Whitsey v. State

OPINION ON STATE’S MOTION FOR REHEARING

MILLER, Judge.

On original submission, in addressing appellant’s Batson 1 claim, we held the trial judge’s findings concerning the prosecutor’s explanations for his peremptory challenges were not supported by the record, and appellant established purposeful discrimination in the prosecutor’s jury selection process. Page 742. Consequently, we reversed the judgments of the court of appeals and the trial court and remanded this cause for a new trial. The State then filed this motion for rehearing. Tex.R. App.Proc. 230.

In its motion for rehearing, the State argues this Court applied the incorrect standard of review in this Batson case. The State urges us, in its motion, to adhere to the standard enunciated in Tompkins v. State, 774 S.W.2d 195 (Tex.Cr.App.1987), cert. granted 486 U.S. 1053 , 108 S.Ct. 2818 , 100 L.Ed.2d 919 (1988), judgment affirmed by equally divided court (O’Connor, J., not participating), 490 U.S. 754 , 109 S.Ct. 2180 , 104 L.Ed.2d 834 , that the appellate court must view the entire record in a manner favorable to the factfinder’s determination and reverse only if no rational trier of fact could have failed to find his factual allegation true by a preponderance of the evidence. 2 Tompkins, 774 S.W.2d at 202 . In its post submission brief, however, the State suggests three other standards of review which may be utilized in addressing a Batson claim, to wit: (1) the Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979), standard for reviewing sufficiency of the evidence, (2) the abuse of discretion standard utilized in reviewing *721 rulings on pretrial suppression motions, and (3) the “clearly erroneous” standard of review found in Fed.R.Civ.Proc. 52(a). 3 In his response to the State’s motion, appellant asserts this Court’s analysis is consistent with that of Batson and Anderson v. Bessemer City, 470 U.S. 564 , 105 S.Ct. 1504 , 84 L.Ed.2d 518 (1985), which appropriately employed the federal “clearly erroneous”- standard in reviewing the district court’s finding of sex discrimination in a Title YII case. 4

In this cause, on original submission, this Court utilized and applied the standard of review enunciated by- a unanimous court in Keeton v. State, 749 S.W.2d 861 (Tex.Cr.App.1988) (Opinion after Abatement). In Keeton , we stated:

In adopting our own standard for review, we reject Alabama’s ‘clearly erroneous’ standard, which is the federal standard for reviewing findings of fact. See Rule 52(a), Federal Rules of Civil Procedure. Nor do we adopt Indiana’s abuse of discretion standard. We believe that our focus, as well as that of the trial judge, should be on whether purposeful discrimination was established. We will of course consider the evidence in the light most favorable to the trial judge’s rulings and determine if those rulings are supported by the record. If the record supports the findings of the trial judge, they will not be disturbed on appeal.

Id. at 870 . In applying this standard of review to the record before us, this Court concluded the trial judge’s findings and conclusions were not supported by the record. While this Court explicitly rejected, without further elaboration, the nomenclature of “clearly erroneous” in Keeton , in this case we nevertheless adhered to the analytical processes of that standard of review, the core of which is the “supported by the record” analysis, as discussed infra. On original submission here we recognized that a finding of purposeful discrimination is a fact finding which entitles the trial judge’s findings to be accorded great deference by an appellate court. Further, in determining whether the trial court erred in overruling appellant’s Batson claim, we reviewed the evidence from the Batson hearing within the context of the case, in light of the entire record, and most importantly in the light most favorable to the trial judge’s findings. Believing this analysis is synonymous with the “clearly erroneous” standard’s analysis, we are not necessarily indisposed to granting the State’s motion for rehearing to the extent that we adopt the “clearly erroneous” standard from the Federal Rules of Civil Procedure as the standard of review for appellate courts in addressing Batson issues.

