Whitsey v. State

TEAGUE, Judge,

concurring.

David F. Breck, in his law article entitled “Peremptory Strikes After Batson v. Kentucky,” April, 1988 ABA Journal, commented: “The U.S. Supreme Court’s decision in Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (April 30, 1986), henceforth Batson , will forever change for the better the jury selection process in criminal and possibly civil trials.” (Emphasis supplied.)

Batson held, inter alia, that the equal protection clause forbids the prosecutor from exercising his peremptory strikes on potential jurors on account of their race or on the assumption that black jurors as a group will be unable to consider the state’s case against a black defendant impartially. Records before this Court, however, indicate that since Batson there has been little, if any, change in the jury selection process in criminal cases in the exclusion of members of the same race as the defendant from serving as jurors. In short, the prosecutor’s legitimate hunches and past experiences based on age, marital status, handwriting, ability to spell, group association, and like race-neutral stereotyping have been ruled sufficient to pass muster when *729 it comes to exercising a peremptory strike. The prosecutor has simply changed his garb in order to eliminate from the jury panel members of the same race as the accused.

For appellate review purposes, are such race-neutral explanations as the following going to be sufficient to satisfy Batson? If so, we might as well file Batson in the archives of this Court and go on to better things: (1) the prosecutor thought that the juror had smiled at the defendant; (2) the prosecutor thought that the juror appeared to be inattentive to the prosecutor yet very attentive to the defendant’s attorney; (3) the prosecutor thought that the juror did not maintain eye-contact with him; (4) the prosecutor thought that there was no development of back-and-forth relationship or communication during the voir dire examination; the prosecutor felt (had a hunch?) that the juror distrusted him and that “something seemed unfavorable”; (5) the prosecutor thought that the juror did not appear interested in the court proceedings because he kept glancing at the clock on the courtroom wall; and the prosecutor had problems with the juror because the juror “slumped” down in his seat.

Trial judges have accepted these type reasons and appellate courts have put their stamp of approval on them, in this and other States.

The difficulty, of course, from an appellate court standpoint, in accepting these balderdash reasons lies in the fact that the trial judge is vested with the responsibility of determining the totality of the circumstances — ranging from the verbal explanation of the venireperson to the venireper-son’s unspoken interaction with the prosecutor during the voir dire examination— whether an articulated race-neutral explanation, such as those above, is but an excuse or pretext for improper discrimination through the use of a peremptory strike by the prosecutor, and his decision is often final in making such decisions.

Where the defense attorney is unprepared for a “Batson” hearing, in that he asks the prosecutor no questions and does not present any impeaching or rebuttal evidence, then the answer to resolving the question, as occurred in Keeton v. State, 749 S.W.2d 861 (Tex.Cr.App.1988), Tompkins v. State, 774 S.W.2d 195 (Tex.Cr.App.1987), and even this cause, is usually an easy one for the trial judge to make.

Is the solution perhaps to seal off the jury panel, in order to prevent the prosecutor, the trial judge, and the defense attorney from seeing the race of the members of the jury panel? See and compare Coy v. Iowa, 487 U.S. 1012 , 108 S.Ct. 2798 , 101 L.Ed.2d 857 (1988). At least that way, an appellate court would not be going through a bunch of hocus pocus or attempting to use non logical reasons to make the determination whether the prosecutor has given a legitimate race-neutral explanation why he exercised a peremptory strike on a minority member of the panel. At least that would eliminate from the scene highly suspicious and questionable explanations that prosecutors are so fond of giving, and appellate courts are so quick to approve. E.g., Tompkins, supra.

The cause at Bar is one of those cases decided prior to when Batson was decided by the United States Supreme Court. That, however, is no excuse for the condition of the record being in the state it is at this time because there have actually been two “Batson” hearings in this cause. Trial counsel for appellant was simply not prepared for a “Batson” hearing, understandably because when both hearings were held Batson had not yet been decided. He simply did the best that he knew how to do under the circumstances.

However, because it was pending on appeal when Batson was decided, Larry Williams Whitsey, henceforth appellant, is entitled to the benefits of that decision. Also see Griffith v. Kentucky and Brown v. United States, 479 U.S. 314 , 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987), and Allen v. Hardy, 478 U.S. 255 , 106 S.Ct. 2878 , 92 L.Ed.2d 199 (1986).

Prior to Batson , the rule of law in Texas was quite simple: The mere use by the prosecutor of his peremptory challenges to strike qualified minority persons from the jury was not per se prohibited, and prose *730 cutors were free to strike such persons almost at will. See, for example, Evans v. State, 622 S.W.2d 866 (Tex.Cr.App.1981); Chambers v. State, 568 S.W.2d 313 (Tex.Cr.App.1978, and cases cited therein at 328; McKay v. State, 707 S.W.2d 23, 39 (Tex.Cr.App.1985); Jason v. State, 589 S.W.2d 447 (Tex.Cr.App.1979); Ridley v. State, 475 S.W.2d 769 (Tex.Cr.App.1972)). My research to date has not yet revealed a single case where this Court reversed because of the race-neutral explanations given by the prosecutor.

Also prior to Batson , the accused, “to pose the issue, had to show the prosecutor’s systematic use of “peremptory challenges against Negroes over a period of time.” (Emphasis supplied.) Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), henceforth Swain, 85 S.Ct. at 839 . In fact, the Supreme Court engrafted a “presumption” rule that the prosecuting attorney did not exercise his peremptory strikes on account of race or on the false assumption that members of the defendant’s race as a group were not qualified to serve as jurors in such a case. In sum, for the accused to establish a pri-ma facie case of purposeful discrimination by the prosecuting attorney under Swain v. Alabama, it was necessary for him to establish the repeated striking of blacks over a number of cases by the same prosecuting attorney. This largely made prosecuting attorneys use of peremptory strikes immune from constitutional scrutiny. However, Swain was not without its critics or its criticisms. See footnote 2, Tompkins v. State, 774 S.W.2d 195, 199, fn. 2 (Tex.Cr.App.1987).

