The opinion
O’CONNOR, Justice,
dissenting.
I dissent.
In point of error two, the appellant contends that the trial court erred when it failed to quash the jury panel because the State peremptorily struck two black and one Hispanic members of the venire in violation of U.S. Const. amends. V and XIV, Tex. Const. art. I, sec. 19, and Tex.Code CRIm.P.Ann. art. 35.261 (Vernon 1989). Powers v. Ohio, — U.S. -, 111 S.Ct. 1364 , 113 L.Ed.2d 411 (1991); Batson v. *817 Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986); State v. Oliver, 808 S.W.2d 492 (Tex.Crim.App.1991).
Because the State’s overall conduct in jury selection is relevant in proving discrimination, we must review the voir dire for each minority juror who was struck by the State and the State’s explanation for each. Whitsey v. State, 796 S.W.2d 707, 727 (Tex.Crim.App.1989). When we review the prosecutor’s explanation, we cannot merely accept the reasons given by the prosecutor at face value. Keeton v. State, 749 S.W.2d 861, 869-70 (Tex.Crim.App.1988). We must consider whether the facially-neutral explanations are contrived to avoid admitting discrimination. Id. at 868 . Keeton identified two factors that weigh heavily against the legitimacy of a racially-neutral explanation: no examination or only a perfunctory examination of the juror, and a reason given for the challenge that is unrelated to the facts of the case. Id. at 866 .
The appellant is white. Three of the four minority members of the venire were struck by the State. One Hispanic served on the jury. The trial court took judicial notice that 43 out of the 47 members of the venire were white. The prosecutor did not ask any of the three persons he struck any specific questions.
At the Batson hearing, the defense counsel called the prosecutor to testify. When asked to explain his strikes, the prosecutor referred to his notes, which were later introduced as an exhibit. Here is a summary of the information about the three prospective jurors, the prosecutor’s reasons for striking them, and the reasons I would hold that the strikes were not race-neutral.
Brown, Number 3
Mr. Brown is an African-American male who is overweight. The prosecutor said he struck Mr. Brown because he was overweight and because he did not say anything during voir dire. The prosecutor explained his bias against overweight people:
I believe overweight individuals are people who for the most part have been — feel themselves to be victimized and to some extent can see themselves in the position of being accused like a defendant in a criminal case and I don’t want anybody who — who can be sympathetic.
And I must reiterate, this is not a primary method of jury selection but after I have selected out — or struck out the main people for various reasons, then I come down to having to use generalizations in order to make my strikes. Race is not one of those generalizations.
The prosecutor’s notes show that he marked five members of the venire as “overweight.” Defense counsel pointed out that the prosecutor did not strike two white members of the venire that were marked “overweight.” 1 The prosecutor explained that he did not strike the white juror number 12, who was overweight, because she said she did not believe alcoholism was a disease, and the prosecutor expected the appellant to assert a temporary insanity defense based on intoxication. The prosecutor did not explain why he did not strike another white and overweight juror, number 37.
In Hill v. State, 787 S.W.2d 74, 78-79 (Tex.App. — Dallas 1990), aff'd, 827 S.W.2d 860 (Tex.Crim.App.1992), the prosecutor said he struck a juror because the prosecutor thought the juror would identify with the defendant and he did not like the way the juror responded to questions. The only questions the prosecutor had asked the juror were where he worked and if he could be fair. The Dallas Court of Appeals held that the reasons given by the prosecutor for challenging the juror were based on assumptions of the prosecutor and were unrelated to evidence in the case. Thus, the court concluded the reason for the strike could not be considered race-neutral. Id.; see also Reich-Bacot v. State, 789 S.W.2d 401, 403 (Tex.App. — Dallas 1990) (the prosecutor’s explanation that the juror worked with people involved with criminal activities, when juror actually said she worked with people with disabilities, was *818 not supported by the evidence and thus was not a race-neutral explanation), pet. dism’d per curiam, 815 S.W.2d 582 (Tex.Crim.App.1991); Chivers v. State, 796 S.W.2d 539, 542 (Tex.App. — Dallas 1990, pet. ref'd) (the prosecutor’s unverified assumption that a juror who worked for DART did not indicate a sufficient level of intelligence, was not a race-neutral explanation); Lewis v. State, 779 S.W.2d 449, 455 (Tex.App. — Tyler 1989, pet. ref'd) (lack of meaningful examination of an African-American juror who said she knew one of the State’s witnesses from another case, did not rebut presumption of racial discrimination).
