Lee Arthur YOUNG, Appellant, v. The STATE of Texas, Appellee, 848 S.W.2d 203

OPINION ON REMAND BAKER, Justice. On original submission, we held the evidence sufficient to support the verdict and that the trial court did not err in overruling appellant’s Batson motion. See Young v. State, No. 05-89-00571-CR (Tex.App.—Dallas, March 5, 1990) (not designated for publication), rev’d, 826 S.W.2d 141 (Tex.Crim.App.1991). We stated: In his brief, appellant brings forth testimony from the voir dire which he asserts casts doubt on the prosecutor’s explanations.

Appellant urges that we compare the individuals that the State struck with those who were not struck and to use these alleged discrepancies to determine whether the State’s explanations were credible. Because appellant did not urge the trial court to make the comparisons during the Batson hearing, they are not available on appellant’s behalf for consideration by a reviewing court. Young, slip op. at 7. In reaching this conclusion, we relied on Tompkins v. State, 774 S.W.2d 195, 202 n. 6A (Tex.Crim.App.1987), aff'd by an equally divided court, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989).

In Tompkins, the court of criminal appeals stated: Because the trial judge was not urged to make, and did not make, a finding based upon a comparison analysis in deciding the issue whether the prosecutors’ neutral explanations were rebutted or impeached at the “Batson” hearing with evidence that unchallenged white veniremen also possessed the same purportedly undesireable [sic] characteristics, we do not consider this circumstance in reviewing the trial judge’s findings in this cause. Tompkins, 774 S.W.2d at 202 n. 6A.

On discretionary review, the court of criminal appeals agreed with appellant that the footnote in Tompkins was not a holding and declined to adopt it as one. See Young, 826 S.W.2d at 144. The court of criminal appeals concluded that this Court erred by refusing to consider appellant’s comparisons in reviewing the trial court’s Batson ruling. See Vargas v. State, 838 S.W.2d 552, 557 (Tex.Crim.App.1992).

The court of criminal appeals remanded the case to our Court not to determine whether the prosecutor’s explanations were credible, but to determine whether the record supports the trial judge’s ruling on appellant’s Batson motion and was therefore not clearly erroneous. See Young, 826 S.W.2d at 146-47. Upon remand of the cause to this Court, we advised appellant and the State of their right to rebrief the issue. See Robinson v. State, 790 S.W.2d 334, 335 (Tex.Crim.App.1990) (per curiam). Both appellant and the State filed briefs on remand. Appellant did not request oral argument.

The State requested argument only if appellant requested oral argument. We submit the case on the briefs on remand. We proceed to determine whether the record supports the trial court’s ruling on appellant’s Batson motion and was therefore not clearly erroneous. After reviewing the record, we find that the record does not support the trial court’s ruling on juror number eleven, Mr. Jones. We conclude that the trial court made a mistake. We reverse the trial court’s judgment. We remand the cause for a new trial.

STANDARD OF REVIEW The standard of review for claims that the State used peremptory strikes in a racially discriminatory manner is the “clearly erroneous” standard. Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App.1992); Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App.), cert. denied, — U.S. -, 111 S.Ct. 2875, 115 L.Ed.2d 1038 (1991). To determine whether the fact finder’s decision is clearly erroneous, we look to the record to see if the record leaves us with the definite and firm conviction that the trial court made a mistake. Hill, 827 S.W.2d at 865; Whitsey v.

State, 796 S.W.2d 707, 728 (Tex.Crim.App.1989) (op. on reh’g). The clearly erroneous standard accords great deference to the trial court’s findings and conclusions because the trial court bases its rulings in part upon a credibility determination that is not reviewable by the appellate court. Young, 826 S.W.2d at 152 (op. on reh’g). We review the evidence in the light most favorable to the trial court’s ruling. Robinson v. State, No. 69,568, slip op. at 11, 1991 WL 57765 (Tex.Crim.App. April 17, 1991) (reh’g granted); Whitsey, 796 S.W.2d at 721.