Occasionally, however, an accused in a State court would receive relief under Swain , but under state constitutional law and not federal law. Shaw, in his law review article entitled “Batson v. Kentucky: The Court’s Response to the Problem of Discriminatory Use of Peremptory Challenges,” 36 Case Western Reserve Law Review, at page 585, pointed out that in 1986, a trial judge found that the accused individual made out a prima facie case that the prosecuting attorney had exercised his peremptory strikes against members on the venire panel of the same race as the accused, in a systematic manner, and the prosecutor was unable to come forward and demonstrate a non-race related explanation why he exercised a peremptory strike on a member of the same race as a the accused, and granted the accused relief. See State v. Washington, 375 So.2d 1162, 1164 (La.1979); State v. Brown, 371 So.2d 751 (La.1979). Compare Doepel v. United States, 434 A.2d 449 (D.C.1981).

Shaw also pointed out in his article that several jurisdictions had stripped the “systematic discrimination” from Swain’s requirements, but did so on the basis of those State’s constitutional provisions. For example, in People v. Wheeler, 22 Cal.3d 258 , 583 P.2d 748 , 148 Cal.Rptr. 890 (1978), the California Supreme Court ruled that (1) there was a presumption of proper use of peremptory challenges; (2) this presumption was rebuttable upon a showing of (a) several of the challenged jurors belong to a discrete group, and (b) there is a likelihood of their being challenged for no other reason than their group membership. If the above was established, then the burden shifted to the other party to show that the reason for the peremptory challenge related to individual qualities of the challenged jurors and not to group association. Should the trial judge find improper use of a peremptory challenge, the judge must dismiss the jurors, quash the panel, and begin again with a new panel. The court made it mandatory that the proper use of the peremptory challenge was to remove from the panel a perceived juror bias which was specific to the case being tried. See and compare Art. 35.261, V.A.C.C.P.

Batson is an equal protection cause, however, and not a fair cross-section case, although a cross section claim was urged in Batson . Cf. Commonwealth v. Soares, 377 Mass. 461 , 387 N.E.2d 499 (1979); Taylor v. Louisiana, 419 U.S. 522 , 95 S.Ct. 692 , 42 L.Ed.2d 690 (1975).

In this cause, in an attempt to impeach the prosecuting attorney, appellant had other attorneys, who had tried cases against the prosecutor, verify through their testimony that the prosecutor struck *731 all of the blacks that were on his panels. The following are examples of what kinds of blacks he struck. One of the blacks struck, Beulah Sheppard, had not only been a long time county employee, but had actually served on several Harris County Grand Juries, and was extremely active in Harris County Democratic politics. Another black that had been struck had an uncle who was an assistant district attorney of Harris County. Hearsay provided that the prosecutor would always strike blacks, and this accounted for the fact that the defense attorneys would not exercise any strikes on blacks — because they knew the prosecutor was going to strike all of the blacks on the panel in any event, where the State’s complainant was white, which he did except for one black who was excused pursuant to a State’s challenge for cause. Of course, because this cause was a pre-Batson case, the attorneys’ reasons that were given were for naught.

At the new “Batson” hearing, the prosecuting attorney testified that he struck two black prospective jurors and two white prospective jurors because they were teachers and because of their religious preferences (Pentecostal and Church of God). He also testified that he struck another black prospective juror for not answering all of the questions contained on the jury information card. He testified that he also struck one black because “she engaged in dialogue with the defense attorney, nodded with the statements of the defense attorneys, and appeared to have a problem with the .credibility of police officers in general”; he struck another black because of her age (24) and because her husband was employed as a nurse’s assistant. He struck another black because of his age (21) and because he could not spell his religious preference (Baptist), nor was he able to correctly spell his place of birth. The prosecuting attorney also perceived that these individuals had liberal philosophies. No reasons were given that might have connected these reasons to appellant’s case.

It appears to me that in disposing of a “Batson” issue on appeal, this Court has failed to stress and emphasize what, if anything, might relate to the issue that occurred during the actual voir dire examination. In other words, we should first look at the actual voir dire to see if any guiding lights might be present that would later cause a “Batson” hearing to flesh out both race-neutral as well as non-raee-neutral reasons. Otherwise, if all that exists in the record on appeal is some sort of post or belated Batson hearing, what an appellate court will usually view is only a record that reflects only speculation, surmise, or theory about why the prosecuting attorney struck a minority prospective juror. And there lies the problem with this Court’s illusory opinion of Keeton v. State, 749 S.W.2d 861 (Tex.Cr.App.1988).

In that case, after the prosecutor exercised his peremptory strike on a minority venireperson, he gave a race-neutral reason. Thereafter, at the “Batson” hearing, he in essence repeated the same reason. Although defense counsel objected, he, the defense attorney, did not cross-examine or impeach the prosecutor; the prosecutor’s testimony stood unrebutted and uncontro-verted. Thus, the trial judge was left with undisputed and uncontroverted testimony by the prosecutor. The defense attorney was clearly not prepared for a “Batson” hearing.

The record before us reflects that the jury panel consisted of 50 individuals. Seven blacks, who were of the same race as appellant, were in the first 50 members of the panel. One was struck for cause. The State used 6 of its 10 peremptory strikes on the other six blacks, as well as using its other 4 peremptories on non-minority prospective jurors, for various and sundry reasons. Thus, all of the minority members of the panel were eligible to become jurors.

