concurring in part and dissenting in part.
In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court re-affirmed that the Equal Protection Clause of the Fourteenth Amendment forbids “discrimination on account of race in the selection of the petit jury.” Id. at 88, 106 S.Ct. at 1718. On direct appeal appellant contended the prosecutor’s exercise of his peremptory strikes violated Batson. The Court of Appeals rejected appellant’s comparative analysis in support of his point of error because appellant had not rebutted the prosecutor’s explanations in the trial court.
... Although appellant now argues that the prosecutor’s articulated reasons were pretextual, and the acceptance of these reasons makes a mockery of Bat-son, appellant made no attempt to show the trial court that the prosecutor’s explanations were merely pretextual. See Keeton [v. State], 749 S.W.2d at 865 [Tex.Cr.App.1988) ].
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... If the defendant wanted to rebut the prosecutor’s neutral explanation based upon the manner in which similarly-situated white venirepersons were treated during voir dire, it was incumbent upon him to raise the argument in the trial court. Rebuttal evidence will not be considered for the first time on appeal. [Tompkins v. State, 774 S.W.2d 195, 202 n. 6A (Tex.Cr.App.1987), aff'd, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989), affirmed by equally divided court June 5, 1989.]
Vargas v. State, 781 S.W.2d 356, 359-360 (Tex.App. — Houston [1st Dist.] 1989).
In Young v. State, 826 S.W.2d 141 (Tex.Cr.App.1991), we specifically held that footnote 6A in Tompkins was “not a holding of this Court and we decline to adopt it as one.” Id. at 144. Therefore, the Court of Appeals reliance on Tompkins was misplaced.
In Young we held an appellant is “not required to request the trial judge to make his finding upon the Batson motion based upon a comparison analysis in order to have that very same evidence considered on direct appeal.” Id. at 146. To present a comparative analysis in support of a Bat-son claim for the first time on appeal is merely to allow “appellant to argue what is in evidence from the voir dire and the Batson hearing and why he should prevail on his Batson claim.” (Emphasis in original). Id. at 146.1
I.
The majority attempts to rely on Young, to hold that since the juror information cards were not “mentioned or offered into evidence,” appellant will not be allowed to utilize them in his comparative analysis. Op. pg. 556. I disagree. The juror information cards should be considered as admitted into evidence and, therefore, as “part of the record upon which the trial court based its ruling.” Op. pg. 557.
During the voir dire examination, the following exchange took place between appellant’s trial counsel, Joseph Rumbaut, and venireperson Kathryn Anne Bue:
Rumbaut: ... By the way, I also notice you’re a paralegal and that I take it you still practice as a paralegal now?
Bue: I have just started.
Rumbaut: You just started, and I see the firm you work for, Reynolds, White, *559Cook & Allen with our former governor?
Bue: Yes.
It is clear from this exchange that Rum-baut was utilizing the juror information cards. My review of the record also reveals that the judge relied upon the juror information cards.2 The State did not object to the judge’s or Rumbaut’s use of the juror information cards. Indeed it would have been difficult for the State to object to their use of the juror information cards because our review of the voir dire proceedings reveals the prosecutor used the juror information cards. Obviously, the prosecutor used the juror information cards at the Batson hearing when giving his explanation for exercising a peremptory strike against venireperson Clark. Therefore, because the juror information cards were relied upon by all of the parties at trial, the majority should not now preclude appellant’s reliance on the juror information cards on appeal.
