James Glenn Jacobs v. State ( 2004 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00204-CR

______________________________

JAMES GLENN JACOBS, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 124th Judicial District Court

Gregg County, Texas

Trial Court No. 30641-B

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            During an investigation of a one-car accident, James Glenn Jacobs was discovered face down, intoxicated, and unconscious in a ditch about 200 to 400 yards from the wrecked vehicle. Jacobs appeals his conviction of felony driving while intoxicated (DWI). A jury found Jacobs guilty and assessed punishment at nine years' imprisonment. Jacobs alleges that the trial court erred in admitting into evidence medical records containing double hearsay and that the evidence was both legally and factually insufficient to support the verdict. We affirm the judgment of the trial court.

Admission of Medical Records

            In his first point of error, Jacobs contends the trial court erred in admitting the medical records. Medical records concerning the accident were introduced under the "business records" exception to the hearsay rule. The custodian of medical records testified that she was the legal custodian of the business records in question, that the records were kept in the regular course of business, and that the information contained in the records was recorded by an employee of the hospital at or near the time of the stated events. Because Jacobs was the only person found at the scene, Jerry Cobb, an emergency medical technician with the Longview Fire Department, assumed Jacobs was the driver and informed hospital personnel that Jacobs was the driver. The medical reports, consisting of more than forty pages, provide, among numerous other entries, that "[t]he patient is a 30 year-old intoxicated white male who is status post motor vehicle accident, driver."

            A trial court's decision on the admissibility of evidence is reviewed for an abuse of discretion. Bee v. State, 974 S.W.2d 184, 187 (Tex. App.—San Antonio 1998, no pet.). A trial court abuses its discretion when its decision falls outside "the zone of reasonable disagreement." Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001). The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action; rather, it is a question of whether the court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).

            The general rule is that hearsay statements are inadmissible. See Tex. R. Evid. 802. Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." See Tex. R. Evid. 801(d); Huff v. State, 897 S.W.2d 829, 838–39 (Tex. App.—Dallas 1995, pet. ref'd). However, there are numerous exceptions to the hearsay rule. See Tex. R. Evid. 803. Rule 803(6), commonly known as the "business records exception" provides that

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

Tex. R. Evid. 803(6) (emphasis added). The purpose of the "business records" exception is to "dispense with the necessity of proving each and every book entry by the person actually making such entry." Crane v. State, 786 S.W.2d 338, 353 (Tex. Crim. App. 1990).

            Even if the formal requirements of the exception are shown, the indispensable, fundamental trustworthiness of the proffered record must be evident, including the requirement that the records have the "'indicia of reliability.'" Id. Even if a record qualifies as a business record, not all of the contents of that record may be admissible. See Garcia v. State, 126 S.W.3d 921, 926 (Tex. Crim. App. 2004) (a comment made by a person who does not have a business duty to report must independently qualify for admission under another hearsay exception).

            Before we examine the substance of Jacobs' point of error, we must determine whether error has been preserved. Any error in admitting evidence must have been preserved by a proper objection and ruling. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Skeen v. State, 96 S.W.3d 567, 575 (Tex. App.—Texarkana 2002, pet. ref'd). The objection must have been timely and include the basis for the objection unless the particular ground was apparent from the context. Lankston v. State, 827 S.W.2d 907, 908–09 (Tex. Crim. App. 1992); Skeen, 96 S.W.3d at 575.

            Specific objections are required to preserve error in order to afford the trial court the opportunity to rule and allow the opposing counsel an opportunity to remedy the defect or supply other testimony. Johnson v. State, 901 S.W.2d 525, 533 (Tex. App.—El Paso 1995, pet. ref'd). Rule 33.1(a)(1)(A) requires that an objection state the grounds for the ruling being sought "with sufficient specificity to make the trial court aware of the complaint." Tex. R. App. P. 33.1. Such specificity is not required, though, if "the specific grounds were apparent from the context." Id.; see Cofield v. State, 891 S.W.2d 952, 954 (Tex. Crim. App. 1994). In Lankston, the Texas Court of Criminal Appeals held that, under the predecessor to Rule 33.1, "no technical considerations or form of words" are necessary and that all that is required is to "let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it." Lankston, 827 S.W.2d at 909. Making the trial court aware of the complaint requires that both the grounds and what is being objected to be apparent. See Hernandez v. State, 599 S.W.2d 614, 617 (Tex. Crim. App. [Panel Op.] 1980) (op. on reh'g).

