# Keeton v. State

> Court of Criminal Appeals of Texas · April 6, 1988 · 749 S.W.2d 861

URL: https://www.frixlaw.com/law-library/cases/9779404

## Case

- **Full name:** Perry KEETON, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 6, 1988
- **Citations:** 749 S.W.2d 861; 1988 Tex. Crim. App. LEXIS 61; 1988 WL 28681
- **Precedential status:** Published
- **Opinion:** Concurrence by Teague
- **Judges:** Miller, Teague
- **Cited by:** 252 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Modified by Whitsey v. State, 796 S.W.2d 707 (1990).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9779404

## How later opinions describe it (automated extraction)

- holding peremptory challenge of nonminority veniremember with a similar characteristic supports trial court’s finding of a race-neutral explanation
- noting that a defendant must do more than simply disagree with the State's explanations in order to rebut the State’s race neutral reasons

## Opinion text

TEAGUE, Judge,
concurring.
One issue that is before this Court to resolve is whether the trial judge’s finding that he believed the racially neutral explanation the prosecutor gave him as to why he exercised a peremptory strike on venire- *871 person Littleton is supported by the evidence. There is no evidence in this record that might support a contrary finding. If believed, the prosecutor’s explanation was sufficient to demonstrate that he exercised a peremptory strike on Littleton for non-racial reasons. The trial judge believed him, and the record supports that finding.
I write because I do not believe that the majority opinion is sufficiently clear on the fact that the prosecutor, who was the only witness to testify on the issue, was never cross-examined by appellant’s attorney, either when the prosecutor testified at trial or when he testified at the post-trial hearing that this Court ordered to be conducted. I repeat: The only testimony or evidence that the trial judge had to decide whether the prosecutor exercised one of his peremptory strikes on Littleton because of racial or race-neutral reasons was the un-impeached testimony of the prosecutor. The trial judge chose to believe the prosecutor, whose testimony was unimpeached, and the evidence is sufficient to support the trial judge’s finding.
Because the majority opinion correctly holds that the evidence is sufficient to support the trial judge’s finding that the prosecutor gave a “race-neutral” explanation or reason why he used a peremptory strike on the black venireperson Littleton, I concur, albeit I do so reluctantly. I do not concern myself with the two peremptory strikes the prosecutor used on two other venireper-sons who were of the same race as appellant because I find that the evidence is more than sufficient to support the trial judge’s findings that the prosecutor’s explanations or reasons for exercising his peremptory strikes on those persons were “race-neutral”.
Littleton concerns me, and that is why I file this concurring opinion. The only explanation the prosecutor gave for striking Littleton was that approximately 11 or 12 years previously Littleton had been convicted three times for being a “bootlegger”, a misdemeanor offense that did not disqualify Littleton from serving as a juror in this cause. There is nothing, however, that reflects or indicates that in the intervening eleven or twelve years Littleton had continued his “bootlegging” activities, or that he, Littleton, during that period of time, had engaged in any other criminal activity, or that Littleton was other than a “fine” and “upstanding” citizen of Navarro County when he served as a prospective juror in this cause. Thus, at least record wise, there is nothing before us that might reflect or indicate that Littleton would not have made a “good” juror for the State, as well as the defense. In fact, the record clearly indicates to me that Littleton would probably have made the State a “good” juror. That, however, is not the issue before this Court to resolve. The issue before this Court to resolve is whether there is sufficient evidence to support the trial judge’s believing the prosecuting attorney’s race-neutral explanation as to why he used a peremptory strike on Littleton. As the law now stands, and given the record before us, I am compelled to vote to uphold the trial judge’s finding that he believed the “race-neutral” explanation or reason that the prosecutor gave.