The exercise of even one peremptory challenge for racial reasons invalidates the entire jury selection and mandates a new trial. See Linscomb v. State, 829 S.W.2d 164, 166 (Tex.Crim.App.1992); Keeton v. State, 724 S.W.2d 58, 65 n. 5 (Tex.Crim.App.1987). The aggrieved party need not show multiple instances of racial prejudice in jury selection to prove a constitutional violation. Linscomb, 829 S.W.2d at 166. Under Batson, we should be occupied with the question of whether the State was racially motivated in the exercise of its peremptory challenges against even one juror of discernable race.

Linscomb, 829 S.W.2d at 167. We examine each of the prosecutor’s neutral explanations to determine if they are a pretext for a racially motivated peremptory challenge. Whitsey, 796 S.W.2d at 713. COMPARATIVE ANALYSIS-DISPARATE TREATMENT The trial judge’s decision on whether the defendant proves a Batson claim turns, in part, on the trial court’s observations during voir dire examination. As the voir dire supervisor, the trial judge can readily perceive discrepancies during jury selection process.

These discrepancies may include: (1) the prosecutor failing to question any of the minority jurors yet striking them anyway; (2) the prosecutor striking minority jurors who gave answers similar to those of majority jurors whom the prosecutor did not strike; and (3) the prosecutor striking minority jurors who had the same characteristics professionally, socially, religiously, etc. as majority jurors whom the prosecutor did not strike. These factors may show disparate treatment of prospective jurors.

These factors enter into the trial judge’s assessment of the prosecutor’s credibility and eventually the trial judge’s determination of the racial neutrality of the prosecutor’s peremptory challenges. See Young, 826 S.W.2d at 145. THE STATE’S PEREMPTORY CHALLENGES In his brief on remand, appellant contends that the State peremptorily challenged prospective jurors numbers two, eleven, and twelve for racially motivated reasons. The reasons the State gave for its strikes were: 1. Juror number two, Mr. Davis. This juror’s brother was involved in a theft.

He was seen nodding, and his head was down and his eyes were closed during the State’s voir dire. 2. Juror number eleven, Mr. Jones. This juror had an uncle who had been in trouble with the law. 3. Juror number twelve, Ms. Jennings. This juror told the parties that she had a problem sitting because of back problems, and the State was concerned that her ability to pay attention and give her undivided time to the case would be affected. APPELLANT’S CONTENTIONS Appellant observes that the State struck seven blacks from the jury panel and that appellant struck one. No blacks served on the jury. Appellant is black.

Appellant contends the State’s explanations for striking the black veniremen were not racially neutral considering the disparate treatment of those jurors when compared with other jurors on the panel who shared the same or similar characteristics as the challenged jurors. Appellant offers the following as disparate treatment of the minority jurors whom the State struck: 1. Juror number two, Mr. Davis: The State struck him because he had a brother involved in a theft case and because he nodded off with his head down and his eyes closed during the voir dire conducted by the State. Appellant compares Mr.

Davis to juror number one, Mr. Kudlacek, who had a brother charged with theft of meat for a barbecue. The State did not strike Mr. Kudlacek, who was white. 2. Juror number eleven, Mr. Jones: The State struck him because he had an uncle who had been in trouble with the law. Like Mr. Davis, appellant compares Mr. Jones to Mr. Kudlacek. 3. Juror number twelve, Ms. Jennings: The State struck Ms. Jennings because she had a back problem that the State felt could affect her ability to pay attention and give her undivided attention to the case. Appellant compares Ms. Jennings with juror number twenty-three, Mr.

Penn, who was white. Mr. Penn also had a back problem, but the State did not strike him. THE STATE’S RESPONSE The State contends that, when viewed in the light most favorable to the trial court’s ruling, the record shows that the trial court’s decision on appellant’s Batson motion was not clearly erroneous. The State’s response on each prospective juror whom appellant claims the State struck for racial reasons is: 1.Juror number two, Mr. Davis: The State notes that the prosecutor struck Mr. Davis because he had a brother who had been involved in a theft case. The prosecutor also stated that Mr.

