                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-13-00040-CR

RUSTY LEE WILLIAMS                                                  APPELLANT

                                          V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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                         MEMORANDUM OPINION1
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                                   I. Introduction

      A jury convicted Appellant Rusty Lee Williams of having committed

aggravated assault with a deadly weapon during an incident of domestic

violence, and the trial court assessed his punishment at eight years’ confinement.

In a single issue, Williams complains that the trial court erred by overruling his

objection to the State’s request for a jury shuffle. We affirm.



      1
       See Tex. R. App. P. 47.4.
                                 II. Jury Shuffle

      The record reflects that there were forty-eight veniremembers. After the

trial judge assigned a number to each veniremember and seated the panel, the

prosecutor requested a jury shuffle, stating that he had “looked at the array and

just made a gut discussion [sic] that [he was] gonna exercise [his] right there.”

Williams objected to the request, stating that the veniremembers who were

Numbers 11, 20, and 22 were all African-American and requesting a race-neutral

reason for the shuffle. The prosecutor replied,

      I would just state it’s a gut. I looked at the panel as they were
      seated and made that decision, but it has nothing to do with race.
      The Court is aware, I’ve tried many cases where I’ve never
      requested shuffles whenever an African-American is in the front
      array. So it has nothing to do with that.

The trial court overruled Williams’s objection and granted the shuffle.

      After the shuffle, the veniremember who had been Number 11 became

Number 22, the one who had been Number 20 became Number 46, and the one

who had been Number 22 became Number 45. After a conversation between

the trial court and counsel outside the presence of the other veniremembers, the

trial court struck the new Number 22 for cause. The jury was selected from the

first thirty-four veniremembers; the trial court excused nine in that group for

cause and each side exercised ten peremptory challenges.              There is no

indication from the record that the State exercised its peremptory challenges in a

discriminatory manner when it struck four women and six men.



                                         2
      Relying on Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317 (2005), and

Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070

(2000), Williams argues that the trial court erred by overruling his objection to the

jury shuffle because the prosecutor did not offer a race-neutral explanation under

Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), for displacing three

African-American veniremembers. The State responds that Batson has not been

extended to jury shuffle requests and that there is no legal requirement that a

reason for a jury shuffle be given.2

      The State is correct. See Ladd, 3 S.W.3d at 563 n.9 (stating in dicta that

the court does not endorse the view that Batson extends to jury shuffles);

Wamsley v. State, No. 02-06-00089-CR, 2008 WL 706610, at *6–7 (Tex. App.—

Fort Worth Mar. 13, 2008, pet. ref’d) (mem. op., not designated for publication);

see also Tex. Code Crim. Proc. Ann. art. 35.11 (West 2006) (stating that the

defendant or the State may demand a jury shuffle); Watkins v. State, 245 S.W.3d

444, 448–49 (Tex. Crim. App.) (explaining that under Miller-El, the State’s using

a jury shuffle in a manner supporting an inference of racial discrimination is to be

      2
       Batson itself first requires that the opponent of a peremptory strike
establish a prima facie case of racial discrimination; that a race-neutral
explanation then be proferred for the use of the strike; and then that the trial court
determine whether the strike’s opponent has carried his burden of persuasion to
show by a preponderance of the evidence that the strike was a product of
purposeful discrimination. Blackman v. State, 414 S.W.3d 757, 764 (Tex. Crim.
App. 2013), Young v. State, 283 S.W.3d 854, 866 (Tex. Crim. App.), cert. denied,
558 U.S. 1093 (2009).



                                          3
considered in Batson’s third stage), cert. denied, 555 U.S. 846 (2008); Ford v.

State, 73 S.W.3d 923, 926 (Tex. Crim. App. 2002) (“[W]hile the jury shuffle may

sometimes be used by the parties as a strategic tool, the purpose of the statute is

merely to ensure that the members of the venire are listed in random order.”);

Como v. State, 557 S.W.2d 93, 94 (Tex. Crim. App. 1977) (stating that under

article 35.11, a defendant or the State, upon demand, is entitled to have the jury

panel redrawn in accordance with its provisions and that “[c]ause or reason need

not be assigned”). But see Ramey v. State, No. AP-75678, 2009 WL 335276, at

*2 (Tex. Crim. App. Feb. 11, 2009) (not designated for publication) (declining to

hold that Miller-El overruled Ladd but considering sufficiency of State’s race-

neutral explanation for requesting a jury shuffle), cert. denied, 558 U.S. 836

(2009).3

      We previously addressed the same argument and similar circumstances in

Wamsley, stating,

              In the case before us, the State requested a shuffle of the
      panel after the venire was assembled. Appellant objected to the
      shuffle on the basis of Batson v. Kentucky, arguing that the motive
      for the shuffle was not race-neutral due to the disproportionate
      number of minorities in the first seventy-five panel members. The
      trial court overruled the objection.

            Despite Appellant’s attempt to persuade this court that Batson
      is applicable to jury shuffles, we have not found, nor has Appellant
      shown us, any case law that directly applies Batson to a jury shuffle.

