Eric Pettway v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00662-CR

Eric Pettway, Appellant

v.

The State of Texas, Appellee

FROM THE 460TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-DC-22-100131, THE HONORABLE SELENA ALVARENGA, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Eric Pettway was convicted of second-degree robbery by a jury and

sentenced to seven years’ imprisonment by the trial court. Tex. Penal Code §§ 12.33(a), 29.02.

In his sole issue, he contends that the trial court erred when it denied his Batson 1 challenge.

We affirm.

BACKGROUND

Pettway was indicted with aggravated robbery. Id. § 29.03. After voir dire, but

before the jury was sworn in, defense counsel raised a Batson challenge, challenging the State’s

use of preemptory strikes against veniremembers 1 and 17. Defense counsel acknowledged that

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See Batson v. Kentucky, 476 U.S. 79, 89 (1986) (holding that race-based jury strikes
deny defendant right to judgment by one’s peers).
“17 looked like he’d been out smoking marijuana all night,” but stated that “there were only

three African-American jurors. The State struck two of them, 1 and 17.”

The prosecutor argued that he had a race neutral reason for both strikes. He stated

that he struck veniremember 1 because “he did not make eye contact” and “appeared to be

nodding off at times,” which led the prosecutor to believe “he was not taking the proceeding

seriously.” Defense counsel argued that other veniremembers had been nodding off during the

State’s voir dire and stated that the prosecutor’s decision not to attempt to interact with

veniremembers 1 and 17 “troubled” him. The prosecutor explained that he struck veniremember

17 because “he wasn’t paying any attention” and had not completed his juror questionnaire. The

trial court confirmed that veniremember 17 had not filled out his questionnaire except for his age

and address. The trial court found that the State had a race-neutral reason for striking both

veniremembers 1 and 17 and thus, overruled defense counsel’s Batson challenge. The jury was

sworn in by the trial court.

The next day, after the State had called two witnesses, defense counsel moved to

amend his Batson challenge. He explained that at the time he raised his objection, he mistakenly

believed that a third Black veniremember—number 10—was on the jury. He stated that upon

seeing the jury that day, he realized veniremember 10 was not there. He requested to amend his

challenge “to state the State struck all three black people of the panel, including Number 10, who

was engaged.” The trial court took up the Batson challenge regarding veniremember 10. The

trial court took “note that all black members of the panel were stricken by the State.” The

prosecutor responded that he did not remember veniremember 10 “being African-American” or

answering any questions. He stated that he struck veniremember 10 because that prospective

juror did not fill out the jury questionnaire. He showed the trial court a copy of the document he

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used to make his strikes, which only included veniremember 10’s age. The trial court noted that

veniremember 10 did not respond to the questionnaire, and that it was left “essentially blank”

and did “not even indicate their race.” The trial court found that the State struck veniremember

10 for a race-neutral reason and denied defense counsel’s challenge to veniremember 10. After

the ruling, the State clarified that there was an additional veniremember that was African

American and not struck by the State to which defense counsel noted that that person was outside

the strike zone—meaning that the juror was not going to be sat on the jury without the need of

any action from either party.

During the trial the State presented testimonial evidence, including through police

detectives, a digital forensic analyst, and the complainant. Kylie Bagby-Daniel testified that

Pettway was one of four people who robbed her in her home at gunpoint. The trial court

admitted surveillance video depicting Pettway accompanying a codefendant to a pawn shop to

sell items that had been reported stolen in the robbery.

After hearing all the evidence, the jury found Pettway not guilty of aggravated

robbery but guilty of the lesser-included offense of robbery. The trial court sentenced Pettway to

ten years’ imprisonment. Pettway filed a motion for new trial for sentencing, which was granted.

Pettway was sentenced to seven years’ imprisonment. Pettway appealed.

DISCUSSION

In his sole issue on appeal, Pettway contends that the trial court erred when it

denied his Batson challenge, which included objections to the State’s use of preemptory strikes

against veniremembers 1, 10, and 17.

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As an initial matter, the State contends that Pettway failed to preserve his

challenge to veniremember 10 for our review because it was not timely raised. To be timely, a

Batson challenge must be raised after the parties deliver their lists of peremptory strikes to the

clerk and before the court has impanelled the jury. Tex. Code Crim. Proc. art. 35.261; Hill

v. State, 827 S.W.2d 860, 864 (Tex. Crim. App. 1992) (explaining that jury is “impanelled”

when members of jury have been selected and sworn) To preserve error for appeal a party must

make a timely objection stating the grounds for the ruling being sought from the trial court with

sufficient specificity to make the trial court aware of that complaint and either obtain a ruling or

object to a refusal to rule. Tex. R. App. P. 33.1. For purposes of our analysis, we assume,

without deciding, that the objection was timely, and the error was preserved for our review.