Davis nodded off during the prosecutor’s voir dire examination. The State notes that a juror's having a relative in trouble with the law is a legitimate reason for exercising a peremptory challenge. See 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.1990). The State also argues that inattentiveness may be a sufficiently race-neutral reason to justify the use of a peremptory challenge. See Woods v. State, 801 S.W.2d 932, 937 (Tex.App.—Austin 1990, pet. ref’d). 2. Juror number eleven, Mr. Jones: The State notes that the prosecutor struck Mr.

Jones because Mr. Jones had an uncle who had been in trouble with the law. The State argues that a relative’s trouble with the law is a racially neutral reason for striking a juror. Sims, 768 S.W.2d at 865. The State also argues that the record shows there were two responses by a person or persons identified as Mr. Jones. The State contends that the record is ambiguous because the juror information lists are not part of the record on appeal. The State argues that even if there were two Mr. Joneses, it is not possible to determine whether one or two people made the responses shown in the record.

The State concludes that because of the ambiguity and because we are to give great deference to the trial court’s decision, appellant has not shown that the trial court’s decision was clearly erroneous. 3. Juror number twelve, Ms. Jennings: The State observes that the prosecutor stated he struck Ms. Jennings because she had a back problem. The State felt that her back problems would affect her ability to pay attention. The State notes that appellant compares Ms. Jennings with juror number twenty-three, Mr. Penn, who also had a back problem.

The State asserts that the strike lists, which are part of the record, show that appellant struck Mr. Penn. The State argues that because appellant struck Mr. Penn and the State did not, we cannot find the trial court’s ruling on Ms. Jennings clearly erroneous. The State also argues that the back problems of Ms. Jennings and Mr. Penn were not comparable. The State argues that the record shows that Ms. Jennings said she could not sit through the trial, while Mr. Penn said that if he could stand up every so often, he could sit through the trial. The State concludes that the two jurors were not comparable.

APPLICATION OF THE LAW TO THE FACTS A. The Voir Dire The record reflects the following exchange between the prosecutor and the prospective jurors: [THE PROSECUTOR]: I’ll ask you three questions. Please do not answer or raise your hand to any of these questions until I have finished all of them. Okay. Has anybody on this panel ever been charged, arrested or convicted in any criminal offense greater than a traffic citation? Okay. Charged, arrested or convicted of any criminal offense greater than a traffic citation? That's question number one.

Has anyone on this panel have a friend or a family member who has ever been charged, arrested or convicted of any criminal offense greater than a traffic citation? Okay. Third question. Has there — is there anybody on this panel that for any health reasons, you have a problem sitting for a day or two during the course of this trial, you have a back problem. Whatever, the flu, you can’t give us your undivided attention for a day or two and that’s going to cause a problem for you for either side, for giving either side a fair trial. Now, those are your three questions.

Does anybody have an answer of yes to any of those three questions? First row? Okay. Is it Kudlacek? [MR. KUDLACEK] Hey, that’s great. [THE PROSECUTOR]: Is that it? I worried about that when I went over there to talk to you. Mr. Kudlacek, which question did you have to answer yes to? [MR. KUDLACEK]: I had a brother that was charged with an offense. [THE PROSECUTOR]: Here in Dallas? [MR. KUDLACEK]: Oh, no, this was back east. [THE PROSECUTOR]: Okay. What was the nature of the offense? [MR.

KUDLACEK]: They wanted to have a bar-b-que and didn’t have the money to buy the beef, so they went and got their own. [THE PROSECUTOR]: Well, sir, is that taken care of? Is it over and done with? [MR. KUDLACEK]: Oh, yes. [THE PROSECUTOR]: All right. Did they still have the bar-b-que? [MR. KUDLACEK]: Yes. [THE PROSECUTOR]: Okay. Can you set those facts aside and make your determination based upon what you hear in this courtroom? [MR. KUDLACEK]: Oh, yes. [THE PROSECUTOR]: Can you set that aside and give both sides a fair trial? [MR. KUDLACEK]: Yes, sir. [THE PROSECUTOR]: Thank you, sir. Mr.

