Juan Vasquez v. State ( 2009 )

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Opinion issued December 17, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00217-CR

JUAN VASQUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 7th District Court

Smith County, Texas

Trial Court Cause No. 007-0728-08



MEMORANDUM OPINION

          A jury convicted Juan Vasquez of aggravated sexual assault of a child and assessed punishment at life imprisonment and a $10,000 fine. See Tex. Penal Code Ann. § 22.021(a)(1)(B) (Vernon Supp. 2009). On appeal, Vasquez contends that the trial court erred in denying his Batson challenge. We hold that the State presented three race-neutral reasons for exercising a peremptory challenge against a Hispanic venireperson and Vasquez failed to establish that the State’s offered reasons were a pretext for purposeful racial discrimination. We therefore affirm.

Background

After the voir dire examination in Vasquez’s trial for aggravated sexual assault of a child, the trial court granted ten challenges for cause, leaving seventy-four eligible venirepersons. The State exercised two of its ten peremptory strikes against prospective jurors Fraire and Beaird, the only two Hispanics within the “strike zone” of thirty-two venirepersons. Vasquez challenged the peremptory strikes against Fraire and Beaird under Batson v. Kentucky, 476 U.S. 79, 109 S. Ct. 1712 (1986), arguing that the State impermissibly struck these two venirepersons on the basis of their race.

          The trial court took judicial notice of the fact that Venirepersons Fraire and Beaird were the only two Hispanics within the strike zone and asked the prosecutor to explain his rationale for striking these two prospective jurors. The prosecutor explained that Venireperson Fraire had an extensive criminal history, including arrests for deadly conduct, harassment, and a no-bill for aggravated assault. At the Batson hearing, Vasquez did not contend that the prosecutor’s rationale for striking Venireperson Fraire was a pretext for racial discrimination and Vasquez does not challenge the strike against Venireperson Fraire on appeal.

          With respect to the decision to strike Venireperson Beaird, the prosecutor explained that Beaird indicated on her juror information card that she did not have any children, which, in a sexual assault of a child case, is typically “something that [the State] take[s] into consideration” when selecting a jury. Additionally, Venireperson Beaird stated that she had a family member with a criminal history, although she felt that she could still be fair and impartial in this case. The prosecutor also stated that he did not feel comfortable with Venireperson Beaird’s demeanor throughout the voir dire examination, but he did not elaborate or state what, specifically, about her demeanor made him uncomfortable. After listing his reasons for striking Venireperson Beaird, the prosecutor noted that he also exercised a peremptory strike against Venireperson Adams, a white male, who also had a family member with a criminal history and did not have children.

In response, Vasquez pointed out that Venirepersons Lupton, Hawkins, and Long, each of whom is white, all indicated on their juror information cards that they did not have children. The prosecutor did not exercise peremptory strikes against these three venirepersons. The trial court observed that the State offered multiple reasons for striking Venireperson Beaird, and Vasquez’s identification of three white venirepersons who did not have children and were seated on the jury did not “overcome the race neutral explanations the State has made.” On appeal, Vasquez additionally notes that Venirepersons Hornischer, Oefinger, and Sanders, each of whom is white, all had a friend or family member with a criminal history and yet the prosecutor did not strike these three venirepersons either. Vasquez did not, however, present this evidence to the trial court at the Batson hearing, and no evidence in the record indicates whether these three prospective jurors also did not have children.[1] At the Batson hearing, Vasquez did not address the prosecutor’s peremptory strike against Venireperson Adams, a white male with no children and a family member with a criminal history. The trial court overruled Vasquez’s Batson challenge and seated the jury. The jury found Vasquez guilty of aggravated sexual assault of a child and assessed punishment at life imprisonment and a $10,000 fine.

