# Whitsey v. State

> Court of Criminal Appeals of Texas · September 19, 1990 · 796 S.W.2d 707

URL: https://www.frixlaw.com/law-library/cases/9776841

## Case

- **Full name:** Larry Williams WHITSEY, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** September 19, 1990
- **Citations:** 796 S.W.2d 707; 1989 WL 47590
- **Precedential status:** Published
- **Opinion:** Dissent by McCORMICK
- **Judges:** Miller, Teague, Berchelmann, Campbell, McCormick, White, Clinton
- **Cited by:** 239 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9776841

## How later opinions describe it (automated extraction)

- holding that trial court’s finding of no purposeful discrimination was clearly erroneous when record did not support prosecutor’s stated reason for striking veniremember and evidence presented by 9 defendant weighed against stated reason
- finding the prosecutor’s race-neutral explanation, that venire member was a teacher and he believed teachers to be more liberal, impermissible where such a group trait was not shown to apply to the challenged juror
- holding that prosecutor’s strike of black female juror because she was a teacher and teachers were “liberal,” when nothing in the record bore out that characterization, was “insufficient as a matter of law”
- holding that prosecutor’s strike of black juror because she was a teacher and teachers were “liberal,” when nothing in the record bore out that characterization, was insufficient as a matter of law
- finding that explanations for peremptory strikes against black venirepersons not supported by the record are insufficient and cannot be afforded such deference

## Opinion text

McCORMICK, Presiding Judge,
dissenting.
I dissent. In one of the most weakly reasoned and internally contradictory opinions ever to come out of this Court, the *742 plurality announces not a new standard of review for Batson questions but the same old Keeton model with a new name. 1 As a result, trial court judges, prosecutors, and the criminal defense bar should be prepared for continuing relitigation of fact questions before this Court.
Having dressed “supported by the record” in a new set of clothes, the plurality opinion states that we really didn’t reject the “clearly erroneous” standard in Kee-ton, just the “nomenclature.” In other words, the standard of review has been “clearly erroneous” all along, the Court just forgot to inform the bench and bar at the time Keeton was delivered. Judge Miller and the plurality, however, never get around to explaining the meaning of “reject” as used in the following quote from Keeton:
“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.” Keeton, 749 S.W.2d at 870. (emphasis added).
We rejected the “clearly erroneous” standard. Not one sentence in Keeton says otherwise. Evidently, the plurality finds it less embarrassing to misconstrue the law than admit a mistake was made in Keeton when we adopted the “supported by the record” standard for review of Batson questions. Regarding the Keeton standard that is being “modified,” Judge Miller announces:
“Believing this analysis (referring to Keeton) 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 Bat-son issues.” Op. at 721, (parenthetical added).
The plurality, however, fails to cite one case, state or federal, that makes the statement that the analysis employed in the “supported by the record” and “clearly erroneous” standards are synonymous. Judge Miller does spend a half page of string cites trying to convince somebody that a “supported by the record” analysis is the same as used in “clearly erroneous.” Op. at 722. The cases cited along with their parentheticals list the conclusions of appellate courts. I cannot find any indication of what analysis took place. Evidently, the plurality believes that if they repeat “supported by the record” and “clearly erroneous” in the same sentence the standards become the same. Judge Miller writes on two occasions that:
“The phrase ‘supported by the record’ is found in conjunction with the clearly erroneous standard in a substantial number of cases.” Op. at 722.
and continues,
“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.” Op. at 726. (footnote omitted).
The alchemy does not work.
We are finally given a glimpse of what the plurality considers as analysis under the “supported by the record” (now clothed as clearly erroneous) standard when the plurality states that in arriving at the original conclusion in this case:
“... we analyzed the evidence in this case in the same manner as the Fifth Circuit, viz: reviewing the record in its *743 entirety by considering the voir dire process including the racial constitution of the venire, the prosecutor’s neutral explanations, and appellant’s rebuttal and impeaching evidence.” Op. at 726.