The record reflects that counsel for appellant never challenged the “race-neutral” explanation the prosecutor gave as to why he exercised one of his peremptory strikes on Littleton. In fact, the record reflects that when the prosecutor testified after he exercised a peremptory strike on Littleton, as well as when he testified at the post-trial hearing, he was never cross-examined by defense counsel, although counsel was apparently not prohibited from cross-examining him. 1 Nor was any effort made by defense counsel to have the trial judge *872 make a comparison analysis in deciding whether the prosecutor’s “neutral explanations” were rebutted or impeached, i.e., no effort was made to show the trial judge that there was no difference, except race, between Littleton and any unchallenged white venireperson. In sum, all that we have before us are the reasons the prosecutor gave for striking Littleton, which reasons are facially “race-neutral”, and the trial judge’s finding that he believed those reasons. Given the state of the record, I am unable to find a basis for overruling the trial judge’s finding.
Although I find that any rational trial or appellate court judge could have found that although the race-neutral explanation by the prosecutor had the ring of truth or plausibility to it, he could have also found it was actually fallacious (specious); thus, I am unable to say that the record would support the finding that the trial judge should have disbelieved the prosecutor and rejected the “race-neutral” explanation that the prosecutor gave as to Littleton.
In Tompkins v. State (Tex.Cr.App. No. 68,870, October 7, 1987) (presently pending before the Supreme Court of the United States on appellant’s petition for certiorari, see Tompkins v. Texas, Supreme Court Number 87-6405), the following was pointed out: “A trial judge, in determining whether a prospective juror has been challenged by the prosecution on a racial basis in violation of the United States Constitution ..., has an obligation to weigh the evidence and assess the credibility of the witnesses (footnote omitted). In short, the trial judge is a fact-finder. If from the evidence he believes that the prosecutor exercised peremptory strikes to exclude venirepersons based upon racial considerations, it is his duty to so find and to provide appropriate relief. 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.” (Page 8, slip opinion.) The following was also pointed out in Tompkins, supra: “[A]t a hearing conducted pursuant to Batson, the trial judge is the factfinder, and it is his responsibility to weigh the evidence and determine the credibility of the witnesses. A reviewing court should reverse his findings only when they are not supported by sufficient evidence or, as we often say, for an ‘abuse of discretion.’ ” (Footnote 6A, page 9, slip opinion).
In Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), the Supreme Court held, inter alia, that the prosecutor’s exercise of his peremptory strikes on venirepersons of the same race as the defendant did not per se constitute a denial of equal protection. Although the Supreme Court expressly held in Swain, supra, that prosecutors may not exclude members of the defendant’s race through the exercise of peremptory strikes solely on the basis of race, it also held that “the defendant must, to pose the issue, show the prosecutor’s systematic use of peremptory challenges against Negroes over a period of time ...” 85 S.Ct. at 839 . The Court further held that a presumption that the prosecutor 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 are not qualified to serve as jurors existed, and merely because no member of the defendant’s race had ever served as a juror in a criminal case which the prosecutor had prosecuted was insufficient to establish a prima facie case of purposeful discrimination in his jury selection process or in the exercise of his peremptory strikes on members of the Negro race. Thus, under Swain, supra, in order for the defendant to establish a pri-ma facie case of racial discrimination in the prosecutor’s jury selection process, it was necessary for him to show that the prosecutor had repeatedly struck blacks in a number of cases which he had prosecuted. As case law shows, the above test effec *873 tively insulated from challenge the prosecutor’s use of his peremptory strikes on veni-repersons who were of the same race as the defendant, and he was thus free to strike a venireperson who was of the same race as the defendant — almost with impunity. See, for example, Ridley v. State, 475 S.W.2d 769 (Tex.Cr.App.1972). This Court’s records reflect that even in counties of this State which have large numbers of members of the Negro race, and the defendant was of that race, few members of that race ever got to serve as jurors because they were peremptorily struck, usually by the prosecutor. For example, “In 100 felony trials in Dallas County in 1983-1984, prosecutors peremptorily struck 405 out of 467 eligible black jurors; the chance of a qualified black sitting on a jury was one-in-ten, compared to one-in-two for a white. (Footnote omitted.)” 106 S.Ct. at 1727.
However, Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), changed the rules, as far as what it takes for the defendant to establish a prima facie case of racial discrimination in the prosecutor’s jury selection process and what it takes for the prosecutor to overcome such prima facie case once it has been established. A majority of the Supreme Court in Batson, supra, reaffirmed that the Equal Protection Clause of the Federal Constitution prohibits a prosecutor from striking potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable to impartially consider the prosecutor’s case against a black defendant, and held that once the defendant established a prima facie case of racial discrimination in the prosecutor’s use of his peremptory strikes on members of the same race as the defendant the prosecutor was then required to come forward and give a race-neutral explanation as to why he struck a venireperson of the same race as the defendant. In that instance, the prosecutor may not simply refuse to disclose his reasons for exercising his strike. He is further prohibited from merely saying that “I did not strike the venireperson because of race.” He has to go further and articulate a race-neutral explanation related to the particular case to be tried, i.e., he has to “give a ‘clear and reasonably specific’ explanation of his ‘legitimate reasons,’ for exercising [his peremptory strikes].” However, once the prosecutor does that the defendant’s prima facie case is rebutted and the ultimate decision whether the prosecutor’s “race-neutral” explanation is believable rests solely with the trial judge, subject to review by an appellate court.
Under Batson, supra, once the defendant makes a prima facie showing of racial discrimination based on the prosecutor’s use of his allotted peremptory strikes on persons of the same race as the defendant, the burden then shifts to the prosecutor to come forward and give a race-neutral explanation for the exercise of each of the peremptory strikes that he used on persons of the same race as the defendant. The prosecutor may not justify exercising a peremptory strike on a prospective venire-person of the same race as the defendant on hunch or intuition. The prosecutor must respond with a “race-neutral explanation”, and the trial judge, as the fact finder, is free to believe or disbelieve his testimony.
In sum, and contrary to the law as it existed before Batson, supra, once the defendant has established a prima facie case of racial discrimination in the prosecutor’s jury selection process, the prosecutor now must open his closet and release therefrom for all the world to see his reasons, which must be race-neutral, why he exercised a peremptory strike on a venireperson who was of the same race as the accused. The prosecutor must, when required to do so, justify and explain, by giving race-neutral reasons, why he used a peremptory strike on a venireperson who was of the same race as the defendant.
Almost needless to say, Batson, supra, sent shock waves throughout prosecutors’ offices of this Nation, and apparently gave many defense attorneys what now appears to be a false impression, that merely be *874 cause the prosecutor struck a venireperson who was of the same race as the defendant and a prima facie case was found to be established, that ended the matter. I find from the cases that have come before this Court involving resolution of the “Batson” issue, as well as those I have read that have come before the courts of appeals, and even cases from other jurisdictions, that it appears that both sides, in particular the defense side of the bar, sorely misper-ceived what the Supreme Court had stated and held in Batson, supra. If there is one thing that the Supreme Court did not hold in Batson, supra, it was that prosecuting attorneys may not exercise a peremptory strike on a member of the same race as the accused. Under Batson, supra, a prosecuting attorney may exercise a peremptory strike on a member of the same race as the accused provided that the exercise of that strike is not racially motivated. 2 A careful reading of Batson, supra, also makes it clear that when the accused establishes a prima facie case of racial discrimination, because the prosecutor exercised his peremptory strikes on members of the same race as the defendant, the defendant’s work has just commenced, and not ended. When the prosecutor comes forth and gives a “race-neutral explanation” as to why he struck a minority venireperson who is of the same race as the accused, the accused must clearly demonstrate on the record why the trial judge should disbelieve the prosecutor’s explanation. If the trial judge believes that the prosecutor’s reasons are race-neutral, and there is nothing in the record to show that the trial judge’s decision was erroneous, the appellate court will have no choice but to state the following: “The trial judge is the trier of the facts and judge of the credibility of the witnesses and the weight to be given to the testimony, i.e., he may accept or reject the testimony of the witnesses in deciding the issues. The evidence in this cause supports the trial judge’s finding.” See and compare the situation involving the trial judge’s decision to admit a challenged confession of the defendant, and see, for example, Mays v. State, 726 S.W.2d 937, 946 (Tex.Cr.App.1986), Hawkins v. State, 613 S.W.2d 720, 731 (Tex.Cr.App.1981).
