Yarborough v. State

¶1dissenting.

¶2The majority holds a race-neutral explanation on the basis of demeanor not supported with independent, objectively verifiable evidence which appears in the record, is sufficient to defeat a prima facie case under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Believing more is required, I respectfully dissent. The basis for my belief comes from my understanding of the meaning and purpose of Batsonand its progeny. Because this area of the law is confusing, I hope this opinion will serve as much as a clarification of the existing case law as a dissent to the majority opinion.

¶3I.

¶4In Batson, the Supreme Court sought to achieve two primary goals: (1) to prohibit the exclusion of veniremembers on the basis of race; and, (2) to protect the integrity of the judicial process in the use of peremptory challenges. In order to achieve these goals, *902the Court held the Fourteenth Amendment’s Equal Protection Clause makes it:

... impermissible for a prosecutor to use his challenges to exclude blacks from'the jury for reasons wholly unrelated to the outcome of the particular case on trial or to deny to blacks the same right and opportunity to participate in the administration of justice enjoyed by the white population.

¶5Id, 476 U.S. at 91, 106 S.Ct. at 1720, quoting Swain v. Alabama, 380 U.S. 202, 224, 85 S.Ct. 824, 838, 13 L.Ed.2d 759 (1965) (citations and quotations omitted).1

¶6The Equal Protection Clause forbids the exclusion of veniremembers on the “assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” Batson, 476 U.S. at 89, 106 S.Ct. at 1719 (footnotes and citations omitted).2See also, Esteves v. State, 849 S.W.2d 822, 823 (Tex.Cr.App.1993) (Tex. Const, art. I, § 3a and Tex.Code Crim. Proc. Ann. art. 35.261 prohibit the exercise of peremptory challenges based on race). And, jury selection procedures which purposefully exclude African-Americans undermine public confidence in the criminal justice system. Batson, 476 U.S. at 87, 106 S.Ct. at 1718. The harm which results from racially discriminatory jury selection extends beyond the defendant to the excluded juror and the entire community. Ibid.It deprives citizens of the opportunity to serve on a jury, often the citizens’ most significant opportunity to participate in the democratic process. Powers v. Ohio, 499 U.S. 400, 406-07, 111 S.Ct. 1364, 1368-69, 113 L.Ed.2d 411 (1991).

¶7Batsondeveloped a procedural framework to establish a violation of the Equal Protection Clause. First, the defendant must produce prima facie evidence that the prosecutor exercised peremptory challenges on the basis of race. When the prima facie case is made, the burden shifts to the State to articulate a race-neutral explanation for its exclusion of the veniremember(s) in question.3 If the State articulates a race-neutral explanation, the defendant is given an opportunity to respond since the defendant has ultimate burden of proving purposeful discrimination. Finally, the trial judge must determine whether the defendant met that burden. In other words, the defendant’s arguments must be weighed against the State’s argument, taking into consideration any on-the-record, independent, objective evidence presented by both sides. I will review each step in this procedural framework as well as the appellate process involved in its review.

¶8II.

¶9After making a Batsonobjection, the defendant has the burden of producing prima facie evidence to show the State used a peremptory challenge to exclude a venire-member on the basis of race. The Supreme Court initially established a three prong test to make a prima facie case: 1) a showing that *903the defendant is a member of a cognizable racial group; 2) that the prosecutor exercised peremptory challenges to remove veniremembers of the defendant’s race; and, 3) these facts and any other relevant circumstances which raise an inference that the prosecutor used peremptory challenges to exclude the veniremembers from the petit jury on the basis of race. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. However, the Court subsequently deleted the first and second prongs. Powers, 499 U.S. at 416, 111 S.Ct. at 1373-1374; see also, Cook v. State, 858 S.W.2d 467, 471-472 (Tex.Cr.App.1993) (“... [T]he race of a defendant is irrelevant to a Batsonchallenge ... it is also not necessary ... that the veniremember be a member of a particular racial group.”). Thus, to make a prima facie case, the defendant need only raise an inference that the State used a peremptory challenge to exclude a venire-member on the basis of race.

¶10In Linscomb v. State, 829 S.W.2d 164, 166 (Tex.Cr.App.1992), we held prima facie evidence is any relevant evidence with more than a modicum of probative value. An inference is nothing more than an inclination towards a belief, ibid., and the defendant’s burden of proof cannot be onerous. See, Dewberry v. State, 776 S.W.2d 589, 590 (Tex. Cr.App.1989). This is so because a prima facie case is what raises the issue, not what eventually disposes of it. Linscomb, 829 S.W.2d at 167.

