Full opinion text
OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW MILLER, Judge. Appellant was convicted by a jury of the offense of burglary of a habitation with intent to commit sexual assault. V.T.C.A. Penal Code, § 30.02(a)(1). The trial court assessed punishment at 99 years imprisonment in the Texas Department of Corrections. The Fourteenth Court of Appeals abated appellant’s appeal and ordered the trial court to conduct a hearing on the Batson issue raised by appellant on appeal. Upon receipt of the transcript of the Batson hearing, the Court of Appeals addressed appellant’s points of error and affirmed his conviction in an unpublished opinion. Whitsey v. State, No. C14-85-530-CR, 1987 WL 15052, delivered July 30, 1987. Appellant then petitioned this Court for discretionary review. We originally denied appellant’s petition but granted his motion for rehearing on the Batson issue. We will reverse the judgments of the trial court and the Court of Appeals. After the voir dire of the jury panel was completed, but before the jury was sworn, appellant’s counsel objected to the jury on the ground that the prosecutor had used his peremptory challenges to exclude blacks from the jury and that denied appellant “his right to a fair cross-section of the community’’. Appellant’s counsel stated for the record that there were seven blacks in the first forty venirepersons, that the first black veniremember was struck for cause, that the remaining six blacks on the venire were struck peremptorily by the State, and that the State used six of its ten peremptory challenges to strike the blacks from the jury panel. Counsel then also objected that appellant was being denied his due process. The trial court overruled appellant’s objections and swore in the jury. After appellant’s conviction on March 11, 1985, he filed a motion for new trial and an amended motion for new trial in which he alleged he was not tried by a jury of his peers because the prosecutor’s strikes were racially motivated (a Batson claim), and that the prosecutor used peremptory challenges to systematically exclude blacks from jury panels (a claim based on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)). A hearing was held on appellant’s amended motion for new trial on May 30, 1985. At the hearing, appellant’s counsel attempted to question the prosecutor about his reasons for striking the blacks from appellant’s jury panel. The State’s attorney at the hearing objected to any inquiry as to the prosecutor’s “individual reasoning process in this case” on the basis of Swain, supra, and the trial court sustained that objection thereby preventing appellant from determining why the prosecutor struck the black venireper-sons in his trial. The trial judge, however, allowed appellant’s counsel to question the prosecutor about his use of peremptory challenges in other cases and Harris County prosecutors’ use of peremptory challenges in general in the past. At the conclusion of the hearing, appellant's counsel argued to the court that the present state of the law allowed him to question an individual prosecutor as to his use of peremptory challenges in a particular trial to determine whether a defendant was denied a fair trial. The State waived any argument, and the trial judge denied the amended motion for new trial. Appellant’s counsel gave notice of appeal. The Fourteenth Court of Appeals abated the appeal on March 26, 1987, and ordered the trial court to conduct a hearing “to provide the prosecutor with an opportunity to rebut appellant’s prima facie showing of purposeful discrimination”, i.e., a Batson hearing. In its order, the Court of Appeals concluded appellant established a prima facie showing of purposeful discrimination in the motion for new trial hearing. The Court of Appeals concluded, however, that the prosecutor was not afforded the opportunity to rebut appellant’s prima facie case and offer racially neutral reasons for the exercise of the peremptory challenges against the black venirepersons. Nor was the Court of Appeals satisfied that appellant could not present evidence rebutting any neutral explanations offered by the State. Thus, the Court of Appeals ordered the trial court to conduct a Batson hearing and held the appeal in abeyance pending the filing of the statement of facts from the hearing and the findings of fact and conclusions of law of the trial judge. We first note that the record supports the Court of Appeals’ decision that appellant established in the motion for new trial hearing a prima facie showing of purposeful discrimination by the prosecutor in his exercise of peremptory challenges. The record reflects that appellant is a black man and that no blacks served on appellant’s jury. Also, of the seven black persons that were on the jury panel, one was struck for cause and the remaining six were peremptorily struck by the prosecutor. At the hearing on the motion for new trial, the prosecutor testified that he questioned only one of the six black members of the jury panel, who was struck for cause, but he had conducted a general voir dire of the panel and did not ask many questions of individual venirepersons. An inference of discriminatory purpose in the prosecutor’s use of peremptory challenges is supported by the totality of these facts. After the Batson hearing on June 5, 1987, the trial judge entered the following findings of fact and conclusions of law: “1. The Complainant was black, but the State’s only two identification witnesses were white police officers. 2. The only black jury question by either State of (sic) Defense related to that juror’s friendship with several police officers. 3. Prosecutor Stabe did not ask any questions of any of the six black jurors, nor did he question individually any of the other jurors on the panel. 4. Prosecutor Stabe did not have an independent recollection as to the basis of his strikes at the time of the hearing of a Motion of New Trial in May of 1985. 5. Prosecutor Stabe spent six to eight hours refreshing his memory from the actual voir dire and the Motion for New Trial hearing to develop his explanations for his strikes. 6. Prosecutor Stabe used ethnic, religious and job related stereotypes as a basis for his ‘neutral explanation.’ 7. Prosecutor Stabe, during the jury selection, identified each of the six black jurors on his information sheet by writing the letters ‘B’ (sic) above their names. 8. The Assistant District Attorney Bob Stabe represented the State of Texas in the trial of [appellant]. 9. That Bob Stabe exercised all ten of his peremptory challenges afforded him by Article 35.15(b) of the Texas Code of Criminal Procedure. 10. That Bob Stabe exercised a peremptory challenge on venireperson number 3, John Wesley Wauson, a white male, because he was an attorney and stated that in his opinion the State’s burden of proof was a difficult burden. 11. That Bob Stabe exercised a peremptory challenge on venireperson number seven, Gloria Wright Mitchell, a black female, because she engaged in a dialogue with the defense attorney, nodded with the statements of the defense attorney, and, in Bob Stabe’s mind, appeared to have a problem with the credibility of police officers in general. 