Judgment affirmed and Opinionfiled December22,1994

In The 

### <EmtrtofAppeals
For The 

### JTirst Itsirtri ofGfexas

NO. 01-94-00463-CR
JERMAINE WRIGHT, Appellant
V. THE STATE OFTEXAS, Appellee

OnAppealfrom the 209th District Court Harris County, Texas 

### Trial CourtCause No. 666,949

OPINION 

### A jury convicted appellant Jermaine Wright of murder and assessed 

### punishment at 60-years confinement. In two points oferror, appellant argues that the State's use ofperemptory challenges during jury selection violated Tex. Code Crim. P. 

### Ann. art. 35.261 (Vernon 1989) because itwas raciallymotivated. We affirm.

Facts 

### After both parties made theirjury strikes, but before thejury was sworn, appellant objected that the State's use ofperemptory challenges to exclude six black 

### veniremembersfrom thejurywas raciallymotivated. Batson v. Kentucky, 476 U.S. 79, 106 

## S.Ct. 1712 (1986). Appellanthimselfisblack. The trial courtheldahearing to determine whetherthe State's reasonsfor exercisingperemptorychallenges againsttheseprospectivejurors were racially neutral. On appeal, appellant complains of the strikes of two ofthese jurors, Mr. Williams and Mi*. Roehelle. At theBatson hearing, the prosecutorexplained his strikes as follows: Mr. Harpold (prosecutor): Okay. Mr. Williams was struck because in asking the question on punishment, he seemed to be leaning more towards not wanting punishment. 

### Mr. Goode (defense counsel): Judge, I will object to that characterization. I think the record reflects that he said the same thing as several, more than several, 20 people of the 

### others. He said both. He didn't say, I'm leaning toward punishment. Mr. Harpold: He just said he would consider it to be a weighing process and that he would consider either. 

### Furthermore, he was -- he listed in his jury information that he is a professor at a university. I feel the professors at the universities tend to be liberal, and that was why — another
reason for that.



### Mr. Harpold: Mr. Roehelle was very slow in answering his questions. He seemed not to be understanding everything very well. Mr. Goode: I'll object to that characterization, Your Honor. 

### The Court: And who doweget to rule on that?
Mr. Goode: The Court saw. The Court: But this is a perceptual thing. It is difficult for me to read someone's mind. I wasn't impressed with his 

### capability ofgrasping all the aspects that werebeing presented to him. Mr. Harpold: And he, also, as with several others that I struck 

### onpunishment, said that inweighing the process, that he was kind ofsomewhere in the middle from definite about it. 

### The Court: Well, the difficulty here is did you strike others that said they could consider both? 

### Mr. Goode: And I would also ask him, Judge, did he strike everyone who said they would consider both rehabilitation and

-2-punishment. And I think the record shows he did not. The Court: That's what Ijust said. Mr. Harpold: Let me answer that question. It's no, but it was one of the reasons, coupled with the other reasons I've given this Court. If something — when I was making my striking procedure, if everything else the person said was good, except for just the either [sic] on the punishment question, I did not 

### strikethem, but iftherewere otherfactors coupled with their answer on punishment, then those are factors that I used then to strike them. During voir dire, the prosecutor asked veniremembers whether they believed that the purpose of sentencing was to punish for the crime or to rehabilitate the defendant. Numerous veniremembers, including Mr. Williams and Mr. Roehelle, indicated that they believed sentencing should serve both to punish and to rehabilitate a defendant. The prosecutor testified that he did not strike every venireperson who favored rehabilitation, only those who had an additional troubling characteristic.
Standard ofReview The State may not exercise peremptory challenges for reasons that are purely racial. Batson, 476 U.S. at 89, 106 S.Ct. at 1719 (1986); Swain v.Alabama, 380 U.S. 202, 203-04, 85 S.Ct. 824, 826 (1965). Whenever the defendant in a criminal case 

### establishes aprimafacie case that the prosecutor made racially motivated strikes against eligible veniremembers, the prosecutor is required to explain his or her reasons for the 

### peremptory challenges. Linscomb v. State, 829 S.W.2d 164, 165 (Tex. Crim. App. 1992). To establish aprimafacie showing of purposeful racial discrimination, a defendant must show that: (1) he or she is a member of a cognizable racial group; (2) the prosecutor has 

### exercised peremptory challenges to remove members of defendant's race from the jury panel; and (3) these facts, along with other relevant circumstances, raise an inference that 

### the prosecutor used that practice to exclude the veniremembers from the jurybecause of their race. Keeton v.State, 724S.W.2d 58, 65 (Tex. Crim. App. 1987). Once a defendant has made a prima facie case of discrimination, the trial

.-x.court must hold a hearing on defendant's Batson motion. The State must then offer legitimate reasons, clearly explained with reasonable specificity, for the exercise of peremptory strikes against the veniremembers in question. Whitsey v. State, 796 S.W.2d 707, 713 (Tex. Crim. App. 1990). The trial must evaluate these reasons "in the light of the circumstances of that trial to determine whether the explanations are merely pretext."
Id. It is the defendant's burden to convince the trial judge "by a preponderance of the evidence that the allegations of purposeful discrimination are true in fact." Tompkins v. State, 11A S.W.2d 195, 202 (Tex. Crim. App. 1987), affd, 490 U.S. 754, 754 

### 109 S.Ct. 2180, 2180 (1989), The trial court's decision must be reviewed in the light most favorable to itsruling. Woods v. State, 801 S.W.2d 932, 935 (Tex. App.-Austin 1990, pet. 

