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Click here for the full text of this decision FACTS:According to Bryan Keith Watkins, the 5th Court of Appeals erred in failing to hold that the state struck Pamela Berry and Leonardine Davis, two African-American veniremembers, on the basis of their race. The 5th Court found that there was no need to inquire whether Watkins had made out a prima facie case, because the state explained the reasons for its peremptory strikes. The 5th Court then rejected Watkins’ comparative juror analysis. Even if some of the non-African-American veniremembers gave similar answers to those that the state asserted as the bases for its peremptory challenges against African-Americans, the 5th Court reasoned, such apparently disparate treatment does not automatically impugn the prosecutor’s race-neutral explanation. The 5th Court found Watkins’ reliance upon the 2005 U.S. Supreme Court case Miller-El v. Dretke to be unavailing, because that opinion simply “reaffirms prior case law that prohibits disparate treatment among jurors and does not announce any new elements or criteria for determining a Batson claim.” Watkins complained to the CCA both that the 5th Court’s comparative juror analysis was flawed and that, in any event, the 5th Court failed even to address other relevant components of the pretext analysis that were broached in his appellate brief. Beyond a comparative juror argument, Watkins also argued on appeal that: 1. the state used its peremptory challenges at a disproportionate rate to strike African-American veniremembers; the state directed questions designed to set up peremptory challenges at a disproportionate rate to African-American veniremembers; the trial court actually found that one of the African-American veniremembers had been struck in violation of Batson, suggesting that all of the other disproportionate strikes were likewise the result of purposeful discrimination; and a study conducted by the Dallas Morning News demonstrated that a pattern of racially motivated peremptory challenges persists in Dallas County. HOLDING:Affirmed. Under Batson v. Kentucky, the CCA stated, a criminal defendant may demonstrate that the state has engaged in purposeful discrimination in the exercise of its peremptory challenges “by relying solely on the facts concerning [jury] selection in his case.” Proof of systematic exclusion of minority jurors over the course of an extended period of time is no longer required. The defendant must demonstrate, by a preponderance of the evidence, that the prosecutor indulged in purposeful discrimination against a member of a constitutionally protected class in exercising his peremptory challenges. As the process has been described by the Supreme Court: “Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.” Whether the opponent carries his burden, the CCA stated, to show that the proponent’s facially race-neutral explanation for his strike is pretext for discrimination is a question of fact for the trial court to resolve in the first instance. On appeal, the CCA stated, a reviewing court should not overturn the trial court’s resolution of the Batson issue unless it determines that the trial court’s ruling was clearly erroneous. Referring to the Miller-El case, however, the CCA noted that deference to a trial court does not preclude relief. In that case, the Supreme Court found that the defendant in Miller-El demonstrated by clear and convincing evidence that prosecutors exercised two peremptory challenges on a racially discriminatory basis, notwithstanding the race-neutral explanations they offered at the Batson hearing. In Miller-El, the Supreme Court found that the state exercised its peremptory challenges to eliminate a far greater proportion of the African-American veniremembers than the non-African-American veniremembers; the reasons the state asserted for eliminating the two African-American veniremembers in question appeared to apply equally well to many of the non-African-American veniremembers whom the state did not challenge; that the state utilized its option to shuffle the jury panels in a manner that supported an inference of race discrimination; that the state directed questions expressly designed to elicit grounds for peremptory challenges disproportionately, in a manner that suggested an intent to single out African-American veniremembers for elimination; and that the particular county in which Miller-El was prosecuted had followed a formal policy to exclude minorities from jury service, as evidenced by a training manual that was still in circulation at the time of Miller-El’s trial and was known to at least one of the prosecutors at his trial. Viewing the collective and cumulative impact of those nonexclusive factors, the Supreme Court observed that “its direction is too powerful to conclude anything but discrimination.” Watkins contended that, as in Miller-El, the cumulation of all the relevant considerations demonstrated that the trial court’s failure to recognize that two of the African-American veniremembers on his panel were struck on the basis of their race was clearly erroneous. He argued that the 5th Court did not even address all of the circumstances he identified in his appellate brief in support of this conclusion. The CCA agreed that the 5th Court failed to address all of the factors relevant to the determination of whether the prosecutor’s explanations were pretextual and purposeful discrimination occurred. But the CCA stated: “[W]hen we take all of those factors into