The Supreme Court in Batson, supra, unfortunately did not inform us of what it believed might constitute a sufficient “race-neutral explanation” by a prosecuting attorney to rebut a defendant’s prima facie case of racial discrimination in the prosecutor’s exercise of his peremptory strikes on members of the same race as the defendant. Nor did it inform us how much detailed information the prosecutor must give in order that a “race-neutral explanation” might be accepted by the trial judge. The only thing the Supreme Court told us is that the prosecutor’s reason need not reach the level of a challenge for cause. In the concurring opinion that he filed in Bat-son, supra, Justice White advised us that “Much litigation will be required to spell out the contours of the Court’s Equal Protection holding today, and the significant effect it will have on the conduct of criminal trials cannot be gainsaid.” 106 S.Ct. at 1725-1726 . This is perhaps very true. However, it would appear that if Batson, supra, is to be given any substantive meaning, a prosecutor should not be permitted to sustain his burden by giving what appear to be facially specious “race-neutral” reasons, such as “I struck the juror because he appeared to be inattentive when I spoke with him, but he appeared attentive when defense counsel spoke with him”; “I struck the juror because she held her head in her hands when I spoke to her, but when defense counsel spoke she looked him straight in the eye”; and “I struck the juror because I believed that she lived in the same neighborhood as the defendant.” These amount to nothing less than reasons for exercising a peremptory strike. It is true, of course, that each of the above reasons is a generic “race-neutral” reason, but there is nothing in any of the reasons that might cause it to be related to the case to be tried. “If such easily generated ex *875 planations are sufficient to discharge the prosecutor’s obligation to justify his strikes on non-racial grounds, then the protection erected by the Court today may be illusory.” (Marshall, J., concurring opinion, 106 S.Ct. at 1728 ).
It appears, however, that until the Supreme Court clarifies Batson, supra, if the prosecutor gives a race-neutral explanation, that appears more in the form of a conclusion rather than support for that conclusion, 2A and the trial judge believes that reason, that will be sufficient to rebut the defendant’s prima facie case of racial discrimination in the jury selection process, and further will be sufficient for an appellate court to sustain the trial judge’s decision to believe the prosecutor.
In this cause, four members of appellant’s race were on the jury panel from which the jury was selected. One of the four was selected to be on the jury. The prosecutor exercised three of his allotted fifteen peremptory strikes on the remaining three black persons. The prosecutor, after he exercised each strike, testified and gave a race-neutral reason. He later confirmed this in the post-trial “Batson” hearing.
After this Court remanded this cause to the trial court for a “Batson” hearing, based upon the prosecutor’s concession, the trial judge found as a matter of law that appellant established that the prosecutor struck members of the same race as he was (Negroid), thus finding that appellant established a prima facie case of racial discrimination in the prosecutor’s jury selection process. The trial judge expressly found the following: “2. The Court finds that the prosecutor exercised premptory [sic] challenges to remove from the venire [three] members of the defendant’s race; 3. The Court finds that the attorney for the defendant raised an inference of purposeful discrimination; 4. The Court finds that the prosecutor came forward with a neutral explanation for each of the premptory [sic] challenges of prospective jurors of the defendant’s race; 5. The Court finds that tke explanation given by the prosecutor in each case is completely credible (my emphasis); and 7. The Court finds that there was no purposeful discrimination by the prosecutor in the use of his premptory [sic] strikes whatsoever.” Given the fact that the trial judge found that appellant established a prima facie showing of purposeful racial discrimination by the prosecutor when he exercised three of his fifteen peremptory strikes on members of the same race as appellant, I believe that the main and primary issue that is before this Court is whether the prosecutor was compelled to give a more detailed explanation as to veni-reperson Littleton. If all that is required is the mere giving of a race-neutral reason, without giving any details to support the reason, then the trial judge had a basis on which to make his express finding that he believed the prosecutor’s race-neutral explanation why he peremptorily struck Lit-tleton.
