James Blackman v. State , 394 S.W.3d 264 ( 2012 )

Opinion issued October 11, 2012.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-08-00138-CR
———————————
JAMES BLACKMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Case No. 1121171
OPINION
A jury found appellant, James Blackman, guilty of the offense of possession
with the intent to deliver a controlled substance, namely cocaine,1 and assessed his
1
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.002(5), 481.102(3)(D),
481.112(a), (f) (Vernon 2010).
punishment at confinement for thirty years. In three points of error, appellant
contends that the evidence is legally and factually insufficient to support his
conviction and the trial court erred in denying his Batson2 challenge.
We previously held that the evidence is legally insufficient to support
appellant’s conviction for the offense of possession of a controlled substance with
intent to deliver. Blackman v. State, 349 S.W.3d 10, 24 (Tex. App.—Houston [1st
Dist.] 2009), rev’d, 350 S.W.3d 588 (Tex. Crim. App. 2011). Having so held, we
did not address appellant’s second and third points of error. Id. The Texas Court
of Criminal Appeals, concluding that legally-sufficient evidence supports
appellant’s conviction, reversed our judgment and remanded the case to us to
address appellant’s remaining points. Blackman v. State, 350 S.W.3d 588, 596
(Tex. Crim. App. 2011). Additionally, we now review, in criminal cases, the
factual sufficiency of the evidence under the same appellate standard of review as
that for legal sufficiency. Ervin v. State, 331 S.W.3d 49, 52–55 (Tex. App.—
Houston [1st Dist.] 2010, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 894–
913 (Tex. Crim. App. 2010)). Accordingly, the only remaining point is appellant’s
Batson challenge.
We reverse and remand.
2
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).
2
Background
During its voir dire, the State asked a series of questions of certain venire
members who had indicated that they had previously served on a jury in a criminal
case, including venire member number 6, Ms. J. Fortune. The State asked Fortune
about the type of criminal case that she had served on, and she answered, “It was a
case where the person was accused of breaking and entering in a building or
something.” In response to further questioning, she stated that the case involved a
burglary of a habitation and she had served on the jury “about three years ago.”
When asked whether the jury had been “called in to assess punishment in the
case,” Fortune replied, “No.” The State did not ask whether the jury had reached a
verdict. When asked whether her prior jury service “would influence or impact
[her] ability to be a fair and impartial juror in this case,” Fortune replied, “No.”
The State did not direct any further questions to Fortune. During appellant’s voir
dire, Fortune agreed, along with other jurors who were questioned about the
matter, that it was possible for a police officer to be untruthful on the witness
stand. Appellant’s counsel did not direct any further questioning to Fortune.
The State exercised one of its peremptory challenges to strike Fortune from
the jury. Appellant objected and raised a Batson challenge to the State’s strike.
During the trial court’s Batson hearing, which was conducted at the bench,
appellant’s counsel explained that Fortune is African American and, in the “initial
3
panel[,] except for those blacks that were challenged for cause . . . there were only
three blacks in the available group.” He explained that the State used two of its
strikes to “eliminate” two of the three remaining African Americans from the jury.
Appellant argued that there is “nothing in the record to indicate” that Fortune had
expressed any bias and the fact that one of the remaining African-American venire
members was seated on the jury did not excuse the State’s conduct.
In response, the trial prosecutor explained that he struck Fortune based upon
a “vibe” that he got from her in “trying to make eye contact.” He asserted that,
before jury selection, Fortune had been “paying attention” to appellant’s counsel
“the whole time” and had “actually pointed” to the prosecutor “to tell” him that
appellant’s counsel wanted to “approach the bench.” The prosecutor also asserted
that he became “troubled” by Fortune’s responses to questions about her prior jury
service. He explained that Fortune “was the only person who used the term that
the defendant was accused of—I think burglary of a habitation for stealing
something and then we went to the part whether or not she got a verdict or this as
punishment she said they didn’t.” (Emphasis added.) The prosecutor further
explained:
I just got the feeling—by the way, she said the word accused that she
felt like he was wrongfully. I got based on the tone she was the only
person who described it as—everyone else when asked about it, they
said it was a theft case or it was this case. So, that was what troubled
me with regard to [Fortune]. As you can see, I placed Juror No. 24
4
[another African-American panel member] on the panel. There [are]
other people I struck for similar reasons.