The “Batson” hearing that occurred in this cause also occurred prior to Batson being handed down on April 30, 1986. Although it should now be obvious that when a prosecuting attorney is confronted with a venire member of the same race as the accused, he is immediately put on notice that he might have to later explain why, if he did, he used a peremptory strike on that individual. Furthermore, it would appear, in an effort not to embarrass a minority *732 juror, any discussions that might relate to race should occur outside the presence of the other jurors. The fact that this was a pre-Batson case might explain why, when the trial judge limited the voir dire to a total of 40 minutes to each side for their respective voir dire examination, the prosecuting attorney should have sought more time. The record reflects that the prosecuting attorney spent a great deal of his voir dire time generally, and not specifically. In fact, the record reflects that he only individually questioned eleven prospective jurors. However, it is anticipated in the future, when “Batson” is injected into the case, the usual 30 minute voir dire examination to the side will become a prehistoric relic of our jurisprudence.

The only time race was injected into this case was when a white individual disqualified himself from serving because he would not be in a position to punish the defendant for what some other blacks had done to him several years previously. Another juror, a minority prospective juror, who appeared to be of Chinese-American descent, stated that he could not be fair because appellant was a member of a minority race like he was, and he would require the State to prove its case beyond all doubt against appellant.

At the conclusion of appellant’s counsel’s voir dire examination, and after the jury was seated, counsel for appellant then objected “to the jury on the. ground that opposing counsel had used his peremptory challenges to exclude blacks from the jury panel and disqualified Mr. Whitsey’s right to a fair cross section of the community. All the blacks were struck by the State. There are six blacks on the jury panel that have been struck.” The trial judge agreed there were six blacks on the jury panel who were peremptorily struck by the prosecutor, and that these six were in the first 32 members of the 50 person panel. The prosecutor's only response to appellant’s counsel’s objection was the following: “I [do not] have a policy of routinely striking blacks.” Nothing further was developed on the issue, and the trial judge denied appellant’s “due process” objection to the jury that was seated. The hearing on appellant’s motion for new trial was conducted approximately two months after trial and sentencing, which was still many months before Batson v. Kentucky was decided. Appellant reasserted at the hearing his claim that the prosecuting attorney was racially motivated when he used six of his peremptory strikes on minority members of the panel.

One of the court reporters testified that the prosecutor did not question any of the black members of the panel, and that only one of the black members of the panel was actually questioned by appellant’s attorney.

The prosecutor gave the following reasons why he struck blacks from his juror panels:

I look — when I make any strikes of any jurors, I look and — I consider looking at the age, occupation, religion, their place of birth. I look at how they fill out the juror information sheet. I look at how they appear in court. I try to watch them as they come into the courtroom. I — those that do respond, I certainly listen to how they respond to whatever questions. I observe them as they sit in the jury panel. As far as those, that is just general observations. And I take that all into consideration in trying to make a decision.

Of course, these are simply old fashioned reasons why one might use a peremptory strike on a juror, regardless of that individual’s race.

The prosecutor in this cause testified at the motion for new trial hearing that of 12 or 13 cases he had tried in this court, only one black individual had ever served as a juror. The prosecutor testified that of 29 cases he had tried only in two of those cases had a black served as a juror.

The court of appeals sustained the reasons the prosecuting attorney gave as being race neutral, and opined that if a prosecuting attorney may not give race neutral reasons that related to occupational, political, economical, and religious areas, “the Supreme Court must make that expansion.” In his motion for rehearing, appellant complained that the court of appeals *733 erred in not requiring the prosecutor to “articulate a neutral explanation that related to the particular case to be tried.” This request was denied.

Since Batson was decided, this Court, as well as other appellate courts of this State and Nation, where the trial judge has found, either expressly or implicitly, that a prima facie case of racial discrimination had been established, has grappled with what standard of appellate review should be applied to the prosecuting attorney’s “race-neutral” explanation, and the issue was contested. These courts have attempted to reach a decision that does not insulate the trial judge’s decision behind the facade of "credibility”, while at the same time not insulting the integrity of every trial judge in the State of Texas whose decision was to uphold the race-neutral explanation the prosecuting attorney gave to substantiate why he struck a minority venireperson.

In this regard, in Tompkins v. State, this Court ruled: “We do not substitute our judgments of witnesses’ credibility and evi-dentiary weight for those of the factfinder [the trial judge], but affirm those judgments whenever the record discloses sufficient evidence in their support.” ( 774 S.W.2d at 202 .) In Tompkins , notwithstanding that this Court was greatly concerned with the reason that one of the prosecutors gave as to his race-neutral explanation why he struck a minority vernire-person — solely because the venireperson had been an employee of the United States Postal Service for some thirteen years, and because his co-counsel stated that she had had terrible experiences with such individuals as jurors who had served in the past on juries she had selected — this Court sustained the trial judge’s decision to accept the prosecutor’s race-neutral explanation why he peremptorily struck this venireper-son. Notwithstanding this Court’s concern, it held that “where the accused has the ultimate burden to prove a factual allegation, such as purposeful discrimination in jury selection, by a preponderance of the evidence, an 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.” (Emphasis supplied.) 774 S.W.2d at 202 .

The Court in Tompkins , however, did not discuss the relationship between the race-neutral reason the prosecutor gave and the case about to be tried, nor did it make any sort of comparison type analysis, nor did it delve into the fact that although postal employees in general might make poor jurors for the State, nothing was elicited about the fact that this postman might have made an excellent juror for the State in this case. This is understandable because of the poorly developed record that that this Court had before it to review, much like the one it had in Keeton, supra, to review.