            "[W]hen an exhibit contains both admissible and inadmissible material the objection must specifically refer to the material deemed objectionable." Beltran v. State, 728 S.W.2d 382, 387 (Tex. Crim. App. 1987); Gilbert v. State, 840 S.W.2d 138, 145 (Tex. App.—Houston [1st Dist.] 1992, no pet.); see Hernandez, 599 S.W.2d at 617 (op. on reh'g). In Gilbert, the First Court of Appeals held that the failure to make an objection that specifically referred to the inadmissible parts of a letter failed to preserve error, even though parts of the letter may have been inadmissible. Gilbert, 840 S.W.2d at 145. In Hernandez, the Texas Court of Criminal Appeals held that failure to specifically refer to the inadmissible parts of a "pen packet" introduced at the punishment phase failed to preserve the error in admitting the entire "pen packet." Hernandez, 599 S.W.2d at 617 (op. on reh'g).

            Jacobs was required to make an objection with sufficient specificity that the trial court could be aware of what he was complaining about. The record in pertinent part is as follows:

[Prosecutor]: Your Honor, at this time I'm going to move to offer into evidence State's Exhibit 1, which had been previously copied for defense counsel prior to trial today.

 

(State's Exhibit 1 offered)

 

[Defense Counsel]: Your Honor, I believe that I'm going to object to the records to the extent that they contain hearsay within hearsay. I understand that they've been proved up as business records, but the hearsay in evidence, what's contained within them, I object to.

 

THE COURT: No. It's a business record, it comes in, so I admit the exhibit.

Jacobs' counsel's objection did not make the trial court aware of where in the records the objectionable material is. There is no specific reference to the inadmissible parts of the medical records. This is not an objection specific enough to make the trial court aware of what is being objected to. Nor can we say that the inadmissible material which forms the basis of the objection is apparent from the context. The medical records contained approximately forty pages of entries properly authenticated as business records, and the complained-of evidence consists of a single word. Therefore, we conclude the error was not preserved.

Sufficiency of the Evidence

            In his second and third points of error, Jacobs contends there is legally and factually insufficient evidence for a jury to conclude beyond a reasonable doubt that he operated the vehicle in question. In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). This calls on the court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991).

            When reviewing a challenge to the factual sufficiency of the evidence to support the conviction, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, slip op. at 8, 2004 Tex. Crim. App. LEXIS 668, *20 (Tex. Crim. App. Apr. 21, 2004). There are two ways in which we may find the evidence to be factually insufficient. First, if the evidence supporting the verdict, considered alone, is too weak to support the jury's finding of guilt beyond a reasonable doubt, then we must find the evidence insufficient. Id. Second, if—when we weigh the evidence supporting and contravening the conviction—we conclude the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient. Id. "Stated another way, evidence supporting guilt can 'outweigh' the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard." Id. If the evidence is factually insufficient, then we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996).

            The elements necessary to prove that a person committed the offense of DWI are 1) a person, (2) is intoxicated, (3) at the time of, (4) operating, (5) a motor vehicle, (6) in a public place. Jacobs contends there is insufficient evidence that he was the person operating the vehicle.

