Reversed and Remanded and Opinion filed October 1, 2013.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00515-CR

                  ROBERT NATHANIEL JONES, Appellant
                                        V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 177th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1332397

                                OPINION

      Appellant Robert Nathaniel Jones challenges his felony conviction for
possessing a controlled substance, arguing in his first issue that the State
peremptorily struck an African-American veniremember in violation of Batson v.
Kentucky, 476 U.S. 79 (1986). He contends that the trial court erred in denying his
Batson challenge because the State’s explanation for striking an African-American
veniremember applied with identical force to three non-African-American
veniremembers who ultimately served on the jury.
       The State explained that, after striking less favorable veniremembers, it used
its final strikes against veniremembers who rated law enforcement in their
community a “seven” on a scale of one to ten. According to the State, its strategy
was to “str[ike] everybody who was a six [on law enforcement] and then everyone
who was a seven, up until [it] got to the point of . . . [veniremember number] 26 or
27,” where it “ran out of strikes”; it “took seven or lower and just moved up the
scale from [veniremember number] one.”
       The trial court erred in accepting this explanation because it is contrary to
the record. In striking veniremember number twenty-four, an African American,
the State skipped over two non-African-American veniremembers with lower
numbers who also gave law enforcement a score of seven. In addition, the State’s
strikes      reveal   disparate     treatment     of   African-American        veniremembers.
Accordingly, we conclude the trial court clearly erred by finding that the State’s
explanation was genuine. We therefore reverse appellant’s conviction and remand
the case for a new trial.

                                         BACKGROUND

       Appellant, an African American, was charged with third-degree felony
possession of a controlled substance. At the beginning of voir dire, the venire
consisted of sixty panelists. After challenges for cause, thirty-two veniremembers
remained, three of whom are identified in the record as African American. No
African-American members of the venire would go on to serve on the jury. Using
its peremptory challenges, the State struck either two of the three African-
American members (according to the record) or three of the four (according to the
parties).1      Appellant struck the remaining African-American veniremember

       1
           In their briefs, both parties contend that the venire had four African-American members
                                                 2
because he was a police officer.

       Following voir dire, appellant raised a Batson challenge based upon the
State’s strikes of two African-American veniremembers. On appeal, appellant
challenges only one of those strikes, that of veniremember twenty-four.

       When asked to justify its strikes, the State relied upon answers to two of its
voir dire questions.       The first question asked whether veniremembers “f[elt]
possession of small amounts of marijuana . . . should be prosecuted.” The second
asked veniremembers to “rate law enforcement in [their] community on a scale of
one to ten.” The State contended that it “took [the answers to these two questions]
and combined them” to determine which veniremembers to strike.

       The State explained that because many veniremembers answered “no” to the
marijuana question, it primarily emphasized law enforcement rankings.
Specifically, the State sought to eliminate all veniremembers who rated law
enforcement six or lower. A prosecutor summarized the approach that led to the
strike of veniremember twenty-four as follows:

       We’ve stated to the Court our specific race neutral reasons, which we
       have proven. We did regardless of race, six or lower for law
       enforcement. Then we took seven or lower and just moved up the
       scale from [veniremember] one up until we got past. Sa[ve] for the
       [African-American] police officer . . . so, obviously these are race
       neutral reasons and we have proven to the Court these things.
       Veniremember twenty-four answered “yes” to the question about
prosecuting possession of small amounts of marijuana and gave law enforcement

after the challenges for cause. The parties appear to have identified the fourth African-American
veniremember using juror information cards. Because the cards do not appear in the appellate
record, however, we cannot rely upon the parties’ representations regarding the race of the fourth
veniremember. See Vargas v. State, 838 S.W.2d 552, 556 (Tex. Crim. App. 1992). As a result,
we base our analysis upon the three African-American veniremembers that the record identifies.
See Young v. State, 826 S.W.2d 141, 146 (Tex. Crim. App. 1991).

                                                3
in her community a score of seven. Three non-African-American veniremembers
gave identical answers, but the State did not strike them.2 In addition, two of these
non-African-American members had lower venire numbers than veniremember
twenty-four, yet they were ultimately seated on the jury.3 The trial court denied the
Batson challenge, and appellant was convicted and sentenced to 30 years in prison.
This appeal followed.