Pertinent to the black venireperson Lit-tleton, the record reflects that Littleton testified during his voir dire examination that he was “not acquainted with anybody in ... the District Attorney’s Office.” Lit-tleton also testified that he had not “[ever] had any trouble with any police officers.” In all respects, Littleton was shown to be an acceptable capital murder juror. At no time during his voir dire examination of Littleton did the prosecutor question Little-ton about any of his past criminal transgressions or his past dealings with any member of the law enforcement establishment, including the prosecutor or any member of his office who prosecuted appellant three times for “bootlegging”. The record *876 also reflects that after Littleton’s voir dire examination was completed the prosecutor requested, and was granted, a short recess “to check out some records.” I assume by this statement that the prosecutor was unfamiliar with appellant’s past criminal transgressions and wanted time to learn if his office or the Clerk’s Office reflected anything regarding Littleton’s possible pri- or criminal record. After the recess, the prosecutor then exercised one of his peremptory strikes on Littleton. Thereafter, the prosecutor testified that he exercised a peremptory strike on Littleton because on October 12, 1974, (this trial occurred in 1986, approximately twelve years later), Littleton was convicted of transporting whiskey and wine in a dry area, and on December 17, 1975, he was convicted of committing two separate transporting whiskey and wine in a dry area offenses. The prosecutor gave the following reason for striking Littleton. “I exercised my right to peremptorily challenge Mr. Little-ton based solely upon these prior misdemeanor convictions and run-ins with the law and did not exercise that challenge because Mr. Littleton was of any particular race, color or creed.” However, there is nothing in the record that might reflect or indicate, except possibly Littleton decided to retire in 1975 from being a “bootlegger”, that Littleton had engaged in “bootlegging” or other criminal activities after 1975. At the “Batson” hearing, without giving any details, the prosecutor embellished upon the reason he gave at trial, “because of [appellant’s] contacts at and by my office, he could not be fair to the State of Texas.” The prosecutor, however, never explained what “contacts” Littleton might have had with him or his office which caused the prosecutor to later conclude that Littleton could not be a fair and impartial juror for the State. It would certainly appear that if Littleton’s “contacts” with the prosecutor or his office had resulted in any noteworthy unpleasant experience, the prosecutor would have developed this during his voir dire examination of Littleton, but he didn’t. As noted, Littleton testified during his voir dire examination that he was not acquainted with anyone in the District Attorney’s Office. Unfortunately, Lit-tleton was not subpoenaed by either the prosecutor or appellant to testify, nor did he testify at the post-trial “Batson” hearing. In any event, there is nothing in the records before this Court that pertain to this cause that might reflect or indicate that simply because of the prior misdemeanor convictions Littleton had sustained “he could not be fair to the State of Texas.” Although I can appreciate the prosecutor’s concern, after he had learned that Littleton had previously been convicted three times of “bootlegging”, about letting Littleton serve as a juror in this cause, I am unable to conclude that this reason, without more, would cause him to be per se unacceptable as a juror in this cause. I am unaware of any studies or research that might indicate that “bootleggers” make poor jurors for the State. Given the lengthy period of time that had elapsed since Littleton was last convicted of “bootlegging”, it appears to me that he might very well be classified as a “reformed bootlegger”, and, if so, much like a “reformed drunk”, he could be a very dangerous juror for the defense, and not the State.
In Batson, supra, the Supreme Court held that once a prima facie case has been established by the defendant the burden then shifts to the prosecutor to come forward with a race-neutral explanation that is related to the case to be tried — why he exercised his peremptory strike or strikes on persons of the same race as the defendant, and that such relates to this case. The Supreme Court also held in Batson, supra: “The prosecutor must articulate a neutral explanation related to the particular case to be tried.” 106 S.Ct. at 1723 . He “must give a ‘clear and and reasonably specific’ explanation of his ‘legitimate reasons’ for exercising the challenges.” 106 S.Ct. at 1724 .
Exactly what does all of this mean? What exactly is the burden that the prosecutor in this cause had to satisfy once appellant established his prima facie case? *877 Exactly how heavy is this burden that the prosecutor must carry? Under Batson, supra, the prosecutor has not satisfied his burden if he merely states that he was not racially motivated when he exercised his peremptory strike on a venireperson of the same race as the accused. The reasons the prosecutor gives “need not rise to the level justifying a challenge for cause.” 106 S.Ct. at 1723 . However, he cannot satisfy his burden “merely by denying that he had a discriminatory motive or ‘affirming his good faith in individual selections.’ ” 106 S.Ct. at 1723 .
