concurring:
I concur in the result. I think that the prosecutor articulated a racially neutral reason for exercising his peremptory challenge when he stated that there was reason to believe that both the juror and the defendant might have been city sanitation workers, a possible common link that might cause the potential juror to sympathize with the defendant. This alone will support the peremptory challenge.
The prosecutor’s other reason for striking the potential juror, lack of eye contact, raises a different question. I am not concerned with whether poor eye contact is a sufficient reason to exercise a challenge. At least one case suggests that it is. Townsend v. State, 730 S.W.2d 24 (Tex.App.1987). I would, however, insist that whenever there may be a racial motive for a peremptory challenge the trial judge must be able to actually observe the conduct or verify the existence of the circumstances which are given as the racially neutral reason for exercising the challenge. In other words, if poor eye contact is the reason for using a strike, the judge must have observed that eye contact was in fact poor. Matters not susceptible of observation by the judge ought not be justification for a peremptory challenge. This will require keen attention by the trial judge, but racial discrimination in the courts is so demoralizing, the Batson policy is so strong, and the implementation of the policy is so easy to evade that I believe we should require no less.
Since the one reason the prosecutor gave was sufficient and verifiable, there is no need to send the case back to the trial court for a determination of whether the trial judge observed the lack of eye contact. I concur in all respects with the majority on the other issues in the case.