Although certainly not the first case to apply the clearly erroneous standard, Anderson v. Bessemer City, 470 U.S. 564 , 105 S.Ct. 1504 , 84 L.Ed.2d 518 clearly explicated this standard of review, from which we quote extensively:

Although the meaning of the phrase ‘clearly erroneous’ is not immediately apparent, certain general principles governing the exercise of the appellate court’s power to overturn findings of a district court may be derived from our cases. The foremost of these principles, as the Fourth Circuit itself recognized, is that “[a] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395 , 68 S.Ct. 525, 542 , 92 L.Ed. 746 (1948) *722 [emphasis supplied]. This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. ‘In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is riot to decide factual issues de novo.’ Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 , 89 S.Ct. 1562, 1576 , 23 L.Ed.2d 129 (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 842 , 70 S.Ct. 177, 179 , 94 L.Ed. 150 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 , 102 S.Ct. 2182 , 72 L.Ed.2d 606 (1982).

Anderson v. Bessemer City, 470 U.S. at 573-574 , 105 S.Ct. at 1511 . See also Amadeo v. Zant, 486 U.S. 214 , 108 S.Ct. 1771 , 100 L.Ed.2d 249 (1988). (clearly erroneous standard applied to district court’s fact findings in habeas corpus action). Recognizing that findings of fact often turn on credibility determinations, the Supreme Court further discussed the clearly erroneous standard, stating:

When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court’s findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said. See Wainwright v. Witt, 469 U.S. 412 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985). This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination. See, e.g. United States v. United States Gypsum Co., supra, 333 U.S., at 396 , 68 S.Ct., at 542 . But when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error, [emphasis supplied]. Cf. United States v. Aluminum Co. of America, 148 F.2d 416, 433 (CA2 1945); Orvis v. Higgins, supra, [ 180 F.2d 537, 539-540 (CA2 1950)].

Anderson v. Bessemer City, 470 U.S. at 575-576 , 105 S.Ct. at 1512 .

There are several reasons in favor of adopting the clearly erroneous standard, foremost of which is the similarity in analysis in that standard with our own analysis under the “supported by the record” standard. The phrase “supported by the record” is found in conjunction with the clearly erroneous standard in a substantial number of federal cases. Indeed, a “supported by the record” analysis is utilized in determining whether the trial court committed clear error in its fact findings in these cases. See e.g. Hazelwood School District v. Kuhlmeier, 484 U.S. 260 , 108 S.Ct. 562, 568 , 98 L.Ed.2d 592 (1988) (fact findings amply supported by the record, and not rejected by the court of appeals as clearly erroneous); H.A. Artists & Associates, Inc. v. Actor’s Equity Association, 451 U.S. 704, 717 , 101 S.Ct. 2102, 2110 , 68 L.Ed.2d 558 (1981) (court of appeals cor *723 rectly concludes trial court finding not clearly erroneous because amply supported by the record); City of Richmond, Virginia v. United States, 422 U.S. 358 , 95 S.Ct. 2296 , 45 L.Ed.2d 245 (1975) (dissenting opinion) (district court’s finding, far from being clearly erroneous, was amply supported by the record); Graver Tank & Mfg. Co., Inc. v. Linde Air Products Co., 339 U.S. 605, 612 , 70 S.Ct. 854, 858 , 94 L.Ed. 1097 (1950) (trial judge’s findings adequately supported by the record are not clearly erroneous); and Branti v. Finkel, 445 U.S. 507, 511 , 100 S.Ct. 1287, 1291 , 63 L.Ed.2d 574 (1980) (footnote 6) (since court of appeals found district court’s fact findings adequately supported by the record, Supreme Court will not review findings petitioner claims were clearly erroneous). See also United States v. United States Gypsum Co., 333 U.S. 364, 395 , 68 S.Ct. 525, 542 , 92 L.Ed. 746 (finding is “clearly erroneous” when although there is evidence to support it, reviewing court on the entire evidence is left with definite and firm conviction a mistake has been committed). In Amadeo v. Zant, 486 U.S. 214 , 108 S.Ct. 1771 , 100 L.Ed.2d 249 (1988) the issue confronting the Supreme Court was whether the court of appeals had erred in determining the district court’s findings upon which it based its conclusion that petitioner had shown cause for procedural default at trial were clearly erroneous. The Supreme Court reiterated the clearly erroneous standard of review relying predominantly on the explication of that standard in Anderson v. Bessemer City in addressing the issue. In reversing the court of appeals’ holding, the Supreme Court concluded there was “sufficient evidence in the record considered in its entirety to support the District Court’s factual findings”, and therefore the court of appeals erred in setting them aside. Amadeo v. Zant, 108 S.Ct. at 1780. In other words, if the findings of the trial judge are supported by the record, the findings are not then clearly erroneous.

