Rodney McKinney v. The State of Texas--Appeal from 180th District Court of Harris County

Opinion issued July 20, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00804-CR

RODNEY MCKINNEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 989035

MEMORANDUM OPINIONAppellant, Rodney McKinney, was charged by indictment with aggravated assault against Weida Metzgar, enhanced by one prior felony conviction. A jury found appellant guilty and the enhancement allegation true and assessed punishment at confinement in prison for 13 years. Appellant challenges the judgment of conviction by a single point of error in which he contends that the trial court erred by overruling appellant s challenge to the State s using a peremptory challenge to exclude a member of the venire based on race, in violation of Batson v. Kentucky. // We affirm.

Background

While conducting voir dire of the venire on behalf of the State, the prosecutor questioned individual jurors concerning their reservations about, or hesitancy to, sit in judgment on [sic] somebody else. The prosecutor s inquiry resulted in two jurors stating that these or similar reservations would prevent their reaching a guilty verdict even if they believed every element of the offense beyond a reasonable doubt. During his voir dire, appellant s trial counsel referred to the prosecutor s inquiry as follows: The Prosecution talked to Juror No. 3 about sitting in judgment of another person. That s such an asinine comment sometimes, I don t even know why they ask the question because that s not what you re asked to do.

[Emphasis added.]

After both sides exercised their strikes, the jurors were called forward by name and number and seated. In response to the trial court s inquiry whether either side had objections to the composition of the jury, appellant s trial counsel requested the State s strike list. On receiving the list, counsel promptly lodged a Batson objection to the composition of the jury.

Appellant s challenge asserted the following grounds: (1) appellant is black; (2) of the potential jurors, Jurors Nos. 3, 29, 33, and 17 were also black; (3) after the State struck Jurors Nos. 3, 29, and 33 for cause, Juror No. 17 was the only potential black remaining; but (4) the State exercised a peremptory strike on Juror No. 17, although he was not asked any questions [by] the State that in any way, shape, fashion, or form disqualified him from prospective service, and although nothing in his questions, demeanor, or answers disqualified him, that (5) the State violated rights guaranteed to appellant by Batson and the equal protection clause of the Fourteenth Amendment by peremptorily disqualifying the only remaining black person out of over 65 potential jurors.

The prosecutor immediately responded that she had exercised a peremptory strike on juror No. 17 because he nodded his head in agreement when defense counsel referred to an asinine comment by the State. Given that nod in support, I exercised my peremptory strike to not have him on my jury. When defense counsel interjected that his reference to an asinine comment was not directed to the State, but to the juror who stated that she could not sit in judgment, the following exchange took place:

[PROSECUTOR]No, it was not. It was a statement by the State. It was an asinine proposition by the State or something to the effect that most jurors turned and looked in my direction and [Juror No. 17] particularly nodded yes. And also he works for the U.S. Postal Service, that was one of my factors, given his employment, and the fact that his wife was unemployed, I used those to determine I did not - - that s my reason.

[THE COURT]Anything else, Mr. Nunnery?

[DEFENSE]Nothing.

[THE COURT]It will be denied.

The record thus reflects only an initial objection by appellant s trial counsel, a response by the State, and the trial court s ruling denying the initial objection.

Standard of Review

In reviewing a trial court s ruling on a Batson challenge, we may reverse only if the ruling appears clearly erroneous. Rhoades v. State, 934 S.W.2d 113, 123 124 (Tex. Crim. App. 1996); Stewart v. State, 176 S.W.3d 856, 858 (Tex. App. Houston [1st Dist.] 2005, no pet.). To reverse under this standard requires a definite and firm conviction that a mistake has been made. See Rhoades, 934 S.W.2d at 123-24; Stewart, 176 S.W.3d at 858. In applying the standard, moreover, we must give great deference to the trial court s determination and view the evidence in the light most favorable to the trial court s ruling. Jasper v. State, 61 S.W.3d 413, 422 (Tex. Crim. App. 2001); Stewart, 176 S.W.3d at 858. If we determine that appellant did not rebut the State s explanations, we will deem not clearly erroneous the trial court s finding of no purposeful discrimination on the basis of race. Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991); Stewart, 176 S.W.3d at 858.