We 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. App. 2010) (quoting Batson v. Kentucky, 476 U.S. 79, 89 (1986)). A Batson

challenge to a peremptory strike consists of three steps: (1) the opponent of the strike must

establish a prima-facie showing of racial discrimination, (2) the proponent of the strike must

articulate a race-neutral explanation, and (3) the trial court must decide whether the party

opposing the strike has proved purposeful racial discrimination. Id.

Each stage of a Batson challenge involves burden shifting. First, a prima facie

case of discrimination must be established by the opponent of the strike. Nieto v. State,

365 S.W.3d 673, 675–76 (Tex. Crim. App. 2012). If the party opposing the strike makes this

initial showing, the burden shifts to the State to produce a facially non-discriminatory reason for

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its use of the strike. Id. at 676. “Unless a discriminatory intent is inherent in the prosecutor’s

explanation, the reason offered will be deemed race neutral.” Purkett v. Elem, 514 U.S. 765, 768

(1995). If the State produces a facially non-discriminatory reason for its strike, the burden shifts

back to the opponent of the strike to show that the State’s proffered reason is a pretext. Nieto,

365 S.W.3d at 676. When reviewing the trial court’s resolution of the third step, we must “focus

on the genuineness, rather than the reasonableness, of the asserted non-racial motive.” See id.

In reviewing a trial court’s ruling on a Batson challenge, we consider the entire

record from voir dire and are not limited to the specific arguments made to the trial court by the

parties. See id. We must review the record in the light most favorable to the trial court’s ruling

and not disturb the ruling unless it is clearly erroneous. See Young v. State, 283 S.W.3d 854, 866

(Tex. Crim. App. 2009). The question of whether the prosecutor’s stated reason for striking the

veniremember was a pretext is solely a question of fact. Gibson v. State, 144 S.W.3d 530, 534

(Tex. Crim. App. 2004). Deference must be given to the trial court’s evaluation of the

prosecutor’s credibility. Grant, 325 S.W.3d at 661. Whether the opponent has satisfied his

burden of persuasion to show that the State’s facially race-neutral explanation for the strike is not

genuine but instead pretextual is a question of fact for the trial court to resolve. Blackman

v. State, 414 S.W.3d 757, 765 (Tex. Crim. App. 2013).

Here, Pettway’s issue concerns the third prong of his Batson challenge. He

contends that the State’s proffered reasons for striking the three Black veniremembers that were

within the strike zone were all a pretext. He 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

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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, 868 (Tex. Crim. App. 1988); see also

Williams v. State, 804 S.W.2d 95, 106 (Tex. Crim. App. 1991) (approving use of Keeton factors

in applying “clearly erroneous” standard of review). These factors are “useful in making a

determination that the State’s proffered race-neutral reasons are supported by the record, as well

as the trial court’s findings.” Williams, 804 S.W.2d at 105–06. The five factors are:

1. The reason given for the peremptory challenge is not related to the facts of
the case;

2. There was a lack of questioning to the challenged juror or a lack of
meaningful questions;

3. Disparate treatment—persons with the same or similar characteristics as the
challenged juror were not struck;

4. Disparate examination of members of the venire, i.e., questioning a challenged
juror so as to evoke a certain response without asking the same question of
other panel members; and

5. An explanation based on a group bias where the group trait is not shown to
apply to the challenged juror specifically.

Id. at 106.

In his appellate brief, Pettway focuses on the second factor—the lack of

questioning directed at the three struck veniremembers. A prosecutor’s decision not to address

questions directly to a struck juror may be considered as a factor when reviewing the trial court’s

decision on a Batson challenge. Grant, 325 S.W.3d at 659–60. However, it is reversible error

for an appellate court to give the “lack-of-questioning factor” dispositive weight. See id. at 659–

61 (reversing court of appeals decision and explaining that “[p]roperly applying the standard of

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review, the Court [of Appeals] should have given deference to the trial court’s evaluation of the

prosecutors’ credibility and should not have given dispositive weight to the lack-of-questioning

factor”). Thus, we will consider this factor in our review, but to the extent Pettway contends that

we should extend the reach of this factor to require prosecutors to ask questions of a

veniremember before using a peremptory strike, we decline to do so. See id.