                                          ANALYSIS

         In his first issue, appellant argues that the State’s facially race-neutral
explanation does not account for its strike of veniremember twenty-four. We
agree.

I.       Standard of review

         The Equal Protection Clause of the United States Constitution forbids
counsel from exercising peremptory strikes on the basis of race. Batson, 476 U.S.
at 89; see U.S. Const. amend. XIV, § 1. The exclusion of even one juror with
racial motive invalidates the jury selection process and requires a new trial. Davis
v. Fisk Elec. Co., 268 S.W.3d 508, 521 (Tex. 2008). Typically, counsel do not
have to explain or justify their strikes, unless a strike is challenged under Batson.
See Lewis v. State, 911 S.W.2d 1, 4 (Tex. Crim. App. 1995); see also Tex. Code

         2
          Member twenty-eight also gave identical answers and was seated on the jury but did not
precede member twenty-four in the numerical order of the venire. We therefore consider
member twenty-eight in our comparative analysis but not in evaluating the genuineness of the
State’s claim that it struck veniremembers in order.
         3
          These are not the only inconsistencies between the State’s proffered strategy and its
strikes. For example, the State departed from its stated strategy of combining the marijuana
question and the law enforcement question when it did not strike member number seven, who
believed possession of small amounts of marijuana should not be prosecuted and gave law
enforcement a score of seven. The State departed from its “strike-all-the-sixes” strategy when it
did not strike veniremember fifteen, who gave law enforcement a score of six. Appellant’s
comparative analysis argument on appeal does not consider these members, so our analysis does
not rely upon them.

                                               4
Crim. Proc. Ann. art. 35.14 (West 2006).

      Appellate courts review a trial court’s ruling on a Batson challenge for clear
error, focusing on the genuineness rather than the reasonableness of the
prosecutor’s explanation. Nieto v. State, 365 S.W.3d 673, 676 (Tex. Crim. App.
2012). We will not reverse a trial court’s ruling unless we are left with a firm
conviction that a mistake has been made. Harris v. State, 827 S.W.2d 949, 955
(Tex. Crim. App. 1992). The evidence offered at trial is viewed in the light most
favorable to the trial court’s ruling. Williams v. State, 804 S.W.2d 95, 101 (Tex.
Crim. App. 1991). The trial court’s ruling regarding purposeful discrimination is
entitled to great deference because such a ruling often requires the court to evaluate
the credibility and content of the State’s explanation, as well as other surrounding
facts and circumstances that the trial court is uniquely positioned to assess.
Alexander v. State, 866 S.W.2d 1, 8 (Tex. Crim. App. 1993).

      While we cannot simply substitute our judgment for that of the court below,
we are not limited to the specific arguments presented at trial. Id. Instead, we
review the voir dire record in its entirety. Watkins v. State, 245 S.W.3d 444, 448
(Tex. Crim. App. 2008).

II.   To prevail on his Batson challenge, appellant must show the trial court
      clearly erred in failing to find purposeful discrimination.
      A Batson challenge consists of three steps. Nieto, 365 S.W.3d at 675–76
(citing Hernandez v. New York, 500 U.S. 352, 358 (1991)). First, the defendant
must make a prima facie showing that the prosecutor has exercised peremptory
challenges on the basis of race. Id. Second, if the necessary showing has been
made, the burden shifts to the State to articulate a race-neutral reason for striking
the veniremember in question. Id. Third, the trial court must determine whether
the defendant has proved purposeful discrimination. Id.

                                           5
         A.         Step one: The prima facie case inquiry is moot.

         At trial, appellant attempted to make a prima facie case for racial
discrimination by showing that the State disproportionately utilized peremptory
strikes against African-American veniremembers. The record indicates that the
State expended twenty percent of its strikes to remove African-American
veniremembers, who represented just over ten percent of the eligible venire. In so
doing,        the     State   eliminated   sixty-six   percent   of   African-American
veniremembers—two out of three.
         To prevail on a Batson challenge, the aggrieved defendant need not
demonstrate multiple instances of racial discrimination in jury selection. Linscomb
v. State, 829 S.W.2d 164, 166 (Tex. Crim. App. 1992). Evidence that the number
of peremptory strikes used against an identifiable racial group exceeds what would
be expected if race had nothing to do with the strikes may be sufficient to establish
the prima facie case. Id. Racial disparity alone will not always establish a prima
facie case, however, particularly if, as here, the sample size is small. See Hassan v.
State, 369 S.W.3d 872, 876 (Tex. Crim. App. 2012).
         Ultimately, we need not decide whether appellant made a prima facie case.
Rather than disputing appellant’s argument for a prima facie case, the State offered
an explanation for its strikes to the trial court. In so doing, the State rendered this
step of the analysis moot. See Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim.
App. 2003).

