Ernest Murry Moore v. State

Opinion issued May 1, 2008

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-06-00656-CR

____________

ERNEST MURRY MOORE JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from 183rd District Court

Harris County, Texas

Trial Court Cause No. 967157

O P I N I O N

A jury convicted appellant, Ernest Murry Moore Jr., of the felony offense of

capital murder. The trial court assessed appellant's punishment at life imprisonment,

which is the only possible sentence since the State did not seek the death penalty. See

Tex. Pen. Code Ann. §§12.31 (Vernon 2003), 19.03 (Vernon Supp. 2007). In nine

points of error, appellant contends that the trial court erred in (1) denying his Batson (1)

challenges, (2) refusing to grant a mistrial after the State's expert rendered medical

attention to a juror during the trial, and (3) refusing to allow appellant to introduce

certain "specific instances" evidence concerning appellant's treatment of children

pursuant to Rules of Evidence 404(a)(1)(A) and 405(b). See Tex. R. Evid. 404(a)(1),

405(b). We conclude the record shows that the prosecutor's reasons for using a

peremptory strike on an African-American woman were contrived to conceal racially

discriminatory intent and that the trial court clearly erred by failing to grant

appellant's Batson challenge to the juror. We reverse and remand.

I. Factual Background

The complainant, J.A., was the twenty-month-old daughter of Alyndria

Johnson and Jermaine Amerson. By the time that J.A. was born on June 23, 2001,

Amerson and Johnson had ended their relationship, and Amerson had begun a

relationship with Troyshetta Angelo. Angelo had previously been in a relationship

with appellant. At some point, appellant developed a relationship with Johnson, J.A.'s

mother, and the couple began living together.

Initially, J.A. stayed in the care of Amerson and Angelo, but in February 2003,

J.A. began living with appellant and Johnson. On the morning of March 14, 2003,

Johnson left her apartment to go to school. At the time, J.A. was asleep in her bed,

and appellant had fallen asleep on the couch. When Johnson returned home after her

first class, both were still asleep. Prior to leaving the apartment for school again,

Johnson woke up appellant and requested that he feed J.A. While Johnson was at

school, she received a text message from appellant indicating that J.A. was choking.

Emergency medical personnel who were summoned found J.A. unconscious and

unresponsive. Upon examination, it was revealed that she was not choking, and that

there was no obstruction to her airway.

J.A. was transported to Texas Children's Hospital, where medical staff found

that J.A. had suffered extensive injuries indicating non-accidental trauma.

Specifically, an examination of her internal organs revealed significant injury to her

liver. Additionally, medical personnel discovered that J.A.'s brain, small bowel, and

pancreas were severely injured. Several blood vessels in J.A.'s abdominal cavity had

been torn, resulting in internal bleeding due to blunt force trauma to her abdomen.

Examination of J.A.'s chest revealed that she suffered mild bruising to her thymus

and heart. J.A. died in the hospital two days after she sustained these injuries. The

Harris County Medical Examiner's Office concluded that J.A. died of blunt trauma

to the head and ruled the death a homicide.

II. Batson Challenge

In his first through seventh points of error, appellant contends that the trial

court erred by denying his Batson challenge because the State used its peremptory

challenges to strike seven of nine African-Americans from the venire, using seven of

the State's ten peremptory strikes to exclude them. The State contends that appellant

has not shown that the prosecutor's race-neutral explanations were a pretext and,

therefore, that the trial court properly denied appellant's Batson challenge.

A. Batson -- Article 35.261 Principles

Using a peremptory challenge to strike a potential juror because of race violates

the equal protection guarantee of the United States Constitution, Batson v. Kentucky ,

476 U.S. 79, 86 , 106 S. Ct. 1712, 1717 (1986), as well as article 35.261 of the Code

of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon Supp.

2006). In the face of perceived purposeful discrimination, the defendant may request

a Batson hearing. See Tex. Code Crim. Proc. Ann. art. 35.261(a) (Vernon Supp.

2006).

A defendant's Batson challenge to a peremptory strike is a three-step process.

Purkett v. Elem , 514 U.S. 765, 767-68 , 115 S. Ct. 1769, 1770-71 (1995); Simpson

v. State , 119 S.W.3d 262, 268 (Tex. Crim. App. 2003). The defendant must first

make a prima facie case of racial discrimination, based on the totality of relevant facts

about the prosecutor's conduct during the trial. Miller-El v. Dretke , 545 U.S. 231,

239 , 125 S. Ct. 2317, 2324 (2005); Purkett , 514 U.S. at 767 , 115 S. Ct. at 1770 ;

Simpson , 119 S.W.3d at 268 ; see Tex. Code Crim. Proc. Ann. art. 35.261. If the

defendant makes a prima facie case, the burden of production shifts to the State to

present a race-neutral reason for its challenged strike, a reason that is "a clear and

reasonably specific explanation of [the] legitimate reasons" for exercising its strike.

Miller-El , 545 U.S. at 239 , 125 S. Ct. at 2324 ; see Tex. Code Crim. Proc. Ann. art.

35.261(a) ("If the defendant establishes a prima facie case, the burden then shifts to

the attorney representing the State to give a racially neutral explanation for the

challenges."). A reason is deemed race neutral if no discriminatory intent is inherent

in the prosecutor's explanation. Purkett , 514 U.S. at 768 , 115 S. Ct. at 1771 ; Thomas

v. State , 209 S.W.3d 268, 270 (Tex. App.-- Houston [1st Dist.] 2006, no pet.)

