Walter Charles Gibson, Jr. v. State ( 2003 )

NUMBER 13-02-250-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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WALTER CHARLES GIBSON, JR.

, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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  On appeal from the Criminal District Court of Jefferson County, Texas.

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  O P I N I O N

Before Chief Justice Valdez and Justices Rodriguez and Castillo Opinion by Justice Castillo

   A jury convicted appellant Walter Charles Gibson, Jr. of the second-degree felony offense of possession of a controlled substance. It sentenced him to twenty years imprisonment in the Institutional Division of the Texas Department of Criminal Justice and imposed a $10,000 fine. We reverse and remand.

I. ISSUES ON APPEAL

Represented by appointed appellate counsel, Gibson claims the State exercised its peremptory challenges of two jurors solely on the basis of race. Counsel certifies that four additional issues requested by Gibson do not present an arguable basis for reversal. See Anders v. California, 386 U.S. 738, 744-45 (1967).   

II. APPLICABLE APPELLATE RULES

Gibson timely filed a notice of appeal on April 8, 2002. The rules of appellate procedure governing how appeals proceed in criminal cases were amended effective January 1, 2003. Generally, rules altering procedure do not fall within the prohibition in the Texas Constitution against retroactive application of laws that disturb vested, substantive rights. See Tex. Const. art. I, § 16; see also Ibarra v. State, 11 S.W.3d 189, 192 (Tex. Crim. App. 1999). Therefore, this Court applies the current rules of appellate procedure to this appeal. We may not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities. Tex. R. App. P. 44.3. We also are prohibited from affirming or reversing a judgment or dismissing an appeal if the record prevents the proper presentation of an appeal and can be corrected by the trial court. Tex. R. App. P. 44.4(a). Accordingly, we abated the appeal on July 21, 2003 and ordered a supplemental record to include, in compliance with rule 25.2(a)(2), the trial court's certification of Gibson's right of appeal. See Tex. R. App. P. 25.2(a)(2). We received a supplemental record on August 4, 2003 that includes the trial court's certification of Gibson's right of appeal. We now turn to the merits.

III. BATSON ANALYSIS

By two issues, Gibson challenges the trial court's determination that the State's reasons for exercising peremptory challenges against juror 11 and juror 15 were race neutral. Gibson asserts that the trial court's ruling violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and was erroneous under Batson v. Kentucky, 476 U.S. 79 (1986). The record provides the complete voir dire examination and exercise of peremptory challenges by the parties. The trial court acknowledged Gibson's Batson motion and found that Gibson had timely raised his challenge by objecting before the jury was sworn. After a hearing, the trial court denied Gibson's motion.

A. The Burdens

The Equal Protection Clause prohibits the discriminatory use of peremptory challenges based on race. Id. at 96; see Tex. Code Crim. Proc. Ann. art. 35.261(a) (Vernon 1989). ⁽¹⁾ A three-step burden-shifting analysis applies to an accused's race-based Batson challenge. First, the accused must make a prima facie showing of racial discrimination, which is a burden of production, thereby raising an inference that the prosecutor peremptorily struck panelists because of their race. Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999). Second, in recognition of the fact that peremptory challenges constitute a jury selection practice that permits invidious discrimination, the burden of production shifts to the prosecution to respond with a neutral explanation for the strike. Id.; Young v. State, 826 S.W.2d 141, 145 (Tex. Crim. App. 1991). If the prosecution offers a neutral explanation, the third step requires the trial court to decide if the accused proved that the challenged strike was not neutral. Ford, 1 S.W.3d at 693; Young, 826 S.W.2d at 145. The ultimate burden of persuasion in this third step remains with the accused, who must show, by reference to the context of the voir dire or other relevant facts, that the explanation offered by the prosecutor is not neutral or is a pretext. Purkett v. Elem, 514 U.S. 765, 767-68 (1995); Guzman v. State, 85 S.W.3d 242, 254 (Tex. Crim. App. 2002); Ford, 1 S.W.3d at 693.   