         B.         Step two: The State provided a facially race-neutral explanation
                    for its peremptory strikes.
         Turning to the second step, we conclude that the State’s explanation for
striking veniremember twenty-four is facially race neutral.             A race-neutral
explanation is one based on something other than the race of the veniremember.


                                              6
Hernandez, 500 U.S. at 360. At this step of the inquiry, the issue is simply the
facial validity of the prosecutor’s explanation. Id. Unless discriminatory intent is
inherent in the explanation, the offered reason is race neutral. Id.

      Here, the State explained its strikes as a simple process of elimination based
on the ratings that veniremembers returned for their local law enforcement.
Because race plays no overt role in this explanation, it is facially race neutral.

      C.     Step three: We review the trial court’s decision regarding
             purposeful discrimination for clear error.
      In the third step, the court must determine whether the defendant proved
purposeful discrimination. The issue before us, then, is whether the trial court
clearly erred in failing to find purposeful discrimination in the State’s use of
peremptory strikes. The trial judge must evaluate the facially race-neutral reasons
given by the prosecutor to determine whether those explanations are genuine or
merely a pretext for purposeful discrimination. Whitsey v. State, 796 S.W.2d 707,
713 (Tex. Crim. App. 1989).

      A number of factors, if present, tend to show purposeful discrimination.
Miller-El v. Dretke, 545 U.S. 231, 240–63 (2008). While not determinative, “the
presence of any one of these factors tends to show that the State’s reasons are not
actually supported by the record or are an impermissible pretext.” Whitsey, 796
S.W.2d at 714.

      One of these factors is disparate treatment of veniremembers, which exists
when the State’s explanations for eliminating members of a particular racial group
apply equally well to members of another race who were not eliminated. Watkins,
245 S.W.3d at 448–49. Courts identify disparate treatment using a side-by-side
comparison, or “comparative analysis,” of veniremembers of a particular race who
were struck and members of other races who were not struck. See Miller-El v.

                                           7
Dretke, 545 U.S. at 232. If the reason a prosecutor gives for striking an African-
American veniremember applies just as well to a non-African-American member
allowed to serve on the jury, that fact is evidence tending to show disparate
treatment. See id.

       Another factor that may indicate purposeful discrimination is the extent to
which the record contradicts the State’s explanation for its strikes. See Greer v.
State, 310 S.W.3d 11, 18 (Tex. App.—Dallas 2009, no pet.) (“[T]he State’s
reliance on an explanation that is contradicted by the record is persuasive evidence
that its stated reason for striking [a veniremember] was pretextual.”). Batson
affords the State an opportunity to give its reason for striking a veniremember, but
requires the court to “assess the plausibility of that reason in light of all evidence
with a bearing on it.” Miller-El v. Dretke, 545 U.S. at 252. If the record shows the
State’s reason to be false, it is more likely to be a pretext for discrimination. See
Moore v. State, 265 S.W.3d 73, 87–88, 90 (Tex. App.—Houston [1st Dist.] 2008),
pet. dism’d, improvidently granted, 286 S.W.3d 371 (Tex. Crim. App. 2009) (per
curiam)    (finding   a   Batson    violation     based,   in   part,   on   prosecutor’s
misrepresentation that similarly situated juror of another race was also stricken).

III.   Comparative analysis and the State’s explanation for its strikes
       demonstrate purposeful discrimination in striking veniremember
       twenty-four.
       Analyzing Batson’s third step using these principles, we hold that the record
supports appellant’s contention that the State’s explanation for striking African-
American      veniremembers        applies       equally   to    non-African-American
veniremembers it did not strike.         Moreover, the record shows the State’s
explanation is not genuine because the State did not follow it. The State did not
begin with the first veniremember and strike all who gave law enforcement a score
of seven because it struck veniremember twenty-four while leaving members eight
                                             8
and thirteen, who gave the same response. Based on this disparate treatment, as
well as the inconsistency between the State’s explanation and its actual strikes, we
conclude that the trial court’s failure to find purposeful discrimination was clearly
erroneous.

