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Click here for the full text of this decision FACTS:Based on prosecution questioning of the entire venire, the parties believed that veniremembers 7 and 11 expressed reservations about convicting a defendant based on one witness’ testimony. (The CCA states that the record does not clearly reflect this view, but rather merely shows that No. 7 expressed reservations about convicting based on one witness, while No. 11 arguably did not have these reservations if the one witness was an eyewitness.) The prosecution used a peremptory challenge to strike No. 11. Appellant claimed that this violated the U.S. Supreme Court’s 1986 decision in Batson v. Kentucky, arguing it was race-based, since the prosecutor didn’t strike No. 7. After the prosecutor provided reasons for the different treatment, the trial court denied appellant’s Batson motion. The 13th Court of Appeals decided that the prosecutor did use a race-based peremptory challenge, because the only difference between No. 7 and No. 11 was their race. The Court of Criminal Appeals granted discretionary review to determine whether the 13th Court erred by finding the trial court’s ruling to be clearly erroneous. HOLDING:Reversed and remanded. The CCA finds that the 13th Court misapplied the clearly erroneous appellate standard of review. The CCA states that the 13th Court applied the correct substantive legal standard by examining the genuineness � instead of the reasonableness � of the prosecutor’s asserted nonracial motive for peremptorily striking No. 11. The 13th Court also correctly recognized that appellate courts must apply a “clearly erroneous” standard of appellate review to a trial court’s ruling on a Batson claim. However, the CCA finds that the 13th Court misapplied that standard by substituting its judgment for the trial court’s, in deciding that the prosecutor’s facially race-neutral explanation for striking No. 11 was a pretext. The term “pretext” is solely a question of fact; there is no issue of law. Therefore, the trial court was in the best position to make that credibility determination. In addition, even with characterizing both No. 7 and No. 11 as having initially expressed reservations about convicting based on one witness’ testimony, the trial court could have reasonably determined that the prosecutor genuinely believed (whether actually true or not) that No. 7 and No. 11 ultimately were not the same because No. 7 “qualified his answer” on the one-witness issue during questioning by the defense. No. 7 also stated that he believed a defendant should testify and “explain his part.” The trial court could have reasonably determined that this was another genuine race-neutral motivation explaining why the prosecutor would peremptorily strike No. 11 but not No. 7, and that the defense was overlooking this significant distinction between these two potential jurors. The court closes by stating that an appellate court should not substitute its judgment on a credibility determination for the trial court’s based on a cold record such as the one presented in this case. OPINION:Hervey, J., Keller, PJ., Hervey, Meyers, Price, Keasler, Holcomb and Cochran, JJ. Johnson, J., concurred. Womack, J., did not participate.

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