Discussion

          The Equal Protection Clause of the Fourteenth Amendment and Article 35.261 of the Texas Code of Criminal Procedure prohibit the exercise of a peremptory strike to exclude a prospective juror on the basis of race. See Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717 (1986); Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 2006). Resolving a Batson challenge is a three-step process. Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770–71 (1995) (per curiam); Shuffield v. State, 189 S.W.3d 782, 785 (Tex. Crim. App. 2006). First, the defendant must make a prima facie showing that the State exercised a peremptory challenge on the basis of race. Purkett, 514 U.S. at 767, 115 S. Ct. at 1770; Thomas v. State, 209 S.W.3d 268, 270 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Once the defendant makes a prima facie case of purposeful discrimination, the burden of production then shifts to the State to articulate a “clear and reasonably specific explanation of his legitimate reasons for exercising the strike.” Miller-El v. Dretke, 545 U.S. 231, 239, 125 S. Ct. 2317, 2325 (2005); see also Shuffield, 189 S.W.3d at 785. The State’s race-neutral reason does not have to be persuasive, or even plausible. Purkett, 514 U.S. at 768, 115 S. Ct. at 1771. A race-neutral explanation is an explanation based on some factor other than the race of the prospective juror, and the reason will be deemed race-neutral unless discriminatory intent is inherent in the explanation. Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 1866 (1991) (plurality op.). Finally, if the State offers a race-neutral explanation, the trial court must then determine whether the defendant proved purposeful racial discrimination. Purkett, 514 U.S. at 767, 115 S. Ct. at 1770–71. The defendant bears the burden to prove, by a preponderance of the evidence, that the State’s offered rationale for the strike is merely a pretext for purposeful racial discrimination. Thomas, 209 S.W.3d at 270.

          When reviewing the trial court’s ruling on a Batson challenge, we apply a “clearly erroneous” standard of review. Hernandez, 500 U.S. at 369, 111 S. Ct. at 1871; Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). We must have a “definite and firm conviction that a mistake has been committed” before we can determine that the trial court’s ruling was clearly erroneous. See Goldberg v. State, 95 S.W.3d 345, 385 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). In determining whether the prosecutor’s offered reason is a pretext for purposeful racial discrimination, we focus on the genuineness of the asserted race-neutral reason instead of its reasonableness. See Gibson, 144 S.W.3d at 533–34 (citing Purkett, 514 U.S. at 769, 115 S. Ct. at 1771–72). The trial court’s determination turns largely on an evaluation of the prosecutor’s credibility. Ladd v. State, 3 S.W.3d 547, 563 (Tex. Crim. App. 1999). The clearly erroneous standard is highly deferential since the trial court is in the best position to determine if the prosecutor’s offered race-neutral explanation is genuinely race-neutral. See Gibson, 144 S.W.3d at 534. We examine the entirety of the voir dire record to determine if it supports the race-neutral reason offered by the prosecutor or if the defendant introduced sufficient evidence to establish that the prosecutor engaged in purposeful racial discrimination in exercising the peremptory challenge. See Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991); Watkins v. State, 245 S.W.3d 444, 448 (Tex. Crim. App. 2008) (“[The appellate court] need not limit itself to arguments or considerations that the parties specifically called to the trial court’s attention . . . .”). We view the evidence relevant to the Batson challenge in the light most favorable to the trial court’s ruling. Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992); Moore v. State, 265 S.W.3d 73, 78 (Tex. App.—Houston [1st Dist.] 2008, no pet.).

          When determining whether a race-neutral explanation is a pretext for purposeful racial discrimination, we examine whether statistics show that a disproportionate number of strikes were used against minorities and whether comparative evidence demonstrates disparate treatment of minority venirepersons. See Thomas, 209 S.W.3d at 273 (citing Miller-El, 545 U.S. at 240–41, 125 S. Ct. at 2325–26). If a prosecutor’s race-neutral reason for striking a minority venireperson applies equally to an otherwise similar non-minority venireperson who the prosecutor does not challenge, this is evidence that the race-neutral reason is a pretext for purposeful discrimination. See Miller-El, 545 U.S. at 241, 125 S. Ct. at 2325. We cannot, however, automatically impute disparate treatment in every case in which a reason for striking a minority venireperson also applies to a non-minority venireperson whom the prosecutor found acceptable. See Cantu, 842 S.W.2d at 689. The Court of Criminal Appeals previously observed that the decision to strike a particular venireperson “is a fluid process, often hinging on the interaction of a number of variables and permutations” and it “is unlikely that two venirepersons on one panel will possess the same objectionable attribute or character trait in precisely the same degree.” Id.; Johnson v. State, 959 S.W.2d 284, 292 (Tex. App.—Dallas 1997, pet. ref’d) (“[P]rospective jurors may share a negative feature, but that feature may be outweighed by characteristics that are favorable from the State’s perspective. Such distinctions may properly cause the State to challenge one potential juror and not another.”). When the prosecutor offers multiple race-neutral reasons for striking a particular venireperson, we must review all the reasons in their entirety to determine if the explanations are valid or merely pretextual. See Cantu, 842 S.W.2d at 689. Disparate treatment is not automatically established if the prosecutor offers multiple reasons for striking a minority venireperson and acceptable non-minority venirepersons share one or more of the objectionable attributes. See id.

