Robert Nathaniel Jones appealed his felony conviction for possessing a controlled substance. He said that the State peremptorily struck an African-American veniremember in violation of Batson v. Kentucky, 476 U.S. 79 (1986). He claimed that the State’s explanation for striking one African-American veniremember applied identically to three non-African-American veniremembers who ultimately served on the jury.
The State said that, after striking less favorable veniremembers, it used its final strikes against veniremembers who rated law enforcement in their community a “seven” on a scale of one to ten. It said its strategy was to “str[ike] everybody who was a six [on law enforcement] and then everyone who was a seven, up until [it] got to the point of . . . [veniremember number] 26 or 27,” where it “ran out of strikes”; it “took seven or lower and just moved up the scale from [veniremember number] one.”
The trial court should not have accepted this explanation because it is against the record. When the State struck veniremember number twenty-four, an African American, it skipped over two non-African-American veniremembers with lower numbers who also gave law enforcement a score of seven. Additionally, the State’s strikes revealed disparate treatment of African-American veniremembers. So Justice J. Brett Busby, writing for a panel including Chief Justice Kem Thompson Frost and Justice Marc W. Brown reversed and remanded the case for retrial.
Trial lawyers, Batson error is very rarely properly preserved, but that’s old news for readers of this blog.
Robert Nathaniel Jones v. State of Texas, ___ S.W.3d ___, No. 14-12-00515-CR (Tex. App.-- Houston [14th Dist.] ) Oct. 1, 2012) (no pet. h.)