A preponderance-of-the-evidence standard supplies the burden of proof in a Batson challenge. Williams v. State, 767 S.W.2d 872, 874 (Tex. App.-Dallas 1989, pet. ref'd) (en banc). The exercise of a peremptory challenge in a disparate manner on the basis of a single factor may support a claim of discriminatory intent. Esteves v. State, 849 S.W.2d 822, 824 n.2 (Tex. Crim. App. 1993) ⁽²⁾; Earhart v. State, 823 S.W.2d 607, 624 (Tex. Crim. App. 1991). Where the prosecutor offers only one reason for a challenged strike, the accused may discharge the burden of persuasion on a claim of disparate treatment on the basis of race to rebut the State's facially neutral explanation by showing that the State struck a panelist of one race but did not strike a panelist of a different race who presented the same reason. See Chamberlain v. State, 998 S.W.2d 230, 236 (Tex. Crim. App. 1999) (characterizing as "real rebuttal" in disparate-questioning Batson claim example "that no white venire member with similar views were ignored by the State."). A facially neutral explanation for striking a venire panelist may be suspect when the State does not strike persons with the same or similar characteristics. Doby v. State, 910 S.W.2d 79, 83 (Tex. App.-Corpus Christi 1995, pet. ref'd).

B. The Standard of Review

In an appeal involving a Batson challenge, we apply a clearly erroneous standard of review. Hill v. State, 827 S.W.2d 860, 865-66 (Tex. Crim. App. 1992) (plurality op.). A ruling is clearly erroneous when, after searching the record, we form the definite and firm conviction that a mistake has been made. Id. In reviewing the trial court's ruling on a disparate-treatment Batson claim, we do not determine whether the prosecutor's explanations were credible but, rather, whether the trial court's ruling was supported by the record and therefore not clearly erroneous. Purkett, 514 U.S. at 769; see Guzman, 85 S.W.3d at 255; see also Young, 826 S.W.2d at 146.

After a prosecutor gives nondiscriminatory reasons for striking minority panelists from the venire, the trial judge must determine whether the facially neutral explanations are contrived to avoid admitting acts of discrimination. Emerson v. State, 851 S.W.2d 269, 273 (Tex. Crim. App. 1993). This must be done because a prosecutor, although not intentionally discriminating, may try to find reasons other than race to challenge a minority juror, when race may be the primary factor in deciding to strike the juror. Id. The trial judge as supervisor of the voir dire is in a position to readily perceive discrepancies during the jury selection process. Id. Evaluation of the prosecutor's state of mind based on demeanor and credibility lies peculiarly within the province of the trial court. Id. The trial judge may not, however, accept at face value the specific reasons given by the prosecutor. Id. Disparate treatment alone does not lead necessarily to the conclusion that the offered explanation was a pretext. Doby, 910 S.W.2d at 83. Rather, something more may be needed to overcome the presumption that the trial court's ruling was correct. Id.

C. The Scope of Review

We examine the record to determine if the State met its burden of production to provide a neutral explanation for its challenge of the venire panelist in question. Wright v. State, 832 S.W.2d 601, 604 (Tex. Crim. App. 1992); Williams v. State, 804 S.W.2d 95, 102 (Tex. Crim. App. 1991). We review the record, including the voir dire examination, the prosecutor's explanations, and the appellant's rebuttal and impeachment evidence, in a light most favorable to the trial court's ruling. Id.; see Guzman, 85 S.W.3d at 245 (reviewing record in "mixed motives" challenge). We accord great deference to the trial court's ruling. Jasper v. State, 61 S.W.3d 413, 421-22 (Tex. Crim. App. 2001); see Guzman, 85 S.W.3d at 255 (remanding for hearing to permit trial court to determine role of gender, offered by prosecutor as one of several reasons for strike, in exercise of peremptory challenge). We determine, in light of the record, if the accused rebutted the prosecution's neutral explanation in such a manner that it can be inferred that the prosecutor engaged in purposeful discrimination. Williams, 804 S.W.2d at 101.   

In its initial analysis of disparate-treatment Batson claims, the court of criminal appeals held that an accused, in meeting the burden of persuasion, was not required to make comparisons of the panelists at the trial level to have the evidence considered on appeal. Young, 826 S.W.2d at 146. Next, the court of criminal appeals examined an assertion of disparate treatment where the appellant "did not present the trial judge with any comparison, general or detailed, of unchallenged white vernirepersons and the black venirepersons who were struck." Vargas v. State, 838 S.W.2d 552, 556 (Tex. Crim. App. 1992), op. withdrawn and substitute opinion issued, 1992 Tex. Crim. App. LEXIS 173 (Sept. 16, 1992) ("Vargas I "). ⁽³⁾ The court of criminal appeals reaffirmed in Vargas its holding in Young that to have comparison evidence considered on appeal, a defendant is not required to either: (1) "request that the trial judge make [a] finding upon a comparison analysis"; or (2) "offer in evidence testimony from jury selection supporting such an analysis." However, the court of criminal appeals distinguished evidence outside the voir dire record from jury selection testimony:

The comparison "evidence" upon which appellant relies is at least partly based upon the juror information cards, which were not mentioned or offered into evidence by either side. It is not proper for an appellate court reviewing a trial court's decision on a matter to rely upon information that was not admitted as evidence at the Batson hearing in the trial court. Second, to allow an appellate court to rely upon such information undermines the standard of review for a Batson issue which gives great deference to the trial court.

Id. The court of appeals had relied on the juror information cards to identify disparate treatment by the prosecutor. Id. The court of criminal appeals held that "[a]n appellate court may not reverse a trial court's finding based upon information that was not introduced into evidence or elicited before the trial judge during the voir dire." Id. at 557. Accordingly, the court went on to find that "the appellate record also reveals that some evidence of the kind relied upon by Appellant for comparison with the racially neutral explanations given by the prosecutor does appear in the record of jury selection." Id. The court remanded the case to the court of appeals for "reconsideration of Appellant's Batson complaint in a manner not inconsistent with this opinion." Id. On remand, the court of appeals did not consider the juror information cards in comparing the prosecutor's facially neutral explanation for treating two panelists of different races differently. Vargas v. State, 859 S.W.2d 534, 535 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd) ("Vargas II "). Rather, the court of appeals looked to the voir dire record to conclude:

There is nothing other than racial motive in this record, however, to explain the fact that a black paralegal, [juror A], was struck, while a white paralegal seated near the top of the venire, [juror B], was not struck.

Id. In reversing the trial court for Batson error, the court of appeals cited a concurring opinion in Vargas I :

If occupation were really at the heart of the prosecutor's objections to [juror A], then surely he would have struck [juror B] first. As [juror B] and [juror A] had the same offending occupation, the only remaining difference between [juror A] and [juror B] is race. Thus the prosecutor's reason for striking [juror A] was not racially neutral but pretextual to avoid admitting discrimination. Therefore, there is enough evidence in the record to prove the prosecutor exercised at least one of his peremptory challenges in violation of Batson.

Id. (quoting Vargas I, 838 S.W.2d at 560, Baird, J., Miller J., and Overstreet, J., concurring).

The end result of Vargas I and Vargas II was that an accused could rely on a comparison analysis on appeal and was not required, to preserve a disparate-treatment Batson claim, to either: (1) request that the trial court consider a comparison analysis; or (2) offer evidence in support of the comparison analysis unless the information on which the appellant sought to rely was not presented to the trial court through testimony during jury selection. Vargas I, 838 S.W.2d at 557.

Next, the court of criminal appeals re-examined the error-preservation question in Ford. Ford, 1 S.W.3d at 693. Without discussing either Young or Vargas, the court of criminal appeals held in 1999 that an accused, to preserve a disparate-treatment Batson issue on appeal, must claim at trial that the prosecution disparately treated similarly situated panelists. Id. (citing Purkett, 514 U.S. at 769-70).   

Thus, Gibson's Batson challenge requires that we determine the extent to which Purkett controls our analysis of the claimed error as well as the extent to which Ford overrules Young and Vargas. We turn to the record.

D. The Record 1. The Prima Facie Case

At the close of jury selection, the following colloquy took place between the trial court and defense counsel:

THE COURT: Now, you have a Batson challenge, [Defense Counsel]. Would you tell me the jurors that you challenge or believe the State struck for racial reasons? I'd like the number only, please, and I will take judicial notice that the Defendant is - the Defendant's race.

[DEFENSE COUNSEL]: Your Honor, that would go to Juror Number 6, 11, 14 and 15.

THE COURT: Thank you, sir.

Will the State give me a race neutral reason why you struck Juror Number 6. . . ?

[PROSECUTOR]: Judge, I struck [Juror 6] among other reason because he's a substance abuse counselor.

THE COURT: Okay.

[PROSECUTOR]: And he told us as much during voir dire.