12. That Bob Stabe exercised a peremptory challenge on venireperson number eight, Sherry Lynn Ramsey, a black female, because of her age of twenty-four years and because her husband was employed as a nurses’ assistant. 13. That Bob Stabe exercised a peremptory challenge on venireperson number twenty-four, Maurine Anita Fuller, a black female, because of her occupation as a teacher and that in Mr. Stabe’s opinion teachers tend to be liberal and forgiving. 14. That Bob Stabe exercised a peremptory challenge on venireperson number thirty, Carol L. Mireles, a white female because of her occupation as a teacher. 15. That Bob Stabe exercised a peremptory challenge on venireperson number thirty-two, Glenda Kaye Johnson, a black female, because of her religious preference, namely, Pentacostal. In Mr. Stabe’s opinion those of the Pentacostal faith tend to look to their religion to make decisions and sometimes feel that they speak in tongues, therefore, becoming a fringe religious group. 16. That Bob Stabe exercised a peremptory challenge on venireperson number thirty-five, Willie Lee Hunt, a black male, because of his religious preference, namely, Church of God, and because of an unanswered question on his jury information card. Specifically, Mr. Stabe testified that he has never heard of the Church of God religion and is unaware of how those beliefs may influence a decision by Mr. Hunt. 17. That Bob Stabe exercised a peremptory challenge on venireperson number thirty-six, Virgil James Thompson, a white-male, because of his occupation as a hair-stylist, his length of time on the job of three months, and that, in Mr. Stabe’s mind, he appeared to be homosexual. 18. That Bob Stabe exercised a peremptory challenge on venireperson number thirty-eight, Edward H. Rosen, a white male, because of his being of the Jewish faith and from Baltimore, Maryland, both traits indicating a liberal nature. 19. That Bob Stabe exercised a peremptory challenge on venireperson number thirty-nine, Reginald Bernard Ardoin, a black male, because of his age of 21 years and because he appeared to be illiterate in that he could not spell his religious preference of Baptist nor his place of birth. 20. That the crime that [appellant] was accused of committing was not interracial. CONCLUSIONS OF LAW Based on the foregoing findings of fact, the Court has arrived at the following conclusions of law; 1. That the State, through his Assistant District Attorney, Bob Stabe, stated he had neutral reasons for the exercise of six peremptory strikes on the six black venirepersons, and 2. That the appellant did not rebut the State’s explanations. 3. That the appellant did not prove by a preponderance of the evidence that Bob Stabe engaged in purposeful discrimination in the selection of the petit jury through the use of his peremptory challenges.” The trial judge then concluded that appellant was not denied the equal protection of the law by the prosecutor’s use of his peremptory challenges. Upon receipt of the transcript and the statement of facts from the Batson hearing, the Court of Appeals addressed appellant’s three points of error; however, only the disposition of the first point of error concerns us here. The court of appeals concluded that the findings of the trial court, that the reasons for the peremptory challenges were racially neutral and that the prosecutor did not purposefully discriminate against appellant, were not clearly erroneous and, therefore, overruled appellant’s first point of error. Whitsey, supra, slip opinion at p. 2. The Court of Appeals stated: Appellant contends that ethnic, religious and job-related stereotyping cannot be a neutral explanation. We do not perceive it to be our function to judicially weigh reasons for peremptory strikes other than those that are constitutionally precluded. The very nature of peremptory strikes is to afford both sides the leeway to eliminate prospective jurors from the trial that they perceive as adverse to their respective interests. For us to interfere with this process, other than when it constitutes specific discrimination as ennunciated (sic) by the Supreme Court, would be destructive of our system of peremptory challenges in criminal cases. If this area of constitutional examination as to peremptory challenges is to be further broadened to include occupational, political, and religious areas, the Supreme Court must make that expansion. We do not construe Batson and prior decisions to have made such an extension. Further, we believe that an unlimited broadening of such inquiry would be fatal to the peremptory challenge system so long entreached (sic) in our jurisprudence. We do not agree with the Court of Appeals’ opinion. We initially note that the Court of Appeals applied the wrong standard for review of the trial judge’s findings. In Keeton v. State, 749 S.W.2d 861 (Tex.Cr.App.1988) (Opinion Following Abatement) (Hereinafter cited as Keeton II), wherein we thoroughly discussed the Batson decision and its progeny, we specifically rejected the “clearly erroneous” standard. Kee-ton II, at 870. Instead, we considered the evidence in the light most favorable to the trial judge’s rulings and determined whether the record supported the findings of the trial judge. If there is sufficient evidence to support the trial judge’s finding of no purposeful discrimination, the findings will not be disturbed on appeal. In Keeton II the finding of the trial judge that the prosecutor’s strikes were not based solely on the juror’s race was amply supported by the record at trial and at the Batson hearing. See Keeton II at 870. The Court of Appeals erred in the instant case by applying a clearly erroneous standard in overruling appellant’s point of error. Furthermore, the Court of Appeals is incorrect in its perception of its role as an appellate court when presented with a Batson issue. The Court of Appeals apparently finds that it is appropriate to interfere with the peremptory challenge system only when the exercise of a strike is “constitutionally precluded”, and that otherwise we should not question the rationale for the strike of a prospective juror. From the language of the Court of Appeals' opinion, it appears that the Court would only review the exercise of a peremptory challenge where there is a blatant constitutional violation, such as where a prosecutor states “I struck that prospective juror because he is black.” Limiting our review to the exercise of such a challenge ignores the reality that the peremptory challenge system permits discrimination by those “who are of a mind to discriminate.” As Justice Marshall stated in his concurring opinion in Batson, 106 S.Ct. at 1728: [I]t is even possible that an attorney may lie to himself in an effort to convince himself that his motives are legal, [citation omitted] A prosecutor’s own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is ‘sullen,’ or ‘distant,’ a characterization that would not have come to his mind if a white juror had acted identically. A judge’s own conscious or unconscious racism may lead him to accept such an explanation as well supported. See e.g. Daniels v. State, 768 S.W.2d 314 (Tex.App.