Grady v. State
730 S.W.2d 191
Tex. App.
1987
Check Treatment

*1 heavy complainant some nervousness and use of alco- that the deceased had come to in eight years. hol for He also the indicated witness’s home beaten condition (2) drinking six-packs daily, couple two of was occasions. The witness complainant shakes when in told by some he withdrew the the that she had been past, but no DT’s or seizures. He was beaten the co-defendant the co-de- placed on medication and to It seemed sta- fendant’s brother. was further estab- bilize. lished in the bill that the witness other of the members witness’s feared hearing suppress The on the motion to complainant’s danger that in the life was the January confession was held 1986. from the co-defendant James Wilson. Sparks report The of Dr. offered request any into evidence nor was A there that witness be cross-examined on judge report any consider the matter determin- relevant to issue the case. 610(b). the voluntariness of the confession. TEX.R.EVID. “Relevant evidence” having tendency any means evidence to report Even had offered into been any make the existence of fact that is of at hearing, evidence there still was an consequence to the determination of proof of absence that the defendant was probable probable action more or than less gave intoxicated at the time he his confes- it would be without evidence. TEX.R. sion. There was no issue fact of before the EVID. 401. judge concerning trial whether or not the intoxicated, proof defendant was developed much less None of evidence in the bill which require finding would such a of exceptions any tendency prove as a to of disprove matter law. any issue fact raised the evi- stage dence at that of this the trial or in point The first of is error overruled. agree cause. judge We with the trial in his point In his second of error the de proffered evidence was complains fendant court failed point irrelevant. The third error over- of is findings to enter of fact and of conclusions ruled. pertaining law voluntariness judgment The of is affirmed. conviction confession. TEX.C0DE art. CRIM.PR0C. 38.22, (Vernon 1979). Subsequent to § filing brief, appellant’s of

court did file con fact and

clusions of a supplemental law tran

script. point is error therefore moot

and is overruled. complains final of error Jimmy GRADY, Appellant, Lee the trial court’s failure to allow the defend ant elicit testimony from State’s wit Texas, Appellee. The STATE of ness on cross-examination which would complainant have shown the been have 05-86-00533-CR, Nos. 05-86-00534-CR. danger of death or from injury the co-de Texas, Appeals Court of fendant. The State called Lee Guerra to Dallas. identify photograph of the deceased. On cross-examination, the defense counsel May 1987. sought question the witness about the Wilson, relations between James co-de

fendant, Wilson, Kathy the deceased

complainant, who had been James Wilson’s Objections by

wife. based on

relevancy were sustained. Defense coun perfected

sel thereafter of exceptions. bill exceptions bill it was established

192 Dallas, Huff, Wayne appellant.

C. Keck, Dallas, appellee. Jeffrey B. WHITHAM, BAKER and Before LAGARDE, JJ.

BAKER, Justice. Jimmy Grady, appeals

Appellant, Lee judgments of conviction two cases Appellant aggravated assault. sexual guilty was tried before a pleaded not guilty in both jury. Appellant was found jury punishment assessed cases and $10,000 in fine of and a at life confinement each case. points of error on two

Appellant appeals (1) erred in over- the trial court as follows: discharge ruling appellant’s motion selection, because, during jury jury challenges to peremptory State used its serving from systematically exclude blacks race; jury solely basis (2) punish- the trial court erred when, objection, it in- phase ment over jury as to the existence structed the pa- regarding possible effects of the law role. We affirm. of error asserts

Appellant’s first the State exercised from the lenges to strike minorities pur- such He maintains for racial reasons. him federal poseful denied discrimination guarantees of and state constitutional right to a equal protection, as well as of the com- a cross-section jury drawn from I, 10 of the section munity under article appellant At the Texas Constitution. perempto- of its objected the State’s use remaining all four ry challenges to strike hear- venire. After members of the black argument the trial evidence and appeal On appellant’s objection. overruled appellant necessary pur- it is clear that bases his discrimi raises the inference the recent case of Bat argument on poseful nation son Kentucky, 476 U.S. 106 S.Ct. deciding has whether the defendant (1986). Appellant’s L.Ed.2d showing, requisite made the *3 six weeks before the Batson tried case was court should consider all relevant circum- Obviously, case coun was decided. neither example, “pattern” For a stances. anticipa sel nor the trial court could have against strikes black included impact ted that on the decision this case. particular might the venire rise to Nevertheless, Batson’s requirements ap an inference of discrimination. Similar- ply retroactively pend to cases like this one ly, questions prosecutor’s the and state- yet appeal on direct or not final. Grif dire ments voir examination and — U.S. -, Kentucky, 107 S.Ct.