The State contends on appeal that Gibson did not meet his burden of showing a prima facie case of discrimination in the prosecutor's exercise of the State's peremptory challenges, arguing that the record does not reflect either Gibson's race or that of the venire panelists. We disagree. A record of the relative races of the defendant and the challenged venire panelists is no longer required. See Hutchinson v. State, 86 S.W.3d 636, 639 n.2 (Tex. Crim. App. 2002) (noting that Batson challenges in criminal cases are not limited to venire panelists who share defendant's race).

Further, participants in voir dire have an opportunity to make visual observations. Wamget v. State, 67 S.W.3d 851, 858 (Tex. Crim. App. 2001) (per curiam) (quoting Mejia v. State, 616 A.2d 356, 362-63 & n.8 (Md. 1992)). Both sides are equally aware of the criteria involved in a race-based Batson challenge. Wamget, 67 S.W.3d at 858. Thus, when a party does not challenge the other side's factual conclusion, made on the record, that a particular venire panelist is a member of a racial group against whom the use of a discriminatory peremptory strike is alleged, the fact is deemed established. Id. Here, the State did not object at trial that Gibson had not met his burden to prove a prima facie case of racial discrimination in the State's peremptory challenges of the four identified jurors. Nor did the State object that the identified jurors are not members of a cognizable racial group. On this record, we find it deemed that the challenged jurors are members of a cognizable racial group. See Wamget, 67 S.W.3d at 858; see also Fletcher v. State, 848 S.W.2d 761, 763 (Tex. App.-Corpus Christi 1993, no pet.) (finding that prosecutor's statement regarding challenged juror's criminal history supported racially neutral explanation in absence of appellant's objection or controverting evidence).

Nonetheless, the trial court did take judicial notice of Gibson's race. Then, the trial court required the State to provide race-neutral explanations for striking the four jurors identified by defense counsel as the subjects of Gibson's race-based Batson motion. On hearing the explanations, the trial court denied Gibson's motion. Once the State offers an explanation for striking a contested panelist, and the trial court rules on the ultimate question of intentional discrimination, the issue of whether the defendant made a prima facie case of discrimination is moot and not subject to appellate review. See Malone v. State, 919 S.W.2d 410, 412 (Tex. Crim. App. 1996). By asking the prosecutor for race-neutral explanations for striking the challenged jurors, the trial court implicitly found that Gibson satisfied his burden of proving a prima facie case of race-based peremptory challenges. See id. Accordingly, we do not address the State's argument that Gibson did not meet his burden of showing a prima facie case of discrimination. See id.

2. The State's Explanations

Gibson's first issue addresses the prosecutor's peremptory challenge of juror 11 In response to questioning by the trial court, the State provided its reason for striking juror 11:

[PROSECUTOR]: Judge, I struck [Juror 11] because she had spoken up and said that she would require more than one witness to testify.

THE COURT: All right.

[DEFENSE COUNSEL]: Your Honor, in response to that, [Juror 7] stated the same thing, that he would need more evidence than one witness though he was not struck by the State.

THE COURT: All right. Can you answer that, please?

[PROSECUTOR]: I can, Judge. He qualified his answer - And we can go back to the record. But he qualified his record at one point and said, but if there is more evidence I would be okay. And, in fact, there is more evidence in this case.

I can't state strongly enough, Judge - I don't want to - We want to give Mr. Gibson a fair trial and if there's anything here that's not fair -

THE COURT: Well, that's what I'm trying to find out. You struck Number 11 for the reason you stated and did not strike Number 7 for the reason you stated; is that correct?

[PROSECUTOR]: That is correct with the caveat I just added.

* * *

THE COURT: Okay, I'm going to deny the Batson challenge. . . . He's given race neutral reasons. Yes, sir.

[DEFENSE COUNSEL]: Just as a request to clarify your ruling. Their reason for striking [Juror 11], that he needed more evidence and the similar and same reason [Juror 7] was not struck, is that - has he given a sufficient race neutral reason to strike [Juror 11]?

THE COURT: In my judgment he has. They're pre-emptory [sic] challenges and he's given a race neutral reason.

When challenged by defense counsel about the prosecutor's different treatment of juror 7 and juror 11, the State did not object that the two jurors are members of the same racial group. The prosecutor had the same opportunity to visually observe the two jurors during voir dire and correct any conclusions reached by defense counsel. See Wamget, 67 S.W.3d at 858. Accordingly, on this record we deem it established that juror 7 is a member of a different racial group than juror 11. See id.

