Reginald Wayne Biggs v. the State of Texas

NO. 12-22-00032-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

REGINALD WAYNE BIGGS, § APPEAL FROM THE 7TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION
Reginald Biggs appeals his conviction for unlawful possession of a firearm by a felon. In
two issues, he contends the trial court erroneously denied his Batson challenge during voir dire
and the judgment contains an error. We modify and affirm as modified.

BACKGROUND
Appellant was charged by indictment with unlawful possession of a firearm by a felon.
The indictment further alleged Appellant was a habitual offender with two prior felony
convictions. Appellant pleaded “not guilty,” and the matter proceeded to a jury trial.
After voir dire, Appellant objected to the trial court seating the jury on grounds that the
State exercised preemptory strikes against three African American venire members based upon
their race. After a hearing, the trial court overruled Appellant’s objections and the jury was
sworn and impaneled.
Following trial, the jury found Appellant “guilty” and sentenced him to sixty years
imprisonment. This appeal followed.

1
BATSON CHALLENGE
In his first issue, Appellant argues the trial court erred in denying his Batson challenge
because the State improperly exercised peremptory strikes against African American venire
members.
Standard of Review and Applicable Law
The Equal Protection Clause of the United States Constitution and Article 35.261 of the
code of criminal procedure prohibit the use of a preemptory challenge to strike a potential juror
based upon the juror’s race. U.S. CONST. AMEND. XIV; see Batson v. Kentucky, 476 U.S. 79,
86, 106 S. Ct. 1712, 1717, 90 L. Ed. 2d 69 (1986); see also TEX. CODE CRIM. PROC. ANN. art.
35.261 (West 2006). If a party perceives the other has exercised a preemptory challenge based
on purposeful racial discrimination, that party may request what is colloquially termed a
“Batson” hearing. See TEX. CODE CRIM. PROC. ANN. art. 35.261.
A three-step process is used to analyze Batson claims: (1) the opponent of the
peremptory challenge must present a prima facie case of racial discrimination, (2) if he does so,
the burden shifts to the proponent of the peremptory challenge to present a race-neutral reason
for the challenge, and (3) if that proponent satisfies this burden, the trial court must then
determine whether the opponent has proven purposeful racial discrimination. Colone v. State,
573 S.W.3d 249, 263 (Tex. Crim. App. 2019); Irving v. State, No. 12-17-00157-CR, 2017 WL
6350097, at *1 (Tex. App.—Tyler Dec. 13, 2017, pet. ref’d) (mem. op., not designated for
publication).
A trial court’s ruling on a Batson challenge must be upheld unless it is clearly erroneous.
Nieto v. State, 365 S.W.3d 673, 676 (Tex. Crim. App. 2012). To hold that a decision was clearly
erroneous, we must be left with a definite and firm conviction that a mistake has been
committed. Goldberg v. State, 95 S.W.3d 345, 385 (Tex. App.—Houston [1st Dist.] 2002, pet.
ref’d). The clearly erroneous standard is highly deferential because the trial court is in the best
position to determine whether the State’s facially race neutral explanation for a peremptory strike
is genuinely race neutral. Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). We
focus on the genuineness rather than on the reasonableness of the State’s asserted race neutral
reason. Id. at 533–34.
In evaluating the genuineness of the State’s proffered race neutral reason, we consider
whether (1) the reason is related to the facts of the case, (2) the State meaningfully questioned

2
the challenged venire member, (3) persons with the same or similar characteristics as the
challenged venire member were not struck, (4) there was disparate examination of the venire
members, and (5) an explanation was based upon a group bias although the trait is not shown to
apply to the challenged venire member. Williams v. State, 804 S.W.2d 95, 105–06 (Tex. Crim.
App. 1991). We consider the entire voir dire record and need not limit our review to the specific
arguments propounded in the trial court. Nieto, 365 S.W.3d at 676. However, we may not
substitute our judgment for the trial court’s in deciding that the proponent’s explanation was a
pretext. Id.
Prima Facie Showing
At the conclusion of voir dire, Appellant raised a Batson challenge to the State’s
preemptory challenges to venire members 25, 47, and 66. The record reflects that Appellant, as
well as the three venire members, are African American. The trial court asked the State to
respond. The State did not contest that Appellant made a prima facie showing, and offered race
neutral reasons for its use of preemptory challenges against venire members 25, 47, and 66.
Batson challenges are subject to ordinary rules of procedural default. See Flores v. State,
33 S.W.3d 907, 926 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). When, as here, the
State offers explanations for exercising preemptory challenges on the contested venire members,
and the trial judge rules on the ultimate question of discrimination, the issue of whether the
defendant made a prima facie case is moot and not subject to appellate review. Id.; see also
Colone, 573 S.W.3d at 263 (State’s allegation that it had race-neutral reasons for preemptory
challenges renders step one of Batson analysis moot). Thus, we will proceed to step two.
Race Neutral Reasons
With respect to its exercise of a preemptory challenge against venire member 25, the
State offered the following explanation:

[T]he main thing would be obviously looking at her, it would be she’d been employed for five
months, which I tend to like people that have got longer term of employment. I also specifically –
I do remember this, and I remember, frankly, her demeanor when I asked about law enforcement. I
know she did not raise her card, but I clearly remember get a very – I’ll say this – very – a look
from her that I did not – I did not feel comfortable with.

Regarding its exercise of a preemptory challenge against venire member 66, the State explained
as follows:

3
I have occupation being food services. In particular, we’re back, again to two months. Only been
working for two months. The other issue is looking at her—the spouse’s employer is Carter
Temple Church. Good chance that her husband might be a pastor of some sort. I tend to—in my
experience, people that are pastors and churches can often be more sympathetic. And this being a
case that we’re dealing with a—up to a life sentence, that gave me concern as well.

And with respect to its exercise of a preemptory challenge against venire member 47, the State
offered the following explanation:

I do remember the main thing on her was just her overall demeanor was very dismissive. Didn’t
really seem to be paying much attention at all . . . In addition to this, it appears that she has no
children. As a general rule, combined with those other reasons, I like it when we have people that
have children to the State’s side. That tends to make them oftentimes more conservative and
much more protective. And with being somebody who’s protective of children they tend to
potentially give more lengthier sentences just due to the fact of protecting the community. So
those are the reasons for 47. And not that I have to prove this, just thinking off the top of my head,
I clearly remember there were several people: 21, 59, I believe, and then also 47 that I clearly
made a note I did not like their—they just seemed to be completely dismissive and distracted,
Judge.

In step two of the Batson analysis, the proponent of the preemptory challenge need only
offer an explanation that is racially neutral on its face. Colone, 573 S.W.3d at 263. No
discriminatory intent is inherent in the prosecutor’s explanations. See id., Gibson v. State, No.
12-18-00314-CR, 2019 WL 7373840, at *2 (Tex. App.—Tyler Dec. 31, 2019, no pet.) (mem.
op.). We therefore conclude that the State satisfied its burden of production by offering a
facially race neutral reason for its preemptory challenges to venire members 25, 47, and 66. See
Gibson, 2019 WL 7373840 at *2; Tennyson v. State, No. 12-16-00225-CR. 2018 WL 1180750,
at *3 (Tex. App.—Tyler Mar. 7, 2018, pet. ref’d) (mem. op., not designated for publication).
Genuineness of Explanations
After the State’s burden of producing race neutral explanations was satisfied, the burden
shifted to Appellant to prove that the proffered explanations were mere pretext for purposeful
discrimination. See Blackman v. State, 414 S.W.3d 757, 764 (Tex. Crim. App. 2013). At this
step, “[t]he trial court has a pivotal role in evaluating Batson claims,” because the trial court
must evaluate the prosecutor’s credibility, and “the best evidence of discriminatory intent often
will be the demeanor of the attorney who exercises the challenge.” Snyder v. Louisiana, 552
U.S. 472, 477, 128 S. Ct. 1203, 1207, 170 L. Ed. 2d 175 (2008) (internal quotation omitted); see
also Blackman v. State, 394 S.W.3d 264, 271 (Tex. App.–Houston [1st Dist.] 2012) (Keyes, J.,

