Hunter v. State

896 S.W.2d 397, 1995 Tex. App. LEXIS 690, 1995 WL 135674
CourtCourt of Appeals of Texas
DecidedMarch 30, 1995
DocketNo. 2-93-426-CR
StatusPublished
Cited by1 cases

This text of 896 S.W.2d 397 (Hunter v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hunter v. State, 896 S.W.2d 397, 1995 Tex. App. LEXIS 690, 1995 WL 135674 (Tex. Ct. App. 1995).

Opinion

OPINION

DAY, Justice.

Appellant Jerred J. Hunter brings three points of error challenging a sentence of incarceration for 75 years handed down by a jury after his conviction for the offense of aggravated sexual assault. See TEX.PENAL CODE ANN. § 22.021 (Vernon 1994). We overrule appellant’s points of error and affirm the judgment of the trial court.

BACKGROUND

Appellant was previously convicted of aggravated sexual assault in connection with an attack on H.W., a sixteen-year-old high school student. His conviction was affirmed by this court in an unpublished opinion, but the Court of Criminal Appeals reversed and remanded for a new trial on punishment in Grunsfeld v. State, 843 S.W.2d 521 (Tex. Crim.App.1992). The instant appeal stems solely from the new trial on punishment.

POINT OF ERROR ONE

Appellant first complains that the trial court erred in permitting the prosecutor to excuse an African-American juror for racial reasons. At the conclusion of voir dire, appellant complained that the State had exercised one of its peremptory challenges against Juror No. 2, Emmett Stevenson, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

Appellant says the voir dire questions of African-American panel members were in no way distinctive, nor did they elicit any information that would, on its face, justify the use of a peremptory challenge of the jurors. Appellant says Stevenson indicated that in the absence of any knowledge of the facts or circumstances of the case, he would lean towards the lower end of the punishment range, an answer appellant claims was substantially similar to that of a white juror, Juror No. 3, who was not stricken. Appellant says he established a prima facie case of racial use of a peremptory challenge by the State and that the State failed to meet its burden to provide a racially neutral explanation for the strike.

[399]*399The State responds that during voir dire, venirepersons Stevenson, Friedman, and Abbe indicated that they thought a life sentence would be too harsh for the offense of aggravated sexual assault. In addition to Stevenson, Friedman and Abbe were peremptorily stricken by the State, which says such responses were particularly troubling given that the trial was solely for the determination of punishment. The State says that at the time appellant raised his Batson challenge, the trial court stated it had also noted that Stevenson said he would lean toward the lower end of the punishment range and that while such a response would not make him challengeable for cause, it was considered an adequate, race-neutral reason for the peremptory strike.

The State disputes appellant’s claim that Haynes, a white juror, was seated on the panel despite having made the same response to a similar question during voir dire. The State asserts that Haynes’ comment that he would have to wait until the evidence was in before determining punishment differed from that of Stevenson, who said “I don’t know anything about the facts. I would go to the lower end.”

The State says Stevenson was struck because he favored minimal punishment for the offense of aggravated sexual assault and that it was seeking jurors who could impose the maximum sentence, a permissible motive under Yarbough v. State, 732 S.W.2d 86, 90 (Tex.App.—Dallas 1987), rev’d on other grounds, 761 S.W.2d 17 (Tex.Crim.App.1988). The State cites Green v. State, 839 S.W.2d 935, 938-39 (Tex.App.—Waco 1992, pet. ref 'd) for the proposition that a strike against a juror who favors the low end of the punishment range is race-neutral. The State claims appellant failed at trial to offer any evidence showing the explanations of the State were a sham or pretext and that appellant failed to cross-examine the prosecutor at trial. It further argues that on appeal, he has not shown anything that would indicate the State’s explanations were false or inaccurate and that in such an instance, a defendant will not be permitted on appeal to offer reasons why the explanations were not race-neutral.

Because the State offered race-neutral reasons for its strike of Stevenson and the trial court found no purposeful racial discrimination, we do not review whether appellant made a prima facie case of purposeful discrimination based on race. See Sterling v. State, 830 S.W.2d 114, 118 (Tex.Crim.App.), cert. denied, — U.S.-, 113 S.Ct. 816, 121 L.Ed.2d 688 (1992); Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App.), ceri. denied,—U.S.-, 113 S.Ct. 297, 121 L.Ed.2d 221 (1992). When race-neutral explanations are offered, the defendant has the burden to persuade the trial court that the challenge is racially motivated in fact. Lewis v. State, 815 S.W.2d 560, 563-64 (Tex.Crim. App.1991), cert. denied, 503 U.S. 920, 112 S.Ct. 1296, 117 L.Ed.2d 519 (1992). The defendant must prove affirmatively that the State’s race-neutral explanations were a sham or pretext. Webb v. State, 840 S.W.2d 543, 544 (Tex.App.—Dallas 1992, no pet.). That burden is not met by the defendant merely disagreeing with the State’s explanations. Id.

In reviewing the trial court’s findings on a Batson objection, an appellate court applies the “clearly erroneous” standard of review. Tennard v. State, 802 S.W.2d 678, 680 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1991). The role of the reviewing court is not to determine whether the prosecutor’s explanations are credible, but rather whether the trial court’s ruling on the Batson objection is supported by the record and therefore not clearly erroneous. Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Crim.App.1989) (op. on reh’g). We review the evidence in the light most favorable to the trial court’s ruling. Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim.App.1992), cert. denied, — U.S.-, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993). The trial court’s finding will be disturbed only if the reviewing court is left with the definite and firm conviction that a mistake has been committed. Hughes v. State, 850 S.W.2d 260, 267 (Tex.App. — Fort Worth 1993, pet. ref'd).

Venirepersons Friedman and Abbe, who indicated that a life prison sentence for [400]*400aggravated sexual assault seemed unduly harsh, were stricken from the panel. Thus, we find that the State struck white members of the venire who had responded similarly to Stevenson. Additionally, we distinguish the comments made by Haynes from those made by Stevenson.

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896 S.W.2d 397, 1995 Tex. App. LEXIS 690, 1995 WL 135674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunter-v-state-texapp-1995.