It has long been held that evidence “neither formally introduced nor admitted into evidence, [that has been] treated by the court and the parties as if it had been admitted,” should be treated later as though it had been formally admitted. Ex parte Reagan, 549 S.W.2d 204, 205 (Tex.Cr.App.1977). This rule has been enunciated in any number of a cases by this Court: “The record indicates that the Court and the parties treated the exhibits as having been admitted. They were considered by the trial court in rendering judgment. Despite the fact the Court may not have formally stated ‘admitted,’ the exhibits were in evidence and were properly considered by the trial court. They are in the record and support the judgment.” Kissinger v. State, 501 S.W.2d 78, 79 (Tex.Cr.App.1973). “The appellant did not object when the trial court treated the written stipulations as if they had been admitted into evidence. Therefore, they may be considered in support of the judgment as if they had been formally admitted.” Killion v. State, 503 S.W.2d 765, 766 (Tex.Cr.App.1973). “By virtue of counsel’s argument and the court’s instructions, it is clear that the content of Exhibit 5 was treated as admitted before the jury. Archer v. State, 607 S.W.2d 539, 545 (Tex.Cr.App.1980).
In the present case, since the parties utilized the juror information cards during the voir dire proceeding and the Batson hearing, we should treat the jury information cards as formally introduced into evidence as required by Young. The majority errs by holding this is a case where “the comparison evidence is not in evidence presented to the trial court.” Op. pg. 557.
Additionally, it should be noted the State did not object to the inclusion of the juror information cards in the appellate record. And there is no objection in the State’s brief to the inclusion of the juror information cards. Therefore, the juror information cards are properly contained in the appellate record and may properly be considered on appeal.
II.
Even if the majority’s reliance on Young is correct, the majority correctly concludes the Court of Appeals should have addressed that portion of appellant’s comparative analysis supported by the appellate record without regard to the juror information cards. Op. pg. 557.
As previously noted, during the voir dire examination, an exchange took place between appellant’s trial counsel, Rumbaut, and venireperson Bue:
Rumbaut: ... By the way, I also notice you’re a paralegal and that I take it you still practice as a paralegal now?
Bue: I have just started.
Rumbaut: You just started, and I see the firm you work for, Reynolds, White, Cook & Allen with our former governor?
Bue: Yes.
The State did not strike Bue, a white. However, venireperson Lennie Clark, a black, was struck. The prosecutor offered the following explanation for striking Clark:
*560... No. 16 is Ms. Lennie Clark. She’s a legal assistant, Your Honor. And I’m not making a general habit to strike people in the legal community. It’s my experience that they have been my toughest. So therefore, I struck; and also she sat somewhat unattentively.
Aside from the fact that the rationale the prosecutor offered is internally inconsistent, there is no explanation as to why the prosecutor passed over Bue, a white paralegal to strike Clark, a black legal assistant. If occupation were really at the heart of the prosecutor’s objections to Clark, then surely he would have struck Bue first. As Bue and Clark had the same offending occupation, the only remaining difference between Clark and Bue is race. Thus the prosecutor’s reason for striking Clark was not racially neutral but pretextural to avoid admitting discrimination. Keeton v. State, 749 S.W.2d 861, 868 (Tex.Cr.App.1988), and Lewis v. State, 775 S.W.2d 13, 16 (Tex.App. — Houston [14th Dist.] 1989). Therefore, there is enough evidence in the record to prove the prosecutor exercised at least one of his peremptory strikes in violation of Batson.
MILLER and OVERSTREET, JJ., join this opinion.. I voted for Young understanding an appellant could argue anything in the appellate record in support of his comparative analysis. I considered the Young requirement of “what is in evidence from the voir dire and the Batson hearing” was intended to cover evidence other than that already before the trial judge at voir dire and the Batson hearing. Therefore, juror information cards, contained in the appellate record, even though not formally introduced at the Bat-son hearing could be considered on appeal. However, extraneous matters such as a photograph of the venire, a video tape of the voir dire proceedings or a seating charts reflecting the race of the venire members would have to be formally introduced into evidence to be utilized for a comparative analysis on appeal. I dissent to any interpretation that would limit the holding of Young further than that noted in this footnote.
. During the voir dire proceedings the trial judge asked: "Mr. Leroy Martin? Mr. Martin, you're a metro bus driver?” Martin confirmed that he was a bus driver. The occupations of the venirepersons were included on the juror information cards, and Martin’s occupation was not otherwise mentioned during the voir dire proceedings.