fith exercising challenges may his support (1987). 93 L.Ed.2d discriminatory an refute inference of peremptory exercise of chal purpose. examples These il- merely are lenges the for purely racial rea lustrative. We have that confidence Equal sons the violates Protection clause. judges, experienced in supervising voir Alabama, Swain v. 202, 203-04, 380 U.S. dire, be able to if the will decide circum- 824, 826-27, 85 S.Ct. 13 L.Ed.2d 759 concerning prosecutor’s stances the use Swain, (1965). In Supreme the Court held challenges prima creates peremptory prove that a defendant could dis unlawful against facie case discrimination black through crimination the State its use of jurors. peremptory challenges, merely by prima Once the defendant makes a facie pointing to the exclusion group of a racial showing, the burden shifts the State case, jury from the in his only by own but to come forward with explana- a neutral showing systematic exclusion in case af tion challenging jurors.... black Batson, ter case. the court overturned emphasize prosecutor’s that the ex- [W]e requirements the evidentiary Swain planation justi- need not rise to the level held: fying challenge exercise of a for cause may prima defendant establish fa- [A] prosecutor may ... not rebut [b]ut cie purposeful case of discrimination prima the defendant’s dis- facie case of petit selection of the jury solely on evi- by stating merely crimination that he concerning dence exer- jurors of challenged the defendant’s race of peremptory challenges cise de- at the assumption judg- his intuitive —or case, fendant’s trial. To establish such a they ment—that partial would be the defendant first must show he is that defendant because of their shared cognizable a member of a group racial Equal race.... Protection Clause [T]he prosecution ... and that the has exer- ... forbids the States to strike black peremptory challenges cised to remove assumption they veniremen on the that from the venire members of the defend- particular simply will be biased in a case Second, race. ant’s the defendant is enti- because defendant is black ... Nor rely fact, tled on toas which there prosecutor rebut the defendant’s dispute, can no be that merely by denying case he that lenges jury constitute a practice selection discriminatory “affirming motive or his permits that “those to discriminate who good faith individual selections ...” are of mind to Fi- discriminate”.... prosecutor therefore must articulate nally, the defendant must show explanation par- a neutral related any these facts and other cir- relevant ticular case be tried. The trial court cumstances raise an inference that duty then have the to determine will practice used that to exclude purposeful the defendant has established petit the veniremen from jury account of their race. This combination Batson, empaneling (citations of factors in petit 106 S.Ct. at 1722-24. jury, as venire, omitted). in the selection of the and footnotes original On (Tex.App. submission of this Dist.], 1987, pet. [1st

record carefully filed). reviewed. The record revealed appellant objected that after the As a result of the trial court’s the State utilized its peremptory prima facie case made appellant, discriminatory strikes for purposes, ap- burden shifted present to the State to pellant testimony offered from two wit- explanations, neutral if any, for nesses, attorney prosecutor. and the Batson, exclusion of the black veniremen. This Grady evidence established that is S.Ct. at 1723. The involved black, rape that the victims of of which he with the selection then testified as to white, is prosecu- accused are and that the his reasons for the peremptory challenges *4 peremptory challenges tor used his of the four black veniremen. remaining strike all four blacks on the ve- two, He juror testified that Turner, number Mr. nire. These individuals were Mr. Turner, two; was Gardner, seven; struck because he was number Ms. a twen- number old, Willis, ty-three year fourteen; single male Mr. number who had held and Ms. Moore, job only current for thirty-two. year. number one In addi- previously As stated, tion, the court a member of his overruled this motion and immediate had empaneled Also, been jury. We could not deter- arrested for theft. Mr. Turner equivocated mine from original ability the record before us on on his the full appellant range punishment. submission appeared whether met his bur- He reluc- under the Batson criteria. den According- impose tant to a life sentence in the case. ly, the case Finally, was remanded to the trial court may Turner stated that he have hearing for a to determine whether the seen reports televised of the officers in- appellant prima could make a facie case of volved in the case. and, so, racial discrimination if whether the seven, Gardner, Juror number Ms. was provide racially State could neutral reasons struck for main according two reasons the exercise of its prosecutor’s testimony. She was a for- lenges respect to the four veniremen ty-year old female who exhibited demeanor question. carefully The trial court car- problems parties with the law of as well as ried out hearing a full on these issues and range the full of punishment. Although findings filed of fact and conclusions of law the voir dire ability answers indicated an together with this transcript Court with a law, apply prosecutor’s testimony testimony of all the and evidence adduced sug- was to the effect that her demeanor hearing. ap- at this The found Court gested contrary. prior had had She

pellant prima did establish a facie case of in a civil case service which resulted purposeful discrimination in the State’s use prosecutor a mistrial. The testified that he peremptory challenges of its to strike all traditionally avoids from cases re- venire, remaining four blacks on the but it sulting in mistrials. given further found that the State had prosecutor The testified he struck racially explanations neutral for its use of fourteen, Willis, number Mr. because a peremptory challenges against each of the check of criminal records revealed that Mr. Court, four blacks who were struck. The past Willis had been arrested twice in the having explanations after considered these County. prosecutor for theft in Dallas The circumstances, and considering all relevant prospective stated he felt that since the peremp- found that the use of State’s their juror had he been arrested twice was tory motivated, challenges was not jury duty suited for in a criminal district accordingly appellant held that the court. purposeful failed to establish racial dis- crimination the State in the use of their Finally, juror thirty-two, number Ms.

