Opinion filed September 2, 2021
In The
Eleventh Court of Appeals
__________
No. 11-19-00314-CR
__________
ALFRED LEE RICE JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 441st District Court
Midland County, Texas
Trial Court Cause No. CR51461
MEMORANDUM OPINION
The grand jury indicted Alfred Lee Rice Jr. with two counts of sexual assault
of a child. Both counts were enhanced for punishment as a habitual offender by
prior felony convictions. The jury found Appellant guilty of both counts and
assessed his punishment at confinement for twenty-five years for each count. The
trial court sentenced him accordingly. We modify and affirm.
Issues
On appeal, Appellant raises two issues and argues that (1) the trial court erred
in overruling Appellant’s Batson 1 challenge and (2) the trial court erred when it
assessed court-appointed attorney’s fees against him.
Background Facts
As Appellant does not challenge the sufficiency of the evidence on appeal, we
will only recount those facts necessary to address the issues. During the State’s voir
dire, the following exchange occurred between the State’s attorney and a prospective
juror:
Q: So, Mr. Lewis, Number 10, do you agree with the law as it is,
that a child under 17 can’t consent to sex with an adult?
A: I agree with it, but I have a question about --
Q: Sure.
A: Like it said -- it said cause to -- caused the mouth of --
Q: Uh-huh.
A: Does that mean -- does that mean it matters who initiated it?
Q: It does not. And that’s a good question.
What he asked was, does it matter who initiated it?
Would that matter to you, if you were listening to the evidence?
A: No, I could be impartial.
Q: Okay. Because the law says that a child under 17 can’t
consent to sex, which means even if they initiate it, okay?
And so my further question for you is, what if that kid was at a
party? Does that -- does that change anything in your mind about being
able to follow the law?
1
See Batson v. Kentucky, 476 U.S. 79 (1986).
2
A: No.
Later, near the end of the State’s voir dire, the State spoke with this prospective juror,
Mr. Lewis, again:
Q: Is there anybody that can think of anything that we haven’t
brought up yet that you think, oh, she should hear about this?
Mr. Lewis, Number 10.
A: I would say violence, whether the incident was violent.
Q: So the facts of the case as to how violent the incident was?
Okay.
After the jury members were selected, but before the jury was sworn, Appellant
raised a Batson challenge and stated that, of the three African-American jury panel
members, the State used its peremptory strikes to strike two of them: panel member
no. 10, Mr. Lewis, and panel member no. 26, Ms. Smith. The State responded that
Ms. Smith was stricken because of a comment she made that trauma means
“theatrical reactions” and that she did not have any children.
The State’s reason for using a strike on Mr. Lewis was the following: “Your
Honor, Number 10, Daryl Lewis, was not smart. He did not answer -- he didn’t seem
to understand the questions that he was being asked and he did not come across, I
believe, as intelligent enough to understand the scientific material that’s going to be
printed -- presented.” In response, Appellant’s counsel stated that “saying that
somebody is dumb and they shouldn’t be on there -- and that is the -- basically the
definition of racial animus, that he’s been stricken just because of that.” The trial
court then overruled Appellant’s Batson challenge.
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Discussion
1. The trial court did not err when it overruled Appellant’s Batson
challenge.
In his first issue, Appellant argues that the trial court erred in overruling his
Batson challenge. Appellant specifically argues that the trial court should have
sustained his Batson challenge as to panel member no. 10, Mr. Lewis, as the State’s
reason for using the peremptory strike on Mr. Lewis was a pretext for discrimination.
Standard of Review
When we review a trial court’s ruling on a Batson challenge, we examine the
evidence in the light most favorable to the trial court’s ruling and determine whether
the record supports the trial court’s findings. See Keeton v. State, 749 S.W.2d 861,
870 (Tex. Crim. App. 1988). Our review of the record is “highly deferential” to the
trial court. Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). We
review the record of a Batson hearing and the voir dire examination in the light most
favorable to the trial court’s ruling. “We will not disturb a trial court’s ruling on a
Batson issue unless it is clearly erroneous.” Young v. State, 283 S.W.3d 854, 866
(Tex. Crim. App. 2009). A ruling is “‘clearly erroneous’ when although there is
evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” Anderson v. City
of Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)); Whitsey v. State, 796 S.W.2d 707, 721 (Tex. Crim.
