Doug Lee FORD, Appellant, v. The STATE of Texas.
No. 1194-98
Court of Criminal Appeals of Texas.
Sept. 15, 1999.
994 S.W.2d 691
The record reflects that Hardeman was given such an opportunity during adjudication, and he took advantage of it. He testified regarding his work at a halfway house, his level of responsibility there, his achievement during training, his skills, and his sense of duty. These matters have nothing to do with whether he used cocaine or paid his fines during probation.
As we explained in Pearson, it is immaterial that the presentation of this evidence occurred before the actual words of adjudication.5 Hardeman had the opportunity to present evidence during the proceedings, and that is all that is required. Therefore, Hardeman cannot show that counsel erred by failing to object, nor can he show he was harmed by counsel‘s failure to object.
ENHANCEMENT PARAGRAPHS
Hardeman next argues that the Court of Appeals erred in failing to address the merits of his claims regarding the enhancement paragraphs. He argued below that there was insufficient evidence to support the two habitual offender enhancement paragraphs and that the trial court erred in failing to arraign him on the enhancement paragraphs. The Court of Appeals declined to review these complaints, holding that it did not have the authority to do so because the claims dealt with the trial court‘s decision to adjudicate guilt.6 We agree with Hardeman that these claims do not involve the trial court‘s decision to adjudicate guilt. Nevertheless, Hardeman waived these complaints by not raising them in an appeal after the trial court imposed deferred adjudication.7 As a result, the Court of Appeals was correct in refusing to address the claims on their merits, albeit for different reasons.
CONCLUSION
We affirm the decision of the Court of Appeals.
Josh McCown, Dist. Atty., Wharton, Robinson C. Ramsey, San Antonio, Matthew Paul, State‘s Atty., Austin, for State.
OPINION
PRICE, J., delivered the opinion of the Court, in which McCORMICK, P.J., and MEYERS, KELLER, HOLLAND, WOMACK, JOHNSON, and KEASLER, J.J., joined.
Appellant was charged with the offense of possession of a controlled substance. During jury selection, appellant objected to the State‘s use of peremptory strikes against six of the seven black venire members.1 He moved for a Batson hearing, arguing that the State was unconstitutionally striking these jurors based solely on their race.2
At the hearing, the State provided reasons for each of its six strikes, including its reasoning for striking venire member Allen: she knew appellant‘s mother.3 Appellant‘s only response was that he believed the trial court had allowed the State to ask an improper question. The trial court found that the State‘s reasons were race-neutral and denied appellant‘s Batson challenge. Appellant was ultimately convicted.
Court of Appeals
On appeal, appellant specifically complained of the State‘s striking of Allen; he did not make this claim at any point during trial. He argued that, according to the jury selection transcript, it was unclear whether or not Allen knew appellant‘s mother because the State never asked Allen a single question. Rather, the State questioned venire member Alaniz about appellant‘s mother and she admitted that
The Court of Appeals determined that no facts in the record supported the trial court‘s race-neutral finding. See Ford v. State, No. 13-97-124-CR, slip op. at 6 (Tex.App.—Corpus Christi March 12, 1998) (not designated for publication),5 1998 WL 107352, at *3. The court further determined that this lack of evidentiary support rendered the trial court‘s finding clearly erroneous. Thus, the Court of Appeals reversed appellant‘s conviction and remanded the cause for new trial. Id.
Analysis
In its petition for discretionary review, the State claims that the trial court‘s ruling was not clearly erroneous. See Yarborough v. State, 947 S.W.2d 892, 894 (Tex. Crim.App.1997) (plurality opinion), Whitsey v. State, 796 S.W.2d 707, 726 (Tex. Crim.App.1989) (opinion on rehearing) (plurality opinion). The State avers that the prosecutor‘s explanation was merely an “honest mistake,” and therefore the Court of Appeals improperly reversed the judgment of the trial court and rendered an opinion in conflict with other Courts of Appeals and its own precedent. See Hughes v. State, 962 S.W.2d 689 (Tex. App.—Houston [1st Dist.] 1998), Salinas v. State, 888 S.W.2d 93 (Tex.App.—Corpus Christi 1994, pet. ref‘d). However, at this time we need not determine whether this conflict exists. Although appellant met his burden of production regarding his Batson challenge at trial, he failed to meet his burden of persuasion at trial.
In Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), the United States Supreme Court delineated the three-step process for how a Batson challenge is to be properly determined. Step one: the opponent of a peremptory challenge must make out a prima facie case of racial discrimination, essentially a burden of production. Then, in step two, the burden of production shifts to the proponent of the strike to respond with a race-neutral explanation. If a race-neutral explanation is proffered, then the third step occurs: the trial court must decide whether the opponent of the strike has proved purposeful racial discrimination. This is the step regarding the burden of persuasion. The Supreme Court stressed that the “ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett, 514 U.S. at 767-68, 115 S.Ct. at 1770-71.
Furthermore, Texas jurisprudence holds that once the State proffers race-neutral explanations for its peremptory strikes, the burden is on the defendant to convince the trial court that the prosecution‘s reasons were not race-neutral. See Camacho v. State, 864 S.W.2d 524, 529 (Tex.Crim.App.1993), Tompkins v. State, 774 S.W.2d 195 (Tex.Crim.App.1987). Thus, the burden of production shifts from the defendant in step one to the State in step two, but the burden of persuasion never shifts from the defendant.
In the instant case, the Court of Appeals determined that appellant met his burden of persuasion—even though appellant never cross-examined the prosecutor about the erroneous explanation nor provided the trial court with any evidence rebutting the prosecutor‘s claim. The State‘s reason for striking Allen was uncontradicted at trial and facially plausible. See Purkett, 514 U.S. at 769-770, 115 S.Ct. at 1771-72 (unless discriminatory intent is inherent in the State‘s explanation, determined primarily
The judgment of the Court of Appeals is reversed and the cause is remanded so that the Court of Appeals may address appellant‘s remaining points of error. See
MANSFIELD, J., delivered a dissenting opinion.
MANSFIELD, J., dissents with note:
The record shows that all six African-American venire persons who could have served on the jury in this cause were struck, and the reasons given by the State were, in my opinion, vague and unsatisfactory. Accordingly, I would affirm the judgment of the court of appeals, reversing appellant‘s conviction due to the violation of Batson by the State.