¶1concurring.
¶2I agree with Judge Meyers that the court of appeals erred to conclude appellant did not present a prima facie case of Batson error in this cause. In my view, however, the trial court has yet to conduct a full-scale, proper Batson hearing on the question whether the prosecutor’s motives were in fact race neutral. I would therefore remand the cause to the trial court for an out of time Batson hearing to determine that issue.
¶3concurring.
¶4It appears to me that the relevant sequence of events in this ease was as follows. After jury selection, but before the jury was empanelled or sworn, appellant objected to the exclusion of two black veniremembers upon the ground that they had been struck by the prosecuting attorney on the basis of their race. The trial judge, believing that circumstances surrounding the exclusion of these prospective jurors did not make a pri-ma facie case of deliberate racial discrimination, refused to require an explanation from the prosecutor and overruled appellant’s motion. The prosecutor then immediately offered to make such an explanation anyway, but the judge proceeded at once to swear, empanel, and admonish the jury without responding to the prosecutor’s request. After the jury was dismissed for the day, the prosecuting attorney then promptly renewed her offer to give an explanation for striking the black veniremembers. Appellant objected to her offer upon the ground that his motion had already been overruled. But the judge decided to allow it and the prosecutor then articulated a different racially neutral explanation for the peremptory exclusion of each black veniremember. Appellant responded by arguing that the State did not engage in any significant questioning of these prospective jurors and that the record disclosed no basis for the proffered explanation. At this point, the trial judge inquired of the parties whether they had “anything else.” A short discussion of unrelated matters followed, after which one of the prosecutors asked the judge to find “that he’s heard the prosecutors [sic] reasons for the peremptory challenges in question, and that the peremptory challenges were made for racially neutral reasons.” Without any further discussion, the trial judge simply announced, “Court so finds.”
¶5Our law is clear that, when one party to a criminal prosecution claims that the other has used a peremptory challenge to exclude a prospective juror on the basis of race, he must prove by a preponderance of the evidence that his claim is true in fact before the trial judge is required to grant him any relief. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). If such party is able to raise a reasonable inference of racial discrimination from circumstances of the jury selection process, including the constituency of the jury panel, the number and kind of questions propounded to prospective jurors during the voir dire examination, and the number or pattern of strikes exercised against such prospective jurors, he is entitled to a favorable ruling from the trial judge unless the other party is willing to declare that his strikes were not racially motivated and to reveal on the record his actual reasons for using- peremptory challenges against veniremembers of an identifiable racial group. If the complaining party makes such a prima facie case of racial discrimination and the other party fails to give a racially neutral explanation for his strikes or admits that his strikes were racially motivated, then the complaining party is entitled to relief. On the other hand, if the party whose motives are in question does offer an explanation for each of his peremptory strikes which is racially neutral on its face, the judge must then proceed to try the issue of racial motivation just as he would any other issue of fact. He must consider the evidence proffered by the moving party to make his prima facie ease, the racially neutral explanations of the other party, any relevant portions of the voir dire examination conducted in his presence or to which his attention is called, and all other evidence offered by the parties in support of their respective positions. If, and only if, the trial judge as factfinder concludes by a preponderance of the evidence that the party whose motives are in question actually did strike prospective jurors because of their race, he must sustain the complaining party’s motion. Otherwise, he must overrule it.
¶6Although we are habituated to think of this procedure as peculiar to the litigation of racial discrimination issues in jury selection, it is largely consistent with the way all issues of fact are typically tried under our system of justice. As a general proposition, any mov-ant has the burden to establish his allegations by a standard of proof prescribed by law, usually a preponderance of the evidence. A movant can avoid summary judgment in favor of his opponent only when he produces evidence in support of his allegations suffi-*414dent for a rational belief that such allegations are true under the appropriate standard of proof. This is what the law means by a prima facie case. When a prima facie case has been made, and there is no evidence to contradict it or reason to doubt its reliability, judgment should be rendered for the movant. If, however, the opposing party does offer proof controverting it or impugning the reliability of evidence upon which it is based, an issue of fact is joined and should be submitted to the trier of fact for resolution.
