Date: 09-27-2020

Case Style:

Case Number: 02-19-00173-CR

Judge: Bonnie Sudderth

Court: Court of Appeals Second Appellate District of Texas at Fort Worth

Plaintiff's Attorney: Joseph W. Spence
Victoria A. Ford Oblon

Defendant's Attorney:

Description: Fort Worth, TX - Criminal Defense Attorney, Aggravated Assault


Appellant Keith Deshaun Mathews appeals his convictions for aggravated
assault with a deadly weapon and assault against a family or household member with a
previous conviction. See Tex. Penal Code Ann. §§ 22.01(b)(2)(A), .02(a)(2). The trial
court sentenced Mathews to 20 years’ imprisonment on each count to run
concurrently. In one point, Mathews arguesthat the trial court erred by denying his
Batson challenge to the State’s peremptory strikes against veniremembers 12 and 30,
who are African-American. See Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712,
1719 (1986). Specifically, Mathews asserts that the State’s proffered race-neutral
reasons for striking veniremembers 12 and 30 were mere pretext for purposeful
discrimination. Because we hold that the trial court’s denial of Mathews’s Batson
challenge was not clearly erroneous, we affirm.
II. Batson Challenges
The Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution prohibits race-based jury selection. U.S. Const. amend.
XIV, § 1; Batson, 476 U.S. at 89, 106 S. Ct. at 1719; Jasper v. State, 61 S.W.3d 413, 421
(Tex.Crim. App. 2001); see Tex. Code Crim. Proc. Ann. art. 35.261(a). In the face of
perceived purposeful discrimination, a defendant may request a Batson hearing to
address the challenge. See Tex. Code Crim. Proc. Ann. art. 35.261(a).
3
Trial courts follow a three-step process to resolve Batson challenges. Snyder v.
Louisiana, 552 U.S. 472, 476–77, 128 S. Ct. 1203, 1207 (2008); Young v. State, 283
S.W.3d 854, 866 (Tex. Crim. App. 2009). First, the movant must make a prima facie
case of racial discrimination. Snyder, 552 U.S. at 476, 128 S. Ct. at 1207; Watkins
v. State, 245 S.W.3d 444, 447 (Tex. Crim. App. 2008). Once a prima facie showing has
been made, the burden of production shifts to the nonmovant to articulate a raceneutral reason for its strike.1
Snyder, 552 U.S. at 476–77, 128 S. Ct. at 1207; Watkins,
245 S.W.3d at 447. Finally, if the nonmovant tenders a race-neutral explanation, the
trial court must decide whether the movant has satisfied its burden of persuasion to
prove purposeful racial discrimination. Snyder, 552 U.S. at 477, 128 S. Ct. at
1207; Purkett, 514 U.S. at 767–68, 115 S. Ct. at 1771; Watkins, 245 S.W.3d at 447. To
meet this burden, the movant must prove by a preponderance of the evidence that the
allegations of purposeful discrimination were true in fact and that the race-neutral
reasons proffered were merely a sham or pretext. Watkins, 245 S.W.3d at 447, 452.
III. Standard of Review
On appeal, a trial court’s ruling on the issue of discriminatory intent must be
sustained unless it is clearly erroneous. Snyder, 552 U.S. at 477, 128 S. Ct. at
1207; Watkins, 245 S.W.3d at 448. Appellate courts must give great deference to
1At this second step, the explanation need only be race-neutral on its face. See
Watkins, 245 S.W.3d at 447. Plausibility of the race-neutral explanation is considered
only in the third step of the analysis. Purkett v. Elem, 514 U.S. 765, 767–68, 115 S. Ct.
1769, 1771 (1995).
4
credibility and demeanor determinations made by the trial court in connection with
a Batson inquiry. Snyder, 552 U.S. at 477, 128 S. Ct. at 1208. As the court of criminal
appeals has explained, “a reviewing court should examine a trial court’s conclusion
that a facially race-neutral explanation for a peremptory challenge is genuine, rather
than a pretext, with great deference, reversing only when that conclusion is, in view of
the record as a whole, clearly erroneous.” Watkins, 245 S.W.3d at 448. When
determining whether a race-neutral explanation was a pretext for purposeful
discrimination, we examine whether comparative evidence demonstrates disparate
treatment of minority veniremembers. See Miller–El v. Dretke, 545 U.S. 231, 241, 125
S. Ct. 2317, 2325 (2005). Disparate treatment may be shown if the race-neutral reason
for striking a minority veniremember applies equally to an otherwise similar
nonminority veniremember who was not stricken. Id., 125 S. Ct. at 2325.
However, we cannot automatically impute disparate treatment in every case
where the reason for striking a minority veniremember also technically applies to a
nonminority veniremember who was not stricken. See Cantu v. State, 842 S.W.2d 667,
689 (Tex. Crim. App. 1992). The decision to strike a particular potential juror is not
susceptible to such rigid qualification. Id. We must also look to the entire record to
determine if, despite a similarity, there are any significant differences between the
5
characteristics and responses of the veniremembers that would, under the facts of the
