Christopher Kennedy v. State

Court of Appeals of Texas

Christopher Kennedy v. State

Court of Appeals of Texas·Decided June 11, 2015·No. 12-14-00219-CR·Published

Opinion

NO. 12-14-00219-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CHRISTOPHER DARELL KENNEDY, § APPEAL FROM THE 114TH APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Christopher Darell Kennedy appeals his conviction for the felony offense of possession of a controlled substance. In his sole issue, he contends the trial court erred in overruling his Batson1 motion. We affirm.

BACKGROUND

Officers from the Tyler Police Department, while on patrol, noticed a parked vehicle occupied by Appellant. The officers believed Appellant committed a traffic violation because he parked his vehicle more than eighteen inches from the curb. When the officers made contact with Appellant, they noticed the odor of marijuana emanating from the vehicle. Appellant admitted possessing marijuana. The officers arrested Appellant, searched his vehicle, and discovered cocaine. Appellant was arrested and indicted for possession of a controlled substance (cocaine) in an amount of one gram or more but less than four grams.

Appellant pleaded “not guilty” to the charged offense, and the case proceeded to a jury trial. Following the voir dire examination of prospective jurors, the State used two of its peremptory challenges to strike African-American potential jurors. Appellant, who is African-

1 Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69 (1986).

American, made a Batson motion complaining of the State’s strikes. After an evidentiary hearing, the trial court denied the motion.

Following the presentation of the evidence and argument, the jury found Appellant guilty of the charged offense. The jury sentenced Appellant to ten years of imprisonment and assessed a $10,000.00 fine. This appeal followed.

BATSON MOTION

In his sole issue, Appellant contends that the trial court erred in overruling his Batson motion. Standard of Review and Applicable Law The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution forbids a party from challenging potential jurors on the basis of their race. U.S. CONST. amend. XIV; Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719, 90 L. Ed. 2d 69 (1986). A trial court follows a three step process to evaluate a claim that a litigant has made a peremptory strike based on race. Snyder v. Louisiana, 552 U.S. 472, 476, 128 S. Ct. 1203, 1207, 170 L. Ed. 2d 175 (2008). First, a defendant must make a prima facie showing that the state has used a peremptory challenge to remove a potential juror on account of race. Id.; Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770, 131 L. Ed. 2d 834 (1995). A defendant may establish a prima facie case solely on evidence concerning the state’s exercise of peremptory challenges at trial. Batson, 476 U.S. at 96, 106 S. Ct. at 1723. He also must show that these facts and any other relevant circumstances raise an inference that the state has excluded potential jurors from the petit jury based on race. See id.

Once the defendant has made this prima facie showing, the burden shifts to the state to come forward with a race neutral explanation for challenging the jurors. Snyder, 552 U.S. at 476–77, 128 S. Ct. at 1207; Batson, 476 U.S. at 97–98, 106 S. Ct. at 1723–24. If the state offers race neutral reasons for the strikes, the burden shifts back to the defendant to show that the state’s race neutral explanations for the strikes are contrived or a pretext to conceal a racially discriminatory intent. See Shuffield v. State, 189 S.W.3d 782, 785 (Tex. Crim. App. 2006); Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). The credibility of a prosecutor who offers race neutral explanations for disparate striking of jurors can be measured by (1) the prosecutor’s demeanor, (2) how reasonable or how improbable the explanations are, and (3)

whether the proffered rationale has some basis in accepted trial strategy. See Miller–El v. Cockrell, 537 U.S. 322, 339, 123 S. Ct. 1029, 1040, 154 L. Ed. 2d 931 (2003). But those factors are not exclusive, and we examine all relevant factors when evaluating the prosecutor’s explanations for strikes that are alleged to be pretextual. See Miller–El v. Dretke, 545 U.S. 231, 253, 125 S. Ct. 2317, 2332, 162 L. Ed. 2d 196 (2005) (examining actual strikes, use of jury shuffle, disparity in questioning, and history of excluding racial minorities from juries).

We will disturb a trial court’s ruling on a Batson motion only if it is “clearly erroneous.”

Snyder, 552 U.S. at 477, 128 S. Ct. at 1207; Guzman v. State, 85 S.W.3d 242, 254 (Tex. Crim. App. 2002). Generally, a fact finder’s decision is clearly erroneous when it leaves an appellate court with a “definite and firm conviction that a mistake has been committed.” Guzman, 85 S.W.3d at 254. We review the evidence in the light most favorable to the trial court’s ruling and afford great deference to that ruling. Jasper, 61 S.W.3d at 422. Furthermore, a claim that the proffered race neutral reasons for strikes are pretextual presents a question of fact, and the trial court is in the best position to evaluate such claims. See Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008); Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). The ultimate plausibility of a race neutral explanation is to be considered in the context of whether the defendant has satisfied his burden to show that the strike was the product of the prosecutor’s purposeful discrimination. Watkins, 245 S.W.3d at 447. Discussion Appellant contends that the State struck all of the potential African-American jurors from the panel for non-race-neutral reasons, and consequently, he is entitled to a new trial.2 The trial court did not expressly find that Appellant made a prima facie showing of racial discrimination. However, the trial court asked the prosecutor his reasons for striking the panel’s African-American members. When questioned by Appellant’s counsel, the prosecutor specifically denied that race played any role in striking Juror 16 and Juror 21.

2 The trial court stated that it could not recall whether the strikes were exercised against all African-

American members within the strike zone. As the trial court noted on the record, Juror 23 did not answer the question regarding race or ethnicity on the juror card, and the trial court could not recall whether Juror 23 was African-American. The parties have represented that Juror 16 and Juror 21 were the only African-Americans in the strike zone.

With regard to Juror 16, the prosecutor stated that he struck her for her nonverbal responses to comments made by another potential juror. Specifically, the prosecutor reasoned as follows:

And then Juror No. 16, the primary reason for striking Juror No. 16 was when [Appellant’s counsel] was questioning the panel, she actually was questioning Juror No. 12, who he was standing up. Juror No. 12 is . . . a white male. And [Appellant’s counsel] asked him a question about the Fifth Amendment right and reasons why somebody would not testify, and his response to those questions, Juror No. 12, began to list off a number of things, reasons why somebody might not testify, because they have—anyway, quite extensive. I felt that Juror No. 12’s answers were bad for the State. I didn’t think he was a State’s juror because he seemed to express, I guess, an over favoritism towards the Defense and reasons they may not testify.

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