      3
       Unpublished opinions are not precedential. Coble v. State, 330 S.W.3d
253, 276 n.56 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 3030 (2011); see
also Tex. R. App. P. 77.3.

                                        4
      In contrast, the court of criminal appeals averred in Ladd, alb[ei]t in
      dicta, that it does not endorse the view that Batson applies to jury
      shuffles. Appellant attempts to support his position by directing us to
      Miller-El v. Dretke, in which the United States Supreme Court held
      that the prosecutor’s jury shuffle request was a clue indicating his
      intent to use his peremptory challenges in a discriminatory fashion.
      Although this case demonstrates that the prosecution’s use of a jury
      shuffle may be examined in determining whether broader patterns of
      discriminatory practice are used during jury selection, the court did
      not definitively hold that a Batson challenge extends beyond
      peremptory challenges and into the realm of jury shuffles.
      Therefore, we will not make such a determination either. Because
      Appellant asserts a position that is not supported by precedent, we
      overrule his seventh point.

2008 WL 706610, at *7 (citations omitted); see also Wearren v. State, 877

S.W.2d 545, 546 (Tex. App.—Beaumont 1994, no pet.) (declining to extend

Batson to jury shuffles but noting that even if Batson could be so applied,

“appellant failed to establish a prima facie case, there being no indication in the

record of its effect on minority venirepersons”); Urbano v. State, 808 S.W.2d 519,

520 (Tex. App.—Houston [14th Dist.] 1991, no pet.) (refusing to extend Batson to

jury shuffles).

      Additionally, based on the record before us, although Williams identified

three potential jurors as African-American during voir dire, he did not indicate the

composition of the rest of the panel.4 Cf. Hassan v. State, 369 S.W.3d 872, 878


      4
        From the record before us, despite the ambiguity of some first names, it
appears that there were fifteen women and thirty-three men on the panel. The
original panel was composed of twelve women and fifteen men in the first twenty-
seven potential jurors who, after challenges for cause and peremptory strikes,
would have composed the jury. After the shuffle, there were fourteen women
and twenty men in the first group of thirty-four potential jurors from which the
actual jury was selected after challenges for cause and peremptory strikes. Two
                                         5
(Tex. Crim. App. 2012) (comparing the racial composition of the jury and the

panel with regard to Batson challenge).

      Further, Williams did not raise any further Batson objections at the

conclusion of voir dire. Cf. id. at 875–76 (noting that a prima facie case “can be

supported by a disparity with respect to the proportion of jurors of a particular

race that are struck versus the proportion of that race in the venire” (emphasis

added)).   And the prosecutor’s statement about his gut as the basis for

requesting the shuffle does not appear, on its face, to be an impermissible

reason. See Blackman, 414 S.W.3d at 761 (noting that with regard to Batson

hearing, prosecutor stated that he did not feel like he “had the same vibe” as one

of the African-American jurors, in addition to other reasons, and that he had also

felt that vibe from some of the other potential jurors, some of whom were white,

on whom he had exercised peremptory strikes);5 Nieto v. State, 365 S.W.3d 673,

680 (Tex. Crim. App. 2012) (stating that a veniremember’s demeanor, including



women and ten men made up the jury for this domestic violence-based case.
Peremptory strikes used to exclude potential jurors based on gender are also
impermissible, see Guzman v. State, 85 S.W.3d 242, 244–45 (Tex. Crim. App.
2002), but Williams did not raise a Batson challenge to gender disparity at trial
and does not raise one on appeal.
      5
       In Blackman, the court of criminal appeals reiterated that in making a
Batson challenge, the defendant, as the opponent of the strikes, had the ultimate
burden of persuasion and held that the trial court’s finding that the prosecutor
had made a genuine racially neutral, demeanor-based explanation was not
clearly erroneous when the defendant never challenged the sincerity of the
prosecutor’s assessment of the veniremember’s demeanor. 414 S.W.3d at 769–
70.

                                          6
“poor” facial expressions and body language, is a valid reason to exercise a

peremptory strike); Davis v. Fisk Elec. Co., 268 S.W.3d 508, 517–18 (Tex. 2008)

(stating that peremptory strikes “may legitimately be based on nonverbal

conduct” but that such reasons should be identified because, without additional

record support, they “would strip Batson of meaning”); see also Ramey, 2009 WL

335276, at *2 (stating that prosecutor’s explanation—that he had requested

shuffle because the overwhelming majority of the veniremembers he had been

told were good for the State were towards the back of the panel—was sufficiently

race-neutral). On the record before us, even if Batson were to apply here, we

cannot say that the trial court abused its discretion by overruling Williams’s

objection. Cf. Hassan, 369 S.W.3d at 878. We overrule Williams’s sole issue.

                                 III. Conclusion

      Having overruled Williams’s sole issue, we affirm the trial court’s judgment.



                                                   PER CURIAM

PANEL: MCCOY, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 13, 2014




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