Ex Parte Haliburton

surrounding parcel ‘circumstances supra, and remand the case that court remaining disposition appellant's accused to render conduct’ of the so as points of error. particular appropriation consent to and provide ineffective property TEAGUE, dissents, J., believing that was, fact, ineffec- knowledge that it in opinion Justice REYNOLDS’ for the Chief is method of pretext false tive. The Appeals correctly Court decid- Amarillo appro- proving ineffective consent to the issue, put ed and would Court’s false or priation property, but the improvidently granted stamp to the State’s vitiating effective misleading statement discretionary petition review. not the ultimate ‘forbidden consent is DUNCAN, J., participating. under Section 31.03. conduct’ contrast, in By the ‘nature conduct’ CLINTON, concurring. Judge, 32.32, supra, intentionally is or Section opinion is in of the Court correct knowingly making materially or false concluding part that where the “act” statement, misleading and when written is in acquisitive “conduct” nature 31.03 §§ property made to obtain or credit be- statement) (theft) (false and 32.32 are comes ultimate conduct.’ ‘forbidden pari materia: in because the of- latter words, complete In other the offense is acquisition require fense does not actual written, deceptive rel- once the statement all, merely “specific it is instance” obtaining credit is property evant to or acquisitive conduct denounced in unlawful made, perpetrator if the is not suc- even the former. obtaining the or cred- property cessful in connection, In this rather Court relies deception. it as of his a result written State, Mills v. heavily on 722 S.W.2d That ‘nature of in Section conduct’ (Tex.Cr.App.1986). Having written con- may 32.32 be similar that which cause, in that opinion I have reflected on surrounding ‘circumstances tributes to manner in the Court analo- now the conduct’ Section 31.03 does gizes excerpt page Slip Opin- from the pari materia make them ion, I believe that Mills instead and property actually ‘ac- the latter be said, what was we could have stated cer- ” quired.’ particulars analysis pre- tain in our more sugges- viz: cisely, observations and With those “_ tions, I join judgment of the Court. When at all in a prosecu- relevant theft, however, ‘deception’ goes tion for operates

to ‘nature of conduct’ apparent

render ‘inef- otherwise consent

fective,’ creating thereby a ‘circumstance

surrounding 31.- the conduct.’ Sec.

01(4)(A),supra.... deception But the

not in itself the ultimate ‘forbidden con- 31.03, supra.

duct’ under Sec. parte Ex Charlie Joe 32.46, By contrast, supra, Sec. HALIBURTON, Jr. ‘deception’ ‘nature conduct’ is any person, intent to defraud or harm No. 69850. complete as such the offense Texas, Appeals Court of Criminal sign or it ‘causes another’ to execute * * * ” En Banc. prescribed document. view, Accordingly, “sim- my reflective June analogy” in the ilar drawn accurately instant more read: cause would

“_ 31.03, decep- supra, the Section pretext, going in theft while

tion false conduct,’ part ‘nature of becomes Udashen, Dallas,

Gary for appellant. Vance, John Atty. Dist. and Leslie McFarlane, Dallas, Atty., Asst. Dist. Rob- Huttash, Atty., Austin, ert State's for the State.

OPINION MILLER, Judge. application filed this for writ corpus pursuant 11.07, habeas to Article 2, V.A.C.C.P.,

Sec. alleging his conviction invalid because the Dallas Dis Attorney’s trict has a Office systematically excluding blacks from solely on the basis of race in violation of Alabama, Swain v. 202, 85 S.Ct. (1965).1 13 L.Ed.2d 759 On November 30, 1987, we remanded this cause to the appointment for attorney court of an applicant and for an hear ing to determine whether could produce un evidence his claim der supra. The record of the evi- dentiary hearing us; is now before will deny relief. judge supplemental

