OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW
MALONEY, Judge.
Michael Lee Hill, appellant herein, was convicted by a jury of aggravated robbery. V.T.C.A., Penal Code, Section 29.03. He was sentenced by the trial court to confinement for sixty years in the Texas Department of Criminal Justice, Institutional Division. Appellant appealed to the Court of Appeals alleging that the trial court erred in denying his claim that the State violated the rule of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and article 35.261 of the Texas Code of Criminal Procedure, by exercising a peremptory challenge against a black venireman in a racially discriminatory manner. The Court of Appeals reversed the conviction on the basis of appellant’s claim. Hill v. State, 787 S.W.2d 74 (Tex.App.—Dallas 1990).
The State filed a petition for discretionary review raising three grounds: (1) appellant’s claim was not timely; (2) appellant did not establish a prima facie case of purposeful discrimination; and (3) the Court of Appeals applied the wrong appellate standard of review in determining the correctness of the trial court’s finding that the prosecutor provided a race-neutral explanation for striking a prospective juror. We granted the State’s petition on all three grounds. We will affirm.
In Batson, the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution “forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable to impartially consider the State’s case against a black defendant.” Batson, 476 U.S. at 89, 106 S.Ct. at 1719.
In this case, there were five African-Americans on the venire. Two of the five were at the end of the panel and, thus, were not reached. Of the remaining three, two women sat on the jury and one male was peremptorily challenged by the prosecutor. When the appellant objected to the exclusion of the black male on the basis of Batson and article 35.261 of the Texas Code of Criminal Procedure, (V.A.C.C.P.), the prosecutor responded that he challenged the venireman “because I felt like he would identify with the defendant. He’s black, he’s male, and I didn’t like the way he responded to my questions.” The trial court overruled appellant’s objection. The Court of Appeals reversed, holding that the prosecutor violated the equal protection clause of the United States Constitution and also violated article 35.261, V.A.C.C.P., by exercising a peremptory challenge against a black venireman on the basis of his race.
I.
WAS APPELLANT’S CLAIM UNDER ART. 35.261, V.A.C.C.P. TIMELY?
Appellant voiced his objection after the venire was discharged but before the jury was sworn. The State alleges that appellant’s claim should be dismissed as untimely under the authority of Henry v. State, 729 S.W.2d 732, 737 (Tex.Cr.App.1987), where this Court held that a Batson objection must be made “after the composition of the jury is made known but before the jury is sworn and the venire panel is discharged.” 1 Subsequent to the Henry decision, however, the legislature enacted article 35.261, specifying that a Batson ob[863]*863jection can be timely interposed “[a]fter the parties have delivered their lists [of peremptory challenges] ... and before the court has impanelled the jury.” Art. 35.-261(a), V.A.C.C.P. Both Henry and article 35.261(a) require that the objection be made before the jury is impanelled, but only Henry requires that it also be made before the venire panel is discharged. Appellant contends that the time requirements of article 35.261 govern, not those set out in Henry. We agree with appellant.
In Batson, the Supreme Court did not specify the procedural mechanism for a Saisora-based objection, explaining that
[1]n light of the variety of jury selection practices followed in our state and federal trial courts, we make no attempt to instruct these courts how best to implement our holding today. For the same reason, we express no view on whether it is more appropriate in a particular case, upon a finding of discrimination ... for the trial court to discharge "the venire and select a new jury from a panel not previously associated with the case ... or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire, [citations omitted].
Batson, 476 U.S. at 100 n. 24, 106 S.Ct. at 1725, n. 24.
To codify and implement Batson in Texas, the legislature enacted article 35.-261, V.A.C.C.P. Oliver v. State, 808 S.W.2d 492 (Tex.Cr.App.1991); Carrion v. State, 802 S.W.2d 83, 87-88 (Tex.App.—Austin 1990). We have held that article 35.261 was “intended to create uniform procedures and remedies to address claimed constitutional violations during jury selection.” Oliver, at 496. Therefore, whenever a claim is made that veniremembers were peremptorily challenged on the basis of their race, article 35.261 must be followed.
