Opinion filed August 21, 2015

In The

Eleventh Court of Appeals 

__________

Nos. 11-14-00032-CR & 11-14-00033-CR

__________

RICKEY GENE PIPPIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 297th District Court

Tarrant County, Texas

Trial Court Cause Nos. 1224614D & 1288659D

M E M O R A N D U M O P I N I O N

The grand jury returned two indictments against Appellant, Rickey Gene 

Pippin: one for unlawful possession of a firearm and the second for bail jumping.

1

He pleaded guilty to each offense and pleaded “true” to the enhancement 

allegations that were contained in the “Habitual Offender Notice” in each 

indictment. The jury found him guilty, found the enhancement allegations in the 

habitual offender notice to be “true” for each indictment, and assessed punishment 

 

1TEX. PENAL CODE ANN. § 38.10 (Bail Jumping and Failure to Appear), § 46.04 (Unlawful 

Possession of Firearm) (West 2011).
2

at confinement for ninety-nine years in each case. The trial court sentenced him

accordingly. Appellant argues in both appeals the sole issue that the trial court 

erred when it denied his Batson2challenge. We affirm.

I. Voir Dire Proceeding

Of the sixty members that comprised the venire panel, six were AfricanAmericans: Veniremember Nos. Seven, Eight, Fourteen, Seventeen, Eighteen, and 

Forty-six. Both the State and Appellant3agreed to dismiss Veniremember Nos. 

Fourteen and Forty-six for cause. Appellant used a peremptory strike on 

Veniremember No. Seven. The State used peremptory strikes on Veniremember

Nos. Seventeen and Eighteen. Veniremember No. Eight sat on the jury. 

Appellant raised a Batson challenge against the State’s strikes of 

Veniremember Nos. Seventeen and Eighteen. The State argued that 

Veniremember No. Seventeen had previous theft charges against her and that 

Veniremember No. Eighteen had had a bad experience with police in the past. The 

State further argued that, although Veniremember No. Eighteen said he could be 

fair, he hesitated before he answered; that was why the State struck him. The trial 

court denied Appellant’s Batson challenge, and found “that the State exercised its 

challenges . . . for racially neutral reasons, and that the defense has failed to 

establish a pattern of racial discrimination.” Appellant challenges, on appeal, the 

ruling of the trial court as to Veniremember No. Eighteen.

II. Analysis

Three steps are involved in a Batson challenge to the State’s use of 

peremptory strikes. The defendant must first make a prima facie showing of racial

discrimination. Hernandez v. New York, 500 U.S. 352, 358 (1991). After the 

defendant makes a prima facie showing of racial discrimination, the State must

 

2See Batson v. Kentucky, 476 U.S. 79 (1986).

3Appellant is Caucasian. 
3

articulate a race-neutral explanation for its strike. Batson, 476 U.S. at 97–98; 

Guzman v. State, 85 S.W.3d 242, 245 (Tex. Crim. App. 2002). The third step 

requires the defendant to carry the burden of persuasion that the State’s neutral 

explanation is a “pretext” to disguise racial discrimination. Jackson v. State, 442 

S.W.3d 771, 774 (Tex. App.—Texarkana 2014, no pet.) (citing Batson, 476 U.S. at 

98); see Keeton v. State, 724 S.W.2d 58, 65 (Tex. Crim. App. 1987) (Keeton I).

The trial court must determine the fact question of whether the race-neutral reason 

proffered by the State is a mere pretext for purposeful discrimination. Watkins v. 

State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008); Jackson, 442 S.W.3d at 774.

A. Standard of Review

On a Batson challenge, we examine the evidence in the light most favorable 

to the ruling of the trial court and determine whether the record supports the 

findings of the trial court. See Keeton v. State, 749 S.W.2d 861, 870 (Tex. Crim. 

App. 1988) (Keeton II). Our review of the record is “highly deferential” to the trial 

court. Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). If the record 

contains sufficient evidence to support the trial court’s findings that there was no 

purposeful racial discrimination, those findings will not be disturbed. Id. We may 

not substitute our judgment for that of the trial court. Nieto v. State, 365 S.W.3d 

673, 681 (Tex. Crim. App. 2012). 

B. Batson Challenge: Steps One and Two

No one claimed that Appellant failed to make a prima facie showing of 

racial discrimination under the first step. Moving to the second step, the State had 

to provide a race-neutral explanation for its strike. A race-neutral explanation 

“means an explanation based on something other than the race of the 

juror.” Hernandez, 500 U.S. at 360; see Watkins, 245 S.W.3d at 447. If raceneutral on its face, the reason offered by the State will be deemed race-neutral

unless a discriminatory intent is inherent in the State’s explanation of its strike. 
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Guzman, 85 S.W.3d at 246. And, if the State offers a facially valid explanation for 

its strike, it has rebutted the presumption of purposeful discrimination. Williams v. 

State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991).