App. 1989). Exercise of a peremptory challenge against a venireperson on the
ground that they did not seem to understand the questions asked by counsel is a race-
neutral reason to strike. “In assaying the record for clear error, the reviewing court
should consider the entire record of voir dire; it need not limit itself to arguments or
considerations that the parties specifically called to the trial court’s attention so long
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as those arguments or considerations are manifestly grounded in the appellate
record.” Blackman v. State, 414 S.W.3d 757, 765 (Tex. Crim. App. 2013).
Analysis
In Batson v. Kentucky, 476 U.S.79, 89 (1986), the United States Supreme
Court determined that it is a violation of the Equal Protection Clause of the
Fourteenth Amendment of the United States Constitution for a litigant to exercise
peremptory challenges based on the juror’s race. Guzman v. State, 85 S.W.3d 242,
245–46 (Tex. Crim. App. 2002); see also TEX. CODE CRIM. PROC. ANN.
art. 35.261(b) (West 2006). A “Batson challenge” involves a three-step analysis.
First, the opponent of the peremptory strike, in this case the defendant, must make a
prima facie showing of purposeful discrimination by offering facts and other
relevant circumstances to raise an inference that the proponent of the strike, in this
case the State, exercised its peremptory strikes to exclude potential jurors for their
race, ethnicity, or gender. Batson, 476 U.S. at 96; Guzman, 85 S.W.3d at 246.
However, once the trial court rules on the ultimate question of intentional
discrimination, this preliminary issue of whether the defendant made a prima facie
showing becomes moot. Hernandez v. New York, 500 U.S. 352, 359 (1991);
Malone v. State, 919 S.W.2d 410, 412 (Tex. Crim. App. 1996).
The second step involves two parts: A and B. Part A shifts the burden of
production to the State to rebut the prima facie case of discrimination by offering “a
neutral explanation for the challenges,” while Part B requires the defendant to carry
the burden of persuasion that the neutral explanation given is pretext. Keeton v.
State, 724 S.W.2d 58, 65 (Tex. Crim. App. 1987); see Batson, 476 U.S. at 97–98. A
neutral explanation “means an explanation based on something other than the race
of the juror.” Hernandez, 500 U.S. at 360. If the State offers facially valid
explanations for its strikes, it has rebutted the presumption of purposeful
discrimination. Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991).
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“Whether the race-neutral explanation should be believed is purely a question
of fact for the trial court. But, the ultimate burden of persuasion regarding racial
motivation rests with, and never shifts from, the opponent of the strike.” United
Rentals N. Am., Inc. v. Evans, 608 S.W.3d 449, 477 (Tex. App.—Dallas 2020, pet.
filed) (citation omitted). Ultimately, the opponent of the strike must prove
purposeful discrimination by a preponderance of the evidence. Blackman, 414
S.W.3d at 764–65.
In the final step, the trial court must “determine whether despite the State’s
explanation, the defendant has established purposeful discrimination.” Keeton, 724
S.W.2d at 65 (court must rule on whether opponent proved purposeful
discrimination); see Williams, 804 S.W.2d at 101 (burden on opponent to rebut race
neutral explanation); see also Guzman, 85 S.W.3d at 254. After it considers the
credibility of the State, the content of the explanation, any rebuttal evidence or
argument offered by the defendant, the trial court must make a finding of fact
concerning whether the State engaged in purposeful discrimination in the exercise
of its peremptory challenges. Keeton, 724 S.W.2d at 65. We “give[ ] great
deference” to that finding. Id.
Here, as previously stated, after the jury was chosen but before it was sworn,
Appellant objected to the State’s use of its peremptory strikes against two African-
American members of the jury panel. Without obtaining a ruling on whether
Appellant had made a prima facie case for discrimination, the State offered its
nondiscriminatory reasons for the strikes.
Thus, because the preliminary issue of whether Appellant made his prima
facie case is moot, we begin our review at the second step of the Batson analysis.
See Hernandez, 500 U.S. at 359. Concerning panel member no. 10, Mr. Lewis, the
attorney for the State explained that she did not believe that Mr. Lewis understood
the questions that were asked and also that he did not appear intelligent enough to
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understand the scientific material that would be presented at trial. Lack of
intelligence, or an inability to understand attorney voir dire questions, is an
acceptable race-neutral reason for the use of a peremptory strike. Moore v. State,
265 S.W.3d 73, 82–83 (Tex. App.—Houston [1st Dist.] 2008), pet. dism’d, 286
S.W.3d 371 (Tex. Crim. App. 2009); see also Chiles v. State, 57 S.W.3d 512, 516–
18 (Tex. App.—Waco 2001, pet. dism’d) (concluding that venireperson’s inability
to understand legal principles is race-neutral justification for striking venireperson);
Williams v. State, 939 S.W.2d 703, 706–07 (Tex. App.—Eastland 1997, no pet.)