¶7A hearing to determine the factual issue whether a party exercised peremptory challenges in a racially discriminatory way, like any other evidentiary hearing, should be conducted according to these general methods. The only significant difference is that the testimony of an attorney whose motives are in question is not available to the moving party at the time he makes his prima facie case because the system of peremptory challenges prescribed by our law entitles each litigant not to disclose the basis of his strikes. Since this rule is not itself unconstitutional, the United States Supreme Court has accepted that litigants have something like a privilege not to reveal the reasons for their peremptory challenges. But the Court has effectively qualified this privilege by holding that it fails when the evidence establishes a prima facie case that the strikes were racially motivated. Accordingly, if the moving party is able to make a prima facie case of racial discrimination without the privileged testimony, the party who made the allegedly discriminatory strikes may wish to waive his privilege and reveal the reason for his challenges because, if he does not, the moving party will necessarily be entitled to ruling in his favor.
¶8When the trial judge first overruled appellant’s motion in the instant cause, holding that no prima facie case of racial discrimination against the prosecuting attorney had been made, he therefore effectively rendered a summary judgment on that issue in favor of the State. Such ruling essentially meant that the trial judge thought appellant had not met his threshold burden of proof and that he should, therefore, lose even if the prosecutor produced no evidence on the question whatsoever.
¶9But the prosecuting attorney evidently did not agree. Her subsequent offer to disclose racially neutral reasons for her peremptory challenges in spite of the trial judge’s ruling in her favor was, in plain effect, a request to reopen the evidentiary hearing on appellant’s motion. She wanted the judge to make a ruling on the ultimate issue of racial motivation after considering her own explanations, thereby foreclosing appellate reversal of an anticipated conviction for what the prosecutor herself evidently believed to be an erroneous ruling by the trial judge concerning appellant’s prima facie case. As her cocoun-sel stated on the record, this Court has reversed such rulings under circumstances nearly identical to those of this case. See Linscomb v. State, 829 S.W.2d 164 (Tex.Crim.App.1992). He therefore thought it prudent for her to volunteer racially neutral reasons for her strikes so that, “if the appellate court finds that indeed a prima facie case was made, instead of remanding the case to the Court, 18 months from now, they will be able to examine it on the record and would avoid the undertaking of another hearing.”
¶10Certainly, this was a plausible strategy, and one which trial lawyers may be well-advised to adopt if they have no compelling need to withhold the actual motives for their peremptory challenges. But, as we have seen, the declaration of a racially neutral explanation does not end the matter. It only avoids summary judgment in favor of the moving party. Once such an explanation has been given, the court must still proceed to try the factual issue of racial motivation, hearing any further evidence or argument offered by either party and deciding whether the moving party has proven racial motivation by a preponderance of the evidence. Only if the trial court actually did so in this case could the prosecution achieve its stated purpose and avoid “the undertaking of another hearing” regardless of the appellate court’s ultimate decision.
¶11But that is where interpreting the record of trial in this case becomes a little more difficult. At first the prosecutor only asked the trial judge to hear her explanations and *415find that they “were indeed neutral.” On its face, this does not amount to a request that the trial judge find her explanations to be true. The difference is critical, not merely a matter of semantics. Under the law, a racially neutral explanation, whether it is true or not, necessarily avoids summary judgment in favor of the movant. That is a significant result if the movant has made a prima facie case of racial discrimination and is, therefore, entitled to have his motion granted in the absence of a racially neutral explanation. But it does not mean that the party whose motives are in question automatically wins. The trial judge must still decide whether the racially neutral explanation is true in fact. Accordingly, if the prosecutor in this case was just asking the trial judge to find that her explanations were racially neutral, and if that is all the trial judge did, then he did not do all that the law requires because he did not decide whether the prosecutor was racially motivated in fact. Under such circumstances, it might therefore become necessary in the event of a conviction and appeal, to remand the cause for further evidentiary hearing or for factfindings of the trial judge, just the sort of eventuality sought to be avoided by the prosecutor when she volunteered an explanation for her peremptory challenges.