            On November 9, 2002, emergency medical personnel responded to the report of a wrecked pickup truck. The truck was stuck in a ditch with substantial damage. The pickup truck was running, in gear, and the driver's side door was open. Jacobs was discovered face down, intoxicated, and unconscious in a ditch about 200 to 400 yards from the wrecked vehicle. No other occupants were found at the scene. Trooper Jay Alexander testified that the steering wheel had been damaged. Jacobs was diagnosed with bilateral lung contusion, bruising of the lungs, or atelectasis, collapse of the alveoli in the lungs. The medical records indicate that pneumonia could have been a possible cause of Jacob's injuries, but the injuries were also consistent with injury caused by a person's chest striking a steering wheel during an accident. Cobb testified that medical tests indicated Jacobs had a blood alcohol concentration in excess of three times the legal limit. As a result of the incident, Jacobs was charged, in addition to the DWI, with operation of a motor vehicle in violation of the financial responsibility law. Before the trial for DWI, Jacobs pled guilty to operation of a motor vehicle in violation of the motor vehicle liability insurance requirement. See Tex. Transp. Code §§ 601.051, 601.191 (Vernon 1999). One of the elements of this offense is that one must operate a vehicle without one of the enumerated financial responsibility measures including motor vehicle insurance. Id. A copy of Jacobs' plea concerning the lack of insurance was introduced into evidence. A guilty plea is an admission of all elements of a formal criminal charge. Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986). Thus, Jacobs had previously admitted his guilt to an offense which required him to be the driver on the occasion in question.

            Jacobs argues that there are numerous scenarios which would explain why only the driver's side door was open and that Jacobs was the only person found at the scene. Jacobs contends the driver could have pulled Jacobs out of the vehicle from the driver's side or that Jacobs could have exited the passenger side and closed the door. The driver could have fled the scene before the emergency medical personnel arrived. However, the State is no longer obligated to exclude every reasonable hypothesis other than guilt in circumstantial evidence cases. See Purvis v. State, 4 S.W.3d 118, 120 (Tex. App.—Waco 1999, no pet.); see also Geesa v. State, 820 S.W.2d 154, 160–61 (Tex. Crim. App. 1991), overruled in part on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000).

            The evidence contains circumstantial evidence that Jacobs was the driver. Furthermore, by entering a plea of guilty to driving without insurance, he admitted operating the vehicle at the time of this accident. When viewed in a light most favorable to the verdict, a rational person could have found Jacobs guilty beyond a reasonable doubt. The evidence supporting the verdict, considered alone, is strong enough that a rational juror could have found Jacobs guilty beyond a reasonable doubt. After weighing the evidence supporting and contravening the conviction, we conclude that the contrary evidence is not strong enough that the State could not have proven guilt beyond a reasonable doubt. Viewed in a neutral light, a rational juror could have found Jacobs guilty beyond a reasonable doubt. Therefore, the evidence was both factually and legally sufficient.

            For the reasons stated, we affirm the judgment of the trial court.

 

                                                                        Jack Carter

                                                                        Justice

 

Date Submitted:          April 9, 2004

Date Decided:             May 20, 2004

Do Not Publish

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-11-00073-CR

                                                ______________________________

 

 

                                 RAY CHARLES HAWKINS, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

                                                                                                 Â

 

 

                                       On Appeal from the 114th Judicial District Court

                                                             Smith County, Texas

                                                          Trial Court No. 4-93-821

 

                                                                                                  

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

 

            During jury selection in Ray Charles Hawkins’ Smith County^[1] trial for indecency with a child, Hawkins’ counsel made two Batson^[2] challenges, both of which were overruled by the trial court and which are the basis for Hawkins’ appeal.  Hawkins was ultimately convicted and sentenced to twenty years’ incarceration.^[3]  We affirm the judgment of the trial court, because (1) the State proffered manifestly race-neutral explanations for its strikes, and (2) the trial court did not clearly err in accepting those explanations.

            Hawkins’ Batson challenges questioned the State’s peremptory strikes of two African-American veniremembers.^[4]  The trial court, without expressly finding Hawkins established a prima facie showing of racial discrimination, heard testimony from the State regarding its use of peremptory strikes on the two African-American veniremembers.  At the conclusion of the hearing, the trial court overruled the Batson challenges, finding the State expressed race-neutral reasons for the exercises of its peremptory strikes.  On appeal, Hawkins contends the State’s reasons for the exercise of the peremptory strikes were a pretext for discrimination.

