The opinion
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OPINION ON REHEARING
On rehearing, State Farm urges that our opinion in this ease conflicts with the U.S. Supreme Court’s recent case of Purkett v. Elem, 514 U.S. —, 115 S.Ct. 1769 , 131 L.Ed.2d 834 (1995). We do not believe that opinion changes the outcome of the appeal here, and we write on rehearing to explain why.
Purkett is a per curiam opinion involving strikes of two African-American venire-members from the jury in a criminal case. The prosecutor, upon examination at the Bat-son hearing, stated that he struck the two because they both had long, unkempt hair and goatees. Purkett , 514 U.S. at —, 115 S.Ct. at 1770 , 131 L.Ed.2d at 836 . The trial court overruled the Batson challenge, and the Court of Appeals for the Eighth Circuit reversed, finding that the prosecutor’s explanation was pretextual and that the trial court had “clearly erred” in concluding there had been no intentional discrimination. Purkett , 514 U.S. at —, 115 S.Ct. at 1770 , 131 L.Ed.2d at 836 . The U.S. Supreme Court reversed, finding that the Court of Appeals had misinterpreted its:
[A]dmonition in Batson that to rebut a prima facie case, the proponent of a strike ‘must give a ‘clear and reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the challenges’ [cites omitted] and that the reason must be ‘related to the particular case to be tried.’ Purkett , 514 U.S. at -, 115 S.Ct. at 1771 , 131 L.Ed.2d at 839 , quoting Batson, 476 U.S. at 98 n. 20, 106 S.Ct. at 1724 n. 20.
The Supreme Court explained that it meant by “legitimate reason” not a reason that made sense, but a reason that does not deny equal protection. 1 Id. It found that the Court of Appeals erred by holding that the explanation proffered at the second stage of a Batson proceeding must be not just neutral but also at least minimally persuasive and plausible. Id. It is only at the third stage of a Batson hearing, the Court explained, that the quality of an explanation may be examined. At the second stage, implausible or fantastic justifications, so long as they are race neutral, will suffice. Id.
We believe Purkett is distinguishable from the situation before us here. In Purkett , the prosecutor gave a specific, detailed description of the veniremembers’ appearance. The appellate courts had some basis for deciding whether the trial court properly or improperly allowed the prosecutor’s reason to stand, as the record reflected those facts upon which he relied. Here, the record shows no “response” of any kind, verbal or non-verbal, by veniremember Rubio. There is simply no evidence to support the trial court’s ruling on the Batson issue. Just as with any other evidentiary matter, a party must make sure the appellate court, by some method, has access to the evidence upon which that party relies. We hold, as do the majority of Texas courts, that if a strike relies upon non-verbal factors, those factors must be described specifically in the record. We do not see that the Purkett case changes this requirement.
State Farm’s motion for rehearing is overruled.
. Perhaps the Court of Appeals can be forgiven for misunderstanding this nuance.