consideration, we hold that the court of appeals did not err in finding that the trial court’s determination that no discrimination occurred was not clearly erroneous.” Explaining its analysis, the CCA first stated that the state offered evidence at the Batson hearing showing race-neutral reasons for the peremptory challenges of the jurors. Pamela Berry stated that she would need to hear “overwhelming facts” to be able to give a life sentence. As for prospective juror Leonardine Davis, she indicated that she would hold the state to a higher burden than proof beyond a reasonable doubt. Second, the CCA stated that disproportionate use of peremptory challenges would serve to establish a prima facie case for purposeful discrimination, were one required on the facts of this case. Beyond that, “it also serves to support the appellant’s ultimate burden of persuasion that the State’s proffered race-neutral explanations are a sham.” But disproportionality, the CCA stated, does not alone establish that the state’s explanations were not pretextual. In Miller-El, the CCA stated, it was the combined weight of all the factors suggesting pretext that ultimately convinced the Supreme Court that the deference ordinarily accorded to the state court’s judgment was inappropriate. Thus, the CCA stated that a reviewing court should look to all relevant factors in deciding whether the trial court’s finding was clearly erroneous. Third, the CCA addressed disparate questioning of the venire panel members. 45 percent (four of nine) of the panel members whom the state singled out for questioning about their ability to convict based upon circumstantial evidence were African-American, even though only 22 percent (eight of 37) of the veniremembers who ultimately proved to be in range for selection on the jury were African-American. This means that the prosecutor singled out African-Americans for questioning on this topic at approximately twice the rate that one would expect from a random selection. The CCA, however, found that the prosecutor singled out African-Americans during one line of questioning and did not single out African-Americans in other lines of questioning. Thus, the trial court found no pretext. On the evidence of the case, the CCA found no basis for a conclusion that the trial court clearly erred. The CCA also agreed with the 5th Court of Appeals that a comparative juror analysis yielded no evidence of pretext. The CCA then examined the trial court’s finding that one of the state’s peremptory challenges, against prospective juror Latonya Jones, was impermissible. The state tried to exercise a challenge against Jones, because she had once voted to acquit in a domestic violence case. The trial court overruled the strike and placed her on the jury. Watkins argued that this finding constituted a compelling basis for concluding that the peremptory challenges the state exercised against Berry and Davis were likewise pretextual. The CCA stated: “As we view the record, however, it is unclear that the trial court did in fact find that the State’s race-neutral explanation for its strike against Jones was pretextual. The trial court might have found, instead, that the State’s explanation was not race-neutral on its face. If that is the case, it would lend less weight to the argument that the State’s explanations of its peremptory challenges of the other African-American veniremen, which the trial court found to be race neutral, were a sham.” On balance, the CCA stated, it agreed with Watkins that the trial court’s action in placing Jones back on the jury was a circumstance that cuts in favor of a conclusion that the prosecutor’s other peremptory challenges were race-based. But the CCA stated: “[W]e do not think it necessarily compels that conclusion, even in combination with other factors that support an argument of pretext. We regard it as a circumstance that weighs tenuously in the appellant’s favor, to be factored into the totality of circumstances in deciding whether the trial court clearly erred in failing to find that prospective jurors Berry and Davis were excluded on account of their race.” Finally, Watkins urged the CCA to consider a study commissioned by The Dallas Morning News that he contended shows a continuing pattern on Dallas County’s part of exercising peremptory challenges in a racially discriminatory manner. The CCA found that the 5th Court did not err in refusing to judicially notice the study. “To do so,” the CCA stated, “would have put the State at a distinct disadvantage in our adversarial system, because (if for no other reason than) the State would have been given no opportunity to challenge the integrity or provenance of the study.” Because Watkins did not adequately establish the indisputability of The Dallas Morning News study, he did not demonstrate that judicial notice on appeal was necessary to avoid an unjust judgment. OPINION:Price, J., delivered the opinion of the court in which Meyers, Womack, Johnson, Keasler, Hervey, Holcomb and Cochran, JJ., joined. CONCURRENCE:Keller, P.J., filed a concurring opinion. “A big part of appellant’s Batson argument is his claim that a comparative analysis shows disparate treatment of similarly situated jurors by the prosecution. Appellant concedes that he made no comparative arguments to the trial court but claims that he was not required to under Young v. State. Appellant is correct about our holding in Young, but I believe Young was wrongly decided and should be overruled.”

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