When the prosecutor responds by offering a race-neutral explanation, the

inquiry whether the defendant has made a prima facie case becomes moot, and the

defendant may rebut the State's explanation. Simpson , 119 S.W.3d at 268 ; Jasper

v. State , 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). In the third and final step, the

trial court must decide whether the defendant carried the burden to establish

purposeful discrimination. Miller-El , 545 U.S. at 239 , 125 S. Ct. at 2325 ; Purkett ,

514 U.S. at 768 , 115 S. Ct. at 1771 ; Simpson , 119 S.W.3d at 268 . The trial court's

inquiry addresses whether the neutral reasons provided by the prosecutor for the

peremptory challenge were contrived in order to conceal racially discriminatory

intent. Jasper , 61 S.W.3d at 421 .

Throughout the challenge, the burden of persuasion remains with the

defendant, Tex. Code Crim. Proc. Ann. art. 35.261(a), who may continue to rebut

the prosecutor's explanations before the trial court decides the Batson challenge.

Purkett , 514 U.S. at 768 , 115 S. Ct. at 1771 ; Simpson , 119 S.W.3d at 268 ; see

Thomas , 209 S.W.3d at 270 .

B. Standard of Review Applicable to Batson Challenges

A reviewing court examines jury selection from a cold record. Satterwhite v.

State , 858 S.W.2d 412, 415 (Tex. Crim. App. 1993). In other words, it is the trial

court who has the opportunity to view each venireperson's demeanor and to evaluate

his or her credibility and, ultimately, is in the better position to pass on the challenges

for cause presented. Satterwhite , 858 S.W.2d at 415 (citing Smith v. State , 676

S.W.2d 379, 387 (Tex. Crim. App. 1984)). Consequently, we cannot reverse a trial

court's ruling on a Batson challenge unless it is clearly erroneous. See Gibson v.

State , 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). To hold that a trial court clearly

erred, we must have a "definite and firm conviction that a mistake has been

committed." Goldberg v. State , 95 S.W.3d 345, 385 (Tex. App.-- Houston [1st Dist.]

2002, pet. ref'd). We may not substitute our opinion for the trial court's factual

assessment of the neutrality of the prosecutor's explanation for exercising strikes, and

we focus on the genuiness, rather than the reasonableness, of the prosecutor's

asserted nonracial motive. Gibson , 144 S.W.3d at 534 n.5 ( citing Purkett , 514 U.S.

at 765 , 115 S. Ct. at 1771-72 ). We give great deference to the trial court's

determination, and we view the evidence in the light most favorable to the trial

court's ruling. Gibson , 144 S.W.3d at 534 n.6 ( citing Guzman v. State , 955 S.W.2d

85, 89 (Tex. Crim. App. 1997)); Jasper , 61 S.W.3d at 422 .

C. Batson Hearing

In response to the State's exercise of its strikes, appellant's trial counsel

asserted a Batson challenge, (2) contending that the State had struck seven

veniremembers based solely on their race. A venire of 65 people was summoned for

jury selection. After the trial court granted five challenges for cause, the panel of

prospective jurors consisted of 32 members, ending with juror number 37. (3) The State

used ten peremptory strikes, seven of them on the nine African-Americans seated

within the first 37 members of the venire. No African-American potential jurors were

challenged for cause. Appellant is an African-American.

The record confirms that the prosecutor exercised peremptory challenges

against 78 percent of the African-American potential jurors on the panel. One

African-American served on the jury. Another African-American, a parole officer,

who indicated that he might favor the State, was struck by the defense .

At the Batson hearing, the prosecutor offered her reasons for striking the seven

veniremembers. We review each peremptory strike of an African-American

venireperson and the explanation offered by the State for each. See Harper v. State ,

930 S.W.2d 625, 634 (Tex. App.--Houston [1st Dist.] 1996, no pet).

1. Veniremember Collins

Collins, Juror Number 1, was a 64-year-old African-American woman

employed as a certified surgical technician. At the Batson hearing, the prosecutor

testified that, in response to a line of questioning by appellant's counsel about current

attitudes concerning child abuse, Collins's responses indicated that "she may be more

inclined that things are reported that may not be necessary to be reported." After

Hutchison, Juror Number 3 agreed that, in recent years, "our ideas about child abuse

have changed," but that "[m]ore abuse is accepted," Collins disagreed. The following

exchange then took place:

Veniremember Collins: Well, I feel that child abuse is more prevalent

now and it's more out in the open that more people can hear about it.

And the more people that hear about it, they do not like it. They want

something done about it.

Appellant's Counsel: Do you think- sometimes my friends and I laugh.

You can tell probably about how old I am. My friends and I sometimes

laugh among ourselves that if we disciplined our children the way our

parents disciplined us, that we would be in prison today.

Veniremember Collins: Uh-huh.

Collins was not asked whether she agreed with the comment of appellant's counsel.

Appellant argues that Collins's viewpoint was shared by the entire panel and

that the prosecutor exercised the strike against Collins in a disparate manner. In

support of this, appellant cites Thomas v. State , 209 S.W.3d 268 (Tex. App.--

Houston [1st Dist.] 2006, no pet.). In Thomas , there were five victims of crime on the

panel, but the prosecutor struck only an African-American female whose boyfriend

had been robbed, despite her representation that the experience would not influence

her jury service. Id . at 271-75. The prosecutor testified that she had exercised the

peremptory challenge because she did not like crime victims on her juries, yet she

failed to strike any of the non-African American crime victims. Id. at 273 . This

Court reversed the conviction, holding comparative evidence showed disparate

treatment. Id . at 275. (4)

Appellant's counsel contends that, in addition to Collins, other jurors indicated

that parents do not currently discipline children as they did in the past. The record

does not support appellant's claim. For instance, Hutchinson said more child abuse

is accepted today than in the past. Therrien, Juror Number 5, said attitudes about

child abuse had changed, but she did not indicate why or how they had changed.