After adopting “our own standard of review” of “supported by the record” in Keeton, 749 S.W.2d 861 , we applied the standard to facts of that case. In doing so, we reviewed the entire record 5 ; viz, the voir dire examinations of the prospective jurors who were peremptorily challenged as well as the evidence presented at the Batson hearing which consisted only of the prosecutor’s testimony as to why he peremptorily struck each venireperson. The defense counsel did not cross-examine the prosecutor or attempt to impeach the prosecutor through other evidence such as a comparison analysis of the peremptorily challenged white and black venirepersons. See Keeton, 749 S.W.2d at 879 (Teague, J., concurring). Given this record, we held the trial judge’s findings were supported by the record. 6 In adopting the clearly erroneous standard, we would be merely extending *724 the “supported by the record” standard to its ultimate and logical conclusion.

Additionally, the clearly erroneous standard enjoys an extensive history of use and hence provides the bench and bar with a well-established analysis for guidance when confronted with issues encompassing disputed factual findings. 7 Since it is the standard of review for factual findings in all federal cases, the clearly erroneous analysis has of course been applied in discrimination suits, in particular Title VII cases, which we noted were referred to in the Batson decision. Moreover, given this extensive use of the clearly erroneous standard, the analysis done by appellate courts is apt to be more consistent. Rather than developing our own standard of review on a case-by-case, ad hoc basis, which could be construed more or less stringently than the clearly erroneous standard, we have clear precedent on the principles of the standard of review and their application.

Factual findings made pursuant to a Bat-son claim have been reviewed by the Fifth Circuit via the clearly erroneous standard. In United States v. Forbes, 816 F.2d 1006 (5th Cir.1987), the court of appeals held the district court did not clearly err in finding the prosecutor exercised his peremptory challenges in a nondiscriminatory manner. In Forbes , there were thirty-one venire-members, five of whom were black. The prosecutor used three peremptory challenges to strike black veniremembers, two to strike white veniremembers, and his sixth peremptory challenge went unused. The resulting jury was composed of ten whites and two blacks, and the ratio of blacks to whites on the jury was “virtually identical to that on the venire”. Id. at 1009 . The prosecutor offered neutral explanations for two of the three peremptory challenges to black venirepersons, and the appellant admitted one such explanation was objective. After reviewing the second explanation, the court of appeals held the record did not “remotely suggest that the prosecutor’s intuitive assumption was based on race.” 8 The appellate court thus found no Fifth or Sixth Amendment violation. Id. at 1013 .

No clear error in the district court’s finding of no discrimination in the jury selection was also the conclusion of the court of appeals in United States v. Williams, 822 F.2d 512 (5th Cir.1987), following Rule 52(a) and the Forbes decision. In this case, the government used four peremptory challenges to strike blacks, of which there were seven, from the venire. Once again the Fifth Circuit found a confluence of factors supported the district court’s finding, those factors being: (1) the black/white ratio of the jury exceeded that of the venire; (2) the prosecutor did not use all of his strikes; (3) three blacks were on the jury; (4) the prosecutor adequately explained three strikes; and (5) most of the government’s witnesses were black. 9

In United States v. Lance, 853 F.2d 1177 (5th Cir.1988) 10 , the court of appeals *725 was finally presented with rebuttal or impeaching evidence from a defendant in response to the government’s neutral explanations for its peremptory challenges. Finding the issue boiled down to a credibility choice, the court of appeals accepted the findings of the trial judge that the prosecutor’s reason for striking two black venire-members was not a pretext for racial discrimination. 11 The venire contained thirty-six people, five of whom were black. The prosecutor peremptorily challenged two black and four white persons, but he did not use his one peremptory challenge in selecting alternate jurors. The resulting jury panel included two black jurors, and one of the two alternate jurors was black.

