Johnny Alvarado v. The State of Texas--Appeal from 147th District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00400-CR
Johnny Alvarado, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 0961888, HONORABLE FRED A. MOORE, JUDGE PRESIDING
PER CURIAM

Johnny Alvarado pled guilty to the offenses of burglary of a habitation and aggravated sexual assault and elected to have a jury assess punishment. The jury sentenced him to forty years in prison and a $2,000 fine for the burglary and to sixty-five years in prison and a $5,000 fine for the aggravated sexual assault. On appeal, he contends that the State violated a statute and the federal and state constitutions by exercising a peremptory challenge on the basis of the ethnicity or race of venire members. We will affirm the judgment.

Trial Procedures and Standard of Appellate Review for Batson Challenges

Texas essentially codified the standard for detecting racial discrimination in jury selection established by the Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986), by enacting Texas Code of Criminal Procedure Annotated article 35.261 (West 1989). See Hill v. State, 827 S.W.2d 860, 863 (Tex. Crim. App. 1992). The statute requires that the trial court dismiss the venire upon the defendant's motion if the court determines

that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race. If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges. The burden of persuasion remains with the defendant to establish purposeful discrimination.

 

Code art. 35.261(a).

On appeal of a rejected Batson challenge, we apply a "clear error" standard of review. See Hernandez v. New York, 500 U.S. 352, 364-65 (1991); Hill, 827 S.W.2d at 865-66. We review all of the evidence in the light most favorable to the district court's ruling and determine if the ruling was clearly erroneous. See Salazar v. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991). If, after reviewing all the evidence, we cannot say that the district court's ruling was clearly erroneous, we must uphold the ruling even if we would have decided differently. See Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985). For us to conclude that the court's decision was 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).

 
Discussion

Alvarado is Hispanic. The State used three of its ten peremptory strikes on Hispanic persons: Aurelio Fox, Iyarodes Garcia, and Patricia Rodriguez. Alvarado had two Hispanics struck for cause and used a peremptory strike on a third. One Hispanic served on the jury and another was not reached; had the parties' strikes not overlapped on one juror, this remaining Hispanic venire member would have been empaneled. The State's offer of race-neutral explanations for its strikes moots the issue of whether the defendant made a prima facie case of discriminatory strikes; we will not review that determination. Malone v. State, 919 S.W.2d 410, 412 (Tex. Crim. App. 1996).

Aurelio Fox. The prosecutor testified that she did not know that Fox was Hispanic. She said she struck him because he had been accused of reckless conduct and because she did not feel he had been responsive to her, though she could not recall a particular instance of nonresponsiveness. She said he did not look Hispanic. She said she did not use first names during voir dire, so his Hispanic-sounding first name made no impact on her.

The trial court did not err by finding no impropriety in this strike. Alvarado criticizes the prosecutor for stating that she did not notice Fox was Hispanic, indicating that the prosecutor was either stonewalling the court with this explanation or wrongfully inattentive to ethnicity. As to the former, the trial court is the better and prescribed judge of credibility; we find nothing in the record to indicate that accepting the response was clearly erroneous. As to the latter, if the prosecutors were inattentive to ethnicity, they acted in accord with the color-blind selection process Batson promotes; that case requires race neutrality, not affirmative action. Though asking questions about his experience as an accused might have dispelled the State's belief that he would be a bad State's juror, the failure to ask those questions does not make the belief racially discriminatory or pretextual; Batson does not prohibit peremptory exclusion of jurors who have been accused of crimes.

Iyarodes Garcia. The prosecutor stated she struck Garcia because Garcia was too young, said rehabilitation was the main reason for punishment, gave responses in the punishment area that the prosecutor did not like, wavered in her answer to a question regarding whether she could convict based on one witness's testimony, and had difficulty convicting based on one witness's testimony. Again, the prosecutor did not recall specific instances of nonresponsiveness, but felt that Garcia's demeanor was too quiet. She testified that youth was a factor, not in isolation, but when combined with her reticence.

Alvarado challenges these explanations. He focuses on the fact that the State struck only two of the six jurors who were Garcia's age or younger. He contends that Garcia's responses to the queries on punishment and one-witness convictions were not anti-State. With regard to whether punishment or rehabilitation was a greater goal, Garcia said, "I think rehab because they're going to be away from society for so long that's a punishment there. They're going to eventually get out, so it would be better for them to learn something, to learn what is wrong and what not to do." Alvarado compares her with Ms. Morgan, a venire member not struck, who said rehabilitation was more important. Also, when asked whether she could convict based on one witness's testimony, Garcia responded, "It would depend on the evidence and if the witness was credible."