I take the plurality’s explanation of what analysis takes place under their version of “supported by the record/clearly erroneous” at face value. That is, the explanation of the analysis is a telling statement of what role the plurality thinks trial courts play in fact finding in this State. Trial courts do not exist. The plurality’s explanation makes it crystal clear that “supported by the record” now “clearly erroneous” involves nothing more than reconsidering the evidence and substituting our judgment for that of the trial court.
The plurality does mention the role of the trial court in the fact finding process — in a footnote. See footnote 18 at op. p. 727. Judge Miller, in that footnote, continues his quest to ignore the role the trial court’s findings play in the appellate process. Judge Miller writes:
“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 weighed the evidence differently]_’” Op. at 727.
Judge Miller and the plurality have missed the point. 2 I accept wholeheartedly the requirement that the district court’s findings must be supported by the record. My emphasis on the role of the trial court is used in conjunction with the role the appellate court plays in utilizing the “clearly erroneous” standard. What I reject is the notion that “clearly erroneous” means an appellate court reweighs the evidence based on a cold record and then substitutes its judgment for that of the trial court. The plurality opinion never comes to grips with the primary role the trial court plays in the workings of the “clearly erroneous” standard.
In Anderson v. Bessemer, 470 U.S. 564 , 105 S.Ct. 1504 , 84 L.Ed.2d 518 (1985), Justice White, discussing the clearly erroneous standard, wrote that although the meaning of the phrase “clearly erroneous” was not immediately apparent, certain general principles governed an appellate court’s power to overturn findings of a district court. 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. See Anderson, 470 U.S. at 573 , 105 S.Ct. at 1511 ; see also United States v. United States Gypsum Co., 333 U.S. 364 , 68 S.Ct. 525 , 92 L.Ed. 746 (1948). The “clearly erroneous” standard, however, does not entitle a reviewing court to reverse the trier of fact simply because it is convinced that it would have decided the case differently. A reviewing court must constantly have in mind that their function is not to decide factual issues de novo. If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the appellate court may not reverse even if it would have weighed the evidence differently. Anderson, 470 U.S. at 573 , 105 S.Ct. at 1511 . See Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 , 89 S.Ct. 1562, 1576-77 , 23 L.Ed.2d 129 (1969).
Justice White continued his discussion by explaining the rationale behind the defer *744 ence paid to the trial judge’s determinations:
“The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources.... As the Court has stated in a different context, the trial on the merits should be ‘the “main event” ... rather than a “tryout on the road.”’ Wainwright v. Sykes, 433 U.S. 72, 90 , 97 S.Ct. 2497 [2508] 53 L.Ed.2d 594 (1977). For these reasons, review of factual findings under the clearly-erroneous standard — with its deference to the trier of fact — is the rule, not the exception. ” Anderson, 470 U.S. at 574-75 , 105 S.Ct. at 1512 (emphasis added).
Finally, the Court noted that when factual determinations hinge on the credibility of witnesses even greater deference is accorded the trial court’s findings. See Wainwright v. Witt, 469 U.S. 412 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985). 3 When a trial judge’s finding is based on the credibility of 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. Anderson, 470 U.S. at 575 , 105 S.Ct. at 1512 .
In case there is any confusion over the plurality’s lack of understanding of how the “clearly erroneous” standard is supposed to function let us examine the following passage from the plurality opinion.
“While this evidence was more fully discussed in our original opinion, the dissent 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.” Op. at 727.
First, the trial court made a specific finding that the appellant did not by a preponderance of the evidence prove that the prosecutor in this case had engaged in purposeful discrimination in the exercise of the State’s peremptory challenges. In other words, the trial court found the prosecutor’s explanations credible.
The plurality, unable to accept this, tells us that the prosecutor’s “landmark” system doesn’t fit their idea of how a landmark system ought to work. The plurality, *745 however, at this point, cannot bring themselves to stating the trial court’s tacit approval of the prosecutor’s explanation was implausible. They disingenuously state that the prosecutor’s explanation was “hardly plausible.” Op. at 727. 4 Again, I point out that Anderson teaches that a proper analysis under “clearly erroneous” demands that the appellate court determine whether the trial court’s account of the evidence is “plausible.” In this case the plurality has interposed itself between the trial court’s findings and is deciding the factual issues de novo without regard for the credibility determinations the trial court made.
