Rickey Gene Pippin v. State

Opinion filed August 21, 2015
In The
Eleventh Court of Appeals
__________
Nos. 11-14-00032-CR & 11-14-00033-CR
__________
RICKEY GENE PIPPIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court Cause Nos. 1224614D & 1288659D
MEMORANDUM OPINION
The grand jury returned two indictments against Appellant, Rickey Gene
Pippin: one for unlawful possession of a firearm and the second for bail jumping.1
He pleaded guilty to each offense and pleaded “true” to the enhancement
allegations that were contained in the “Habitual Offender Notice” in each
indictment. The jury found him guilty, found the enhancement allegations in the
habitual offender notice to be “true” for each indictment, and assessed punishment
1
TEX. PENAL CODE ANN. § 38.10 (Bail Jumping and Failure to Appear), § 46.04 (Unlawful
Possession of Firearm) (West 2011).
at confinement for ninety-nine years in each case. The trial court sentenced him
accordingly. Appellant argues in both appeals the sole issue that the trial court
erred when it denied his Batson2 challenge. We affirm.
I. Voir Dire Proceeding
Of the sixty members that comprised the venire panel, six were African-
Americans: Veniremember Nos. Seven, Eight, Fourteen, Seventeen, Eighteen, and
Forty-six. Both the State and Appellant3 agreed to dismiss Veniremember Nos.
Fourteen and Forty-six for cause. Appellant used a peremptory strike on
Veniremember No. Seven. The State used peremptory strikes on Veniremember
Nos. Seventeen and Eighteen. Veniremember No. Eight sat on the jury.
Appellant raised a Batson challenge against the State’s strikes of
Veniremember Nos. Seventeen and Eighteen. The State argued that
Veniremember No. Seventeen had previous theft charges against her and that
Veniremember No. Eighteen had had a bad experience with police in the past. The
State further argued that, although Veniremember No. Eighteen said he could be
fair, he hesitated before he answered; that was why the State struck him. The trial
court denied Appellant’s Batson challenge, and found “that the State exercised its
challenges . . . for racially neutral reasons, and that the defense has failed to
establish a pattern of racial discrimination.” Appellant challenges, on appeal, the
ruling of the trial court as to Veniremember No. Eighteen.
II. Analysis
Three steps are involved in a Batson challenge to the State’s use of
peremptory strikes. The defendant must first make a prima facie showing of racial
discrimination. Hernandez v. New York, 500 U.S. 352, 358 (1991). After the
defendant makes a prima facie showing of racial discrimination, the State must
2
See Batson v. Kentucky, 476 U.S. 79 (1986).
3
Appellant is Caucasian.
2
articulate a race-neutral explanation for its strike. Batson, 476 U.S. at 97–98;
Guzman v. State, 85 S.W.3d 242, 245 (Tex. Crim. App. 2002). The third step
requires the defendant to carry the burden of persuasion that the State’s neutral
explanation is a “pretext” to disguise racial discrimination. Jackson v. State, 442
S.W.3d 771, 774 (Tex. App.—Texarkana 2014, no pet.) (citing Batson, 476 U.S. at
98); see Keeton v. State, 724 S.W.2d 58, 65 (Tex. Crim. App. 1987) (Keeton I).
The trial court must determine the fact question of whether the race-neutral reason
proffered by the State is a mere pretext for purposeful discrimination. Watkins v.
State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008); Jackson, 442 S.W.3d at 774.
A. Standard of Review
On a Batson challenge, we examine the evidence in the light most favorable
to the ruling of the trial court and determine whether the record supports the
findings of the trial court. See Keeton v. State, 749 S.W.2d 861, 870 (Tex. Crim.
App. 1988) (Keeton II). Our review of the record is “highly deferential” to the trial
court. Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). If the record
contains sufficient evidence to support the trial court’s findings that there was no
purposeful racial discrimination, those findings will not be disturbed. Id. We may
not substitute our judgment for that of the trial court. Nieto v. State, 365 S.W.3d
673, 681 (Tex. Crim. App. 2012).
B. Batson Challenge: Steps One and Two
No one claimed that Appellant failed to make a prima facie showing of
racial discrimination under the first step. Moving to the second step, the State had
to provide a race-neutral explanation for its strike. A race-neutral explanation
“means an explanation based on something other than the race of the
juror.” Hernandez, 500 U.S. at 360; see Watkins, 245 S.W.3d at 447. If race-
neutral on its face, the reason offered by the State will be deemed race-neutral
unless a discriminatory intent is inherent in the State’s explanation of its strike.
3
Guzman, 85 S.W.3d at 246. And, if the State offers a facially valid explanation for
its strike, it has rebutted the presumption of purposeful discrimination. Williams v.
State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991).