It now appears that many prosecutors, and perhaps some trial judges, took our holding in Tompkins to mean that when this Court sustains a trial judge’s decision to uphold a prosecutor’s race-neutral explanation, no matter what the race-neutral reason might be, that it is praising the trial judge’s decision, whereas, had this Court overruled the trial judge’s decision, we would have been insulting the integrity of not only that very trial judge, but every trial judge in the State of Texas. Nothing could be further from the truth in either instance. We neither affirm nor reverse a trial court’s judgment of conviction or sentence on whether that decision would or would not be popular among the trial judiciary of this State, or the citizenry of this State for that matter, and if by chance there is a twinge of criticism from anyone about our decision, we accept it in the spirit of constructive criticism.

When the Supreme Court of the United States granted certiorari in Tompkins it was anticipated in many quarters of this Nation, especially by the members of this Court, that that Court would give appellate courts throughout the Nation guidance in reviewing on appeal the trial judge’s decision to sustain or overrule a prosecutor’s “non-racial peremptory strike” he used on a minority venireperson, i.e., it would clearly flesh out what it had stated and held in Batson . However, on June 5, 1989, with *734 Justice O’Connor disqualifying herself from participation, this Court’s judgment was affirmed by an evenly divided Supreme Court. See Tompkins v. Texas, 490 U.S. 754 , 109 S.Ct. 2180 , 104 L.Ed.2d 834 (1989). Thus, under Neil v. Biggers, 409 U.S. 188 , 93 S.Ct. 375 , 34 L.Ed.2d 401 (1972), the case of Tompkins v. Texas exists as though it never left the Court of Criminal Appeals of Texas.

Since Tompkins was decided, this Court decided Whitsey, which is this case. Because Tompkins affirmed the trial court’s judgment and Whitsey reversed the trial court’s judgment, we now must reconcile those cases if we can.

It is thus necessary for us to first review Tompkins.

Because Batson had been decided while Tompkins was pending on direct appeal, and no “Batson” hearing had previously been conducted, it was necessary for this Court on April 22,1987, to abate the appeal and order the trial judge to conduct a “Bat-son” type hearing, which is what this Court had previously done in Henry v. State, 729 S.W.2d 732 (Tex.Cr.App.1987); Keeton v. State, 749 S.W.2d 861 (Tex.Cr.App.1987); Williams v. State, 682 S.W.2d 538 (Tex.Cr.App.1985); Williams v. State, 731 S.W.2d 563 (Tex.Cr.App.1987), and De Blanc v. State, 732 S.W.2d 640 (Tex.Cr.App.1987). To put it quite bluntly, from a defense standpoint, the “Batson” hearing in Tompkins actually amounted to the equivalent of no hearing.

A “Batson” hearing was conducted in Tompkins, after which the trial judge implicitly found that Tompkins established a prima facie case of racial discrimination. The trial judge also implicitly found that the prosecuting attorneys gave race-neutral explanations for exercising their peremptory strikes against five black venire-persons about which excusal the defendant Tompkins had complained.

In sustaining the trial judge’s decision to uphold the prosecuting attorneys’ reasons for exercising their peremptory strikes against the five black venirepersons about which Tompkins complained, this Court pointed out in its opinion that, to be acceptable, the prosecutor’s race neutral explanation need not be equal to a challenge for cause. Thus, under Batson it is only when the defendant makes a prima facie showing that the burden then, and only then, shifts to the State to come forward with a race neutral explanation why it exercised a peremptory strike on a minority of the same race as the defendant. In Tompkins, neither party challenged the trial judge’s finding that a prima facie case of purposeful racial discrimination was established by the defendant Tompkins.

However, under Batson , if the prosecuting attorney comes forward with a race-neutral explanation, the trial court then has the duty to determine if the defendant has established purposeful discrimination, and a reviewing court ordinarily should give those findings, whether favorable or unfavorable, great deference. It is the burden of the accused to persuade the trial judge by a preponderance of the evidence that the allegations of purposeful discrimination are true in fact. The party alleging that he has been the victim of intentional discrimination carries the ultimate burden of persuasion.

In Tompkins, this Court ruled that only if no rational trier of fact could have failed to find his (the defendant’s) factual allegation true by a preponderance of the evidence, then the prosecutor’s testimony alone would not be dispositive of the issue. This is really no different in principle than any other factfinding enterprise. We do not substitute our judgments of witnesses’ credibility and evidentiary weight for those of the factfinder, but affirm those judgments whenever the record discloses sufficient evidence in their support.

The problem that an appellate court is confronted with on appeal, in deciding whether the prosecuting attorney has given a logical and reasonable race-neutral reason, rests in the fact that a prosecuting attorney can give a race-neutral reason that represents nothing less than the former use of a peremptory strike, with the prosecuting attorney further stating that he used the peremptory strike for non-racial reasons. Since Batson, this is not *735 good enough anymore. In other words, since Batson , the prosecuting attorney must now bring forth from his closet, and “articulate a neutral explanation related to the particular case to be tried ... [T]he prosecutor must give a ‘clear and reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the challenges.... ” Batson, 476 U.S. at 98 & n. 20, 106 S.Ct. at 1724 & n. 20, 90 L.Ed.2d at 88 -89 & n. 20. Of course, the mere use of peremptory challenges to strike qualified minority persons from the jury is not a prohibited systematic exclusion of those persons in the selection of petit jurors. Race can still disqualify an individual from serving on a jury.

However, as Justice Marshall pointed out in the concurring opinion that he filed in Batson , “Any prosecutor can easily assert facially neutral reasons and trial courts are ill-equipped to second guess those reasons ... If such easily generated explanations are sufficient to discharge the prosecutor’s obligation to justify his strikes on nonracial grounds, then the protection erected by the Court today may be illusory.” 476 U.S. at 106 , 106 S.Ct. at 1728, 90 L.Ed.2d at 94 . In Tompkins, this Court approved the prosecutor’s explanation for using a peremptory strike on a prospective juror solely and only because he was an employee of the United States Postal Service and the prosecutor had “not had very good luck with postal employees.” Tompkins, at 205. Were we correct in our decision? Did we fail to make clear that the prosecutor failed to articulate a race-neutral explanation related to the particular case to be tried? As previously pointed out, in Tompkins this Court was dealing with a very poorly developed record, and simply reached the conclusion that a rational appellate court would have, based on the record before us, accepted the prosecutor’s race-neutral reason.

