      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00098-CR



                            Margarita Quintella Ramirez, Appellant

                                                  v.

                                   The State of Texas, Appellee


  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 340TH JUDICIAL DISTRICT
       NO. C-08-1153-SB, HONORABLE BEN WOODWARD, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found Margarita Quintella Ramirez guilty of murder and assessed her

punishment at thirty years in prison. See Tex. Penal Code Ann. § 19.02(b)(1) (West 2003). By her

sole issue on appeal, Ramirez contends that the trial court abused its discretion by denying

her objection to the seating of the jury. Ramirez argues that the State failed to provide race-neutral

reasons for striking Hispanic members of the panel of prospective jurors. See generally Batson

v. Kentucky, 476 U.S. 79 (1986). We affirm the judgment.

               Ramirez and the decedent, Robert Guevara, began dating when she was fifteen years

old and he was seventeen. Shortly thereafter, she moved in with him. A year into the relationship,

Guevara began physically abusing Ramirez and, on May 18, 2007, inflicted injuries that resulted in

her hospitalization. She moved out, but the relationship did not end. They moved back in together,
then separated. Although at the time of Guevara’s death, both were dating other people, Guevara

had a picture of Ramirez in his car and told Ramirez that she was his until death parted them.

               Their relationship was in a fairly volatile phase at the time of Guevara’s death.

Ramirez had done some favors for Guevara—purchased a car in her name (using his money) because

he did not have a driver’s license and tried to find what hospital his sister had been taken to

following a car accident—and he had thanked her and given her some presents—a compact disc

player, speakers, and other accessories for her car. Guevara became upset upon learning that

Ramirez was dating another man, however, and demanded that she return the presents and provide

him with title to the car. In the days immediately preceding Guevara’s death in October 2008, he

and Ramirez engaged in a series of text messages and telephone calls regarding these issues and the

status of their relationship in which he threatened her several times. Many of theses communications

occurred while Ramirez was accompanied by a relatively new friend, Valerie Sepeda.

               It is undisputed that a gang of youths led by Sepeda’s boyfriend, Mike Mendoza,

set out to confront Guevara. The chief issues at trial were the intended nature of the confrontation,

Ramirez’s role in prompting it, and her knowledge regarding the others’ intentions. Ramirez

testified that she simply wanted to give Guevara the items he demanded in hopes that he would stop

threatening her. She testified that Sepeda told Mendoza and his friends about Guevara’s threats

and that she knew that Mendoza’s group was getting a little “worked up” about the threats. She

knew that Mendoza communicated with Guevara and that the communications involved gang issues

as well as her safety and honor. She testified that she accepted the offer of Mendoza’s group’s

company because she feared for her safety based on Guevara’s conduct. She admitted that she told



                                                 2
the group they would find Guevara at the Texas Roadhouse and admitted that, once they arrived at

the site, she confirmed for the group Guevara’s identity. Sepeda testified, however, that Ramirez

asked her to get Mendoza to beat up Guevara and then, as Guevara’s threats escalated, that Ramirez

vowed to kill Guevara and asked her to get Mendoza to kill Guevara. Ramirez testified that the rifle

was carried to the scene in another car, but Sepeda testified that the rifle was in Ramirez’s car.

Accounts of Ramirez’s reaction to the shooting varied. Ramirez testified that she was unaware that

Guevara had been hit. Another witness testified that she appeared shocked after the shooting.

Sepeda testified, however, that Ramirez taunted Guevara after the shooting. Guevara’s girlfriend

testified that she heard a voice that sounded like Ramirez make the same taunt.

               It is undisputed that Ramirez left the shooting scene with the group, went to a motel

with some of the group members, fled when police came, but eventually spoke with police. It is also

undisputed that her story evolved during the course of police interviews. Other witnesses testified

at trial in ways that added details not present in their statements to police, such as an assertion that

Ramirez was seen smirking after the shooting. Ramirez’s attorney indicated that these details were

added to show cooperation with the State in hopes of getting reduced sentences for co-defendants.

               In her appellate brief, Ramirez relies exclusively on her contention that the trial court

erred by allowing the State to use its peremptory strikes improperly to exclude Hispanic jury

panelists. We will first set out the standard for reviewing the trial court’s ruling on a Batson

challenge to provide a framework for assessing the voir dire proceedings, then review the voir dire

proceedings and argument relevant to the contested strikes.




