Felisha FARRELL aka Latasha Renee Brown, Appellant, v. The STATE of Texas, Appellee.
No. 1280-92.
Court of Criminal Appeals of Texas, En Banc.
June 9, 1993.
Rehearing Denied Nov. 3, 1993.
861 S.W.2d 501
Adcock did not conduct the voir dire of Johnson. Instead, an assistant district attorney named Ken Gordon questioned Johnson. Gordon testified that Johnson was struck because he was strongly biased against the death penalty. In support of this, the record of the voir dire reflects that Johnson stated that he would automatically vote against the death penalty regardless of what the facts might show. Additionally, Johnson stated that he could never be convinced that a person would probably commit future acts of criminal violence. On these grounds, the trial court granted the State‘s challenge for cause. The State used a peremptory challenge against Johnson in an effort to protect against error that the trial court may have committed in excusing Johnson for cause.
In addition to the testimony of Adcock and Gordon, Judge Clifford Davis testified at the hearing. Judge Davis stated that he had been the presiding judge at appellant‘s original trial. Davis stated that since he was a black man, he was familiar with the effects of racial discrimination and had been active for thirty to forty years in the National Association for the Advancement of Colored People. He stated that the prosecution was consistent in its treatment and interrogation of the members of the venire. Judge Davis specifically said, “There was nothing to indicate to me [that] there was any plan to eliminate either blacks or hispanics from service on that jury.” Appellant‘s sole witness at the hearing, J.R. Molina, one of appellant‘s trial attorneys, could only assert that the Tarrant County District Attorney‘s office struck veniremembers based on race. Molina admitted, however, that he had no personal knowledge of the prosecution‘s motivations and could not name a specific past case where the prosecution had used its peremptory challenges in a racially discriminatory manner.
Based upon this record, the trial court‘s determinations can not be characterized as “clearly erroneous.” All of the trial court‘s findings of fact and conclusions of law are amply supported in the record from the original voir dire and from the Batson hearing.2 Appellant‘s point of error two which alleges a violation of Batson is overruled.
The judgment of the trial court is AFFIRMED.
MALONEY, J., dissents for the reasons heretofore stated by him in this case. Trevino v. State, 841 S.W.2d 385, 388 (Tex.Cr.App. 1992).
John G. Tatum, Dallas, for appellant.
OPINION ON STATE‘S PETITION FOR DISCRETIONARY REVIEW
BAIRD, Judge.
Appellant was convicted by the trial judge of theft,
I.
Our review is limited to decisions of the courts of appeals.
The Court of Criminal Appeals, on its own motion, with or without a petition for discretionary review being filed by the appellant or the State, may review a decision of a court of appeals in a criminal case.1
The Court of Criminal Appeals may review a decision of a court of appeals in a criminal case upon petition by the appellant or the State.
Because our review is limited to decisions by the courts of appeals, we have held a party “may not expect this Court to consider a ground for review that does not implicate a determination by the court of appeals of a point of error presented to that court in orderly and timely fashion.” Tallant v. State, 742 S.W.2d 292, 294 (Tex.Cr.App.1987) (citing Degrate v. State, 712 S.W.2d 755 (Tex.Cr.App.1986)).
In Rochelle v. State, 791 S.W.2d 121 (Tex.Cr.App.1990), we declined to consider an argument raised before the court of appeals for the first time in a motion for rehearing:
We perceive the clear import of the purpose stated in [
Tex.R.App.P. ] Rule 74(p) to be that all points of error sought to be reviewed and all replies thereto are to be included in the original brief. Supplemented or amended briefs bringing new matters to the appellate court may be filed later, but only “as justice requires” or “in the interest of justice” and under reasonable terms imposed by the court . . . The idea that a party may force a new issue on an appellate court after briefs have been filed is foreign to the rules, although constitutional restraints such as due process may so require in a given case . . . Short of those situations, the decision whether to consider new matters raised in a supplemented or amended brief should be left to the sound discretion of the appellate court.