(holding that prosecutor established race-neutral reason for strike when juror had
difficulty understanding “beyond a reasonable doubt” standard); C.E.J. v. State, 788
S.W.2d 849, 857 (Tex. App.—Dallas 1990, writ denied) (stating that venireperson’s
inattentiveness may be sufficiently race-neutral reason to justify use of peremptory
strike). In his brief, however, Appellant argues that this race-neutral reason was
merely pretext and that he in turn met his burden of proving purposeful
discrimination. We disagree.
In response to the State’s explanation, Appellant relied solely on the
possibility that a lack of intelligence was not a proper race-neutral explanation. He
identified no other facts or circumstances to support his claim of discrimination. He
did not cross-examine the prosecutor, present any evidence to otherwise rebut the
State’s explanations, or ask for an opportunity to do so. While the record does reflect
that Mr. Lewis did appear to understand the single direct question that the State asked
him, we do not believe that this is enough to find that the trial court’s ruling was
clearly erroneous. This is especially because it is the trial court who had the
opportunity to view the demeanor of each panel member and evaluate his or her
credibility, and it is the trial court who ultimately is in the better position to evaluate
the strikes used. Satterwhite v. State, 858 S.W.2d 412, 415 (Tex. Crim. App. 1993).
We note also that in the latter portion of the voir dire, prospective juror no. 10 did
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not appear to understand a question propounded to the venire by counsel for the
State. The prospective juror’s response was related but not on point, but the question
itself, as asked, was unclear. Reviewing the entirety of the voir dire examination,
considering the context of the questions propounded and responses thereto, and
reviewing the record for the objections and responses to the State’s exercise of its
peremptory strikes, we hold that Appellant did not meet his burden to rebut the
State’s race-neutral explanations for its strikes and show that they were merely
pretextual. We overrule Appellant’s first issue.
2. The trial court did err when it assessed court-appointed attorney’s
fees against Appellant.
In his second issue, Appellant claims that the trial court erred when it assessed
court-appointed attorney’s fees against him—as he had been found to be indigent.2
The State concedes that attorney’s fees should not have been assessed against
Appellant. Appellant submitted an affidavit of indigence to the trial court stating
that he did not have the money to hire an attorney for his representation. Appellant
was appointed an attorney for his representation, suggesting that the trial court had
made a finding of indigence. Further, the record contains no transcription of hearing
suggesting that the court had re-examined the indigent status of Appellant.
When a trial court has found that a defendant is indigent, he is presumed to
remain indigent for the remainder of the proceedings unless there has been a material
change in the defendant’s financial circumstances. CRIM. PROC. art. 26.04(p) (West
Supp. 2020). Except upon evidence that there has been a material change since the
indigency finding and that an appellant is no longer indigent, the trial court cannot
assess court-appointed attorney’s fees against an appellant. Cates v. State, 402
2
Appellant in his brief also mentions that he was assessed “court reporter record fees,” (ApantBr20)
but the record does not reflect this charge. No such charge is shown in the 3rd Amended Bill of Cost that
is in the clerk’s record. Furthermore, the trial court granted Appellant’s motion for a free reporter’s record.
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S.W.3d 250, 251–52 (Tex. Crim. App. 2013). A careful review of the record reveals
no order entered or finding by the trial court that Appellant’s financial circumstances
had changed or that Appellant was able to repay the costs of court-appointed counsel.
Accordingly, there is nothing in the record to rebut Appellant’s presumed continued
indigency and justify the assessment of attorney’s fees against him under Article
26.05(g). See CRIM. PROC. art. 26.05(g). We therefore sustain Appellant’s second
issue with regard to the imposition of attorney’s fees, and we modify the trial court’s
judgments and the district clerk’s bill of cost to delete the assessment of attorney’s
fees. See Ramirez v. State, 432 S.W.3d 373, 377 (Tex. App.—San Antonio 2014,
pet. ref’d).
This Court’s Ruling
Based on the foregoing, we modify the trial court’s judgments and the bill of
cost to eliminate the imposition of attorney’s fees against Appellant. As modified,
we affirm the judgments of the trial court.
W. BRUCE WILLIAMS
JUSTICE
September 2, 2021
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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