Brazile, Dante Lee v. The State of Texas--Appeal from 339th District Court of Harris County

Affirmed and Opinion filed  April 3, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00272-CR

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DANTE LEE BRAZILE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 873,975

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M E M O R A N D U M O P I N I O N

Appellant, Dante Brazile, appeals his conviction for aggravated robbery. In his sole point of error, he contends the trial court erroneously denied his Batson challenge. We affirm.

Background

After voir dire, the State used a peremptory strike to excuse venire member #21, an African-American female. Appellant then lodged a Batson challenge because the State had not asked this venire member a single question during voir dire. The prosecutor replied that she struck venire member #21 because she was a United States postal worker. The prosecutor stated that in her experience, postal workers are not good State s jurors because they are at times a bit liberal. Further, the prosecutor said that she just didn t feel comfortable with her as a juror. Appellant offered no rebuttal to these explanations. The court found the offered explanations race-neutral and, therefore, denied the Batson challenge.

  Batson  Challenge

In Batson v. Kentucky, 476 U.S. 79, 96 97 (1986), the Supreme Court held that race-based peremptory challenges violate an accused s right to equal protection. There are three steps to a Batson challenge: (1) the accused s prima facie showing of purposeful discrimination; (2) the State s production of race-neutral explanations for its challenges; and (3) the accused s showing that these explanations are merely a pretext. Purkett v. Elem, 514 U.S. 765, 766 67 (1995); see also Batson, 476 U.S. at 97. The trial court s ruling on a Batson challenge is accorded great deference and will not be overturned on appeal unless it is clearly erroneous. See Chamberlain v. State, 998 S.W.2d 230, 236 (Tex. Crim. App. 1999). Under this standard, the trial court s ruling is found clearly erroneous only if no plausible basis exists to support it. See Whitsey v. State, 796 S.W.2d 707, 721 22 (Tex. Crim. App. 1990) (op. on reh g). In order to find the trial court s decision clearly erroneous, we must be left with a definite and firm conviction that a mistake has been committed. Vargas v. State, 838 S.W.2d 552, 554 (Tex. Crim. App. 1992).

First, we need not address whether appellant made a prima facie case: [O]nce the State[ ] offers explanations for striking the contested veniremembers, and the trial judge rules on the ultimate question of intentional discrimination, the issue of whether the defendant made a prima facie case is moot and, therefore, not subject to appellate review. Malone v. State, 919 S.W.2d 410, 412 (Tex. Crim. App. 1996). In evaluating the second step, the State s explanation will be deemed neutral unless a discriminatory intent is inherent. Hernandez v. New York, 500 U.S. 352, 360 (1991). Appellant argues that striking a venire member on the basis of employment is not race-neutral. However, we have held that striking a venire member based upon their type of employment and the prosecutor s poor success with that type of worker is a race neutral explanation for exercising a peremptory strike. Barnes v. State, 855 S.W.2d 173, 174 (Tex. App. Houston [14th Dist.] 1993, pet. ref d). We have also held that Batson challenges are subject to principles of ordinary procedural default. Flores v. State, 33 S.W.3d 907, 926 (Tex. App. Houston [14th Dist.] 2000, pet. ref d); see also Marin v. State, 851 S.W.2d 275, 279 80 (Tex. Crim. App. 1993) (explaining forfeitable rights), overruled in part on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). Because the burden of persuasion is on the party opposing the strike, failure to offer any real rebuttal to the State s facially neutral explanation renders the claim untenable. Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002); see Ford v. State, 1 S.W.3d 691, 693 94 (Tex. Crim. App. 1999) (where appellant failed to prove the explanation was a pre-text when he failed to cross-examine the prosecutor and did not offer evidence rebutting the explanation). Here, appellant offered no evidence rebutting the State s race-neutral explanations for the strike. Because appellant failed to refute the State s reasons, appellant forfeits review of this issue on appeal. Flores, 33 S.W.3d at 926. Accordingly, appellant s sole point of error is overruled, and the judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Opinion filed April 3, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.2(b).