Judgment affirmed and Opinion filed December 22,1994

In The

<Emtrt of Appeals

For The

JTirst Itsirtri of Gfexas

NO. 01-94-00463-CR

JERMAINE WRIGHT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 209th District Court

Harris County, Texas

Trial Court Cause No. 666,949

OPINION

A jury convicted appellant Jermaine Wright of murder and assessed

punishment at 60-years confinement. In two points of error, appellant argues that the

State's use of peremptory challenges during jury selection violated Tex. Code Crim. P.

Ann. art. 35.261 (Vernon 1989) because itwas racially motivated. We affirm.

Facts

After both parties made their jury strikes, but before the jury was sworn,

appellant objected that the State's use of peremptory challenges to exclude six black

veniremembers from the jury was racially motivated. Batson v. Kentucky, 476 U.S. 79, 106

S.Ct. 1712 (1986). Appellant himself is black. The trial court held ahearing to determine

whether the State's reasons for exercising peremptory challenges against these prospective
jurors were racially neutral. On appeal, appellant complains of the strikes of two of these

jurors, Mr. Williams and Mi*. Roehelle.

At the Batson hearing, the prosecutor explained 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 do we get 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 of grasping all the aspects that were being presented

to him.

Mr. Harpold: And he, also, as with several others that I struck

on punishment, said that in weighing the process, that he was

kind of somewhere 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

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punishment. And I think the record shows he did not.

The Court: That's what I just 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

strike them, but if there were other factors 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 of Review

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 a prima facie 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 a primafacie 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 jury because 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

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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); Hill v.

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, great deference is given to

its ruling. Hernandez v. New York, 111 S.Ct. 1859, 1869 (1991).

Peremptory Strikes

In points of error 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 of peremptory challenges was racially motivated

and therefore in violation of Tex. 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

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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.2d 667, 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, 837 S.W.2d 163, 169 (Tex. App.«El Paso 1992), rev'd on

other grounds, 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

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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 in general applied to

the venireperson in particular. In this case, Mr. Williams's employment, in addition to his

views on punishment, were the reasons given for the peremptory strike. His occupation

separated him from the otherjurors who had expressed the belief that sentencing should

serve as rehabilitation. Together, these reasons constitute a race-neutral reason for the

prosecutor's peremptory strike.

Failure to Grasp the Issues

The prosecutor struck Mr. Roehelle because of his views on sentencing and

because he had difficulty understanding voir dire and was slow to answer questions. These

observations were confirmed by the trial court, who noted thathe was "not impressed with

[Mr. Rochelle's] capability of grasping all the aspects that were being presented to him."

The court of appeals must defer to the trial judge's observations of a

veniremember's answers and demeanor during voir dire. Alexander v. State, 866 S.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 that the prosecutor's strikes were racially neutral is

not clearly erroneous. Accordingly, we overrule points of errorone and two.
We affirm the judgment of the 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 of Court

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/&/ AdeleHedges

Adele Hedges

Justice