                                  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


                                DISSENTING OPINION


       The majority reverses Derrick Dwayne Grant’s burglary conviction because of a

finding that “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.” However, because I

believe Grant failed to rebut the State’s race-neutral reasons for exercising peremptory

challenges against the three African American venire members in question, I would

hold that the court did not abuse its discretion by denying Grant’s Batson challenge.

Thus, I respectfully dissent.
                                 Lack of Questioning is Not
                                    a Dispositive Factor

        My primary disagreement with the majority arises from the following paragraph

in the majority opinion:

               The State must engage in meaningful voir dire examination on a
        subject it alleges it is concerned about. See Miller-El[v. Dretke], 545 U.S.
        231, 246, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (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).

I agree that the State’s failure to engage in meaningful voir dire examination is a factor

which may be considered, but I also believe that in the vast majority of cases a Batson

challenge will not be successful if it rests solely on this factor.

        In my view, the majority misreads Miller-El and Reed.           As the Fifth Circuit

explained in Reed, the Supreme Court considered the State’s failure to engage in a

meaningful voir dire examination in the context of a comparative analysis between

prospective jurors who were struck and similarly situated jurors who were not.

               The Court’s treatment of Miller-El’s comparative analysis also reveals
        several principles to guide us. First, we do not need to compare jurors
        that exhibit all of the exact same characteristics. If the State asserts that it
        struck a black juror with a particular characteristic, and it also accepted
        nonblack jurors with that same characteristic, this is evidence that the
        asserted justification was a pretext for discrimination, even if the two
        jurors are dissimilar in other respects. Second, if the State asserts that it
        was concerned about a particular characteristic but did not engage in
        meaningful voir dire examination on that subject, then the State’s failure
        to question the juror on that topic is some evidence that the asserted
        reason was a pre-text for discrimination. Third, we must consider only
        the State’s asserted reasons for striking the black jurors and compare those
        reasons with its treatment of the nonblack jurors.

Reed, 555 F.3d at 376 (first emphasis added) (citations omitted).


Grant v. State                                                                             Page 2
        In Miller-El, the Court conducted such a comparative analysis with respect to an

African-American venire member (Fields) whom the prosecutor stated he struck

primarily because “he said that he could only give death if he thought a person could

not be rehabilitated.” Miller-El, 545 U.S. at 243, 125 S. Ct. at 2327. The Court compared

Fields’s voir dire examination with that of “a number of white panel members” who

expressed similar sentiments on rehabilitation but whom the prosecutor “accepted with

no evident reservations.” Id. at 244, 125 S. Ct. at 2327. In particular, the Court focused

on three such jurors who “were not questioned further and drew no objection.” Id. at

245, 125 S. Ct. at 2328.

        In addition, the Court expressed reservations about the credibility of the

prosecutor’s later explanation that he also struck Fields because his brother had a

previous conviction.1 Id. at 246, 125 S. Ct. at 2328 (“It would be difficult to credit the

State’s new explanation, which reeks of afterthought.”). Although the Court did note

the prosecutor’s failure to question Fields “about the influence his brother’s history

might have had,” the Court’s reference to this issue served only to “underscore” the

“unlikelihood that his position on rehabilitation had anything to do with the

peremptory strike” exercised against him.2 Id. at 245-46, 125 S. Ct. at 2328.



1
         When defense counsel suggested that the prosecutor had misrepresented Fields’s views on
rehabilitation, “he neither defended what he said nor withdrew the strike. Instead, he suddenly came up
with Fields’s brother’s prior conviction as another reason for the strike.” Miller-El v. Dretke, 545 U.S. 231,
246, 125 S. Ct. 2317, 2328, 162 L. Ed. 2d 196 (2005) (citation omitted).

2
         The Court engaged in a similar comparative analysis with respect to prospective juror Warren
and observed in a footnote that the prosecutor had failed to question Warren about his brother-in-law’s
conviction, which the State had raised in a post-conviction Batson hearing as an additional reason for the
strike. Id. at 250 n.8, 125 S. Ct. at 2330 n.8.


