dissenting.
Young v. State1 held that a defendant was not required to request the trial judge to make his findings upon a Batson2 motion based on comparisons of venirepersons in order to have the same evidence considered on a direct appeal raising the issue of the prosecutor’s peremptory challenges. Young, 826 S.W.2d at 145-46.
In order to reach this decision, the court abandoned the now famous footnote 6A in Tompkins v. State, 774 S.W.2d 195, 202 (Tex.Crim.App.1987), aff'd, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989), and held that the footnote was not to be read as holding that a “comparison analysis” must be made at the trial level before it can be argued on appeal. Young, 826 S.W.2d at 144; see also Vargas v. State, 838 S.W.2d 552 (Tex.Crim.App.1992); Henderson v. State, 826 S.W.2d 156, 158 (Tex.Crim.App.1991).
With all due respect, in my humble view, the 5-4 Young opinion was wrongly decided. It permits a partial trial de novo while an appellate court pretends that the standard of review is the “clearly erroneous” standard with great deference being given to the trial court’s findings. See Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App.), cert. denied, — U.S. -, 113 S.Ct. 297, 121 L.Ed.2d 221 (1992) (standard of review is “clearly erroneous”); Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App.) (op. on remand), cert. denied, — U.S. -, 111 S.Ct. 2875, 115 L.Ed.2d 1038 (1991); Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Crim.App.1989) (op. on reh’g). Thus, Young permits the trial court to be “sandbagged.” Cf. Seefurth v. State, 422 S.W.2d 931, 936 (Tex.Crim.App.1967).
Under the Batson procedure, see infra footnote 5, once the prosecutor has given his racially neutral explanations for peremptorily striking a certain venireperson or venirepersons, a defendant in support of his motion can cross-examine the prosecutor and offer evidence and argument concerning comparative analysis and disparate treatment of the prospective jurors to show that the prosecutor’s explanations are merely a pretext or a sham. It must be remembered that the defendant has the ultimate burden to “persuade the trial judge by a preponderance of the evidence that the allegations of purposeful discrimination are true in fact.” Tompkins, 774 S.W.2d at 202 (emphasis added); see also Tex.Code CRIM.Proc.Ann. art. 35.261(a) (Vernon 1989); Shields v. State, 820 S.W.2d 831, 833 (Tex.App.—Waco 1991, no pet.); Despite the ultimate burden of persuasion before the trial court, Young permits a defendant to lie behind a log and make no mention of the disparate treatment of prospective jurors or urge any type of comparative analysis to the trial court in an attempt to show that the prosecutor’s explanations were a pretext or a sham. Once the trial court has overruled the Batson motion and a conviction occurs, the defendant in most cases has the right of appeal. If an appeal is undertaken, the defendant’s counsel, either the trial counsel *211or a different attorney on appeal, will have available to him the transcribed record of the voir dire examination. Counsel may then pore over the record at leisure to determine if there is any indication of disparate treatment of venire members or evidence of a comparative analysis not presented to the trial court as such but which under Young can be raised for the first time on appeal to undermine the trial court’s findings. This is true even if the defendant was afforded ample opportunity to present persuasive evidence of comparability at the trial court level to support his Batson motion and did not present such evidence or call attention to such matters. Young explains that the State may also use the now-transcribed voir dire examination to controvert the comparisons raised on appeal in a trial de novo atmosphere. Young, 826 S.W.2d at 146. While the State may use the voir dire record to support its neutral explanations, it appears it cannot broaden its neutral explanations on appeal. Cf. Wright v. State, 832 S.W.2d 601, 605 (Tex.Crim.App.1992) (Benavides, J., concurring). If the prosecutor’s explanations are left unchallenged in the trial court, the prosecutor is unable to further explain his reason or dispel the inference that he acted with improper motive.
Under the Young order of procedure, the appellate court views the cold record of the Batson hearing in light of the contentions raised only on appeal to determine if the trial court’s ruling was “clearly erroneous.” Each trial judge is assumed to have a computer-type mind able to recall every bit of “evidence” from the voir dire examination which may last hours on end over a period of several days. The trial judge, prior to any Batson motion, is required to remember the specific details of the interrogation of each venireperson, the length of the interrogation, the nature and numbers of questions asked, and to determine which venirepersons were struck or not struck by either party even though this latter “evidence” is outside the “evidence” of the voir dire examination. See Tex.Code Crim.Proc.Ann. arts. 35.26 & 35.261 (Vernon 1989). If a Batson motion is filed and the procedure advances to the point where the prosecutor recites his racially neutral explanations for his peremptory challenges and the defendant leaves the explanations unchallenged, thus sidestepping his ultimate burden of persuasion in the trial court by not raising any comparisons of the venirepersons, the trial court, without the benefit of a transcribed voir dire record, must speculate about what factors the defendant may raise on appeal for the first time. While a trial judge might be able to detect some “deficiencies” by himself, that is not his normal role in our system of justice. He would have to take on the role of defense counsel, inventing possible arguments as to why the prosecutor’s stated explanations might not be sufficient, while at the same time keeping an open mind so as to rule on the Batson motion impartially. This is not the way our adversary system should work.3
Young was wrongly decided not only for the foregoing reasons, but also for the reasons set forth by Judge Campbell in his dissenting opinion in Young, 826 S.W.2d at 147-49, and by Judge Benavides in his dissenting opinion on rehearing in Young, 826 S.W.2d at 153-56.