The plurality also raises an argument that I have advanced a “combination of reasons” argument that would justify strikes even if not racially neutral. Op. at 727. I have not and do not advocate the proposition that a race neutral explanation negates a race based explanation of a strike. My position is that the trial court may accept reasons for strikes that are influenced by intuitive assumptions, for example, eye contact and demeanor. Lance, 853 F.2d at 1181. Lance specifically teaches that even though the prosecutor may have accepted a white juror with some characteristics similar to the black persons he rejected, the trial court may still find a permissible strike based on an intuitive basis. In other words, a record does not have to reflect a perfect match as far as comparison evidence to pass constitutional muster. The plurality has chosen the posture that the State’s reasons were a pretext, in part, because comparison evidence indicates that the State did not strike all veniremembers close in age to the defendant. Op. on original submission at 726-727. The Lance court clearly rejected such a notion. Lance, 853 F.2d at 1181. See the discussion, infra, regarding strikes made on multiple grounds. 5
I now turn to the instant case and apply the federal “clearly erroneous” standard of review. The record reflects that appellant is a black male and that no blacks served on his jury. Seven blacks were on the jury panel. One black was struck for cause; the remaining six blacks were peremptorily struck by the State. 6 Six of the State’s ten peremptories were used to strike blacks.
The record also reveals that voir dire was limited to forty minutes per side. Most of the prosecutor’s questions to the panel were general in nature with limited individual questioning taking place before the bench on challenges for cause. Appellant’s counsel engaged in general questioning with a substantial amount of individual queries to jurors expressing concern over particular questions.
The record in this case also reflects that the trial judge played an active role in questioning the testifying prosecutor as well as moving both parties toward the *746 development of evidence that would allow for resolution of the Batson question. On two occasions the trial court inquired into the prosecutor’s rationale for striking jurors either based on occupation or religious preference. 7 The plurality has totally ignored the trial court’s role in this case. The trial court judge was not asleep at the wheel; rather, the judge was actively seeking a basis on which to rule as to the question of discrimination.
At the Batson hearing, under thorough direct and cross-examination, the prosecutor for the State gave the following reasons for peremptorily striking black jurors. Appellant argues that the State’s racially neutral reasons were a sham or pretext and therefore inadequate to rebut his inference of intentional discrimination.
Veniremember No. 7, Gloria Mitchell, was the first black struck. The prosecutor scribbled on her juror information card “HPD,” “Vice” and “DPS.” The prosecutor testified that these notes indicated that Mitchell had friends in the police department and Department of Public Safety, which would normally make her a good state’s juror. Mitchell’s responses, however, to defense voir dire questioning, particularly her intonation, left the prosecutor questioning whether she would believe an officer’s testimony. The prosecutor testified that he was concerned that Mitchell’s connection with some law enforcement officials might predispose her to disbelieve the police witnesses crucial to the case at bar.
Appellant claims, however, that in peremptorily striking Gloria Mitchell the prosecution struck a good State’s witness because of her connection with law enforcement. In United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir.1987), the prosecutor’s reasons for striking a black venireper-son were based on her posture and demean- or which indicated she might respond negatively to the government’s case. The record did not suggest that prosecutor’s intuitive assumption was based on race. In United States v. Lance, 853 F.2d 1177 (5th Cir.1988), the defendant complained that the prosecutor provided an incredible explanation for a peremptory strike and the trial judge erred by accepting it as true. The Lance court noted:
“... [Ajlthough the prosecutor may have accepted a white juror with some characteristics similar to the black persons he rejected, the prosecutor also gave reasons for his selection that we are unable to evaluate, such as eye contact and demeanor. Moreover, the vagarious process of choosing jurors need not be controlled by a simple equation; it may be influenced by intuitive assumptions that are not fatally suspect merely because they are not quantifiable, see Forbes, 816 F.2d at 1010-11 , and by the interplay of various factors, see United States v. Lewis, 837 F.2d 415, 417, n. 5 (9th Cir.1988). Here, the trial judge personally observed the proceedings and found that the prosecutor’s explanation for striking two black members of the venire was not a pretext for racial discrimination. We must accept the judge’s credibility choice and affirm his finding on these facts.” Lance, 853 F.2d at 1181 . (emphasis in original omitted). Cf. United States v. Romero-Reyna, 867 F.2d 834, 836-37 (5th Cir.1989) (remand to trial court for fact findings regarding prosecutor’s use of the T’ rule in striking a minority juror).