A prosecuting attorney who gives or attempts to give race-neutral reasons for exercising a peremptory strike on a member of the same race as the defendant must act race-blind to the venireperson’s color. I earlier suggested one method of how “race” blindness can be achieved during the voir dire process.

After this Court decided Tompkins, it then decided Whitsey v. State, page 707 (Tex.Cr.App. No. 1121-87, May 10, 1989), which is this cause on State’s motion for rehearing. Whitsey, like Tompkins, is also a very poorly developed record. In Whit-sey, a majority of this Court concluded that the prosecuting attorneys exercised several of their peremptory strikes based solely on race, thus committing “Batson v. Kentucky” error, thereby depriving appellant due process of law in the jury selection process. The majority opinion on original submission reversed the judgments of the Fourteenth Court of Appeals and the trial court and remanded the cause to the trial court for a new trial. The case is now before us on rehearing.

Almost needless to say, the State was highly displeased with this Court’s decision of Whitsey, going so far as to exclaim to the world much like Chicken Little did, that the sky was falling, and argued in its motion for rehearing that “the rationale employed by the Court threatens the jurisprudence of this State in a way that will most assuredly trigger a flood of litigation on an issue which this Court is peculiarly ill-equipped to decide. Unless the breech is quickly repaired, this Court will be innun-dated with hundreds, if not thousands, of cases in which defendants will rightfully petition this Court to decide factual, as well as legal, issues. If this Court should unwisely choose to shoulder this new responsibility, already strained judicial recourses will be overwhelmed and justice will become all the more illusory.” (Page 1 of State’s First Motion for Rehearing.) I disagree on all counts with the State.

The State, however, intelligently argues that if the prosecuting attorney gives a racially neutral reason why he or she exercised a peremptory strike on a member of the same race as the defendant, “the only issue before the [trial court] is whether the prosecutor truthfully articulated his methodology [and not the soundness of the method used by the prosecutor]. In other words, [the trial court] must determine *736 whether the reason articulated by the prosecutor is, in fact, his true motivation for exercising the State’s peremptory strikes in a manner which excluded blacks, or whether the explanation was a subterfuge to mask his real intent to discriminate on the basis of race.” (Page 9, Id.)

The State argues on rehearing that once the trial judge has determined that the prosecutor truthfully articulated his methodology for exercising his peremptory strike, i.e., once the prosecutor has made acceptable facially neutral explanations for his strikes, “Appellate courts, therefore, have virtually no role in assessing the propriety or impropriety of a prosecutor’s use of peremptory challenges.” (Page 10, Id.) I disagree. If this were the case, it is likely that no defendant could ever “win” on a “Batson” claim, no matter how pretex-tual the non-racial reason of the prosecutor might have been. If Batson is to be given any meaning, for appellate review purposes, it must not fall within the construction that Swain v. Alabama was given by this and other Courts of this Nation.

An appellate court, of course, is bound by the record before it. Sad to say, the “Batson hearing” records that this Court has been privy to are sorely lacking when the issue is whether to rule for the defendant. In short, neither the prosecuting attorneys, the defense attorneys, nor the trial judges appear to know how to prepare for and conduct a “Batson” hearing. Other than when a prosecutor affirmatively admits that he struck a venireperson because of his race, how does an appellate court make the determination that the prosecutor exercised his peremptory challenges to remove from the venire members of the defendant’s race?

In the concurring opinion that Justice Dennis of the Supreme Court of Louisiana filed in State v. Eames, 365 So.2d 1361 (La.1979), which was long before Batson was decided, he essentially concluded that the issue boiled down to whether there was a probability that the prosecutor used his peremptory strikes on minority members solely because they were of the minority race, i.e., whether it was more likely than not that the prosecutor would do such a thing. E.g., Good v. State, 723 S.W.2d 734, 740 (Tex.Cr.App.1986) (Teague, J., concurring opinion).

A prosecutor who comes into contact with a member of a minority race should always be race-blind when it comes to deciding whether or not to peremptorily strike that individual. We are all guilty of wrongful first impressions. For example, the juror states he has a record of prior arrests or has complained of police harassment. He may not wear conventional clothing. His hair length may suggest an unconventional lifestyle. He may even wear an earring. The juror ignores the prosecutor, or smiles at defense counsel. Justice Dennis further pointed out that both blacks and whites may have prior arrest records; both may have been victims of crime; both may have relatives in the penitentiary or on the police force; both may believe in strong or weak law and order; and others may alienate a party by bare looks and gestures, and still make good jurors for that ease. “It follows that peremptory challenges predicated on such reasons do not significantly skew the population mix of the venire in one direction or another; rather, they promote the impartiality of the jury without destroying its representativeness ... Manifestly if jurors are struck simply because they may hold those beliefs, such interaction becomes impossible and the jury will be dominated by the conscious or unconscious prejudices of the majority.” (1371).

Let me use a hypothetical to make my point. The prosecutor gives these reasons as to why he is using a peremptory strike on a member of a minority race. The juror informs the prosecutor that he has four brothers incarcerated in the penitentiary; one of whom is on death row. Presumably, that individual would not facially make a very good State’s juror. The juror’s family, however, believes that death row and the penitentiary is the best place for their kin. The juror is also philosophically to the right of Atilla the Hun. He has even been the victim of many crimes. He has four other brothers who are police detectives. Unless the latter questions are answered, it *737 is highly likely that the prosecutor will mistrust the juror serving on the jury and will use a peremptory strike on him; not because of race but because of some nonsensical race-neutral reason, although it is likely he will use a non-race related reason to peremptorily strike the juror. This is usually referred to as “sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another.”

