                                     IN THE
                             TENTH COURT OF APPEALS

                                     No. 10-07-00317-CR

DERRICK DWAYNE GRANT,
                                                                     Appellant
    v.

THE STATE OF TEXAS,
                                                                     Appellee


                               From the 54th District Court
                                McLennan County, Texas
                               Trial Court No. 2007-1417-C2


                              MEMORANDUM OPINION


         Derrick Dwayne Grant was charged with burglary of a habitation with a deadly

weapon. TEX. PENAL CODE ANN. 30.02 (Vernon 2003). He pled guilty before the jury

and proceeded to have the jury determine his punishment.                        The jury assessed

punishment at 55 years in prison. Grant appeals. Because there was clear error in the

trial court’s acceptance of the State’s proposed race-neutral reasons for striking a black

member of the jury panel, we reverse the trial court’s judgment.1



1Because of this disposition, we need not address Grant’s other issue on appeal regarding alleged trial
court error in allowing the State to ask Grant’s witness whether Grant should be placed on probation.
                                    BATSON CHALLENGE

        Prior to the empanelling of the jury, Grant made a Batson challenge. See Batson v.

Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Grant informed the trial

court that three black members of the jury panel were in the “strike zone,” that the State

struck all three members, and that Grant was a black male. The State did not dispute

this presentation by Grant and when asked for a response, offered race-neutral reasons

for its strikes. The trial court accepted those reasons. On appeal, Grant contends that

the trial court erred in holding the State’s peremptory challenges were not racially

motivated.

Three-step Process

        Batson provides a three-step process for a trial court to use in adjudicating a

claim that a peremptory challenge was based on race. Snyder v. Louisiana, ___ U.S. ___,

128 S.Ct. 1203, 1207, 170 L.Ed.2d 175 (2008). "'First, a defendant must make a prima

facie showing that a peremptory challenge has been exercised on the basis of race[;

s]econd, if that showing has been made, the prosecution must offer a race-neutral basis

for striking the juror in question[; and t]hird, in light of the parties' submissions, the

trial   court    must   determine   whether   the   defendant   has   shown   purposeful

discrimination.'" Id. (quoting Miller-El v. Dretke, 545 U.S. 231, 277, 125 S.Ct. 2317, 162

L.Ed.2d 196 (2006) (Thomas, J., dissenting)). The exclusion of even one member of

appellant's race from the jury panel for racial reasons invalidates the entire jury

selection process. See Snyder, 128 S.Ct. at 1208.



Grant v. State                                                                      Page 2
        If the opponent of a challenged strike raises a question of purposeful

discrimination and the trial court proceeds immediately to the State’s race-neutral

reasons for the strike, a reviewing court assumes that the opponent has satisfied the first

step of the Batson process. Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008)

(citing Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)).

The second step of the process does not demand an explanation that is persuasive, or

even plausible. Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).

The issue is the facial validity of the prosecutor’s explanation.          Id.   Unless a

discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will

be deemed race neutral. Id. (quoting Hernandez, 500 U.S. at 360).

        It is not until the third step that the persuasiveness or the justification of the

strike becomes relevant. Id. “At that stage, implausible or fantastic justifications may

(and probably will) be found to be pretexts for purposeful discrimination.” Id. The

prosecutor’s proffered reasons for striking an individual must be evaluated in light of

the circumstances of the case. See Snyder v. Louisiana, ___ U.S. ___, 128 S.Ct. 1203, 1210,

170 L.Ed.2d 175 (2008).

        On appeal, a trial court's ruling on the issue of discriminatory intent must be

sustained unless it is clearly erroneous. Snyder, 128 S.Ct. at 1207; Watkins v. State, 245

S.W.3d 444, 448 (Tex. Crim. App. 2008). In reviewing the record for clear error, the

reviewing court should consider the entire record of voir dire; it need not limit itself to

arguments or considerations that the parties specifically called to the trial court's



Grant v. State                                                                       Page 3
attention so long as those arguments or considerations are manifestly grounded in the

appellate record. Watkins v. State, 245 S.W.3d at 448; accord Snyder, 128 S.Ct. at 1208.

A Step 3 Review

        In the early years of implementing the dictates of Batson by this State’s courts, the

Court of Criminal Appeals discussed and used a nonexclusive list of factors which

would weigh against the legitimacy of a race-neutral explanation. Whitsey v. State, 796

S.W.2d 707, 713 (Tex. Crim. App. 1989). Those factors were:

        1. The reason given for the peremptory challenge is not related to the
        facts of the case;

        2. There was a lack of questioning to the challenged juror or a lack of
        meaningful questions;

        3. Disparate treatment - persons with the same or similar characteristics
        as the challenged juror were not struck;

         4. Disparate examination of members of the venire, i.e., questioning a
        challenged juror so as to evoke a certain response without asking the
        same question of other panel members; and

         5. An explanation based on a group bias where the group trait is not
        shown to apply to the challenged juror specifically.