                                                   3
The standards for assertion and review of Batson challenges

               The Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution prohibits race-based jury selection. Batson, 476 U.S. at 89. It also prohibits exclusion

of Hispanics based on their ethnicity. Hernandez v. New York, 500 U.S. 352, 355 (1991) (plurality

op.). A Batson challenge proceeds as follows: (1) the movant makes a prima facie case that a

jury panelist was excluded on the basis of race; (2) the nonmovant provides race-neutral reasons

for exercising the peremptory challenge; and (3) the movant rebuts those reasons. Jasper v. State,

61 S.W.3d 413, 421 (Tex. Crim. App. 2001). The movant has the burden of persuasion. Id. The

movant must show by a preponderance of the evidence that the nonmovant purposefully

discriminated against a member of a constitutionally protected class in exercising his peremptory

challenges. Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008). The trial court must

decide whether the nonmovant’s facially neutral reasons given for the peremptory challenge were

contrived to conceal an improper discriminatory intent. Id.

               The Court of Criminal Appeals compiled a non-exclusive list of factors that weigh

against the legitimacy of a race-neutral explanation:


       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
        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.


Whitsey v. State, 796 S.W.2d 707, 713-14. (Tex. Crim. App. 1989). 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. Id. at 713.

                A court of appeals can reverse a judgment for a Batson violation only when the

trial court’s ruling on the Batson challenge is clearly erroneous. Gibson v. State, 144 S.W.3d 530,

534 (Tex. Crim. App. 2004).1 This highly deferential standard is used because the trial court is in the

best position to determine whether a prosecutor’s facially race-neutral explanation for a peremptory

strike is genuinely race-neutral. Id. To conclude that the trial court’s decision was clearly erroneous,

an appellate court 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. Rhoades v. State,

934 S.W.2d 113, 123-24 (Tex. Crim. App. 1996). Because the trial court conducted a Batson

hearing, we must presume that Ramirez made a satisfactory prima facie case of purposeful

discrimination. See Watkins, 245 S.W.3d at 447; see also Hernandez, 500 U.S. at 359. The

Supreme Court has held that “[t]he second step of the process does not demand an explanation that


       1
         The Texas Court of Criminal Appeals has adopted the “clearly erroneous” standard of
review for Batson challenges in criminal cases, while the Texas Supreme Court has adopted
an “abuse of discretion” standard for Batson challenges in civil cases. Compare Gibson v. State,
144 S.W.3d 530, 534 (Tex. Crim. App. 2004) with Davis v. Fisk Elec. Co., 268 S.W.3d 508, 515
(Tex. 2008).

                                                   5
is persuasive, or even plausible.” Purkett v. Elem, 514 U.S. 765, 768 (1995). Instead, “the issue is

the facial validity of the prosecutor’s explanation. 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). The race-neutral explanation does not have to make sense—it just cannot

be racially discriminatory.     Id. at 769 (cited by Contreras v. State, 56 S.W.3d 274, 279

(Tex. App.—Houston [14th Dist.] 2001, pet. ref’d)). The appellate court must affirm the trial court’s

decision on the Batson challenge unless the ruling is clearly erroneous. Craig v. State, 82 S.W.3d

451, 454-55 (Tex. App.—Austin 2002, pet. ref’d).


Ramirez’s contentions

               Ramirez, who is Hispanic, contends that the State purposefully exercised its

peremptory strikes to discriminate against Hispanic panelists. She notes that seven Hispanics were

among the first 37 panelists after other panelists were struck for cause. Of its eleven peremptory

strikes,2 the State used peremptory strikes against five of the seven panelists with Hispanic surnames

in that range—Juana Marquez, Monica Rodriguez, Raymond Torres, Lendall Hernandez, and

Jennifer Lopez. Ramirez did not use any of her eleven peremptory strikes on panelists with

Hispanic surnames. The jury included one juror and one alternate with Hispanic surnames. Ramirez

requested explanations for the State’s strikes on the five Hispanic panelists, and argues on appeal

that the prosecutor’s “stated reasons for striking at least three of the five Hispanics are contrary to




       2
         Each side initially used ten peremptory strikes, then received and used an additional strike
on one of the four potential alternates.

                                                  6
the objective circumstances and human reason.” The three strikes contested on appeal were used

on Marquez, Rodriguez, and Torres.3


The State’s explanations for the strikes and Ramirez’s rebuttal

               The State said it struck Juana Marquez because “from the very outset of this case,

[she] wanted to get out.” At the beginning of voir dire, when the trial court asked to hear from

panelists who felt they might not be qualified or had an exemption or excuse that would cause them

not to serve, Marquez approached the bench and the following exchange occurred between “Juror”

Marquez and the court:


       JUROR: I don’t understand very well English. I barely make citizenship.

       THE COURT: Okay. And were you born here or—

       JUROR: I born in Mexico.

       THE COURT: So you’re a naturalized citizen?

       JUROR: Pardon me?

       THE COURT: You’re naturalized, you took an oath?

       JUROR: Yes, sir.

       THE COURT: And do you read the daily newspaper or something like that?