Burr, Juror Number 7, said that communication in society has made people more

aware of what is done behind closed doors.

In contrast, the record reflects that Collins was the only juror to agree with the

statement of appellant's attorney that "if we disciplined our children the way our

parents disciplined us . . . we would be in prison today." Striking a juror for a

perceived bias against an aspect of the challenger's case is a legitimate, nonracial

reason for exercising a strike. Johnson v. State , 68 S.W.3d 644, 649-50 (Tex. Crim.

App. 2002). The trial court was entitled to believe that the State did not strike Collins

on account of her race. Because the record supports the prosecutor's statement that

Collins was the only juror to agree with appellant's counsel's beliefs about discipline,

we cannot conclude that the trial court clearly erred in denying appellant's Batson

challenge with respect to Collins or that Collins was treated disparately.

2. Veniremember Dorsey

Dorsey was a 35-year-old African American male employed as an operator for

Texas Instruments. The prosecutor testified that she felt Dorsey was too enthusiastic

and represented that he was saying "Amen" when the panel was asked about the

rights that a criminal defendant is guaranteed under the law. She informed the trial

court that she felt that Dorsey "may go overboard in terms of holding the State to a

higher burden." When explaining her reasons for striking Dorsey, the prosecutor

stated that during appellant's voir dire, Dorsey repeatedly attempted to get the

attention of appellant's counsel, "leading me to believe that he had more to say when

she--in regards to that type of stuff. It was not just based on his color."

During the Batson hearing with regard to Dorsey, appellant's counsel offered

the following in response:

Appellant's Counsel: He said nothing. Believing in [the] presumption

of innocence is not ground[s] for being struck. That means that he

can't--he couldn't follow the law, but he agreed that he believed in the

presumption of innocence. I don't think anything was verbally said

about that, holding the State to a higher burden. In fact, he agreed with

the principles of law being discussed by the Court. He was not alone.

On appeal, appellant further disputes the prosecution's account of Dorsey's

demeanor, arguing that there is no indication in the reporter's record that Dorsey said

"Amen" or was attempting to get the attention of appellant's counsel. If a

peremptory strike is based on a veniremember's nonverbal conduct, the striking party

must describe that conduct in order to avoid an inference of discrimination. Price v.

Short , 931 S.W.2d 677, 682 (Tex. App.--Dallas 1996, no pet.). Similarly, if

counsel's strike relied upon some sort of nonverbal response not reflected in the

written record, such as head nodding, facial expression, or arm crossing, the law

requires counsel to describe specifically the behavior on which he or she relied. Hill

v. State , 827 S.W.2d 860, 870 (Tex. Crim. App. 1992).

Appellant is correct that the record on appeal shows no verbal statements by

Dorsey. However, d uring the Batson hearing, the State adequately described

nonverbal conduct that led the prosecutor to believe that Dorsey might be biased

against the State. Specifically, Dorsey was repeatedly trying to get the attention of

appellant's counsel, appellant's counsel would not call on Dorsey when he tried to

get her attention, and Dorsey was overzealous in his agreement with concepts like the

presumption of innocence.

Additionally, during the Batson hearing, appellant's counsel failed to directly

refute the prosecutor's statements that Dorsey repeatedly used nonverbal conduct to

try to get the attention of the appellant's attorney and was overzealous in his

acknowledgment of certain principles. The trial court was in the best position to

determine whether the statements of the prosecutor as to Dorsey's demeanor and

actions were true, and we must defer to the trial court's assessment of the prosecutor's

characterization of the nonverbal conduct by Dorsey. See Yarborough v. State , 947

S.W.2d 892, 895 (Tex. Crim. App. 1997); Davis , 187 S.W.3d at 583 (holding that

trial attorney's statement about occurrence in courtroom, which was made for

purposes of record, recorded by court reporter, undisputed by opposing counsel, and

unquestioned and unqualified by trial court, in whose presence statement was made,

established occurrence for purposes of appellate record.); see also White v. State , 982

S.W.2d 642, 645-46 (Tex. App.--Texarkana 1998, pet. ref'd) (concluding unsworn

statements of counsel may be offered to explain why peremptory challenges were

exercised). In accordance with the requirement that we view the record in a light

most favorable to the trial court's ruling, we cannot conclude from the cold record

here that the trial court clearly erred by implicitly concluding that the explanation

offered by the State was race-neutral.

Appellant also contends that the prosecutor's statement that the strike of

Dorsey "was not just based on his color" constitutes an admission that the peremptory

challenge was executed, at least in part, because of his race. The Court of Criminal

Appeals was confronted with a similar situation in Tompkins v. State , 774 S.W.2d

195, 205 (Tex. Crim. App. 1987), aff'd , 490 U.S. 754 , 109 S. Ct. 2180 (1989). There,

the trial prosecutor stated that he had exercised a peremptory challenge against a

prospective juror because he had been an employee of the United States Postal

Service, not "simply" because he was black. Id. at 205. In light of the prosecutor's

explanation, the Court found that the prosecutor's peremptory challenge was based

on the "sole reason" that the veniremember was a postal worker and that such

explanation was race-neutral. Id.

Though we cannot say the that trial court clearly erred in believing the

prosecutor's proferred explanation with respect to veniremember Dorsey, as we

discuss further with respect to veniremember Harris, infra , the statement is

troublesome. (5) The statement, "It was not just based on his color," affirmatively

indicates that the prosecutor was operating under the misconception that striking a

juror because of his skin color was not intentional discrimination, as long as another

reason existed.