The trial court then asked the prosecutor who he had struck for similar
reasons, and the prosecutor identified (1) a white male that he had struck because
of a bad “feel[ing]” and a lack of trust, (2) a female that he had struck because of a
bad “feel[ing],” (3) a white male that he had struck for a bad “vibe” and for
responses to questions that the prosecutor “disliked,” and (4) a white male that he
had struck because he “seemed to be engaging more” with appellant’s counsel
during voir dire.
Appellant’s counsel remarked that he was “troubled” by the prosecutor’s
explanation for striking Fortune because a defendant actually stands “accused” of a
criminal offense and is presumed innocent until proven guilty. Appellant’s counsel
also noted that the record did not indicate that the jury on which Fortune had
previously served acquitted the defendant and, thus, the prosecutor’s reasons for
striking Fortune constituted a pretext.
In response to the trial court’s further questioning of him, the prosecutor
clarified his prior explanation, noting that Fortune had stated that she had not
assessed punishment during her prior jury service. The prosecutor agreed that
Fortune had not stated that the jury on which she had served had been unable “to
reach a verdict.” He maintained, however, that the way in which Fortune had
“phrased” her answer about her prior jury service caused him “hesitation” because
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she referred to the defendant in the prior case as the “accused.” When further
asked by the trial court about Fortune’s reference to the defendant in the prior case
as an “accused,” the prosecutor explained,
I understand that, but it was the way in which she said it was and then
the fact that they did not assess punishment. I listened to it, then it
caused me hesitation to think in the tone of voice she said it, the way
the eye contact that I was not getting with her, the eye contact
[appellant’s counsel] was getting with her, the way she said I felt like
she insinuations in my mind was that the I was [sic] wrongfully
accused. I don’t know what happened, that’s all I have to go from.
And so, based on the information I have been given, that’s why that
was the concern and also coupled with it with fact [sic] that prior to if
you recall prior to [appellant’ counsel] starting up jury selection, she
had looked at —she was apparently watching him just more which is
concern of mine and then when they needed me to approach, I wasn’t
paying attention. She was looking at me and point to me saying that
[appellant’s counsel] wanted me. So, you know, I put those things
together, and I just—that’s where I come up with my concerns.
The trial court then denied appellant’s Batson challenge without explanation.
Batson Challenge
In his third point of error, appellant argues that the trial court erred in
overruling his Batson challenge to the State’s use of a peremptory strike against
Ms. Fortune3 because the State’s reasons for striking her constituted a “pretext for
racial bias.” He asserts that the State may not rely upon a bad “vibe” or a venire
member’s reference to the “accused” in a criminal case as race-neutral reasons for
striking an African American from the venire.
3
At trial, appellant also raised a Batson challenge in regard to venire member
number eleven, but appellant has dropped this challenge on appeal.
6
The use of a peremptory challenge to strike a potential juror because of race
violates the Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution. Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719
(1986). It also violates Article 35.261 of the Texas Code of Criminal Procedure.
TEX. CODE CRIM. PROC. ANN. art. 35.261 (Vernon Supp. 2012). In Batson, the
United States Supreme Court provided a three-step process for trial courts to use in
adjudicating a claim that a peremptory challenge is based on racial discrimination.
476 U.S. at 96–98, 106 S. Ct. at 1723–24; see also Snyder v. Louisiana, 552 U.S.
472, 476–78, 128 S. Ct. 1203, 1207–08 (2008); Miller-El v. Cockrell, 537 U.S.
