Opinion issued December 15, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-00098-CR
JAMARCUS KEITH HARRISON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 185th District Court
Harris County, Texas
Trial Court Cause No. 1012384
MEMORANDUM OPINION
A jury found appellant, Jamarcus Keith Harrison, guilty of aggravated robbery. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). Appellant pleaded “true” to two enhancement allegations. The jury assessed punishment at 60 years in prison. In two issues, appellant contends the trial judge erred by overruling appellant’s race-based Batson motion to the State’s peremptory strikes of two veniremembers.
We affirm.
Background
At the close of voir dire proceedings, the defense made a Batson challenge to the prosecution’s striking of prospective jurors 7 and 9, whom the defense identified as being “black females.” The defense alleged that prospective jurors 7 and 9 were struck for purely race-based reasons.
The prosecutor explained that he struck prospective juror 7 because she had indicated that she would “be a very tough person on dealing with identification issues.” The prosecutor stated that “identification is going to be [sic] a key role in this trial.”
With regard to prospective juror 9, the prosecutor told the trial court that he struck her based on her statements that “drinking would affect vision for ID purposes.” The prosecutor explained that he anticipated the jury would hear that his complaining witness “had had a few drinks.” The prosecutor intimated that prospective jury 9 “had already expressed her willingness to disbelieve” the complaining witness’s identification.
The trial court found the State’s explanation for the strikes to be race-neutral and denied appellant’s Batson challenge.
In a bill of exception, appellant responded that two other prospective jurors, who were not black women, were not struck even though they had given responses similar to those cited by the prosecutor for striking veniremembers 7 and 9. Appellant contended that the comments of prospective juror 16, a white male, on the issue of identification were similar to those of prospective juror 7. Appellant also asserted that, like prospective juror 9, prospective juror 8, a Hispanic male, had agreed that drinking could affect identification.
The prosecutor offered an explanation for the alleged disparity in treatment of veniremembers 16 and 7 and 8 and 9. The prosecutor explained that the defense’s questioning of prospective jurors 16 and 7, on which the prosecutor based his strikes, dealt with slightly different subjects. The prosecutor differentiated prospective juror 9 from prospective juror 8 by noting that number 8 had merely nodded his head rather than “going off on his own dialogue, as juror no. 9 did on that topic.”
Batson Challenge
In issues one and two, appellant contends that the trial court erred in overruling his Batson challenges as to prospective jurors 7 and 9.
A. The Batson Process
A defendant objecting under Batson must make a prima facie showing of racial discrimination in the State’s exercise of its strikes. Mathis v. State, 67 S.W.3d 918, 924 (Tex. Crim. App. 2002). The burden then shifts to the State to articulate race-neutral explanations for its strikes. Id. Once the prosecutor has articulated race-neutral explanations, the burden shifts back to the defendant to show that the explanations are really a pretext for discrimination. Id. The trial court must then determine whether the defendant has carried his burden of proving discrimination. Id.
B. Standard of Review
We examine Batson challenges under a clearly erroneous standard of review.
Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). We focus on the genuineness instead of the reasonableness of the prosecutor’s asserted nonracial motive for peremptorily striking the prospective jurors. Id. at 533–34. Concomitantly, this is a highly deferential standard because the trial court is in the best position to determine whether a prosecutor’s facially race-neutral explanation for a peremptory strike is genuinely race-neutral. Id. at 534.
C. Analysis
On appeal, appellant asserts that “[t]he prosecutor’s race neutral explanations are clearly pretexts and inadequate.” As in the trial court, appellant challenges the State’s race-neutral explanations for prospective jurors 7 and 9. Appellant contends that the prosecutor did not strike nonblack jurors, i.e., prospective jurors 16 and 8, “who had offered the exact same comments during jury selection” that the prosecutor had cited as his reasons for striking prospective jurors 7 and 9.
The record shows that, during voir dire examination, prospective juror 7 stated that, if a person was upset, then that person may not be able to give a detailed description for identification purposes. Prospective juror 7 also believed that a more detailed description would be needed to make an identification than to simply identify a person as, for example, a redhead. In contrast, venireperson 16 was examined and commented about a different identification issue: specifically, the problem with cross-racial identification.
The record shows that prospective juror 8 agreed that drinking might affect a person’s ability to make an identification. Prospective juror 9 also agreed that drinking might affect identification, but then voluntarily elaborated on other factors that might affect identification.
The State’s explanations for striking veniremembers 7 and 9 were facially race-neutral. Based on the voir dire conducted, the trial court could have reasonably determined that the prosecutor genuinely believed the articulated reasons for distinguishing veniremember 7 from veniremember 16 and veniremember 8 from veniremember 9. See id. We hold that the trial court did not clearly err in denying appellant’s Batson challenges to the State’s striking of prospective jurors 7 and 9.
We overrule appellant’s first and second issues.
CONCLUSION
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Nuchia, Jennings, and Higley
Do not publish. Tex. R. App. P. 47.2(b).