case, justify different treatment. See Miller–El, 545 U.S. at 247, 125 S. Ct. at 2329.2
IV. Mathews’sBatson Challenge and Hearing
Here, after the State exercised its peremptory strikes, Mathews’s counsel raised
a Batson challenge regarding the State’s striking veniremembers 12 and 30. The State
concedes that Mathewssatisfied his burden of establishing a prima facie case of racial
discrimination (step one). The burden then shifted to the State to come forward with
race-neutral explanationsfor its strikes (step two).
As 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 challenges on a racially discriminatory basis,
notwithstanding the race-neutral explanations they offered at the Batson hearing.”
Watkins, 245 S.W.3d at 448 (citing Miller–El, 545 U.S. at 266, 125 S. Ct. at 2340).
Those factors included (1) that the State had struck a higher percentage of AfricanAmericans than those who were not African-American, (2) that the State’sreasons for
striking African-American jurors appeared to apply equally to non-African-American
jurors whom the State did not strike, (3) that the State had used jury shuffles in a
manner that supported an inference of racial discrimination, (4) that the State had
questioned African-American jurors differently from those who were not AfricanAmerican and in a way designed to obtain answers justifying strikes of AfricanAmerican jurors, and (5) that the county in which the defendant was prosecuted had a
formal policy of excluding minority jurors from service. Miller-El, 545 U.S. at 240–64,
125 S. Ct. at 2325–39; see Watkins, 245 S.W.3d at 448–49.
6
know had an unpleasant experience with the police?” veniremember 12 answered
“Yes” and wrote “Excessive force, Racism.” These three reasons can generally be
lumped into two categories—a history of domestic abuse and bad experience with law
enforcement.
As to veniremember 30, the State proffered three reasons for its strike:
(1) veniremember 30 had a DWI conviction, (2) he answered “three” in response to a
scaled question regarding law enforcement, and (3) he liked CNN.
The reasons provided by the State as to veniremembers 12 and 30 were, on
their face, race-neutral. Indeed, Mathews does not dispute this on appeal. The heart
of the dispute at trial and on appeal centers on the third step—whether the raceneutral reasons offered were pretextual. On this point, Mathews bore the burden of
proof. See Watkins, 245 S.W.3d at 451–52.
V. Discussion
A. Disproportionate-Strike Analysis
Because the State used two of its ten peremptory challenges (20% of its strikes)
to strike 50% of the African-Americans within the strike3
zone (two of four
veniremembers), the State admits that its strikes disproportionately excluded AfricanAmerican veniremembers. See id. at 451 (noting the State’s use of 55% of peremptory
strikes to exclude 88% of African-American veniremembers was clearly
disproportionate); see also Henderson v. State, No. 02-15-00397-CR, 2017 WL 4172591,
3The strike zone ranged from veniremember 1 through veniremember 40.
7
at *10 (Tex. App.—Fort Worth Sept. 21, 2017, pet. ref’d) (mem. op., not designated
for publication) (noting that the State used a statistically disproportionate number of
strikes when it used two, or 20%, of its ten peremptory challenges to strike 67% of
the African–Americans on the venire panel); Jackson v. State, No. 02-09-00023-CR,
2010 WL 1509692, at *5 (Tex. App.—Fort Worth Apr. 15, 2010, pet. ref’d) (mem.
op., not designated for publication) (concluding that State’s use of 30% of its
peremptory challenges to strike 75% of African-Americans on the venire panel was
statistically disproportionate). While disproportionality in the use of strikes may
“support the appellant’s ultimate burden of persuasion that the State’s proffered raceneutral explanations are a sham,” Watkins, 245 S.W.3d at 452, the analysis does not
end there. The Supreme Court in Miller–El noted that a comparative analysis is
“[m]ore powerful” than “bare statistics,” and thus, we must also consider
the State’s proffered reasonsfor striking veniremembers 12 and 30. 545 U.S. at 241,
125 S. Ct. at 2325.
B. Comparative-Juror Analysis
1. Veniremember 12
At the outset of the Batson hearing, Mathews’s counsel challenged the first one
of the two categories of race-neutral reasons given for veniremember 12 by asserting
that she wanted to know which other domestic violence victims were struck on the
basis of a domestic violence history. The State then clarified that veniremember 12
not only was a victim of domestic violence but also was someone suffering “complex
8
PTSD for all types due to abuse from her father.” Mathews argues the State’s reason
was pretextual because other veniremembers spoke during voir dire of their past
experiences with family violence. Mathews specifically points to veniremember 14,
who was presumably not African-American4
and was not struck despite her personal
history of domestic abuse.