Article 35.261, V.A.C.C.P., provides:
(a) After the parties have delivered their lists [of peremptory challenges] to the clerk ... and before the court has impan-elled the jury, the defendant may request the court to dismiss the array and call a new array in the case. The court shall grant the motion of a defendant for dismissal of the array 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 pri-ma 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.
(b) If the court determines that the attorney representing the state challenged prospective jurors on the basis of race, the court shall call a new array in the case.
The Court of Appeals held that, in light of the express provisions of article 35.261, Henry, “no longer governs the timeliness of a challenge.” Hill, 787 S.W.2d at 76.
In Henry, 729 S.W.2d at 737, this Court pointed out that requiring the objection to be made before the jury is sworn and the panel is discharged allows the trial court the option of remedying the violation by either installing the challenged venire-member to the jury or discharging the jury and calling a new array. It was also suggested in Henry that when and if a remedy is eradicated, the accompanying timeliness requirements should be modified.
We have examined the legislative history of Texas House Bill 65 and Texas Senate Bill 345, 70th Legislature, and find that in enacting article 35.261, the legislature considered both of the possible remedies suggested in Henry and held numerous hearings and debates to determine which remedy was best. Ultimately, they elected to [864]*864have the sole remedy be the call of a new array. This remedy was chosen to eliminate any possible bias toward the State which might exist if the remedy were to seat a venireman whom the State had just struck. The Senate countered House Bill 65, requiring the impanelment of a new array as a remedy, with Senate Bill 345 which would leave it to the trial court’s discretion to either call a new array or reseat the improperly struck venireman. See Senate Committee on Criminal Justice Debate of Senate Bill 345, February 21, 1989. This bill was defeated and the original House version (House Bill 65) became article 35.261. Thus, the legislature clearly rejected the requirement that the objection be made before the venire is discharged. Art. 35.261(b), V.A.C.C.P.
As we noted in Henry, when the only possible remedy is the call of a new array, the objection to the strike need not be lodged before the venire is discharged since the venire will no longer be needed whether the objection is sustained or not.2 When the legislature speaks to an issue subsequent to this or any other court’s decision on the issue, and the effect of the legislation is to modify existing caselaw, the statute shall control unless it is unconstitutional.3
The State alleges that this Court has already interpreted article 35.261 to include the Henry time limits and that, since the legislature has not acted to amend the statute to specifically exclude those time requirements, we should continue to apply them.4 The State relies on this Court’s decisions in Brown v. State, 769 S.W.2d 565 (Tex.Cr.App.1989) and Cooper v. State, 791 S.W.2d 80 (Tex.Cr.App.1990). But these cases do not support the State’s argument. Brown’s trial occurred prior to the effective date of article 35.261 and, therefore, Henry was applicable to his trial. Although Cooper’s trial did occur after the effective date of article 35.261, we noted that the statute was “not mentioned by the parties or the Court of Appeals.” Cooper, 791 S.W.2d at 81. Thus, we were not called upon to interpret the effect of article 35.261 in that case.
We now hold that Henry is inapplicable to the timeliness of any equal protection claim arising from the racially discriminatory exercise of a peremptory challenge after the effective date of article 35.261. Since appellant’s trial occurred after the effective date of article 35.261, the provisions of article 35.261 apply. For the objection to be timely it must have been raised “[ajfter the parties ... delivered their lists ... and before the court ... impanelled the jury”. Art. 35.261(a), V.A.C.C.P. A jury is considered “impanelled” when the members of the jury have been both selected and sworn. Price v. State, 782 S.W.2d 266 (Tex.App.—Beaumont 1989). See also, Woolls v. State, 665 S.W.2d 455 (Tex.Cr.App.1983); Reese v. State, 151 S.W.2d 828 (Tex.Cr.App.1941).