            The State’s purposeful use of peremptory strikes in a racially discriminatory manner violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.  Batson, 476 U.S. at 89.  The United States Supreme Court has outlined a three-step process for evaluating claims that the State has exercised peremptory challenges in a manner violating the Equal Protection Clause.  Hernandez v. New York, 500 U.S. 352, 358 (1991); Batson, 476 U.S. at 96–98.  The defendant must first make a prima facie showing that the State has exercised peremptory challenges on the basis of race.  Hernandez, 500 U.S. at 358.  When this showing is made, the burden then shifts to the State to articulate a race-neutral explanation for striking the juror in question.  Id. at 358–59; see also Miller-El v. Cockrell, 537 U.S. 322, 328 (2003).  In light of this information, the trial court must then determine whether the defendant has shown purposeful discrimination.  Miller-El, 537 U.S. at 328–29.

            We should review a Batson claim

 

by an examination of the record in the light most favorable to the ruling of the trial court.  The standard of review is whether the ruling of the trial court was or was not “clearly erroneous.”  If supported by the record, including the voir dire, the prosecutor’s explanation of his use of a peremptory challenge, the rebuttal by appellant and impeaching evidence, the decision of the trial court will not be clearly erroneous.

 

Camacho v. State, 864 S.W.2d 524, 528 (Tex. Crim. App. 1993) (citations omitted).  To determine whether the trial court’s ruling was clearly erroneous, we examine the record to determine whether the ruling leaves us with a “definite and firm conviction that a mistake has been committed.”  Guzman v. State, 85 S.W.3d 242, 254 (Tex. Crim. App. 2002).  The trial court’s decision on the issue of pretext is solely a question of fact.  Gibson v. State, 144 S.W.2d 530, 534 (Tex. Crim. App. 2004).  The trial court is therefore in the best position to make that credibility determination.  Id.

The trial court’s ruling in the third step must be sustained on appeal unless it is clearly erroneous.  Because the trial court’s ruling requires an evaluation of the credibility and demeanor of prosecutors and venire members, and because this evaluation lies peculiarly within the trial court’s province, we defer to the trial court in the absence of exceptional circumstances.

 

Grant v. State, 325 S.W.3d 655, 657 (Tex. Crim. App. 2010) (citations omitted).

 

(1)        The State Proffered Manifestly Race-Neutral Explanations for Its Strikes

 

            The first of the two veniremembers—who were struck by the State and whose removal has been challenged by Hawkins—was Vickie Washington.  Counsel for the State testified that Washington was struck from the panel because “she felt some discomfort with racism involving police in Smith County,” and believed some police officers acted on racism in Smith County.  The State’s attorney further testified that Washington was struck because, though listed as a possible witness in an indecency-with-a-child case, she failed to raise her hand when asked on voir dire whether she had knowledge of any similar cases.  In addition, Washington hesitated to answer the State’s question regarding law enforcement and prejudice during the State’s voir dire:

With regard to Number 20, as a parole officer, she was very hesitant and very concerned about the race, and she wouldn’t even -- she hesitated to answer my question.^[5]

 

I even commented upon that, because there -- there is a concern that they are affected by it in a way that would be adverse to my position before I even get a shot to do it.

 

            In denying the Batson challenge to Washington, the trial court found

 

[T]hat the State has expressed race-neutral reasons, specifically the hesitance to answer, her lack of forthrightness, her -- the tendency of a parole officer to be geared toward rehabilitation rather than punishment, which is often what the State is looking for, and then really her lack of a square answer with regard to the prejudice question.

 

The Court does find those are race-neutral reasons and denies the challenge under Batson as to Juror Number 20.

 

            The State articulated race-neutral reasons for striking Washington.  See Purkett v. Elem, 514 U.S. 765, 768 (1995) (unless discriminatory intent inherent in prosecutor’s explanation, offered reason deemed race neutral); see also Williams v. State, 301 S.W.3d 675, 689 (Tex. Crim. App. 2009) (veniremember “never would quite answer the question”).  Striking a potential juror for being hesitant in answering questions during voir dire is a valid, race-neutral explanation.  See Kennerson v. State, 984 S.W.2d 705, 708 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d).