The issue confronted in Young was apparently res novo in Texas. Before Young spawns too prolifically, it is the fervent hope of this writer that the Texas Court of Criminal Appeals will carefully assay and reconsider its decision. It has been the great tradition of that court not to be afraid to reconsider any decision and change its mind in the interest of justice in our state.
Young is, nonetheless, the law at the present time, and we as appellate judges must follow it. On February 11, 1989, after the voir dire examination was concluded and before the selected jurors were sworn, appellant Young lodged his Batson objection.4 Although appellant struck one *212black venireperson, he complained that the State had peremptorily struck seven black venire members, which showed a “pattern” of racial discrimination. Appellant asked the trial court to require the prosecutor to provide explanations for the strikes. The prosecutor, without any ruling from the trial court on whether a prima facie case had been established,5 immediately articulated detailed, racially neutral reasons for all seven challenged strikes. Therefore, appellant did not offer evidence or seek to cross-examine the prosecutor. He quarreled with the State’s reason for striking one of the black veniremen and argued generally about being denied a jury of his peers. See Young, 826 S.W.2d at 142. Hearing no other evidence or argument, the trial court overruled the Batson claim.
Upon remand of this cause by the Texas Court of Criminal Appeals, the parties were permitted to rebrief the issue. See Robinson v. State, 790 S.W.2d 334, 335 (Tex.Crim.App.1990) (per curiam). In his remand brief, appellant complains of only three of the State’s peremptory challenges, those being the strikes made against potential jurors numbers two, eleven, and twelve. I agree with the majority’s disposi*213tion of appellant’s complaints that potential jurors numbers two and twelve, Mr. Davis and Ms. Jennings, were improperly struck. Viewed in the light most favorable to the trial court’s ruling, there was no Batson error present. The prosecutor gave sufficiently race-neutral explanations and reasons for striking both of these members of the jury panel. The trial court’s ruling as to these two panel members was not clearly erroneous. Whitsey, 796 S.W.2d at 726.
This, then, leaves the peremptory challenge to prospective juror number eleven, the so-called second Mr. Jones. The prosecutor stated that he struck Mr. Jones because Jones had an uncle who had been in trouble with the law. Kinship to a person who has an arrest record or has had difficulty with the law can constitute a legitimate racially neutral reason for striking a prospective juror. United States v. Guerra-Marez, 928 F.2d 665, 668 (5th Cir.), cert. denied, — U.S. -, 112 S.Ct. 322, 116 L.Ed.2d 263 (1991); McHenry v. State, 823 S.W.2d 667, 670 (Tex.App.—Dallas 1991), remanded on other grounds, 829 S.W.2d 803 (Tex.Crim.App.1992); Sims v. State, 768 S.W.2d 863, 865 (Tex.App.—Texarkana 1989), pet. dism’d per curiam, 792 S.W.2d 81 (Tex.Crim.App.1992); Rodgers v. State, 725 S.W.2d 477, 480-81 (Tex.App.—Houston [1st Dist.] 1987, pet. ref’d); Rijo v. State, 721 S.W.2d 562, 564 (Tex.App.—Amarillo 1986, no pet.); see also Garcia v. State, 833 S.W.2d 564, 567 (Tex.App.—Dallas 1992, pet. granted).
The prosecutor’s racially neutral explanation was not attacked in the trial court on a comparative analysis/disparate treatment basis. Appellant now contends that while the prosecutor struck Mr. Jones, a black venireman, he did not strike Mr. Kudlacek, a white venireman. Kudlacek had a brother who was charged with theft of some bar-b-que “back east.” The majority concludes that the failure to strike Mr. Kudla-cek demonstrated a disparate treatment of prospective jurors on a racial basis and that viewing the facts in the light most favorable to the trial court’s ruling and under the “clearly erroneous” standard of review, the cold record leaves a definite and firm conviction that the trial court made a mistake. I cannot agree.