3. The Voir Dire Context

The voir dire record shows colloquies between the prosecutor and the venire, including juror 11 and juror 7, beginning in the following context:

[PROSECUTOR]: . . . Let's talk about that. I took - Stephanie, my wife and I took a car trip this weekend. We took her car and she had a bunch of her stuff in the car and she had - we brought some magazines with us. That's what we like to do when we travel, okay. And I brought a couple of salt water fishing magazines and she's got these Women's Day magazines, all right. And they're around the car, you know. I intended to bring that Salt Water Sportsman with me, okay. I wanted to have that to read. That's what I like to read, okay. I didn't intend to have the Women's Day magazines with me, all right.

Did I knowingly possess those Women's Day magazines?

UNKNOWN JURORS: Yes.

[PROSECUTOR]: Of course I did. Of course I did. What about if I were to borrow her car and those magazines are still in there and I pick up some of my buddies for lunch, okay. They start ripping me on these magazines; what are you doing with these sewing magazines and stuff like that. Yet, I'm still in possession of those magazines; correct?

UNKNOWN JUROR: Yes.

[PROSECUTOR]: Of course I am.

One other thing, there is a belief on the street I think that if you can get rid of something - The first thing you said about possession was that if it was on your person. There is a belief that if you can -

[DEFENSE COUNSEL]: Your Honor, I'm going to object to a belief that's on the street unless it's submitted into evidence.

THE COURT: Overruled.

[PROSECUTOR]: There's a belief that if you can get something away from your person that somehow you don't possess that item anymore, okay.

[PROSECUTOR]: And under the individual facts and circumstances of a case, that may be so - maybe so.

[PROSECUTOR]: [Juror 11].

[JUROR 11]: Yes.

[PROSECUTOR]: You had a reaction to what I just said. So, what do you think?

[JUROR 11]: What is the question?

[PROSECUTOR]: About if - about the act of trying to get something or hiding something - getting rid of something.

[JUROR 11]: It's still yours. You have it. You still have it. It's still in your possession.

* * *

[PROSECUTOR]: Have any of y'all been held up before or assaulted? Unfortunately, a lot of things like that happen with only one witness. Of course, it's perfectly within the law.

Anybody on the first row think that, even though you believe him beyond a reasonable doubt, you want something else?

Anybody.

[JUROR 7]: I do.

[PROSECUTOR]: You feel like you would?

[JUROR 7]: I could believe in a man's testimony, if he's a policeman, but still people make mistakes. And I have to have a little more evidence.

[PROSECUTOR]: Okay. That's fine. I appreciate your honesty.

[PROSECUTOR]: Okay. Anybody on the second row feel like [Juror 7], you need some additional evidence?

[UNKNOWN JUROR]: I probably would.

[PROSECUTOR]: You think you would?

[UNKNOWN JUROR]: Yeah.

[PROSECUTOR]: [Juror 11]?

[JUROR 11]: Because he was not a eye-witness; correct?

[PROSECUTOR]: No. He's an eye-witness. He's an eye-witness.

[JUROR 11]: Okay. He's an eye-witness?

[PROSECUTOR]: Yes, ma'am. We'll talk about that in just one second.

[JUROR 11]: Oh, okay.

[PROSECUTOR]: We're not going to talk about it right now.

The voir dire record does not show any other exchanges between either juror 7 or juror 11 and either the prosecutor or defense counsel. Juror 7, juror 11, and an unknown juror responded to the prosecutor's question regarding their need for additional evidence if only one witness testified. They were the only panelists to do so. None of the three qualified his or her response with the statement that "if there is more evidence I would be okay." None of the panelists qualified any answer during voir dire. Neither the State nor the defense challenged any of the panelists for cause. The record shows that no individual voir dire took place. Juror 7 took a seat on the jury that convicted Gibson. Juror 11 did not.

E. Analysis

The facially neutral explanation offered by the prosecutor in Purkett was the following:

I struck [juror] number twenty-two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared to me to not be a good juror for that fact, the fact that he had long hair hanging down shoulder length, curly, unkempt hair. Also, he had a mustache and a goatee type beard. And juror number twenty-four also has a mustache and goatee type beard. Those are the only two people on the jury . . . with the facial hair . . . . And I don't like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me.  

Purkett, 514 U.S. at 766. The Supreme Court reversed the court of appeals for focusing "on the reasonableness of the asserted nonracial motive . . . rather than the genuineness of the motive" in analyzing whether the prosecution met the burden shifted to it by the accused's prima facie showing of discriminatory peremptory challenges. Id. at 769.

