record and asked that all of the panel members’ criminal histories

be entered in the record. The trial court overruled the Batson objection. Later in voir dire, Fultz’s

counsel asked whether the State struck all individuals on the jury panel with criminal histories. The

prosecutor stated:


       The ones that were within the strike zone, I struck all of them but one who appears
       on the jury panel who is on the jury that has a Class C offense, which I have
       disregarded as being non-serious. But those I considered the offenses being serious,
       that is, greater than a Class A, yes. Two with driving while intoxicated offenses, one
       with a sexual assault offense, and of course the one I described already for the record
       that had the arrest communication, discharging a firearm and an assault.


               One Caucasian juror, Kenneth Word, had a criminal conviction for theft by check but

was not struck from the jury. Although theft by check can be a class C, class B, or class A

misdemeanor, the record does not reflect the degree of Word’s theft conviction.4 See Tex. Pen. Code

Ann. §§ 31.03, 31.06 (West 2003).

               At the conclusion of trial, the jury found Fultz guilty of burglary of a habitation with

intent to commit aggravated assault, and the trial court assessed punishment at twenty years’

confinement. This appeal followed.




       4
        For theft by check offenses, the penalty is determined by the amount of the check. See Tex.
Pen. Code Ann. § 31.03(e). In Word’s case, the record does not disclose the amount of the check.

                                                  3
                                       DISCUSSION

               Fultz raises one issue on appeal, complaining that the State racially discriminated in

the use of its peremptory strike against Blake. See Tex. Code Crim. Proc. Ann. art. 35.261; see also

Batson, 476 U.S. at 88-89. The Equal Protection Clause of the Fourteenth Amendment prohibits the

use of peremptory challenges to exclude panel members from a jury because of their race. Batson,

476 U.S. at 84. We analyze a Batson challenge in three steps: (1) the defendant must make a prima

facie showing that the State made a race-based strike against an eligible panelist; (2) if a prima facie

case is made, the State must come forward with a race-neutral reason for the strike; (3) if the State

offers a race-neutral reason, the burden shifts to the defendant to persuade the court that the stated

reason for the strike is a mere pretext for racial discrimination. Simpson v. State, 119 S.W.3d 262,

268 (Tex. Crim. App. 2003); Mandujano v. State, 966 S.W.2d 816, 818 (Tex. App.—Austin 1998,

pet. ref’d). If the trial court rules on the ultimate question of racial discrimination, it is the

explanation and not the prima facie showing that we review on appeal. Malone v. State, 919 S.W.2d

410, 412 (Tex. Crim. App. 1996). We review the court’s decision for clear error. Lopez v. State,

940 S.W.2d 388, 390 (Tex. App.—Austin 1997, writ ref’d). That is, we must have a “definite and

firm conviction that a mistake has been committed” after reviewing all of the evidence in the light

most favorable to the ruling. Vargas v. State, 838 S.W.2d 552, 554 (Tex. Crim. App. 1992).

               Concerning the first Batson prong, the State’s use of a peremptory challenge to

dismiss all or most African-American jurors is illustrative of the type of evidence that can be used

to raise the inference of discrimination. Keeton v. State, 749 S.W.2d 861, 867 (Tex. Crim. App.

1988). In addition, the type and manner of questions directed to the challenged juror, including lack



                                                   4
of questions, can be considered evidence leading to an inference of discrimination. See id. at 867.

The record reflects that the State did not ask any questions of or receive any answers from the

excluded juror about issues raised during voir dire. We conclude that Fultz made a prima facie

showing of a race-based strike. The burden then shifted to the State to come forward with a race-

neutral reason for the strike.

                We now turn to the second Batson prong. To show race neutrality, the State may

provide evidence that it challenged jurors of another race with similar characteristics as the African-

American jurors who were struck. Keeton, 749 S.W.2d at 868. Also, “unless a discriminatory intent

is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.”

Simpson, 119 S.W.3d at 268 (citing Purkett v. Elem, 514 U.S. 765, 768 (1995)). In this case, the

State asserts that the prosecutor challenged all panel members with “serious” offenses, without

regard to the panel members’ ethnicities. After stating his criteria for peremptory challenges, the

prosecutor provided the trial court with three additional panel members who were struck for

committing a “serious” offense. Out of these three panel members, at least one was Caucasian.5 The

State therefore established that it had a race-neutral reason for its strike because the prosecutor

challenged panel members of other races with similar characteristics. The State satisfied the second

prong.

                Finally, we consider the third step of the Batson analysis: whether Fultz met his

burden of proving that the State’s race-neutral explanation was a pretext. Fultz argues that disparate


         5
          It is difficult to ascertain from the record each panel member’s ethnicity. The criminal
histories provided in the record list panel members with Hispanic surnames as “White” or
“Caucasian.”

                                                  5
treatment existed because a Caucasian panel member, Word, had also committed a criminal offense

though he was permitted to remain on the jury.