Here, appellant lodged his objection after the peremptory strike list had been delivered and the stricken veniremembers [865]*865excused, but before the jury was sworn, As the Court of Appeals correctly held, appellant met the requirements of article 35.261(a) and, therefore, his objection was timely.
II.
WAS THERE A PRIMA FACIE SHOWING OF RACIAL DISCRIMINATION?
In its second ground for review the State alleges that the Court of Appeals erred in holding that appellant made a prima facie showing of racial discrimination.
The United States Supreme Court recently held that where a prosecutor has articulated the reasons for his allegedly racially discriminatory peremptory challenges “without any prompting or inquiry from the trial court” and “the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a pri-ma facie showing becomes moot.” Hernandez v. New York, — U.S. -, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991). Likewise, this Court has noted that “[a]p-pellate review should not become bogged down on the question of whether the defendant has made out a prima facie case [unless the ruling on the prima facie case] stop[s] the fact finding process.” Dewberry v. State, 776 S.W.2d 589, 591 (Tex.Cr.App.1989) [citing U.S. v. Forbes, 816 F.2d 1006, 1010 (5th Cir.1987)].5 Thus, the policy of this Court, like that of the United States Supreme Court, is that we will not review the issue of whether the defendant established a prima facie case where the prosecutor has articulated his reasons for the challenged peremptory strike and the trial court has ruled on the ultimate question of intentional discrimination.
In this case the prosecutor articulated all of his reasons for the exercise of his challenged peremptory strike, appellant cross-examined him, and the trial judge entered his finding. Whether the appellant established a prima facie case is a moot issue,
III.
THE STANDARD FOR REVIEW
In its third ground for review the State contends that the Court of Appeals erred by applying an incorrect standard of appellate review. The State asserts that the correct standard of review is “clearly erroneous” and cites as authority Hernandez v. New York, — U.S. -, 111 S.Ct. 1859, 1871, 114 L.Ed.2d 395 (1991) (“[W]e decline to overturn the state [trial] court’s finding on the issue of discriminatory intent unless convinced that its determination was clearly erroneous.”).
We have held that the correct standard of review for claims that peremptory strikes were used in a racially discriminatory manner is “clearly erroneous”. Williams v. State, 804 S.W.2d 95,101 (Tex.Cr.App.1991); Tennard v. State, 802 S.W.2d 678 (Tex.Cr.App.1990); Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Cr.App.1989) (opinion on State’s motion for rehearing). To determine whether the factfinder’s decision is “clearly erroneous”, appellate courts look to the record to see if they are “left with the ‘definite and firm conviction that a mistake has been committed’.” U.S. v. Hernandez, 887 F.2d 564, 567 (5th Cir.1989); (citing and quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)).
In this case, the Court of Appeals “consider[ed] the evidence in the light most favorable to the trial judge’s rulings and determine[d] if those rulings [were] supported by the record.” Hill, 787 S.W.2d 74 at 77. In so doing, the Court of Appeals relied upon our decision in Keeton v. State, [866]*866749 S.W.2d 861, 870 (Tex.Cr.App.1988), modified by Whitsey v. State, 796 S.W.2d 707 (Tex.Cr.App.1989) (opinion on State’s motion for rehearing).
We have held that although “clearly erroneous” is the correct appellate standard of review, “supported by the record,” the appellate standard we announced in Kee-ton, was analytically and intellectually the same as “clearly erroneous”. Whitsey, at 722-724 (“adopting the clearly erroneous standard ... merely extend[s] the ‘supported by the record’ standard to its ultimate and logical conclusion”); Williams, 804 S.W.2d 95.
Since the standard utilized by the Court of Appeals is the functional equivalent of the “clearly erroneous” standard, we cannot say that the Court of Appeals’ approach was incorrect. However, we disavow the nomenclature which the Court of Appeals used in its appellate review.