Grant v. State                                                                                         Page 3
        That a prosecutor’s failure to engage in a meaningful voir dire examination of a

potential juror is not, standing alone, a dispositive Batson factor is borne out by the

Supreme Court’s summation of its determination that the State violated Batson by

striking Fields.

        In sum, when we look for nonblack jurors similarly situated to Fields, we
        find strong similarities as well as some differences. But the differences
        seem far from significant, particularly when we read Fields's voir dire
        testimony in its entirety. Upon that reading, Fields should have been an
        ideal juror in the eyes of a prosecutor seeking a death sentence, and the
        prosecutors’ explanations for the strike cannot reasonably be accepted.

Id. at 247, 125 S. Ct. at 2329 (footnote omitted). The Court made no mention of the

State’s lack of questioning in this summation.

        The majority also relies on what I shall refer to as the Keeton factors, one of which

is “lack of questioning” or “a lack of meaningful questions.” See Whitsey v. State, 796

S.W.2d 707, 713-14 (Tex. Crim. App. 1989) (citing Keeton v. State, 749 S.W.2d 861, 866

(Tex. Crim. App. 1988)). However, the Court of Criminal Appeals has made clear that

the Keeton factors are not controlling.

                Appellant’s contention that the objective factors discussed in Keeton
        control the analysis is not correct. These factors certainly may be
        considered in evaluating the trial judge’s overruling of a Batson claim, but
        they are not determinative.

Vargas v. State, 838 S.W.2d 552, 554 (Tex. Crim. App. 1992) (emphasis added); accord

Bridges v. State, 909 S.W.2d 151, 155 (Tex. App.—Houston [14th Dist.] 1995, no pet.).

                                      Batson Analysis

        The Batson three-step process is well-established.




Grant v. State                                                                          Page 4
        First, a defendant must make a prima facie showing that a peremptory
        challenge has been exercised on the basis of race. Second, if that showing
        has been made, the prosecution must offer a race-neutral basis for striking
        the juror in question. Third, in light of the parties’ submissions, the trial
        court must determine whether the defendant has shown purposeful
        discrimination.

Miller-El v. Cockrell, 537 U.S. 322, 328-29, 123 S. Ct. 1029, 1035, 154 L. Ed. 2d 931 (2003)

(citations omitted); accord Snyder v. Louisiana, 128 S. Ct. 1203, 1207, 170 L. Ed. 2d 175

(2008); Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008).

        Grant informed the trial court, and it is not disputed, that the State struck the

only three African-American venire members in the “strike zone,” which were

prospective jurors Veail, Franklin, and Hartfield. On appeal, Grant complains about the

State’s peremptory challenges against Veail and Franklin.3

        The prosecutor explained that she struck Veail because Veail had stated in

response to the State’s voir dire questions that she might be familiar with the facts of the

case. She had followed the media coverage of the burglary when it happened because

her neighbor’s daughter lived in the apartment complex where it occurred.                        The

prosecutor explained that she was concerned Veail might know additional information

about the complainant which might affect her ability to be fair and impartial.

        The prosecutor explained that she struck Franklin because his juror card

indicated that his wife worked at the same Wal-Mart as the defendant’s girlfriend, and

the prosecutor was concerned that information about the case may have been

communicated because they work in the same location.

3
       The prosecutor explained that she struck Hartfield because she indicated on her juror card that
she was a teacher, and the State struck all the teachers on the venire panel.


Grant v. State                                                                                 Page 5
        Grant responded to the State’s explanations by first observing that the State had

declined the court’s opportunity to conduct additional questioning of individual venire

members in chambers at the conclusion of the voir dire examination.               Grant also

complained that the State did not question Veail in more detail about her concerns or

question Franklin at all about whether he had learned anything about the case through

his wife.

        A co-prosecutor replied by vouching for the stated grounds. He confirmed that

the employment of Franklin’s wife at the same location as Grant’s girlfriend was a

concern when they first received the juror cards.

        Grant’s Batson challenge focuses on the third step in the process—whether in

light of the parties’ submissions the defendant has shown purposeful discrimination.