Comparing veniremember 12 with veniremember 14, the record shows that
veniremember 12 wrote “domestic abuse” on her jury questionnaire in response to
the question asking if she had been a victim of a crime. During voir dire, in response
to the prosecutor’s question about whether anyone had experience with domestic
assault or abuse, veniremember 12 raised her hand and stated, “Mine was from my
father. I have complex post-traumatic stress disorder from abuse, all types from my
father for about nine years.” To the prosecutor’s follow-up question, “And with that
experience, is that something you could set aside and determine this case only on the
facts and evidence that you hear or is it something that’s affected you so much that
you can’t give any fair judgment to the defendant,” veniremember 12 responded, “I
could.”
4The record does not include a demographic makeup of the venire panel, but
the State does not challenge Mathews’s counsel’s statement during the Batson
challenge, “If they struck number 12, number 30, or number 40, we would have a
Batson challenge on those.” Thus, for purpose of analysis, we assume all other
veniremembers were not African-American unless stated otherwise during the Batson
hearing, like veniremember 5.
9
Veniremember 14, after asking to speak privately, also relayed to the trial court
and counsel a history of domestic abuse. Hers involved abuse from her ex-husband
while she was pregnant. The prosecutor then asked, “What effect is that going to
have on you?” to which veniremember 14 replied,
I honestly feel like it wouldn’t have any effect whatsoever. I still believe
that [it] would not have any effect. . . .
And I just know that my heart rate, I mean it was up to 127. I’m
like, oh, my gosh. So I just felt like, okay, maybe this is stirring a little
something in me. And I just wanted to be honest about that. But like I
said, I’m extremely nervous just talking right now in that situation, so
that may be why.
Mathews argues that unlike veniremember 12, veniremember 14 was visibly
shaken during voir dire when recounting her history of domestic abuse and yet was
not struck by the State, which serves as proof of pretext. In response, the State
clarifies that it struck veniremember 12 because she had experienced both domestic
abuse and bad experiences with law enforcement, a characteristic not shared by
veniremember 14.
As to bad experiences with law enforcement, the record indicates that
veniremember 12 answered “yes” to the jury-questionnaire inquiry asking if she or
someone she knew had had an unpleasant experience with the police. When
prompted to describe the unpleasant experience, she wrote, “Excessive force.
Racism.” And when veniremember 12 was asked to explain her answer during voir
dire, she stated,
10
So at the high school I went to—there was a sheriff that had his own
office within our school. He was called in one day for a student who
was being loud, joking, but the teacher couldn’t get him to stop. So
normal for a police officer to come in, kind of straighten him out a little
bit. What the kid got wasn’t—he didn’t deserve. Pretty much slammed
his face on the ground, threw him around a little bit. Knocked over
desks. It wasn’t anything kids should see. It wasn’t anything that should
be done to a child.
Veniremember 12 also added that the officer used racial slurs. When asked if that was
the only bad experience she had with police, she responded, “My brothers have been
pulled over multiple times. Reason being taillights out. The taillight wasn’t out. But
my whole family is mixed, so what some of my brothers experience, my white
brothers don’t experience.” And when further asked if she could set those
experiences aside and judge the police officers’ credibility after hearing their
testimony, veniremember 12 responded, “Uh-huh.”
While veniremember 14 had a history of domestic abuse, she never indicated
bad experiences with law enforcement. On her jury questionnaire, veniremember 14
answered that neither she nor someone that she knew had had an unpleasant
experience with police. To the contrary, she indicated that others close to her had
worked as police officers, writing, “Best friend is a Tarrant co. officer, boyfriend is an
ex-officer, uncle ex-Lieutenant in Ft. Worth.” During voir dire, when asked if she
could listen to the officers’ testimony before judging their credibility, she stated, “I
mean,I really feel like, I mean, I want to believe that, you know, they’re all good and
they’re here for us and all of that, but they’re people.” The State then repeated the
11
same question, and she replied affirmatively. Thus, veniremember 14 can be
distinguished from veniremember 12 because veniremember 14 did not relate bad
experiences with police, she had family and friends in law enforcement, and she
expressed a belief that police are there to help citizens.
Because the record supports the State’s argument that veniremember 12 noted