3. Veniremember Moore

Moore was a 21-year-old African-American male employed as a laborer. The

following exchange arose during a discussion of expert witnesses for the defense:

Appellant's Counsel: . . . But, for example, I guess what I'm trying to

say is sometimes people think that, you know, if the Defense puts on, for

example, experts, expert testimony, they might hear evidence that that

person has been paid for the work that they have done on the case, paid

to testify. And people just--some people might say, well, I'm not going

to believe anybody for that reason, who was paid by the other side to

come and testify.

What do you--let's see. Juror No. 17, Mr. Moore, what do you

think about that? Are we right to kind of be afraid that people might

feel that way?

Veniremember Moore: No.

Appellant's Counsel: I'm sorry?

Veniremember Moore: No.

Appellant's Counsel: And why do you think that is? I'm sorry. Why

do you think we shouldn't be afraid?

Trial Court: You have to answer, Mr. Moore.

Veniremember Moore: I said "No."

Trial Court: She's asking you an additional question. Answer her

question, please.

Appellant's Counsel: Can you tell us why we shouldn't worry about

whether people are going to, you know, not listen to our witnesses.

Veniremember Moore: I don't know?

The prosecutor testified that Moore was falling asleep during voir dire and did

not seem to understand the questions asked by appellant's attorney. A trial prosecutor

may exercise a peremptory challenge against a prospective juror because that

veniremember was sleeping during voir dire. See Lamons v. State , 938 S.W.2d 774,

778 (Tex. App.--Houston [14th Dist.] pet. ref'd) (holding that prospective juror's

sleeping during portions of voir dire was alone sufficient to justify peremptory

challenge); Irvine v. State , 857 S.W.2d 920, 926 ; Tiede v. State , 104 S.W.3d 552,

559-60 (Tex. App.-- Tyler 2000), vacated on other grounds , 76 S.W.3d 13 (Tex.

Crim. App. 2002).

The trial court was in the best position to determine whether the prosecutor

correctly characterized the juror's conduct in court as inattentive. Further, appellant's

counsel did not dispute the trial prosecutor's suggestion that the prospective juror was

sleeping. We must, therefore, view the record in a light most favorable to the trial

court's ruling and conclude that the occurrence is established for the purposes of the

appellate record. Yarborough , 947 S.W.2d at 895 ; Davis , 187 S.W.3d at 583; White ,

982 S.W.2d at 645-46 .

Appellant's counsel responded to the State's proffered reason for striking

Moore, asserting that several of the prospective jurors did not answer her questions.

The record shows, however, that Moore was the only juror whose inattentiveness

rose to the level that he was twice admonished by the trial court. The trial court told

Moore to answer the question and then later told him to "Answer her question,

please." We conclude that the prosecutor's exercise of a peremptory challenge

against Moore on the grounds that he did not seem to understand the questions asked

by appellant's counsel is a race-neutral reason to strike Moore. Chiles v. State , 57

S.W. 3d 512, 516-18 (Tex. App.--Waco 2001, pet. dism'd) (concluding that

venireperson's inability to understand legal principles is race-neutral justification for

striking venireperson); Williams v. State, 939 S.W.2d 703, 706-07 (Tex.

App.--Eastland 1997, no pet.) (holding that prosecutor established race-neutral

reason for strike when juror had difficulty understanding "beyond a reasonable

doubt" standard); C.E.J. v. State , 788 S.W.2d 849, 857 (Tex. App.--Dallas 1990,

writ denied) (stating that venireperson's inattentiveness may be sufficiently race-neutral reason to justify use of peremptory strike).

Examining the record in the light most favorable to the trial court's ruling, we

conclude that the trial court's decision on appellant's Batson challenge of Moore was

not clearly erroneous.

4. Veniremember Johnson

Johnson was a 25-year-old African-American male employed as a vendor at

Aramark. The prosecutor testified that Johnson was struck because he "had a DWI

in Galveston County . . . He didn't tell us about it . . . we asked him about it and he

lied." Appellant's attorney responded that "several" other prospective jurors had

admitted to having driving-while-intoxicated arrests or convictions, but that

peremptory challenges had not been exercised against them.

The failure of a prospective juror to fully disclose his criminal record or

background is a race-neutral reason for the exercise of a peremptory challenge. See

Shuffield , 189 S.W.3d at 785 (holding explanation that trial prosecutor was not sure

that prospective juror was being completely honest about his criminal background to

be race-neutral); Johnson , 68 S.W.3d at 648 (holding peremptory challenge race-neutral when prospective juror failed to disclose prior arrest for driving while license

suspended); Ealoms v. State , 983 S.W.2d 853, 856 (Tex. App.--Waco 1998, pet.

ref'd.) (upholding trial prosecutor's exercise of peremptory challenge in part because

prospective juror did not reveal arrest record in response to questions asked by

prosecutor); Yarborough , 983 S.W.2d at 354-55 (upholding trial prosecutor's exercise

of peremptory challenge after prospective juror stated on juror information card that

he had not been arrested or charged with criminal offense, trial prosecutor exercised

peremptory challenge against prospective juror because he had not been completely

honest regarding his prior criminal history, and trial prosecutor had run criminal

history on each venire member and had discovered that particular prospective juror

had been arrested in 1974 for unlawfully carrying prohibited weapon).

The record reflects that only Delagarza responded to the trial court's voir-dire

inquiry into whether any of the potential jurors had been the accused in a criminal

matter. Delagarza said he was convicted of driving-while-intoxicated (DWI), but

Johnson did not offer a response. The jury questionnaires also asked the jurors to

state whether they were a complainant, witness or accused in a criminal matter.

