Opinion filed August 21 , 2015



### In The 

# Eleventh Court of Appeals

__________ No s . 11

- 14

- 00032

- C R & 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 No s . 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 G e ne 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 N otice ” in each
indictment

. The jury found him guilty, found the enhancement allegation s in the
habitual offender n otice to be “ true ” for each indictment, and assessed punishment

1 T EX

. P ENAL C ODE A NN

. § 38.10 ( Bai l 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 Batson 2 challenge. We affirm.
I. Voir Dire Proceeding Of the sixty members that comprise d the venire panel , six were African

Americans : V eniremember Nos. Seven, Eight, Fourteen, Seventeen, Eighteen, and
F orty

- six. Both the State and Appellant 3 agreed to dismiss Veniremember Nos.
F o urteen and F orty

- six for cause. Appella nt used a peremptory strike on
V eniremember No. S even. The State used peremptory strikes on Veniremember
Nos. Seventeen and E ighteen. Veniremember No. E ight sat on the jury. Appellant raised a Batson challenge against the State’s strikes of
Veniremember Nos. Seventeen and E i ghteen. The State argued that
V eniremember No. S eventeen had previous thef t charges against her and that
V eniremember No. E ighteen had had a bad experience with police in the past. The State further argued th at , although Veniremember No. Eighteen said he could be
fair
, he hesitat ed before he answer ed ; 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 V eniremember No. E ighteen.
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

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

3 Appellant 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 )

. T he 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, w e 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 fin dings 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. Mo v ing to the second step, the State had to p r ovide 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 race

neutral on its face, t he reason offered by the State will be deemed race

- neutral

u nless a discriminatory intent is inherent in the State’s explanation of its strike

.4

Guzman , 85 S.W.3d at 246. And, i f the State offers a facially valid explanat ion 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 V eniremember No. Eighteen stated that he had had a b ad experience with police before but could
be fair

. One of the prosecutors gave the first explanation for striking
V eniremember No. E ighteen

— that he had had a bad experience with police
officers. The other prosecutor explained further that V eniremember N o. E ighteen hesitated before he gave his answer that he could be fair toward police officers as witnesses. The State ’ s explanations
, that they struck V eniremember No. E ighteen
because he had had a bad experi ence 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 permiss ible 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

. T he trial
court must then determine whether the defendant has proved purposeful racial5

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 whe ther : (1) the reason given by the State is related to the facts of the case; (2) the State performed a meaning ful 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 ev en though the specific trait was not shown to apply to the challenged venireperson.
Williams , 804 S.W.2d at 106 ; s ee K eeton II , 749 S.W.2d at 866

. D isparate
treatment of veniremembers , which is a facto r 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 motiv es” 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, th e defendant
, for the first ti me 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 sho wed disparate treatment toward
V eniremember No. E ighteen, that the State misstated V eniremember
No. E ighteen’s response to questioning, and that the State gave additional reasons6

that were inapplicable to Batson

. The State told the trial court that it struck
V eniremember No. E ighteen because he had had a bad experience with p olice
officers and because he had hesitated before he answer ed 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 show s that no hesitation occurred, the reporter appears to use “

-- ” to show breaks that occur while a person was speaking, not hesitatio n prior to speaking

. Although other veniremembers m ay have had similar answers to
V eniremember 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 th ough 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)

. T he trial court’s ruling

—

that the State did not exercise disparate treatment toward
V eniremember No. E ighteen

— 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. E ighteen

. We overrule Appellant’s sole issue in each appeal.
III. This Court’s Ruling We affirm the judgment s of the trial court.

August 21 , 2015 MIKE WILLSON Do not publish. See T EX

. R. A PP

. P. 47.2(b). JUSTICE
Panel consists of: W right , C.J., W illson, J

. , and Bailey, J.