The trial filed find- ings of fact and conclusions of in this law cause. The court found that State only used seven of peremptory its ten chal- lenges process appli- 2 in the selection F80-1312-KQ cant’s trial Cause # that the use any did not of these peremptory challenges per- to strike black Thus, jury panel. sons from the the trial holding the concluded that case had not been denied rights under constitution of the United States or of Texas.3 The trial also original application Consequently, 1. On submission of his convicted either trial. corpus, applicant challenged writ habeas procedure selection not in those trials is validity of his conviction on the basis of issue. Kentucky, v. U.S. 106 S.Ct. (1986). We denied relief since germane findings 3. The fact were prior applicant’s conviction became final only possible peremp State used seven of its time the Batson See decision issued. Grif- tory challenges; that the seven chal Kentucky, fith lenges by the were to white used State strike (1987). L.Ed.2d 649 venirepersons; that the did not use State peremptory challenge a black Applicant apparently to strike venire- had two trials other prior question, person; transcription to the one he was dire voir it denied.4 recommended that be application for merit and concluded that totally without of habeas ninety per- Tinsley, approximately cording by applicant’s process was waived representing practice consists of of his law counsel. cent Tinsley criminal cases. defendants in germane were that the conclusions of law experience that blacks are present holding inapplicable to the stated that it was by challenges used defend- peremptory juries were there is a black as no when cause struck from jury; that to exclude blacks from the State but not when both the a victim ant and white guaranteed any rights applicant was not denied Tinsley testi- are black. and victim defendant of the United States or to him the constitution past struck blacks from he had in the fied that Texas; application for and that jury panels, never struck all blacks. but he has totally without merit. writ of habeas prosecutors, names he Tinsley whose said that recall, they told him that struck not could necessary, Although for rea do find it 4. solely race but that this because of their infra, blacks to the issue of sons indicated address County policy practice of the Dallas history system was not applicant proved a whether contention, attorney’s office. dispose a to of his district atic exclusion Goranson, a de- synopsis Applicant at the hear next called Ron of the evidence introduced law, understanding applicant's lawyer specializes ing claim. in criminal aids in fense who history sys attempted opinion prosecu- a testify. to show It was Goranson’s juries in Dallas systematically exclusion of blacks from tematic struck all blacks in Dallas tors requirement County, discussed the second jury panels practice was an but that this from Cir.1983), Zant, (11th 720 F.2d 1212 Willis v. attorney’s policy office. of the district informal denied, 104 S.Ct. cert. prosecutors could have Goranson believed that nom., (1984), sub Willis L.Ed.2d 851 jury panels for neutral rea- struck blacks from aff’d (11th Cir.1988), by present Kemp, F.2d 1510 struck the State sons but that blacks were testimony ing criminal defense from several prosecutors blacks were un- believed because lawyers prosecutors law in who convict, prosecutors likely want to win County claim that Dallas his seeing recall a their cases. Goranson did not attorney’s sys County has Dalléis district office County juror and he in Dallas until juries. tematically from The excluded blacks jury from that he never struck blacks stated Swain, supra, trial then concluded that always panels the State struck because applicant's ex case without was pressly concluding you. blacks for applicant failed to ade Jacks, attor- a former assistant district James quately a exclusion show and, earlier, County one ney as noted in Dallas County. juries from in Dallas blacks prosecutors testified of the Mitchell, Larry criminal law a board certified jury Sparling selection was article on that the judge, specialist first wit- and former was the joined given the district to him when he hear- ness called at the attorney's that it was not a office. Jacks stated that, ing. opinion Mitchell stated which system- attorney’s policy district office to of the upon experience felo- was based in 150-200 jury panels. Al- atically from exclude blacks trials, ny jury County the Dallas district attor- attorney ob- though applicant claims his trial ney’s systematically blacks office excluded objec- any jury, jected Jacks did not recall challenges peremptory the use of perempto- applicant to the State’s use tions juries, it was blacks did serve on challenges ry at his trial. representation. extremely unusual and token prosecutor Coun- from Dallas Another former practice of de- it was the Mitchell stated that Wells, policy a ty, reiterated that it was not Ron attorneys venire blacks from the fense strike attorney’s office to strike of the district Mitchell had when the defendant was white. however, Wells, given basis of race. on the by Jon the article written in 1973 also seen manual, Sparling of which the prosecutor’s County, Sparling, in Dallas a former joined part, the district when he article was in criminal which dealt with selection attorney's office in 1980. article, upon applicant relied which cases. This Anderson, attor- a criminal defense Richard violation, heavily prove instructed a Swain ney also board certified since 1973 who is looking prosecutors for that “You are not law, specifically hav- recall could criminal Minority minority group.... member repre- he ing juror in case where a black always empathize the Defend- races almost believed Anderson sented a black defendant. he saw this article Mitchell stated that ant." attorney’s unwrit- office the district had 1979-1981, prosecutor’s manual around solely racial policy republished times and several the article reasons. eventually manual. excised from the Lesser, criminal defense law- another Peter lawyer Tinsley, is also a a black who Fred he yer, prosecutors, whose names stated specialist and for- certified criminal law board recall, acknowledged readily that it could Sparling judge, article testified that mer attorney’s policy office to of the district was a County policy of the Dallas district reflects the challenges exclude blacks sys- use prosecutors attorney’s office and that prosecu- copy of the juries. Lesser had a juries. Ac- from tematically excluded blacks For to sustain a claim of a a history systematically excluding have violation, prove race, the Dallas blacks from but also Attorney’s purpose District Office employed this in the se fully against discriminates jury. blacks in the lection of his process. quantum selection The supplemental court’s find proof necessary to sustain this burden ings and a copy conclusions contain matter of federal law. 380 U.S. at from applicant’s State’s strike sheet 205, 855 discussing this cause. The strike sheet shows proof, adopted burden the Fifth Circuit venirepersons that seven peremptori the standard enunciated in Willis v. State, ly challenged by the there is denied, Cir.1983), cert. (11th F.2d 1212 nothing on the strike sheet indicates 82 L.Ed.2d persons the race of the struck or rea nom., sub Kemp, Willis v. aff'd Jacks, son the strike. James one of the Cir.1988), (11th F.2d 838 1510 wherein the prosecutors applicant’s in testified at court stated: hearing the on the writ that he not did case, prevail “In order to in the instant specifically remember were whether there [petitioner] prove prosecu- must his that any jury panel, blacks on the but if there had a prac- tor and intentional were, any he did not strike the them on excluding tice from blacks traverse practice basis of race because such was not juries in criminal trials the exer- policy attorney’s a of his or of the district and that peremptory challenges, cise of office. Jacks stated that there no were pe- this continued in unabated attorney’s in composition as to the racial of the in venire Cir.1983), 1256, 104 467 cert. den. trial, third the trial found Court, 3548, (1984), the in the its State did use ordering evidentiary hearing on a challenges to strike blacks from the claim, petitioner noted that at the discretion, panel. Absent an abuse of the prove such had to the findings upheld. of the trial will be systematic had a and intentional of find is We that there evidence in the record petit in crimi judge’s finding. the trial perempto nal cases the exercise applicant