IV.
DID APPELLANT PROVE RACIAL DISCRIMINATION?
After appellant made his objection to the prosecutor’s peremptory challenge, the prosecutor testified before the court that he challenged the venireman “because I felt like he would identify with the defendant. He’s black, he’s male, and I didn’t like the way he responded to my questions.”
The State contends that the Court of Appeals’ decision effectively creates the rule that, if a prosecutor states that the venireman’s race influenced his decision to peremptorily challenge the venireman, the defendant has conclusively proven racial discrimination. But the Court of Appeals wrote,
we must examine each of the prosecutor’s reasons for striking a black potential juror within the circumstances of the particular case to determine whether the “neutral explanation” for the strike is really a pretext for a racially motivated peremptory challenge_ We determine that the reasons given by the prosecutor for challenging [the venireman] were unrelated to the case and based on assumptions.
Hill at 78-79.
The State urges that the Court of Appeals should have accepted the prosecutor’s reason for the strike: Identity between the venireman and the appellant. The State contends that identification between the venireman and appellant can be a legitimate race-neutral reason for the exercise of a peremptory challenge against the venireman, even if one of the factors relied upon to establish the identity is shared race, so long as there are other nonracial factors which also establish identity. In support of its contention, the State relies on Lee v. State, 747 S.W.2d 57 (Tex.App.—Houston [1st] 1988) (pet. ref’d.). In that case the First Court of Appeals held that the prosecutor’s announced reason for the challenge, identity between the venireman and appellant, based on the fact that they were both black males and were only ten years apart in age, was a sufficiently race-neutral reason for the strike. The Court of Appeals wrote, “[a] venireman who is similar in age and might be sympathetic for a defendant can be justifiably excluded from the jury panel.” Id. at 59. We agree that race may be a factor coexisting with a nonracial reason for a strike, however, race may not be the reason for the strike.
Since 1880 the United States Supreme Court has interpreted the Equal Protection Clause of the Fourteenth Amendment to apply to jury selection, both grand and petit. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880) (holding a West Virginia statute which prohibited black citizens from serving on grand juries violative of equal protection). The Supreme Court held in Strauder that the Fourteenth Amendment mandates that “the law in the States shall be the same for the black as for the white; that all persons ... shall stand equal before the laws of the States and, ... that no discrimination shall be [867]*867made against them by law because of their color[.]” Strauder at 307, 25 L.Ed. 665. But it wasn’t until 1965 that the Supreme Court addressed a claim that equal protection had been denied to a criminal defendant by a prosecutor’s use of peremptory strikes. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).
In Swain, the Court first noted the great role that peremptories play in our system of jurisprudence, and realized that their very purpose is to eliminate prospective jurors for reasons which may be based on feelings, rather than logic. See Id. at 220, 85 S.Ct. at 836 (“[Peremptory challenges are] exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty.”). The Court then acknowledged that it was possible that prosecutors could use peremptories to discriminate against black citizens, but required, in order for an equal protection claim to be established, proof of more than just the fact that the State exercised peremptory challenges against all the black citizens on one venire. The Court held that “[t]he presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court.”6 Id. at 222, 85 S.Ct. at 837. However, the Court also acknowledged that it was possible that the “proof might support a reasonable inference that [black citizens were] excluded from juries for reasons wholly unrelated to the outcome of the particular case on trial and that the peremptory system [was] being used to deny [black citizens] the same right and opportunity to participate in the administration of justice enjoyed by the white population.” Id. at 224, 85 S.Ct. at 838 (emphasis added). If that were the case, the Court would then recognize an Equal Protection claim. Thus, in order to prove a violation of Equal Protection, a criminal defendant was required to show a pattern of invidious discrimination in not just his case, but several cases.
