Ernest Acosta Sr. v. The State of Texas--Appeal from 259th District Court of Jones County

Opinion filed December 15, 2005

In The

Eleventh Court of Appeals

__________

   No. 11-04-00188-CR

__________

   ERNEST ACOSTA SR., Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 259th District Court

Jones County, Texas

Trial Court Cause No. 9214

O P I N I O N

The jury convicted Ernest Acosta Sr. of deadly conduct for knowingly discharging a firearm at or in the direction of an occupied household, and the trial court assessed a sentence of ten years confinement. Appellant alleges that he was improperly convicted because the trial court wrongfully denied his Batson challenge.[1] We find no error and affirm.

Appellant=s attorney objected to the State=s peremptory strike of a Hispanic juror. The State explained its strike by saying that it circulated the jury list to the various police stations in the county and that an officer wrote Ano@ next to this juror=s name. Appellant challenged the State=s reasoning, saying: AJust because some policeman puts you on a list.@ Appellant offered no evidence or additional argument, and the trial court denied his challenge.

The Fourteenth Amendment prohibits the use of peremptory challenges in a racially discriminatory manner. Batson v. Kentucky, 476 U.S. 79, 89 (1986). A Batson challenge involves a shifting burden of proof. Appellant was initially required to make a prima facie case of racial discrimination. The burden then shifted to the State to tender a race-neutral reason for its strike. Ladd v. State, 3 S.W.3d 547, 563 (Tex. Crim. App. 1999). The burden rested finally upon appellant to prove by a preponderance of the evidence that the discrimination was purposeful. Id.

Appellant=s objection and the State=s explanation were sufficient to satisfy the first two prongs of the Batson test. The issue for the trial court was and the question presented by this appeal is whether the State=s reason for its peremptory strike was merely pretextual and a cover for a racially motivated challenge. See Camacho v. State, 864 S.W.2d 524 (Tex. Crim. App. 1993).

The trial court is uniquely situated to determine the veracity of race-neutral reasons for exercising peremptory challenges. Therefore, we accord the trial court=s decision great deference and may not overturn it unless clearly erroneous. Jasper v. State, 61 S.W.3d 413, 421-22 (Tex. Crim. App. 2001). We review all of the evidence in the light most favorable to the trial court=s ruling. Id.

Appellant argues that the State=s reason was tantamount to no reason at all, suggesting that race rather than the police officer=s recommendation was the real reason for the strike. The record does not support this contention. The State used only seven of its ten strikes. Three jurors with Hispanic surnames were not struck. Two were seated on the jury, and the third was struck by appellant. These are all factors the trial court was allowed to consider. See Hughes v. State, 962 S.W.2d 89, 91 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d). The record does not reflect the reason behind the officer=s recommendation or whether any other recommendations were made and, if so, whether they were followed. Consequently, the record contains no indication of inconsistent behavior by the State.

Appellant relies heavily on the fact that the State never asked the challenged juror a question and correctly points to cases such as Chivers v. State, 796 S.W.2d 539, 542 (Tex. App.CDallas 1990, pet. ref=d), for the proposition that the failure to ask any meaningful questions weighs heavily against the legitimacy of any race-neutral explanation. In Chivers, this proposition was important because the State=s proffered reason for its strike B the juror=s alleged low intelligence B was not supported by the record. If the State was truly worried about the potential juror=s intelligence, it could have easily asked him a few questions to determine his ability to serve.

Similarly, in Whitsey v. State, 796 S.W.2d 707, 727-28 (Tex. Crim. App. 1990), the State struck several minority panel members because of their occupations. The State assumed that members of a particular occupation shared common beliefs without testing this stereotype by asking any questions. In both instances, it appeared that the State remained intentionally ignorant for a reason.

This case does not present a similar situation. The State=s reasoning was neither based upon a vague or generalized reason nor upon a stereotype capable of being tested in voir dire. It was based upon specific information unique to this juror. We cannot say that the trial court=s ruling was clearly erroneous when it found that the State=s reliance on a police officer=s recommendation was reasonable and denied appellant=s challenge. Appellant=s sole issue on appeal is overruled.

The judgment of the trial court is affirmed.

RICK STRANGE

JUSTICE

December 15, 2005

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.

[1]Batson v. Kentucky, 476 U.S. 79 (1986).