concurring.
Appellant Yarborough was convicted of delivery of a controlled substance (cocaine) and was sentenced to five years’ imprisonment. His conviction was reversed by the court of appeals. Yarborough v. State, 868 S.W.2d 913 (Tex.App.-Fort Worth 1994). We granted the State’s petition for discretionary review to consider the sole ground for review:
Whether the court of appeals properly found that the trial court was clearly erroneous in determining that the State’s challenge of venireperson Mark Martinez was race-neutral.
During jury selection, appellant Yarbor-ough challenged the State’s use of its peremptory challenges. A Batson hearing was then held by the trial court. Batson v, Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). It was established at the hearing the State used nine of its ten peremptory challenges to strike seven black and *898two Hispanic venirepersons. Three black persons and no Hispanics actually served on the jury. The State gave its reasons for striking each of the nine minority venireper-sons; defense counsel argued why he felt the reasons given by the State were not valid, i.e., they were a pretext.
With respect to one of the struck venire-persons, Martinez, the prosecutor stated he had “poor facial expressions, was very inattentive, looks unhappy to be here, body language, posture and such that just made him feel he was uncomfortable.” The prosecutor further stated Martinez appeared the same way during questioning by both the State and the defense and while he “looked good on paper,” the prosecutor had a “gut feeling” he did not want to be here. Defense counsel did not contest the State’s characterization of Martinez’ demeanor but pointed out the State asked Martinez only one question (about what he sold for a living), though the record indicates the State asked numerous questions of Martinez concerning several issues. The trial court, at the conclusion of the hearing, found “the reasons given by the State are reasonable and not racially motivated” and denied the Batson challenge. The trial court made no specific comments as to the Stated characterization of Martinez’ demeanor.
The court of appeals initially noted the State used nine of its ten peremptory strikes to exclude nine of twelve minority venireper-sons. This statistical evidence was sufficient, in the court of appeals’ opinion, to raise an inference of discrimination (in other words, a prima facie case); therefore, the State had the burden of demonstrating race-neutral reasons for its strikes of the nine minority venirepersons. Yarborough, supra, at 914.
The court of appeals, citing Tennard v., State, 802 S.W.2d 678, 680 (Tex.Crim.App. 1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1991) and Whitsey v., State, 796 S.W.2d 707, 716 (Tex.Crim.App. 1989) (op. on reh’g.), noted further the trial court’s findings at a Batson hearing are not to be disturbed on appeal if they are supported by the record and are not “clearly erroneous.” The role of the reviewing court is not to determine whether the State’s explanations are credible but rather whether the trial court’s ruling on the Batson motion was supported by the record and therefore not clearly erroneous.
The explanation given by the State with respect to its strike of Martinez, his demean- or, was subjective and, therefore, something more than the State’s explanation was necessary to support the trial court’s finding that the State’s explanation was racially neutral. The court of appeals gave examples of such substantiating evidence which would support the State’s explanation: an admission by opposing counsel, a statement or admission by the venireperson or a finding by the trial court. The court of appeals noted the record here was devoid of any such evidence in the record supporting the subjective explanation offered by the State, emphasizing the lack of any finding by the trial court. Therefore, the court of appeals held the trial court’s finding the State’s explanation for its strike of venireperson Martinez was racially neutral was not supported by the record. As the State did not rebut appellant’s prima facie showing of racial discrimination as to its strike of venireperson Martinez, the court of appeals sustained appellant’s point of error and reversed the trial court’s judgment.1 I join the opinion of the Court reversing the judgment of the court of appeals and write further to define what I believe constitutes a “prima facie case” entitling the movant to a hearing on a Batson motion.
A. What Constitutes a Prima Facie Case Entitling the Movant to a Hearing on His Batson Motion?
As we stated in Satterwhite v. State, 858 S.W.2d 412 (Tex.Crim.App.), cert. denied, 510 U.S. 970, 114 S.Ct. 455, 126 L.Ed.2d 887 (1993):
In order to invoke the protections set forth in Batson, appellant must first raise *899an inference of purposeful discrimination through the State’s use of it peremptory strikes. Once appellant has established such purposeful discrimination, the burden of production shifts to the prosecutor to come forward with racially neutral explanations for the strikes. Once the prosecutor has articulated racially neutral explanations, the burden shifts back to the defendant to persuade the trial court that the “neutral explanation” for the strike is really a pretext for discrimination. [Citations omitted.] This Court will reverse the trial court’s resolution of a Batson issue only if the court’s findings are found to be clearly erroneous.
Satterwhite, supra, at 428.