In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Court was asked to “reexamine that portion of Swain ... concerning the evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State’s use of peremptory challenges to exclude members of his race from the petit jury.” Id. at 82, 106 S.Ct. at 1715. In addressing this issue the Court reviewed the history of the Equal Protection Clause.
The Court in Batson explained that “the purpose of the Fourteenth Amendment was to put an end to governmental discrimination on account of race.” Id. at 85-86, 106 S.Ct. at 1716-1717. “Discrimination within the judicial system is most pernicious because it is ‘a stimulant to that race prejudice which is an impediment to securing to [black citizens] that equal justice which the law aims to secure to all others.” Id. at 88, 106 S.Ct. at 1718 (quoting Strauder 100 U.S. at 308).
Quoting Swain 380 U.S. at 224, 85 S.Ct. at 838, the Supreme Court explained that the Equal Protection Clause makes it “impermissible for a prosecutor to use his challenges to exclude blacks from the jury ‘for reasons wholly unrelated to the outcome of the particular case on trial’ or to deny to blacks ‘the same right and opportunity to participate in the administration of justice enjoyed by the white population’ ” Batson 476 U.S. at 91, 106 S.Ct. at 1720. Further, the Court stated, “our cases concerning selection of the venire reflect the general Equal Protection principle that the ‘invidious quality’ of governmental action claimed to be racially discriminatory ‘must ultimately be traced to a racially discriminatory purpose’ ”. Id. at 93, 106 S.Ct. at 1721 (quoting Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976)).
[868]*868The overriding intent of the Equal Protection Clause, as interpreted by the Supreme Court and applied to peremptory challenges, is to protect African-Americans from discrimination against them because they are African-Americans, and to guarantee them the same rights as are enjoyed by other citizens.
The Supreme Court in Batson made it easier for a criminal defendant to prove that a prosecutor used peremptory challenges in violation of the Fourteenth Amendment than it had been under Swain. The Court held that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” Batson, 476 U.S. at 89, 106 S.Ct. at 1719. “Of course, counsel’s effort to obtain possibly relevant information about prospective jurors is to be distinguished from the practice at issue here.” Id. at- 89, n. 12, 106 S.Ct. at 1719, n. 12.
Recently, the Supreme Court recognized and held that the Fourteenth Amendment protects every race against purely racially-motivated exercises of peremptory challenges. Powers v. Ohio, — U.S. -, 111 S.Ct. 1364, 1373-1374, 113 L.Ed.2d 411 (1991). Additionally, the Supreme Court has declared that the Equal Protection clause as applied to peremptory challenges also protects prospective jurors in civil trials. Edmonson v. Leesville Concrete Co., — U.S. -, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991).
The Fourteenth Amendment mandates that all United States citizens called for jury duty shall be treated alike under the law. If a member of any race is struck “for reasons wholly unrelated to the outcome of the particular case on trial or in order to deny to [him/her] the same right and opportunity to participate in the administration of justice enjoyed by [others]” then the Equal Protection clause has been violated. Conversely, if a venireman is struck for reasons related to the case being tried and he would have been struck for that reason regardless of his race, the mere mention of the fact that the venireman is of a particular race does not automatically establish a Batson claim.7
The Equal Protection clause is designed to protect all citizens from being discriminated against because of their race. It does not protect them from a peremptory challenge levelled against them because of the prosecutor’s reasonable belief that they can not be sufficiently impartial in the particular case on which they would sit as a juror. Unless racial discrimination against a venireman is established by the party raising the claim, the Equal Protection Clause is not implicated. Although courts must be cautious in their determination of the prosecutor’s intent for the strike when he mentions race, we can conceive of scenarios in which the race of the venireman could be related to the particular case to be tried in such a way as to create a biased jury if race were not considered by the litigants in exercising their peremptory strikes.8 This case does not present such a scenario.
The State alleges that there was “identity” between the venireman and appellant, however, the only evidence of similarity between the venireman and appellant was that they were both black males. The prosecutor did not articulate any other similarity.