       A.      A comparative analysis of the State’s strikes, based on the
               veniremembers’ answers during voir dire, indicates purposeful
               discrimination.

       Disparate treatment occurs when persons of a different race who share “the
same or similar characteristics as the challenged juror were not struck.” Whitsey,
796 S.W.2d at 713.          To show disparate treatment, an appellant may analyze
evidence in the record to compare veniremembers struck by the State with
veniremembers whom the State did not strike. See Miller-El v. Cockrell, 537 U.S.
322, 331 (2003).         Texas courts and the United States Supreme Court have
recognized that a comparative analysis showing purposeful discrimination can
establish a Batson violation. See, e.g., Snyder v. Louisiana, 552 U.S. 472, 485
(2008); Vargas v. State, 859 S.W.2d 534, 534–35 (Tex. App.—Houston [1st Dist.]
1993, pet. ref’d).4

       Comparative analysis is important because where “a prosecutor’s proffered
reason for striking a black panelist applies just as well to an otherwise-similar


       4
          On appeal, appellant may make a comparative analysis argument not presented at trial if
it is manifestly grounded in the record. Any argument made on appeal from a Batson challenge
must be based on “evidence presented to the trial judge during voir dire and the Batson hearing.”
Young, 826 S.W.2d at 145. But a reviewing court “need not limit itself to arguments or
considerations that the parties specifically called to the trial court’s attention so long as those
arguments or considerations are manifestly grounded in the appellate record.” Watkins, 245
S.W.3d at 448. Allowing appellant to present a more comprehensive comparative analysis in
support of his Batson claim on appeal is merely to allow him “to argue what is in evidence from
the voir dire and the Batson hearing and why he should prevail on his Batson claim.” Young, 826
S.W.2d at 146. Accordingly, we consider appellant’s comparative arguments on appeal to the
extent they are grounded in the record.

                                                9
nonblack who is permitted to serve, that is evidence tending to prove purposeful
discrimination to be considered at Batson’s third step.” Miller-El v. Dretke, 545
U.S. at 241. We need not compare only veniremembers that exhibit identical
characteristics. See id. at 247 n.6. If the State asserts that it struck an African-
American veniremember with a particular characteristic, yet it also accepted non-
African-American members with that same characteristic, this is evidence that the
asserted justification was a pretext for discrimination, even if the two members are
dissimilar in other respects. Reed v. Quarterman, 555 F.3d 364, 375 (5th Cir.
2009) (citing Miller-El v. Dretke, 545 U.S. at 241). Also, we must consider only
the State’s explanation for striking an African-American veniremember and
compare that explanation with its treatment of non-African-American members.
Miller-El v. Dretke, 545 U.S. at 252; see also Emerson v. State, 851 S.W.2d 269,
274 (Tex. Crim. App. 1993) (holding that any “explanation for striking a
prospective minority [veniremember] is . . . suspect when the state does not strike
persons with same or similar characteristics”).

      In this case, the State explained its decision to use one of its final strikes
against veniremember twenty-four, an African-American female, as the simple
application of a numeric system. The State asserted that veniremembers who gave
scores of either six or seven, when asked to rate law enforcement in their
communities on a scale from one to ten, were identified for removal. According to
the State, all veniremembers who responded with ratings of six were struck first.
Then, with only a few remaining strikes, the State proceeded to strike those who
gave law enforcement in their communities a score of seven. They began these
strikes, the State asserts, at the beginning of the venire and continued in order until
their strikes were exhausted.

      The State’s reasons for striking veniremember twenty-four ring hollow

                                          10
because they apply equally to three non-African-American veniremembers whom
the State allowed to serve on the jury.          As explained in detail below,
veniremembers eight, thirteen, twenty-four, and twenty-eight provided identical
answers to the relevant questions in voir dire.       But the State struck only
veniremember twenty-four, the sole African American in this group. The State’s
disparate treatment of these four similarly situated veniremembers indicates
purposeful discrimination.

      The State began its voir dire by asking the venire to rate current drug laws
on a scale from one to three—one being too harsh, two being proper, and three
being too lenient. Veniremember eight answered two, member thirteen answered
two, member twenty-four answered two, and member twenty-eight answered two.
All four gave the same one-word response.