In other words, we are often guilty of judging one by first appearances or first impressions. Other examples are the juror who is a musician in a jazz or rock band and a free thinker; the juror is a minister; the juror is a member of an unconventional religious group; is unable to completely fill out his juror information card; has negative body posture, crosses his or her arms or legs, is short and terse when the prosecutor questions him; stares at the floor or the ceiling when questioned by the prosecutor; looks like a deadbeat, but in reality is as rich as Howard Hughes was; is disabled; wears a mustache, etc. Without probing into why the prosecutor does not want that individual for this case, are these race-neutral reasons sufficient to satisfy Batson?

Unless the prosecutor is acting in a race-blind fashion, these reasons are not only frivolous in order to exercise a peremptory strike for non-racial reasons; they are inadequate, unreasonable, arbitrary, capricious, and discriminatory to serve that function.

However, if the defense attorney does not fill the record with answers to necessary questions, or material impeachment evidence, the appellate court will have no choice but to rule in favor of the trial court.

In this cause, this Court on original submission used what I refer to as a “negative” approach, i.e., because the prosecutor failed to ask many questions of individual venirepersons, “an inference to discriminatory purpose in the prosecutor’s use of peremptory challenges is supported by the totality of these facts.” (Page 710 of opinion.) However, can the same result not be reached by taking a “positive” approach; i.e., did he not err by asking the minority juror more questions than he asked the white jurors? If the prosecutor cannot recall what he did several years before, and had no notes to refresh his memory, should he be penalized because of this? If the prosecutor spends too much time refreshing his memory, should he be penalized because of this? If the prosecutor marks on his jury information sheet letters such as “B” is he to be penalized? But what if he takes the opposite approach? Is he to be penalized for this as well? It is obvious to me that in the trial judge’s findings in this cause he was vouchsafing for the prosecutor’s “negative” reasons that he gave. Would the same hold true had he taken a “positive” approach in making his findings?

I find that the adoption of the “clearly erroneous” standard, see Keeton v. State, supra, has actually left our trial courts without any standard. It appears to me that the only available standard that can be used for appellate review purposes is whether the trial judge’s findings are plainly or manifestly contrary to the great weight or preponderance of the evidence, or something similar to the findings being unreasonable, unsustainable on any reasonable theory or hypothesis, unwarranted as a matter of law, irrefragably impeached, contrary to, or inconsistent with subordinate facts, clearly unjust, or the result of abuse of discretion. In short, when the findings reach the level of either being pretextual or almost pretextual, they amount only to a prejudgment of the case. Some workable standard must be created by this Court. Thus, notwithstanding the trial judge’s finding in this cause in favor of the prosecutor’s race-neutral reason, I find that for appellate review purposes the one standard set out in Tompkins is about as sufficient as one is going to obtain: “[A]n appellate court must view the entire record in a manner favorable to the fact-finder’s determination and reverse only if no rational trier of fact could have failed to find his factual allegation true by a preponderance of evidence.”

In this instance, the majority opinion finds that “the findings and conclusions of *738 the trial judge and the holding of the court of appeals are not supported by the record.” (Page 713 of opinion.) As far as I can tell, the prosecutor did the best he could with what he had to work with, and the trial judge found that these were sufficient reasons. I believe that more is necessary before the trial judge’s findings and conclusions can be rejected. In fact, I find that the “negative” findings for the “positive” findings that the trial judge made in this cause can be converted into “positive” findings. Also see Judge McCormick’s dissenting opinion, page 742 of opinion.

However, I agree with the result that the majority opinion reaches solely because I find that no rational appellate court judge can read this record and not conclude that the prosecutor’s reasons were a contrived sham or pretext to avoid admitting racial discrimination, and therefore inadequate to rebut the inference of intentional discrimination. In short, the record is in such a state that a rational trier of fact cannot conclude that the prosecuting attorney was “race” blind when he conducted his voir dire examination. The prosecutor simply judged the minority members of the panel on a first impression basis and failed to probe deeply into why he was not using a peremptory strike on the basis of race. Here, the prosecutor failed to offer the required “clear and reasonably specific” explanation for his “legitimate reasons” for exercising his peremptory strikes, in spite of an opportunity to do so. It is anticipated that in the future, when a “Batson” hearing becomes necessary, it can very easily be the lengthiest part of the trial, because if the defense makes a prima facie case, it is going to be necessary for the prosecuting attorney to articulate to death, and not simply say, for example, “The juror was a Democrat or Republican and that is the reason why I struck him or her and I 'anticipate that the evidence will show that the defendant is a Democrat or Republican.” Likewise, a trial judge’s findings and conclusions are going to be subject to the most arduous of examination by this Court, and thus the prosecutor’s reasons should always be extensively detailed.

For appellate purposes, there is a fine line between a prosecutor’s reasons being facially genuine versus the reasons being pretextual or inadequate. Depending on the particular record, the called for answer may be an easy one or it might be a difficult one. Usually, the answer lies in whether the prosecutor has only made generalized assertions of good faith, which are insufficient to rebut a prima facie case. For example, if a person may be struck because of his occupation without any explanation why the occupation is significant to the case, a prosecutor can justify any exclusion merely by giving the person’s occupation as his reason. Of course, if there is nothing in the record that might challenge the plausibility of the prosecutor’s use of an occupational reason, then there is nothing before the appellate court for review. Furthermore, a mere eoncluso-ry statement will always be insufficient, i.e., if the prosecutor states that he struck a minority venireperson because he was a member of the Democratic Party, and does not give a more detailed explanation, this will always be insufficient. On the other hand, if the prosecutor states that he struck the venireman because he was a member of the Democratic Party and the prosecutor further states that he has not had much success with such individuals, and this stands unrebutted or unim-peached, then this will be a sufficient race-neutral reason, provided it is somehow related to the case to be tried. In sum, the prosecutor’s reason must be exclusively race-neutral; it must be related to the case to be tried; it must be clear, plausible, and reasonably specific. Whimsical explanations will simply not get the job done.