¶11The procedures adopted in Batsonwere patterned after Supreme Court opinions addressing employment discrimination. Batson, 476 U.S. at 96-98, n. 19-21, 106 S.Ct. at 1722-24, n. 19-21. See generally, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In that context, proof of a minority applicant’s rejection for employment is alone insufficient to make a prima facie ease. Instead the applicant must further demonstrate “circumstances which give rise to an inference of unlawful discrimination.” Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). Similarly, the Supreme Court contemplated that the defendant’s prima facie burden in the context of Batsonrequires more than proof of a peremptory challenge exercised against a veniremember of a certain race. See, Linscomb, 829 S.W.2d at 166 (“[T]he bare fact of strikes exercised against persons of a certain race does not necessarily reveal the work of a racially prejudiced mind.”).

¶12The question then arises: What evidence will allow such an inference? Batsonallows the defendant to present any relevant evidence to make a prima facie showing.4Batson, 476 U.S. at 96, 106 S.Ct. at 1723. In Keeton v. State, 749 S.W.2d 861 (Tex.Cr.App.l988)(hereinafter “Keeton II”), we relied upon language from the Alabama Supreme Court in Ex parte Branch, 526 So.2d 609 (Ala.1987), to illustrate the various types of evidence which could be used to make a prima facie case of discrimination:

1. Evidence that the “jurors in questions share[d] only this one characteristic— their membership in the group — and that in all other respects they [were] as heterogeneous as the community as a whole.” For instance, “it may be significant that the persons challenged, although all black, include both men and women and are a variety of ages, occupations, and social or economic conditions.” indicating that race was the deciding factor.

2. A pattern of strikes against black jurors on the particular venire; e.g., 4 of 6 peremptory challenges were used to strike black jurors.

3. The past conduct of the state’s attorney in using peremptory challenges to strike all blacks from the jury venire.

4. The type and manner of the state’s attorney’s questions and statements during voir dire, including nothing more than desultory voir dire.

5. The type and manner of questions directed to the challenged juror, iuclud-*904ing a lack of questions, or a lack of meaningful questions.

6. Disparate treatment of members of the jury venire with the same characteristics, or who answer a question in the same or similar manner; e.g., in Slap-py, a black elementary school teacher was struck as being potentially too liberal because of his job, but a white elementary school teacher was not challenged.

7. Disparate examination of members of the venire; ... a question designed to provoke a certain response that is likely to disqualify a juror was asked to black jurors, but not to white jurors.

8. Circumstantial evidence of intent may be proven by disparate impact where all or most of the challenges were used to strike blacks from the jury.

9. The state used peremptory challenges to dismiss all or most black jurors.

¶13Keeton II, 749 S.W.2d at 867 (quoting Ex parte Branch, 526 So.2d at 622-62B).5 Therefore, to make a prima facie case the defendant must produce evidence, more than the peremptory challenge itself, which allows an inference of discrimination. This additional evidence insures the peremptory challenges are put in context. Only when we view the context in which the peremptory challenges occurred may an inference of discrimination arise.

¶14III.

¶15A.

¶16After the defendant makes a prima facie case, “there is a presumption that the peremptory challenges were used to discriminate against black jurors.” Keeton II, 749 5.W.2d at 867. When this occurs, the State must provide a neutral, clear, and reasonably specific, race-neutral explanation for its peremptory challenge.6Batson, 476 U.S. at 98, n. 20, 106 S.Ct. at 1724, n. 20. This requirement of a race-neutral explanation means an explanation other than race. Hernandez, 500 U.S. at 374, 111 S.Ct. at 1874 (O’Connor, J., concurring). Unless the State’s race-neutral explanation is inherently discriminatory, the explanation will be deemed race-neutral. Hernandez, 500 U.S. at 360, 111 S.Ct. at 1866.

¶17Batsonprovided little guidance on what constituted a sufficient race-neutral explanation. The Court defined racially neutral explanations in the negative, holding:

... [The] prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race.... Nor may the prosecutor rebut the defendant’s case merely by denying that he had a discriminatory motive or affirming his good faith in making individual selections.

¶18Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723-1724 (citations and footnotes omitted).