See Snyder, 128 S. Ct. at 1207; Watkins, 245 S.W.3d at 447. Resolution of his complaint

should focus on two issues: (1) the burden of persuasion; and (2) the deference owed to

the finder of fact.

        The ultimate plausibility of that race-neutral explanation is to be
        considered as part of the third step of the analysis, in which the trial court
        determines whether the opponent of the strike (usually the defendant) has
        satisfied his burden of persuasion to establish by a preponderance of the
        evidence that the strike was indeed the product of the proponent’s
        purposeful discrimination. Whether the opponent satisfies his burden of
        persuasion to show that the proponent’s facially race-neutral explanation
        for his strike is pre-textual, not genuine, is a question of fact for the trial
        court to resolve in the first instance.

Watkins, 245 S.W.3d at 447 (footnotes omitted); see Purkett v. Elem, 514 U.S. 765, 768, 115

S. Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995) (per curiam) (“the ultimate burden of




Grant v. State                                                                            Page 6
persuasion regarding racial motivation rests with, and never shifts from, the opponent

of the strike”).

         “[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. And “in the absence of

exceptional circumstances, we [sh]ould defer to [the trial court].” Id. at 1208 (quoting

Hernandez v. New York, 500 U.S. 352, 366, 111 S. Ct. 1859, 1870, 114 L. Ed. 2d 395 (1991)

(plurality opinion)); accord Watkins, 245 S.W.3d at 448 (trial court’s decision should be

examined “with great deference”).

         The majority focuses on the State’s exercise of a peremptory challenge against

Franklin, so I begin with him. The Court of Criminal Appeals has rejected a Batson

claim raised against a similar peremptory challenge. In Chambers v. State, the State

struck a venire member “primarily because she worked with appellant’s sister at Wal-

Mart.”     866 S.W.2d 9, 25 (Tex. Crim. App. 1993).        “Absent evidence of disparate

treatment,” the Court was unable to conclude that the trial court’s rejection of the

defendant’s Batson challenge was erroneous. Id.

         Here, there is one additional degree of separation in the pertinent relationships

as the State struck Franklin because his wife worked with Grant’s girlfriend.

Nevertheless, this does constitute a facially valid, race-neutral basis for a strike. See id.

Grant and the majority fault the prosecutor for failing to question Franklin about

whether he had learned anything about the case through his wife’s employment.

However, the Court of Criminal Appeals has expressly rejected the notion that a




Grant v. State                                                                         Page 7
prosecutor’s lack of questioning is a strong indicator of the prosecutor’s discriminatory

intent.

          “While it is true that the lack of questioning might expose the weakness of a

State’s explanation, the State is not required to ask a specified rubric of questions.” Id.

at 24.     Thus, appellate courts have repeatedly rejected Batson claims in which the

appellant complained that the prosecutor’s failure to ask questions of a challenged

venire member indicated discriminatory intent. See, e.g., Akeen v. State, No. 05-04-01639-

CR, 2006 Tex. App. LEXIS 127, at *22 (Tex. App.—Dallas Jan. 6, 2006, no pet.) (not

designated for publication); Smith v. State, No. 07-00-00025-CR, 2003 Tex. App. LEXIS

2948, at *15-16 (Tex. App.—Amarillo Apr. 3, 2003, pet. dism’d, untimely filed); Whitaker

v. State, 977 S.W.2d 869, 876 (Tex. App.—Beaumont 1998, pet. ref’d); Tate v. State, 939

S.W.2d 738, 745 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d).

          It was Grant’s burden to prove the prosecutor struck Franklin for a purposefully

discriminatory reason rather than a race-neutral reason. See Purkett, 514 U.S. at 768, 115

S. Ct. at 1771; Watkins, 245 S.W.3d at 447. But Grant did not call any witnesses, cross-

examine either prosecutor, present a comparative analysis with similarly situated white

jurors, or otherwise contest the stated factual basis for the prosecutor’s decision to strike

Franklin. See Vargas, 838 S.W.2d at 556; Akeen, 2006 Tex. App. LEXIS 127, at *23.

