PERRY LEE WOOTEN

THE STATE OF TEXAS, Appellee.

Dissent

I would hold that the appellant showed purposeful, invidious discrimination in jury selection and, thus, a clear abuse of discretion in the trial court's overruling his Batson challenges. See Batson v. Kentucky, 476 U.S. 79, 81-82 (1986); Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004) ("The term 'pretext' is solely a question of fact; there is no issue of law. Therefore, the trial court was in the best position to make that credibility determination.") (citations omitted)). The offending voir dire question asked of the venire was calculated to and did result in the disproportionate and disparate number of minorities responding, and ultimately resulted in the elimination of minority panelists. Even assuming the trial court believed the State's reasons for the strikes of minority panelists, the cold record before us demonstrates a raced-based motive for the elimination of minorities from the venire. Accordingly, I respectfully dissent. Because the point of error is dispositive, I need not address the remaining issues. See Tex. R. App. P. 47.1.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Dissenting Memorandum Opinion delivered

and filed this 30th day of November, 2006.

1. See Tex. R. App. P. 47.1, 47.2, 47.4.

2. Retired Fourteenth Court of Appeals Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. Tex. Gov't Code Ann. § 74.003 (Vernon 2005).