               In Miller-El, the U.S. Supreme Court required a side-by-side comparison of African-

American and Caucasian jurors when addressing a race-based Batson challenge. Miller-El v. Dretke,

125 S. Ct. 2317, 2325 (2005). If “a prosecutor’s proffered reason for striking a black panelist applies

just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to

prove purposeful discrimination.” Id. at 2325. In Miller-El, the prosecutor had peremptorily stricken

an African-American panel member for favoring rehabilitation over the death penalty. Id. at 2326-

27. However, the record showed “unequivocally” that the panel member believed the death penalty

could be imposed without rehabilitation. Id. at 2327. More importantly, the record also showed that

there were several Caucasian panelists who had reservations against the death penalty because they

favored rehabilitation. Id. The court held:


       In sum, nonblack jurors whose remarks on rehabilitation could well have signaled a
       limit on their willingness to impose a death sentence were not questioned further and
       drew no objection, but the prosecution expressed apprehension about a black juror’s
       belief in the possibility of reformation even though he repeatedly stated his approval
       of the death penalty and testified that he could impose it according to state legal
       standards even when the alternative sentence of life imprisonment would give a
       defendant (like everyone else in the world) the opportunity to reform.


Id.

               Miller-El reaffirms prior case law that prohibited disparate treatment among jurors

and did not announce any new elements or criteria for determining a Batson claim. See Murphy v.

Dretke, 416 F.3d 427, 439 (5th Cir. 2005). Instead, the Court emphasized that a trial or appellate



                                                  6
court is limited in its review of the prosecutor’s stated reason. See Miller-El, 125 S. Ct. at 2332. A

court cannot search for any reason, however rational, to support the prosecutor’s strike. Id. Rather,

it is bound to consider only the prosecutor’s stated reason. Id. This preserves the prosecutor’s

burden to state a racially neutral reason for the strike. See id.

               In this case, the trial court did not believe disparate treatment existed among the panel

members. In determining whether the trial court erred, we must focus on the genuineness of the

State’s asserted motive for the strike rather than its reasonableness. Miller-El, 125 S. Ct. at 2332;

Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004) (citing Purkett, 514 U.S. at 765). The

trial court is in the best position to make a determination on this fact question. Gibson, 144 S.W.3d

at 534. In Gibson, the court of criminal appeals reversed the judgment of the court of appeals “when

[the court of appeals] substituted its judgment for the trial court’s in deciding that the prosecutor’s

facially race-neutral explanation for striking [a panel member] was a pretext. The term ‘pretext’ is

solely a question of fact; there is no issue of law.” Id.

               In looking at the genuineness of the State’s asserted motive, we are to limit our review

to information provided in the Batson hearing. See Wright v. State, 832 S.W.2d 602, 605 (Tex.

Crim. App. 1992); see also Young v. State, 856 S.W.2d 175, 176 (Tex. Crim. App. 1993) (State may

not use appellate record “as a surrogate for the absence of a trial explanation”).

               In this case, Fultz’s counsel introduced the panel members’ criminal histories in an

attempt to show that Caucasian, strikeable panel members with “serious” offenses remained on the

jury. The issue is whether, when doing the side-by-side analysis required by Miller-El, the criminal

histories in the record show that Blake was the only panel member struck for having committed a



                                                   7
“serious” offense, or whether panel members who were not African-American were struck for their

“serious” offenses as well.

               The prosecutor’s definition of “serious” offenses was far from clear. In defining

“serious,” we must limit our review to what was established during the Batson hearing. See Wright,

832 S.W.2d at 605; see also Young, 856 S.W.2d at 176. When the prosecutor used the word

“serious” in the record, he stated that he was targeting “greater than Class A” offenses. The

prosecutor then qualified his definition by providing two examples of a “serious” offense: driving

while intoxicated, which in fact is a class B misdemeanor, see Tex. Pen. Code Ann. § 49.04(b) (West

2003), and sexual assault, a felony, see id. § 22.011(f) (West Supp. 2004-05). Taken as a whole, the

prosecutor defined “serious” both by explanation and examples. Therefore, the trial court may have

reasonably believed that “serious” offenses were not limited to “greater than Class A” offenses, but

included certain misdemeanors as well.6

               In this case, we will defer to the trial court in determining whether “serious” offenses

included certain misdemeanors, such as driving while intoxicated. The trial court is in the best

position to determine the meaning and sincerity of the parties. See Gibson, 144 S.W.3d at 534.

Because the State struck panel members who were not African-American with “serious” offenses,

the Defendant has not met his burden of establishing that the State’s asserted motive was not

genuine. The trial court’s ruling was not clearly erroneous. See id.




       6
        On appeal, the State argues that the prosecutor intended “serious” to mean “an offense that
was worse than a Class C misdemeanor.” We find this position to be unsupported by the record.

                                                  8
              The judgment of conviction is affirmed.




                                           __________________________________________

                                           Bob Pemberton, Justice

Before Justices B. A. Smith, Puryear and Pemberton

Affirmed

Filed: December 16, 2005

Do Not Publish




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