Adreion Newton v. The State of Texas--Appeal from 202nd District Court of Bowie County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-02-00192-CR

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ADREION NEWTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 202nd Judicial District Court

Bowie County, Texas

Trial Court No. 01-F-077-202

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

A jury convicted Adreion Newton for assaulting a public servant. See Tex. Pen. Code Ann. 22.01(a)(1), (b)(1) (Vernon Supp. 2004). The jury found Newton had previously been convicted of a felony and assessed punishment at fourteen years' imprisonment. The trial court sentenced Newton in accordance with the jury's verdict, from which Newton now appeals.

In a single point of error, Newton contends the trial court erred by failing to grant his challenge, pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), to the State's use of its peremptory strikes. We affirm.

Standard of Review

The Equal Protection Clause of the United States Constitution prohibits a party from using peremptory challenges to exclude otherwise qualified and unbiased persons from a jury solely on the basis of their race. Id. at 88. The Texas Legislature has codified the Batson rule in Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 1989).

A trial court's ruling on a Batson challenge is a finding of fact and will be reversed on appeal only on a finding that the decision was clearly erroneous. Guzman v. State, 85 S.W.3d 242, 254 (Tex. Crim. App. 2002); Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991). A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court is left with "the definite and firm conviction that a mistake has been committed." DeBlanc v. State, 799 S.W.2d 701, 713 (Tex. Crim. App. 1990); Whitsey v. State, 796 S.W.2d 707, 721 (Tex. Crim. App. 1989) (op. on reh'g).

In reviewing a Batson challenge, we must examine the racial makeup of the entire venire, the voir dire examination, the prosecutor's explanation(s), and the appellant's rebuttal and impeachment evidence in a light most favorable to the trial court's ruling. See Guzman, 85 S.W.3d at 254; Williams, 804 S.W.2d at 101 02. We accord great deference to the trial court's findings of fact. Batson, 476 U.S. at 98 n.21; Robinson v. State, 851 S.W.2d 216 (Tex. Crim. App. 1991).

Three steps constitute a proper Batson challenge. Ford v. State, 1 S.W.3d 691, 693 94 (Tex. Crim. App. 1999) (citing Purkett v. Elem, 514 U.S. 765 (1995)). First, the party making the Batson claim must show a prima facie case of racial discrimination. A prima facie case of discrimination may be made by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Batson, 476 U.S. at 93 94. Second, the proponent of the strike must rebut the opponent's prima facie case and come forward with a race-neutral reason for the strike. Id. at 94; Williams v. State, 937 S.W.2d 479, 485 (Tex. Crim. App. 1996). This explanation need not be persuasive or even plausible. Purkett, 514 U.S. at 768. Third, if the proponent of the strike produces a race-neutral reason for the strike, the trial court then determines whether the movant carried the burden of persuasion by proving purposeful discrimination. Miller-El v. Cockrell, 537 U.S. 322 (2003); Purkett, 514 U.S. at 767. In this final step, the critical issue becomes the persuasiveness of the proponent's reason. Miller-El, 537 U.S. at 338 39; Purkett, 514 U.S. at 768. The trial court must measure the credibility of the proponent's justification by, among other factors, evaluating the proponent's demeanor; by how reasonable, or how improbable, the prononent's explanations are; and by whether the proponent's justification has some basis in accepted trial strategy. Miller-El, 537 U.S. at 339.

To determine if the reason is supported by the record, we consider whether the reason offered as a basis for the peremptory strike was not related to the case, whether there was a lack of meaningful questioning of the venire person involved, whether there was disparate treatment or examination of persons with similar characteristics as the challenged venire person, and whether there is historical evidence of racial discrimination. See id. at 343; Williams, 804 S.W.2d at 105 06.

Analysis

After the final twelve prospective jurors had been selected and placed in the jury box, but before they had been officially sworn in, Newton objected and requested a hearing outside the jury's presence. Newton then made a Batson challenge, arguing the State had improperly struck five members of the venire panel on the basis of race.