Id. at 713-714. The presence of any one of those factors tended to show the Court that

the State's reasons for the strike were not actually supported by the record or were an

impermissible pretext. Id. While the courts in this State have not embraced the use of

those factors, the concept provides a useful guide for us that fits within the framework

of the current state of Batson reviews as established by the United States Supreme Court

and the Fifth Circuit. It is in light of the recent case law by these Courts and these

factors that we review this appeal.

Grant v. State                                                                         Page 4
Juror 20

        At trial and on appeal, Grant complains about the State’s use of a peremptory

strike on Juror number 20, Jerrell Franklin. After Grant raised his Batson challenge and

the trial court asked for a response, the State gave the following reason for striking

Franklin.

        “…[H]is actually comes from his juror card. He noted on his juror card
        that his wife works at the Wal-Mart return center, which is from the
        information we have where the Defendant’s – I don’t know if she’s a new
        girlfriend or somebody who’s just been a part of his life for some period
        of time – has been—our information is that she also works there. It’s a
        girl who is, I guess, seeing the Defendant off and on throughout the time
        that the victim is seeing him also works with that juror’s wife. And we
        had some concerns about that because, obviously, people who work
        together talk and people who go home to their spouses talk to them about
        why they’re in court.” (RR II 159).

Grant responded,

        “In terms of Juror Number 20 and the relationship of the – any girlfriend
        Mr. Grant may have to anybody who works at Wal-Mart that would be
        the subject of an inquiry in chambers to see if that actually existed. My
        point here, Judge, is I don’t believe you can rely on surmise and
        speculation in order to prove – to disprove a prima facie case of systemic
        racial discrimination of blacks from this jury just based on the speculation
        that they may or may not know anybody. I believe it has to be the subject
        of specific inquiry into those arenas and areas in order for it to get over the
        prima facie case.” (RR II 161).

        The trial court accepted the State’s reason for the strike as race-neutral. Grant

challenges the legitimacy of that reason. Specifically, Grant complains that the State did

not question Franklin regarding the reason for its strike.

        The State must engage in meaningful voir dire examination on a subject it alleges

it is concerned about. See Miller-El, 545 U.S. 231, 246, 125 S.Ct. 2317, 162 L.Ed.2d 196


Grant v. State                                                                            Page 5
(2006). If the State does not engage in meaningful voir dire examination, that failure is

some evidence that the asserted reason for the strike was a pretext for discrimination.

Reed v. Quarterman, 555 F.3d 364, 376 (5th Cir. 2009).

        In reviewing the entire voir dire, we note that Franklin was asked a total of three

questions. First, he was specifically asked how he decided if he believed someone. He

answered, “What they’re saying would have to make sense to me.” Second, as the sixth

person to answer a question about whether anybody could think of a reason why a

victim might be scared to testify against her abuser, Franklin answered, “Pretty much

the same,” which was in reference to a previous response by another member of the

panel. And third, as a group, the panel was asked which theory of punishment would

be the most important. As the 19th person to respond, Franklin, said, “Number three”

which he had been told was rehabilitation.                    None of Franklin’s answers were

investigated further by the State. And absolutely no exchange between Franklin and

the State took place regarding the reason for striking him, that being his wife worked at

the same place as Grant’s girlfriend.2

        In light of these circumstances, there was no meaningful examination of Franklin

regarding the reason the State used to strike him.                  The State's reason for striking

Franklin was not supported by the record and was, thus, a pretext for discrimination.




2The juror information cards are not a part of this record. Also, there is no testimony that would indicate
any of the other jurors had spouses that worked with Grant’s girlfriend.


Grant v. State                                                                                      Page 6
Accordingly, the trial court’s acceptance of the State’s reason for striking Franklin was

clearly erroneous. Grant’s first issue is sustained. 3

                                              CONCLUSION

        Having sustained Grant’s first issue, the trial court’s judgment is reversed. This

case is remanded for further proceedings consistent with this opinion.



                                                  TOM GRAY
                                                  Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Justice Reyna dissenting)
Reversed and remanded
Opinion delivered and filed May 20, 2009
Do not publish
[CRPM]




3 Because the exclusion of even one member of Grant’s race from the jury panel for racial reasons
invalidates the entire jury selection process, we need not discuss whether the trial court erred in accepting
the State’s reasons for striking the other two black panel members.

Grant v. State                                                                                        Page 7