-Tyler 1988), pet. refused March 1, 1989. Moreover, the Court of Appeals refused to accept appellant’s contention that ethnic, religious and job-related stereotyping cannot be neutral explanations for striking black veniremembers and concluded that the Batson decision did not countenance such an inquiry. We do not interpret Batson, supra, to be limited to review of constitutionally precluded rationales for exercise of peremptory challenges. Implicit in the Batson decision, so as to promote equal protection of the law, is the provision that we must examine every reason given by the prosecutor for the strike of a black veniremember within the circumstances of that particular case to determine whether the “neutral explanation” for the strike is really a pretext for a racially-motivated peremptory challenge. Thus, we are not limited to reviewing constitutionally precluded strikes, as the Court of Appeals concludes, but we are required to review the rationale for each strike which an appellant prima facially establishes is racially-motivated in spite of the seemingly neutral rationale offered by the prosecutor. After reviewing the record in this cause, we do not find that the findings and conclusions of the trial judge and the holding of the Court of Appeals are supported by the record. Although the prosecutor’s explanations for the exercise of his peremptory challenges are racially neutral on their face, the evidence presented by appellant in rebuttal at both the motion for new trial hearing and the Batson hearing weighs against a finding that these explanations were actually racially neutral. As stated by the Supreme Court in Batson, supra, the prosecutor must “articulate a neutral explanation related to the particular case to be tried.” Batson, 106 S.Ct. at 1723. That requirement, however, is not sufficient to overcome appellant’s prima facie showing of purposeful discrimination. The prosecutor must give “clear and reasonably specific” explanations of “legitimate reasons” for his use of peremptory challenges. Batson, 106 S.Ct. at 1722-1724 and n. 20. Such a requirement mandates that the trial judge evaluate the reasons given by the prosecutor in light of the circumstances of that trial to determine whether the explanations are merely a pretext. In Keeton II, we discussed a nonexclusive list of factors which weigh against the legitimacy of a race-neutral explanation. The presence of any one of these factors tends to show that the State’s reasons are not actually supported by the record or are an impermissible pretext. Those factors, which we employ in our analysis today, 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. See Keeton II at 866, citing Slappy v. State, 503 So.2d 350 (Fla.Dist.Ct.App.1987), affirmed 522 So.2d 18 (Fla.1988). The record from the Batson hearing indicates that both the complainant and appellant were black and that there were seven blacks on appellant’s jury panel. There were ten persons on the jury panel who had friends or relatives in law enforcement. Of these ten people, who the prosecutor conceded generally make good state’s jurors, only two were black, and both these persons were struck by the State. Appellant’s attorney struck five of these people (all white), and the three remaining served as jurors. Upon reviewing the voir dire transcript, the prosecutor recalled his reasoning for striking Gloria Mitchell, one of the blacks struck from the panel, and stated that he struck her because she seemed to nod in agreement with what appellant’s attorney stated during voir dire, and also because: The conversation or the questioning between [appellant’s counsel] and Mrs. Mitchell dealt with any friends or relatives that Ms. Mitchell had in law enforcement, and Ms. Mitchell indicated that she had friends in the Houston Police Department vice division and also Department of Public Safety. [Appellant’s counsel] asked on two different occasions whether that would influence her or whether, I believe, a police officer, a witness that was not a police officer, and my recollection of what bothered me about Ms. Mitchell is her answers were not just no but were, “Oh, no.” And I don’t recall the wording of the second answer but the tone of the answers as best I recall were such that it would be the last thing in her mind that she would ever think of believing a police officer than a nonpolice officer witness. In my jury selection I had two Houston police officer witnesses that were critical to the case and it bothered me in that Ms. Mitchell may have for some reason, because of her experience with Houston police officers at vice, may have reasons not to believe police officers based on the general tone and answers to questions of [appellant’s counsel.] The prosecutor admitted that the only notes he had taken on the juror information sheets regarding Mitchell and Glenda Johnson, the other black venireperson with friends in law enforcement who was struck for religious reasons (see discussion below), were “pro-state notes” and the letter “B” indicating that these venirepersons were black. The prosecutor also testified that he struck certain venirepersons because of their religious background. On the juror information sheets the prosecutor circled, so as to note its significance, the religious preference of only two of the venireper-sons, both of whom were white. One of these two prospective jurors, a Quaker, was not struck for religious reasons but was struck for cause. The other venireper-son, a member of the Jewish faith, was peremptorily struck by the State because the prosecutor opined that he was liberal. As to the black venirepersons who were peremptorily challenged because of their religious preference, the prosecutor made no notes or circles on their juror information sheets regarding their religion, but he did indicate their race with a “B”, denoting they were black. The prosecutor also stated that he struck prospective jurors because of their occupation. The prosecutor peremptorily challenged two women, a hispanic and a black, because they were teachers, and the prosecutor stated that in his opinion teachers tend to be liberal and forgiving. The prosecutor noted the occupation of each woman on the juror information sheets by circling it. When questioned by appellant’s counsel as to why he struck the black teacher, the prosecutor stated “First off, [this prospective juror] was a black female and I struck [her] primarily because she was a teacher.” The prosecutor also indicated her race on the juror information sheet with the designation “B”, as he did with a third prospective black juror who was struck because of her husband’s occupation and her age. This juror’s husband was employed as a nurse’s assistant. As the prosecutor explained that he tends to strike nurses from jury panels because they tend to be liberal, the trial judge interrupted him and the following dialogue occurred: THE COURT: Nurses are liberals? THE WITNESS (prosecutor): On