POINT OF ERROR NUMBER ONE ‘The Trial Court Erred in Refusing to Strike or Reform the Jury Panel, After the Defendant met the Budden Under Batson, Demonstrating that the State had Disproportionately Used its Peremptory Strikes Against African-American Veniremen{ OF FA‘ After the State exercised a peremptory strike to remove the first African-American venire member from the jury panel, defense counsel urged a Baison challenge, citing the fact that the State treated the venire member disparately than the other potential jurors it had examined; that the State’s actions were indica of a racially-based reason for excluding the potential juror, and that the defense had made a prima facie showing of an improper motive on the State’s part.’ Batson v. Kentucky, 476 U.S. 79 (1986) The trial court agreed that the defense had made a prima facie showing for a biased intent, and conducted a Batson hearing, The prosecutor stated on the record her reasons for 3Defense counsel also made a Batson challenge with regard to the State's jury shuffle. The State argued that the challenge was untimely, as defense counsel did not raise it until after the State had questioned venire member #68. However, #68 was the first African-American on the panel, and defense argued that it had no basis for believing the State's jury shuffle was racially based until the State acted with apparent racial motivation in questioning venire member #68. Regardless, the trial court refused to conduct a Batson analysis with regard to the jury shuffle. Case law is unsettled on the issue of whether Baison should apply to jury shuffles, but logic would dictate that it should, “One scholar has argued that, logically, Batson should extend to jury shuffles. See E. Carlson, Batson, J.E.B., and Beyond: The Paradoxical Quest for Reasoned Peremptory Strikes in the Jury Selection Process, 46 Baylor L. Rev. 947, 982 (1994),” Ladd v. State, 3 8.W. 3" 547, n, 9 (Tx.Cr.App. 1999) 16excluding the potential juror, including that the juror indicated she would hold the State to ahigher burden of proof, and that she was confused over death penalty issues, The trial court overruled the Batson challenge. Defense counsel again urged a Batson challenge with respect to venire member #76, after the State exercised a peremptory strike to remove her from the pane! when the Trial Court denied the State’s challenge for cause. This time, the Trial Court stated that it was unsure that a prima facie case had been established, but out of an abundance of caution, requested the Prosecutor state the reasons behind the peremptory strike. The State proffered a lengthy response, then, without allowing questions or argument from the defense, the trial court overruled the Batson challenge, finding the State’s reasons were adequate. The State’s exercise of its peremptory challenges left Reginald Blanton, the Appellant here, with a jury devoid of any A frican-Americans. * 4 The State also excluded another African-American venire member #64, Frannie Rettig, when the trial court granted the State’s challenge for cause. The potential juror answered unequivocally that she could never assess the death penalty. (R.R. v. 15, p. 93) I7ARGUMENTS AND AUTHORITIES The Trial Court did not Comply with Batson’s Requirements The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits race-based jury selection. Batson v. Kentucky, 476 U.S. 79 (1986).> Batson stands for the proposition that a defendant has the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria. Batson, 476 U.S. at 86, citing Martin y, Texas, 200 U.S. 316, 321 (1906); Ex parte Virginia, 100 U.S. 339, 345 (1880). As such, the State’s ability to freely employ its peremptory strikes during voir dire is subject to the commands of the Equal Protection Clause. Batson, 476 U.S. at 89. The Equal Protection Clause guarantees the deféndant that the State will not exclude members of his race from the jury venire on account of race, or on the false assumption that members of his race asa group are not qualified to serve as jurors, see Norris v. Alabama, 294 U.S. 587, 599 (1935): Neal STexas Code of Criminal Procedure Art. 35.261 mirror’s Batson’s language and further requires race-neutral reasons for the exercise of peremptory strikes: (a) After the parties have delivered their lists to the clerk under Article 35.26 of this code and before the court has impaneled the jury, the defendant may request the court to dismiss the array and call a new array in the case. The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race. If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges. The burden of persuasion remains with the defendant to establish purposeful discrimination. (b) If the court determines that the attorney representing the state challenged prospective jurors on the basis of race, the court shall call a new array in the case. Texas Code of Criminal Procedure Art, 35.261. 18