During the Batson hearing, the trial court took judicial notice that Newton was African-American, an identifiable racial group. The trial court also noted that the twelve persons left to serve as jurors were each Caucasian and that the State had struck five prospective jurors who were African-American. Based on the record, we find Newton made a prima facie showing of racial discrimination.

On appeal, Newton concedes the State offered persuasive race-neutral reasons for striking three of those five. // The sole remaining dispute between Newton and the State is whether the State offered sufficiently persuasive race-neutral reasons for striking venire members five and twenty-one. Accordingly, we will focus our analysis on the third prong of Batson as it relates to those jurors.

Juror number five was Margie Craver. During voir dire, Craver stated, "I would hate to put someone away for twenty years, . . . ." Assuming the jury found Newton guilty, the maximum sentence in this case included confinement for twenty years. See Tex. Pen. Code Ann. 12.33(a) (Vernon 2003) (maximum second-degree felony punishment is twenty years); 12.42(a)(3) (Vernon Supp. 2004) (enhancement of third-degree felony to second-degree felony punishment for repeat felony offender); 22.01(a)(1), (b)(1) (assault on public servant is third-degree felony). At the Batson hearing, the State said it interpreted Craver's statement as her reluctance to consider imposing the maximum punishment. The State struck her because she had visited one or more prisons with her church group.

As a matter of law, if a venire member cannot consider the full range of punishment, that member is subject to a challenge for cause. Ladd v. State, 3 S.W.3d 547, 559 (Tex. Crim. App. 1999). When the record demonstrates that a juror's answer equivocates on an answer during voir dire, especially the ability to consider the full range of punishment, "we afford great deference to the trial judge who had the better opportunity to see and hear the person." Swearingen v. State, 101 S.W.3d 89, 99 (Tex. Crim. App. 2003). There is nothing inherently race-based in a claim that one struck a juror because he or she was reluctant to consider the full range of punishment. The record also shows the State struck, or agreed to strike, other prospective (Caucasian) jurors because they had either visited prisons or had family members who worked in prison. Thus, after reviewing the record, we cannot say the trial court erred by finding the State presented a persuasive, race-neutral reason for striking Craver.

Juror number twenty-one was Mary Burns. The State said it struck Burns because, "She also throughout the voir dire of Mr. Nash was not looking at Mr. Nash but was looking at other voir dire members as they were speaking," and because Burns appeared "just confused as all gitout [sic]." Newton did not challenge this characterization of Burns. Cf. Yarborough v. State, 983 S.W.2d 352, 355, 357 (Tex. App. Fort Worth 1998, no pet.). The State also expressed concern Burns might be related to a Bowie County defendant with the same last name who had been recently executed for capital murder.

"A juror's ability to follow the instructions of the court, apply the law and hold the State to the proper burden of proof is directly related to the facts of any case." Toy v. State, 855 S.W.2d 153, 157 (Tex. App. Houston [14th Dist.] 1993, no pet.). Striking a venire member for inattentiveness or inability to understand a court's instructions is not inherently racially discriminatory. Because these reasons were not disputed, the State met its burden of providing facially-neutral reasons for striking Burns. Cf. Simpson v. State, No. 74,029, 2003 WL 22244663, at *4 (Tex. Crim. App. Oct. 1, 2003) (State's explanations did not reflect inherently discriminatory intent and appellant did not rebut the State's reasons); Yarborough, 983 S.W.2d at 357 (venire member's inattentiveness was not refuted by defendant during Batson hearing, which was a valid race-neutral reason for the strike).

After reviewing the racial composition of the entire venire panel, the voir dire examination, the State's explanations for its use of strikes, and Newton's rebuttal in the light most favorable to the trial court's ruling, we are not left with "the definite and firm conviction that a mistake has been committed" in overruling the Batson challenge, as would be required for reversal. There appears to be neither a lack of meaningful questioning of Craver or Burns, nor was there disparate treatment or examination during voir dire of persons with similar characteristics.

Accordingly, we affirm the trial court's judgment.

Jack Carter

Justice

Date Submitted: February 2, 2004

Date Decided: February 11, 2004

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