Since the trial judge in the instant case was in the best position to observe the proceedings and judge the credibility of the prosecutor giving his explanation I would not disturb his finding.
Next, the State exercised a peremptory challenge against black venireperson No. 8, Sherry Ramsey. The prosecutor testified that he struck Ramsey because of (1) her husband’s profession and (2) her age. Since Ramsey was married to a man who worked in a predominately female profession and who was probably a “social worker type,” the prosecutor felt that she would *747 not be a good state’s juror. In addition, the prosecutor expressed concern about Ramsey’s age. She was twenty-four years of age and close to the age of appellant.
Appellant argues that the peremptory strike exercised against Ramsey was not based on her age and points out that the State did not strike six white venirepersons who were also close in age to the appellant. While disparate treatment of jurors with similar characteristics is suspect, the prosecutor in this case gave an alternative explanation that was racially neutral subject to the scrutiny of the trial court. 8 The trial judge was in the best position to make a credibility choice based on the demeanor and behavior of the prosecutor as to the legitimacy of his explanation. Again, relying on the trial court judge’s credibility choice I would affirm his finding.
The prosecutor struck veniremember No. 24, Mayrine Fuller. On her juror information form, the prosecutor circled Fuller’s occupation of teaching and noted her failure to fill out whether she served on a prior jury. He testified that he struck Fuller because he viewed teachers to be too liberal and forgiving. The record also reflects that the prosecutor struck the only other teacher on the panel, a nonblack. 9 I find no reason that the trial judge’s finding that the prosecutor’s explanation was racially neutral should be disturbed.
The prosecutor exercised a peremptory challenge to strike Glenda Johnson, venire-member No. 32. The prosecutor testified that he did so because Johnson indicated that Pentecostal was her preferred religion. The prosecutor believed this to be a “fringe type” religion because Pentecostals “speak in tongues” and do some things “out of the ordinary.”
The prosecutor also peremptorily struck veniremember No. 37, Willie Lee Hunt, because of Hunt’s involvement in the Church of God, a religion the prosecutor knew nothing about. Hunt was the only venire-member who indicated a preference for this particular denomination. Also marked on Hunt’s information card was Hunt’s failure to respond to whether he had been an accused in a criminal case. The prosecutor further testified that he could not specifically remember whether he struck Hunt merely because of Hunt’s religious preference, or whether the omitted portion of the information form was also a consideration. 10 The prosecutor, however, testified that Hunt’s failure to respond to whether he had been accused in a criminal case could have been a factor in the exercise of his strike.
Appellant intimates that the prosecutor’s peremptories exercised against venireper-sons Johnson and Hunt based on their religious affiliation were suspect.
The trial court, however, found that the prosecutor’s explanations regarding his reservations about what he considered “fringe type religions,” and what kind of jurors practitioners of those religions would make, were racially neutral. In addition, the prosecutor struck a nonblack on the basis of his religion, opining that he thought the religious affiliation made the juror too liberal. The trial court’s finding of race neutrality in the exercise of these strikes should not be disturbed.
Last, the State exercised a peremptory challenge on veniremember No. 39, Reginald Ardoin. The prosecutor testified that he was concerned that Ardoin was only twenty-one years of age and that Ardoin’s spelling on the information form was very poor. Specifically, Ardoin misspelled Riv *748 erside General as “Riveside Genral” and misspelled his religious preference of Baptist as “Bapaitsm.” The record reflects that Ardoin was the only veniremember under the age of twenty-four. The prosecutor expressed concern over Ardoin’s ability to act as a competent juror based on an apparent lack of educational skills.