          Vasquez contends that the trial court erred in denying his Batson challenge because both a statistical and comparative juror analysis indicate that the State’s offered race-neutral reasons for striking Venireperson Beaird were a pretext for purposeful racial discrimination. One factor that we consider in determining if the offered rationale for the strike is a pretext is whether statistics indicate a disproportionate use of peremptory strikes to exclude a minority. See Miller-El, 545 U.S. 231, 241, 125 S. Ct. 2317, 2326. In Miller-El, for example, the United States Supreme Court held that the State’s use of ten peremptory strikes to exclude 91% of eligible African-Americans from the jury constituted disproportionate use of strikes against a minority and indicated that the State’s reason for the strikes was a pretext. See id.; see also Thomas, 209 S.W.3d at 274 (holding that State’s use of six peremptory strikes to exclude 86% of eligible African-Americans constituted disproportionate use). Here, the State exercised two of its ten peremptory strikes to remove 100% of the Hispanics in the thirty-two person strike zone from the jury. Unlike in both Miller-El and Thomas, the prosecutor did not use a majority of his strikes against Hispanics. Although the prosecutor struck 100% of the Hispanics within the strike zone, the prosecutor used only two of his ten peremptory strikes to eliminate the two Hispanics from the jury. The Court of Criminal Appeals previously observed that:

[T]he bare fact of strikes exercised against persons of a certain race does not necessarily reveal the work of a racially prejudiced mind. What may be revealing, however, is a repetition of such strikes in suspiciously large numbers—numbers larger than one would expect if race had nothing to do with it.

Linscomb v. State, 829 S.W.2d 164, 166 (Tex. Crim. App. 1992). Two out of ten challenges is not a “suspiciously large number” of available strikes, and thus we cannot say that the ultimate exclusion of 100% of the Hispanics within this strike zone results more from purposeful discrimination than from random chance.

In addition to statistical analysis, we also examine “side-by-side comparisons” of the prospective jurors to determine if the State’s offered race-neutral reasons are merely pretextual. See Miller-El, 545 U.S. at 241, 125 S. Ct. at 2325; Moore, 265 S.W.3d at 86–88; Thomas, 209 S.W.3d at 274. At the Batson hearing, the prosecutor asserted the following reasons for striking Venireperson Beaird: (1) she did not have children; (2) she had a family member with a criminal history; and (3) her demeanor.[2] We have previously held that whether a venireperson has children is a valid, race-neutral explanation for exercising a peremptory challenge. See Moore, 265 S.W.3d at 87. Similarly, the Texarkana Court of Appeals held that striking a prospective juror because he or she has a family member or close friend with a criminal history is also race-neutral. See Alexander v. State, 919 S.W.2d 756, 765 (Tex. App.—Texarkana 1996, no pet.). In support of his Batson challenge, Vasquez presented evidence that the prosecutor did not exercise strikes against Venirepersons Lupton, Hawkins, and Long, three white venirepersons who also indicated on their juror information cards that they did not have children. On appeal, as further evidence of disparate treatment and purposeful discrimination, Vasquez points out that Venirepersons Hornischer, Oefinger, and Sanders stated that, like Venireperson Beaird, they have a friend or family member with a criminal history, and yet all three of these white venirepersons served on the jury. Vasquez did not present this contention to the trial court at the Batson hearing, nor did he otherwise challenge the prosecutor’s rationale of a friend or family member with a criminal history as a pretext for purposeful discrimination. See Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002) (“[A] party’s failure to offer any real rebuttal to a proferred race-neutral explanation can be fatal to his claim.”).