       3
           The State also explained why it struck the two panelists whose strikes Ramirez does not
directly challenge on appeal. The State said it struck Lendall Hernandez because he was 25 years
old, is a drug and alcohol counselor, is single, was somewhat inattentive, and seemed unwell. The
State said it struck Hernandez because his youth and occupation might make him more forgiving
of youthful mistakes. The State explained that it struck Jennifer Lopez because Lopez “knew the
defendant personally, had gone to school with her for at least three years, vacillated extensively
during our questioning before the bench. There’s no way I’m going to take her on a jury.”

                                                7
       JUROR: Yes, sir, I read.

       THE COURT: I’m going to have you stay as a juror, and make sure everybody
       understands, and they can talk to you more about that.

       JUROR: Okay. I need to stay?

       THE COURT: Yes, please.

       JUROR: Okay.


When explaining why Marquez was struck, the prosecutor stated:


       She came up during the initial voir dire and said she did not speak English well, was
       uncomfortable with this. Seems like she made some statements of the same nature
       during general voir dire. And, if I’m not mistaken, may have responded once during
       Mr. Rios’s questioning.

       I don’t want her. We’ve got so much dependent in this case on listening to
       testimony, on about four hours worth of taped interviews. For her understanding of
       the English language, I think, is very important. And, again, at the bench, she started
       telling us this before we ever started voir dire.

       Someone who doesn’t want to be on the jury and wants to be out, was of her
       discomfort, I’m not going to take her if I can strike her at some other point.


The State explained that it struck Monica Rodriguez because she


       was a person who we felt like was rather on the young side, although that’s not
       totally dispositive; she was born in 1977. She and her husband work at something
       called CA Tech, which I’m not real sure what that is.

       She is married, has one child, has a high school diploma, but kind of felt like being
       the—the husband was unemployed. I remember that was a factor that Mr. Best and
       I were discussing. This was the last strike we decided to exercise. And with that
       background of unemployment in the family, some youth, we just felt like there were
       other jurors we liked better.



                                                 8
The prosecutor said the State struck Raymond Torres because the prosecutor knew Torres through

working with Torres’s wife. The prosecutor stated as follows:


       I don’t want to sound—sound bad, but I do know that he is not a terribly educated
       man. I didn’t feel very comfortable with him on a jury being as I knew him and knew
       of him. I didn’t know how he would feel, as far down the [list as] he was. I did not
       feel he would be the type of gentleman I would want, more personal acquaintance
       than personal feelings about him.


               Ramirez argued that these explanations were not race-neutral. She noted that the

State did not ask individual questions of these panelists to explore the State’s asserted concerns. For

instance, it did not ask Marquez questions about her understanding of English, ask Torres about

his education, or ask any questions of Rodriguez. Ramirez argued that the State’s uneasiness with

Rodriguez’s relative youth (she was 32 years old) did not cause the State to strike younger non-

Hispanics including Amy Newman (24 years old) and Cody Renfro (29 years old). Ramirez struck

Newman, but Renfro served on the jury.

               The court overruled the Batson motion, stating that its observations of some of the

panelists concurred with the State’s assertions. The court agreed that Marquez did not speak English

very well and stated that, “I’m concerned, having heard at pretrial some of the videotape and the

audio, it’s going to be hard for somebody to understand. And if they can’t understand English very

well, it’s going to make it that much more difficult.” The court stated that Hernandez was inattentive

during voir dire.

               After the court overruled the Batson motion, the State added that it declined to

strike Renfro “even though he was a bit on the younger side” because of the assessment of a



                                                  9
police detective who said she knew Renfro because he grew up with the detective’s daughter. The

prosecutor said that the detective opined that Renfro “was a good kid, basketball player, and thought

he was very intelligent,” attributes which offset his youth in the prosecutor’s evaluation.4


Analysis of the trial court’s rulings

               The standard of review imposes a heavy burden on Ramirez to show that the

trial court clearly erred by denying her Batson challenge to the State’s peremptory strikes. See

Gibson, 144 S.W.3d at 534. We note initially that some of the Whitsey factors are present with

respect to all three disputed strikes and weigh somewhat against the State’s argument that the strikes

were race-neutral. See 796 S.W.2d at 713-14. The reasons given for the disputed peremptory strikes

did not generally bear on the facts of the case. Only the age of Rodriguez—which the prosecutor

stated was not a totally dispositive factor—relates tangentially to the facts of the case in that the

primary actors were teenagers. Further, the State did not specifically question these panelists on the

asserted bases for the strikes although, other than with respect to the issue of age, Ramirez did not

show that the State had a disparate questioning strategy or treated others differently based on similar

responses to individual questioning. The factor relating to group bias is irrelevant to this case

because the State did not expressly assert that any group bias motivated its strikes. See id.

               The appellate record does not demonstrate that the trial court’s denial of the Batson

challenge was clearly erroneous with respect to Marquez. The only indication of Marquez’s facility

with English on the record is her own assertion, “I don’t understand very well English. I barely make


       4
         The State’s failure to strike the even younger Newman was unexplained, although Newman
did not serve because the defense struck her.

