Batson challenge in Texas

2024P. 41.3. 2 Batson v. Kentucky, 476 U.S. 79 (1986). 2 defendant suspects the State of making race-based challenges, he may request a Batson hearing.

2024P. 41.3. 2 Batson v. Kentucky, 476 U.S. 79 (1986). 2 defendant suspects the State of making race-based challenges, he may request a Batson hearing.

2024It is only at the third step of the process “that the persuasiveness of the justification becomes relevant— the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.” Guzman, 85 S.W.3d at 246 (quoting Purkett, 514 U.S. at 768 ). 11 In reviewing a trial court’s ruling of a Batson challenge, we must uphold the trial court’s decision unless it is clearly erroneous.

2024It is only at the third step of the process “that the persuasiveness of the justification becomes relevant— the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.” Guzman, 85 S.W.3d at 246 (quoting Purkett, 514 U.S. at 768 ). 11 In reviewing a trial court’s ruling of a Batson challenge, we must uphold the trial court’s decision unless it is clearly erroneous.

2014“This is a highly deferential standard because the trial court is in the best position to determine whether a prosecutor’s facially race-neutral explanation for a peremptory strike is genuinely race- neutral.” Gibson, 144 S.W.3d at 534 ; see also United States v. Williams, 264 F.3d 561, 572 (5th Cir. 2001) (Batson inquiry is “quintessentially a question of fact which turns heavily on demeanor and other issues not discernable from a cold record, such that deference to the trial court is highly warranted.”).

2011Third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.16 A trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous.17 Often the best evidence of discriminatory intent is the demeanor of the prosecutor exercising the challenge.18 Step three of the Batson inquiry includes an evaluation of the prosecutor’s credibility.19 Additionally, race-neutral reasons for peremptory challenges often turn on aspects of a prospective juror’s demeanor, such as nervousness or inatten

2020As to veniremember 12, the State proffered three reasons for its strike: (1) “she mentioned that she had severe PTSD regarding past abuse,” (2) “she also talked about the sheriff at her high school using racial slurs,” and (3) “her brother has been pulled over multiple times by law enforcement.” Additionally, the State noted that in response to the jury-questionnaire question that asked, “Have you or someone you 2 In Miller–El, the Supreme Court “considered the combined impact of a number of factors in concluding that, by clear and convincing evidence, the prosecutors exercised two peremptory

2020As to veniremember 12, the State proffered three reasons for its strike: (1) “she mentioned that she had severe PTSD regarding past abuse,” (2) “she also talked about the sheriff at her high school using racial slurs,” and (3) “her brother has been pulled over multiple times by law enforcement.” Additionally, the State noted that in response to the jury-questionnaire question that asked, “Have you or someone you 2 In Miller–El, the Supreme Court “considered the combined impact of a number of factors in concluding that, by clear and convincing evidence, the prosecutors exercised two peremptory

2025Code § 307.67 (c). 18 Lopez v. State, 940 S.W.2d 388, 390 (Tex. App.—Austin 1997, pet. ref’d) (describing the clear error standard in the context of a Batson challenge for a juror); see Hernandez v. New York, 500 U.S. 352, 369 (1991); Hunter v. Underwood, 471 U.S. 222, 229-30 (1985) (agreeing with court of appeals’ application of the clearly-erroneous standard when it was “left with a firm and definite impression of error.”). 6 Proposal for Decision, SOAH Docket No. 476-25-13726, Toby Keeton v. Texas Racing Commission Copy from re:SearchTX III.

2025Code § 307.67 (c). 18 Lopez v. State, 940 S.W.2d 388, 390 (Tex. App.—Austin 1997, pet. ref’d) (describing the clear error standard in the context of a Batson challenge for a juror); see Hernandez v. New York, 500 U.S. 352, 369 (1991); Hunter v. Underwood, 471 U.S. 222, 229-30 (1985) (agreeing with court of appeals’ application of the clearly-erroneous standard when it was “left with a firm and definite impression of error.”). 6 Proposal for Decision, SOAH Docket No. 476-25-13726, Toby Keeton v. Texas Racing Commission Copy from re:SearchTX III.

2025Further, “exceptional circumstances” are required “to warrant the reversal of a trial court’s ruling on a Batson motion.” Id. at 680 ; cf. Whitsey v. State, 796 S.W.2d 707, 713, 728 (Tex. Crim.

2013Thus, “the trial judge cannot merely accept . . . [the prosecutor’s] explanation[] at face value and end the Batson inquiry.” Id. at 716.