¶19In Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), the defendant objected to the State’s exclusion of two black *905veniremembers. The prosecutor stated he struck the veniremembers because one had long hair, and both had mustaches and beards. Id.,514 U.S. at 766-67, 115 S.Ct. at 1770. The Court found these race-neutral explanations were facially valid, and held the raceneutral explanation does not have to be persuasive or even plausible. Ibid.In other words, the race-neutral explanation does not have to make sense, it just cannot be racially discriminatory. Id.,514 U.S. at 767-69, 115 S.Ct. at 1771. The Court stated:

... But to say that a trial judge may choose to disbelieve a silly or superstitious reason (in its ultimate Batsondecision) is quite different from saying that a trial judge must terminate the inquiry at step 2 when the race neutral reason is silly or superstitious.

¶20Ibid.Thus, at this step in the Batsonprocedural framework, the State must provide a racially-neutral explanation for its exclusion of the minority veniremember which consists of more than a mere denial of the defendant’s prima facie evidence. Ibid.

¶21B.

¶22The Supreme Court has never addressed the sufficiency of a race-neutral explanation involving demeanor. In Keeton II v. State, 749 S.W.2d at 869, we relied upon State v. Tubbs, 155 Ariz. 533, 747 P.2d 1232, 1236 (App.1987), wherein the Arizona Court of Appeals held “an elusive, intangible explanation for exclusion might not qualify as racially neutral.” However, the TubbsCourt held that “such is not the case when the [race-neutral] explanation is coupled with an objectively verifiable reason.” Ibid. See also, Morris v. State, 940 S.W.2d 610, 612 (Tex.Cr. App.1996) (The trial judge stated for the record that the prosecutor’s explanations of demeanor were consistent with the judge’s observations.). Indeed, several of our courts of appeals insist “[w]hen the State strikes a juror on a basis that cannot easily or objectively be determined by the reviewing court, that basis must be substantiated by something other than the prosecutor’s statement and that something must be on the record.” Roberson v. State, 860 S.W.2d 162, 165 (Tex. App. — Fort Worth 1993) (emphasis in original). See also, Hughes v. State, 850 S.W.2d 260, 266 (Tex.App. — Ft. Worth 1993) (“When the prosecutor relies on the veniremember’s attitude or demeanor, and the record of the voir dire reflects no hostility toward the State, the prosecutor’s stated reason for the strike must specifically state the body language or nonverbal actions that led the prosecutor to believe that thé veniremember was biased against the State.”); Woods v. State, 801 S.W.2d 932, 937-38 (Tex.App. — Austin 1990) (State’s explanation concerning lack of eye contact and general claim of lack of attentiveness was insufficient when the veniremember was asked only one question and the veniremember’s demeanor could not be objectively verified by the record); C.E.J. v. State, 788 S.W.2d 849, 857 (Tex.App.— Dallas 1990) (Batson requires trial judges to scrutinize elusive, intangible, and easily contrived explanations with a healthy skepticism.); Daniels v. State, 768 S.W.2d 314, 317 (Tex.App. — Tyler 1988) (“Although we are unwilling to say that a juror’s demeanor cannot ever be a racially neutral motive for a prosecutor’s peremptory challenge, the protection of the constitutional guarantees that Batsonrecognizes requires the court to scrutinize such elusive, intangible, and easily contrived explanations with a healthy skepticism.”). On the other hand, other courts of appeals have found a race-neutral explanation of demeanor sufficient to rebut prima facie evidence of discrimination. See, e.g., Straughter v. State, 801 S.W.2d 607, 613 (Tex.App. — Houston [1st Dist.] 1990) (“It was appellant’s burden to do more than simply state his disagreement with some of the prosecutor’s explanations; he was required to prove affirmatively that the prosecutor’s racially neutral explanations - were a sham or pretext.”); Harrell v. State, 882 S.W.2d 65, 67 (Tex.App. — Houston [14th Dist.] 1994) (“Inattentiveness is a racially neutral reason for exercising a peremptory strike.”); Young v. State, 848 S.W.2d 203, 209 (Tex.App.— Dallas 1992) (A juror’s inattentiveness may be a race-neutral reason for exercising a peremptory strike.).