322, 328–29, 123 S. Ct. 1029, 1035 (2003); Watkins v. State, 245 S.W.3d 444, 447
(Tex. Crim. App. 2008). First, a defendant must make a prima facie showing that
the peremptory challenge has been exercised on the basis of racial discrimination.
Cockrell, 537 U.S. at 328–29, 123 S. Ct. at 1035. Second, if the prima facie
showing has been made, the State must offer a race-neutral explanation for the
strike. Id. Third, the trial court must decide whether the defendant has shown
purposeful racial discrimination. Id.; Grant v. State, 325 S.W.3d 655, 657 (Tex.
Crim. App. 2010).
On appeal, a trial court’s ruling on the issue of discriminatory intent must be
sustained unless it is clearly erroneous. Snyder, 552 U.S. at 477–78, 128 S. Ct. at
1207. The “critical question” in determining whether the opponent of a strike has
7
proved “purposeful discrimination” is “the persuasiveness of the prosecutor’s
justification for his peremptory strike.” Cockrell, 537 U.S. at 338–39, 123 S. Ct. at
1040. The State must “stand or fall on the plausibility of [its] reasons” for striking
a juror. Miller–El v. Dretke, 545 U.S. 231, 252, 125 S. Ct. 2317, 2332 (2005).
The State’s proffer of a “pretextual explanation naturally gives rise to an inference
of discriminatory intent.” Snyder, 552 U.S. at 485, 128 S. Ct. at 1212. “[W]hen
the State’s explanation for striking a juror is clearly contrary to the evidence, . . .
there is no innocent mistake,” and the case must be “reversed for Batson error.”
Greer v. State, 310 S.W.3d 11, 16 (Tex. App.—Dallas 2009, no pet.).
On appeal, the State identifies the trial prosecutor’s stated reasons for
striking Fortune as follows: his alleged belief that the jury on which Fortune had
previously served had not reached a verdict and her statement that the jury did not
assess punishment; Fortune’s “tone” and referral to the defendant in the prior case
as the “accused”; and her overall bad “vibe,” eye contact, and demeanor with the
prosecutor in contrast to her attentiveness to appellant’s counsel (including the
alleged incident in which she “point[ed]” out to the prosecutor that he was wanted
at the bench).
There is no factual basis in the record to support the State’s argument that
the jury on which Fortune had previously served did not reach a verdict. As the
trial prosecutor agreed in subsequent clarifying remarks during the Batson hearing,
8
Fortune only stated, in response to a direct question from the prosecutor, that the
jury did not assess punishment. The prosecutor asked essentially identical
questions of venire members seven and eight regarding whether they had assessed
punishment during their prior jury service. As did Fortune, both of these venire
members, who were not African American, similarly stated that they had not
assessed punishment during their prior jury service. Despite their nearly identical
answers to the prosecutor’s question, venire members seven and eight were seated
on the jury. The State offers no explanation as to why its purported race-neutral
reason for striking Fortune, based upon the fact that she did not assess punishment
during her prior jury service, did not apply to striking these other venire members.
We conclude that the State’s purported race-neutral explanation, which changed
during the Batson hearing and ultimately is not supported by the record, for
striking Fortune based upon her prior jury service, was not genuine and was
pretextual. Thus, it “naturally gives rise to an inference of discriminatory intent.”
See Snyder, 552 U.S. at 485, 128 S. Ct. at 1212.
The other reasons provided by the State for striking Fortune generally relate
to her purported bad “vibe,” i.e., the tone of her voice, lack of eye contact with the
trial prosecutor, and her contrasting attentiveness to appellant’s counsel. The
United States Supreme Court has addressed a Batson challenge based, in part, on
similar concerns expressed about a venire member’s demeanor during voir dire.