2024As did the Waco Court of Appeals in Torres, we must “accord[] great deference to the trial court’s denial of appellant’s Batson challenge” and “cannot say that, based on our review of the record, the trial court’s ruling [wa]s clearly erroneous.” Id. (citing Snyder, 552 U.S. at 477 ).

2022In answering this question, “the trial court does not consider any disparate treatment of panelists or other evidence tending to show that the explanation is pretextual; these matters are considered as part of the third step of a Batson challenge.” Jackson v. Stroud, 539 S.W.3d 502, 507 (Tex. App.—Houston [1st Dist.] 2017, no pet.); see Snyder, 552 U.S. at 483–85 12 (conducting comparative juror analysis as part of third step of Batson inquiry); Jones, 431 S.W.3d at 155–59 (considering disparate treatment of panelists as part of third step).

2020See Miller-El, 545 U.S. at 252 (“A Batson challenge does not call for a mere exercise in thinking up any rational basis.

2020See Miller-El, 545 U.S. at 252 (“A Batson challenge does not call for a mere exercise in thinking up any rational basis.

2025He relies on the fact that the State “made no effort to question African American jurors.” He asserts that “[i]n order to [e]nsure that there was not some unconscious bias involved, the reason for striking a juror should be decided after there is some, or any, questioning of a juror who might be excluded because of improper standards.” For 5 the third step of the Batson analysis, courts have used the non-exhaustive set of objective factors laid out in Keeton v. State to determine if a prosecutor’s reason for a peremptory strike is, in fact, a pretext for racial discrimination. 749 S.W.2d 861,

2025He relies on the fact that the State “made no effort to question African American jurors.” He asserts that “[i]n order to [e]nsure that there was not some unconscious bias involved, the reason for striking a juror should be decided after there is some, or any, questioning of a juror who might be excluded because of improper standards.” For 5 the third step of the Batson analysis, courts have used the non-exhaustive set of objective factors laid out in Keeton v. State to determine if a prosecutor’s reason for a peremptory strike is, in fact, a pretext for racial discrimination. 749 S.W.2d 861,

2015To sustain the burden of persuasion, the opponent of a strike must show that the reasons offered were pretext or were not race neutral, “thus rebutting any race neutral explanation given at the Batson hearing.” Williams, 804 S.W.2d at 101 .

2015To sustain the burden of persuasion, the opponent of a strike must show that the reasons offered were pretext or were not race neutral, “thus rebutting any race neutral explanation given at the Batson hearing.” Williams, 804 S.W.2d at 101 .

1992The Pierson court noted that "to preserve a Batson issue for appellate review, a party must lodge his objection regarding the use of peremptory strikes before the jury is sworn and the remainder of the venire is discharged.” Id., citing Henry, 729 S.W.2d at 737 .

1992The State alleges that appellant's claim should be dismissed as untimely under the authority of Henry v. State, 729 S.W.2d 732, 737 (Tex.Cr.App. 1987), where this Court held that a Batson objection must be made "after the composition of the jury is made known but before the jury is sworn and the venire panel is discharged." [1] Subsequent to the Henry decision, however, the legislature enacted article 35.261, specifying that a Batson objection *863 can be timely interposed "[a]fter the parties have delivered their lists [of peremptory challenges] ... and before the court has impanelled the jur

2023Under the first step, the person raising a Batson challenge is required to “make a prima facie showing of racial discrimination.” Nieto, 365 S.W.3d at 676 (citing Batson, 476 U.S. at 96–97); see Ford, 1 S.W.3d at 693 .

2010Ford, 1 S.W.3d at 693 (citing Purkett, 514 U.S. at 767–68). 3 We review the evidence relevant to the Batson challenge in the light most favorable to the trial court’s ruling.

2013See Vargas v. State, 838 S.W.2d 552, 556-57 (Tex.Crim.App.1992) (holding that jury questionnaires could not be considered by an appellate court in evaluating a Batson claim because they were never before the trial court). 8 .

2013See Vargas v. State, 838 S.W.2d 552, 556-57 (Tex.Crim.App.1992) (holding that jury questionnaires could not be considered by an appellate court in evaluating a Batson claim because they were never before the trial court). 8 .

2025Further, “exceptional circumstances” are required “to warrant the reversal of a trial court’s ruling on a Batson motion.” Id. at 680 ; cf. Whitsey v. State, 796 S.W.2d 707, 713, 728 (Tex. Crim.