The trial judge in Lance addressed the jury selection issue twice. After voir dire, the prosecutor stated he challenged the two black prospective jurors because they were “young, single, and without children or a ‘substantial stake in the community’ and that each appeared inattentive to him during voir dire examination.” Defendant’s counsel commented that one excluded person was actually a life-long resident of the community, and he disputed the prosecutor’s observations regarding attentiveness. The prosecutor responded he “had enough challenges” to exclude all blacks if he intended that result. After the jury retired to deliberate, the trial judge again broached the subject of discrimination in the jury selection. Based on the above facts, the trial judge found the prosecutor selected “jurors who were older and meaningfully employed and who had children or family responsibilities.” According to the court of appeals, the judge did not alter his conclusion when appellant’s counsel noted one white juror was “young, single, and only a three-year resident of the county.” Because the prosecutor partially based his neutral explanations on nonquan-tifiable characteristics and the trial judge personally observed the proceedings, the court of appeals deferred to the trial judge’s findings in this case. 12

Applying the specific holdings from the Lance ease and giving appropriate deference to the trial judge’s findings, the Fifth Circuit again upheld a district court’s finding of no purposeful discrimination in United States v. Terrazas-Carrasco, 861 F.2d 93 (5th Cir.1988). In this case the prosecutor gave reasons 13 , which the Fifth Circuit deemed “credible”, for his peremptory challenges similar to those articulated in Lance, viz: age, eye contact, and body language. There was no mention of any challenge that the prosecutor did not strike whites of similar age or body language or did not question the prospective jurors. The court found compelling the facts surrounding the jury’s selection, specifically noting that even though six of the seven peremptory challenges exercised by the prosecutor were used to strike minorities from the venire several others remained in the venire. “Had the prosecutor used all of his challenges to exclude members of defendant’s race, his \Batson'\ argument might be stronger.” Terrazas-Carrasco, 861 F.2d at 95 . On this basis the court concluded the failure of the trial judge to rule in the defendant’s favor was not clearly erroneous.

*726 This review of federal case law interpreting and applying the clearly erroneous standard is not only instructive to this Court but also upholds and reinforces the conclusion of the majority in this cause on original submission. This case law review teaches that the “supported by the record” standard adopted in Keeton, 749 S.W.2d 861 , is actually an analytical tool used in determining whether a trial judge’s findings of fact are clearly erroneous or should be accorded great deference. While the nomenclature is different, the analysis is essentially the same under each of the three “standards of review” — clearly erroneous, great deference, supported by the record — and, in fact, the clearly erroneous and great deference standards engage in the same level of review. 14 Indeed, the Fifth Circuit has used the clearly erroneous and great deference standards interchangeably when reviewing the district court’s findings. See e.g. Terrazas-Carrasco, 861 F.2d at 94 ; Lance, 853 F.2d at 1181 ; Williams, 822 F.2d at 515 ; and Forbes, 816 F.2d at 1010 .

Under the foregoing analysis, we hereby adopt the “clearly erroneous” standard as the standard of review for appellate courts in addressing Batson issues. Our decision in Keeton, 749 S.W.2d at 870 , is so modified.

Returning to the merits, on original submission we determined the trial judge’s findings were not supported by the record; ergo, the findings were clearly erroneous. In arriving at this conclusion, we analyzed the evidence in this case in the same manner as the Fifth Circuit, viz: reviewing the record in its entirety by considering the voir dire process including the racial consti-. tution of the venire, the prosecutor’s neutral explanations, and appellant’s rebuttal and impeaching evidence.