Appellant contends that the prosecutor’s explanation for striking venireperson Ar-doin was not racially neutral. Appellant, however, does not provide any basis for undermining the trial judge’s determination that the strike was exercised in a racially neutral fashion.
Appellant also argues that the prosecutor’s indication of the race of black venire-members on the juror information forms provides evidence of the State’s intentional discrimination that was not rebutted. At the Batson hearing the prosecutor explained that he marked “B” on the juror information forms not for purposes of peremptory strikes, but rather for purposes of visual placement of the members on the panel. The prosecutor explained the notations as follows:
“[I]t helps a lot just in placing faces and placing jurors, not just placing the minority jurors but when you are sitting in front of a panel with 50 people trying to figure out who juror No. 26 is, frankly, looking at my sheet, I know that Juror No. 26 is two down from the black female that at the time would have been in the third row. That’s pretty much the basis for laying out, I guess, landmarks of sorts in the entire jury panel.
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“It’s- helpful, more helpful after all the voir dire when I’m sitting up at counsel table when I look up and refresh my memory of faces of what people have done during the voir dire.”
The record also reflects that the prosecutor made other notations on several of the juror information forms which were marked with “B.” Professions were circled, unanswered portions of the forms were marked, and veniremember statements made during voir dire were noted. The prosecutor had also marked “0” to designate a juror of the Oriental race.
Appellant attempted to establish on cross-examination of the prosecutor that the only explanation for marking “B” on the juror information cards was to identify jurors for strikes on the basis of race. Appellant was not successful.
Had the prosecutor intended to strike venirepersons based solely on the basis of race then no additional notations or marks of any kind on the juror information cards would have been necessary in order for the State to exercise peremptory strikes in a discriminatory manner. The trial court judge observed the demeanor and behavior of the prosecutor throughout the Batson hearing and was in the best position to determine whether the prosecutor had engaged in impermissible conduct. I find no reason in the record for overruling the trial judge’s credibility choice.
Last, I point out what has been painfully obvious to me throughout the entire plurality opinion. The plurality’s “clearly erroneous” standard is “nomenclature” for an “analytic tool” based on subjectivity with lip service paid to the role of the trial court. After engaging in 14 pages of “analysis” the plurality states:
“[I]n 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.” Op. at 728 (underline added).
The plurality sitting as a court de novo has reweighed the evidence and decided it “sufficiently rebuts” the prosecutor’s neutral explanations. I dissent and dissent again. “Sufficiently rebuts” is not “nomenclature” for the federal standard of “clearly erroneous.”
Under the federal clearly erroneous standard, there is no basis for upsetting the trial court’s findings in the instant case. I would grant the State’s motion for rehear *749 ing, affirm the Court of Appeals, overrule the Keeton standard of review and adopt the federal clearly erroneous standard of review for Batson hearings.
BERCHELMANN, Judge,
dissenting.
I dissent for the reasons stated in my dissenting opinion to the Court's opinion on original submission. Page 716-717 (Ber-chelmann, J., McCormick, P.J., White, J., dissenting).
Whether this Court chooses to call its standard of review “supported by the record,” as the majority of this Court did in Keeton v. State, 749 S.W.2d 861, 870 (Tex.Cr.App.1988), or whether a majority of this Court now chooses to call the Keeton standard “synonymous with the ‘clearly erroneous’ ” analysis, page 712 (opinion on rehearing), or whether this Court decides that the clearly erroneous standard is separate and distinct from the Keeton standard, page 742 (McCormick, P.J., dissenting) (opinion on rehearing), the end result in this cause should be the same. This Court should defer to the trial court's findings.
The trial court’s findings are “supported by the record” for the reasons set forth in my dissenting opinion on original submission. Page 717, supra. These same reasons are correctly cited by the Presiding Judge in his dissenting opinion on motion for rehearing to demonstrate that the findings are not “clearly erroneous.” Page 742, supra.
For these reasons, I respectfully dissent to the majority’s repeated refusal, through whichever semantic distinction it chooses at the moment, to defer to the findings of the trial judge in the case at bar.