      Next, the State asked the venire whether possessing a small amount of
marijuana should be a criminal offense. Member eight replied that it should, as did
members thirteen, twenty-four, and twenty-eight. All four gave the same one-word
response.

      Then, the State asked the venire to rate law enforcement in their respective
communities from one, being poor, to ten, being excellent. Member eight gave his
community’s law enforcement a rating of seven. Member thirteen also answered
seven. Member twenty-four did the same, as did member twenty-eight. All four
offered an identical, one-word response.

      Finally, the State asked the venire if they would require the prosecutor to
prove beyond a reasonable doubt that the drugs were found on the defendant’s
actual body. Members eight, thirteen, twenty-four, and twenty-eight were silent.
The veniremembers who spoke up or answered yes were struck for cause.


                                           11
         Appellant’s trial counsel then questioned the panel. First, counsel asked if
anyone would ascribe additional credibility to the testimony of a police officer by
virtue of his or her status. Veniremembers eight, thirteen, twenty-four, and twenty-
eight remained silent. The members who spoke up or answered yes were struck for
cause.

         In his final question, appellant’s counsel asked if anyone had a close friend
or family member in law enforcement. This is the only time that members eight,
thirteen, twenty-four, and twenty-eight gave different answers. Members thirteen,
twenty-four, and twenty-eight answered no. Member eight, on the other hand,
answered yes.

         In sum, members thirteen, twenty-four, and twenty-eight provided identical
answers to all questions asked of them. Member eight answered in lockstep with
the others until asked whether he had friends or family in law enforcement. For
our purposes, member eight’s single departure from otherwise-perfect uniformity
with the others is immaterial. Both members eight and thirteen were seated on the
jury because the State did not strike either member, indicating that the State itself
did not recognize a meaningful distinction between the two based on their
responses to defense counsel’s final question.

         This comparative analysis shows that State struck an African-American
veniremember who gave certain answers to the voir dire questions, yet it did not
strike three non-African-American members who gave identical answers to the
relevant questions. This evidence indicates that the State’s asserted explanation for
its strike was a pretext for discrimination. See Reed, 555 F.3d at 375.

         The Dallas Court of Appeals reached a similar conclusion in Young v. State,
848 S.W.2d 203 (Tex. App.—Dallas 1992), pet. ref’d, 856 S.W.2d 175 (Tex. Crim.
App. 1993). In that case, the State struck seven African-American veniremembers
                                           12
from the panel. When challenged, the State asserted that it had struck one of these
members because he had an uncle who had been in trouble with the law. Id. at
206. The State did not strike a non-African-American member whose brother had
been charged with theft, however. Id. at 207. A comparative analysis of the
member struck with the member retained left the court “with the definite and firm
conviction that the trial court made a mistake.” Id. at 210. In remanding for a new
trial, the court reiterated that “[o]ne peremptory challenge for racially motivated
reasons invalidates the entire jury selection process.” Id.

      Disparate treatment may not automatically be inferred from every situation
in which the State’s reasons for striking a veniremember apply to another
veniremember that the State did not strike. Cantu v. State, 842 S.W.2d 667, 689
(Tex. Crim. App. 1992). It may be the case, for example, that two veniremembers
possess the same objectionable attribute or character trait, but not in the same
degree. Id.     Here, however, four veniremembers gave identical answers to the
relevant questions and presented identical objectionable traits, but the State struck
only one—the African American. We hold that the State’s strike of veniremember
twenty-four when it seated three non-African-American veniremembers with
identical material answers indicates discriminatory intent.

      B.      The record shows that the State’s explanation of its strikes is not
              genuine.

      As discussed above, a second factor that indicates purposeful discrimination
is the State’s reliance on an explanation for its strikes that is contradicted by the
record. This factor is also present.

      In the Batson hearing, the two prosecutors initially gave unclear, and
apparently    uncoordinated,     explanations    for    striking   African-American
veniremember twenty-four. The first prosecutor justified the strike as follows:

                                          13
      [FIRST PROSECUTOR]: Juror No. 24, I chose to use a strike on
      because she said that --
      THE COURT: Either of those reasons for which you didn’t strike
      other people?
      [FIRST PROSECUTOR]: No. I mean, I struck -- I made a whole list
      of six or lower on law enforcement. Then I got to a point where I had
      two more strikes to make and I had to -- because they had been
      eliminated for cause, these other people I was going to strike. So, I
      went ahead and I struck 24 because she answered a 7 for law
      enforcement in her community. So, that’s why I made that decision.