            The proponent of the strike need only tender a facially race-neutral reason for the strike.  The ultimate plausibility of that explanation is to be considered as part of the third step, in which the court determines whether the opponent of the strike has satisfied the burden of persuasion to establish by a preponderance of the evidence that the strike was the product of the proponent’s purposeful discrimination.  Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008).

            Here, Hawkins claims the State’s explanation of concern about Washington’s views of Smith County law enforcement as prejudiced or racist is merely a pretext for discrimination.  This concern, Hawkins maintains, could have easily been resolved by further questioning of Washington, and the failure to do so exposes the weakness of the State’s explanation.  See Chambers v. State, 866 S.W.2d 9, 24–25 (Tex. Crim. App. 1993) (lack of questioning might expose weakness of State’s explanation).  Even so, “the State is not required to ask a specified rubric of questions.”  Id. at 24.

            The State suspected that Washington would not be a good juror because she hesitated in responding to questions, expressed concerns regarding prejudice by law enforcement, demonstrated a lack of candor, and, because she was a parole officer, she might be geared toward rehabilitation rather than punishment.  Under these circumstances, Hawkins has failed to demonstrate that the State’s explanation of Washington’s hesitancy in responding to questions and concern about race did not constitute manifestly race-neutral explanations for striking Washington.  Hawkins also has not attempted to demonstrate how the State’s concern regarding a lack of candor^[6] and Washington’s employment as a parole officer^[7] are not race-neutral explanations for striking Washington.  See Middleton v. State, 187 S.W.3d 134, 142 (Tex. App.—Texarkana 2006, no pet.) (veniremember’s employment is race-neutral explanation, if State has had poor success with that type worker).  The State provided race-neutral explanations for its peremptory strike against Washington, none of which were indicative of purposeful discrimination.

            The second veniremember in question was Ralph Thompson. Counsel for the State testified that Thompson was struck because he had been previously convicted for assault and driving while intoxicated.  The State further indicated Thompson was struck because he believed Smith County law enforcement was prejudiced.^[8]  In overruling Hawkins’ Batson challenge, the trial court found Thompson’s prior convictions (although Thompson was not asked about them) to be a race-neutral reason for the exercise of the peremptory strike.  See Partida v. State, 133 S.W.3d 738, 742 (Tex. App.—Corpus Christi 2003, no pet.) (criminal history is race-neutral reason for striking from panel).

            The questioning of Thompson failed to indicate, however, that Thompson believed Smith County law enforcement was prejudiced—one of the reasons given by the State for the exercise of a peremptory challenge against Thompson.  To the contrary, Thompson’s responses reflected his belief that Smith County law enforcement officers are “good” and do their jobs well.  While this isolated explanation is factually inaccurate, the State provided a verifiable, race-neutral explanation for its use of a peremptory strike against Thompson, and the trial court overruled Hawkins’ Batson challenge based solely on the race-neutral explanation, as described in the preceding paragraph of this opinion.  The trial court, thus, did not err in finding the State satisfied its burden of production to provide race-neutral explanations for its peremptory strikes.  We next turn to step three of the analysis and examine the plausibility of those race-neutral explanations.

(2)        The Trial Court Did Not Clearly Err in Accepting the State’s Race-Neutral Explanations    for Its Strikes

 

            Hawkins asserts that prejudice in the exercise of the State’s peremptory challenges is evidenced by the line of questioning regarding the issue of racism and prejudice.  Initially, Washington was questioned regarding her views on the issue of whether Smith County law enforcement was racially prejudiced.  Immediately after Washington was questioned on this issue, the State turned to Thompson, who claimed no problem in that area.^[9]  Next, the State questioned veniremember thirty-one (an African-American later struck for cause) regarding his views on race relations and law enforcement.^[10]  The State then questioned veniremember thirty-eight, the only remaining African-American in the strike zone,^[11] and asked the same types of questions.^[12]

            Hawkins complains that the State struck two of the three remaining African-Americans in the strike zone (the fourth having been struck for cause).  Moreover, the only persons the State questioned regarding racism or prejudice were the African-American members of the panel.^[13]  Essentially, Hawkins claims the State used its peremptory challenges at a disproportionate rate to strike African-American veniremembers^[14] and further directed questions designed to set up peremptory challenges at a disproportionate rate to African-American veniremembers.