In United States v. Valley, 928 F.2d 130, 136 (5th Cir.1991), the prosecutor’s strikes of black venirepersons for the race-neutral reason that they had relatives who had been in difficulty with the law was not rendered pretextual or a sham because the prosecutor had not struck all white venire-persons who had kinship to individuals charged with a crime in light of the great deference to be given to the trial court’s findings. In the instant case, Mr. Jones, the black venireman who was struck by the prosecutor, had an uncle who had had previous difficulty with the law. The white venireman, Mr. Kudlacek, had a brother who was involved in the theft of some barb-que “back east.”
A prosecutor’s explanation for the exercise of a peremptory challenge need not be quantifiable and may include intuitive assumptions provided the intent is not race based. United States v. Clemons, 941 F.2d 321, 325 (5th Cir.1991); see also Keeton, 749 S.W.2d at 865 (peremptory strikes may be based on the prosecutor’s legitimate “hunches” so long as racial discrimination is not the motive).
A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.
Hernandez, — U.S. at -, 111 S.Ct. at 1866.
In the instant case, the trial court chose to believe the prosecutor’s race-neutral explanation for striking Mr. Jones, rejecting the appellant’s assertions that the reasons were pretextual. In Batson it was explained that the trial court’s decision on the ultimate question of discriminatory intent represents “a finding of fact of the sort accorded a great deference on appeal.” Hernandez, — U.S. at -, 111 S.Ct. at 1868.
*214Batson’s treatment of intent to discriminate as a pure issue of fact, subject to review under a deferential standard, accords with our treatment of that issue in other equal protection cases.
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Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding will “largely turn on evaluation of credibility.” In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly within a trial judge’s province.”
Hernandez, — U.S. at -, 111 S.Ct. at 1869 (citations omitted); see also Newsome v. State, 829 S.W.2d 260, 266 (Tex.App.—Dallas 1992, no pet.).
The Hernandez court discounted a claim that an appellate court should make an independent review of the facts involved in a Batson contention. The court noted that proper deference is to be shown to factual determinations by the court below when the reviewing court is not left with a definite and firm conviction that a mistake has been committed. Hernandez, — U.S. at -, 111 S.Ct. at 1870-71; see Vargas, 838 S.W.2d at 554.
If an appellate court accepts a trial court’s finding that a prosecutor’s race-neutral explanation for his peremptory challenge should be believed, it is difficult to see how the appellate court nevertheless could find discrimination. “The credibility of the prosecutor’s explanation goes to the heart of the equal protection analysis, and once that has been settled, there seems nothing left to review.” Hernandez, — U.S. at -, 111 S.Ct. at 1870.
Absent intentional discrimination viola-tive of the Equal Protection Clause, parties should be free to exercise their peremptory strikes for any reason or no reason at all. The peremptory challenge is “as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose.” Lewis v. United States, 146 U.S. 370, 378, 13 S.Ct. 136, 139, 36 L.Ed 1011 (1892) [internal quotations omitted].... Batson requires only that the prosecutor’s reason for striking a juror not be the juror’s race.
Hernandez, — U.S. at -, 111 S.Ct. at 1874-75 (O’Connor, J., concurring) (emphasis in original).
In the instant case, the prosecutor gave a well-accepted racially neutral explanation for exercising a peremptory strike against Mr. Jones. The trial court had the opportunity to observe the prosecutor’s demeanor and to pass on his credibility, which is not subject to review by this Court. The fly in the ointment is the comparative analysis. The prosecutor struck venireman Jones but not venireman Kudlacek for the same reason — kinship with someone who had been in difficulty with the law. The objective factors discussed in Keeton, 749 S.W.2d at 867, including “6. Disparate treatment of members of the jury venire with the same characteristics ...,” certainly may be considered in evaluating the trial judge’s overruling of a Batson claim, “but they are not determinative.” Vargas, 838 S.W.2d at 554. The objective factor in the instant case has already been considered. I would hold that the evidence of “comparability” is not sufficiently concrete. It should be remembered that the United States Supreme Court made no mention of a “comparative analysis” in its discussion of a defendant’s burden in Batson, Young, 826 S.W.2d at 145, and neither does article 35.261.
Great deference is given to the trial court’s findings under the “clearly erroneous” standard of review. In viewing the record in the light most favorable to the trial court’s findings, I, unlike the majority, am not left with a “definite and firm conviction that a mistake has been committed.” Vargas, 838 S.W.2d at 554. We should keep in mind that where “there are *215two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985); Hernandez, — U.S. at -, 111 S.Ct. at 1871-72; Garcia v. State, 833 S.W.2d 564, 567 (Tex.App.—Dallas 1992, pet. granted); Woods v. State, 801 S.W.2d 932, 935 n. 3 (Tex.App.—Austin 1990, pet. ref’d).