9
See Snyder, 552 U.S. at 477–78, 128 S. Ct. at 1208. In Snyder, the Court
considered two purported race-neutral reasons offered by a prosecutor to explain
the peremptory challenge of an African-American venire member. Id. The
prosecutor explained that he had struck the African-American venire member
because he appeared “nervous” and had conflicting obligations as a student-
teacher. Id. In regard to the first stated reason of “nervousness,” the Court
acknowledged the “pivotal role” of trial courts in evaluating Batson challenges,
noting that a trial court “must evaluate not only whether the prosecutor’s demeanor
belies a discriminatory intent, but also whether the juror’s demeanor can credibly
be said to have exhibited the basis for the strike attributed to the juror by the
prosecutor.” Id. The Court explained that an appellate court must therefore defer
to a trial court’s determinations of credibility and demeanor “in the absence of
exceptional circumstances.” Id. It emphasized that deference to the trial court “is
especially appropriate where a trial judge has made a finding that an attorney
credibly relied on demeanor in exercising a strike.” Id. at 479, 128 S. Ct. at 1209.
However, the Court noted that the record in the case before it did not reflect that
the trial court had “actually made a determination concerning” the challenged
venire member’s demeanor but instead had “allowed the challenge without
explanation.” Id. Because the trial court could have relied upon the second
proffered reason for the strike, which did not concern the challenged venire
10
member’s demeanor, the Supreme Court could not “presume” that the trial court
had credited the demeanor explanation. Id.
The Supreme Court then considered the second reason for the strike, i.e., the
venire member’s conflicting obligations. The Court held that the record refuted the
prosecutor’s conflicting-obligations explanation, and it noted that the “suspicious”
nature and “implausibility” of this explanation was “reinforced” by the fact that the
prosecutor did not strike white venire members who had disclosed conflicting
obligations similar to those expressed by the struck venire member. Id. at 482–83,
128 S. Ct. at 1210–11. The Court held that, in light of the circumstances and the
absence of anything in the record to show that the trial court had credited the
prosecutor’s demeanor explanation, the trial court had clearly erred in denying the
defendant’s Batson challenge. Id. at 485–86, 128 S. Ct. at 1212.
Here, the trial court did not make a finding that the State had credibly relied
on Fortune’s demeanor or her bad “vibe” in exercising the peremptory challenge
against her. In fact, the record reveals that the trial court, based upon Fortune’s
prior jury service, actually engaged her in questioning to illustrate legal concepts to
the venire panel.4 This counters any suggestion that the trial court would have
4
During its remarks to the jury preceding voir dire, the trial court asked the venire
panel why the law does not require the State to prove something beyond “all
possible doubt.” Fortune answered that such a burden would be “close to
impossible” and so the law requires “a reasonable doubt.” The trial court
subsequently posed additional questioning to Fortune based upon the fact that she
11
credited the State’s explanation that Fortune was inattentive or was sending a bad
“vibe” in the courtroom. And there is nothing in the record to indicate that Fortune
favored appellant or appellant’s counsel. See Davis v. Fisk Elec. Co., 268 S.W.3d
508, 518 (Tex. 2008) (stating that “[p]eremptory strikes may legitimately be based
on nonverbal conduct, but permitting strikes based on an assertion that nefarious
conduct ‘happened,’ without identifying its nature and without any additional
record support, would strip Batson of meaning”).5
had previously served on a jury. In response to the trial court’s questioning,
Fortune again agreed that the State must present evidence demonstrating guilt
beyond a reasonable doubt.
5
The Texas Court of Criminal Appeals has recently stated its position that the
exercise of a peremptory challenge by the State based upon a venire member’s
purported demeanor is “considered proved” if defense counsel does not “rebut the
observation” of the State. See Nieto v. State, 365 S.W.3d 673, 680 (Tex. Crim.
App. 2012). In addressing demeanor-based challenges in its Nieto opinion, the
court of criminal appeals did not substantively discuss the United States Supreme
Court’s opinion in Snyder, which we find to be more similar to the instant case.
Nieto is distinguishable from both Snyder and the instant case because, in Nieto,
the court concluded that the State’s non-demeanor based explanation passed
muster and did not constitute a pretext. Id. at 679. Specifically, in Nieto, prior to
addressing the State’s demeanor-based challenges, the court of criminal appeals
concluded that the State’s use of a peremptory challenge to strike a venire member
because he shared the same last name as the defendant was “sensible” and race-
neutral. Id.