To briefly recapitulate the pertinent facts: there were seven blacks seated in the first forty venirepersons of the panel; one black venireperson was struck for cause and the remaining six black venire-persons were peremptorily challenged by the State. Thus, the State used six of its ten peremptory challenges to remove all remaining blacks from the jury panel, and appellant, a black male, was tried by an all-white jury. At the Batson hearing, the prosecutor presented his neutral explanations for striking the six black venireper-sons. His reasons predominantly included age, religious preference, and occupation. 15 Appellant’s attorney then presented extrinsic evidence in rebuttal of the prosecutor’s neutral explanations for his peremptory strikes. On his juror information sheets, the prosecutor indicated the race of each black venireperson by marking the letter “B” next to his or her name. After the prosecutor explained he peremptorily struck two black venirepersons because of their closeness in age to appellant, appellant’s attorney noted there were six white venirepersons with this same characteristic who were not peremptorily challenged by the State. Additionally, of the ten venire-persons who had friends or relatives connected with law enforcement agencies, only two were peremptorily challenged by the State and both these venirepersons were black. 16 Moreover, the prosecutor testified he struck two black venirepersons who he believed were “liberal” even though he did not ask any questions of either prospective juror during voir dire. One prospective juror’s husband was a nurse’s assistant. The prosecutor also struck black venireper-sons on the basis of their religious preference, although he did not mark or empha *727 size on the juror information sheets the religion of the black venirepersons as he did with the white venireman who he peremptorily challenged because he was Jewish. This comparison analysis of the use, or lack thereof, of the peremptory challenges against the black and white prospective jurors indicates the State’s disparate treatment 17 of them and that the State relied on group biases where the group trait was not shown to specifically apply to the challenged jurors.

While this evidence was more fully discussed in our original opinion, the dissent 18 raises two factual matters that were not. The first concerns the prosecutor’s explanation that he marked the juror information sheets of the black members of the panel not for the purpose of striking them because of their race, but rather as “landmarks” in the sea of faces on the panel so that he could readily locate non-blacks in the sea by reference to his juror list. The trial court made no finding of fact concerning the reason for the six “B” marks, but an analysis of the prosecutor’s description, quoted in the dissent, of the seating of the panel with Ms. Fuller on row 3 as number 24, puts 2 “landmarks” side by side in row 1, none in row 2,1 on row 3, 3 on row 4 and none on row 5. While it is theoretically possible that a “landmark” system was the prosecutor’s only goal, this “system” is such a disjointed, unwieldy, and inefficient one that this explanation is hardly plausible. We are reminded again of the words of Justice Marshall in Batson, quoted in our original opinion and in Judge Teague’s concurring opinion in Keeton v. State, 749 S.W.2d 861 (Tex.Cr.App.1988), at 874-875.

The second matter raised by the dissent deals with the combination of reasons given for striking several blacks, and the failure to consider the combination in the comparative analysis on original submission. For instance: Number 24, Mayrine Fuller, was struck because she was a teacher and did not fill in one blank on her information form. But another minority, a Mexican-American woman, was struck because she was a teacher. Number 8, Sherry Ramsey, was struck because her husband was a nurse and she was close to appellant’s age. But a white venireman, Virgil Thompson, was struck in part because of his occupation (hairstylist). Again, a more detailed analysis of the facts is contained in our original opinion (see also dissenting opinion by Judge Berchelmann). Certainly the cumulative force of several reasons, each individually racially disparate, may suffice to overcome a prima facie case of discrimination where a single one would not. This case is simply not one of those situations. In order to sustain the trial court’s findings we must find that as to each minority venireman struck his decision was not clearly erroneous, for the use of one purely racially motivated strike is prohibited by Batson. Henry v. State, 729 S.W.2d 732 (Tex.Cr.App.1987). Here, in the face of a total lack of questioning by the prosecutor to determine if alleged group biases pertain to the individual minority jurors, the implausibly explained objective evidence of race notation by the *728 prosecutor, the fact that all blacks were struck by the prosecutor and that it took more than half of the prosecutor’s strikes to do so, and the disparate treatment by the prosecutor of members of appellant’s minority race, as discussed in the original opinion, application of the clearly erroneous standard from the federal rules leaves us “with [a] definite and firm conviction that a mistake has been committed”, United States v. United States Gypsum Co., 333 U.S. at 395 , 68 S.Ct. at 542 , and that appellant has been denied due process in the jury selection procedure utilized by the State in this case.

We hold appellant has shown clear error in the trial judge’s findings of fact, and he has established his Batson claim as a matter of law.