If a prosecutor makes an assumption about a juror, but does not question the juror to verify the assumption, it is some indication the strike was not race-neutral. Woods v. State, 801 S.W.2d 932, 936-37 (Tex.App. — Austin 1990, pet. ref’d) (the prosecutor said he struck the juror because he had a punk rock haircut that he associated with liberals, radicals, and the drug culture, but did not question juror to verify his assumption).
I would hold that, absent any questions to Mr. Brown to verify the prosecutor’s prejudice against overweight jurors, the State failed to prove the strike was race-neutral.
Higgins, Number 16
Mr. Higgins is an African-American male, with a slender build. The prosecutor said he struck Mr. Higgins because he was a longshoreman.
The prosecutor explained:
When they have certain professions such as a longshoreman, I use generalizations concerning their work environment. You have to form some basis on which to strike people who don’t have obvious biases that cannot be picked out.
Again, because the prosecutor did not question Mr. Higgins to verify his assumptions, I would hold that the State failed to prove the strike was race-neutral.
Mr. Carranza, Number 26
Mr. Carranza is a Hispanic male who is overweight. The prosecutor said he struck Mr. Carranza because he was overweight and he had a friend who had been charged with an offense. Thus, we must examine the record to determine if the two reasons were race-neutral.
The prosecutor asked the following questions of Mr. Carranza:
The State: Anybody on the second row know of anybody who has been charged with a serious offense?
Mr. Carranza: Yes, I had a friend, a family friend, the young sister, he had been convicted or something of a armed robbery or something like that.
The State: Did you know him very well?
Mr. Carranza: Growing up I knew him, but I haven’t seen him in five or ten years.
The State: Okay. Do you think he was treated fairly?
Mr. Carranza: From what I understand. The State: Okay. Is there anything about that that would affect you in this case here?
Mr. Carranza: No.
There were two members of the venire who said they knew someone who was charged with a crime but who the prosecutor did not strike. Stefka, juror number 31, said he knew a man charged with capital murder. The prosecutor’s individual questions to Mr. Stefka were as follows:
Mr. Stefka: I know of somebody that’s been charged with attempted capital murder.
The State: Do you know the person very-well?
Mr. Stefka: I know his dad real well_
It’s Tim Matheson.
The State: Do you know him?
Mr. Stefka: He lived around the comer from me; and my opinion, I think he’s been treated exceptionally well.
The State: Maybe even too well?
Mr. Stefka: Well, I can’t say that; but I know he’s been — you know, he hadn’t— *819 shouldn’t be any complaints about the way he’s been treated.
The State: Is there anything about that that would affect your judgment here? Mr. Stefka: No.
The other juror who knew someone involved in a crime and who the prosecutor did not strike was Ms. Lostak, juror number 45. She testified as follows:
The State: Who do you know?
Ms. Lostak: I know about the Mathe-sons.
The State: Do you know the person charged? Do you feel that he’s been treated fairly?
Ms. Lostak: I know no knowledge of how he’s been treated.
The State: Okay. Is there anything about that that — how closely do you know this individual?
Ms. Lostak: Socially, several years ago but nothing recent.
The State: Is there anything about that that would affect you in this case here?
Ms. Lostak: No.
I would hold that the State failed to prove the strike of Mr. Carranza was race-neutral. First, as to being overweight, the prosecutor did not question Mr. Carranza to verify his assumptions regarding overweight jurors. Second, as to knowing someone who had been charged with a crime, there was no discernible difference between the answers Mr. Carranza gave and those the other two jurors gave about knowing someone who had been charged with a crime.
I would sustain point of error two and reverse and remand for new trial.
. One of the individuals marked as "overweight” by the State was struck by the defense.