¶23Other states addressing this issue require the trial judge to either closely scrutinize the explanation or make an on-the-record, factual determination of the merits of the demeanor *906related explanation offered by the State. See, State v. Hood, 245 Kan. 367, 780 P.2d 160, 166 (1989) (“[Tjrial Judge must be particularly sensitive when body language, alone, is advanced as a reason for striking a juror of the defendant’s race.”); State v. Walston, 256 Kan. 372, 886 P.2d 349, 352 (1994) (Veniremember’s “nods, leans, winks, smiles, or scowls do not show upon the record, unless counsel expressly makes a note of them”; for this reason, a trial judge must be particularly sensitive when body language is advanced as the race-neutral reason for a strike.); People v. Harris, 129 Ill.2d 123, 135 Ill.Dec. 861, 544 N.E.2d 357, 380 (1989) (“[Fjocus upon a venireperson’s body language or demeanor must be closely scrutinized because they are subjective and can be easily used by a prosecutor as a pretext for excluding persons on the basis of race.”); Avery v. State, 545 So.2d 123, 125 (Ala.Cr. App.1988) (The State’s explanations of “body language,” “negative attitude,” and “demean- or” were tenuous and require “close scrutiny.”); State v. McRae, 494 N.W.2d 252, 257 (Minn.1992) (The court criticized an appellate record which provided “no real support” for any argument that the demeanor of the juror, tone used in responding, and other similar factors played a part in the prosecutor’s decision to strike.); Hatten v. State, 628 So.2d 294, 298 (Miss.1993) (Trial judge must make “an on-the-record, factual determination of the merits of the reasons cited by the State for its use of peremptory challenges against potential jurors.”); and, Williams v. State, 634 So.2d 1034, 1046 (Ala.Cr.App.1993) (Bowen, J. dissenting) (State should have supplemented the record since body language explanations for strikes of venire-members are especially subject to abuse.). Hence, other jurisdictions have recognized the danger which arises when demeanor is advanced as a race-neutral explanation for a veniremember’s exclusion.

¶24The dangers inherent in race-neutral explanations of demeanor cannot be eliminated by simply requiring a “closer scrutiny” of such evidence. The closer scrutiny standard makes it virtually impossible for an appellate court to meaningfully review the trial judge’s ultimate ruling because the record is silent as to demeanor. Therefore, I would hold the racially-neutral statements of demeanor must be supported with independent, objectively verifiable evidence which appears in the record.

¶25IV.

¶26If the State produces a race-neutral explanation, the defendant must be given the opportunity to demonstrate the State’s race-neutral explanations are untrue or pretextual. This is so because the defendant has the ultimate burden of proving the State excluded veniremembers on the basis of race. See, Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; and, Tex.Code Crim. Proc. Ann. art. 35.261. Tompkins v. State, 774 S.W.2d 195, 202 (Tex. Cr.App.1987) (“[Ijt is the burden of the accused to persuade the trial judge by a preponderance of the evidence that the allegations of purposeful discrimination are true in fact.”); Salazar v. State, 795 S.W.2d 187, 192 (Tex.Cr.App.1990); Newsome v. State, 771 S.W.2d 620, 621 (Tex.App. — Dallas 1989); Williams v. State, 767 S.W.2d 872, 874 (Tex. App. — Dallas 1989). Therefore, the defendant must have the opportunity to rebut the State’s explanation:

... The reason the equal protection clause grants the defendant the right of cross-examination is so that he can show the trial judge why the prosecutor’s stated reasons may indicate bad faith (such as where they reveal disparate treatment of veniremen) or are facially unlawful. The adversarial Batsonhearing that is the defendant’s Constitutional right affords him a reasonable opportunity to prove up his equal protection case in the trial court.

¶27Young v. State, 826 S.W.2d 141, 148 (Tex.Cr. App.1991) (Campbell, J., dissenting) (emphasis in original).7Batsoncontemplated this *907adversarial process. See, U.S. v. Clemons, 941 F.2d 321, 323-324 (5th Cir.1991); U.S. v. Alcantar, 897 F.2d 436, 438 (9th Cir.1990); U.S. v. Roan Eagle, 867 F.2d 436, 441 (8th Cir.1989); cf. U.S. v. Rudas, 905 F.2d 38 (2nd Cir.1990). Consequently, the trial judge must allow the defendant an opportunity to prove the State excluded veniremembers on the basis of race.

¶28Y.