We have held that a defendant may make his Batson motion at any time prior to the impanelment of the jury, that is, until “the members of the jury have been both selected and sworn.” Hill v. State, 827 S.W.2d 860, 864 (Tex.Cr.App. 1992); Tex.Code-Crim.Proe.art. 35.261(a). Accordingly, a defendant waives his right to his Batson protections by an untimely raising of his Batson motion.
In a timely-filed Batson motion, the defendant must allege the State has exercised its peremptory strikes in a discriminatory manner by making a “prima facie case” of purposeful discrimination in order to be entitled to a hearing on his motion. We must initially determine what constitutes a “prima facie case” in the context of a Batson motion. Black’s Law Dictionary defines “prima facie case” as: “such as will prevail until contradicted and overcome by other evidence. A case which has proceeded upon sufficient proof to that stage where it will support finding if evidence to the contrary is ignored.” Black’s Law Dictionary, Abridged Fifth Edition 1983. In Linscomb v. State, 829 S.W.2d 164 (Tex.Crim.App.1992) we found:
A “prima facie ease” is what raises the issue, not what eventually disposes of it. In determining, therefore, whether a “pri-ma facie case” is reflected on the record, courts are not to resolve the question of deliberate racial discrimination on its merits by assessing the probative weight of competing inferences or conflicting evidence. They are simply to decide whether the issue has been raised.
Linscomb, supra, at 167.
“The minimum quantum of evidence necessary to support a rational inference, as we have elsewhere described a ‘prima facie case,’ is not three pounds or half a bushel or a bakers’ dozen. It is any relevant evidence with more than a modicum of probative value.” Linscomb, supra, at 166, citing Tompkins v. State, 774 S.W.2d 195, 201 (Tex.Crim. App.1987).
It is evident from applicable case law that the proponent of a timely-raised Batson motion does not have to present much in the way of evidence to establish a “prima facie case,” thereby entitling him to a hearing on his Batson motion. However, I believe we went too far in Linscomb, holding, in effect, mere statistical disparity by the State in its use of peremptory strikes against minority veniremembers as contrasted to nonminority venirepersons is per se, sufficient to establish a prima facie case of discrimination.
This is not to say, however, that mere numbers, standing alone, may not, in some circumstances, be sufficient to establish a prima facie case of unlawful discrimination, entitling the proponent of a Batson motion to a hearing. In Chambers v. State, 784 S.W.2d 29 (Tex.Crim.App.1989), we found a prima facie case was present when the State exercised peremptory challenges to strike all three eligible black venirepersons. In Whitsey, supra, we found a prima facie case was present where the State used peremptory challenges to strike all six eligible black veni-repersons. Prima facie cases were also found to be present where:
1. The State peremptorily struck ten out of eleven eligible black venirepersons. Miller-El v. State, 748 S.W.2d 459 (Tex.Crim.App.1988).
2. Five out of six eligible black venireper-sons were peremptorily struck by the State. Dewberry v. State, 776 S.W.2d 589 (Tex.Crim.App.1989).
The eases cited in the preceding paragraph are similar in that in each instance there was a substantial number of eligible minority ven-*900irepersons and the State peremptorily struck all, or nearly all, of them. Linscomb, however, vastly expands the use of mathematics to establish a prima facie case by enshrining the concept of statistical disparity, also known as disparate impact analysis.2
To illustrate how disparate impact analysis would be used in the Batson context, let us assume the venire has forty members, ten of whom are minorities. The State exercises seven of its peremptory strikes against non-minority veniremembers, thereby striking 23% of them (seven out of thirty). The State uses its remaining three peremptory strikes against minority veniremembers, thereby striking 30% of them (three out of ten). Therefore, since the percentage of minority venirepersons struck exceeds that of nonmi-nority venirepersons struck, a prima facie case of impermissible discrimination under disparate impact analysis is present and the defendant is entitled to a Batson hearing, based on the implicit holding of Linscomb.
In my opinion, percentage disparate impact analysis has no place in determining, standing alone, whether a defendant has made a prima facie case under Batson. Its dangers are self-evident:
(1) Batson hearings would be turned into battles of statistics. Given that the decision to exercise a peremptory strike is often based on many factors, Cantu v. State, 842 S.W.2d 667, 689 (Tex.Cr.App. 1992) it is hard to imagine any case where the percentage of struck minority venirepersons will be the same or nearly the same as that of struck nonminority venirepersons, or vice versa.
(2) How great must the percentage disparity be for there to be a prima facie case of impermissible discrimination? 1% ? 5% ? 20% ? Disparate percentage analysis, by its very nature, would result in different definitions of what constitutes a prima facie case, depending on the trial court.
(3)The whole rationale behind Batson and its progeny is to ban intentional discrimination by the State in its use of its peremptory strikes, not inadvertent disparate impact resulting from reasons clearly nondiscriminatory on their face, given to strike minority or female venirepersons. As noted above, no intent to discriminate need be shown under disparate impact analysis.