A bad experience with police and hesitancy in answering a question are both
valid, race-neutral reasons for striking a veniremember. Kennerson v. State, 984
S.W.2d 705 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (unpublished in part,
available online) (hesitancy); Davis v. State, 964 S.W.2d 352, 355 (Tex. App.—
Fort Worth 1998, no pet.) (experience with police). The State questioned the
veniremembers about their experiences with law enforcement, and Veniremember
No. Eighteen stated that he had had a bad experience with police before but could
be fair. One of the prosecutors gave the first explanation for striking
Veniremember No. Eighteen—that he had had a bad experience with police
officers. The other prosecutor explained further that Veniremember No. Eighteen
hesitated before he gave his answer that he could be fair toward police officers as
witnesses. The State’s explanations, that they struck Veniremember No. Eighteen
because he had had a bad experience with police and because he hesitated when he
answered whether he could be fair, are race-neutral and satisfied the State’s burden
that requires articulation of a nondiscriminatory reason for the strike. See Keeton I,
724 S.W.2d at 65; Kennerson, 984 S.W.2d 705 (holding that hesitancy is a
permissible reason for striking a panelist from the venire); Davis, 964 S.W.2d at
355 (holding that a bad experience with police is a permissible reason for striking a
panelist from the venire).
C. Batson Challenge: Step Three
The third step requires the defendant to carry the burden of persuasion that
the neutral explanation provided by the State was a “pretext” to disguise racial
discrimination. Keeton I, 724 S.W.2d at 65; Jackson, 442 S.W.3d at 774. The trial
court must then determine whether the defendant has proved purposeful racial
4
discrimination. Grant v. State, 325 S.W.3d 655, 657 (Tex. Crim. App. 2010)
(citing Batson, 476 U.S. at 96–98). Five nonexclusive factors to consider when
determining if the State’s race-neutral explanation is genuine include whether:
(1) the reason given by the State is related to the facts of the case;
(2) the State performed a meaningful examination of the challenged
venireperson;
(3) the State did not strike other venirepersons with the same or similar
traits as the challenged venireperson;
(4) there was a disparate examination of the challenged venireperson
when compared to the examination of the unchallenged venirepersons;
and
(5) the State based its explanation on a group bias even though the
specific trait was not shown to apply to the challenged venireperson.
Williams, 804 S.W.2d at 106; see Keeton II, 749 S.W.2d at 866. Disparate
treatment of veniremembers, which is a factor the trial court may consider, may
include the State’s failure to question minority veniremembers before striking them
or the State’s striking of minority veniremembers who gave similar answers as
majority veniremembers, when the latter were not struck by the State. Young v.
State, 826 S.W.2d 141, 145 (Tex. Crim. App. 1991). And, if the State gives
“mixed motives” for striking a veniremember and the defendant makes a prima
facie showing of discriminatory purpose, the State “must demonstrate that [it]
would have exercised the peremptory strike even if the improper factor had not
existed or contributed to the decision to strike the prospective juror.” Guzman, 85
S.W.3d at 253, 254. Furthermore, the defendant, for the first time on appeal, may
raise disparate treatment to show the State’s race-neutral explanation was, in fact, a
pretext. Young, 826 S.W.2d at 145.
Appellant contends that the State showed disparate treatment toward
Veniremember No. Eighteen, that the State misstated Veniremember
No. Eighteen’s response to questioning, and that the State gave additional reasons
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that were inapplicable to Batson. The State told the trial court that it struck
Veniremember No. Eighteen because he had had a bad experience with police
officers and because he had hesitated before he answered that he could be fair
toward police officers as witnesses. This occurrence is proved on the record
because it was not rebutted. See Nieto, 365 S.W.3d at 680; Yarborough v. State,
947 S.W.2d 892, 895 (Tex. Crim. App. 1997). And, contrary to Appellant’s
contention that “- -” missing from the reporter’s record shows that no hesitation
occurred, the reporter appears to use “--” to show breaks that occur while a person
was speaking, not hesitation prior to speaking.
Although other veniremembers may have had similar answers to
Veniremember No. Eighteen and were not struck, the record does not indicate that
any of those veniremembers hesitated in their answers about being fair.
Furthermore, even though the State gave additional inapplicable reasons for the
strike, the trial court was the judge of their credibility, and we defer to the
judgment of the trial court. See Thaler v. Haynes, 559 U.S. 43, 49 (2010). The
trial court’s ruling—that the State did not exercise disparate treatment toward
Veniremember No. Eighteen—is supported by the record. See Young, 826 S.W.2d
at 145. Appellant has failed to meet his burden to show that the State engaged in
purposeful racial discrimination in its challenge to Veniremember No. Eighteen.
We overrule Appellant’s sole issue in each appeal.
III. This Court’s Ruling
We affirm the judgments of the trial court.
August 21, 2015 MIKE WILLSON
Do not publish. See TEX. R. APP. P. 47.2(b). JUSTICE
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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