Therefore, because there are no “exceptional circumstances” presented under this

record, I cannot say that the trial court’s ruling with regard to Franklin is clearly

erroneous. See Snyder, 128 S. Ct. at 1208; accord Watkins, 245 S.W.3d at 448.




Grant v. State                                                                         Page 8
        With regard to the State’s exercise of a peremptory challenge against Veail, Veail

herself volunteered that she was familiar with the case because she had followed the

media coverage of the burglary when it happened. She explained that she had done so

because her neighbor’s daughter lived in the apartment complex where it occurred. In

response to Grant’s Batson challenge, the prosecutor stated that she was concerned Veail

might be privy to additional information about the complainant which might affect her

ability to be fair and impartial. While the latter concern is somewhat speculative, the

fact that Veail was admittedly familiar with the case was a sufficient race-neutral basis,

standing alone, to justify the State’s exercise of a peremptory challenge. See C.E.J. v.

State, 788 S.W.2d 849, 856 (Tex. App.—Dallas 1990, writ denied) (State proffered race-

neutral basis for strike of venire member who had read about case in newspapers, even

though venire member stated that her previous knowledge would not affect her

decision); see also McGee v. State, 909 S.W.2d 516, 520-21 (Tex. App.—Tyler 1995, pet.

ref’d) (State proffered race-neutral basis for strike of venire member who lived near a

family with same last name as defendants recently prosecuted in a high profile case);

Chairs v. State, 878 S.W.2d 250, 253-54 (Tex. App.—Corpus Christi 1994, no pet.) (State

proffered race-neutral basis for strike of venire member who knew appellant and his

mother and who had learned about the case from the newspapers and “gossip” from

her own children).

        Grant complains that the State failed to inquire further about Veail’s knowledge

of the facts of the case or her familiarity with the complainant, but Grant failed to call

any witnesses, cross-examine either prosecutor, present a comparative analysis with


Grant v. State                                                                      Page 9
similarly situated white jurors, or otherwise contest the stated factual basis for the

prosecutor’s decision to strike Veail. See Vargas, 838 S.W.2d at 556; Akeen, 2006 Tex.

App. LEXIS 127, at *23. Accordingly, I would hold that Grant failed to meet his burden

to prove the prosecutor struck Veail for a purposefully discriminatory reason rather

than a race-neutral reason. See Purkett, 514 U.S. at 768, 115 S. Ct. at 1771; Watkins, 245

S.W.3d at 447. Therefore, because there are no “exceptional circumstances” presented

under this record, I cannot say that the trial court’s ruling with regard to Veail is clearly

erroneous. See Snyder, 128 S. Ct. at 1208; accord Watkins, 245 S.W.3d at 448.

        Finally, Grant argues that the prosecutor’s stated grounds for striking Franklin

and Veail are based on speculation and conjecture and are similar to the grounds

recently rejected by the Supreme Court in Snyder. I disagree.

        In Snyder, the voir dire record provided a much clearer basis for sustaining the

defendant’s Batson challenge. The prosecutor exercised a peremptory challenge against

prospective juror Brooks because he appeared nervous and because the prosecutor was

concerned that he might be inclined to return a hasty guilty verdict on a lesser-included

offense to avoid a punishment trial because of his student-teaching responsibilities. See

Snyder, 128 S. Ct. at 1208.

        Focusing primarily on the second explanation, the Supreme Court noted that the

trial court and attorneys questioned Brooks about his schedule and then the court at

Brooks’s suggestion contacted his dean. Id. at 1209-10. The dean informed the court

that Brooks’s jury service would not be a problem, and, after Brooks was informed of

this, he expressed no further concern about serving. Id. at 1210. The prosecution did


Grant v. State                                                                        Page 10
not question him further about the issue. Id. But in addition to this, the record reflected

that the prosecutor anticipated a short trial during voir dire, which undermined the

prosecutor’s stated concern, and the prosecutor declined to exercise peremptory

challenges against several white venire members with similar conflicting obligations.