Of course, if the prosecutor admits that the reason he exercised a peremptory strike on a member of the same race as the defendant, his candor will unquestionably cause him to fail in satisfying his burden of proof to rebut the defendant’s prima facie case. “Thus, a prosecutor’s admission that race was an influencing factor in the selection process vitiates the legitimacy of the entire process. See Batson 106 S.Ct. at 1719 ; Neal v Delaware, 103 U.S. (Otto) 370, 397, 26 L.Ed. 567 (1881).” Speaker v. State, 740 S.W.2d 486, 489 (Tex.App.-Houston [1st Dist.] 1987) (No P.D.R.).
Was the prosecutor required, before the trial judge was entitled to believe him, to articulate why, excluding the race of Little-ton, that Littleton would not make a “good” juror for his side? The record does not reveal whether there were any white “bootleggers” on the jury panel who were not peremptorily struck. Although convicted “bootleggers” might share a common view of the criminal justice system antithetical to the interests of law enforcement, the record does not reflect or indicate that Littleton would not have been a fair and impartial juror in this cause, both for the prosecution and the appellant.
The main flaw that I find in the majority opinion of Batson , and in this Court’s majority opinion in this cause is that they fail to address what Justice Marshall correctly observed in the concurring opinion that he filed in Batson, supra, namely, that “Any prosecutor can easily assert facially neutral reasons for striking a juror, and trial judges are ill-equipped to second-guess those reasons.” 106 S.Ct. at 1728 .
What Batson, supra, did in my view, as far this case goes, is that it forced the prosecutor in this cause to make known what were probably formerly covert expressions of what he might not otherwise have dared say on the record, i.e., he had to declare to the world why he exercised his peremptory strikes on members of a minority race, and that such decision was not racially motivated.
However, are such racially neutral reasons as the following, as well as the one given in this cause, and the above, sufficient, without more detailed explanation, to overcome a defendant’s prima facie case of racial discrimination in the prosecutor’s exercise of his peremptory strikes on members of the same race as the defendant, if the trial judge believes the prosecutor’s conclusion? Do they constitute a sufficient basis for a trial judge to believe the prosecutor? “Because the juror appeared to have a dumb founded or bewildered look on his face”; “Because he appeared unkempt”; “Because he appeared gruff”; “Because he frowned at me and smiled at the defendant’s attorney”; “Because he appeared to pay more attention to the defendant’s attorney than he did me”; “Because he was inattentive when I asked him questions, but when the defendant’s attorney asked him questions he appeared to be attentive”; “Because he appeared to be in a bad mood”; “Because he did not appear to know what life is like or what life is all about”, “Because he may live in the same neighborhood where the defendant lives”; “Because he was unemployed”; “Because he was overly employed, i.e., he maintained too many jobs”; “Because he was a scientist, schoolteacher, doctor, lawyer, judge, or cook at the country club”; “Because he appeared to be too smart”; “Because he appeared to be too dumb”; “Because he was employed at X corporation and my past experiences with employees of same have led me to conclude that persons em *878 ployed by X corporation make terrible jurors for the State”; “Because he was physically handicapped”; “Because he appeared to be mentally disturbed”; “Because he was too ugly”; “Because she was too pretty”; “Because he was the same age as the defendant”; “Because he has a grandchild the same age as the defendant”; “Because I did not like the juror’s eye contact”; “Because I thought the juror and the defendant were employed by the same company”; “Because he wore a gold earring in his ear”. 3
The above are all facially race-neutral reasons. Will these kinds of reasons, standing alone, be sufficient in Texas to support a trial judge’s implicit or express finding that the prosecutor’s reason was race-neutral? Will one or more of the above reasons be sufficient to overcome the defendant’s prima facie case of racial discrimination in the prosecutor’s jury selection process, or will this Court require more? Interestingly, many of the above reasons have already been given by prosecutors of this State to rebut a defendant’s prima facie case, see, for example, Morrison v. State (Waco Court of Appeals, No. 10-86-177-CR, January 22, 1987, P.D.R. refused March 30, 1988); as well as in the Alabama cases, Ex parte Branch, 526 So.2d 609 (Ala.1987), and Bryant v. State, 516 So.2d 938 (Ala.Cr.App.1987); the Missouri case, State v. Antwine, 743 S.W.2d 51 (Mo.Sup.Ct.1987); the Arizona case, State v. Tubbs, 155 Ariz. 533 , 747 P.2d 1232 (App.1987), and the Florida case, Slappy v. State, 503 So.2d 350 (Fla.Dist.Ct.App.1987), that Judge Miller’s majority opinion so heavily relies upon, in its attempt to give the bench and bar of this State “guidelines” in this area of our law.