At the present time, there is not anything of an appellate definitive nature to which trial judges might look in order to properly and with confidence resolve the issue. If the prosecutor’s testimony is rebutted, impeached, controverted, disputed, impugned, infragably impeached, etc., then the question should be whether a rational trier of fact would have believed it.

Under Batson it is now permissible for the defendant to use evidence gathered solely from his own trial to establish a *739 prima facie case of the prosecutor’s discriminatory use of peremptory challenges, However, Batson did not indicate what might constitute a sufficient race-neutral explanation, except to say that it “need not rise to the level justifying exercise of a challenge for cause” and that it must “be related to the particular case to be tried.” In this regard, had this Court been presented with a better record in this cause, my conclusion that the prosecutor’s reasons that he gave in this cause, as to why he used peremptory strikes on members of the same race as appellant’s are implausible, might be different.

It is far from clear that the various standards of appellate review, whose catchwords are bandied about so easily in the Court’s opinion, really differ at all from one another in practical effect. 1 Does the so-called “clearly erroneous” standard really require reversal in fewer cases than does the “rational trier of fact” standard? Isn’t a clearly erroneous finding of fact always unsupported by the record and, therefore, an abuse of discretion? Won’t constitutionally sufficient evidence invariably provide support in the record for a finding of fact? Doesn’t a factfinder automatically abuse his discretion whenever the record will not support his finding? Surely no intelligent person really thinks that these so-called standards indeed mean different things as a matter of law any more than they do in fact. Yet we have been willing to let the entire enterprise of appellate evidentiary review turn upon this senseless bickering about which standard is nominally to be applied, when neither one of the parties has bothered to explain, nor could rationally explain, how the kind of review he advocates actually differs from the one he opposes.

In a Batson 2 hearing, the judge is the trier of fact. The fact in issue is whether the prosecutor used one or more peremptory challenges to exclude persons from the jury on account of their race. This is in no sense a question of law. If the prosecutor says that he did not strike venire members because of their race, the defendant is not entitled to relief unless the prosecutor is lying; the chances of his being mistaken about his own motives for exercising a peremptory strike are insignificantly small. If the trial judge believes that the prosecutor is telling the truth, he must overrule the defendant’s motion to quash the jury. Accordingly, when this Court or any appellate court reviews the finding of the trial judge, it must necessarily assess the rationality of his judgment about the prosecutor’s credibility. Since it is the defendant’s burden to prove that the prosecutor in fact exercised peremptory challenges on the basis of race, it is essential under these circumstances that he prove the prosecutor to be lying. If the trial judge nevertheless believes the prosecutor's racially neutral explanation, the defendant’s complaint on appeal must necessarily be that the trial judge’s belief is against the great weight and preponderance of the evidence. 3 This is true by force of logic, and it makes precious little difference whether one invokes some slogan involving the words “abuse of discretion,” “clearly erroneous,” “rational trier of fact,” or “supported by the record.” If the judge abused his discretion, clearly erred, acted irrationally, or was unsupported by the evidence in believing the prosecutor’s racially neutral expla *740 nation, then his judgment should be reversed.

It should be, that is, only if this Court is willing to accept for the first time that evidentiary review by an appellate court includes assessing the rationality of a fact-finder’s conclusions about the credibility of witnesses at trial. Thusfar, to my knowledge, we have not accepted such a proposition, and we should be rather circumspect about doing so now. 4 Both traditionally and as a matter of careful appellate practice, it has always seemed best to regard the credibility of witnesses as a matter largely inaccessible to the appellate courts. Perhaps because we consider the demeanor of witnesses to disclose so much about their, honesty, a cold record is thought especially unrevealing on questions of credibility. But whatever the reason, we have always paid ultimate deference to the fact-finder’s judgments in this area. Until now-, they have been officially unreviewable. 5

This case changes all of that. Our new willingness to assess the credibility of witnesses as an integral part of our appellate evidentiary review is a significant departure from past practice and should be put in better perspective for the bench and bar. In the first place, a careful reading of the Court’s opinion leaves one with the impression that we simply don’t believe the prosecutor’s testimony. And, in point of fact, we don’t. But the trial judge, after all, is the institutional factfinder in such matters, and it has long been the policy of this Court, as it usually is with reviewing courts of last resort, not to substitute its judgment of evidentiary weight or credibility for that of the factfinder. Consequently, whether we think the prosecutor to be lying is largely beside the point. Rather, the only appellate approach with even an arguable claim to legitimacy is one which inquires whether the factfinder was “clearly erroneous,” “abused his discretion,” “acted irrationally,” or was “unsupported by the record” in believing the prosecutor’s testimony. Which of these glosses one puts on the project is fundamentally unimportant, since they all come to the same thing. Far more critical is that neither this Court nor the Courts of Appeals become the actual factfinder in such matters. It is essential that the Court’s opinion in this case not be understood to authorize such a result. 6

*741 Secondly, I do not regard the Court’s opinion to impugn previous case law on the same subject which appears to require a somewhat different approach to appellate review of Batson issues. In particular, I remain committed to the method adopted by the Court in Tompkins v. State, 774 S.W.2d 195 (Tex.Crim.App.1987). 7 That method does not differ in any relevant particular from the one embraced by the Court in the instant cause, except that we will henceforth seriously entertain the claim on appeal that factual findings should be reversed because they depend upon irrational, unsupported, or clearly erroneous judgments about the credibility of witnesses. 8 I am willing to accede to this new proposition because I believe that the role of appellate courts in this State now encompasses a more critical review of factual findings by judges and juries than ever before. That such review should include not only an evaluation of evidentiary weight but of witness credibility as well, seems fitting in view of our recent precedents. But, a word of warning is still in order.

