Delvin Darnell James v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-04-00155-CR ______________________________ DELVIN DARNELL JAMES, Appellant  V.  THE STATE OF TEXAS, Appellee                                               On Appeal from the 71st Judicial District Court Harrison County, Texas Trial Court No. 04-0014X                                                  Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION             At the conclusion of voir dire at his trial for aggravated assault, Delvin Darnell James challenged the State's use of peremptory challenges under Batson v. Kentucky, 476 U.S. 79 (1986). The trial court overruled his objection; the jury was empaneled, convicted James, assessed a sentence of twenty years, and the trial court sentenced James in accordance with the jury's assessment. In his sole point of error, James claims the trial court erred in denying his Batson challenge to the State's use of its peremptory strikes against various veniremembers. We disagree and affirm the judgment of the trial court. Batson Standard of Review             In Batson, the United States Supreme Court held that the State's purposeful use of peremptory challenges in a racially discriminatory manner violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Article 35.261 of the Texas Code of Criminal Procedure also specifically prohibits peremptory challenges based on race. Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 1989).             A Batson review involves a three-step analysis. Williams v. State, 937 S.W.2d 479, 485 (Tex. Crim. App. 1996). The first step requires the complaining party to make a prima facie case of racial discrimination. Id. (citing Purkett v. Elem, 514 U.S. 765, 767–69 (1995)). A prima facie case of discrimination may be made by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Batson, 476 U.S. at 93–96. After the complaining party establishes a prima facie case, the second step requires the party that has exercised the strike to come forward with a race-neutral reason for the strike. Williams, 937 S.W.2d at 485. This second step does not demand an explanation that is persuasive or even plausible. Purkett, 514 U.S. at 767–68. If the proponent of the strike can produce a race-neutral reason, then in the third and final step, the trial court must decide whether the opponent of the strike has proved purposeful racial discrimination. Id. at 768; Ford v. State, 1 S.W.3d 691 (Tex. Crim. App. 1999). Further, once the State proffers race-neutral explanations for its peremptory strikes, the burden is on the defendant to convince the trial court that the State's reasons were not race neutral. Ford, 1 S.W.3d at 693 (citing Camacho v. State, 864 S.W.2d 524, 529 (Tex. Crim. App. 1993); Tompkins v. State, 774 S.W.2d 195 (Tex. Crim. App. 1987)).             In reviewing a Batson challenge, we review the record in the light most favorable to the trial court's rulings and determine if the court's action was clearly erroneous. Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991). A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court is left with the definite and firm conviction that the trial court committed a mistake. Whitsey v. State, 796 S.W.2d 707, 721 (Tex. Crim. App. 1989) (op. on reh'g). The trial court is the fact-finder at a Batson hearing, and it is that court's responsibility to weigh the evidence and determine the credibility of the witnesses. Tompkins, 774 S.W.2d at 202 n.6A. We therefore accord great deference to the trial court's rulings. Robinson v. State, 851 S.W.2d 216, 226 (Tex. Crim. App. 1991). If the exercise of even one peremptory challenge was racially motivated, however, the entire jury selection process is invalidated and a new trial is warranted. Keeton v. State, 724 S.W.2d 58, 65 n.5 (Tex. Crim. App. 1987); see Roberts v. State, 963 S.W.2d 894, 899–900 (Tex. App.—Texarkana 1998, no pet.). Procedural History             At trial, following voir dire and before the jury was sworn, James first made his Batson challenge. During this brief hearing, the parties stipulated that James is an African-American. The trial court held a short hearing on James' objection and denied relief. During the appellate process, the State moved to abate the appeal alleging the record in the Batson hearing did not reflect the race-neutral explanations for the State's peremptory challenge as to veniremembers 3 and 24. We remanded the case for the trial court to conduct a Batson hearing and enter findings of fact and conclusions of law regarding the race of veniremembers 3 and 24, and the State's reasons for exercising peremptory challenges as to them. See Hutchison v. State, 42 S.W.3d 336 (Tex. App.—Texarkana 2001), aff'd, 86 S.W.3d 636 (Tex. Crim. App. 2002). The trial court has now conducted such hearing and has entered findings of fact and conclusions of law and determined that the State did not engage in purposeful discrimination based on race in its exercise of its peremptory challenges. The trial court found veniremembers 1, 3, 10, 14, 15, 24, and 35 were African-Americans within the range of eligibility for selection to the jury. The State used four of its peremptory challenges against veniremembers 3, 10, 15, and 24; James peremptorily struck veniremember 1. Original Batson Hearing             At the original Batson hearing, the State explained its reasoning for striking veniremembers 10 and 15. The State explained that number 10 was struck because he wore sunglasses during the voir dire examination. In explaining this strike, the State mentioned that it had also struck number 26, who was Caucasian, for the same reason.             The State gave as the reason for striking veniremember number 15 that the State wanted an older jury to judge a case involving young persons "in a shooting over a drug transaction." Again, the State explained that number 34, who was not identified as an African-American, was also struck for the same reason. Later, the State claimed to have struck all veniremembers under the age of thirty. Additional Batson Hearing on Remand             This Court abated the appeal, and the trial court held a Batson hearing regarding veniremembers 3 and 24. The trial court found that veniremembers 3 and 24 are African-American. The State exercised peremptory challenges against numbers 3 and 24 in addition to the two African-American veniremembers discussed above.             