both unpleasant experiences with police and domestic abuse, we cannot say that a
comparative analysis with veniremember 14 supports Mathews’srequisite burden of
persuasion that the State’s proffered race-neutral explanation was pretextual. See
Watkins, 245 S.W.3d at 452.
Mathewsfurther argues that a dozen veniremembers indicated bad experiences
with police—some having more severe and personal negative experiences than
veniremember 12—and points out that four other veniremembers who were not
African-American5
expressed negative experiences with police but were not struck by
the State. We will examine each of these four potential jurors.
Veniremember 19, who was ultimately seated on the jury, described multiple
unfair experiences with police. Following her “yes” answerto the jury-questionnaire
inquiry about whether she or someone she knew had had an unpleasant experience
with police, veniremember 19 wrote that her brother was pulled over for a broken
taillight and was held at the location for hours awaiting a drug dog. When the State
asked her if she believed that her brother was treated fairly or not, she answered,
5Mathews identified those four as veniremembers 19, 25, 27, and 37.
12
“unfairly.” Similar to its questioning of veniremember 12, the State then asked
veniremember 19 if that was her only bad experience with police. Veniremember 19
replied that there was another incident involving her daughter that she described as
having been “handled horribly.” When asked if she could put aside those experiences
and make judgments on credibility only after the evidence had been presented,
veniremember 19 replied, “I would do my best, but that would certainly impact my
assessment.” But when further pressed for a “yes or no” answer, veniremember 19
answered, “Yes.”
As for veniremember 25, who was also seated on the jury, he also answered
“yes” to the question regarding unpleasant experiences with police. When asked to
describe the experience, he wrote: “terrible attitudes and hateful.” When the State
asked him to explain his answer he stated, “When you’re trying to be polite with them,
and they—they’re just impolite, brash.” But when asked if he believed this of all
officers, he answered, “No, certainly not.” Like veniremember 12, when
veniremember 25 was asked if he could put aside those experiences, he replied, “Oh,
yeah.”
On veniremember 27’s jury questionnaire asking about negative experiences
with police, she wrote, “Good friend’s daughter was arrested for outstanding traffic
warrant. The policeman treated her like a [word omitted from the record].”6 When
asked to elaborate during voir dire, she said this incident led her to believe that “that
6Veniremember 27’s jury questionnaire appears to be incomplete.
13
particular officer” was “kind of over the top for the situation. But, you know, I think
it was just him.” The State did not ask veniremember 27 if she could set those
experiences aside but rather moved on to ask further questions of another
veniremember who had indicated bad experience with police.
Regarding veniremember 37, he indicated on his jury questionnaire that he had
had no unpleasant experiences with police. And during voir dire, veniremember 37
provided no additional information about encounters with law enforcement.
7 He also
did not indicate any history of domestic abuse on his jury questionnaire and did not
raise his hand to add any additional information when the prosecutor raised the topic.
And neither the State nor Mathews questioned him on this topic.
While the record supports Mathews’s claims of disparate treatment as to bad
experiences with police, none of the four veniremembers—19, 25, 27, or 37—
indicated that they had any history of domestic abuse. Veniremember 12 was the only
potential juror to note both negative experiences with law enforcement and a history of
domestic abuse. The State argued that it struck veniremember 12 based on the
totality of her negative experiences with police, from high school to her brothers’
treatment, coupled with her history of family violence. Because the trial court’s ruling
requires “an evaluation of the credibility and demeanor of prosecutors and venire
members [sic], and because this evaluation lies peculiarly within the trial court’s
province,” we must defer to the trial court “in the absence of exceptional
7Neither the State nor Mathews questioned him on this topic.
14
circumstances.” Grant v. State, 325 S.W.3d 655, 657 (Tex. Crim. App. 2010). No
exceptional circumstances are present here, and the trial judge found credible the
State’s explanation of why, despite some similarities between veniremember 12 and
veniremembers 19, 25, 27, and 37, different treatment was justified. Thus, we do not
disturb that finding on appeal. See id.
2. Veniremember 30
The State explained that it struck African-American veniremember 30 because
of his DWI conviction, because he answered “three” in response to a scaled question