This explanation is incomplete because it does not address why the State struck
veniremember twenty-four but did not strike non-African-American members
eight, thirteen, and twenty-eight—each of whom gave identical answers to the law
enforcement question and other relevant questions.

      As the exchange with the defense and the trial judge continued, the second
prosecutor restated the State’s explanation, adding that the State struck all
veniremembers who gave law enforcement a score of seven up until it reached
veniremember twenty-six or twenty-seven:

      [SECOND PROSECUTOR]: We left an African American juror on
      there who was a seven because --
      [FIRST PROSECUTOR]: He’s a police officer.
      [SECOND PROSECUTOR]: -- we went past him and we struck the
      sevens from there. So, we used sevens and sixes on our law
      enforcement and struck them, everybody who was a six and then
      everyone who was a seven, up until we got to the point of 20 -- looks
      like 26 or 27. Then we ran out of strikes. So, there was nothing to do
      with the race. It was all based upon the law enforcement question.

The State also noted that it did not strike member eighteen, the African-American
police officer who gave law enforcement a score of seven, because it assumed
(correctly, as it turned out) that appellant’s counsel would strike him.


                                          14
         Later, the second prosecutor reiterated that the State struck all
veniremembers who rated law enforcement with a score of seven in numerical
order:

         [SECOND PROSECUTOR]: We’ve stated to the Court our specific
         race neutral reasons, which we have proven. We did regardless of
         race, six or lower for law enforcement. Then we took seven or lower
         and just moved up the scale from one up until we got past. Sa[ve] for
         the police officer, like defense counsel said, [who] was African
         American . . . . [O]bviously these are race neutral reasons and we
         have proven to the Court these things.
         Taking these assertions together, the State explained that it exercised its
strikes by moving up through the panel in numerical order—beginning with
veniremember one—and striking all members who gave law enforcement a score
of seven.      If the State’s explanation were genuine, it would have struck
veniremembers eight and thirteen, both of whom had lower panel numbers and
answered seven on the law enforcement question.5 But it did not. Veniremembers
eight, thirteen, and twenty-four gave identical answers to each relevant question in
voir dire, yet the State struck only member twenty-four. The State’s misstatement
that it exercised its strikes in panel order on members who gave law enforcement a
score of seven, when in fact it did not, “presented the trial court with a flawed basis
on which to evaluate” the State’s explanation. See Moore, 265 S.W.3d at 90.

         For these reasons, we conclude that the State offered a reason for striking
veniremember twenty-four that is contradicted by the record.                  This fact also
supports an inference of purposeful discrimination. See Greer, 310 S.W.3d at 18
(“[T]he State’s reliance on an explanation that is contradicted by the record is

         5
         Veniremember eight indicated either kinship or friendship with a member of law
enforcement, but the State did not mention that fact as a reason for not striking the member. In
any event, that fact cannot explain the State’s failure to strike veniremember thirteen, who
admitted no such affinity but also gave law enforcement a score of seven.

                                              15
persuasive evidence that its stated reason for striking [an African-American
veniremember] was pretextual.”); Moore, 265 S.W.3d at 88 (“[T]he State
represented to the trial court that it had struck [a veniremember] when in fact it had
not[,] . . . bring[ing] the genuineness of the State’s proffered race-neutral reason
into question.”).

       C.     Other courts have found Batson violations on similar facts.
       Both Texas and federal courts have found purposeful discrimination in
similar cases where the record contradicted the prosecutor’s explanation and a
comparative analysis indicated the explanation was pretextual.                 In Snyder v.
Louisiana, for example, eighty-five veniremembers were questioned in voir dire.
552 U.S. at 475. Thirty-six survived challenges for cause, five of whom were
African American. Id. at 476. The prosecutor struck all five, but the United States
Supreme Court focused its comparative analysis on just one. Id. at 478.