certain cases I might keep a nurse, Your Honor, but in general I tend to strike nurses, yes. THE COURT: Nurses, you think, would be liberal in a case where a person’s charged with burglary with intent to commit sexual assault? THE WITNESS: On a case such as this, well, on child abuse cases I tend to keep a nurse and, in fact, teachers also on those kind of cases. On cases such as this, in general my feeling is while this was a rape case that nurses in general tend to be on the liberal side. THE COURT: You don’t think nurses side with victims of rape, sexual assault? I’m just asking your opinion. THE WITNESS: In some cases, yes, sir. In this case I didn’t have much of an opportunity to have any individual questioning on voir dire and the question was a problem that arose in by mind with [the prospective juror], it was not that she was a nurse but her husband had only been at the job six months and was a male and as typically in the past been a female profession and my opinion was that she may have too much of a social worker’s type philosophy or attitude that might be conveyed to her, I think — I still kind of believe that husbands’ ideas in general conveyed to their wives probably more so than vice versa. That was my feeling. THE COURT: Okay.... The prosecutor’s notes on this prospective juror consisted only of the letter “B”, indicating the race of the juror, and nothing was marked or circled as to the juror’s age or her husband’s occupation. Finally, the prosecutor testified at the Batson hearing that he struck two black jurors, including the prospective juror mentioned above, because of their age. Again, the prosecutor made no specific notations on the juror information sheets regarding these two individuals except to note their race with the letter “B”. The prosecutor stated that he struck Sherry Ramsey, the venireperson discussed in the preceding paragraph, because her age, 24, was the approximate age of appellant. The prosecutor, however, did not strike six other white veniremen who were also the approximate age of appellant. Those six persons, who ranged in age from 25 to 28 years, served on appellant’s jury. Several of the factors discussed in Kee-ton II and Slappy, supra, which weigh against the legitimacy of a race-neutral explanation, are present in this cause. As noted in Keeton II, these factors may be used as evidence to show that the State’s neutral explanations are merely a sham. In analyzing this evidence, we first note that the record reflects that the prosecutor did not ask any questions of the blacks on the jury panel whom he struck even though there were items on the jury information sheets relating to those jurors which either concerned him or had been deleted. The prosecutor’s peremptory challenges exercised against certain black venireper-sons were based on reasons equally applicable to white veniremembers who were not challenged by the prosecutor. The State struck two blacks from the venire because they were close in age to appellant but did not strike any of the six white venirepersons who were also close in age to appellant. Additionally, there were eleven venirepersons who had friends in law enforcement, only two of whom were black, and they were the only “friends” of law enforcement struck by the State. The prosecutor’s reasoning for striking one black female who was a teacher was based on a group bias not shown to apply to the challenged juror. The prosecutor opined that this prospective juror was “liberal” because of her occupation. The prosecutor also stated that he struck another black female because he believed she was liberal because of her husband’s occupation as a nurse’s assistant. The prosecutor, however, did not ask any questions of either juror which he peremptorily challenged; nor did these jurors respond to any questions by defense counsel. The record of the voir dire is devoid of any testimony which indicates that these two black prospective jurors were “liberal” because of their occupation. This reason appears to be a classic example of “an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically.” Keeton II at 866. Although the prosecutor articulated nondiscriminatory reasons for striking the blacks from the venire, the trial judge cannot merely accept those explanations at face value and end the Batson inquiry. The trial judge must determine whether these facially neutral explanations are contrived to avoid admitting acts of discrimination. See Keeton II at 868, wherein we approved the analysis in State v. Antwine, 743 S.W.2d 51 (Mo.1987). The facts of the case, the circumstances of the voir dire, and the testimony at the motion for new trial hearing and the Batson hearing are relevant to this determination. Besides the rebuttal evidence presented by appellant, his counsel established on cross-examination of the prosecutor at the Bat-son hearing that since the Court of Appeals’ order on March 26, 1987, abating the appeal, the prosecutor had spent six to eight hours reviewing the voir dire transcript and that is when he came up with his explanations for his voir dire strikes. From this review of the record, we determine that the trial judge’s findings concerning the prosecutor’s explanations for the exercise of his peremptory challenges against the black venirepersons are not supported by the record and that the prosecutor’s explanations are insufficient as a matter of law to rebut appellant’s prima facie showing of racial discrimination in the selection of his jury. We recognize that a finding of purposeful discrimination is a finding of fact based largely upon the trial judge’s evaluation of credibility and that a reviewing court should accord such a finding great deference. Considering the evidence in the light most favorable to the trial judge’s findings, however, and in light of the entire record, we cannot accord the trial judge’s findings such deference in this cause. We conclude that appellant has established that the prosecutor exercised peremptory challenges based solely on race. The exclusion of even one member of appellant’s race from the jury panel for racial reasons invalidates the entire jury selection process. Having been denied due process in the jury selection process, appellant is therefore entitled to a new trial. Accordingly, we reverse the judgments of the Court of Appeals and the trial court and remand this cause to the trial court so that appellant may have a new trial. CAMPBELL, J., concurs in the result. . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). . The Batson case had not been decided at the time of this hearing on the amended motion for new trial. Appellant’s amended motion for new trial, therefore, did not specifically cite the Bat-son case, but the record indicates appellant’s counsel anticipated such a holding, as the Bat-son case was granted certiorari during these hearings, and formed his objections in compliance therewith. Appellant’s motion also did not cite Swain, supra, but was phrased in language from that case. . Since appellant’s case was pending on direct review at the time the Batson case was decided, the Batson decision is applicable to it. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). . Although the Court of Appeals made the right decision regarding appellant’s prima facie showing of purposeful discrimination, the proper procedure is for the trial court to decide whether appellant made such a showing. DeBlanc v. State, 732 S.W.2d 640 (Tex.Cr.App.1987). . Batson, 106 S.Ct. at 1723, citing Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953). . The prosecutor did not object, however, to the amount of time, or lack thereof, for voir dire. The reason for the short voir dire is not clear in the record. A trial judge may impose reasonable restrictions on the exercise of voir dire examination. Ratliff v. State, 690 S.W.2d 597 (Tex.Cr.App.1985). . See Keeton II at n. 1. . See note one of Judge Teague's concurring opinion in Keeton II at 871.