2023Under the first step, the person raising a Batson challenge is required to “make a prima facie showing of racial discrimination.” Nieto, 365 S.W.3d at 676 (citing Batson, 476 U.S. at 96–97); see Ford, 1 S.W.3d at 693 .

2024It is only at the third step of the process “that the persuasiveness of the justification becomes relevant— the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.” Guzman, 85 S.W.3d at 246 (quoting Purkett, 514 U.S. at 768 ). 11 In reviewing a trial court’s ruling of a Batson challenge, we must uphold the trial court’s decision unless it is clearly erroneous.

2024It is only at the third step of the process “that the persuasiveness of the justification becomes relevant— the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination.” Guzman, 85 S.W.3d at 246 (quoting Purkett, 514 U.S. at 768 ). 11 In reviewing a trial court’s ruling of a Batson challenge, we must uphold the trial court’s decision unless it is clearly erroneous.

2015App. 1999)); see also Johnson, 68 S.W.3d at 649 (defendant’s failure to offer any rebuttal to State’s explanation can be fatal to Batson claim).

2013“As the party making the Batson challenge, [Guild] . . . had the burden to show that the explanation given was merely a pretext for discrimination.” Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim.

2024Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim.

2024Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim.

2026Hill, 827 S.W.2d at 864 ; see, e.g., Garcia v. State, No. 11-21-00145-CR, 2024 WL 3528547 , at *8 (Tex. App.— Eastland July 25, 2024, pet. ref’d) (mem. op., not designated for publication) (“Appellant’s failure to timely object to the composition of the jury bars review of the alleged Batson error.”); Thierry v. State, No. 11-00-00038-CR, 2000 WL 34233671 , at *1 (Tex. App.—Eastland Aug. 31, 2000, no pet.) (mem. op., not designated for publication) (“In this case, appellant did not raise the Batson issue until after the jury had been sworn.

2026Hill, 827 S.W.2d at 864 ; see, e.g., Garcia v. State, No. 11-21-00145-CR, 2024 WL 3528547 , at *8 (Tex. App.— Eastland July 25, 2024, pet. ref’d) (mem. op., not designated for publication) (“Appellant’s failure to timely object to the composition of the jury bars review of the alleged Batson error.”); Thierry v. State, No. 11-00-00038-CR, 2000 WL 34233671 , at *1 (Tex. App.—Eastland Aug. 31, 2000, no pet.) (mem. op., not designated for publication) (“In this case, appellant did not raise the Batson issue until after the jury had been sworn.

2009We review the record of a Batson hearing and the voir dire examination in the light 29 See Art. 35.261. 30 See Batson v. Kentucky, 479 U.S. at 106. 31 Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim.

2009We review the record of a Batson hearing and the voir dire examination in the light 29 See Art. 35.261. 30 See Batson v. Kentucky, 479 U.S. at 106. 31 Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim.

2010See Pondexter v. State, 942 S.W.2d 577, 582 (Tex.Crim.App.1996) (holding that appellant is entitled to prosecutor’s voir dire notes if they were actually used by prosecutor to refresh his memory); Salazar v. State, 795 S.W.2d 187, 193 (Tex.Crim.App.1990) (holding that production of a prosecutor’s juror information notes is both “necessary and proper” when prosecutor refreshes his memory regarding the exercise of peremptory challenges by reviewing those notes before giving testimony at Batson hearing).

2008Once the defendant makes a prima facie showing of purposeful discrimination, the State must provide a race- or gender-neutral explanation for striking the prospective juror in question.7 Miller-El v. Dretke, 545 U.S. 231, 239 , 125 S. Ct. 2317, 2324-25 (2005); Herron, 86 S.W.3d at 630 ; Pondexter, 942 S.W.2d at 581 ; Bausley, 997 7 The first two steps of a Batson analysis, including the burden on the State to provide a neutral explanation for its strikes, involve solely a burden of production; the burden of persuasion, described in more detail below, remains at all times on the defendant.

2016See Moore, 265 S.W.3d at 78 (holding, throughout Batson challenge, burden of persuasion remains with defendant).

2013See Moore v. State, 265 S.W.3d 73, 87-88, 90 (Tex.App.-Houston [1st Dist.] 2008), pet. dism 'd, improvidently granted, 286 S.W.3d 371 (Tex.Crim.App.2009) (per curiam) (finding a Batson violation based, in part, on prosecutor’s misrepresentation that similarly situated juror of another race was also stricken).