            Certainly, this strategy by the State—questioning only minority veniremembers on whether they viewed Smith County law enforcement as prejudiced—is certain to raise eyebrows and put the State in a vulnerable position in trying to defend against this Batson challenge.  The trial court could have justifiably found a pretext based on this selective questioning, given the situation presented.  But it did not so find.  Our job is not to rule based on what we would have found, had we been in the trial court’s position, but to determine whether the trial court’s ruling was clearly erroneous. Grant, 325 S.W.3d at 657.

            Similar concerns were addressed in Watkins v. State, 245 S.W.3d 444 (Tex. Crim. App. 2008).  In that case, of the first thirty-seven veniremembers, eight were African-American. The State used six of its eleven peremptory challenges to exclude seven of the eight African-Americans from the jury pool.  Id. at 451.  Faced with disproportionate use of peremptory challenges, the court recognized:

[T]his factor [the disproportionate use of peremptory challenges] does not alone establish that the trial court’s conclusion, that the State’s explanations were not pretextual, is clearly erroneous.  In Miller-El,^[15] it was the combined weight of all the factors suggesting pretext that ultimately convinced the Supreme Court that the deference ordinarily accorded to the state court’s judgment was inappropriate.  Similarly, a reviewing court should look to all relevant factors in deciding whether the trial court’s finding was clearly erroneous.

 

Id. at 452.

 

            Watkins also involved the issue of disparate questioning.  The State questioned African-American veniremembers about their ability to convict based on circumstantial evidence at twice the rate one would expect from a random selection.  Id.  The court concluded, however, that, while one of the State’s main lines of questioning “seemed suspiciously directed toward African-Americans, the two others manifestly were not.”  Id. at 453.  While disparate questioning was some evidence “that would support a finding that the prosecutor’s explanations were pretextual, the trial court found no pretext.  Nor can we say that this evidence, at least by itself, compels a conclusion that the trial court clearly erred.”  Id.

            Here, the State’s questioning of only African-American veniremembers about their opinion of racial prejudice among Smith County law enforcement—which one might suppose is predominantly Caucasion—is evidence the State directed questions designed to set up peremptory challenges at a disproportionate rate to African-American veniremembers.  As in Watkins, the State’s remaining areas of questioning were not “suspiciously directed toward African-Americans.”^[16]

            The State’s use of peremptory challenges against two of the three remaining African-Americans in the strike zone is disproportionate.

            But, neither of these factors, standing alone, can support the conclusion that the trial court erroneously determined that the State’s explanations for the exercise of its peremptory challenges were not pretextual.  Id. at 451, 453.  The question becomes, then, one of whether these two factors, when combined, compel the conclusion that the trial court erred in finding a lack of pretext for the State’s race-neutral explanations for its peremptory challenges to Washington and Thompson.  We conclude they do not.

            In Watkins, the court acknowledged “there was evidence in the record from which a rational judge could have concluded that the State’s race-neutral explanations for peremptory challenges . . . were but a pretext for race-based exclusion.”^[17]  Id. at 456.  The court recognized, however, that

this is not a case, like Miller–El, in which every relevant factor firmly supports a conclusion of pretext.  The prosecutor’s explanations for why he peremptorily struck Berry and Davis were manifestly race-neutral.  It was the appellant’s ultimate burden to persuade the trial court that those explanations were incredible or disingenuous.  The State struck other, non-African-American veniremen for the same reason that it struck Berry.  And it is apparent that Davis was struck because she gave an answer that was different from, and more objectionable to the State than, the answers it received from non-African-Americans to the same line of questioning.  Thus, the record also supports a conclusion that the State’s race-neutral explanations were not a pretext.