In my opinion, in order to show a prima facie case entitling him to a Batson hearing based on numbers alone, the defendant must show the following:
(1) the State used its peremptory strikes to remove all or substantially all of the minority members of the venire; or
(2) the State exercised all or substantially all of its peremptory strikes against minority venirepersons.3
B. The Standard of Review of Denial of Appellant’s Motion For a Batson Hearing or Overruling of a Batson Motion After a Hearing
A reviewing court is not to disturb the trial court’s ruling on appellant’s Batson motion if the ruling is supported by the record and is not clearly erroneous. Vargas, supra; Satterwhite, supra. See also, Purkett v., Elem, 514 U.S. 765, 769-71, 115 S.Ct. 1769, 1772, 131 L.Ed.2d 834 (1995). In my opinion, this standard of review should be the same whether the trial court found there was not a prima facie case entitling the defendant to a hearing on his Batson motion or, after conducting a Batson hearing, determined the State’s explanation for its use of its peremptory strikes was racially neutral (or was gender-neutral). The question presented here is what constitutes a record which adequately *901supports the trial court’s ruling on a Batson motion so as to entitle it to deference on the part of the reviewing court as not being clearly erroneous.
Ideally, the trial court makes oral or written findings of facts and conclusions of law on its ruling with respect to its denial of appellant’s Batson motion after a Batson hearing. Likewise, the better practice would be for the trial court to enter, on the record, its finding that appellant failed to make a prima facie case of purposeful discrimination and thus was not entitled to a Batson hearing.4 Such findings of facts and conclusions of law, being part of the record, would enable the reviewing court to determine whether the trial court abused its discretion, i.e., whether its ruling was clearly erroneous.
A part of the issue before us is whether the record must reflect more than the State’s explanation where it consists solely of the peremptorily-struck venireperson’s demean- or. Demeanor, as contrasted to characteristics like obesity, occupation, and family members with criminal records, is not quantifiable and thus more difficult for a reviewing court to examine without something on the record. In my opinion, if the State’s racially-neutral explanation is based solely on the struck venireperson’s demeanor, and appellant cross-examined the State or otherwise impeached the State’s explanation, the appellant has met his burden of making a prima facie case of impermissible discrimination as to the State’s striking of that venireperson, absent a showing in the record that the trial court’s observations as to that venireperson were consistent with the State’s assertions. Morris v. State, 940 S.W.2d 610 (Tex.Crim. App — delivered 1996). However, if appellant did not rebut the State’s demeanor-based explanation, or did not otherwise impeach it, then the record is sufficient to support the trial court’s ruling the State’s explanation was racially-neutral. In effect, in such circumstances, appellant waives Batson error with respect to that venireperson. Vargas, supra; Emerson, supra.
C. Conclusion
The court of appeals erred in holding the trial court’s finding the State’s racially-neutral explanation for its strike of venireperson Martinez (based on his demeanor) was not supported by the record, and sustaining appellant’s point of error. Because the record was devoid of any evidence or assertions by appellant in opposition to what does appear on the record — the State’s explanation for its strike of venireperson Martinez — appellant waived Batson error, if any, with respect to venireperson Martinez and the trial court’s overruling of his Batson motion was not clearly erroneous. Thus, I would reverse the judgment of the court of appeals and would affirm the judgment of the trial court.
With these comments, I join the opinion of the Court.
. In its brief in support of its petition for discretionary review, the State contends the prosecutor’s explanation was sufficient and race neutral where defense counsel — as here — did not cross-examine the prosecutor or otherwise impeach his explanation. See Vargas v. State, 838 S.W.2d 552, 555-556 (Tex.Crim.App.1992); Emerson v. State, 820 S.W.2d 802, 804 (Tex.Crim.App.1991).
. Disparate impact analysis is often used in employment discrimination and voting rights matters. It is a controversial concept and has been roundly criticized by many as promoting the de facto use of quotas. Under disparate impact analysis, no intent to discriminate need be shown.
. A defendant still will be able to make a prima facie case entitling him to a Batson hearing where numbers/percentages are not relevant. For example, the defendant can allege the State struck a minority venireperson without explanation but did not strike a nonminority venireper-son with the same characteristics, based on the juror information cards and information elicited during voir dire. This could be a prima facie case provided the defendant pointed to supporting evidence in the record which raises the inference of impermissible discrimination.
. The trial court’s findings and conclusions should specifically address whether the State’s explanation with respect to each peremptorily-struck venireperson was sufficient and race-neutral, taking into account appellant’s assertions that the State's explanation was pretextural and the evidence offered by appellant in support of such assertions. Batson, supra, at 96-98, 106 S.Ct. at 1723; see also, Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim. App.1991).