Johnson checked "no" on his questionnaire in response to the question, while

Delagarza checked "yes." Thus, the record shows that in contrast to Delagarza, who

was forthcoming about his criminal record, Johnson was not.

We hold the trial court did not err in implicitly finding the State provided

racially neutral explanations for its peremptory strike of Johnson. See Shuffield , 189

S.W.3d at 785; Johnson , 68 S.W.3d at 648 ; Ealoms , 983 S.W.2d at 856 ; Yarborough ,

983 S.W.2d at 354-55 . (6) In the absence of a showing of purposeful discrimination on

the part of appellant, we cannot say that the trial court impermissibly overruled

appellant's Batson challenge.

5. Venire Member Cooper

Cooper was a 51-year-old African-American female employed as a postal

service clerk. The prosecutor testified that she struck Cooper because, in her view,

postal workers do not make good jurors. Appellant responds that there is "no

rationale behind a State policy of striking all postal workers from all juries."

Courts have previously held that when the State indicates that it challenged a

prospective juror based on that person's type of employment and that the State has

had poor success with that type of worker, the reason is a race-neutral explanation for

exercising the peremptory challenge. Middleton v. State , 187 S.W.3d 134, 142 (Tex.

App.--Texarkana 2006, no pet.) (citing Tompkins v. State , 774 S.W.2d 195, 205

(Tex. Crim. App. 1987)); Barnes v. State , 855 S.W.2d 173, 174 (Tex. App.--Houston

[14th Dist.] 1993, pet. ref'd). (7)

In Middleton , the trial prosecutor exercised peremptory challenges against two

African-American prospective jurors because they were employed by the University

of Texas, noting that he had always challenged persons employed by the University

of Texas because "they are very anti-prosecution . . . they tend to want to forgive

people from any kind of criminal activity . . . they are weak on finding people guilty,

and even if they find them guilty, they tend to be very liberal on the issue of

punishment." See Middleton , 187 S.W.3d at 142 . The Middleton court found the

prosecutor's race-neutral explanation for striking the two jurors was sufficient

because there were no other university employees on the panel that the State did not

strike. Id. at 142 .

Here, too, Cooper was the only veniremember employed by the United States

Postal Service. Therefore, we cannot conclude that the trial court clearly erred in

accepting the State's race-neutral explanation with respect to the strike of Cooper, or

that Cooper was treated disparately from other panel members.

6. Veniremember Ards

Ards was a 51-year-old African-American male who listed his occupation as

"security" on the jury questionnaire. During questioning by appellant's counsel, Ards

stated: "Just for the record, I'm retired TDC [Texas Department of Corrections]. I

don't think it would affect my judgment or anything, but just so you know."

According to the prosecutor, she struck Ards because "my experience with persons

who have worked in TDC, they see a lot more than--a lot of the cases that we may

bring to the table may be [sic] more serious, may be [sic] don't think as serious. For

that reason I struck him."

Neither counsel questioned Ards about the nature of his work with the TDC.

During the Batson hearing, appellant countered the strike by noting that there are no

more serious cases than capital murder cases, and that it was ludicrous "for the State

to argue that someone from law enforcement is suddenly unacceptable to them

because of his job in law enforcement." On appeal, appellant urges that "to find a

prison employee unacceptable as a juror, purely because of his job, ought to be

sufficient to establish the pretextual nature of [the prosecutor's] reasoning."

As we note above, a race-neutral explanation for exercising a peremptory

challenge is the State's claim that it has had poor success with that type of worker.

See Middleton , 187 S.W.3d at 142 ; Barnes , 855 S.W.2d at 174 . Here, the State

represented that a TDC prison guard may view the instant case involving a child less

seriously than other cases because of his association with the most serious offenders.

The State did not assert that it has had poor success with corrections workers

generally or with other law enforcement jurors in the past, which diminishes the

genuineness of the State's explanation. But, without more, we cannot say that the

trial court clearly abused its discretion in accepting the prosecutor's proffered reason.

See Middleton , 187 S.W.3d at 142 ; Barnes , 855 S.W.2d at 174 .

Appellant further contends that the prosecutor's race-neutral explanation for

the strike was pretextual because she did not strike other members of law enforcement

who were also members of the venire. Appellant accurately represents that the record

shows that two prospective jurors employed in law enforcement were not struck by

the State. These two jurors, however, were not similarly situated to Ards.

Baines, the first of these prospective jurors, was an African-American parole

officer. Baines did not serve on the jury because appellant struck him. Appellant's

counsel told the trial court that she struck Baines because he said he would lean in

favor of the State. The record shows that Baines responded during questioning by

appellant's counsel, that he would "maybe" be on the side of the State. Thus,

although Baines, like Ards, was in law enforcement, Baines said he was leaning in

favor of the State, a fact that distinguishes Ards.

The second law enforcement officer, Aldrich, was a peace officer with the City

of Baytown. During voir dire questioning by the prosecutor, Aldrich said he could

be fair and not give other officers extra credit when they testify. The State did not use

a peremptory strike on Aldrich. The record plainly shows, however, that, even

including alternates, the jury of twelve plus an alternate that would be chosen from

the panel of prospective jurors ended no higher than juror number 40. Aldrich was

juror number 47, and therefore out of the strike zone. The State would have no

reason to exercise a peremptory strike on a juror that could not possibly be seated on

the jury.

For these reasons, we cannot conclude that the trial court clearly erred in

concluding that appellant did not meet his burden of persuasion in proving purposeful

discrimination with respect to the strike of veniremember Ards.