[869]*869Batson specifically provides that a “prosecutor may not rebut the defendant’s prima facie case of discrimination [based upon the prosecutor’s use of peremptory challenges] by stating merely that he challenged jurors of the defendant’s race on the assumption—or his intuitive judgment—that they would be partial to the defendant because of their shared race.” Batson, 476 U.S. at 98, 106 S.Ct. at 1724. “[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” Batson, at 89, 106 S.Ct. at 1719.
Thus the alleged identity between the venireman and appellant, based only on the shared sex and shared race of the venireman and appellant, does not escape Batson’s prohibition against making the assumption that because the defendant and the venireman are of the same race they would identify with each other. If there were other significant similarities between appellant and the venireman, then race might have been one of those similarities which established empathy between appellant and the venireman. The Court of Appeals is correct in holding that this is not sufficient to establish a constitutional, non-race based identity. Insofar as the language of Lee v. State, 747 S.W.2d 57, conflicts with this opinion it is expressly disavowed.
The fact that the prosecutor mentioned race as part of his explanation for his peremptory challenge to establish an identity which is not present is indicative of purposeful discrimination in this case, but it is not conclusive. Appellant still must prove racial discrimination. Art. 35.261(a), V.A.C.C.P. In other words, appellant must show that the prosecutor’s other explanations for his challenge were merely a pretext for discrimination. See Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Cr.App.1989) (opinion on State’s motion for rehearing).
As the Court of Appeals found, the prosecutor stated that he challenged the venireman “because I felt like he would identify with the defendant. He’s black, he’s male, and I didn’t like the way he responded to my questions.” Hill, at 78. After examining the prosecutor’s voir dire of the venireman in its entirety, the Court of Appeals found that it was perfunctory: “there were no meaningful questions asked upon which to challenge a juror.” Id.
The exchange between the prosecutor and the black venireman who was subsequently struck and about whom the appel-lee raised his Batson claim, consisted of the following:
Prosecutor: Is that [venireman’s last name]? Is that right, sir?
Venireman: Uh-huh.
Prosecutor: What do you do for AT & T?
Venireman: I’m a data tech—
Prosecutor: Pardon me?
Venireman: A data technician.
Prosecutor: A data technician? How long—I can barely read that. How long have you been with that company?
Venireman: Twenty years.
Prosecutor: Can you think of any reason why you would not be fair and impartial in this particular case?
Venireman: No.
Prosecutor: Okay.
We agree that the State’s voir dire examination of this venireman was perfunctory. We must examine the rest of the prosecutor’s reasons for this strike in light of his perfunctory voir dire. See Whitsey, 796 S.W.2d at 713. The prosecutor’s additional reasons were: “[I] didn’t like the way he [the venireman] responded to my questions ... his attitude, his demeanor.”
The only other statements made by the venireman were made in response to appellant’s questions. When asked by appellant’s counsel about his prior contact with criminal activity, the venireman responded [870]*870that his coworker had been robbed. He stated, however, that knowing the facts of his friend’s case would not bias him in any way. When asked if he could give the defendant the benefit of “your individual judgment?” he answered, “without a doubt.”
As can be seen from the reproduction of the voir dire, above, there is nothing to suggest that the venireman was hostile to the State. Illustrative of this point, when asked what answers the venireman gave that he didn’t like, the prosecutor answered, “I’ll have to have them read back to me. I can’t remember what they were.” Because the prosecutor never mentioned any specific body language, or any other nonverbal actions which led him to believe that the venireman was biased against his case, the record speaks for itself.
Appellant has carried his burden; the prosecutor’s race-neutral reasons for the exercise of his strike were pretextual. The trial court’s finding that the peremptory challenge was exercised for race-neutral reasons is clearly erroneous. The judgment of the Court of Appeals is affirmed. This cause is remanded to the trial court.
MILLER, J., concurs in result.