Here, the State said it struck juror 11 for speaking up about needing more evidence than one witness. Gibson then challenged the "genuineness" of that explanation, not its "reasonableness," by pointing out that the prosecutor had not struck juror 7 for the same reason. In response, the explanation the State gave for not striking juror 7 was: "He qualified his answer - And we can go back to the record. But he qualified his record at one point and said, but if there is more evidence I would be okay. And, in fact, there is more evidence in this case." However, the record does not support the State's explanation. Juror 7 did not qualify his answer. Thus, we find Purkett inapposite here. The record shows that Gibson challenged the "genuineness" of the prosecutor's facially neutral explanation, not its "reasonableness." See id. at 769.   

We also distinguish Gibson's challenge at trial from the facts in Ford, where, like here, the prosecutor's explanation proved to be incorrect. Ford, 1 S.W.3d at 693. The voir dire record in Ford showed confusion in the prosecutor's recollection between what the two compared jurors had said. Id. However, as noted by the court of criminal appeals, the appellant in Ford did not complain at trial that the prosecution treated similarly situated panelists differently on the basis of race. Id. at 692. By contrast, in response to the prosecutor's facially neutral explanation for striking juror 11, Gibson presented to the trial court that the prosecutor had not struck juror 7, who had responded to the prosecutor's question regarding a need for additional evidence in the same way as juror 11. When the prosecutor responded that juror 7 had "qualified his answer" and was therefore rehabilitated, Gibson repeated to the trial court, "Their reason for striking [Juror 11], that he needed more evidence and the similar and same reason [Juror 7] was not struck, is that - has he given a sufficient race neutral reason to strike [Juror 11]?"

Further distinguishing this case from the facts in Ford, the record here shows that no confusion between what the two jurors had said was possible. Neither of the two jurors responded in the manner recalled by the prosecutor. None of the venire panelists did. Finally, the record shows that neither the prosecutor nor the defense lawyer had any other exchanges with juror 7, but the prosecutor did have another exchange with juror 11 in which the juror indicated agreement with the prosecution on an issue specifically relevant to the State's drug possession case against Gibson. ⁽⁴⁾

The record shows that Gibson presented to the trial court a comparison of the prosecutor's treatment of juror 11 and juror 7. The only thing further Gibson could have done with regard to his objection that the prosecutor treated juror 11 and juror 7 differently would have been to put the voir dire record itself into evidence. We read Ford as silently overruling Young and the first component of Vargas. Compare Ford, 1 S.W.3d at 693 (requiring presentation to trial court of Batson claim based on comparison analysis to preserve issue) with Young, 826 S.W.2d at 146 (holding that appellant could raise disparate-treatment Batson challenge for first time on appeal) and Vargas I, 838 S.W.2d at 556 (holding that appellant was not required to: (1) request that trial court consider comparison analysis; or (2) offer evidence in support of comparison analysis unless information on which appellant relies was not presented to trial court through testimony during jury selection). The appellant in Ford had not presented the disparate-treatment Batson claim to the trial court. Ford, 1 S.W.3d at 693. Consequently, Ford did not reach the issue of whether an appellant who does preserve the issue may rely on the voir dire record on appeal to demonstrate the comparison. Id. We do not read Ford as silently overruling the second component of Vargas by requiring the challenger to put a record of the voir dire questioning into evidence to discharge the burden of persuasion in a claim of disparate treatment of similarly situated panelists.

We decline to extend Ford beyond the facts in that case, that is, beyond the requirement that the accused must challenge at trial a prosecutor's facially neutral explanation for a strike by pointing to a similarly situated panelist not struck by the State. See Ford, 1 S.W.3d at 693. We find that by pointing out and then reiterating to the trial court that the prosecutor had stuck a juror of one race but did not strike another juror of a different race for "the similar and same reason," Gibson discharged his burden of persuasion. See Chamberlain, 998 S.W.2d at 236 (giving example of "real rebuttal" in disparate-questioning claim). We hold that Gibson, having discharged his burden of persuasion at trial, is entitled to rely on the record of voir dire testimony on appeal to prove he rebutted the prosecution's neutral explanation in such a manner that it can be inferred that the prosecutor engaged in purposeful discrimination. ⁽⁵⁾ See id.

