in Re Sinton Dairy, Inc. and Kristine Rich, as Personal Representative and/or Heir to the Estate of John Rich

IN THE TENTH COURT OF APPEALS No. 10-05-00349-CV In re Sinton Dairy, Inc. and Kristine Rich, As Personal Representative and/or Heir to the Estate of John Rich Original Proceeding MEMORANDUM Opinion This Court abated this mandamus proceeding so the parties could implement settlement agreements. Relators Sinton Dairy, Inc. and Kristine Rich, as personal representative and/or heir to the Estate of John Rich, have now filed a motion to dismiss their petition for writ of mandamus because the underlying suit has settled, rendering the petition moot. Real Party in Interest, Gary Byers, and Defendant, Richard L. Wagner, do not oppose the motion. Accordingly, the case is reinstated, and the mandamus is dismissed. See Tex. R. App. P. 42.1(a)(1). TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Writ dismissed Opinion delivered and filed January 4, 2006 [OT06] . Ct. at 1770-71. Then the defendant must prove purposeful racial discrimination. Id. The burden of persuasion regarding racial motivation never leaves the defendant; therefore, the race-neutral explanation given by the State is not required to be persuasive, but merely facially valid. Id. A trial court's decision on whether the defendant has proven a Batson claim turns, in part, on observations made during the voir dire examination. Therefore, the court's determination of a Batson issue must be accorded great deference on appeal. King v. State, 129 S.W.3d 680, 682 (Tex. App.—Waco 2004, pet. ref’d). The trial court's finding that peremptory strikes were not racially motivated will be upheld on appeal if the finding is not "clearly erroneous" when viewed in the light most favorable to that ruling. Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). A decision is "clearly erroneous" if a review of the record leaves us with a firm and definite conviction that a mistake has been made. King, 129 S.W.3d at 682. Though the United States Supreme Court has revisited the type and amount of evidence required to prevail on a Batson claim, it did not change the standard of review on direct appeal. See Murphy v. Dretke, 416 F.3d 427, 439 (5th Cir. 2005) (discussing Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005)). The venire for Ellis’s case included three African Americans. One was struck for cause. The State used two of its ten peremptory strikes to remove the remaining two African Americans from the venire. Ellis raised a Batson challenge at that time making a prima facie showing that the State used its peremptory strikes on the basis of race. The State responded that it struck the two potential jurors because of their personal experiences with alcohol and experiences with alcoholic family members. The State argued that the juror’s past experiences would cause them to be sympathetic to Ellis. Ellis attempted to rebut the State’s reasoning by showing that similarly situated venire members were not struck by the State. In evaluating the genuineness of State's proffered race-neutral reasons, we may consider: (1) whether the reason given is related to the facts of the case; (2) whether the State meaningfully questioned the challenged venire member; (3) whether persons with the same or similar characteristics as the challenged venire member were not struck; (4) whether there was disparate examination of the members of the venire; and (5) whether an explanation was based upon a group bias although the specific trait is not shown to apply to the challenged juror. Williams v. State, 804 S.W.2d 95, 105-06 (Tex. Crim. App. 1991). The United States Supreme Court has emphasized the importance of side-by-side analysis between jurors struck and those allowed to serve, stating that this information was “more powerful” than statistics. Miller-El, 545 U.S. at 241, 125 S. Ct. at 2325. Ellis complains of the State using a peremptory strike to remove black venire member Melba Wilson. A second black venire member was struck by the State, but Ellis does not challenge that strike. Wilson stated in voir dire she had a brother who was an alcoholic and had been in prison but had since reformed. Also, Wilson admitted to having a drinking problem as a young adult which prompted her to stop drinking entirely. The State contends that, in choosing who to strike, it drew a distinction between those who had personal problems with alcohol, and those who had family members or friends with alcohol problems. In support the State points to three other venire members who were also struck because each admitted to having had a drinking problem. These four venire members were the only potential jurors to make such an admission. Ellis contends that four other venire members like Wilson admitted to having a family member or friend with an alcohol problem. However, each of these potential jurors made some statement indicating she could separate her experiences from the facts of Ellis’s case, and none of the four admitted to having a personal problem with alcohol. Ellis offers no further evidence that the State’s reason for striking Wilson was not genuine. A comparative analysis between those struck and those allowed to serve is the most persuasive evidence with regard to misuse of a jury strikes, and in this case, it shows that the State, without regard for race, struck those jurors who admitted having a drinking problem. See Miller-El, 545 U.S. at 241, 125 S. Ct. at 2325. We overrule Ellis’s sole issue and affirm the conviction. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurs in the judgment without separate opinion) Affirmed Opinion delivered and filed March 7, 2007 Do not publish [CRPM]