regarding law enforcement,
8
and because he liked CNN. During the Batson hearing,
the State pointed out that it had also struck veniremember 2, a white male who had a
marijuana conviction.9 But Mathews’s attorney countered that another veniremember
with a completed felony deferred adjudication wasseated on the jury10 and added that
the State failed to ask veniremember 30 follow-up questions regarding his DWI
conviction.
8During voir dire, the prosecutor posed a question regarding “the local police
here in Tarrant County” by asking veniremembers to rank their attitudes on a scal e of
one to five, with one meaning “you’re not at all satisfied” and five meaning “you’re
completely satisfied.”
9We assume that veniremember 2 was a white male from the prosecutor’s
statement during the Batson hearing, “We did strike juror number two who did have a
marijuana conviction, who is a white male.”
10Veniremember 10, presumably not African-American, served on Mathews’s
jury despite his 1995 deferred adjudication for unlawful possession of a firearm.
15
On appeal, Mathews raises three arguments suggesting the State’srace-neutral
reasonsfor striking veniremember 30 were a pretext for a racially motivated strike.
First, Mathews argues, as he did during the Batson hearing, that the State’s
proffered reason regarding veniremember 30’s misdemeanor DWI conviction is mere
pretext because the State did not strike veniremember 10, who had been on felony
deferred adjudication. While a conviction serves as a race-neutral reason for
exercising a peremptory strike against an individual, see Henderson, 2017 WL 4172591,
at *11, the record here indicates veniremember 10 had no conviction because he had
successfully completed deferred adjudication, and the State argues that this provides a
significant distinction between veniremembers 30 and 10. See id. The record supports
the State’s argument because it reflects that the State struck the only two
veniremembers with convictions—veniremembers 30 and 2. Thus, under a
comparative analysis, we cannot say that Mathews’s conviction argument, at least by
itself, compels a determination that the trial court clearly erred.
Second, Mathews asserts that three other potential jurors—who are presumably
not African-American—also answered “three” to the State’s scaled question but were
not struck by the State. The State concedes that it did not strike these three
veniremembers—5, 8, and 19—but argues that none of these veniremembers also had
a conviction, unlike veniremember 30. As the State argued regarding veniremember
12, it was not the “three” answer alone, but a combination of veniremember 30’s
conviction and his “three” answer that motivated the State’s strike. Thus, in the
16
absence of exceptional circumstances, we once again defer to the trial court’s ruling
on the credibility of the State’s argument that the differences between veniremember
30 and veniremembers 5, 8, and 19 justified different treatment.
C. Disparate Questioning
Mathews also raises a disparate-questioning argument.
1. Disparate Questioning Between Veniremembers 12 and 37
During voir dire, the prosecutor discussed two main topics. First, drawing on
the questionnaire responses, he asked which veniremembers had had bad experiences
with police. Next, the prosecutor sought to determine which of the veniremembers
had been victims of domestic abuse.11
Additionally, during the course of voir dire, the
prosecutor asked the entire panel, “Does anybody know anyone who has been falsely
accused of a crime, or more specifically, of domestic violence?”
Citing Miller-El, Mathews argues the State engaged in disparate questioning
when it did not strike veniremember 37, who recounted familiarity with a falsely
accused individual and answered the scaled question posed by the prosecutor “the
exact same way” (“three” on a scale of one-to-five) as both veniremembers 12 and 30,
who were struck. To begin, the record does not support Mathews’s claim that
veniremember 37 answered “three” to the scaled question on police. Rather, it shows
11The prosecutor asked this question at large and then sought elaboration when
a history had been indicated on the jury questionnaire. For example, veniremember
12 wrote “domestic abuse” in response to the jury-questionnaire question asking if
she had been a victim of a crime, so the prosecutor followed up with questioning of
veniremember 12 during voir dire.
17
that he answered “four,” indicating strongersupport for police than veniremembers
12 and 30.
Second, the subject of false accusations was not among the race-neutral reasons
proffered by the State for its strikes, and veniremember 37 never indicated that he had
any unpleasant experiences with police or a history of domestic abuse. More
importantly, when the State asked the entire panel about false accusations,
veniremember 37 was the only veniremember in the strike zone who responded.12