Since has failed to establish ry challenges, “and that continued that blacks were excluded from his exclu petitioner’s trial. The unabated race, panel solely case, because of he their has ‘in case sion have occurred after Willis proof. circumstances, failed to meet his burden of the whatever the whatever Zant, supra; Alexander, parte v. and Ex may crime and the defendant be.’ whoever Swain, 223, 308 837.” (Tex.Cr.App.1980). 598 S.W.2d Accord 380 U.S. at 85 S.Ct. at v. Willis Willis ingly, deny sought.5 nom. we the relief was affirmed sub appeal concurring opinion 5. The hold to that court after his conviction. would Swain, supra, argument is to this cause be- impliedly rejected the State’s We applicant cause failed show that he made a Second, we be- we denied the motion. Swain, timely objection at trial on the basis of person “systematically first exclud- lieve the supra. Specifically, concurring opinion the just against, per supra, is as enti- ed” as "today’s opinion ignores majority states that the systematic complain tled to exclusion is as finding objection no such was made.” against. person systematically last excluded two There are reasons for which we words, systematic if In other exclusion First, objection address this issue of an at trial. particular apparent at a defendant’s rehearing filed the State a motion for this complaining should not be excluded from cause after we remanded this cause to the trial systematic exclusion collateral attack when court for a determination of whether apparent. exclusion becomes objected on a for an at tried Swain basis and Thus, say prior applicant's we evi- could not evidentiary hearing appli- to determine whether object dentiary hearing he needed to at trial cant of a Swain viola- could sustain claim Having preserve error. in order argued in its that: tion. The State motion proce- dispositive ground a than a found other objection "Since trial, cannot show an above, default, opinion decline dural proof he cannot meet first element Further, required by for the aforementioned reasons address this court.” the court of against applicant appeals procedural default issue. had resolved this issue 136