The prosecutor’s race-neutral reason for striking veniremember 1 was that “he did

not make eye contact” and “appeared to be nodding off at times,” which led the prosecutor to

believe “he was not taking the proceeding seriously.” See Harrell v. State, 882 S.W.2d 65, 67

(Tex. App.—Houston [14th Dist.] 1994, pet. ref’d) (stating “inattentiveness is a racially neutral

reason for exercising a peremptory strike”). Defense counsel did not rebut the State’s

observations of veniremember 1’s demeanor, and thus, the State’s description is “considered

proved on the record.” Nieto, 365 S.W.3d at 680. Defense counsel argued that other

veniremembers had been nodding off during the State’s voir dire. While disparate treatment is

one factor that could weigh in support of finding pretext, there is no evidence in the record to

support that allegation of disparate treatment nor is it clear whether the other allegedly

inattentive veniremembers were also struck or impanelled. And finally, there is no evidence in

the record that this juror was struck based on a group trait. Rather, the prosecutor’s explanation

that the veniremember was falling asleep and not making eye contact with him was specific to

the veniremember’s behavior. Viewing all the factors in their totality, we conclude that the trial

court’s determination that striking veniremember 1 was racially neutral was not clearly

erroneous. See id. (concluding that trial court’s determination that State’s challenged strike was

racially neutral was not clearly erroneous when: prosecutor stated struck veniremember had

negative demeanor, State did not attempt to question veniremember on reason for negative

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demeanor, defense counsel did not rebut State’s observation of veniremember’s demeanor, and

record contained no evidence “that a non-minority venire member had a negative demeanor, but

was not struck”).

The prosecutor explained that he struck veniremember 17 because “he wasn’t

paying any attention” and had not completed his juror questionnaire. See Ester v. State,

151 S.W.3d 660, 662 (Tex. App.—Waco 2004, no pet.) (concluding that veniremember’s failure

to answer several questions on juror information card was race-neutral explanation for using

peremptory strike). Regarding inattentiveness, the same balancing analysis that we applied

regarding veniremember 1 above also applies to veniremember 17 and similarly weighs in favor

of the trial court’s finding that the State’s reasons were not a pretext. Additionally, regarding

veniremember 17, defense counsel not only did not rebut the State’s observation of

inattentiveness, but observed himself that this veniremember “looked like he’d been out smoking

marijuana all night.”

In regard to veniremember 17’s failure to complete the jury questionnaire, the

trial court confirmed that veniremember 17 had not filled out his questionnaire except for his age

and address. There is no evidence—or assertion—in the record to support that other

veniremembers failed to complete their forms and were not struck. Again, there is no evidence

in the record that this juror was struck based on a group trait. Viewing all the factors in their

totality, we conclude that the trial court’s determination that striking veniremember 17 was

racially neutral was not clearly erroneous. See id. (concluding that trial court’s finding of no

pretext was not clearly erroneous when reasons given were veniremember’s failure to complete

juror information card plus demeanor of appearing to not be “very coherent at times” and being

slow to react when addressed by prosecutor).

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Regarding veniremember 10, the prosecutor told the trial court that he struck this

potential juror because he did not fill out the jury questionnaire. See id. The prosecutor

explained that he was “not interested in having folks on the jury who do not respond to the jury

questionnaire.” He also stated that he did not remember the race of this veniremember. In

support, the prosecutor showed the trial court a copy of the document he used to make his

strikes, which included only veniremember 10’s age and not his race. The trial court confirmed

that veniremember 10 did not respond to the jury questionnaire, described it as being “essentially

blank,” and noted that it did “not even indicate their race.” As noted above, there is no evidence

of disparate treatment of the African-American members of the venirepanel based on completion

level of their jury questionnaires. There is no evidence in the record that this juror was struck

based on a group trait. Viewing all the factors in their totality, we conclude that the trial court’s

determination that striking veniremember 10 was racially neutral was not clearly erroneous.

Jones v. State, 818 S.W.2d 532, 534-37 (Tex. App.—Houston [1st Dist.] 1991, no pet.)

(concluding that trial court did not err when it found that striking veniremember for failure to

correctly fill out juror questionnaire was racially neutral and not pretext).

For all three struck venirepersons, Pettway contends that the State did not do

enough to demonstrate that its strikes were not based on racial bias and that the trial court should

have considered the stated reasons pretextual. However, Pettway had the burden of persuasion

under this step. See Nieto, 365 S.W.3d at 676. Further, “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. App. 1990) (op. on reh’g) (holding

that trial court’s finding of no purposeful discrimination was clearly erroneous when record did

not support prosecutor’s stated reason for striking veniremember and evidence presented by

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defendant weighed against stated reason). Here, the record supports the State’s stated reasons for

all three challenged peremptory strikes. Therefore, based on this record we cannot say that the

trial court clearly erred in overruling Pettway’s Batson challenge. We overrule Pettway’s

sole issue.

CONCLUSION

We affirm the trial court’s judgment of conviction.

__________________________________________
Gisela D. Triana, Justice

Before Chief Justice Byrne, Justices Triana and Kelly

Affirmed

Filed: September 26, 2025

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