In contrast, here, similar to the facts in Snyder, the alternative, non-demeanor
based explanation put forth by the State for striking Fortune was pretextual.
Additionally, we note that although appellant’s trial counsel did not directly rebut
the trial prosecutor’s assertion that Fortune gave him a bad “vibe,” appellant’s trial
counsel emphasized that there was “nothing” in the record indicating that
Fortune’s prior jury service had adversely affected her ability to be an impartial
juror, and he noted that the prosecutor’s “other feelings” were “very subjective.”
The record also reflects that during the questioning of Fortune, the prosecutor did
12
The trial prosecutor did not ask any questions of Fortune indicating that he
was concerned with her general “vibe,” demeanor, or attentiveness. See id. (stating
that “[n]onverbal conduct or demeanor, often elusive and always subject to
interpretation, may well mask a race-based strike”; “verification” of non-verbal
conduct giving rise to use of peremptory strike “may come from the bench if the
court observed it,” “may be proved by the juror’s acknowledgement,” or may be
borne out by “detailed explanations of counsel”; and complained-of conduct must
“be proved and reflected in an appellate record” and identified “with some
specificity”). The substance of all of Fortune’s answers, including her use of the
term “accused” to describe a criminal defendant in a prior case, is unremarkable.
Fortune’s answers to the other questions concerning her prior jury service are
consistent with those offered by other non-African-American venire members who
the State did not strike from the jury.
not make any reference to any purported negative tone or “vibe.” Nor did the
prosecutor express any concern when Fortune referred to the defendant in the prior
case in which she had served on a jury as the “accused.” Finally, as discussed
herein, the record reveals that on at least two occasions during voir dire the trial
court engaged in a series of questions with Fortune to illustrate legal concepts to
the venire and, afterwards, the trial court thanked Fortune for participating in these
discussions. There is nothing in the record before us to substantiate a claim that
Fortune was not being attentive to all parties in the proceeding or was sending a
bad “vibe” in the courtroom.
13
We must conclude that the State offered a pretextual reason for striking
Fortune, giving rise to an adverse inference of racial discrimination. And, as in
Snyder,6 we cannot presume that the trial court relied on the trial prosecutor’s
explanation that he struck Fortune as a result of her general demeanor or bad
“vibe.” See Snyder, 552 U.S. at 479–86, 128 S. Ct. 1209–12. Accordingly, we
hold that the trial court clearly erred in denying appellant’s Batson challenge to the
State’s use of a peremptory strike against Fortune.
6
The Supreme Court has since further explained its holding in Snyder. In Thaler v.
Haynes, the Court stated that, in Snyder, it “concluded that the record refuted the
explanation that was not based on demeanor and, in light of the particular
circumstances of the case,” the prosecutor’s exercise of the peremptory challenge
“could not be sustained on the demeanor-based ground, which might not have
figured in the trial judge’s unexplained ruling.” 130 S. Ct. 1171, 1174–75 (2010).
The Court cautioned that it had not created in Snyder a blanket rule that a
“demeanor-based explanation must be rejected if the [trial court] did not observe
or cannot recall the juror’s demeanor.” Id. at 1174. Our holding is consistent with
Snyder, as further explained by Thaler, because, in this case, the State provided
both a demeanor-based explanation, which is not substantiated in the record, and a
second explanation that we have concluded is pretextual. Because the second
explanation is pretextual, we cannot presume that the trial court relied on the
State’s demeanor-based explanation. See id. at 1174–75.
14
Conclusion
We reverse the judgment of the trial court and remand for proceedings
consistent with this opinion.
Terry Jennings
Justice
Panel consists of Justices Jennings, Keyes, and Higley.
Justice Keyes, dissenting.
Publish. TEX. R. APP. P. 47.2(b).
15