Id. at 1210-12. Under this record, the Court concluded that a Batson violation was

shown. Id. at 1212.

        Speculation is a two-way street. The prosecutor in this case necessarily engaged

in some speculation in exercising her peremptory challenges, but she offered facially

valid, race-neutral reasons for exercising those challenges.           A defendant cannot

establish    the   requisite    discriminatory   intent   by   speculating   about   possibly

discriminatory motivation on the prosecutor’s part. Rather, the defendant must present

a record which gives the trial court a factual basis on which to conclude the prosecutor

acted with a discriminatory intent. See Vargas, 838 S.W.2d at 556; Akeen, 2006 Tex. App.

LEXIS 127, at *23.

        Grant does not challenge on appeal the prosecutor’s decision to exercise a

peremptory challenge against Hartfield. From the record, I cannot say that the trial

court’s ruling with regard to Franklin or Veail is clearly erroneous. Thus, I would

overrule Grant’s first point.




Grant v. State                                                                        Page 11
                                      Punishment Witnesses

        Grant contends in his second point that the court abused its discretion by

permitting the State to ask his punishment witnesses on cross-examination whether a

person who has shot another five times should receive community supervision.4

        After Grant himself testified in support of his application for community

supervision, the State asked him without objection5 how many times a person should be

able to shoot someone before he goes to the penitentiary (i.e., should no longer be

considered eligible for community supervision). Grant replied, “I think none.”

        Next, Grant’s former employer testified that Grant is “a good kid” and was a

good employee. On cross-examination, he testified that, if it were up to him, he would

hire Grant if Grant received community supervision. The court then sustained Grant’s

objection to the State’s question of whether the witness’s opinion would change if Grant

had shot a loved one. Then, the court sustained Grant’s objection to the State’s question

of what kind of punishment a defendant should receive if he has shot someone at least

five times. The court also instructed the jury to disregard this question, but denied

Grant’s motion for mistrial.

        After this the State cross-examined an acquaintance of Grant’s who opined that

incarcerating Grant “would be a loss of tax dollars.” The State first asked this witness if

his opinion would change if Grant had shot the witness’s step-daughter five times. The

4
        According to the testimony, Grant shot the complainant five times.

5
       The court had just sustained Grant’s objection to a similar question in which the State asked
Grant how many times he himself should be able to shoot someone “before this jury does the right thing
and sends you to the penitentiary.” Grant’s objection was that the question impermissibly invaded the
province of the jury.


Grant v. State                                                                                Page 12
court overruled Grant’s objection that this question planted prejudice, bias and

sympathy in the minds of the witness and the jury, and the witness responded that his

opinion would not change. Over a similar “prejudice” objection, the court permitted

the State to ask the witness whether his opinion would change if Grant had abused the

witness’s step-daughter. This time, the witness said his opinion would be different.

         The next day, the State cross-examined Grant’s father without objection

regarding whether a defendant who has shot his victim five times should go to prison.

Making it clear that he understood how his answer may impact Grant’s punishment,6

the father testified that such a defendant should not go to prison.

         The State cross-examined both Grant and his father without objection on the

issue about which Grant complains on appeal. Grant’s objection to the State’s cross-

examination of his acquaintance stated a different ground than that presented on

appeal. And the court sustained Grant’s objection to the State’s cross-examination of

his former employer. This witness never answered the complained-of question, and

Grant does not complain about the court’s denial of his motion for mistrial.

Accordingly, I would hold that this issue has not been preserved for appellate review.

See TEX. R. APP. P. 33.1(a)(1); Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008).

                                              Conclusion

         In my opinion, both of Grant’s appellate points are without merit. Thus, I would

affirm the judgment. Because the majority chooses otherwise, I respectfully dissent.



6
         After answering the question “no,” the father added, “I’m not going to tell you to send my son to
jail.”


Grant v. State                                                                                    Page 13
                                                      FELIPE REYNA
                                                      Justice

Dissenting opinion delivered and filed May 20, 2009
Do not publish




Grant v. State                                                       Page 14