The facts of this cause, when compared to those of the federal cases, compel this conclusion. In its determination in Lance, Forbes, and Williams , that the district court did not clearly err in finding against the appellant’s Batson claim, the Fifth Circuit found significant the fact that the ratio of black jurors to white jurors on the jury was the same (or more favorable to the defendant) as the ratio on the panel. Also significant in all four Fifth Circuit cases is the fact that the prosecutor in each case did not use his peremptory challenges to remove from the venire all persons of the same race as the appellant. In the cause sub judice the State used its peremptory challenges to remove all blacks from the panel, after the one black veniremember who was challenged for cause was excused. The extrinsic evidence presented in this cause also distinguishes it from the federal cases. No detailed comparison of the characteristics of the challenged minority veniremembers versus the unchallenged white panel members was done in Terra-zas-Carrasco, Forbes, or Williams . In Lance , there was a minimal comparison between two blacks peremptorily challenged and one white juror who served. In contradistinction, in the present cause appellant’s detailed presentation of evidence indicating that the black members of the venire were treated differently than the white members sufficiently rebuts the prosecutor’s neutral explanations for his peremptory challenges and supports a holding that the trial court clearly erred in finding no purposeful discrimination in the jury selection process in appellant’s trial.

The State’s motion for rehearing is granted to the extent we adopt the clearly erroneous standard of review. 19 Appellant’s ground for review, however, is again sustained. Accordingly, the judgments of the court of appeals and the trial court are reversed, and the cause is remanded to the trial court.

CLINTON, J., dubitante and may write when appropriate.

. Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986).

. The State prays for one of two things in its motion: viz, this Court grant the State's motion for rehearing and affirm the conviction, or grant the State’s motion and remand this cause to the trial court with instructions to make specific findings and conclusions regarding the credibility of the prosecutor’s racially neutral explanations for the use of his peremptory challenges. The State generally asks this Court to re-examine the role of the appellate court when reviewing a Batson claim and to consider the impact of our original opinion on the peremptory challenge system and the appellate court system, specifically this Court’s docket. The State asserts we have created an improper standard of review. Yet, in its motion for rehearing and during oral argument before this Court, the State also took the untenable position that a trial court’s findings of fact should not be subject to appellate review.

. This rule provides in pertinent part:

Effect. ... Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses

. In footnote 21 in Batson, 476 U.S. at 98 , 106 S.Ct. at 1724 , the Supreme Court cited Anderson v. Bessemer City for the principle that “a finding of intentional discrimination is a finding of fact entitled to appropriate deference by a reviewing court.” Likening that finding in a Title VII case to the issue in Batson , the Supreme Court noted the trial judge’s findings in this context (purposeful racial discrimination) turned largely on a credibility evaluation and should be deferentially accorded.

. See footnote 1 in Keeton, 749 S.W.2d at 863 .

. We also employ the "supported by the record" standard when reviewing the findings of a trial judge in a habeas corpus proceeding. It is well-settled that this Court is not bound by the trial judge’s findings or conclusions but rather is obligated to determine if the record developed supports the trial judge’s findings. Ex parte Adams, 768 S.W.2d 281 (Tex.Cr.App.1989). "If the record will not support the trial judge's conclusions, then this Court may make contrary findings, (citations omitted) If, on the other hand, the findings of the trial judge are supported by the record, they should, at the very least, be considered by this Court.” Id. at 288 . In his concurring opinion in Ex parte Brandley, 781 S.W.2d 886 (Tex.Cr.App.1989), Judge Duncan, who wrote the majority in Ex parte Adams, gave meaning to this principle of law:

We must take the record as we find it. Accordingly, we cannot add facts, assume facts. disregard facts, or accord certain facts greater or lesser significance. That is simply not our function. There is no question that the abundance of material presented with this case makes our task extremely difficult. That is why the trial judge is accorded the deference to make findings of fact. All that we should do is determine whether they are supported by the record. That is all. I have read every page of the writ hearing and although I may not have made the same findings of fact or conclusions of law as [the trial judge], I do find that they are supported by the record. Consequently, unless we are willing to overrule all of the cases to the contrary or conjure up a way to deceptively distinguish them we actually have no choice but to accept the findings and conclusions that have support in the record.

Ex parte Brandley, 781 S.W.2d at 895 (concurring opinion).