7. Veniremember Harris

Harris was a 45-year-old African-American female who marked on her jury

questionnaire that she was employed as a paraeducator. During the course of the

hearing on appellant's Batson objection, the following colloquy occurred:

State: Number 16. She's one of the few females on the panel that

didn't have any children. There was one other female that didn't have

any children. I struck her, No. 25. They spoke about kids in her

classroom that she had dealt with. Number 16, she's older, doesn't have

any children. We had some general questions about her questionnaire

where she put question marks on several areas.

Appellant's Counsel: I didn't see any question marks.

State: Have you ever served on a civil or criminal jury.

. . .

Appellant's Counsel: I would like to have the juror information cards

submitted into evidence or into the record to show that there were many,

many Caucasians and Hispanic people that did not answer questions like

this woman answered those questions. It's not unusual for

somebody--again, we heard from several Caucasian members of the

panel who couldn't even articulate what kind of case they sat on, what

happened, what building they were in, or what the case was about.

Juror No. 6, I believe, Mr. Vogel-

State: We struck him too, Judge.

Appellant's Counsel: But as far as the questionnaire--and I'd further

like to submit that it appears that 18 percent of the panel is African-American and the State has used 70 percent of their strikes against

African-Americans.

Thus, the State gave its reasons for striking Harris as follows:

1. She placed question marks on her juror information card;

2. She had no children;

3. She was female; (8)

4. She was "older."

Examining the record, we address whether the trial court clearly erred in

implicitly concluding that the State's strike of Harris was not impermissibly

motivated by race . We begin by conducting a comparative analysis of the panelists

struck by the State with those panelists not struck by the State to test the State's

assertions of the race-neutral reasons for exercising those strikes.

a. Comparative Analysis

i. Questionmarks on the Juror Information Card

One of the State's race-neutral reasons for striking Harris was that she did not

completely fill out the questionnaire that each juror was given. A prospective juror's

failure to complete his or her juror information card has been held a legitimate basis

for a peremptory challenge. See, e.g., Ester v. State , 151 S.W.3d 660, 662 (Tex.

App.--Waco 2004, no pet.) (failing to answer several questions on juror information

card, and slowness in acknowledging trial attorney, even when being addressed

directly); Newsome v. State , 829 S.W.2d 260, 265 (Tex. App.--Dallas 1992, no pet.)

(prospective juror's carelessness or error in completing juror information card is race-neutral reason for exercising peremptory challenge). (9) The questionnaire given to

each member of the venire asked, "Have you ever served on a civil jury?", and "Have

you ever served on a criminal jury?" Harris answered both questions "No" but placed

small question marks next to her "No" answers.

During the Batson hearing, appellant contended that the State's reliance on the

questionnaire was a pretext for discrimination because the State did not strike other

members of the venire who did not completely fill out the requested data about prior

jury service. Appellant is correct that other members of the venire did not completely

answer every question posed by the questionnaire. Specifically, the record shows that

two venire members did not respond fully to the questions concerning jury service,

and left them blank. The first veniremember, Moore, was an African-American

struck by the State for the reasons previously detailed in this opinion. (10) The second

veniremember, Sabins, was a 50-year-old Anglo man who ultimately served on the

jury.

We find no meaningful difference between a prospective juror's failure to

answer the questions regarding prior jury service and the presence of question marks

next to answers to those same questions. Thus, the record affirmatively demonstrates

that the State did not strike all the jurors who did not accurately or completely fill out

the information about kinds of jury service. Moreover, the State did not ask Harris

any questions about her answers to the jury service questions. For this reason, and

others that will be discussed infra , our comparative analysis brings the genuineness

of the State's proffered race-neutral reason into question.

ii. "Older" Female with No Children

Another reason proffered by the State for the strike of Harris was that Harris

was an "older" female with no children. During jury selection, the prosecutor had

explained that she wanted jurors with children because they were familiar with the

difficulties in dealing with children.

Consistent with her trial strategy, the prosecutor represented to the trial court

that in addition to Harris, she also struck prospective juror number 25, Maria

Martinez, because she was also a female who had no children. The status of not

having children has been held a race-neutral explanation for the exercise of a

peremptory challenge. Cantu v. State , 842 S.W.2d 667 (Tex. Crim. App. 1992); Roy

v. State , 891 S.W.2d 315 (Tex. App.--Fort Worth 1994, no pet.).

As appellant notes, however, the State did not strike Martinez. Appellant,

rather than the State, struck Martinez. (11) Unlike Harris, Martinez filled out her juror

questionnaire completely, but the only difference between Martinez and Harris was

a difference in age. At the time of the Batson hearing, Martinez was 28 years old and

Harris was 45 years old. Both Martinez and Harris worked in education, Martinez as

a teacher, and Harris as a paraeducator, or teacher's aide. Both indicated that they

had completed four years of college. Both indicated they had no children. More

importantly, the State treated Harris and Martinez as similarly situated--in striking

Harris, the State represented that it had also struck Martinez (though it had not.)

Thus, the record affirmatively indicates that the State struck Harris, an African-American, for being a 45 year-old-female with no children, but did not strike

Martinez, a non-African-American 28 year-old-female with no children and strikingly

similar characteristics. (12) Moreover, at the Batson hearing, the State represented to the

trial court that it had struck Martinez when in fact it had not. This disparity brings the

genuineness of the State's proffered race-neutral reason into question.

b. Pattern of Strikes

As explained by the Court of Criminal Appeals:

[T]he bare fact of strikes exercised against persons of a certain race does

not necessarily reveal the work of a racially prejudiced mind. What may

be revealing, however, is a repetition of such strikes in suspiciously

large numbers- numbers larger than one would expect if race had

nothing to do with it. Establishing a prima facie case in this way, based

only on the relative number of peremptory challenges against members

of an identifiable race, is not impossible. Judges at all levels must

frankly assess the legitimate inferences to be drawn from statistical

evidence made available to them before making up their minds.