Kemp, (11th Cir.1988), 838 1510 robbery F.2d where 1980 Cause No. F-80-1312- adopted the Court the above stated KQ stan- in the 204th District Court of Dallas Cabana, dard. See also Evans v. 821 F.2d County. punishment The court assessed — (5th Cir.1987), U.S.-, 1065 cert. den. imprisonment years’ 35 dis- after State 5, 108 S.Ct. 97 L.Ed.2d 795. paragraphs missed the indictment alleging prior convictions enhance- And it has been held this Court in the punishment. ment of past alleged perempto that the mere use of ry challenges qualified to strike Applicant appealed his conviction to prohibited systematic exclusion of Court and the case was docketed as Cause petit jurors. blacks in the See selection of 66,994. 1, 1981, September No. On State, 769, (Tex. Ridley v. 475 772 S.W.2d cause was transferred to the Fifth Court State, Cr.App.1972); 622 Evans v. S.W.2d Appeals in Dallas when oth- that court and 866, 868, (Tex.Cr.App.1981); McKay 869 Appeals acquired jur- er Courts criminal State, (Tex.Cr.App.1985), S.W.2d (as V, isdiction. See Article amended § 239, cert. den. 107 S.Ct. 479 U.S. 1980) Leg. and S.B. Acts 65th L.Ed.2d 164. appeal applicant’s points In his one of along Then Kentucky, came Batson v. rights error was that “constitutional due L.Ed.2d process protection equal law and the Supreme wherein the re- racially the law were violated dis- principle affirmed the announced in Swain criminatory in peremp- actions the State the evidentiary reexamined burden torily challenging venirepersons all placed on a defendant who wishes to chal- thereby subjecting appel- Black Race and lenge prosecution’s of peremptory use lant, person, a black all trial before an challenges racially discriminatory. involving white a case an assault Supreme Court relaxed the evi- against a woman.” white dentiary by holding burden on a defendant In his brief stated prima purposeful facie case of dis- “By Exception Bill of and/or Motion to solely by crimination can be established Trial, Supplement appellant the Record of pertaining facts to the defendant’s trial. necessary sup- shall facts establish the to 1722-1724, 106 Id. S.Ct. at 90 L.Ed.2d at port of this Ground Error.”1 87-88. is

It to be observed that v. Applicant’s appellate Allen brief asserted Hardy, 478 S.Ct. 92 jury panel that the in his case contained (1986), L.Ed.2d the Court held peremp- less and each were than blacks to Batson not available defendants challenged by prosecutors ac- torily the whose convictions were final at the time policy cordance with their official and cus- Subsequently, Batson was announced. the tom when the accused is and however, Kentucky, v. 479 U.S. support appellant’s “In of victim white. Griffith policy’ or contention such ‘official ‘cus- applicable the Court held that Batson exists, appellant points out the fact tom’ appeals to those whose defendants every involving such case the same pending final the time the yet or not of prosecutors, policy such and custom has Batson decision. exception.” Appli- been followed without Alabama, cited cant “Swain v. background for

These cases form the 824],” any not cite but did for applicant’s post-conviction application [85 portion supporting of the record the asser- corpus brought pursuant of writ habeas tions brief. 11.07, Article V.A.C.C.P. Applicant’s appeal on appli-

