Dunn, Roger Fitzgerald v. State

Affirmed and Memorandum Opinion filed April 3, 2003

Affirmed and Memorandum Opinion filed April 3, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-01-01268-CR

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ROGER FITZGERALD DUNN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 361st District Court

Brazos County, Texas

Trial Court Cause No. 28,382-361

M E M O R A N D U M   O P I N I O N

A jury found appellant Roger Fitzgerald Dunn guilty of the felony offense of delivery of a controlled substance of less than one gram.  See Tex. Health & Safety Code Ann. ' 481.112(b) (Vernon Supp. 2003).  Appellant elected to have the court assess punishment, and the court sentenced appellant to two years in a state jail facility of the Texas Department of Criminal Justice, with the sentence to run consecutively to his sentence in case number 21,207-361.  In a single issue, he contends the trial court “abused its discretion” in denying his Batson challenge to the State=s use of a peremptory strike.  See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).  We affirm.

PROCEDURAL BACKGROUND^[1]

At the close of voir dire, the court and the parties identified the following jurors as belonging to a protected class under Batson: veniremembers 3, 23, and 25 (African-American); 36 (Asian-American); 4, 14, 38 (Hispanic).  Appellant initially objected to the State=s strikes against veniremembers 3, 4, 23, and 36.

As he does on appeal, appellant subsequently objected only to the State=s exercise of its peremptory strike against veniremember number 23, Willie Mae Jenkins-Greg, an African American.  The prosecutor explained his strike against Jenkins-Greg as based on Jenkin-Greg=s record from previous grand jury duty:

Juror number 23, Jenkins-Greg, previously admitted a State=s Pretrial Exhibit 1, Ms. Jenkins served on a grand jury.  I believe, it=s the April term of the 85th District Court Grand Jury of 1989.  And the internal notes of the District Attorney=s office -- which we commonly keep on grand juries -- stated, I believe, not word-for-word on that exhibit that she not be used as a juror.

State=s Exhibit 1 comprised a list of partially redacted names, with the following full entry: “Jenkins, WillieMae 85th GJ 0489 Term DO NOT USE ON JURY.”  Following the prosecutor=s explanation, defense counsel renewed an earlier objection to the exhibit. The earlier objection was based, in part, on hearsay, and if the court was going to admit the exhibit, the defense “should have a full fledged hearing on the underlying basis.  I should have the opportunity to cross-examine what material it is that allows this designation to not take.”

The prosecutor then testified the exhibit was kept as part of the practice in the course of business in the district attorney=s office.^[2]  The prosecutor further explained, “There are notations in the jury evaluations made after any jury trial and after grand juries are excused . . . [T]he ratings are made by a person with personal knowledge of the information given.” When the State picks a jury, one of the lawyers in the case checks the notations on file against the names on the jury list in the case being tried.  The prosecutor did not know why the notation, “do not use on jury,” was after Jenkins-Greg=s name, but he did “know whoever made that notation would have done so with relevant knowledge, and I should take advantage of it and listen to it.”

In arguing the State=s explanation was not race-neutral, defense counsel objected to the lack of any underlying basis for the notation:

Judge, I would -- my argument solely as to the -- as to juror 23, Willie Mae Jenkins-Greg, we have been - - you have been provided an exhibit from the District Attorney=s Office that we have no underlying basis for knowing how it was generated.

Now, I understand it=s in front of the Court for purposes of the motion hearing and the Court can give what weight to that exhibit as the Court wishes to do -- wishes to give.  But there is nothing in evidence right now other than that document that provides a race neutral explanation for why this juror was struck.  Okay.

My argument is that document provides no underlying reason for the reason why that the District Attorney=s office would not take her as a juror.  I mean, for all we know there may be -- we don=t know the basis for this notation contained on Exhibit 1.

My argument is simply that the Court should give little or no weight to the information that=s contained in Exhibit 1, although properly before the Court and properly to be considered.

If, for example, there was a notation, “Don=t take as juror because she voted no bill or not voted for no bill because she requires too much credibility, she requires too much from the police officers.”  There is nothing on that document that provides any type of basis for the reason why that juror would not be a suitable juror.

And on that basis, Judge, we would argue that at least -- I=m confining and focusing my argument solely to juror No. 23, Willie Mae Jenkins-Greg, and would state that for our record for appellate purposes that a sufficient race neutral reason has not been stated for the exercise of the strike.

The prosecutor responded the notation was based on Jenkins-Greg=s “track record,” and that was a race-neutral reason.  The court agreed; and, without further analysis or additional argument by defense counsel, the court overruled the Batson challenge.

DISCUSSION

The Equal Protection Clause of the United States Constitution prohibits a party from using peremptory strikes to exclude persons from a jury solely because of  race.  See Powers v. Ohio, 499 U.S. 400, 409, 111 S. Ct. 1364, 1370 (1991).  To raise this equal protection claim, the moving party must first make a prima facie showing that the striking party exercised a peremptory challenge on the basis of race.  Hernandez v. New York, 500 U.S. 352, 358, 111 S. Ct. 1859, 1866 (1991).  Once the moving party makes a prima facie case, the burden shifts to the striking party to articulate a race‑neutral explanation for striking the juror in question. Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770 (1995).