BERCHELMANN, Judge, dissenting. In Keeton v. State, 749 S.W.2d 861, 870 (Tex.Cr.App.1988) (opinion following abatement), we articulated the appropriate standard for review of the trial court’s findings in a Batson hearing: viewing the evidence in the light most favorable to the court’s holdings, appellate courts are to defer to the trial court’s findings and conclusions where supported by the record. In the case at bar, a majority of this Court acknowledges this to be the appropriate standard, but yet fails to apply it to the facts of the case. Inexplicably, the majority’s analysis omits much of the evidence supporting the trial court’s determination of a lack of purposeful discrimination. Accordingly, I respectfully dissent. In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court relaxed the evidentiary standard previously articulated in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), by which a criminal defendant could establish a prima facie case of racial discrimination violative of the Fourteenth Amendment, based upon the prosecution’s use of peremptory challenges to strike members of the defendant’s race from the jury venire. Under Batson, supra, once the defendant makes a prima facie showing, the burden shifts to the State to advance race neutral explanations for the challenges. Id., 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. In the case at bar, the burden shifted to the State upon appellant’s showing that the prosecution exercised peremptory challenges to strike all six of the black veniremembers. Viewing the evidence in the light most favorable to the trial court’s findings, the record clearly supports the conclusion that the State rebutted the presumption of purposeful discrimination. Keeton, supra. I. The prosecutor’s voir dire notes provides a most glaring example of the majority's failure to view the evidence in the light most favorable to the trial court’s findings. Specifically, the majority repeatedly treats the prosecutor’s indication of the race of the black veniremembers on the juror information forms as evidence controverting the trial court’s findings. However, at the Batson hearing the prosecutor explained that he marked “B” on the juror information forms not for purposes of peremptory strikes, but rather for purposes of visual placement of the members on the panel. He explained the notations in the following manner: ... it helps a lot just in placing faces and placing jurors, not just placing the minority jurors but when you are sitting in front of a panel with 50 people trying to figure out who juror No. 26 is, frankly, looking at my sheet, I know that Juror No. 26 is two down from the black female that at the time would have been in the third row. That’s pretty much the basis for laying out, I guess, landmarks of sorts in the entire jury panel. * 5k * * * * It’d be helpful, more helpful after all the voir dire when I'm sitting up at counsel table when I look up and refresh my memory of faces of what people have done during the voir dire. Further evidence logically supports the prosecutor’s explanation that the “B” notations were not marked to assist in peremptory strikes based solely on race. Even the majority opinion recognizes that the prosecutor made other notations on several of the juror information forms which were marked with “B.” Professions were circled, unanswered portions of the forms were marked, and veniremember statements made during voir dire were noted. It follows that the prosecutor would not have wasted precious voir dire time making these notations had he been of a mind to automatically exercise his peremptory challenges against the black members of the panel. In any event, it is unquestionable that the trial court could have reasonably treated the “B” notations on the juror information cards as not indicating purposeful discrimination. Ironically, the majority treats the prosecutor’s notes scribbled on the forms of some of the black panel members as indicia of purposeful discrimination. The majority reaches this conclusion because there were no specific questions addressed to these veniremembers. “In analyzing this evidence, we first note that the record reflects that the prosecutor did not ask any questions of the blacks on the jury panel whom he struck even though there were items on the jury information sheets relating to those jurors which either concerned him or had been deleted.” At 715 (emphasis in original). While it is true that the prosecutor did not question the black panel members individually, the trial court's findings state that the prosecutor did not question individually any of the fifty panel members. The record reflects that the trial judge limited the prosecution to forty minutes for both general and individual voir dire and the prosecutor did not, in fact, individually question any juror, black or white, regarding any information noted on the information forms, and that similar notes were jotted on the forms of white venire-members. Without explanation, the majority fails to address the prosecutor’s reasons for marking “B” on the black veniremembers information forms, opting instead to repeatedly cite this as evidence which controverts the trial court's findings. I find this information insufficient to overcome the deference We are required to give the trial court’s findings. Batson, 476 U.S. at 98 n. 21, 106 S.Ct. at 1724 n. 21, 90 L.Ed.2d at 89 n. 21; Keeton, 749 S.W.2d at 870. Moreover, the additional notations on these forms indicate a propensity not to strike a veniremember solely because of race when viewed, as we must, in the light most favorable to the court’s findings. Keeton, supra. Additionally, the majority unfairly implies that the prosecutor concocted his reasons for exercising peremptory strikes because appellant demonstrated that “the prosecutor spent six to eight hours reviewing the voir dire transcript and that is when he came up with his explanations for his voir dire strikes.” At 716. The prosecutor admitted that he reviewed his notes and the voir dire transcript to refresh his memory; otherwise, he would not have been able to recall the circumstances surrounding this case. The prosecutor answered affirmatively to defense questioning that it was after refreshing