The record shows that the State struck a juror of one race for indicating one specific reservation and did not strike a juror of another race who expressed the same specific reservation. The record does not support the State's only explanation for treating the two panelists differently, which was that the unchallenged juror had been rehabilitated by later qualifying the reservation. Moreover, to the extent that "something more" than disparate treatment may be required to rebut the prosecutor's facially neutral explanation, the record shows that the State's only explanation for treating the jurors differently, while neutral on its face, did not result from confusion in attributing one venire panelist's response to another, as was the case in Ford. See Ford, 1 S.W.3d at 693; see also Doby, 910 S.W.2d at 83. Further, as in Vargas, the State had to bypass juror 7 to strike juror 11. See Vargas II, 859 S.W.2d at 535. If a need for additional evidence was really at the heart of the State's objection to juror 11, then surely the State would have struck juror 7 first. See id. Finally, the record shows that the struck juror had indicated agreement with the State on another issue, while the unchallenged juror had not. As juror 7 and juror 11 had voiced the same reservation, the only remaining difference between juror 7 and juror 11 is race. See id. Thus, the prosecutor's reason for striking juror 11 was not racially neutral. See id. There is enough evidence in the record to prove the prosecutor exercised at least one peremptory challenge in violation of Batson. See id. We find, in light of this record, that Gibson met his burden to rebut the prosecution's neutral explanation by a preponderance of the evidence. See Williams, 804 S.W.2d at 101. We have formed the definite and firm conviction that a mistake has been made. See Hill, 827 S.W.2d at 865-66.

F. Conclusion  

We hold that the trial court's denial of Gibson's Batson challenge is not supported by the record and is, therefore, clearly erroneous. See Wright, 832 S.W.2d at 605. We sustain Gibson's first issue. Further, Batson error is not subject to a harm analysis. Sparks v. State, 68 S.W.3d 6, 12 (Tex. App.-Dallas 2001, pet. ref'd). Finally, the exclusion of even one panelist from the jury on an unconstitutional basis invalidates the entire jury selection process. Whitsey v. State, 796 S.W.2d 707, 716 (Tex. Crim. App. 1989) (op. on reh'g) (plurality op.). Accordingly, we do not reach Gibson's remaining issues. See Tex. R. App. P. 47.1. We reverse and remand for a new trial.

ERRLINDA CASTILLO

Justice

Publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 5th day of August, 2003.  

1. The prohibition against discrimination in the exercise of peremptory challenges also applies to litigants who exercise a strike based on the juror's: (1) gender (J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 146 (1994); Fritz v. State, 946 S.W.2d 844, 847 (Tex. Crim. App. 1997)); and (2) ethnicity and nationality (Hernandez v. New York, 500 U.S. 352, 355 (1991); Wamget v. State, 67 S.W.3d 851, 857 (Tex. Crim. App. 2001) (per curiam)). Guzman v. State, 85 S.W.3d 242, 245 (Tex. Crim. App. 2002). Gibson asserts racial discrimination.

2. We note that the court of criminal appeals regards footnotes in its opinions as dictum, not holdings of the court. Edwards v. State, 813 S.W.2d 572, 582 n.1 (Tex. App.-Dallas 1991, pet. ref'd) (en banc) (Baker, J., dissenting) (citing Young v. State, 826 S.W.2d 141, 145 n.5 (Tex. Crim. App. 1991)).

3. In an apparent publication error, the substitute opinion is not published. However, we note that the published version differs from the unpublished version in only one significant respect, which is to delete language from the published version that affirmed the case, contrary to the actual holding, which reversed and remanded the case to the court of appeals. As a consequence, the published version, despite its withdrawal, has been cited more than one hundred and eighty times to date. We do so as well.

4. We note that a prosecutor, in the exercise of the State's duty to uphold the integrity of the jury system, may challenge for cause a potential "State's juror" venire panelist who cannot be fair and impartial to the defendant. Guerra v. State, 771 S.W.2d 453, 467 (Tex. Crim. App. 1988). Here, the prosecutor did not articulate bias in favor of the State as a reason for striking juror 11.

5. Batson and its progeny require the trial court to note and give weight to subtle clues that disclose the prosecutor's intent. Somerville v. State, 792 S.W.2d 265, 269 (Tex. App.-Dallas 1990, pet. ref'd). Our holding today should not be read as concluding that the prosecutor in this case engaged in conscious racism.