Affirmed and Memorandum Opinion filed June 19, 2007.
In The
Fourteenth Court of Appeals
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NOS. 14-05-01005-CR &
14-05-01007-CR
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PATRICK ENCALADE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause Nos. 1023044, 1024674
M E M O R A N D U M O P I N I O N
Patrick Encalade appeals his convictions for possession of a firearm by a felon (cause number 1023044) and fraudulent possession of identifying information (cause number 1024674)[1] on the ground that the trial court erroneously overruled his Batson[2] challenge and failed to dismiss the array after the State peremptorily struck an African-American veniremember without a sufficient race-neutral explanation. We affirm.
A Batson challenge involves three steps: (1) an objecting party must first make a prima facie showing that a veniremember was peremptorily excluded on the basis of race; (2) the striking party must then tender a race‑neutral reason for the strike; and (3) if a race‑neutral reason is tendered, the objecting party must rebut the explanation to prove purposeful discrimination. Rice v. Collins, 126 S. Ct. 969, 973-74 (2006); Shuffield v. State, 189 S.W.3d 782, 785 (Tex. Crim. App. 2006), cert. denied, 127 S. Ct. 664 (2006). As to the second step, the reason need not be persuasive or even plausible; unless a discriminatory intent is inherent in the prosecutor=s explanation, the reason offered will be deemed race-neutral. Purkett v. Elem, 514 U.S. 765, 767-68 (1995). The burden of persuasion remains with the defendant to prove purposeful discrimination. Rice, 126 S.Ct. at 974.
A trial court=s ruling on a Batson claim is reviewed under a clearly erroneous standard. Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). This is a more deferential standard than abuse of discretion 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 the Batson hearing in this case, the following exchange occurred at the bench:
DEFENSE COUNSEL: Judge, this is a motion to order a new panel, disallow the State=s peremptory strikes because of racial discrimination. I see that the State has struck Juror No. 30. I didn=t show where Juror No. 30 was questioned at all . . . .
THE STATE: Judge, I have a response. During the time that I voir dired, I told the jurors on more than one occasion I need to look each of you in the eye for an answer. Each time I did that, I looked at Juror No. 30. His eyes were down. He refused to look at me.
DEFENSE COUNSEL: Judge, I=m going to reurge my Batson motion in that the State has used a strike based strictly on racial profiling, racial discrimination for Juror No. 30.
* * *
THE COURT: I=m going to deny your Batson.
Appellant contends that the prosecutor=s justification for striking Veniremember No. 30, his refusal to look the prosecutor in the eye, was not race-neutral because the prosecutor never asked him a question. On the contrary, however, because appellant did not object to the prosecutor=s observations of Veniremember No. 30,[3] and because a lack of eye contact is not peculiar to any race, the prosecutor=s reason was not inherently discriminatory, and, thus, constitutes a race-neutral explanation for this purpose. See Purkett, 514 U.S. at 769.
As the objecting party, appellant therefore had the burden to develop a record showing that this explanation was merely a pretext for discrimination,[4] but did not do so. See Shuffield, 189 S.W.3d at 785. In the absence of such a showing, we have no basis to conclude, under the clearly erroneous standard, that the trial court erred in assessing the genuineness of the State=s purported race-neutral reason.[5] Accordingly, appellant=s issue is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Memorandum Opinion filed June 19, 2007.
Panel consists of Justices Fowler, Edelman, and Frost.
Do not publish C Tex. R. App. P. 47.2(b).
[1] In a single trial, a jury found appellant guilty of both offenses, found the two enhancement paragraphs true for each offense, and imposed a sentence of life imprisonment for the firearm possession conviction and twenty years plus a $10,000 fine for the fraudulent possession of identifying information conviction.
[2] Batson v. Kentucky, 476 U.S. 79 (1986).
[3] See Yarborough v. State, 947 S.W.2d 892, 895 (Tex. Crim. App. 1997) (reiterating that a counsel=s statement about an occurrence in the courtroom, which was made for purposes of the record, recorded by the court reporter, undisputed by opposing counsel, and unquestioned by the judge in whose presence the statement was made, establishes the occurrence for purposes of the appellate record and need not be supported by something other than counsel=s statement).
[4] See, e.g., Miller-El v. Dretke, 545 U.S. 231, 241, 253-57 (2005) (finding that although the State provided a racially neutral reason for peremptorily striking black jurors, the State=s decision to: (1) strike 91% of the eligible black veniremembers; (2) seek a jury shuffle when a predominant number of blacks were seated in the front of the panel; and (3) disparately treat prospective black and white jurors showed pretext for racial discrimination); Mayr v. Lott, 943 S.W.2d 553 (Tex. App.CWaco 1997, no writ) (finding pretext, although the State offered a race-neutral explanation for striking black veniremembers, because of disparate treatment among white and black veniremembers with similar characteristics); Young v. State, 848 S.W.2d 203 (Tex. App.CDallas 1992, pet ref=d) (finding that although the State gave a race-neutral reason for striking a black veniremember, the facts showed disparate treatment of prospective jurors on a racial basis). The record before us does not indicate, for example, whether Veniremember No. 30 truly refused to look at the prosecutor, whether the prosecutor struck any white venire members for failure to maintain eye contact, whether any other African-American veniremembers besides Nos. 28 and 30 were not struck by either side and thus served on the jury; whether veniremembers . 28 and 30 were the only African-Americans on the venire panel; or whether the State struck any other African-American veniremember for cause or otherwise and that strike was not challenged by appellant at trial.
[5] At trial, appellant also challenged the State=s strike of Veniremember No. 28 on the ground that it failed to ask him any questions. The State responded that Veniremember No. 28 had asked questions about the punishment range and seemed unable to follow the concepts the State had discussed with him at the time. Appellant does not challenge that strike on appeal.