Because neither veniremember 12 nor 30 raised their hands to the question, there was
no reason for the State to question them on this topic. Thus, there is no evidence of
disparate questioning.
2. Lack of Meaningful Questioning of Veniremember 30
Additionally, also citing Miller-El, Mathews contends that the State engaged in
disparate questioning by not engaging in meaningful voir dire with veniremember 30.
Specifically, Mathews argues that the prosecutor failed to ask veniremember 30 any
questions on the topics the State claims were its race-neutral reasons for striking
12When the State asked the entire panel, “Does anybody know anyone who has
been falsely accused of a crime, or more specifically, of domestic violence?”
veniremember 37 was the only potential juror in the strike zone to raise his hand. He
stated that his friend’s family was accused “of all sorts of terrible things” by the
Department of Homeland Security and that he believed the accusations were
inaccurate. When the State asked if that experience would taint his judgment,
veniremember 37 stated, “No, I don’t think so. I mean, it just showed that people
could do things like that, but it wouldn’t taint me.” After being asked if he could wait
to hear all the facts before making a determination on whether the State met all
elements, he replied, “Absolutely.”
18
him—his conviction, his answering “three” to the scaled question, and his indication
that he watched CNN.
The Supreme Court indicated in Miller–El that the State’s failure to engage in
meaningful voir dire with a veniremember who the State strikes is evidence suggesting
that the strike is discriminatory. 545 U.S. at 246, 125 S. Ct. at 2328. But the Supreme
Court also stated that appellate courts must review the propriety of the trial court’s
ruling on a Batson challenge based on the “totality of the relevant facts” about the
State’s conduct during the trial. Id. at 239–40, 125 S. Ct. at 2324–25.
First, regarding Mathews’s claim that the prosecutor failed to ask questions
concerning veniremember 30’s conviction, the prosecutor did not ask veniremember
2—the only other potential juror with a final conviction and who was also struck by
the State—any questions regarding his conviction either.
13 Since the State did not
further question another similarly situated veniremember who was not AfricanAmerican, we cannot say that the State engaged in disparate questioning by failing to
ask additional questions of veniremember 30 related to his DWI conviction.
Second, as to veniremember 30’s answer of “three” to the scaled question,
Mathews points to no other venirememberwho was asked follow-up questions as to a
“three” answer, and we find none. And, as the State points out, veniremember 30
never raised his hand or offered additional information. The record also shows that
13On appeal, the State additionally argues that the prosecutor could have
decided not to ask additional questions about his conviction simply to save time, a
strategy that the State contends is reasonable.
19
the State did not further question four other (presumably non-African-American)
veniremembers—18, 29, 31, and 38—who only responded to the scaled question and
were subsequently struck. Thus, on this record it does not appear the prosecutor’s
treatment of veniremember 30 was disparate by failing to engage in meaningful voir
dire on his response to the scaled question regarding law enforcement.
Finally, as to the lack of questioning regarding veniremember 30’s jury
questionnaire response that he liked CNN, no other potential jurors listed CNN on
their jury questionnaires. And the State posed no additional questions to any
veniremembers during voir dire related to their answers regarding news or television
preferences. Thus, the State’s lack of questioning of veniremember 30 as to his CNN
preference provides no evidence of disparate treatment.
D. Other Factors
The remaining Miller-El factors support the trial court’s ruling. Neither the
State nor Mathews utilized a jury shuffle, and there is no evidence in the record that
Tarrant County has a formal policy of excluding minority jurors from service. See
Henderson, 2017 WL 4172591, at *11. In fact, it appears that one African-American—
veniremember 5—was seated on the jury.
14
These remaining factors support the trial
court’s decision. See id. (citing Lee v. State, 949 S.W.2d 848, 851 (Tex. App.—Austin
14We assume that veniremember 5 is African-American because during the
Batson hearing, the prosecutor noted that “juror number five is an African-American
that was not struck by the State,” and the accuracy of this statementwas not refuted
in the trial court or on appeal.
20
1997, pet.ref’d) (“[W]e note the State did not strike the otherAfrican-American juror
in the strike zone. This bolsters the prosecutor’s statement that he did not strike [a
veniremember] because of race.”)).

Outcome: Reviewing the record as a whole and applying, as we must, great deference to
the trial court’s ruling, we cannot say that the trial court was clearly erroneous in
overruling Mathews’s Batson challenge. See Watkins, 245 S.W.3d at 448. Although the
statistical analysis demonstrates that the State used a disproportionate number of
peremptory strikes on African-Americans, the reasons proffered for the strikes were
race neutral, and our comparative analysis of veniremembers 12 and 30 provides
support for the trial court’s failing to find that the State’s reasons for striking them
were pretextual. See id. at 448, 453–54. Accordingly, we overrule Mathews’s single
point and affirm the trial court’s denial of Mathews’s Batson challenge.

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