peremptory challenges. Moore, thirty-two year old fe- who was male, may only We was struck the State because the reverse the trial court’s ruling sympa- if clearly prosecutor that determination is erro- felt she be more State, Rodgers v. neous. young 725 S.W.2d 477 thetic to defendants like herself. State, prosecutor particu- jury. Rijo The also noted that this exclusion from the v. See lar individual smiled at the defendant as at 564. S.W.2d Finally, she she entered the courtroom. challenge was The to Ms. Moore religious had omitted an answer to the clearly prosecutor also not erroneous. preference question juror informa- youthful appearance. Similarity noted her opinion prosecutor’s tion It card. age appearance is sufficient basis preferred jurors that he with some reli- peremptory challenge. v. Rodgers gious affiliation. State, 477 (Tex.App. 725 S.W.2d Dist.], 1987) (not yet reported). [1st Supreme As the Court has ob fact that the observed this indi served, following articulation smiling appellant vidual at the at the time explanations re the neutral provides of the voir dire examination also particular lated to the explanation neutral for the duty then will have the to determine striking that individual. Chambers purposeful defendant has dis established State, judge, 724 S.W.2d at 442. The trial In this crimination. context having having heard the evidence and been largely court’s will turn on evalua *5 charged responsibility with the for the de credibility, reviewing tion of and a court credibility of termination the facts and the ordinarily great should those witnesses, explanations of the found the as Batson, deference. 106 S.Ct. at 1724. The to each of the challenged perempto court, supervision trial in its of voir rily by satisfy be to sufficient to examination, unique dire is in position the State’s burden under Under Batson. determine all whether “relevant circum circumstances, these interpose we cannot pur stances” do in fact of establish case our judgment. of Appellant’s point first poseful Reviewing the rea error is overruled. by sons articulated in this say cannot we that the trial court was error, point In his second of clearly in erroneous appellant argues that the trial erred neutral reasons existed for the punishment phase when, over challenge of of each the four veniremen in objection, it instructed the as to question. Persons be struck because possible existence and of law effects they against pun have a range bias of parole. regarding Appellant contends that or ishment because members have these instructions violate the constitutional problems State, Rijo with the law. v. separation powers doctrine of of and also 562, 721 (Tex.App. 565 S.W.2d appellant’s right — Amarillo involve a denial of 1986, pet.). no Accordingly, the reasons impartial process fair and due articulated strik by appellant law. The contentions raised ing of Mr. Turner were sufficiently neutral. in this of error have been decided adversely to him this Court. See Joslin english expressions body Facial and State, (Tex.App. v. 722 725 S.W.2d — Dallas upheld sufficiently have been as neutral. 1986, granted); pet. State, and v. 724 Rose State, 440, Chambers v. 442 S.W.2d (Tex.App. 1986, pet. S.W.2d 832 — Dallas (Tex.App. pet. [14th Dist.] granted). For the reasons stated Joslin filed). Additionally, special circumstances Rose, appellant’s point of error is over previous exposure such as a mistrial ruled. may provide civil case sufficient cause for judgment The trial court’s is affirmed. Therefore, striking proposed venireman. regard with striking to the WHITHAM, J., concurring files a juror, Ms. Gardner as a we cannot find that opinion. ruling the trial court’s clearly errone ous. WHITHAM, Justice, concurring. respect juror Willis, pri-

With qualification, join majori- the two I Without provide ty’s arrests opinion neutral reason for his except disposition appel- complaint respect lant’s with to the instruc parole good

tion on time laws. How

ever, join majority’s opinion disposing I appellant’s complaint respect parole good

instruction on time laws holding in

light majority’s Rose v.

State, (Tex.App. 724 S.W.2d 832 — Dallas Nevertheless, granted). I re pet. 37.07, opinion sec

main of the that article Proce

tion of the Texas Code Criminal is invalid and unconstitutional for the

dure expressed my dissent in

reasons Rose. GONZALES, Appellant,

Isidro Sanchez *6 Texas, Appellee. STATE

No. 04-83-00261-CR. Texas, Appeals

Court of Antonio.

San

May 1987. Antonio, Sakai, appel- A.

Peter San lant. Atty., Rodriguez, Crim. Dist.

Fred G. Jr., Atty. Former Crim. Dist. Millsap, Sam Mendoza, Garcia, Ronald E. Eduardo Antonio, Estee, appellee. Charles San