Discussion

In his sole point of error, appellant complains that the trial court erred by overruling appellant s Batson challenge and by impliedly finding that the prosecutor provided a race-neutral explanation for peremptorily striking Juror No. 17.

Using a peremptory challenge to strike a potential juror based on race violates the equal protection guarantees of the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717 (1986); Stewart, 176 S.W.3d at 858. A defendant faced with perceived purposeful discrimination may request a Batson hearing, which involves a three-step process. Purkett v. Elem, 514 U.S. 765, 767 68, 115 S. Ct. 1769, 1770 71 (1995); Stewart, 176 S.W.3d at 858. The defendant must first present a prima-facie case of racial discrimination. Purkett, 514 U.S. at 767, 115 S. Ct. at 1770; Stewart, 176 S.W.3d at 858. Once the defendant meets this burden, the burden of production shifts to the State to present a racially neutral explanation for the challenged strike. Purkett, 514 U.S. at 768, 115 S. Ct. at 1771; Stewart, 176 S.W.3d at 858. The dispositive issue at this second step is the facial validity of the State s explanation; unless a discriminatory intent is inherent in the State s explanation, the reason offered will be deemed race neutral. See Purkett, 514 U.S. at 768, 115 S. Ct. at 1771; Stewart, 176 S.W.3d at 859 (interpreting Purkett as clarifying that the reasons offered by the State do not have to be persuasive, or even plausible, to meet the State s burden of production, as long as they are racially neutral ).

In the third step, the trial court decides whether the defendant has established purposeful discrimination. Purkett, 514 U.S. at 768, 115 S. Ct. at 1771; see also Miller-El v. Dretke, 125 S. Ct. 2317, 2324 25 (2005) (restating three-step process); Stewart, 176 S.W.3d at 858 59 (same). Throughout the challenge process, however, the burden of persuasion remains with the defendant, who has the opportunity to rebut the State s explanations before the trial court rules on the defendant s objection. Jasper, 61 S.W.3d at 421; Stewart, 176 S.W.3d at 858 59; see also Purkett, 514 U.S. at 768, 115 S. Ct. at 1771 (stating, [T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the [peremptory] strike. ).

Applying these principles here demonstrates an initial objection by appellant s trial counsel, who alleged that the prosecutor exercised a racially based peremptory strike to remove black Juror No. 17 from the jury without any supporting indication that would otherwise disqualify Juror No. 17. Assuming the burden of production in response to appellant s objection, the prosecutor explained that she observed most of the jurors turning in her direction when appellant s trial court referred to the asinine proposition by the State, and that Juror No. 17, in addition, nodded his head in agreement. The prosecutor concluded her reasons for peremptorily striking Juror No. 17 by referring to Juror No. 17 s employment with the United States Postal Service and his wife s unemployment. Yet, in response to the trial court s inquiry after the prosecutor concluded her explanation, appellant s trial counsel replied he had nothing further, after which the trial court denied appellant s challenge.

Under the circumstances presented, we hold that the prosecutor s response to appellant s Batson challenge offered racially neutral explanations for striking Juror No. 17. Appellant, however, did not attempt to rebut the prosecutor s race-neutral explanations and therefore failed to meet the burden of persuasion on his challenge, which, we note, never shifted from appellant. See Purkett, 514 U.S. at 768, 115 S. Ct. at 1771; Jasper, 61 S.W.3d at 421; Stewart, 176 S.W.3d at 858 59. Having concluded that appellant did not meet his burden, we cannot say that the trial court clearly erred by denying appellant s Batson challenge. See Stewart, 176 S.W.3d at 859.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Taft and Nuchia.

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