The record us reflects that counsel submit before aggravated question on the cant was of an exhaustive brief Swain convicted applicant apparently did not do so on his counsel than at trial. This appeal represented where was different cally convicting the trial court to directed including most the federal and state of evidentiary hearing in the outstanding at that time. His determine authorities brief, however, objection appli- was made pointed out trial an never whether aggravated robbery. Swain of nor did it trial for objection on basis cant’s 1980 to raise the how the record just call attention “In for order pursu- developed issue, objected claim. at trial he must have Swain, rejected applicant’s produce The Appeals grounds of ant of appellant point error on the basis that County of has a evidence that Dallas transcription ju- had of court waived from systematically of reporter’s notes the voir dire examina chal- ries the use jury, tion of and the record lenges race. Since solely because their permit pass as the court was not such developed may have subse- such evidence Applicant’s other on the contention.2 will remand quent disposed points (nee grounds) of error were appoint- to the trial court cause conviction was affirmed. Hali when his evidentiary attorney an and an ment of (Tex.App.-Dallas No. burton v. State applicant can hearing to determine whether 05-81-00318-CR) (no (unpublished opinion) produce exclu- evidence of filed). PDR in Dallas sion of holding su- violation has filed instant and now pra.” application for post-conviction his third corpus.3 The main thrust habeas entry order filed a After the State application instant that there was habeas rehearing pointing out that this motion Batson error time of his 1980 trial evidentiary hearing ordered an Court had judge to relief. The he is entitled rejected on an raised and resolve issue convicting clearly ap- court viewed if pointed out that appeal. direct The State a Batson plication advancing only claim ap- has addressed on direct an issue been error, finding fact and in his again by way addressed peal it need be found that a conclusions law proceed- post-conviction habeas error on collat- claim not entertainable parte Acosta, ing, citing Ex 672 S.W.2d eral after had become attack the conviction denied. (Tex.Cr.App.1984). motion was Kentucky, supra. v. citing final Griffin Following the tri- Hardy, supra. Allen v. In this the See also supplemental findings of al made timely if was correct even a The judge fact and conclusions law. Hardy, Allen objection is made. See applicant testified that his trial found that supra. objection made towards the attorney to this The habeas record was forwarded something to the jurors by stating “... pursuant provisions to the of Article facing only as that I was nature 11.07, supra. applicant’s trial counsel While the court.” he was asked was called a witness

Upon review of the record this Court the 1980 trial by objected if he at anyone instructing the entered a 5-4 order convict- of the 1965 decision Swain. on the basis evidentiary ing hear- court conduct one of Neither a Batson ing. that error agreed The Court Swain question on raised attack, counsel who cognizable by collateral was not appeal testify called to at eviden- but, convicting court’s atten- directed the hearing. only applicant’s testi- tiary With Swain possibility tion error in his conclu- judge trial found trial, although mony case was the 1980 that raising legal objection “no speeifi- of law that The order sions applicant. cited majority. pp. and to be no 4. See 133-34 2. at this late date there seems Even transcription. the waiver of the said doubt about applications post-conviction Applicant’s other 3. not involve habeas did or Swain claim.

the ‘Swain issue’ at was made trial objection make such an was there encompassed grounds of the sufficient evidence sustain his bur- case.” showing prior den to his 1980 trial County prosecutors sys- that Dallas had a The trial found practice tematic and “in case intentional trial only the State used seven its of excluding after case” blacks from challenges and these were challenges by peremptory criminal cases prospective jurors used to strike white and practice and that such established contin- against blacks, none were exercised during applicant’s ued unabated trial. appeal applicant’s that on counsel waived process.” transcription of the “voir dire agreeing While with the result reached The trial concluded that without a by the majority opinion, agree I do objection trial and without the use of reasoning all its the implications or left peremptory challenges against opinion. Swain was applicant’s trial entitled to no No relief. McCORMICK, J., joins opinion. finding was made as to the existence intentional blacks from service in Dal- County prior las or such continued unabated dur-

ing said trial. It is not clear whether the judge thought inappli- such necessity cable without the a find- ANDUJO, Appellant, Rodolfo T. or ing that he concluded the evidence insufficient to establish that the claimed exclusion in 1980 occurred “in case after Texas, Appellee. The STATE of case, circumstances, whatever the whatev- No. 61192. crime, er the and whoever the defendant may be.” 380 U.S. at Texas, Appeals Court of Criminal 837. En Banc. Despite the fact that for an order July noted that it was neces- raise the Swain issue that sary in order

appellant objected at his 1980 trial on this

basis, today’s majority opinion ignores objection

finding no such trial

made. majority simply concludes: “Since

applicant has failed to establish that blacks jury panel solely

were excluded from his race,

because of his he has to meet failed Willis v. proof.