I respectfully dissent.
Although not on the panel, KINKEADE, J., as a member of the Court agrees with the dissent.
. Young v. State, 826 S.W.2d 141 (Tex.Crim.App.1991). The appellant in this cause was convicted by a jury of the offense of forgery. The trial judge assessed appellant’s punishment at forty years' imprisonment after finding the allegations in two enhancement of punishment paragraphs of the indictment to be true.
. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
. One may wonder just how a trial court may protect itself and the tax-paying public from Young in order to prevent unnecessary reversals and time-consuming and costly remands.
. This called into play the Batson procedure. A *212prosecutor is prohibited by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution from challenging potential jurors solely on the basis of race. Batson, 476 U.S. at 89, 106 S.Ct. at 1719; see also Tex.Code Crim.Proc.Ann. art. 35.261 (Vernon 1989); Hill v. State, 775 S.W.2d 754, 755 (Tex.App.—Fort Worth 1989, pet. ref'd) (interpreting State's constitution to prohibit Batson-type discrimination in selection of jury); Oliver v. State, 808 S.W.2d 492 (Tex.Crim.App.1991). The burden of establishing a prima facie case of purposeful racial discrimination is on the defendant. Tennard v. State, 802 S.W.2d 678, 680 (Tex.Crim.App.1990), cert. denied, — U.S. -, 111 S.Ct. 2914, 115 L.Ed.2d 1077. Under the Batson holding itself, the defendant, in order to establish a prima facie case, is required to show: (1) that he is a member of a cognizable racial group; (2) that the prosecutor has exercised peremptory challenges to remove members of the defendant’s race from the jury panel; and (3) that these facts and any other relevant circumstances raise an inference that the prosecutor used the practice to exclude the veniremen from the jury on account of their race. A defendant can also rely upon the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who have a mind to discriminate. Batson, 476 U.S. at 96, 106 S.Ct. at 1723; Keeton v. State, 724 S.W.2d 58, 65 (Tex.Crim.App.1987).
Since the time of appellant Young’s trial, Powers v. Ohio, — U.S. -, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) implicitly eliminated the requirements that a defendant must be a member of a cognizable racial group and that there must be racial identity between the objecting defendant and the excluded jurors. See Hernandez v. State, 808 S.W.2d 536, 539 (Tex.App.—Waco 1991, no pet.); see also Edmonson v. Leesville Concrete Co., - U.S. -, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (applying Batson to civil cases). Cf. Georgia v. McCollum, — U.S. -, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (criminal defendants are no more free to exercise peremptory challenges on racial grounds than are prosecutors or civil litigants).
Once a defendant makes a prima facie showing, the burden shifts to the State to come forward with racially neutral explanations for the challenges. Tompkins, 774 S.W.2d at 201; Keeton v. State, 749 S.W.2d 861, 868 (Tex.Crim.App.1988). If the prosecutor articulates racially neutral reasons for the strikes, the defendant may offer evidence showing that the prosecutor's reasons are merely a sham or pretext, Keeton, 749 S.W.2d at 868, and he may cross-examine the prosecutor, Salazar v. State, 818 S.W.2d 405, 407 (Tex.Crim.App.1991), and offer argument for that purpose. The defendant has the ultimate burden "to persuade the trial court by a preponderance of the evidence that the allegations of purposeful discrimination are true in fact.” Tompkins, 774 S.W.2d at 202; see also Shields, 820 S.W.2d at 833. At a Batson hearing, the trial court is the factfinder, and it is the court’s responsibility to weigh the evidence and determine the credibility of the witnesses. Tompkins, 774 S.W.2d at 202 n. 6. An appellate court is not free to substitute its judgment of the witnesses’ credibility and evidentiary weight for those of the factfinder. Id. at 202. The trial court's ruling will not be reversed unless it is clearly erroneous. Williams, 804 S.W.2d at 101; Tennard, 802 S.W.2d at 681. To determine whether the factfinder’s decision is "clearly erroneous," an appellate court must look to the record to see if it is left with the definite and firm conviction that a mistake has been committed. Hill, 827 S.W.2d at 865; see also Hernandez v. New York, - U.S. -, -, 111 S.Ct. 1859, 1872, 114 L.Ed.2d 395 (1991).
. Where the prosecutor articulates his reasons for alleged racially discriminatory peremptory challenges without any prompting by the trial court and the trial court rules on the ultimate question of intentional discrimination, the preliminary issue of whether a defendant has made a prima facie showing becomes moot. See Hernandez, — U.S. at-, 111 S.Ct. at 1866; Hill, 827 S.W.2d at 865; Dewberry v. State, 776 S.W.2d 589, 591 (Tex.Crim.App.1989).