Jermey Londray Goss v. State ( 2011 )

Affirmed and Memorandum Opinion filed August 4, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00770-CR

JERMEY LONDRAY GOSS, Appellant

v.

The State of Texas, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 1205382

MEMORANDUM OPINION

Appellant Jermey Londray Goss challenges his conviction for deadly conduct, asserting in a single issue that the trial court reversibly erred in rejecting his Batson challenge.  We affirm.

Factual and Procedural Background

Appellant was charged with the offense of aggravated robbery following an incident in which he allegedly brandished a firearm, fired a number of shots inside a business establishment, and threatened to take items. Appellant pleaded “not guilty” to the charged offense, and the case proceeded to trial.

During voir dire, appellant made a Batson challenge, alleging that, after all strikes for cause had been made, the State had used a peremptory strike on the only African American remaining on the panel, veniremember number 3.  Appellant’s trial counsel referred to appellant as being African American.  Appellant claimed that nothing in this veniremember’s responses distinguished him from other veniremembers such that the State must have struck number 3 solely based on his race.

In response, the prosecutor claimed to have struck number 3 based on his preference of rehabilitation—instead of punishment—for convicted criminal offenders.  The prosecutor claimed to have struck all of the veniremembers who, when asked about the issue, answered “rehabilitation” except for veniremember number 32.  According to the prosecutor, the State did not use a peremptory strike on number 32 because he had some post-graduate education. 

The trial court denied appellant’s Batson challenge, ruling that appellant failed to make a prima facie showing of discrimination and that the State had provided a race-neutral reason for striking number 3 from the panel. 

The jury found appellant guilty of the lesser-included offense of deadly conduct and found that appellant used a deadly weapon in the commission of the offense.  The trial court sentenced appellant to five years’ confinement.

In a single appellate issue, appellant claims the trial court reversibly erred in rejecting appellant’s Batson challenge. According to appellant, the State struck Fleming solely because he was African American.

Analysis

A prosecutor cannot use a peremptory strike against a venireperson solely on account of race.  Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69, 83 (1986); see Tex. Code Crim. Proc. Ann. art. 35.261(a) (West 2011).  In the face of perceived purposeful discrimination, an accused may assert a Batson challenge.  See Tex. Code Crim. Proc. Ann. art. 35.261(a).  To succeed on a Batson challenge, the accused must demonstrate by a preponderance of the evidence that the State indulged in purposeful discrimination against a member of a constitutionally-protected class in exercising peremptory challenges.  Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008).

To assert a Batson challenge, an accused bears the burden of presenting a prima facie case of purposeful racial discrimination by the State in the exercise of its peremptory strikes.  See Cantu v. State, 842 S.W.2d 667, 688 n.15 (Tex. Crim. App. 1992).  To make a prima facie case, an accused must show that relevant circumstances raise an inference that the State made a race-based strike.  Flores v. State, 33 S.W.3d 907, 925 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).  An argument that the State has struck minority veniremembers, without more, does not support a prima facie case.  See Bean v. State, 816 S.W.2d 115, 119–20 (Tex. App.—Houston [14th Dist.] 1991, no pet.).

If a prima facie case is made, the burden of production shifts to the State to furnish a race-neutral reason for exercising the strike.  Watkins, 245 S.W.3d. at 447.  The race-neutral reason for the strike need not be persuasive or even plausible, but only facially valid.  Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995).  Unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race-neutral.  Id.  The defendant may rebut the race-neutral explanation.  Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001).  The trial court then must decide whether the accused has proven purposeful discrimination.  Watkins, 245 S.W.3d. at 447.

We accord great deference to the trial court’s ruling on a Batson challenge.  See Jasper, 61 S.W.3d at 421–22.  In reviewing the trial court’s ruling, we examine the entire voir dire record, reviewing for clear error.  See Watkins, 245 S.W.3d at 448.  We conduct this review in the light most favorable to the trial court’s ruling and reverse only when the ruling is clearly erroneous.  See Williams v. State, 301 S.W.3d 675, 688 (Tex. Crim. App. 2009); Young v. State, 283 S.W.3d 854, 866 (Tex. Crim. App. 2009).  A ruling is clearly erroneous when, after searching the record, an appellate court is left with the definite and firm conviction that the trial court has made a mistake.  Bausley v. State, 997 S.W.2d 313, 315 (Tex. App.—Dallas 1999, pet. ref’d).  We may not substitute our opinion for the trial court’s factual assessment of the neutrality of the prosecutor’s explanation for exercising strikes, and we view the evidence in the light most favorable to the trial court’s ruling.  See Gibson v. State, 144 S.W.3d 530, 534 & nn. 5 & 6 (Tex. Crim. App. 2004).

According to the voir dire record, the prosecutor referred to punishment and rehabilitation as two differing philosophies in the criminal justice system and asked veniremembers to choose which philosophy best suited their beliefs.  As relevant to this appeal, veniremember number 3 responded, “rehabilitation,” as did veniremember number 32, veniremember number 55, and many others.  After the parties struck panel members for cause or by agreement, the trial court instructed the parties to exercise peremptory strikes on the remaining panel members up to and including veniremember number 52.  The trial court also indicated that the parties were free to exercise an additional strike for an alternate juror, who would be selected from veniremember numbers 53, 54, and 55.  The State exercised various peremptory strikes, including one on number 3, who was not seated on the jury. 

