Held v. State

948 S.W.2d 45, 1997 Tex. App. LEXIS 3078, 1997 WL 312447
Court of Appeals of Texas·Decided June 12, 1997·No. 14-94-01146-CR·Published·Cited by 55 cases

Opinion

OPINION

ANDERSON, Justice.

Jack Gilbert Held appeals his conviction for driving while intoxicated. Raising six points of error, he argues that the trial court erred by (1) overruling his Batson challenge, (2) admitting an officer’s testimony on the administration of horizontal gaze nystagmus testing when he was not qualified as an expert, (3) admitting the results of an intoxi-lyzer test, (4) permitting expert testimony on the level of alcohol concentration at which an individual loses his normal physical and mental capabilities, (5) permitting the expert to respond to hypothetical questions based on facts not in evidence, and (6) permitting the expert to render an opinion that appellant was intoxicated without an adequate basis for this opinion. We find all of appellant’s points of error without merit and affirm the judgment of the court below.

At approximately 1:30 a.m. on the date of the offense, Officer M.J. Ledet, a detective with the Metro police department, was patrolling north Houston when he observed appellant’s vehicle weaving randomly in and out of three lanes of traffic. Ledet stopped the vehicle. When appellant rolled down his window, Ledet smelled alcohol, noticed appellant’s eyes were red and glossy, that his speech was slurred, and that appellant appeared to be supporting himself by holding onto the side of his car. Ledet administered field sobriety tests and concluded that appellant was intoxicated. He arrested appellant and transported him to the city jail, where appellant submitted to two intoxilyzer tests. The first test revealed a blood alcohol concentration of .133 percent, and the second test showed a concentration of .118 percent. Finally, appellant was videotaped performing a number of field sobriety tests. Based on this and other evidence introduced at trial, a jury convicted appellant of driving while intoxicated.

In his first point of error, appellant argues that the trial court erred when it overruled his Batson challenge to veniremember number twelve, an African American woman, without first obtaining a race neutral reason from the State to justify the use of its peremptory strike against her. Only two African American veniremembers were within the strike range on the misdemeanor panel from which appellant’s jury was selected. One of them was successfully challenged for cause, and appellant stipulated that there *48 was no racial motivation for this particular challenge. The remaining African American was stricken by the State, leaving no members of that particular race on the jury. Appellant, who is not African American, raised a timely objection to the State’s strike and requested a Batson hearing. As his prima facie case, appellant alleged merely that the State had stricken veniremember number twelve, an African American, stating “That’s all we have, a one hundred percent exclusion of African Americans.” The court’s response was, “Proceed with your proof.” However, appellant chose to rely solely upon the fact that this single strike was exercised to establish his prima facie ease. The State responded by arguing that this evidence was insufficient to meet the appellant’s burden. The trial judge agreed, denying appellant’s challenge on the ground that “there was no evidence before this Court that there was a racially oriented peremptory challenge.”

Under Batson, a party who challenges the opposing party’s exercise of peremptory strikes on racial 1 grounds must make out a prima facie case of purposeful discrimination. Batson v. Kentucky, 476 U.S. 79, 97, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986). The burden then shifts to the other party to give neutral reasons for the strike. Id. At this point, the challenging party must persuade the trial court that the strikes were exercised in a purposefully discriminatory manner. Id. These later steps are never reached, however, if the trial court first rules that the challenging party has failed to meet his initial burden of making out a prima facie case of discrimination. 2 Bean v. State, 816 S.W.2d 115, 117 (Tex.App.-Houston [14th Dist.] 1991, no pet.).

In the Batson context, a prima facie ease is “that minimum quantity of evidence necessary to support a rational inference that the allegation of purposeful discrimination is true.” Harris v. State, 827 S.W.2d 949, 955 n. 4 (Tex.Crim.App.1992). The challenging party is entitled to rely on the fact that peremptory challenges permit discrimination by those who are of a mind to discriminate and must show that this fact, coupled with any other relevant circumstances, raises an inference of the discriminatory exercise of peremptory strikes. Id. at 955; Godine v. State, 874 S.W.2d 197, 203 (Tex.App.-Houston [14th Dist.] 1994, no pet.). As the party with the burden of proof, appellant was required to produce this evidence to avoid a finding that the allegation of purposeful discrimination was not true as a matter of law. Dewberry v. State, 776 S.W.2d 589, 590 (Tex.Crim.App.1989).

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Held v. State, 948 S.W.2d 45, 1997 Tex. App. LEXIS 3078, 1997 WL 312447 (Tex. Ct. App. 1997).

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