A bad experience with police and hesitancy in answering a question are both 

valid, race-neutral reasons for striking a veniremember. Kennerson v. State, 984 

S.W.2d 705 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (unpublished in part, 

available online) (hesitancy); Davis v. State, 964 S.W.2d 352, 355 (Tex. App.—

Fort Worth 1998, no pet.) (experience with police). The State questioned the 

veniremembers about their experiences with law enforcement, and Veniremember

No. Eighteen stated that he had had a bad experience with police before but could 

be fair. One of the prosecutors gave the first explanation for striking 

Veniremember No. Eighteen—that he had had a bad experience with police 

officers. The other prosecutor explained further that Veniremember No. Eighteen 

hesitated before he gave his answer that he could be fair toward police officers as 

witnesses. The State’s explanations, that they struck Veniremember No. Eighteen 

because he had had a bad experience with police and because he hesitated when he 

answered whether he could be fair, are race-neutral and satisfied the State’s burden 

that requires articulation of a nondiscriminatory reason for the strike. See Keeton I,

724 S.W.2d at 65; Kennerson, 984 S.W.2d 705 (holding that hesitancy is a 

permissible reason for striking a panelist from the venire); Davis, 964 S.W.2d at 

355 (holding that a bad experience with police is a permissible reason for striking a 

panelist from the venire). 

C. Batson Challenge: Step Three

The third step requires the defendant to carry the burden of persuasion that 

the neutral explanation provided by the State was a “pretext” to disguise racial 

discrimination. Keeton I, 724 S.W.2d at 65; Jackson, 442 S.W.3d at 774. The trial 

court must then determine whether the defendant has proved purposeful racial 
5

discrimination. Grant v. State, 325 S.W.3d 655, 657 (Tex. Crim. App. 2010)

(citing Batson, 476 U.S. at 96–98). Five nonexclusive factors to consider when 

determining if the State’s race-neutral explanation is genuine include whether:

(1) the reason given by the State is related to the facts of the case;

(2) the State performed a meaningful examination of the challenged 

venireperson; 

(3) the State did not strike other venirepersons with the same or similar 

traits as the challenged venireperson; 

(4) there was a disparate examination of the challenged venireperson 

when compared to the examination of the unchallenged venirepersons; 

and 

(5) the State based its explanation on a group bias even though the 

specific trait was not shown to apply to the challenged venireperson. 

Williams, 804 S.W.2d at 106; see Keeton II, 749 S.W.2d at 866. Disparate 

treatment of veniremembers, which is a factor the trial court may consider, may 

include the State’s failure to question minority veniremembers before striking them

or the State’s striking of minority veniremembers who gave similar answers as

majority veniremembers, when the latter were not struck by the State. Young v. 

State, 826 S.W.2d 141, 145 (Tex. Crim. App. 1991). And, if the State gives 

“mixed motives” for striking a veniremember and the defendant makes a prima 

facie showing of discriminatory purpose, the State “must demonstrate that [it]

would have exercised the peremptory strike even if the improper factor had not 

existed or contributed to the decision to strike the prospective juror.” Guzman, 85 

S.W.3d at 253, 254. Furthermore, the defendant, for the first time on appeal, may 

raise disparate treatment to show the State’s race-neutral explanation was, in fact, a 

pretext. Young, 826 S.W.2d at 145.

Appellant contends that the State showed disparate treatment toward 

Veniremember No. Eighteen, that the State misstated Veniremember 

No. Eighteen’s response to questioning, and that the State gave additional reasons 
6

that were inapplicable to Batson. The State told the trial court that it struck

Veniremember No. Eighteen because he had had a bad experience with police 

officers and because he had hesitated before he answered that he could be fair 

toward police officers as witnesses. This occurrence is proved on the record 

because it was not rebutted. See Nieto, 365 S.W.3d at 680; Yarborough v. State, 

947 S.W.2d 892, 895 (Tex. Crim. App. 1997). And, contrary to Appellant’s 

contention that “- -” missing from the reporter’s record shows that no hesitation 

occurred, the reporter appears to use “--” to show breaks that occur while a person 

was speaking, not hesitation prior to speaking.

Although other veniremembers may have had similar answers to 

Veniremember No. Eighteen and were not struck, the record does not indicate that 

any of those veniremembers hesitated in their answers about being fair. 

Furthermore, even though the State gave additional inapplicable reasons for the 

strike, the trial court was the judge of their credibility, and we defer to the

judgment of the trial court. See Thaler v. Haynes, 559 U.S. 43, 49 (2010). The

trial court’s ruling—that the State did not exercise disparate treatment toward 

Veniremember No. Eighteen—is supported by the record. See Young, 826 S.W.2d 

at 145. Appellant has failed to meet his burden to show that the State engaged in 

purposeful racial discrimination in its challenge to Veniremember No. Eighteen.

We overrule Appellant’s sole issue in each appeal.

III. This Court’s Ruling

We affirm the judgments of the trial court.

August 21, 2015 MIKE WILLSON

Do not publish. See TEX. R. APP. P. 47.2(b). JUSTICE

Panel consists of: Wright, C.J., 

Willson, J., and Bailey, J.