Sometimes such evidence will be telling.

Linscomb v. State , 829 S.W.2d 164, 166 (Tex. Crim. App. 1992).

In Miller-El v. Dretke , 545 U.S. 231 , 125 S. Ct. 2317 (2005), upon which

appellant relies, the prosecution exercised ten peremptory challenges to exclude 91%

of the African Americans who were potential members of the jury. Miller-El , 545

U.S. at 240-41 , 125 S. Ct. at 2325 . Appellant notes that in Miller-El , the State

peremptorily challenged 12% of the qualified non-African American panel members,

but eliminated 91% of the African-American ones. Id . at 266, 125 S. Ct. at 2340 . The

Miller-El Court concluded that these statistics, along with other factors including

side-by-side comparisons of veniremembers who were struck with those who were

not, indicated the State's proferred reasons for its strikes were a pretext for purposeful

discrimination. See Miller-El v. Dretke , 545 U.S. 231, 240-41, 253-55, 264-66 , 125

S.Ct. 2317, 2325-26, 2332-33, 2338-40 (2005).

Similarly, in Thomas , this Court found purposeful discrimination when

statistics showed that the State used its ten peremptory strikes to exclude six of the

seven of the African-Americans on the panel of 38 eligible jurors, or 86% percent.

Comparative analysis in that case showed that the State's reason for exercising a

peremptory strike against an African-American juror whose friend was victimized by

crime, was equally on point with several non-African American jurors who had

themselves been affected by crime. Thomas , 209 S.W.3d at 274 .

We follow the directive of Miller-El and Thomas in considering whether the

State's proffered reason for a strike was a pretext for purposeful discrimination by

examining, in addition to our comparative analysis above, whether statistics show a

disproportionate use of peremptory strikes to exclude African-Americans from the

venire.

As appellant notes, the State used its ten peremptory strikes to exclude seven

of the nine African-Americans on the panel of eligible jurors, or 78% of the African-Americans eligible to serve on the jury. These statistics, like those in Miller-El , show

a disproportionate use of peremptory strikes (70%) to exclude most of the African-Americans from the venire.

c. Questioning of Veniremember Harris

Additionally, the State failed to question Harris meaningfully. The only

questions directed to Harris during voir dire were by appellant's counsel:

Appellant's Counsel: If you were to be a juror hearing evidence about

what we've heard this case is about, an intentional killing of a child,

what sort of things, you know, do you think the jury should be looking

for in that kind of case?

Veniremember Harris: What's presented- the facts that are presented.

Appellant's Counsel: And do you have any thoughts about what kind

of evidence you would expect to hear maybe?

Veniremember Harris: I would be open-minded.

The State did not direct any questions to Harris. When the party striking has

offered an explanation for exercising the strike, and further questioning of the

panelist might have yielded more information, but little or no questioning of that

panelist ensued, the record suggests that the striking party's explanation is fictitious.

See Emerson v. State , 851 S.W.2d 269, 274 (Tex. Crim. App. 1993) (holding

explanation that panelist struck because panelist was college teacher or student and

therefore presumed to be liberal was not persuasive in light of failure to ask any

questions of panelist.) See also Whitsey v. State , 796 S.W.2d 707 , 716 (Tex. Crim.

App. 1989) (rejecting genuiness of strike when State contended it struck a teacher

because of belief that teachers are liberal, but State failed to ask any questions

regarding political or social outlook); Hill v. State , 827 S.W.2d 860, 869 (Tex. Crim.

App. 1992) (rejecting State's race-neutral reason for strike when questioning of

African American veniremember was perfunctory). Thus, the prosecutor's failure to

ask further questions of Harris regarding her experience with children operates in

favor of the conclusion that the prosecutor's proffered reason for the strike was not

genuine.

d. The Genuineness of the State's Proffered Reasons

In assaying the record for clear error on a claim of a Batson violation, the

reviewing court should consider the entire record of voir dire. Watkins v. State , 245

S.W.3d 444, 448 (Tex. Crim. App. 2008). The Supreme Court recently reaffirmed

this principle in Snyder v. Louisiana. 552 U.S. ___ , 128 S. Ct. 1203 (2008). (13) The

Court emphasized that, in considering a Batson objection, or in reviewing a ruling

claimed to be Batson error, all of the circumstances that bear upon the issue of racial

animosity must be consulted. Id . at 1280 (citing Miller-El , 545 U.S. at 239 , 125 S.Ct.

at 2324 .) As an example, the Court noted that a reviewing court may be called upon

to consider the strike of one veniremember for the bearing it might have on another

veniremember. Id .

In the instant case, other evidence in the record points to purposeful

discrimination. As noted previously with respect to veniremember Dorsey, the

prosecutor stated that her strike "was not just based on his skin color." (14) This remark

indicates that the prosecutor did not eliminate skin color from her consideration in

exercising strikes in this case, as our laws and Constitution require, but rather

believed that skin color could be a consideration as long as other reasons presented

themselves. Equally significant is the trial prosecutor's misrepresentation to the trial

court that she had struck Martinez, whom she advanced to the trial court as a juror

similarly situated to Harris, when in fact she had not struck Martinez.