Davis, did you have a— [MR. DAVIS]: Well, no, a brother of mine— [THE PROSECUTOR]: Okay. [MR. DAVIS]: —played hookey with someone else. Someone else went in the store to steal a coke and gave it to him. [THE PROSECUTOR]: Probably a theft case? [MR. DAVIS]: Yes. [THE PROSECUTOR]: Fine. Has that case been taken care of, is [it] done with, over with? [MR.

DAVIS]: Yes. [THE PROSECUTOR]: Is there anything about that case or the way it’s been handled — the way it was handled by the police department or the district attorney’s office or any of the parties that were involved that would make it difficult for you to sit in this case? [MR. DAVIS]: No. [THE PROSECUTOR]: Do you think, sir, that you can set aside those facts and give both the State of Texas as well as the defense a fair trial? [MR. DAVIS]: Yes. [THE PROSECUTOR]: Okay. Mr. Jones? [MR. JONES]: May I ask a question? [THE PROSECUTOR]: Yes. [MR.

JONES]: I have had a family member involved in an embezzlement case. [THE PROSECUTOR]: All right. Okay. Has that case been taken care of? Is it over and done with? [MR. JONES]: Yes. [THE PROSECUTOR]: It took place in Dallas? [MR. JONES]: Yes. [THE PROSECUTOR]: Okay. Now that’s pretty close, that’s kind of close to the kind of offense that we are dealing with here. It’s fraud so-to-speak, okay? Now what family member was it, a close family member? [MR. JONES]: Yes. [THE PROSECUTOR]: Sir, do you think you’re so close to that set of circumstances that it may cause problems some here? [MR.

JONES]: No, it’s over with. [THE PROSECUTOR]: Now do you feel that the district attorney’s office or the police agencies that were involved in this case treated your family members fairly? [MR. JONES]: Yes. [THE PROSECUTOR]: So, if you heard testimony from a police officer, or as you well know this offense is initiated by the district attorney’s office and brought forward, do you think that you can give the State of Texas as well as the defense a fair trial? [MR. JONES]: Yes, I can. [THE PROSECUTOR]: Do you think you can do that? [MR. JONES]: Yes. [THE PROSECUTOR]: Thank you. Anybody else in the first row?

Some more hands? (the individual voir dire of juror number ten, Ms. Stewart, is omitted) [THE PROSECUTOR]: Mr. Jones? [MR. JONES]: I had an uncle that was arrested a long time ago. [THE PROSECUTOR]: Okay, for what, sir? [MR. JONES]: I don’t know. [THE PROSECUTOR]: I think we’ve all got one of those uncles. I used to cry about it. My mother told me, son, you can pick your friends but you can’t pick your family. All right. Do you think that would cause you a problem? [MR. JONES]: No. [THE PROSECUTOR]: Do you think you can be fair to both sides? [MR. JONES]: Yes. [THE PROSECUTOR]: Can you give Mr.

Weddle and his client a fair trial as well as the State? [MR. JONES]: Yes. [THE PROSECUTOR]: Okay. Thank you. Did you have your hand up? Yes, ma’a [sic]. Ms. Jennings? [MS. JENNINGS]: Your last question about sitting for a couple of hours. I hurt my back. I can’t. [THE PROSECUTOR]: Okay, we’ll call you up, Ms. Jennings, fine. [THE PROSECUTOR]: Anybody else? Yes sir. [MR. PENN]: I have a lower back problem. [THE PROSECUTOR]: Okay. Mr. Penn, right? [MR. PENN]: Yes. [THE PROSECUTOR]: Thank you, sir. B. Comparative Analysis— Disparate Treatment 1. Juror Number Two, Mr. Davis Appellant compares juror number two, Mr.

Davis, to juror number one, Mr. Kudlaeek. Both had relatives charged with theft. The State struck Mr. Davis but did not strike Mr. Kudlacek. Mr. Kudlacek was white, Mr. Davis was black. The State argues that although both jurors had relatives charged with crimes, the State also said it struck juror Davis because he was inattentive. Kinship to a person who has had trouble with the law is a racially neutral reason for striking a juror. Sims, 768 S.W.2d at 865. Additionally, inattentiveness may be a sufficiently race-neutral reason to justify the use of a peremptory challenge. Woods, 801 S.W.2d at 937.