his memory that he “came up” with the reasons for his strikes. The necessity for a prosecutor to go back months, perhaps years, after a trial to demonstrate his reasons for exercising a peremptory challenge is a problem inherent with the retroactive application of Batson v. Kentucky, supra. See Griffith v. Kentucky, 479 U.S. 314, 333, 107 S.Ct. 708, 719, 93 L.Ed.2d 649, 665 (1987), (White, J., Rhenquist, C.J., and O’Connor, J. dissenting). See also Allen v. Hardy, 478 U.S. 255, 260, 106 S.Ct. 2878, 2881, 92 L.Ed.2d 199, 206-06 (1986). It is unfair to imply that the prosecutor fabricated his reasons simply because he had to refresh his memory twenty-six months after trial. More importantly, it should not be treated as evidence which controverts the trial court’s findings. II. Because the majority fails to set out the prosecutor’s reasons for striking each of the black veniremembers, I will individually address each strike to demonstrate the evidence supporting the court’s finding of no purposeful discrimination. Veniremember No. 7, Gloria Mitchell, was the first black panel member peremptorily struck. The prosecutor scribbled on her juror information card “HPD,” “Vice” and “DPS.” The prosecutor testified at the Batson hearing that these notes indicated that Mitchell had friends in the police department and department of public safety, which would normally make her a good state’s juror. However, Mitchell’s responses to defense voir dire questioning, particularly her intonation, left the prosecutor questioning whether she would believe an officer’s testimony. In essence, he was concerned that Mitchell’s connection with some law enforcement officials might predispose her to disbelieve the police witnesses crucial to the case at bar. The trial judge, who presided over the original trial and the Batson hearing, found the prosecutor’s explanation race-neutral. The majority essentially rejects the court’s finding and the prosecutor’s reasoning because the prosecutor did not strike white veniremembers who had friends in law enforcement. In reality, there is ample evidence to support the trial judge’s finding that veniremember No. 7 was not struck in a discriminatory manner. Next, the State exercised a peremptory challenge against black veniremember No. 8, Sherry Ramsey. The prosecutor testified that he probably struck Ramsey because of her husband’s profession. Additionally, he expressed concern about her youth; she was twenty-four year of age. After much questioning, cross-examination and re-direct examination, the prosecutor explained that, in his opinion, nursing is a liberal profession and people involved in nursing are prone to a “social worker’s type attitude.” He felt that because this was a sexual assault case, Ramsey might have been a good juror if she were a nurse. However, he felt that because she married a man who works in a predominately female profession and who is probably a “social worker type,” she would probably not be a good state’s juror. Admittedly, the prosecutor’s logic may be strained, but viewed in the light most favorable to the court’s finding of no purposeful discrimination, this testimony supports the finding of the trial judge, who, by presiding over the trial and the Batson hearing, was in the best position to assess the credibility of the witnesses. The prosecutor struck veniremember No. 24, Maurine Fuller. On her juror information form, the prosecutor circled Fuller’s occupation of teaching, and noted her failure to fill out whether she served on a prior jury. He testified that he struck Fuller because he viewed teachers to be too liberal and forgiving. The record reflects that the prosecutor also struck the only other teacher on the panel, a nonblack. Despite the trial court’s finding that Fuller was peremptorily struck for race-neutral reasons, the majority concludes that the prosecutor acted “on a group bias not shown to apply to the challenged jurors.” At 715. In so holding, the majority misapplies a factor articulated by a Florida court for determining whether a prosecutor’s reason for exercising a peremptory strike is a mere pretext for racial discrimination. Slapy v. State, 503 So.2d 350 (Fla.Dist.Ct.App.1987), aff'd, 522 So.2d 18 (Fla.1988). Under such circumstances, if a prosecutor claims he or she struck a veniremember because of employment, in the absence of other evidence, the reason becomes suspect. In the instant case, the prosecutor struck a teacher who is not black, as well veniremember Fuller, who is black. The lack of disparity in treatment of these otherwise similarly situated veniremembers negates any inference of racial discrimination. The prosecutor exercised a peremptory challenge to strike Glenda Johnson, venire-member No. 32. He testified that he did so because Johnson indicated that Pentecostal was her preferred religion. This bothered the prosecutor because he believed this to be a “fringe type” religion because they “speak in tongues” and do some things “out of the ordinary.” No other venire-member indicated involvement in the Pentecostal Church. The record supports the trial judge’s finding that this reason was race-neutral. Additionally, the prosecutor peremptorily struck veniremember No. 37, Willie Lee Hunt, because of Hunt’s involvement in the Church of God, a religion the prosecutor knew nothing about. Hunt was the only veniremember who indicated a preference for this particular denomination. Marked on Hunt’s information card was Hunt’s failure to respond to whether he had been accused in a criminal case. The prosecutor further testified that he could not specifically remember whether he struck Hunt merely because of Hunt’s religious preference, or whether the omitted portion of the information form also was a consideration. This evidence supports the trial court’s finding of no purposeful discrimination. Lastly, the state exercised a peremptory challenge on veniremember No. 39, Reginald Ardoin. The prosecutor testified that he was concerned that Ardoin was only twenty-one years of age, and that Ardoin’s spelling on the information form was very poor. Specifically, Ardoin misspelled Riverside General as “Riveside Genral” and misspelled his religious preference of Baptist as “Bapaitsm.” The record reflects that Ardoin was the only veniremember under the age of twenty-four. Viewing the evidence in the light most favorable to the trial court’s findings, the record supports the trial judge’s determination of no purposeful discrimination. For the foregoing reasons, I would affirm the judgment of the court below. McCORMICK, P.J., and WHITE, J., join this opinion. . The majority fails to analyze the totality of the reasons that went into the decision to strike particular jurors. Where a prosecutor articulates more than one reason for exercising a strike, the rationale must be viewed looking at the combination of reasons, for any individual reason alone may not have motivated a decision to strike. Regarding veniremember Ramsey, the majority fails to address the prosecutor's combined concerns. Ramsey was both youthful and, in the prosecutor’s opinion, was married to