Id., 791 S.W.2d at 124. See also, Alvarado v. State, 818 S.W.2d 100 (Tex.App.—San Antonio 1991), and Wilson v. State, 811 S.W.2d 700, 702 (Tex.App.—Houston [14th Dist.] 1991) (“A point of error raised for the first time in a supplemental brief is not properly presented for appellate review.“).2
However, as with every general rule, there is an exception. In Riley v. State, 825 S.W.2d 699 (Tex.Cr.App.1992), we held the State had not waived review of an alleged defect in the defendant‘s notice of appeal by raising the defect, for the first time, in a motion for rehearing, before the court of appeals. Id., 825 S.W.2d at 700. We held the issue was not waived because “[a]ppellate courts are required to review challenges to their jurisdiction properly raised at any time before the issuance of its mandate.” Id.
II.
In the instant case, the State did not raise the reformation issue in the Court of Appeals;3 the issue is being raised for the first time in the State‘s petition. Since the State did not raise the reformation issue before the Court of Appeals, the State‘s ground for review does not implicate a decision by that Court. Tallant, supra. Furthermore, the ground for review does not challenge the jurisdiction of the Court of Appeals. Riley, supra. Therefore, we will not reach the merits of the State‘s ground for review.
The judgment of the Court of Appeals is affirmed.
CAMPBELL, J., concurs in the result only, believing this case was improvidently granted in the first instance.
McCORMICK, P.J., joined by WHITE and MEYERS, JJ., dissents.
CLINTON, J., not participating.
McCORMICK, Presiding Judge, dissenting.
As noted by the majority, we granted the State‘s petition for discretionary review to determine whether the Court of Appeals erred in entering an acquittal instead of a conviction for the lesser included offense of theft. Appellant was convicted in a trial before the court of the offenses of credit card abuse and theft from the person. The Court of Appeals concluded that the evidence to support the conviction for theft from the person was insufficient to show that the tak-
Today, the majority sua sponte determines that since the State did not raise the reformation issue in the Court of Appeals, this Court cannot reach the merits of the State‘s ground of review. Because the majority‘s reliance on the plurality opinion in Tallant v. State, 742 S.W.2d 292 (Tex.Cr.App.1987), appears to me to be wholly erroneous, I dissent.
The issue of what is or is not reviewable under our practice of discretionary review has been, and continues to be, an unnavigable maze.
It is with the majority‘s interpretation of what a “decision” is that I take issue and where we part company. Relying on this Court‘s plurality opinion in Tallant, supra, the majority notes:
“[W]e have held a party ‘may not expect this Court to consider a ground for review that does not implicate a determination by the court of appeals of a point of error presented to that court in orderly and timely fashion.‘” (Emphasis in majority opinion.)
Even assuming that this is a correct interpretation of this Court‘s authority in matters of discretionary review (which I do not, see Tallant, supra at p. 300, McCormick, J. dissenting), the issue upon which we granted discretionary review in this case does not implicate a determination by the Court of Appeals of a point of error. Instead it implicates the Court of Appeals’ judgment which is the remedy the Court of Appeals fashions in every case following its decision on the points of error presented. See
It would be absurd indeed to require the parties to an appeal to the courts of appeals to present points of error to review a judgment of the court of appeals which has yet to be entered. But today‘s opinion now requires the parties to divine the remedy the Court of Appeals may adjudge, and object thereto in advance.
The majority recognizes that a motion for rehearing in the court of appeals is not a prerequisite to the granting of discretionary review.
Where a party is aggrieved by the judgment and not by the decision on a point of error, I believe that the first opportunity for a timely and orderly presentation of such disagreement is either in a motion for rehearing or via a petition for discretionary review since a motion for rehearing is not mandatory. Furthermore, in his reply brief in this Court, the appellant herein has made no argument that we should not reach the merits of the State‘s claim.
The practice of the law is by no means an exact science. We cannot expect practioners to anticipate every possible scenario that may arise in the appellate processes, and make an argument for or against as their adversarial position may dictate. The State has here presented for review an important question of law which we should address. Quoting from former Presiding Judge Onion in Tallant, supra:
“I am deeply distressed, however, by the approach taken by the majority in this and other recent cases in adopting a warped policy of discretionary review that unduly and unlawfully restricts the authority of this Court of last resort in reviewing decisions by the Court of Appeals. This policy was never constitutionally intended.” 742 S.W.2d at 300.
I respectfully dissent.
WHITE and MEYERS, JJ, join this dissent.
Delbert Boyd TEAGUE, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 69716.
Court of Criminal Appeals of Texas, En Banc.
June 23, 1993.
Rehearing Denied Sept. 29, 1993.