2023Compton, 666 S.W.3d at 698 (citing Flowers, 139 S. Ct. at 2243 ). 6 “We review the record of a Batson hearing and the voir dire examination in the light most favorable to the trial court’s ruling.” Young v. State, 283 S.W.3d 854, 866 (Tex. Crim.

2023Compton, 666 S.W.3d at 698 (citing Flowers, 139 S. Ct. at 2243 ). 6 “We review the record of a Batson hearing and the voir dire examination in the light most favorable to the trial court’s ruling.” Young v. State, 283 S.W.3d 854, 866 (Tex. Crim.

2024App. 1991), that argument must be based on “evidence presented to the trial judge during voir dire and the Batson hearing.” Adair v. State, 336 S.W.3d 680, 689 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (quoting Young, 826 S.W.2d at 145 ).

2024App. 1991), that argument must be based on “evidence presented to the trial judge during voir dire and the Batson hearing.” Adair v. State, 336 S.W.3d 680, 689 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (quoting Young, 826 S.W.2d at 145 ).

2025“Batson error,” we have said, “is subject to principles of ordinary procedural default.” Batiste 10 v. State, 888 S.W.2d 9 , 17 n.5 (Tex. Crim.

2024Batson error is subject to the same “principles of ordinary procedural default.” Batiste v. State, 888 S.W.2d 9 , 17 n.5 (Tex. Crim.

2025We now turn to the merits of Pettway’s sole issue: his Batson challenge. “[W]hile a prosecutor ordinarily may exercise peremptory strikes for any reason related to his views concerning the outcome of the trial, ‘the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race.’” Grant v. State, 325 S.W.3d 655, 657 (Tex. Crim.

2014App. 2002) ("Because the trial court's decision often turns largely on an evaluation of credibility, we give the court's decision great deference and will not disturb it unless it is clearly erroneous"; deferring to trial judge's finding that prosecutor's explanation that he struck potential juror the D.A.'s investigator said "ha[d] a chip on her shoulder" and had a reputation at work for being close-minded; because the explanation was a race-neutral one that the defendant failed to rebut, the trial judge did not clearly err in denying Batson challenge); see also Grant v. State , 325 S.W.3d 65

2016“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.” Blackman v. State, 414 S.W.3d 757, 765 (Tex. Crim.

2015When we review a trial court’s ruling on a Batson challenge, we “should not overturn the trial court’s resolution of the Batson issue unless [we] determine[] that the trial court’s ruling was clearly erroneous.” Blackman v. State, 414 S.W.3d 757, 765 (Tex. Crim.

1992Batson, 106 S.Ct. at 1723 ; Keeton v. State, 724 S.W.2d 58 , 65 (Tex.Cr.App.1987) (Keeton I). 3 In the instant case, Appellant made his Batson motion after the jury was selected but before it was sworn, although the venire had just been dismissed.

1991See Keeton, 724 S.W.2d at 65 n. 5 (discriminatory strike of any black prospective juror, even if others are ultimately seated on the panel, constitutes Batson violation).

2008The United States Supreme Court held in Powers v. Ohio, 499 U.S. 400 (1991), that, under the Fourteenth Amendment, "a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race." Therefore, the race of a defendant is irrelevant to a Batson challenge.

2008The United States Supreme Court held in Powers v. Ohio, 499 U.S. 400 (1991), that, under the Fourteenth Amendment, "a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race." Therefore, the race of a defendant is irrelevant to a Batson challenge.

2009Co., 268 S.W.3d 508, 515 (Tex. 2008) (citing Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997)) (in civil cases, Texas courts review Batson ruling for abuse of discretion). 2 On rehearing, McKnight emphasizes Reed v. Quarterman, __ F.3d __, ___, 2009 U.S. App. LEXIS 579 (5th Cir. 2009), in which the Fifth Circuit reversed a trial court’s denial of federal habeas relief based on a Batson challenge to the Dallas County District Attorney’s use of peremptory strikes in a 1979 murder trial.

2009Co., 268 S.W.3d 508, 515 (Tex. 2008) (citing Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997)) (in civil cases, Texas courts review Batson ruling for abuse of discretion). 2 On rehearing, McKnight emphasizes Reed v. Quarterman, __ F.3d __, ___, 2009 U.S. App. LEXIS 579 (5th Cir. 2009), in which the Fifth Circuit reversed a trial court’s denial of federal habeas relief based on a Batson challenge to the Dallas County District Attorney’s use of peremptory strikes in a 1979 murder trial.