The State's main response is that it struck Garcia for a combination of factors, not age alone. The State notes that one of the young venire members it did not strike was Hispanic. The State also notes that Morgan initially said that rehabilitation and punishment were both important, but chose rehabilitation when forced to choose. The State does not attempt to explain why Garcia's response to the one-witness question was a tenable reason to strike Garcia.

While Garcia's responses may be sensible and appealing, we see no clear error in the court's refusal to find race or ethnicity-based discrimination in the State's strike. Nothing in Batson prevents the State from seeking to empanel a jury that favors retribution over rehabilitation. Garcia's response, favoring rehabilitation, clearly put her outside that camp and arguably further away than Morgan, who favored rehabilitation only when required to choose. The court did not err if it accepted the State's explanation that youth was merely a factor in the decision. Alvarado proved neither race or ethnicity-consciousness nor pretext in the State's reasons for the strike.

Patricia Rodriguez. The prosecutor said she felt Rodriguez was too young, had a lot of trouble and was hesitant in responding to questions, did not make eye contact, lacked sufficient ties to the community based on a limited work record (nine days on the job), and lacked the maturity to sit on a serious case based on her response that her hobby was watching her boyfriend play basketball in the park. The prosecutor denied that she had a threshold age for jurors, but said age was a factor in her determinations.

Alvarado assails all these reasons. He reiterates that panelists younger than Rodriguez served on the jury. He asserts that the record does not reveal hesitance, lack of eye contact, or shyness. He touts her lifetime residence in Travis County as sufficient ties to the community. He complains that the State's criticism of her hobby is illogical, not supported by the record, and the product of extremely subjective reasoning by the prosecution.

Batson and its progeny do not preclude subjective reasoning, however, so long as it is not race or ethnicity-based. The State can seek to empanel mature, independent-minded women--particularly for a case of aggravated sexual assault by a man against a woman--and a woman who lists watching her boyfriend recreate at a park as one of two hobbies might not fit that definition as well as others; the reasoning is not so strained as to nullify the explanation. While the record does not reflect all aspects of Rodriguez's deportment, it does show the prosecutor asking her to speak up once and defense counsel feeling the need to rephrase a question to alleviate confusion; these instances support the State's characterization of Rodriguez. The prosecutor clarified in her testimony that the community tie Rodriguez lacked was work experience, not length of residence; nine days on the job is fairly brief. We cannot say that the trial court clearly erred by declining to find that the State struck Rodriguez for her ethnicity.

 
Conclusion

The State provided race-neutral explanations for each of the three challenged strikes. Alvarado undercut some of the consistency and logical basis for these explanations, but did not show them to be so unreasoned as to be mere pretexts. Nor did he introduce any evidence or raise an inference that the State had a race or ethnicity-based reason for any of the strikes. We overrule points one and two. We affirm the judgment.

 

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith

Affirmed

Filed: August 14, 1997

Do Not Publish

ment there. They're going to eventually get out, so it would be better for them to learn something, to learn what is wrong and what not to do." Alvarado compares her with Ms. Morgan, a venire member not struck, who said rehabilitation was more important. Also, when asked whether she could convict based on one witness's testimony, Garcia responded, "It would depend on the evidence and if the witness was credible."

The State's main response is that it struck Garcia for a combination of factors, not age alone. The State notes that one of the young venire members it did not strike was Hispanic. The State also notes that Morgan initially said that rehabilitation and punishment were both important, but chose rehabilitation when forced to choose. The State does not attempt to explain why Garcia's response to the one-witness question was a tenable reason to strike Garcia.

While Garcia's responses may be sensible and appealing, we see no clear error in the court's refusal to find race or ethnicity-based discrimination in the State's strike. Nothing in Batson prevents the State from seeking to empanel a jury that favors retribution over rehabilitation. Garcia's response, favoring rehabilitation, clearly put her outside that camp and arguably further away than Morgan, who favored rehabilitation only when required to choose. The court did not err if it accepted the State's explanation that youth was merely a factor in the decision. Alvarado proved neither race or ethnicity-consci