Judge Miller’s majority opinion states the following: “We first note that the trial judge’s role is slowly being defined by our sister states.” (Page 865.) This statement, however, overlooks the fact that virtually every day in each of our trial courts of this State trial judges are called upon to become finders of fact, and their decisions usually depend upon their assessment of the credibility of a witness or witnesses. See Tompkins v. State, supra.
In the Batson, supra, situation, the trial judge certainly has the obligation to weigh the evidence and assess the credibility of the witnesses. If he determines from the evidence that the prosecutor’s reasons for exercising his peremptory strikes on members of the defendant’s race are racially neutral, it is his duty to so find and provide appropriate relief. If he determines the contrary, it is his duty to also so find.
The difficult question to answer, though, is what constitutes an adequate race-neutral explanation? How plausible must it be? How much in-depth explanation must the prosecutor give in order to support his race-neutral explanation? How particularized must his reason be? Must the prosecutor’s reason amount to something more than a suspicion or hunch that the prospective juror will not be a fair juror to his side? If the prosecutor gives a racially neutral explanation, such as one of the above reasons, or the one given in this cause, and the trial judge believes him, will that, standing alone, be sufficient? If that is the law, excepting the situation where the prosecutor admits on the record that he was racially motivated when he exercised his peremptory strikes, see Speaker, supra, I believe that, much like this Court’s records reflect the number of times a trial judge has disbelieved a law enforcement official concerning the admissibility of a defendant’s confession, it will be the rare *879 case where the trial judge disbelieves a prosecuting attorney and finds that the prosecutor failed to overcome the defendant’s prima facie case of racial discrimination in the prosecutor’s jury selection process. And this is not to say that prosecutors of this State will deliberately lie to our trial judges. When a prosecutor states, as occurred here, that he struck a minority prospective juror solely because the juror sustained three “bootlegging” convictions over 12 years ago, he is in all probability telling the truth, i.e., he used a peremptory strike just like he always did in the past.
I believe that once the defendant has established a prima facie case of racial discrimination in the prosecutor’s jury selection process, Batson, supra, requires more than the prosecutor merely generating reasons which he did not previously have to give. I find that any of the above reasons, standing alone, are too weak and insufficient to support a finding by the trial judge that the prosecutor did not exercise a peremptory strike because of race; especially in light of the fact that the defendant has just established a prima facie case of racial discrimination in the prosecutor’s jury selection process. However, a weak reason offered by the prosecutor for the exercise of a peremptory strike on a member of the same race as the defendant may be sufficient. It is imperative, however, if the prosecutor uses one of his peremptory strikes on a member of the same race as the defendant, he should couple his objectively stated reason with a reasonable explanation for his reason, i.e., he must go further and give an explanation for his reason that demonstrates, at least by a preponderance of the evidence, that he has overcome the defendant’s prima facie case. To require less, I fear, will cause Batson, supra, to be an act without any meaning by the Supreme Court. As Justice Marshall so pointedly and correctly stated in the concurring opinion that he filed in Batson, supra: “If such easily generated explanations are sufficient to discharge the prosecutor’s obligation to justify his strikes on non-racial grounds, then the protection erected by the Court today may be illusory.”
To require the prosecutor to go further, and give a reasonable explanation for his conclusion that the juror would not make a good State’s juror, before the trial judge can find in his favor, does not, of course, mean that the prosecutor was not being truthful in giving his conclusion to the trial judge; it simply means that until he supports his conclusory reason with “legitimate reasons” which are “clear and reasonably specific”, and which “relate to the particular case to be tried”, he has not rebutted the defendant’s prima facie case of racial discrimination in the prosecutor’s jury selection process.