Viewed in the light favorable to the trial court’s ruling, the record supports the trial court’s decision on juror Davis. The trial court’s ruling was not clearly erroneous. Whitsey, 796 S.W.2d at 726. 2. Juror Number Eleven, Mr. Jones Appellant compares juror number eleven, Mr. Jones, to juror number one, Mr. Kudlacek. Juror Jones was black, juror Kudlacek was white. Each of these jurors had a family member who had prior trouble with the law. The State contends that the record is ambiguous because there are one or more Mr. Joneses identified in the record.

The State argues that because the record is ambiguous, we are to give the trial court’s ruling great deference. The State contends that the trial court’s ruling on juror number eleven, Mr. Jones, was not clearly erroneous. We disagree with the State’s conclusion that the record is ambiguous. In our view, the record clearly shows there were two Mr. Joneses. The first Mr. Jones stated, “I have a family member involved in an embezzlement case.” The second Mr. Jones stated, “I have an uncle that was arrested a long time ago.” The prosecutor asked the second Mr. Jones for what. The second Mr.

Jones responded that he did not know. The prosecutor questioned an intervening juror, Ms. Stewart, between questioning the two Mr. Joneses. The record identifies Ms. Stewart as juror number ten. The prosecutor clearly identified Mr. Jones as juror number eleven when he stated his reasons for striking that particular juror. Both Mr. Kudlacek and Mr. Jones had relatives charged with crimes. Kinship to a person with criminal charges is a racially neutral reason for striking a juror. Sims, 768 S.W.2d at 865.

Both Kudlacek and Jones gave similar answers to the prosecutor’s questions about relatives charged with crimes. Mr. Kudlacek was white, Mr. Jones was black. The prosecutor did not strike Mr. Kudlacek but did strike Mr. Jones. These facts show disparate treatment of prospective jurors on a racial basis. Viewed in the light most favorable to the trial court’s ruling, we cannot say the record supports the ruling on juror Jones. The record leaves us with a definite and firm conviction that the trial court made a mistake. Whitsey, 796 S.W.2d at 721, 728. 3. Juror Number Twelve, Ms. Jennings Appellant compares Ms.

Jennings with juror number twenty-three, Mr. Penn. Both had back problems. Ms. Jennings was black. Mr. Penn was not black. The State struck Ms. Jennings, appellant struck Mr. Penn. Appellant argues the only distinguishable factor between Jennings and Penn is their race. The State argues that because of the trial court’s individual examination of the two prospective jurors, the back problems of the two jurors were not comparable. The State contends the record shows that Ms. Jennings back was already giving her problems just from sitting during voir dire examination.

She said she would have difficulty in paying attention because of her back problem. Conversely, the State claims that Mr. Penn said he had been sitting during the entire voir dire but was suffering no problems. Penn stated that sitting on hard benches would hurt his back. However, he told the court that if he could stand up periodically, this alleviated his problem. The court said Mr. Penn could stand up when necessary. A juror’s physical problem is a racially neutral reason for exercising a peremptory strike. See Roy v. State, 813 S.W.2d 532, 538 (Tex.App.—Dallas 1991, pet. ref’d).

The record reflects a difference in the responses by jurors Jennings and Penn when the court questioned them individually. Viewed in the light most favorable to the trial court’s ruling, the record supports the trial court’s decision on juror Jennings. The trial court’s ruling was not clearly erroneous. Whitsey, 796 S.W.2d at 721. CONCLUSION The record leaves us with the definite and firm conviction that the trial court made a mistake in its ruling on juror number eleven, Mr. Jones. We hold that the trial court’s finding was clearly erroneous. Whitsey, 796 S.W.2d at 728.

One peremptory challenge for racially motivated reasons invalidates the entire jury selection process. Linscomb, 829 S.W.2d at 166. We reverse the trial court’s judgment. We remand the cause for a new trial. . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). .In a footnote, the majority opinion stated it regarded the Tompkins footnote as dictum. See Young, 826 S.W.2d at 144 n. 5; see also Young, 826 S.W.2d at 153 n. 3. (Benavides, J., dissenting).