a man in a liberal profession. This combined reason makes veniremember Ramsey qualitatively different from other panel members who may have been only youthful or who may have been married to individuals in a liberal profession. For the majority’s treatment of Ramsey's age, see infra note 3. . The majority claims that "the state struck two blacks from the venire because they were close in age to appellant but did not strike any of the six white venirepersons who were also close in age to appellant.” At 715. In so doing, the majority ignores the prosecutor’s additional reasons for striking the two, young black venire-members. As previously detailed, the prosecutor was concerned with veniremember Ramsey’s age and her husband’s profession. Venire-member Ardoin was a few years younger than any other veniremember, in addition to his inability to spell. It should also be noted that the prosecutor circled the ages on the information forms of some of the youthful white venire-members, but did not do so on other young white veniremembers. There is evidence in the record to demonstrate that the youth of both black and white veniremembers played some part in the prosecutor’s use of peremptory strikes.
OPINION ON STATE’S MOTION FOR REHEARING MILLER, Judge. On original submission, in addressing appellant’s Batson claim, we held the trial judge’s findings concerning the prosecutor’s explanations for his peremptory challenges were not supported by the record, and appellant established purposeful discrimination in the prosecutor’s jury selection process. Page 742. Consequently, we reversed the judgments of the court of appeals and the trial court and remanded this cause for a new trial. The State then filed this motion for rehearing. Tex.R. App.Proc. 230. In its motion for rehearing, the State argues this Court applied the incorrect standard of review in this Batson case. The State urges us, in its motion, to adhere to the standard enunciated in Tompkins v. State, 774 S.W.2d 195 (Tex.Cr.App.1987), cert. granted 486 U.S. 1053, 108 S.Ct. 2818, 100 L.Ed.2d 919 (1988), judgment affirmed by equally divided court (O’Connor, J., not participating), 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834, that the appellate court must view the entire record in a manner favorable to the factfinder’s determination and reverse only if no rational trier of fact could have failed to find his factual allegation true by a preponderance of the evidence. Tompkins, 774 S.W.2d at 202. In its post submission brief, however, the State suggests three other standards of review which may be utilized in addressing a Batson claim, to wit: (1) the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), standard for reviewing sufficiency of the evidence, (2) the abuse of discretion standard utilized in reviewing rulings on pretrial suppression motions, and (3) the “clearly erroneous” standard of review found in Fed.R.Civ.Proc. 52(a). In his response to the State’s motion, appellant asserts this Court’s analysis is consistent with that of Batson and Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), which appropriately employed the federal “clearly erroneous”- standard in reviewing the district court’s finding of sex discrimination in a Title YII case. In this cause, on original submission, this Court utilized and applied the standard of review enunciated by- a unanimous court in Keeton v. State, 749 S.W.2d 861 (Tex.Cr.App.1988) (Opinion after Abatement). In Keeton, we stated: In adopting our own standard for review, we reject Alabama’s ‘clearly erroneous’ standard, which is the federal standard for reviewing findings of fact. See Rule 52(a), Federal Rules of Civil Procedure. Nor do we adopt Indiana’s abuse of discretion standard. We believe that our focus, as well as that of the trial judge, should be on whether purposeful discrimination was established. We will of course consider the evidence in the light most favorable to the trial judge’s rulings and determine if those rulings are supported by the record. If the record supports the findings of the trial judge, they will not be disturbed on appeal. Id. at 870. In applying this standard of review to the record before us, this Court concluded the trial judge’s findings and conclusions were not supported by the record. While this Court explicitly rejected, without further elaboration, the nomenclature of “clearly erroneous” in Keeton, in this case we nevertheless adhered to the analytical processes of that standard of review, the core of which is the “supported by the record” analysis, as discussed infra. On original submission here we recognized that a finding of purposeful discrimination is a fact finding which entitles the trial judge’s findings to be accorded great deference by an appellate court. Further, in determining whether the trial court erred in overruling appellant’s Batson claim, we reviewed the evidence from the Batson hearing within the context of the case, in light of the entire record, and most importantly in the light most favorable to the trial judge’s findings. Believing this analysis is synonymous with the “clearly erroneous” standard’s analysis, we are not necessarily indisposed to granting the State’s motion for rehearing to the extent that we adopt the “clearly erroneous” standard from the Federal Rules of Civil Procedure as the standard of review for appellate courts in addressing Batson issues. Although certainly not the first case to apply the clearly erroneous standard, Anderson v. Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 clearly explicated this standard of review, from which we quote extensively: Although the meaning of the phrase ‘clearly erroneous’ is not immediately apparent, certain general principles governing the exercise of the appellate court’s power to overturn findings of a district court may be derived from our cases. The foremost of these principles, as the Fourth Circuit itself recognized, is that “[a] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948) [emphasis supplied]. This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. ‘In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is riot to decide factual issues de novo.’ Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 842, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982). Anderson v. Bessemer City, 470 U.S. at 573-574, 105 S.Ct. at 1511. See also Amadeo v. Zant, 486 U.S. 214, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988). (clearly erroneous standard applied to district court’s fact findings in habeas corpus action). Recognizing that findings of fact often turn on credibility determinations, the Supreme Court further discussed the clearly erroneous standard, stating: When findings are based on determinations regarding the credibility of witnesses, Rule 52(a) demands even greater deference to the trial court’s findings; for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said. See Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). This is not to suggest that the trial judge may insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination. See, e.g. United States v. United States Gypsum Co., supra, 333 U.S., at 396, 68 S.Ct., at 542. But when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error, [emphasis supplied]. Cf. United States v. Aluminum Co. of America, 148 F.2d 416, 433 (CA2 1945); Orvis v. Higgins, supra, [180 F.2d 537, 539-540 (CA2 1950)]. Anderson v. Bessemer City, 470 U.S. at 575-576, 105 S.Ct. at 1512. There are several reasons in favor of adopting the clearly erroneous standard, foremost of which is the similarity in analysis in that standard with our own analysis under the “supported by the record” standard. The phrase “supported by the record” is found in conjunction with the clearly erroneous standard in a substantial number of federal cases. Indeed, a “supported by the record” analysis is utilized in determining whether the trial court committed clear error in its fact findings in these cases. See e.g. Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 568, 98 L.Ed.2d 592 (1988) (fact findings amply supported by the record, and not rejected by the court of appeals as clearly erroneous); H.A. Artists & Associates, Inc. v. Actor’s Equity Association, 451 U.S. 704, 717, 101 S.Ct. 2102, 2110, 68 L.Ed.2d 558 (1981) (court of appeals correctly concludes trial court finding not clearly erroneous because amply supported by the record); City of Richmond, Virginia v. United States, 422 U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245 (1975) (dissenting opinion) (district court’s finding, far from being clearly erroneous, was amply supported by the record); Graver Tank & Mfg. Co., Inc. v. Linde Air Products Co., 339 U.S. 605, 612, 70 S.Ct. 854, 858, 94 L.Ed. 1097 (1950) (trial judge’s findings adequately supported by the record are not clearly erroneous); and Branti v. Finkel, 445 U.S. 507, 511, 100 S.Ct. 1287, 1291, 63 L.Ed.2d 574 (1980) (footnote 6) (since court of appeals found district court’s fact findings adequately supported by the record, Supreme Court will not review findings petitioner claims were clearly erroneous). See also United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (finding is “clearly erroneous” when although there is evidence to support it, reviewing court on the entire evidence is left with definite and firm conviction a mistake has been committed). In Amadeo v. Zant, 486 U.S. 214, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988) the issue confronting the Supreme Court was whether the court of appeals had erred in determining the district court’s findings upon which it based its conclusion that petitioner had shown cause for procedural default at trial were clearly erroneous. The Supreme Court reiterated the clearly erroneous standard of review relying predominantly on the explication of that standard in Anderson v. Bessemer City in addressing the issue. In reversing the court of appeals’ holding, the Supreme Court concluded there was “sufficient evidence in the record considered in its entirety to support the District Court’s factual findings”, and therefore the court of appeals erred in setting them aside. Amadeo v. Zant, 108 S.Ct. at 1780. In other words, if the findings of the trial judge are supported by the record, the findings are not then clearly erroneous. After adopting “our own standard of review” of “supported by the record” in Keeton, 749 S.W.2d 861, we applied the standard to facts of that case. In doing so, we reviewed the entire record; viz, the voir dire examinations of the prospective jurors who were peremptorily challenged as well as the evidence presented at the Batson hearing which consisted only of the prosecutor’s testimony as to why he peremptorily struck each venireperson. The defense counsel did not cross-examine the prosecutor or attempt to impeach the prosecutor through other evidence such as a comparison analysis of the peremptorily challenged white and black venirepersons. See Keeton, 749 S.W.2d at 879 (Teague, J., concurring). Given this record, we held the trial judge’s findings were supported by the record. In adopting the clearly erroneous standard, we would be merely extending the “supported by the record” standard to its ultimate and logical conclusion. Additionally, the clearly erroneous standard enjoys an extensive history of use and hence provides the bench and bar with a well-established analysis for guidance when confronted with issues encompassing disputed factual findings. Since it is the standard of review for factual findings in all federal cases, the clearly erroneous analysis has of course been applied in discrimination suits, in particular Title VII cases, which we noted were referred to in the Batson decision. Moreover, given this extensive use of the clearly erroneous standard, the analysis done by appellate courts is apt to be more consistent. Rather than developing our own standard of review on a case-by-case, ad hoc basis, which could be construed more or less stringently than the clearly erroneous standard, we have clear precedent on the principles of the standard of review and their application. Factual findings made pursuant to a Bat-son claim have been reviewed by the Fifth Circuit via the clearly erroneous standard. In United States v. Forbes, 816 F.2d 1006 (5th Cir.1987), the court of appeals held the district court did not clearly err in finding the prosecutor exercised his peremptory challenges in a nondiscriminatory manner. In Forbes, there were thirty-one venire-members, five of whom were black. The prosecutor used three peremptory challenges to strike black veniremembers, two to strike white veniremembers, and his sixth peremptory challenge went unused. The resulting jury was composed of ten whites and two blacks, and the ratio of blacks to whites on the jury was “virtually identical to that on the venire”. Id. at 1009. The prosecutor offered neutral explanations for two of the three peremptory challenges to black venirepersons, and the appellant admitted one such explanation was objective. After reviewing the second explanation, the court of appeals held the record did not “remotely suggest that the prosecutor’s intuitive assumption was based on race.” The appellate court thus found no Fifth or Sixth Amendment violation. Id. at 1013. No clear error in the district court’s finding of no discrimination in the jury selection was also the conclusion of the court of appeals in United States v. Williams, 822 F.2d 512 (5th Cir.1987), following Rule 52(a) and the Forbes decision. In this case, the government used four peremptory challenges to strike blacks, of which there were seven, from the venire. Once again the Fifth Circuit found a confluence of factors supported the district court’s finding, those factors being: (1) the black/white ratio of the jury exceeded that of the venire; (2) the prosecutor did not use all of his strikes; (3) three blacks were on the jury; (4) the prosecutor adequately explained three strikes; and (5) most of the government’s witnesses were black. In United States v. Lance, 853 F.2d 1177 (5th Cir.1988), the court of appeals was finally presented with rebuttal or impeaching evidence from a defendant in response to th