       Responding to defense counsel’s prima facie showing, the prosecutor
offered the following race-neutral reason for the strike: the member was a student
teacher who indicated that he might be burdened by missing class, so he might
convict on a lesser charge in order to avoid the penalty phase.6 Id. The prosecutor
did not strike two non-African-American veniremembers with similarly pressing
obligations, however. Id. at 483–84. The first, a self-employed general contractor,
had two construction projects nearing completion, one with occupants soon to
move in. Id. at 483. He believed that service on the jury would delay the move.
Id. at 483–84. He also indicated that he needed to care for his children because his
wife had recently undergone major surgery. Id. at 484. The second non-African-

       6
          The State also asserted that the member looked nervous throughout voir dire. Because
the trial judge made no recorded determination of the member’s demeanor, however, the court
could not presume that the trial judge credited the prosecutor’s assertion that he was nervous.
Snyder, 552 U.S. at 479.

                                              16
American member also had an important work commitment, at which his presence
was crucial, later in the week. Id. The court concluded that these comparisons
helped to show “the implausibility of [the prosecutor’s] explanation.” Id. at 483.

          The court also noted the inconsistency between the prosecutor’s concern that
the African-American veniremember would rush the verdict and the prosecutor’s
statements recognizing that the trial would be short—it was only three days from
the beginning of voir dire to the trial’s conclusion. Id. at 482. Because the record
showed the member’s supervisor had promised to work with the member to make
up missed time, the court concluded that the prosecutor’s justification for the strike
was “suspicious.” Id. at 483.

          Considering all the circumstances, the court held that the “prosecution’s
proffer of this pretextual explanation naturally gives rise to an inference of
discriminatory intent.” Id. at 485. Thus, the trial judge clearly erred in rejecting
the Batson objection. Id. at 474.

          In Moore v. State, the First Court of Appeals likewise concluded that a
comparative analysis and an unsupported explanation demonstrated discriminatory
intent.     265 S.W.3d at 79–86.        In that case, the State struck seven African
American veniremembers, one of whom was a 45-year-old female. The State
explained that it struck her based on her age, her gender, her lack of children, and
her inclusion of question marks on several areas of her jury questionnaire, possibly
indicating confusion.      Id. at 86.    The State did not strike one non-African-
American female who was also childless, nor did it strike one non-African-
American veniremember who did not respond fully to the questionnaire. Id. at 86–
88.   Finding no meaningful difference between a failure to respond and the
inclusion of question marks, the court concluded that “this disparity [brought] the
genuineness of the State’s proffered race-neutral reason into question.” Id. at 88.

                                            17
       The State also said that it struck at least one non-African-American
veniremember with similar characteristics to the African-American member in
question. Id. at 88, 90. That statement was not supported by the record, however,
further eroding the genuineness of the State’s explanation. Id. Considering these
and other factors together, the court held that the appellant met his burden to
establish a Batson violation. Id. at 90.7

       The case under review presents similar facts. We have an explanation that
comparative analysis reveals to have been disparately applied, indicating
discriminatory intent. The veniremembers we have considered responded not
merely with similar answers, but with identical answers to the relevant voir dire
questions.    The State struck an African-American veniremember, offering an
explanation that applied equally to non-African-American veniremembers it did
not strike. The State’s explanation for striking veniremember twenty-four applies
to non-African-American veniremembers eight, thirteen, and twenty-eight who
were seated on the jury.             No identifiable characteristic other than race
distinguishes these veniremembers.

       We also have a record that shows the State’s explanation is not genuine.
The State could not have struck veniremembers who gave their local law
enforcement a score of seven in panel order because veniremember twenty-four
was struck while veniremembers eight and thirteen—who gave the same numeric
score—were not.

       For these reasons, we hold that appellant has met his burden to establish a
Batson violation. Accordingly, we sustain appellant’s first issue and hold that the

       7
         The court in Moore also conducted a disproportionate strike analysis, observing that the
State used its ten peremptory strikes to exclude six of the seven African-Americans. 265 S.W.3d
at 88. The court further noted that the State failed to meaningfully question struck
veniremembers. Id. at 89–90.

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trial court clearly erred when it denied appellant’s Batson challenge.

                                    CONCLUSION

      Having sustained appellant’s Batson issue, we reverse the judgment of the
trial court and remand the case for a new trial. We do not reach appellant’s second
issue, which challenges the award of court costs, because we have reversed the
judgment imposing those costs.




                                              /s/   J. Brett Busby
                                                    Justice




Panel consists of Chief Justice Frost and Justices Brown and Busby.
Publish —Tex. R. App. P. 47.2(b).




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