          Similar to the situation in Cantu, the prosecutor offered multiple race-neutral explanations for striking Venireperson Beaird. Although Venirepersons Lupton, Hawkins, and Long indicated that they did not have children, only Venireperson Lupton had a friend with a criminal history, and he suggested that he had minimal knowledge of the offense and its circumstances. On appeal, Vasquez identified Venirepersons Hornischer, Oefinger, and Sanders as having a friend or family member with a criminal history, but Vasquez never presented any evidence regarding whether these venirepersons also did not have children. Therefore, the record indicates that only three venirepersons did not have children and had a friend or family member with a criminal history: Venirepersons Lupton, Beaird, and Adams. Although the prosecutor did not strike Venireperson Lupton, a white male, he did strike Venireperson Adams, another white male, in addition to Venireperson Beaird, a Hispanic female.

          The Court of Criminal Appeals cautioned against automatically imputing disparate treatment when the State does not strike a non-minority venireperson who possesses the same characteristics as a challenged minority venireperson, since it is unlikely that each venireperson will possess the objectionable attribute in the same degree. See Cantu, 842 S.W.2d at 689. When we examine the entirety of the voir dire examination and the Batson hearing, the record indicates that although Venireperson Lupton had a friend with a criminal history, the offense occurred elsewhere and he had little knowledge about the circumstances of the offense, such as whether law enforcement and the judicial system treated his friend fairly. Venirepersons Adams and Beaird both had a family member with a criminal history, and both of these venirepersons appeared to have greater knowledge of the circumstances of the offense and their family member’s experience with law enforcement and the judicial system. Vasquez never attempted to compare these three venirepersons on the basis of both race-neutral reasons offered by the prosecutor, nor did he address the strike of Venireperson Adams, a white male with the same two objectionable attributes as Venireperson Beaird.[3] When we view the evidence in the light most favorable to the trial court’s ruling, we do not have the “definite and firm conviction that a mistake has been committed” necessary to hold that the trial court’s denial of Vasquez’s Batson challenge was clearly erroneous.

Conclusion

The prosecutor articulated three race-neutral reasons for striking Venireperson Beaird, a Hispanic. Although Vasquez presented evidence that three white venirepersons also did not have children and served on the jury, and three additional white venirepersons had a friend or family member with a criminal history and served on the jury, Vasquez failed to address the prosecutor’s strike of Venireperson Adams, a white male possessing both of the objectionable attributes. We hold that Vasquez failed to establish that the trial court’s denial of his Batson challenge was clearly erroneous. We therefore affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Chief Justice Radack and Justices Bland and Massengale.

Do Not Publish. Tex. R. App. P. 42.4(b).

[1] Although Vasquez offered the juror information cards of Venirepersons Fraire and Beaird as evidence during the Batson hearing, he never offered the juror information cards of Venirepersons Hornischer, Oefinger, and Sanders. The clerk’s record does not contain the juror information cards for any other of the prospective jurors in this case.

[2] A party may validly strike a prospective juror on the basis of their non-verbal conduct and demeanor during voir dire. See Yarborough v. State, 947 S.W.2d 892, 896 (Tex. Crim. App. 1997). The striking party must, however, specifically describe the particular behavior on the record to avoid an inference of discrimination. See Moore v. State, 265 S.W.3d 73, 80–81 (Tex. App.—Houston [1st Dist.] 2008, no pet.). In this case, the prosecutor stated that he “did not feel comfortable with” Venireperson Beaird’s demeanor but did not elaborate or specifically describe the behavior with which he was uncomfortable. Vasquez did not challenge, either at the Batson hearing or on appeal, this particular reason as a pretext for discrimination.

[3] In Miller-El v. Dretke, the United States Supreme Court cautioned that it was not adopting a rule stating that prospective juror comparisons were not probative unless the two jurors being compared were “identical in all respects.” 545 U.S. 231, 248 n.6, 125 S. Ct. 2317, 2329 (2005). The Court noted that “[a] per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable.” Id. We agree. When the State strikes both a minority venireperson and a non-minority venireperson who shares the same attributes that the State finds objectionable, however, this is evidence that the State’s race-neutral reasons are legitimate and not merely a pretext for purposeful racial discrimination.