Furthermore, unless and until the prosecutor has gone further, the trial judge has nothing on which he might evaluate the prosecutor’s justification why he struck the juror. I find that this is a necessary requirement in order for the trial judge to make a reasoned determination that the prosecutor’s facially innocuous explanations are not contrived, even when apparently done unknowingly, to avoid admitting an act of racial discrimination or racial bias.
Although I am in favor of the above, I am also compelled to acknowledge in this cause that because defense counsel did not cross-examine or impeach the prosecutor, and because he did not seek to impeach the prosecutor through other evidence, such as making and presenting to the trial judge a comparison analysis of the white venireper-sons who were not struck with those minority venirepersons who were struck, the only thing that the trial judge had to base his decision on whether or not to believe the prosecutor was the prosecutor’s own testimony. The prosecutor’s testimony stands unrebutted, unimpeached, uncontro-verted, undisputed, unimpugned, etc. The appellant’s attorneys never attempted to present any evidence, either independently of the prosecutor’s or through cross-examination of the prosecutor, that might warrant a rational trier of fact finding contrary *880 to what the trial judge found. There is nothing in this record that might reflect or indicate that the trial judge considered himself bound to accept the prosecutor’s explanation at face value. Given the meagre evidence which the trial judge had before him to decide the issue, he had a choice: He could believe or disbelieve the prosecutor. In this instance he chose to believe the prosecutor and the record supports his express finding that the explanation the prosecutor gave constituted a race-neutral reason.
I am compelled to reach the above conclusion, albeit I do so reluctantly, simply because of the state of the record that is before us. Thus, although the prosecutor’s reason is not as clear, reasonably specific, neutral, and legitimate as it should or could have been, nevertheless, I cannot conclude that the prosecutor’s reason as to Littleton amounted to a transparent or contrived attempt to convert a racial explanation into a legitimate race-neutral reason for exercising a peremptory strike on Littleton. Cf. State v. Brinkley, supra.
Under Batson, supra, and Tompkins, supra, the evidence adduced, although terribly meagre, supports the trial judge’s finding that the prosecutor gave a race-neutral reason for exercising a peremptory strike on Littleton.
Therefore, given this record, I am compelled to concur in the majority’s decision to affirm the trial court. Given a better record I would probably be compelled to dissent for the reasons I have given.
. A “Batson” hearing, of course, should be an adversary proceeding. See and compare United States v. Thompson, 827 F.2d 1254 (9th Cir., 1987). To ensure an adequate record for review, defense attorneys especially are charged to make an adequate record in the trial court. Of course, if one prospective member of the defendant’s race is excluded for racial reasons, this will invalidate the entire jury selection process. E.g., State v. Brinkley, (Mo.Ct.App., W.Dist., No. 38,797, November 3.1987). Cf. U.S. v. Tucker, 836 F.2d 334 (7th Cir.1988.)
. After all, even after Batson, supra, a State's peremptory strike is still a peremptory strike.
. The term "reason" is defined as "a statement offered in explanation or justification”, whereas “explain" is defined as "to give the reason for or cause of’, Webster’s New Collegiate Dictionary (1980 edition). The terms are often used interchangeably. My concern with a prosecutor’s exercising a peremptory strike on a member of the same race as the defendant involves the rationale for that reason, i.e., the underlying reason why the prosecutor struck the minority member rather than the "reason" itself.
. I believe that it will be the rare prosecuting attorney indeed who cannot add to the above list distinguishing features that caused him to peremptorily strike a prospective minority juror, or will not be able to give additional subjective personality reasons why he peremptorily struck a prospective minority juror, which reasons will withstand review by the trial judge, whose decision at this time is almost unreviewable by an appellate court. Cf. People v. Hall, 35 Cal.3d 161 , 672 P.2d 854 , 197 Cal.Rptr. 71 (1983); People v. Fuller, 136 Cal.App.3d 403 , 186 Cal.Rptr. 283 (1982), which cases raised the issue in a light different from “Equal Protection”, but did so on the right to have a fair cross-section of the community serve as jurors.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9779404. Public record. Not legal advice.