A race‑neutral explanation is simply one based on something other than the race of the juror. Hernandez, 500 U.S. at 360, 111 S. Ct. at 1866.  The explanation must relate to the particular case to be tried, but need not rise to a level justifying the exercise of a challenge for cause. Batson, 476 U.S. at 98, 106 S. Ct. at 1724.  Moreover, the explanation need not be persuasive, or even plausible.  Purkett, 514 U.S. at 768, 115 S. Ct. at 1771.  The issue is the facial validity of the striking party=s explanation.  Id. Unless a discriminatory intent is inherent in that explanation, a court will deem the reason offered race‑neutral.  Id.

Once the striking party gives a race‑neutral reason, the trial court must determine whether the moving party has carried its burden of proving purposeful discrimination.  Id. at 768.  There will seldom be much evidence bearing on that issue, and the best evidence will often be the demeanor of the attorney who exercises the strike.  Hernandez, 500 U.S. at 365, 111 S. Ct. at 1869.  Factors the trial court may consider to determine whether the striking party=s explanation for a peremptory challenge is merely a pretext include the following:  (1) the reason given not being related to the facts of the case; (2) a lack of questioning or meaningful questioning of the challenged juror; (3) disparate treatment, i.e., persons with the same or similar characteristics as the challenged juror not being struck; (4) disparate examination of venire members, i.e., questioning of a challenged juror to evoke a certain response without the same question being asked of other panel members; and (5) an explanation based on a group bias where the trait is not shown to apply to the challenged juror specifically.  Whitsey v. State, 796 S.W.2d 707, 713B14 (Tex. Crim. App. 1989).

Because the trial court=s findings turn largely on its evaluation of credibility, a reviewing court should ordinarily give those findings great deference.  Hernandez, 500 U.S. at 365, 111 S. Ct. at 1869; Ladd v. State, 3 S.W.3d 547, 563 (Tex. Crim. App. 1999). We should not overturn a trial court=s finding on the issue of discriminatory intent unless the trial court=s determination is clearly erroneous. Hernandez, 500 U.S. at 369, 111 S. Ct. at 1871; Ladd, 3 S.W.3d at 563. Where there are two permissible views of the evidence, the trial court=s choice between them cannot be clearly erroneous. Hernandez, 500 U.S. at 369, 111 S. Ct. at 1871.

In the present case, the striking party, the State, articulated reasons for the challenged peremptory strike, and the trial court implicitly ruled on the ultimate question of intentional discrimination.  We therefore need not review the issue of whether appellant met his burden at the first stage by establishing a prima facie case.  Hill v. State, 827 S.W.2d 860, 865 (Tex. Crim. App. 1992).

We conclude the prosecutor=s reasonCthat he relied on departmental notes resulting from Jenkin-Greg=s prior grand jury serviceCis a facially valid, race neutral, explanation.  See Reddicks v. State, 10 S.W.3d 360, 363 (Tex. App.CDallas, 1999, no pet.); Bausley v. State, 997 S.W.2d 313, 316 (Tex. App.CDallas 1999, pet. ref=d). The burden then shifted to appellant to show the prosecutor=s explanation was a sham or a pretext for a racially impermissible purpose.  Reddicks, 10 S.W.3d at 363; see also Payton v. State, 830 S.W.2d 722, 727 (Tex. App.CHouston [14th Dist.] 1992, no pet.) (stating, if prosecutor articulates race‑neutral reasons for strikes, defendant may offer evidence showing prosecutor=s reasons are merely sham or pretext).

To meet his burden, a defendant may offer evidence showing that the prosecutor=s explanations are merely pretextual.  See Keeton v. State, 749 S.W.2d 861, 868 (Tex. Crim. App. 1988).  It is at this point that, had appellant requested to examine the prosecutor whose opinions were the basis for Jenkin-Greg=s exclusion, the trial court arguably would have erred in denying that request. See Bausley, 997 S.W.2d at 317B18. In his earlier hearsay objection to State=s exhibit 1 (the document with the “do not use notation”) appellant raised the issue of  having “the opportunity to cross-examine what material it is that allows this designation to not take.”  He also skirted the issue in his criticism of the prosecutor=s explanation.  Nevertheless, after the burden shifted back to him, appellant never specifically requested that the court give him the opportunity to introduce evidence refuting the prosecutor=s race-neutral explanation, whether by examining the person making the notation or by introducing evidence establishing any of the other Whitsey factors set forth above.

Appellant did not meet his burden of establishing purposeful discrimination in the State=s peremptory strike of veniremember Jenkins-Greg.  We overrule appellant=s sole issue.

We affirm the judgment of the trial court.

/s/        John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed April 3, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

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

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^[1]  The facts of the underlying offense are unnecessary to the analysis.

^[2]  Defense counsel waived the oath for the prosecutor=s testimony.