4
dissenting), rev’d, Blackman, 414 S.W.3d at 771. “An appellate court misapplies the ‘clearly
erroneous’ standard of appellate review when it substitutes its judgment for that of the trial court
in deciding that the prosecutor’s facially race-neutral explanation for striking a venire member
was a pretext.” Blackman, 394 S.W.3d at 272 (Keyes, J., dissenting) (citing Gibson, 144
S.W.3d at 534).
On appeal, Appellant argues that the State did not apply its race neutral reasons in a
nondiscriminatory manner. Specifically, regarding the State’s reasoning regarding the length of
employment for venire members 25 and 66, Appellant points out that venire members 26 and 42
had shorter employment histories. According to the juror cards, venire member 26 had been
employed for one day and venire member 42 was unemployed. Both venire members 26 and 42
were white. Appellant urges that the State’s asserted reason for striking venire member 47 is
disingenuous. When originally confronted about striking venire member 47, the State claimed it
could not remember whether she was black. Her juror information card stated “other,” so the
trial court asked the State whether it agreed with Appellant that venire member 47 was “a black,
African American.” The State responded, “Judge, I—I honestly couldn’t—couldn’t say. I—I
honestly don’t remember. I—I don’t. I remember why I didn’t like her. But I don’t—you
know, I try not to keep track of all that. I just don’t—I don’t remember.” 1 Appellant contends
that if “her demeanor [had] been as dismissive and inattentive as the State argued, then surely the
prosecutor would have remembered she was African American.” Appellant also urges that the
State failed to strike venire member 35, who was also childless and was white.
We turn to the voir dire record to assess whether the trial court’s ruling was clearly
erroneous. Nieto, 365 S.W.3d at 676. In doing so, we first note that none of the venire members
at issue were questioned individually during the voir dire process. The prosecutor stated that
venire member 25 was struck because she had a short term of employment and she gave him “a
look” when asked about law enforcement. Venire member 25’s juror card confirms that she is
African American and had been employed for five months at the time of trial. The prosecutor
claimed venire member 47 was struck because of her generally dismissive behavior and lack of
children. The prosecutor explained that he prefers jurors with children because, in his
experience, a parent’s protective nature leans toward giving longer punishment sentences.

1
The record reflects that the bailiff went into the central jury room to personally observe whether venire
member 47 was an African American. When the bailiff returned, he confirmed that venire member 47 appeared to
be “a black female.”

5
Venire member 47’s juror card lists her race as “other.” Only after the bailiff personally
observed the color of venire member 47’s skin did the parties agree she was black. The juror
card confirms venire member 47 has no children. Regarding venire member 66, the prosecutor
stated that she was struck because of her short employment term and her husband’s employment
at a church. The prosecutor explained that he believes people involved in church can be more
sympathetic and tend to give less harsh sentences. The juror card confirms that venire member
66 is employed in food service, had been employed for two months at the time of trial, and her
husband is employed at a church.
A prospective juror’s nonverbal reactions and body language can be race neutral reasons
for exercising a peremptory strike. See Nieto, 365 S.W.3d at 680. Employment status can also
be a racially neutral reason for exercising strikes. See Middleton v. State, 187 S.W.3d 134, 142
(Tex. App.–Texarkana 2006, no pet.) (panel member’s employment is race neutral explanation,
if prosecutor has had poor success with that type worker); Kennedy v. State, No. 12-14-00219-
CR, 2015 WL 3609096, at *3 (Tex. App.—Tyler June 10, 2015, no pet.) (mem. op., not
designated for publication). A prosecutor’s reason for striking a juror based on her demeanor is
established when the statement is made on the record, undisputed by opposing counsel, and
unquestioned by the trial judge. Yarborough v. State, 947 S.W.2d 892, 895 (Tex. Crim. App.
1997). Appellant did not challenge the State’s assertions regarding venire members 25’s and
47’s demeanor. While Appellant challenges the authenticity of the State’s strike of venire
member 47, the prosecutor’s genuineness is a question of credibility.
While a lack of meaningful questioning is a factor to consider in determining whether the
trial court’s ruling was clearly erroneous, it is not determinative. See Johnson v. State, 959
S.W.2d 284, 290–91 (Tex. App.–Dallas 1997, pet. ref’d). The trial court judge was able to
personally observe the proceedings. Therefore, we defer to the trial court’s assessment of the
prosecutor’s credibility in explaining his reasoning. Kennedy, 2015 WL 3609096, at *4. In
denying Appellant’s Batson challenge, the trial court stated:

All right. Well, I used to talk more about Batson motions because I really thought they were pretty
important -- still think they’re very important. But I have learned that really the Courts just want –
“the Courts” being the appellate courts -- want the trial court to just rule and not give its narration.

So the Court finds that the three questioned ones -- 25, 47, and 66 -- do appear to be black, African
American individuals, which would trigger the appropriateness of a Batson motion whenever

6
they’ve been struck by the State. There’s no doubt that the State did exercise preemptory strikes
against those individuals.