his burden of su-

pra. ...” This is not the standard set forth Willis supra, and is more like Rafeo»-type

some standard is not

applicable to Swain claim. made enough

clear that it was not to show what done in the defendant’s own case. my opinion applicable did not sustain his bur- showing a timely

den that he made ob- if the basis of Swain.

jection on But even notes the district file this on titioner’s trial.” regarding case racial considerations of the Cabana, See Evans v. (5th venirepersons 821 F.2d applicant’s 1065 in trial. Michael — Cir.1987), denied, U.S.-, Byck, applicant’s cert. attorney in this added). cause, (emphasis S.Ct. hearing testified at the on the therefore, Applicant, satisfy ap what that he did not recall whether there pears two-part to be any a test: he must show jury panel. blacks on the only County prosecutors not that Dallas only composition evidence of the racial Sparling ling’s selecting manual the tor’s which included arti- "ideas" included not minorities cle, gotten jurors they sym- but he tendency had this manual about ten as because have a ago. defendants, years pathize selecting the Lesser stated that manual old wom- given they prosecutors begin working make-up they who en wear too much because unstable, attorney’s usually selecting the district office and that the are extreme- being by prosecutors ly overweight especially people, young manual was used the at men and women, applicant’s they self-discipline time trial. lack Byck, attorney a Michael criminal defense sometimes unstable. article are This indicates law, represented Sparling probably board in venirepersons also applicant certified criminal that on struck jury grounds Swain, legal proceedings, three in his trials. He believed see irrelevant County attorney’s the at that Dallas district office 380 U.S. 85 S.Ct. at but the systematically jury panels Spar- from on its excluded blacks article does not face indicate that 1979-1981, during during appli- ling’s policy the time "ideas” were the of the Dallas Coun- tried, ty attorney’s was em- cant and that that was district office. ployed by prosecutors applicant’s Applicant heavily on trial. also relied an article Byck’sjury applicant’s printed Morning first News selection notes from the Dallas in March trials, here, which tire not in issue indicate The article contained statistics on by jury jury process felony jury was tried an all-white selection in 100 trials trials, Byck any both but could not recall if Dallas in 1983-1984. The authors of the article, jury panel McGonigle, were on the Ed Timms and Steve found blacks venirepersons third trial. of the black that were struck earlier, heavily ninety-two peremptorily, percent As stated relied were struck upon Sparling prosecutors. article show statistics showed that blacks that Dallas Other County prosecutors five have a were excluded from service almost excluded, jury panels solely from on the basis of times the rate that whites were Sparling four out of five black defendants have all-white race. states in the introduction juries, prosecutor’s on the chance a black will the article contains “one ideas and that opposed things panel, on a one in ten to a one some that need to be said to the serve things juror." Spar- person. a chance for a white and some look for in in two TEAGUE, J., jury panel applicant’s testimony at concurs in the result. hearing thought that he there were two DUNCAN, J., participating. jury panel or three blacks on ONION, Judge, concurring. Presiding initially Applicant third trial. stated that Alabama, 202, 85 Swain v. In Jacks, prosecutor, struck “some” of the 824, 13 the United S.Ct. L.Ed.2d veniremembers, he then conclud- recognized that Supreme States ed that the State struck all the blacks from purposeful or deliberate denial State’s there on venire because were no blacks participation on of race of Blacks account attorney applicant’s petit jury and his justice juror as a in the administration panel. not strike of them from the Equal In violates the Protection Clause. further, however, testified however, violation, prove order to such a investigator attorney hired required the Court the defendant checking the names pattern prove establishment panel members of the unable cases which the numerous jury panel. Ap- find on the peremptorily had stricken veniremen testimony, from parently, Id. 222-226, particular race. investigator had not been able to contact 837-839, 13 It L.Ed.2d at 773-776. venirepersons applicant's all enough just to show done in the what was third trial. defendant’s own case. conflicting Although testimony there is Willis v. (11th F.2d

Case Details

Case Name: Ex Parte Haliburton

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 29, 1988

Citation: 755 S.W.2d 131

Docket Number: 69850

Court Abbreviation: Tex. Crim. App.