. See United States v. United States Gypsum Co., 333 U.S. 364 , 68 S.Ct. 525, 542 , 92 L.Ed. 746 , a 1948 case, which notes that before the Rules of Civil Procedure were promulgated the practice in equity was "that the findings of the trial court, when dependent upon oral testimony where the candor and credibility of the witnesses would best be judged, had great weight with the appellate court [but] [t]he findings were never conclusive”.

. The reason for the prosecutor's third strike' was left unexplained and such was not objected to by the appellant. The court of appeals, in footnote 7, however, concluded it was unlikely the third strike resulted from intentional discrimination based on the facts of the jury selection. The court of appeals found the following facts to be significant, "perhaps determinative[ly] significan[t]”: (1) the black/white ratio on the jury mirrored that of the venire; (2) the prosecutor adequately explained two strikes; (3) the prosecutor did not use all his strikes; and (4) there were two blacks left on the jury. 816 F.2d at 1011 .

. The appellant in Williams also complained that three black jurors were deleted from the original venire list without explanation. Appellant failed to preserve this issue for review, but the court of appeals reiterated that a finding of intentional discrimination was unlikely in light of the fact the prosecutor accepted a jury comprised of 25% blacks, a figure higher than that of the venire, and did not use all of his strikes. 822 F.2d at 516 .

. This case involved three defendants who were tried jointly and appealed jointly. Only one of the defendants was black, and it is he who raised the Batson issue in this appeal.

. The court of appeals stated "[w]e must accept the judge’s credibility choice and affirm his finding on these facts.” 853 F.2d at 1181 . (emphasis added) In discussing the deference due a trial judge’s findings on appellate review, however, the Supreme Court stated ”[t]his is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations". Anderson v. Bessemer City, 470 U.S. at 575 , 105 S.Ct. at 1512 . Thus, even though a finding of fact may be based on a credibility choice, it clearly remains subject to appellate review, and the appellate court is not required to accept the finding.

. Without expressly holding the trial judge’s findings of fact were not clearly erroneous, the court of appeals implicitly made that determination. In pertinent part, the court of appeals stated:

... we have observed that the Supreme Court suggested in Batson , again by reference to a Title VII case, that the district court’s ultimate finding should be reviewed under “either a ‘clearly erroneous’ or 'great deference’ standard.” [citations omitted] This case illustrates the wisdom of deferential review.

853 F.2d at 1181 .

.The court of appeals’ analysis on this issue is rather cursory, and the specific reasons are not enumerated in the opinion.

.We term "supported by the record” a standard of review only since we adopted it as our standard in Keeton . Within the federal appellate system there is not a separate standard of review known as "supported by the record”, but rather only the clearly erroneous and great deference standards which we have noted are actually the same standard, both utilizing an analysis which determines whether there is support in the record for the trial judge's findings.

. In his sixth finding of fact, the trial judge stated the prosecutor used ethnic, religious, and job-related stereotypes as the bases for his neutral explanations.

. The prosecutor stated he struck one of these prospective jurors because of her religious preference, and he struck the other black woman because of her demeanor and the intonation in her voice when she answered a question from appellant's attorney during voir dire.

. See Keeton, 749 S.W.2d at 868 , quoting Ex parte Branch, 526 So.2d 609 (Ala.1987), for an illustrative list of the types of evidence which can be used to show sham or pretext in the prosecutor’s explanations. Disparate treatment — persons with the same or similar characteristics as the challenged juror were not struck — is one such type of evidence.

. As can be seen from a comparison of Presiding Judge McCormick’s dissent with the majority opinion on rehearing, appropriateness of which text to highlight, like beauty, is often in the eye of the beholder. In quoting Anderson , this opinion emphasizes "[a] finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed” because the Supreme Court referred to it as representing the foremost principle in understanding the phrase "clearly erroneous”. The dissent emphasizes “[i]f the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the [court of appeals] may not reverse [it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently].” Op. at p. 743. Certainly, where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous. As discussed infra, considering the record as a whole, we simply do not see two permissible views on the issue at hand.

. The Opinion Dissenting to the Granting of the State’s Motion for Rehearing, by Miller, J., is withdrawn.