However, the State has offered what I believe the law calls race-neutral reasons. And I think
employment is a legitimate issue for both sides to look at. I think their demeanor, distraction, not
paying attention -- each lawyer gets to make their own assessments.

Of course, the law says that because of the importance of a fair cross-section of the community,
neither side can strike people solely for their race. I don’t find that’s happened here.

And historically, I would point out, too, that I don’t -- I don’t know that I’ve ever seen it in my
courtroom and I’m not aware that any -- any defense lawyer has established that I’m aware of, in
Smith County, prosecutors have indiscriminately used race reasons to exclude people from our
juries, much unlike I’m sure everyone’s familiar with the Dallas County and the way they used to
do things over there.

So I do deny the Batson motion, and I’ll let you file the official motion with the clerk so it will be
in the Court’s file. But I think I’ve identified it adequately for the appellate court.

Based on its comments, the trial court clearly found the prosecutor’s statements to be credible.
We first acknowledge Appellant correctly points out that the prosecutor’s reason for
striking the three African American venire members at issue conflicts with the failure to exercise
peremptory challenges as to similarly situated whitevenire members. As to employment, venire
members 26 and 42 (both white) have shorter employment than the struck African American
venire members 25 and 66. Though a stated reason for striking venire member 47 was that she
had no children, venire member 35, who was white, was not struck. Further, the prosecutor’s
representation that he could not remember venire member 47’s race though he described her
overall demeanor as very dismissive, has questionable credibility. However, determination of
crebibilty is not our role.
The trial court exercises a crucial role in evaluating Batson claims, because the trial court
must evaluate the prosecutor’s credibility, and the best evidence of discriminatory intent is often
found in the demeanor of the attorney exercising the preemptory challenge. Williams, 804
S.W.2d at 105-06.; Snyder, 552 U.S. at 477, 128 S. Ct. at 1208, 170 L. Ed. 2d 175. We cannot
minimize the importance of the court’s presence at trial. Tave v. State, 899 S.W.2d 1, 4 (Tex.
App.—Tyler 1994, pet. ref’d). The court was present at voir dire and the Batson hearing to hear
the explanations offered by the State and observe the demeanor of the potential jurors. Id. The
prosecutor gave race neutral explanations for its preemptory challenges, and Appellant failed to
counter the prosecutor’s testimony with evidence demonstrating that the State’s explanations
were a pretext in an attempt to discriminate. Id. Further, the explanation for striking venire

7
members 25 and 47 based on perceived demeanor was established when the explanation was not
disputed by Appellant or the trial court. And even if the striking of venire member 66 was
questionable based on length of employment, the explanation that her spouse was possibly a
minister and, therefore, would potentially oppose a long prison sentence, is plausible and
uncontested. Therefore, we cannot say, based upon the record before us, that the trial court’s
rulings on Appellant’s Batson challenges were clearly erroneous. See Goldberg, 95 S.W.3d at
385. Thus, we overrule Appellant’s first issue.

ERROR IN JUDGMENT
In his second issue, Appellant contends the trial court’s judgment should be modified to
reflect the correct date that sentence was imposed. The State concedes the error.
The trial court’s judgment lists the date sentence was imposed as “N/A.” However, the
record reflects that Appellant was sentenced on February 8, 2022. We have the authority to
modify an incorrect judgment to make the record “speak the truth” when we have the necessary
information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.
Crim. App. 1993); Ingram v. State, 261 S.W.3d 749, 754 (Tex. App.—Tyler 2008, no pet.).
Therefore, we modify the trial court’s judgment to reflect February 8, 2022, as the date sentence
was imposed. We sustain Appellant’s second issue.

DISPOSITION
Because we sustain Appellant’s second issue and overrule his first issue, we modify the
trial court’s judgment to reflect February 8, 2022, as the date sentence was imposed. We affirm
the judgment as modified.
GREG NEELEY
Justice

Opinion delivered February 28, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

8
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

FEBRUARY 28, 2023

NO. 12-22-00032-CR

REGINALD WAYNE BIGGS,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-0311-20)

THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of this court that the judgment of the
court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified to reflect February 8, 2022, as the date sentence imposed; in all
other respects the judgment of the trial court is affirmed; and that this decision be certified to the
court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

9