¶29The trial judge must determine whether the defendant met his burden of showing the State excluded a veniremember on the basis of race.8Batson, 476 U.S. at 98, 106 S.Ct. at 1724. The trial judge may not abdicate this responsibility, nor leave such questions to be resolved by an appellate court. The trial judge is the fact finder and must find the facts fairly and judiciously, according to the burdens of proof prescribed by law. Tompkins, 774 S.W.2d at 205. However, the trial judge may consider, and state for the record, past experiences with a particular prosecutor to determine whether the prosecutor racially discriminated in the exercise of peremptory strikes. Morris, 940 S.W.2d at 612.

¶30Having a remedy available in the trial court is central not only to Batson’s holding that a defendant has a right to be tried by a jury selected in a non-diseriminatory manner, it distinguishes Batsonfrom prior cases dealing with racial discrimination and peremptory challenges. See and compare, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) and, Batson, 476 U.S. at 86, 106 S.Ct. at 1717. Because juries selected in a discriminatory manner harm not only the defendant and the excluded juror, but the community as well by undermining the pub-lie’s confidence in the criminal justice system, Id.,476 U.S. at 87, 106 S.Ct. at 1718, the Supreme Court anticipated that a remedy would be available in the trial court. See, Batson, 476 U.S. at 94, n. 18, and 98, n. 24, 106 S.Ct. at 1721, n. 18, and 1724, n. 24. This aspect of the Batsondecision is important because the Supreme Court believed an expeditious decision regarding equal protection violations will increase respect for our criminal justice system, strengthen the rule of law, and further the ends of justice. Id.,476 U.S. at 99, 106 S.Ct. at 1724. Therefore, if the trial judge determines the State wrongfully excluded a veniremember, the trial judge must fashion a remedy by either quashing the panel or reinstating the venire-members wrongfully excluded. Curry v. Bowman, 885 S.W.2d 421, 425 (Tex.Cr.App. 1993); Tex.Code Crim. Proe. Ann. art. 35.261.9

¶31VI.

¶32Because a trial judge’s decision on the ultimate question of discrimination “represents a finding of fact of the sort accorded great deference on appeal,” see, n. 10, supra, appellate courts apply a clearly erroneous standard of review to the steps in the Batsonprocedural framework. Hernandez, 500 U.S. at 365, 369, 111 S.Ct. at 1869, 1871 (This standard makes particular sense in the Bat-son context, because the finding will “largely turn on evaluation of credibility.”). In practice, the clearly erroneous standard of review means that “[wjhere there are two permissible views of the evidence, the fact finder’s choice between them cannot be clearly erro*908neous.” Id, 500 U.S. at 369, 111 S.Ct. at 1871. Further, the appellate court must be left with a “definite and firm conviction that a mistake has been committed” before it overturns the trial judge’s ruling. Id, 500 U.S. at 370, 111 S.Ct. at 1872 (citation omitted). A trial judge’s ruling which is supported by the record is never clearly erroneous. See generally, Vargas v. State, 838 S.W.2d 562, 554 (Tex.Cr.App.1992).

¶33We enumerated a non-exclusive list of factors to consider when reviewing a trial judge’s ruling on a Batsonobjection. Those factors are:

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;10

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.

¶34Whitsey v. State, 796 S.W.2d 707, 713-714 (Tex.Cr.App.1989); and Keeton II, 749 S.W.2d at 868. We held 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.” Whitsey, 796 S.W.2d at 713. We deemed the factors “essential for the trial court to utilize in compiling its findings of facts and conclusions of law at the termination of the Batsonhearing.” Williams v. State, 804 S.W.2d at 105. See also, Keeton II, 749 S.W.2d at 866 (Tex.Cr.App.1988); and Whitsey, 796 S.W.2d at 713(Batson’s requirement that the prosecutor give “clear and reasonably specific” explanations of “legitimate reasons” for his use of peremptory challenges “mandates that the trial judge evaluate the reasons given by the prosecutor in light of the circumstances of that trial to determine whether the explanations are merely a pretext.”). When the State’s race-neutral explanation appears to be pre-textual, and are not supported by the record, the appellate court must reverse.

¶35VII.

¶36In part III B, supra, I stated that a race-neutral explanation on the basis of demeanor must be supported by independent, objectively verifiable evidence in the record. Under that standard of review, the Court of Appeals correctly held the trial judge’s overruling of appellant’s Batsonobjection was error. Therefore, I would affirm the judgment of the Court of Appeals. Because the majority does not, I respectfully dissent.