WHITE, J., joins this opinion.
. Keeton v. State, 749 S.W.2d 861 (Tex.Cr.App.1988).
. Any attempt to deemphasize the role of the trial court under the federal clearly erroneous standard is incorrect. See Childress, “Clearly Erroneous": Judicial Review over District Courts in the Eighth Circuit and Beyond, 51 Mo.L.Rev. 93 (1986).
. This Court has consistently followed the theory in Wainwright of deferring to the trial court judge when determinations of bias are based upon demeanor and credibility because those assessments are peculiarly within a trial judge’s province. See Ellis v. State, 726 S.W.2d 39, 44 (Tex.Cr.App.1986), cert. denied, 480 U.S. 926 , 107 S.Ct. 1388 , 94 L.Ed.2d 702 (1989); Ransom v. State, 789 S.W.2d 572, 582 (Tex.Cr.App.1989); Davis v. State, 782 S.W.2d 211 (Tex.Cr.App.1989).
The Supreme Court in Wainwright explained the deference paid to a trial judge’s determinations citing Reynolds v. United States, 98 U.S. 145, 156-57 , 25 L.Ed. 244 (1878). The Court noted that the manner of the juror while testifying is oftentimes more indicative of his opinion than his testimony. The trial judge observes the demeanor of a particular witness but may not be able to spread those observations on the record. Thus, the reviewing court should not reverse except in a clear case.
I discern no logical or legal reason for not deferring to the trial court judge’s credibility assessments in Batson questions when this Court extends that level of deference in the death penalty context.
. Several pages later the plurality does make a stab at applying their version of clearly erroneous when they do term the race notations of the prosecutor "implausible.” Op. at 727.
. I also point out that on original submission the majority made a point of castigating the State for preparing for the Batson hearing that occurred in this case. Op. on original submission at 727. I revisit this point only to comment that the majority’s and now plurality’s conclusion in this case is in part based on the implication that the prosecutor’s explanations were "too good.” The plurality is contending the prosecutor’s six to eight hours of preparation for the Batson hearing was improper and that it necessarily follows that his explanations were not worthy of belief. Of course, not one speck of caselaw is cited to support this proposition.
. Citing Forbes, Lance, and Williams, the plurality also intimates that if the State removes all minority members from a venire that we can assume that intentional discrimination took place. Op. at 728. At the best the presence or absence of minorities on a petit jury is a factor the trial court judge will consider with the rest of the evidence presented by the State and the defendant. Any implication that a proper ratio of minorities to white veniremembers is required for a "good” jury is incorrect. See Holland v. Illinois, — U.S. -, -, -, 110 S.Ct. 803, 804-06 , 107 L.Ed.2d 905 (1990) (Rejecting the Sixth Amendment claim that a petit jury has to reflect a fair cross section of the community). Likewise, the Fourteenth Amendment is not the appropriate vehicle for the Fifth Circuit or this court to use to insure that "x” number of a particular type of veniremember is seated. Batson is directed to eliminating individual discrimination; not insuring proportional representation of any group on a jury.
. Trial courts in a capital murder voir dire routinely take over questioning to resolve questions involving juror qualifications. See Janecka v. State, 739 S.W.2d 813, 833 (Tex.Cr.App.1987). Nothing precludes trial court involvement in ferreting out intentional discrimination in the use of peremptory strikes.
. Lance, 853 F.2d at 1181 .
. In Slappy v. State, 503 So.2d 350, 355 (Fla.App. 3 Dist.1987), the reviewing court rejected the prosecutor’s explanation for a peremptory strike based on an assumed employment group bias. The reviewing court concluded that the prosecutor excluded a black teacher on the basis of race because a nonblack teacher was not challenged.
. The Fifth Circuit in Forbes, 816 F.2d at 1011 , no. 7, citing United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986), noted that the failure by a prosecutor to explain every peremptory strike of black jurors is not necessarily fatal to the prosecutor’s ability to rebut the prima facie case. Nor will the explanation of most of the strikes on nonracial grounds necessarily satisfy his burden.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9776841. Public record. Not legal advice.