### refd). The trial court's decision will not be disturbed on appeal unless it is clearly

erroneous and unless the reviewing court is left with the clear conviction that a mistake 

### has been made. Harris v. State, 827 S.W.2d 949, 955 (Tex. Crim. App. 1992); Hillv. 

### State, 827 S.W.2d 860, 865 (Tex. Crim. App. 1992). The best evidence from which to make such a determination is the demeanor of the prosecutor. Because the trial court is 

### peculiarly situated to ascertain the credibility of the prosecutor, greatdeference isgiven to its ruling. Hernandez v. New York, 111 S.Ct. 1859, 1869 (1991). Peremptory Strikes In points oferror one and two, appellant contends that the trial court erred in permitting the State to exclude veniremembers Melvin Williams and Earl Roehelle from 

### the jury. He argues that the State's use ofperemptory challenges was racially motivated 

### and therefore inviolation ofTex. CodeCrim. P. Ann. art. 35.261 (Vernon 1989).
Common Treatment The prosecutor testified that he struck Mr. Williams and Mr. Roehelle 

### because, in addition to sharing a belief that sentencing should be used both for

-4-punishment and rehabilitation, each exhibited an additional objectionable characteristic. The prosecutor did not strike every venireman who favored rehabilitation, only those who also exhibited some other negative trait. Disparate treatment cannot be imputed in every situation where one of the State's reasons for striking a veniremember might also apply to another, acceptable, veniremember. Cantu v. State, 842S.W.2d667, 689 (Tex. Crim, App. 1992), cert, denied, 113 S.Ct. 3046 (1993); Roberts v. State, 866 S.W.2d 773, 777 (Tex. App.-Houston [1st Dist.] 1993, pet refd) ("The State's decision to strike some venire members who expressed sympathy concerns is not undermined by its failure to strike all members who expressed the same concerns."). A decision to exercise a peremptory challenge against a particular veniremember cannot be rigidly quantified. Cantu, 842 S.W.2d at 689. It is unlikely that any two veniremembers will posses the same problematic characteristic in precisely the same degree. Id. Thus, to find the trial court's ruling clearly erroneous, the record must reflect something beyond the fact that veniremembers who were not struck possessed the same objectionable characteristic as those struck by the State. Cantu, 842 

### S.W,2d at 689; Lemon v. State, 837S.W.2d 163, 169 (Tex. App.«El Paso 1992),rev'd on othergrounds, 861 S.W.2d 249 (Tex. Crim. App. 1993). The record clearly reflects that several other veniremembers believed that sentencing should serve both as punishment and as rehabilitation. They were not struck because they did not exhibit an additional negative characteristic, as did Mr. Williams and Mr. Roehelle. Occupation The prosecutor testified that he struck Mr. Williams from the jury because, in addition to his beliefs about sentencing, he was a college professor. College professors, in his opinion, are too liberal. The Court of Criminal Appeals has recently held that occupation alone is

-5-not a legitimate reason for a peremptory strike. Emerson v. State, 851 S.W.2d 269, 274 

### (Tex. Crim. App. 1993). In that case, occupation was the sole reason given by the prosecutor for the peremptory strike. The prosecutor did not question the venireperson to inquire whether the traits allegedly associated with the profession ingeneral applied to thevenireperson inparticular. Inthis case, Mr. Williams's employment, inaddition to his 

### views on punishment, were the reasons given for theperemptory strike. His occupation separated him from the otherjurors who hadexpressed thebeliefthat sentencing should serve as rehabilitation. Together, these reasons constitute a race-neutral reason for the prosecutor's peremptory strike.Failure to Grasp the Issues 

### Theprosecutor struck Mr. Roehelle because ofhis views on sentencing and because he haddifficulty understanding voir dire andwas slow to answer questions. These 

### observations were confirmedbythetrial court, who noted thathewas "not impressed with [Mr. Rochelle's] capability ofgrasping all theaspects thatwere being presented tohim." The court of appeals must defer to the trial judge's observations of a veniremember's answers and demeanorduring voirdire. Alexander v. State, 866S.W.2d 

### 1, 8 (Tex. Crim. App. 1993). The prosecutor's explanation that he struck Mr. Roehelle because of his difficulty in grasping the issues involved, together with his views on sentencing, constitutes a racially neutral reason for the strike. 

### The trial court's ruling thattheprosecutor's strikes were racially neutral is notclearly erroneous. Accordingly, we overrule points of erroroneand two.We affirm thejudgment ofthe trial court.

Justices Cohen and Wilson also participating. Do not publish. Tex. R. App. P. 90. Judgment rendered and opinion delivered True Copy Attest:

Margie Thompson Clerk ofCourt

-7- /&/ AdeleHedges Adele Hedges Justice