Alexander v. State3/5/1996
le, fair, legitimate, and offered in good faith. Gaddis, 753 S.W.2d at 399. Even when a party's counsel makes an impermissible jury argument, it is not reversible "unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute or injects new facts, harmful to the accused into the trial proceeding." Todd, 598 S.W.2d at 297; see also Kinnamon v. State, 791 S.W.2d 84, 89 (Tex. Crim. App. 1990); Gaddis, 753 S.W.2d at 398; Brandley v. State, 691 S.W.2d 699, 712-13 (Tex. Crim. App. 1985).
In the present case, Alexander complains of the following argument by the State:
You give this man exactly what he deserves and what the victims in this case, or the victim's next of kin and loved ones, deserve, for this man to serve a life sentence. It's only proper, and it serves the interest of this community as a whole.
(Emphasis added.)
Alexander contends that this is improper jury argument because it implies that the community at large expects or desires a particular verdict.
With regard to pleas for law enforcement, the Texas Court of Criminal Appeals has held that the State may argue the impact of the jury's verdict on the community. Borjan v. State, 787 S.W.2d 53, 56 (Tex. Crim. App. 1990); Adams v. State, 685 S.W.2d 661, 671 (Tex. Crim. App. 1985); Stone v. State, 574 S.W.2d 85, 90 (Tex. Crim. App. 1978). It is improper, however, for the State to argue that the community expects or demands a particular sentence or punishment. Borjan, 787 S.W.2d at 56; Cortez v. State, 683 S.W.2d 419, 420 (Tex. Crim. App. 1984). The argument in the present case is more like the former, i.e., an argument as to the impact of the jury's verdict on the community. Therefore, this point of error is overruled.
Alexander next contends the trial court erred in denying Alexander's objections to the State's use of peremptory challenges against two minority venire members. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits the State from striking potential jurors solely on the basis of their race. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Keeton v. State, 724 S.W.2d 58, 64-65 (Tex. Crim. App. 1987). In order to invoke his or her Batson protections, a defendant must first make a prima facie showing that the State's use of peremptory challenges was racially motivated. Wheatfall v. State, 882 S.W.2d 829, 835 (Tex. Crim. App. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 742, 130 L.Ed.2d 644 (1995); Chambers v. State, 866 S.W.2d 9, 23 (Tex. Crim. App. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1871, 128 L.Ed.2d 491 (1994). An appellate court may infer that the trial court found a prima facie case when the trial court held a hearing on the matter. See Tennard v. State, 802 S.W.2d 678, 681 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1991).
Once the defendant demonstrates a prima facie case, the burden then shifts to the State to show a racially neutral reason for striking the minority venire members. Batson, 90 L.Ed.2d at 86; see also Keeton v. State, 749 S.W.2d 861, 862 (Tex. Crim. App. 1988). The State's explanation need not rise to the level of justifying a challenge for cause, but the State must articulate a racially neutral explanation related to the particular case. Batson, 90 L.Ed.2d at 88.
The trial court must then determine whether, despite the State's explanation, the defendant has established purposeful discrimination. Tennard, 802 S.W.2d at 681, quoting Keeton, 724 S.W.2d at 65; see also Tompkins v. State, 774 S.W.2d 195, 202 (Tex. Crim. App. 1987), aff'd, 490 U.S. 754
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