In its defense of its strike of Harris, the State responds that appellant cannot

point to other prospective jurors who both did not have any children and also did not

completely or accurately fill out their juror information cards. In responding to the

Batson challenge in the trial court, however, the prosecutor advanced Martinez as a

similarly situated juror in defending the strike of Harris. The record does not support

a conclusion that striking Harris was race-neutral, and the statement about not striking

Martinez was simply a mistake. See Miller-El, 545 U.S. at 252 , 125 S.Ct. at 2331 . ("If

the stated reason does not hold up, its pretextual significance does not fade because

a trial judge, or an appeals court, can imagine a reason that might not have been

shown up as false."). The prosecutor asked no questions of Harris in voir dire, and

nothing in the record indicates that she, a teacher's aide with four years of college,

would be unacceptable as a juror, when Martinez, a teacher who also had no children,

was acceptable. The prosecutor's representation to the trial court that she also had

struck Martinez when, in fact, she had not, was inaccurate. This misstatement

presented the trial court with a flawed basis on which to evaluate the race-neutral

reasons presented.

Applying the range of factors set forth in Miller-El and Thomas , comparative

analysis, the statistical pattern of strikes, the questioning patter of the prosecutor, the

error in presenting Martinez to the trial court as a similar juror whom the State had

struck when in fact it had not, and the prosecutor's comment on the record, we hold

that appellant has met his burden to establish a Batson violation with respect to juror

Harris. Snyder , 552 U.S. at ___ , 128 S. Ct. at 1280 ; Miller-El , 545 U.S. at 239 , 125

S.Ct. at 2324 .

We sustain appellant's Batson point of error and therefore do not reach the

remaining issues challenged in the appeal.

V. Conclusion

We reverse the judgment of the trial court and remand the cause.

Sherry Radack,

Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Publish. See Tex. R. App. P. 47.2 (b) .

1.

Batson v. Kentucky , 476 U.S. 79, 86 , 106 S. Ct. 1712, 1717 (1986) .

2.

In addition to the oral motion, appellant's attorney lodged a written Batson objection

at trial.

3. Both the State and appellant struck juror number 3. The twelveth juror to be seated

was juror number 32. The trial court gave the State and appellant an additional strike

for the selection of an alternate juror. Taking into account the selection of an alternate

juror, the panel of prospective jurors ended at juror number 40. The alternate juror,

juror number 38, who was seated, did not serve on the jury. Appellant's Batson

challenge does not complain of error with respect to the use of strikes in the selection

of the alternate juror.

4.

See also discussion infra Part II(C)(7).

5.

See discussion infra Part II(C)(7).

6.

The trial prosecutor also noted that Johnson appeared to agree with appellant's

counsel during her questioning about a police scandal concerning overtime pay.

Appellant's counsel responded that approximately 20 prospective jurors had

acknowledged hearing about the reported scandal, but that no prospective juror stated

that he or she had already decided guilt on the particular issue in that situation.

Appellant's counsel did not dispute that Johnson agreed with her on that subject.

7.

See also Brown v. State , 56 S.W.3d 915, 918 (Tex. App.-- Houston [14th Dist.] 2001,

no pet.) (exercising peremptory challenge based upon type of employment held by

prospective juror and prosecutor's poor success with that type of worker is race-neutral explanation for exercising peremptory strike); Prosper v. State , 788 S.W.2d

625, 627 (Tex. App.-- Houston [14th Dist.] 1990, pet. ref'd) (refusing to find error

where trial prosecutor exercised peremptory challenge against prospective juror

because he was prison guard, and prosecutor was unsure that prison guard could

assess life sentence).

8.

One of the reasons the State expressed for the strike appears to be

impermissible--that prospective juror Harris was female. See Guzman v. State , 85

S.W.3d 242 (Tex. Crim. App. 2002). Although she objected to the State's strike of

Harris "under the cases of Swain and Batson , " appellant's attorney failed to lodge an

explicit Batson objection based on gender and has not briefed the issue.

Consequently, we will not consider this point on appeal. See Purkett , 514 U.S. at 768 ,

115 S. Ct. at 1771 (stressing that, in Batson challenge, the ultimate burden of

persuasion regarding impermissible motivation rests with, and never shifts from, the

opponent of the strike); cf. Ford v. State , 1 S.W.3d 691 (Tex. Crim. App. 1999)

(holding appellant met his burden of production regarding Batson challenge at trial,

but failed to meet his burden of persuasion at trial).

9.

S ee also Ealoms v. State , 983 S.W.2d 853, 856 (Tex. App.--Waco 1998, pet. ref'd)

( citing Satterwhite v. State , 858 S.W.2d 412, 423 (Tex. Crim. App. 1993));

Yarborough v. State , 983 S.W.2d 352, 355-56 (Tex. App.-- Fort Worth 1998, no

pet.); Jones v. State , 845 S.W.2d 419, 421 (Tex. App.--Houston [1st Dist.] 1992, pet.

ref'd).

10.

See discussion supra Part II(C)(3).

11.

In its brief, the State explains that the trial prosecutor simply made a mistake in

referring to juror number 25 and must actually have been referring to a strike made

against venire member Johnson, who also had no children. However, our review of

the record reveals that Johnson is the African-American male that the State struck for

the reasons articulated in Part IIC(4) supra . Accordingly, we are not persuaded by the

State's explanation concerning the trial prosecutor's mistake.

12.

We also note that the State failed to strike a non-African-American 25-year-old man

with no children.

13.

In that case, the Supreme Court reversed the petitioner's conviction, reasoning that

the prosecutor's explanation for striking a college senior attempting to fulfill his

student-teaching obligation insufficient by itself and sufficing for a Batson error

determination. See Snyder , 552 U.S. at ___ , 128 S.Ct. at 1212 .

14.

See discussion supra Part II(C)(2) .