                                                  10
citizenship.” This statement reveals both her self-perception of her ability to understand English

and some nonstandard sentence construction that supports her self-perception. Her statement that

she reads does not refute her belief that she does not understand English very well because it does

not reveal her proficiency in reading or in understanding spoken English—i.e., whether she could

understand recorded statements that were somewhat challenging to understand. The prosecutor’s

asserted concern that Marquez’s self-professed limited understanding of English would impair her

ability to evaluate a record that contained four hours of recorded testimony was not shown to be

inaccurate or racially motivated. The trial court expressly found it credible. Although the linguistic

gap may be due to Marquez’s birth in a country where English is not the primary language, there is

no showing that the strike was due to the fact that Marquez is Hispanic. There is also no support for

Ramirez’s assertion that the State was “making up the allegation that Ms. Marquez expressed

discomfort and wanted off from the start.” Marquez did not expressly state that she did not want to

be on the jury, but she voluntarily approached the court when the court invited panelists who felt they

were not qualified to serve or should be excused or exempted from service to speak. It is not racist

to infer that Marquez approached the bench at that time due to discomfort or a desire not to be on

the jury. When she was told to stay, her response was “I need to stay?” rather than “I get to stay?”

or simple acceptance.5 Marquez’s tone and body language might have revealed something about her

state of mind, but tone and body language are not evident from the record before us. The trial court

was far better positioned than we are to assess nonverbal aspects of this communication that




       5
          By contrast, when panelist Xavier Pena was not excused after explaining that his
barber was the victim’s grandfather, he responded, “Okay. Great. All right. Thanks.”

                                                  11
might support or refute the assertion that Marquez seemed uncomfortable or desired not to serve.

The record before us does not demonstrate that the State’s explanation of its strike was motivated

by Marquez’s ethnicity. The trial court’s ruling that the State’s peremptory strike of Marquez was

race-neutral is not clearly erroneous.

                The appellate record does not demonstrate that the trial court’s denial of the Batson

challenge was clearly erroneous with respect to Rodriguez. The State’s explanation that it struck her

for her relative youth and her husband’s unemployment—despite the apparent inconsistency in the

State’s assertion that her husband worked at CA Tech and that he was unemployed—are facially

race-neutral. The State explained its preference against youth when striking a 25-year-old Hispanic

panelist, Lendall Hernandez, by opining that his youth (and occupation) might make him more

forgiving of youthful mistakes. The State expressly stated when striking Rodriguez, however, that

age was “not totally dispositive,” and acted consistently with that by failing to strike the 29-year-old

non-Hispanic Renfro because he was described favorably by a police detective. There is no showing

that the State’s expressed preference for older jurors was racially motivated. The State did not

explain why suspected unemployment of a spouse makes a panelist less desirable, but the lack of

explanation does not prove that it is a pretext intended to conceal racial bias. The State’s ultimate

explanation that Rodriguez was its final strike and that “we just felt like there were other jurors we

liked better” was not shown to be racially motivated. The reason for the strike does not have to make

sense, but it must be race-neutral. Purkett, 514 U.S. at 769. The trial court’s conclusion that the

strike of Rodriguez was race-neutral is not clearly erroneous.




                                                  12
               The appellate record does not demonstrate that the trial court’s denial of the Batson

challenge was clearly erroneous with respect to Torres. The prosecutor’s explanation that the State

struck Torres because the prosecutor knew Torres and knew him not to be educated is facially race-

neutral. Although the State did not explain why education is necessary or helpful in assessing a

murder charge, the explanation was not shown to be a pretext for racial bias. Neither is racial

animus evident in the State’s assertion that, based on personal acquaintance with Torres, the

prosecutor did not feel that Torres was the type of juror that the prosecutor wanted. Although the

State did not question Torres individually, the prosecutor’s personal feelings from his acquaintance

with Torres were not likely to be revealed by Torres’s answers to the prosecutor’s questions.

Ramirez has not shown that Torres was treated differently from other panelists about whom the State

felt similarly. Although Ramirez has argued that the State’s explanations are not clear, consistent,

or plausible, after reviewing all of the evidence in the light most favorable to the ruling, we cannot

say that she has created a definite and firm conviction that a mistake has been committed. See

Rhoades, 934 S.W.2d at 123-24. The trial court’s conclusion that the explanation for striking Torres

was race-neutral was not shown to be clearly erroneous.




                                                 13
Conclusion

              Concluding that the record does not demonstrate that the trial court’s denial of the

Batson challenges was clearly erroneous, we affirm the judgment.




                                            Diane M. Henson, Justice

Before Chief Justice Jones, Justices Patterson and Henson

Affirmed

Filed: December 22, 2010

Do Not Publish




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