This Court and the courts of appeals are principally reviewing courts. We do not substitute our judgments of witnesses’ credibility and evidentiary weight for those of the factfinder, but affirm those judgments whenever the record discloses sufficient evidence in their support.

Tompkins, 774 S.W.2d at 205 .

[W]e remind trial judges who are confronted with the issue that in their capacities as factfinders the truth of a racially neutral explanation should be judged in part by its plausibility. A trial judge may not abdicate his responsibility to decide whether a peremptory challenge was racially motivated, nor may he leave such questions to an appellate resolution. He is the factfinder in such matters, and must find the facts fairly and judiciously, according to the burdens of proof prescribed by law.

Tompkins, 774 S.W.2d at 205 .

That we now accept responsibility for the evaluation of credibility findings on appeal should not, therefore, be regarded as reducing the deference owed such findings below the level typically accorded other factfindings on appeal.

With these observations, I concur in the judgment of the Court. Even affording full deference to the trial judge’s role as factfinder in this matter, and viewing the testimony and other evidence in a way most favorable to his findings, I too am nevertheless convinced that the credibility of the prosecutor’s racially neutral explanations in this case was so undermined by other circumstances reflected in the record, such as are alluded to in the majority opinion, that no rational trier of fact could have believed them. For this reason, I am convinced the finding of the trial judge that the prosecutor did not exercise peremptory challenges in a racially motivated manner was clearly erroneous because so against the great weight and preponderance of the evidence as to be manifestly unjust.

. The Court’s opinion almost concedes this point after nearly 11 pages reviewing federal case law. We then learn that the "supported by the record" standard, adopted by this Court in Keeton v. State, 749 S.W.2d 861, 870 (Tex.Crim.App.1988), and applied on original submission in this case, is really no different in principle than the "clearly erroneous" standard of Fed.R. Civ.Proc. 52(a). Naturally, therefore, the Court adopts the latter.

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

.“[W]hen the courts of appeals are called upon to exercise their fact jurisdiction, that is, examine whether the appellant proved his affirmative defense or other fact issue where the law has designated that the defendant has the burden of proof by a preponderance of evidence, the correct standard of review is whether after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust.” Meraz v. State, 785 S.W.2d 146 (Tex.Crim.App.1990).

.The majority relies heavily upon definitive interpretation of Fed.R.Civ.Proc. 52(a), by the United States Supreme Court to demonstrate that a federal appeals court may review the credibility of witnesses to some extent:

"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.”

Anderson v. Bessemer City, 470 U.S. 564, 575 , 105 S.Ct. 1504, 1512 , 84 L.Ed.2d 518, 529 (1985).

But until Meraz v. State, 785 S.W.2d at 154 , this Court did not even acknowledge that intermediate appellate courts in Texas have constitutional authority "to resolve questions of weight and preponderance of the evidence[,]" let alone the credibility of witnesses. See Tex. Const. Art. V, Sec. 6. And, given that Texas has no rule in criminal cases even remotely analogous to federal rule 52(a), it is a prodigous leap to the conclusion that Bessemer City has anything at all to do with the problem confronting us here. In terms of Texas law, which controls evidentia-ry review in this State, the rule announced by the Court in this case is made of whole cloth.

. This Court has rather consistently declined invitations to pass upon the credibility of witnesses. E.g., Porter v. State, 601 S.W.2d 721, 723 (Tex.Crim.App.1980). We have done so whether the trier of fact is a jury, as in Coe v. State, 683 S.W.2d 431, 438 (Tex.Crim.App.1984) and Jackson v. State, 672 S.W.2d 801, 804 (Tex.Crim.App.1984), or a judge, as in Bellah v. State, 653 S.W.2d 795, 796 (Tex.Crim.App.1983) and Lang-ford v. State, 578 S.W.2d 737, 739 (Tex.Crim.App.1979). Usually, the Court simply writes that "[t]he trier of fact is the sole judge of the weight and credibility of the witnesses and may believe or disbelieve all or any part of any witness’ testimony.” E.g., Williams v. State, 692 S.W.2d 671, 676 (Tex.Crim.App.1984). Occasionally, we also hold that such judgments by the factfinder are "binding upon this court.” E.g., Green v. State, 146 Tex.Crim.R. 469, 176 S.W.2d 333, 334 (1943). But, whatever the language used to express it, the Court invariably has refused to tamper with factfindings that depend upon the credibility of witnesses.

. In Batson itself the Supreme Court warned that "[sjince the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.” 476 U.S. at 98, n. 21 , 106 S.Ct. at 1724, n. 21.

. We held in Tompkins, 774 S.W.2d at 202 (emphasis added), that:

"[W]here the accused has the ultimate burden to prove a factual allegation, such as purposeful discrimination in jury selection, by a preponderance of evidence, an 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 evidence.”

In light of our subsequent holding in Meraz , note 3, ante, the underscored language better comports with the Court’s present attitude if amended to read: "it is so against the great weight and preponderance of the evidence as to be manifestly unjust.” However, I do not regard the two formulations as prescribing essentially different tests, since it seems clear to me that the failure to find a fact is irrational in our system only when it is against the great weight and preponderance of the evidence.

. It will, of course, not escape the notice of practitioners and judges that the underlying rationale for this proposition is by no means unique to the Batson context, and cannot rationally be confined to the review Batson questions, since it depends for support upon federal rules and case law of general scope and application.