¶12On the other hand, if the prosecutor’s request in this case was really for a finding that she did not in fact strike any black veniremembers on account of their race, the con sequence would be quite different. A ruling from the trial judge on such a request would be tantamount to a finding of fact on the merits and would, therefore, effectively end his role in the dispute. Even if he committed errors in coming to such a decision, there would be no circumstances under which an ensuing appeal might have to be abated and remanded to him for further proceedings connected with appellant’s motion. At worst, from the State’s perspective, appellant’s conviction might ultimately be reversed and the cause remanded for a new trial on account of errors in the jury selection process. But at least the State’s main objective, to avoid a later abatement of the appeal and a remand for further evidentiary hearing, would be accomplished.
¶13In spite of some ambiguity implicit in the prosecutor’s initial request, this latter hypothesis is, in my opinion, best supported by the record. It seems clear to me that the prosecuting attorney actually wanted the trial judge to make a factfinding on the ultimate question of racial motivation, taking into account all of the evidence in the record relevant to that question, including the evidence relied upon by appellant to make a prima facie case and the evidence of racially neutral explanations offered by the prosecutor. It is not just that no other kind of ruling would have been sufficient to accomplish the prosecutor’s purpose. After her explanations were concluded and the trial ■judge made it clear that he would receive further evidence on the issue from either party, and after the trial judge heard argument from appellant concerning the credibility of her racially neutral explanations, the prosecuting attorney expressly asked the trial judge to find that her “peremptoiy challenges were made for racially neutral reasons,” and he immediately did so. These circumstances convince me that the trial judge actually ruled, not just on the racial neutrality of the prosecutor’s explanations, but on whether he, as the factfinder, believed from a preponderance of the evidence that those explanations were true. The plain effect of his ruling is that he did.
¶14Thus it is clear that the prosecuting attorney was not just trying to spread her explanations on the record for technical reasons. She was litigating the issue of her motivation for striking two black veniremembers because she knew, based on this Court’s precedents, that she would have to litigate that issue anyway on remand if the defendant were permitted to appeal the trial judge’s erroneous ruling on his prima facie case. Accordingly, she not only put her explanations on the record; she also twice demanded and eventually got a favorable ruling from the trial judge. And her strategy worked. Appellant’s points of error on appeal did not include a complaint about the trial judge’s ruling on his prima facie case. It included only a complaint about his ultimate ruling on the merits.
¶15*416Unfortunately, the Fourteenth Court of Appeals preferred to review the issue of appellant’s prima facie case instead. In addition to the fact that this issue was not raised on appeal at all and should not therefore have been considered, the court managed to get it wrong as well. Under our precedents, a prima facie ease of racial discrimination can be established by an analysis of the number or pattern of peremptory challenges alone. So long as the proportion of strikes exercised against those of an identifiable race actually suggests, as an empirical matter, that the party exercising those strikes was motivated by considerations of race, the law requires that he be made to explain his actual motives on request of the opposing party. In the instant cause, it seems clear to me that the proportion of strikes exercised against black veniremembers by the State was sufficiently suspicious to require such an explanation. Accordingly, I agree that the lower appellate court erred to hold otherwise.
¶16The plain effect of all this is that the Fourteenth Court of Appeals has not yet ruled on the point of error actually presented by appellant in his brief, which is whether “the trial court erred in permitting the prosecution to peremptorily challenge two black veniremembers.” Appellant’s arguments under this point of error make it clear that he wanted the appellate court to hold that the evidence of racial motivation greatly outweighed the racially neutral explanations of the prosecutor. In my opinion, the Court of Appeals was obliged to reach and dispose of this issue according to the methods discussed above. Because, therefore, this Court remands to the Fourteenth Court of Appeals for further such consideration, I concur in its judgment.