The jury panel, as seated, included number 32 and number 55 as an alternate juror.  Appellant objected to the jury panel as seated, complaining that there were no African Americans on the panel and that appellant was African American.  Appellant sought to replace one of the seated jurors with number 3, contending that none of number 3’s responses warranted a peremptory challenge.

The State responded that it exercised its peremptory strikes against all of the remaining veniremembers who had chosen “rehabilitation” in response to the State’s question.[1]  A veniremember’s views regarding the role of rehabilitation in punishment can be a race-neutral reason for the use of a peremptory challenge.  See Adanandus v. State, 866 S.W.2d 210, 223–24 (Tex. Crim. App. 1993); Victor v. State, 995 S.W.2d 216, 222 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). 

Challenging the State’s offered explanation, appellant points to the fact that veniremembers 32 and 55 also chose rehabilitation over punishment and that the State did not exercise peremptory strikes on these veniremembers.  A trial court may consider the following factors in evaluating whether the State’s proffered race-neutral explanation was genuine:  (1) whether the proffered reason related to the facts of the case, (2) whether the State meaningfully questioned the challenged veniremember, (3) whether persons with the same or similar traits as the challenged venire member were not struck, (4) whether there was disparate examination of the veniremembers, and (5) whether an explanation was based upon a group bias even if the specific trait was not shown to apply to the challenged juror.  See Williams v. State, 804 S.W.2d 95, 105–06 (Tex. Crim. App. 1991).  None of these factors is dispositive on the issue of discriminatory intent.  Grant v. State, 325 S.W.3d 655, 659 (Tex. Crim. App. 2010).

In applying these principles to the facts in the case under review, we note that the reasons offered by the prosecutor for the exercise of peremptory challenges were related, if not to the facts of the case, to a legal issue involved in the case—punishment.  See Williams, 804 S.W.2d at 106 (involving the State’s peremptory challenge of veniremembers who expressed viewpoints of punishment in opposition to the death penalty, the punishment sought by the State).  Moreover, the record reflects that the parties each had forty minutes to complete voir dire examination.  Given these time constraints, a party is limited in its ability to ask an individual veniremember—let alone all such veniremembers—about a specific response.  See Grant, 325 S.W.3d at 661; Godine v. State, 874 S.W.2d 197, 205 (Tex. App.—Houston [14th Dist.] 1994, no pet.).

In addressing whether disparate selection or examination occurred among veniremembers who were impaneled with same or similar characteristics as number 3, we note that although number 32 also chose rehabilitation over punishment, the State did not exercise a peremptory strike against him because the State believed he had some post-graduate education.  A prosecutor’s explanation for striking a veniremember based on education level or perceived intelligence is race-neutral.  See Brewer v. State, 932 S.W.2d 161, 165 (Tex. App.—El Paso 1996, no pet.); Godine, 874 S.W.2d at 205.

Likewise, of the three veniremember numbers 53, 54, 55, from which an alternate juror was to be selected, the State exercised its one additional peremptory strike on number 53, who also had chosen “rehabilitation.” See Tex. Code Crim. Proc. Ann. art. 35.15(d) (West 2006) (providing that, in certain cases, a party is entitled to one peremptory challenge against an alternate juror).  The State could not have exercised a peremptory strike against both number 53 and number 55.  See id.  The State, having only one strike remaining for the alternative juror, must, out of necessity, leave one such panel member, who had answered “rehabilitation,” on the jury as an alternate.  The State apparently chose to leave number 55 on the jury panel as the alternate juror instead of veniremember 53.[2]

According to the record, neither the prosecutor nor appellant’s trial counsel further questioned any of the veniremembers on their personal choices of rehabilitation over punishment.  The record does not reflect that any veniremember offered a more emphatic opinion of rehabilitation that the other veniremembers.  To the contrary, one panel member admitted he could not choose one way or the other, and the prosecutor did not further examine that panel member about the answer.  The record does not support a conclusion that the prosecutor engaged in disparate selection or examination or group bias in exercising a peremptory challenge against number 3.  Disparate use of peremptory challenges does not automatically show an improper use of peremptory challenges, even in a situation in which one of the prosecutor’s proffered reasons for striking a minority veniremember technically would apply to another non-minority veniremember.  See Adanandus, 866 S.W.2d at 224–25.

The State provided a race-neutral explanation for exercising a peremptory strike on veniremember number 3.  See id. at 224; Victor, 995 S.W.2d at 222.  The trial court did not err by failing to conclude that the prosecutor’s proffered reason was a pretext for discrimination.  See Tex. Code Crim. Proc. Ann. art. 35.261(a); Simpson, 119 S.W.3d at 268. Likewise, without a definite and firm conviction that the trial court has made a mistake, we conclude the trial court’s ruling was not clearly erroneous.  We overrule appellant’s sole issue.

The trial court’s judgment is affirmed.

                                                                        /s/        Kem Thompson Frost

                                                                                    Justice

Panel consists of Justices Frost, Jamison, and McCally.

Do Not Publish — Tex. R. App. P. 47.2(b).

---

[1] Because the State offered a race-neutral explanation, we need not address whether appellant made a prima facie case of racial discrimination.  See Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003).

[2] The record reflects that although number 55 was initially selected as an alternate juror, he participated on the jury panel when another juror was dismissed by the parties’ agreement after the trial court discovered that the previously selected juror had difficulty hearing the proceedings.