At the second Batson hearing, the State testified it struck number 3 because of her personal knowledge of James. Number 24 was struck because he did not have a high school education, as was another non-African-American venire member. Batson Analysis             James and the veniremembers under discussion are African-American, so James met the Williams requirement of showing a prima facie case for an allegation of racial discrimination. See Williams, 937 S.W.2d at 485. The State presented its race-neutral explanations for the strikes used on African-American veniremembers. The trial court found such explanations racially neutral. Now we must review the trial court's finding that James failed to prove purposeful discrimination by the State.             James relies on Keeton v. State, 749 S.W.2d 861, 868 (Tex. Crim. App. 1988), for support of his argument that the State's race-neutral explanations were merely pretexts to hide the State's racially-motivated ulterior motive, to wit: to remove African-Americans from James' jury. In Keeton, the court stated that the State's race-neutral explanation "need not rise to the level of a challenge for cause." Id. The court then provided, as illustration, ways the State could overcome a presumption: "The state challenged non-black jurors with the same or similar characteristics as the black jurors who were struck." Id.             The State gave as its race-neutral explanation for striking veniremember 10 that he wore sunglasses during the voir dire examination. This explanation has been considered as race neutral. See Alexander v. State, 866 S.W.2d 1, 8 (Tex. Crim. App. 1993). Additionally, no disparate treatment is shown because the State also struck a non-African-American, number 26, for the same reason.             Veniremember 15 was struck because of his age. The State explained it wanted an older jury to judge a case involving young persons and a drug transaction. Age may be a legitimate neutral reason for a peremptory challenge. See Brown v. State, 960 S.W.2d 265, 269 (Tex. App.—Corpus Christi 1997, no pet.) (citing Silva v. State, 800 S.W.2d 912, 914–15 (Tex. App.—San Antonio 1990, no pet.); Moss v. State, 790 S.W.2d 731, 732 (Tex. App.—Houston [14th Dist.] 1990, no pet.)) (age is an accepted criterion for peremptory challenges and does not violate Batson); Chivers v. State, 796 S.W.2d 539, 542–43 (Tex. App.—Dallas 1990, pet. ref'd). However, an explanation as to why age is important should be presented and closely examined. See Chivers, 796 S.W.2d at 543. Here, the State explained why it considered the age of the jurors to be important. It also pointed out that it likewise struck veniremember 34, a non-African-American, for the same reason. In his brief, James claims the State did not strike veniremember 4, whose date of birth was March 28, 1974. James' trial was held in October 2004, at which time veniremember number 4 was thirty years of age. The State consistently struck all veniremembers under the age of thirty, regardless of race. James also complains the State's claim of wanting an "older jury" is belied by the State's striking of veniremembers persons in their late 40s and early 50s. However, James did not question whether there were other reasons for the State to have struck these individuals. See Satterwhite v. State, 858 S.W.2d 412 (Tex. Crim. App. 1993) (appellant failed to carry burden of showing racial discrimination where he did not cross-examine responding party and presented no evidence suggesting that racially-neutral explanations were pretext for discrimination); see also Spencer v. Murray, 5 F.3d 758, 764 (4th Cir. 1993) (petitioner "offered nothing to the trial court to show" prosecutor's "stated reasons were pretextual or showed any evidence of discriminatory motive").             The State explained it struck veniremember 3 because she was personally familiar with James, which is a race-neutral explanation. Personal acquaintance with a defendant is a traditional basis for exercising a peremptory challenge.             The State explained it struck veniremember 24 because he had no high school education. The State further explained it also struck veniremember 18 for the same reason. The juror information card for veniremember 18 revealed that he had not completed high school. The rationale given was that the case involved a shooting and medical records would be introduced (presumably, the State was concerned about the jurors being able to read and understand the medical records). Such an explanation is race neutral.             Failing to find the trial court's rulings on James' Batson challenge were clearly erroneous, we overrule James' point of error and affirm the judgment.                                                                         Jack Carter                                                                         Justice  Date Submitted:          August 1, 2005 Date Decided:             November 8, 2005 Do Not Publish nt-size:8.0pt; font-family:"Tahoma","sans-serif"; mso-ascii-font-family:Tahoma; mso-hansi-font-family:Tahoma; mso-bidi-font-family:Tahoma;} span.FootnoteTextChar {mso-style-name:"Footnote Text Char"; mso-style-noshow:yes; mso-style-priority:99; mso-style-unhide:no; mso-style-locked:yes; mso-style-link:"Footnote Text"; mso-ansi-font-size:10.0pt; mso-bidi-font-size:10.0pt; font-family:"Times New Roman","serif"; mso-ascii-font-family:"Times New Roman"; mso-fareast-font-family:Calibri; mso-fareast-theme-font:minor-latin; mso-hansi-font-family:"Times New Roman";} span.HeaderChar {mso-style-name:"Header Char"; 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(2) his request for funds to hire an expert; (3) his request to have the victim examined by the expert as to her disability and competency to testify; and (4) his motion for mistrial. Graves also complains that the evidence was insufficient to establish that the victim met the definition of “disabled” under the Texas Penal Code.            We addressed these issues in detail in our opinion of this date on Graves’s appeal in cause number 06-09-00063-CR. For the reasons stated therein, we likewise conclude that error has not been shown in this case.            We affirm the judgment.                                                                           Bailey C. Moseley                                                                        Justice Date Submitted:         February 5, 2010 Date Decided:            February 24, 2010  Do Not Publish [1]Graves appeals from judgments entered in cause numbers 06-09-00063-CR through 06-09-00070-CR.Â