 

Id. at 457.  Further,

 

In Miller–El v. Dretke, the Supreme Court treated the question of pretext as a question of fact.^ We also regard it as a fact question, for the trial court to resolve, subject to reversal on appeal only for clear error.^  Because the record supports the trial court’s resolution of this fact question, we cannot say that it clearly erred, even though the record might support an opposite resolution as well.

 

Id. (citations omitted).

 

            In this case, as in Watkins, the State provided manifestly race-neutral explanations for its use of peremptory strikes against Washington and Thompson.  It was Hawkins’ burden to persuade the trial court that those explanations were “incredible or disingenuous.”  See id.  Hawkins does not argue, and did not present evidence at the Batson hearing, that the State engaged in disparate treatment by failing to strike similarly situated white veniremembers with criminal histories, who expressed hesitancy in answering questions, who were employed as parole officers, or who had previously served as a witness (or possible witness) at a criminal trial involving a similar type of offense. And, while it is true that some evidence at voir dire could support an inference of pretext, the question of pretext is one of fact.  Id.  Because the record supports the trial court’s resolution of this fact question, we cannot say the decision of the trial court is clearly erroneous.

            We affirm the judgment of the trial court.

 

 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

 

Date Submitted:          January 10, 2012        

Date Decided:             January 25, 2012

 

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^[1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.  See Tex. Gov’t Code Ann. § 73.001 (West 2005).  We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue.  See Tex. R. App. P. 41.3.

 

^[2]See Batson v. Kentucky, 476 U.S. 79 (1986).

 

^[3]The alleged offense occurred in 1992, and Hawkins was initially convicted of indecency with a child and sentenced to twenty years’ imprisonment in 1993.  After Hawkins’ initial appeal was dismissed as not timely filed, he was granted an out-of-time appeal.  That appeal was likewise dismissed due to a lack of certification of right to appeal. After Hawkins was granted a second out-of-time appeal, the Court of Appeals for the Twelfth District reversed the judgment of the trial court and remanded to the trial court for a new trial. This trial resulted in the judgment from which Hawkins now appeals.

 

^[4]Hawkins challenged the State’s peremptory strikes on juror numbers twenty and twenty-four. 

 

^[5]This testimony concerns the following exchange between Washington and counsel for the State:

 

                                [STATE]:               Is there any problem, from a racial standpoint, with the police -- or any – any kind of law enforcement in the Smith County area?

 

                                WASHINGTON:  Well, I don’t know how to answer it.

 

                                [STATE]:               It’s a hard question.

 

                                WASHINGTON: It’s very hard.

 

                                [STATE]:               Yes.

 

                                WASHINGTON:  Because you see a whole lot of different things.

 

                                [STATE]:               Yes, ma’am, you do.

 

                                WASHINGTON:  A lot.

 

                                                . . . .

 

                                [STATE]:               . . . And you hesitated, see, and you -- you know, it’s like the longer you hesitate, the more I realize you have some discomfort about that; fair to say?

 

                                WASHINGTON:  Yes, it is.

 

 

^[6]Counsel for Hawkins testified that Washington did not disclose her previous service as a witness in an unrelated indecency trial when asked during voir dire:

 

Anybody worried about the time or anybody on this side that either was a victim or knows a victim of some kind of sexual crime?  Put it that way.

 

Either a close family member or a close personal friend, anybody that has any of that in their background? 

 

^[7]During the State’s voir dire, Washington indicated that she worked as a parole officer for almost ten years.  One of the State’s explanations for striking Washington was based on her employment.  Counsel stated,

 

We also talked about the parole officer and the corrections officer. We look -- I personally look at those, no matter what their color, very closely all the time because of experiences I’ve had throughout my career with people who begin to -- to identify, and, in fact, some even begin to associate with the people that [they] are supervising, and we concern ourselves with that.

 

 

^[8]The exchange with Thompson (veniremember number twenty-four) prompting the peremptory challenge follows:

 

                                [STATE]:               Have you ever had a bad experience with a police officer?

 

                                THOMPSON:       Getting stopped for no reason.

 

                                                . . . .

 

                                [STATE]:               Is there anything about those experiences that would cause you a problem with a                 police officer around here?

 

                                THOMPSON:       No.

 

                                                . . . .

 

                                [STATE]:               Give me an assessment.  Police officers in Smith County, general assessment, good or bad?

 

                                THOMPSON:       Good.

 

                                [STATE]:               They do their -- they do their jobs and do them well?

 

                                THOMPSON:       Yes, sir.

 

                                [STATE]:               Okay.  Just because of that, are you going to automatically believe them?

 

                                THOMPSON:       No.

 

                                [STATE]:               Are you going to automatically disbelieve them?

 

                                THOMPSON:       No.

 

^[9]When asked if he perceived any problem “with the law enforcement people of Smith County with regard to racial issues,” Thompson replied that he perceived no such problem. 

 

^[10]This veniremember indicated he believes there is some degree of racial prejudice in Smith County law enforcement. 

 

^[11]The trial court noted for the record that those African-American veniremembers within the strike zone were numbers twenty, twenty-four, thirty-one, and thirty-eight.  There was one additional African-American on the panel, outside the strike zone. 

 

^[12]Veniremember thirty-eight indicated he believes Smith County law enforcement engages in racial stereotyping. 

 

^[13]Counsel for the State testified that, after reviewing his voir dire notes, he did not believe other veniremembers were asked about racism in Smith County.  Our review of the record reveals that only the four African-American veniremembers in the strike zone were asked about prejudice or racism in Smith County law enforcement.

 

^[14]Although the record does not reflect the number of strikes utilized on veniremembers other than African-Americans, we presume, based on Hawkins’ argument and the State’s response, that the remainder of the State’s strikes was used on non-African-American veniremembers.

 

^[15]The Miller-El factors included (1) the use of peremptory challenges to eliminate a far greater proportion of African-American veniremembers than non-African-American veniremembers, (2) the reasons asserted for eliminating two African-American veniremembers appeared to apply equally well to many of the non-African-American veniremembers who were not challenged, (3) utilization by the State of the option to shuffle the jury panel in a manner that supported an inference of race discrimination, (4) utilization of questioning specifically designed to elicit grounds for peremptory challenges disproportionately, in a manner that suggested an intent to single out African-American veniremembers for elimination, and (5) that the county in which Miller-El was prosecuted followed a formal policy to exclude minorities from jury service.  Miller-El v. Dretke, 545 U.S. 231, 240–63 (2005). The cumulative impact of these none-exclusive factors caused the United States Supreme Court to conclude that “its direction is too powerful to conclude anything but discrimination.”  Id. at 265.

 

^[16]The State engaged in five primary lines of questioning, including judging the credibility of witnesses, the panel’s experience with law enforcement, the length of time between the offense and trial, whether the veniremembers have been or know someone who has been a crime victim, and the State’s burden of proof in general and in light of certain categories of evidence.  In questioning the panel regarding its experiences with law enforcement, the State turned to the issue of racism and prejudice.  Only veniremembers twenty, twenty-four, thirty-one, and thirty-eight (all African-American) were called on individually for their assessment of prejudice in Smith County law enforcement. 

 

^[17]The court elaborated:

 

The numbers support the appellant. The State exercised its peremptory challenges against African–American veniremen at a grossly disproportionate rate as compared to non-African-Americans.  This fact serves not only to establish the appellant’s prima facie case of racial discrimination (if that were needed in this case), but also as evidence in support of his ultimate burden of persuasion.  Moreover, the prosecutor directed at least one line of questioning designed to ferret out objectionable jurors toward African–American veniremen at twice the rate one would expect from random selection.  The trial court may (or may not) have found that the prosecutor’s motive in peremptorily striking another African–American prospective juror was racial.  These facts militate in favor of a finding of pretext, and would have supported a trial court’s ruling to that effect.  

 

Id. at 456–57.