Hawkins v. StateHawkins v. State
OPINION
A jury found appellant guilty of delivery of a simulated controlled substance, and the trial court sentenced him to ten years’ confinement. In his first point of error, appellant contends that the trial court erred in failing to conclude that he established a prima facie case of racial discrimination in the State’s use of peremptory challenges, and the trial court should have required the State to present its reasons for the peremptory strikes. The State contends that because appellant’s objection was untimely, he was not entitled to a Batson 1 hearing. We agree with appellant, abate this appeal, and remand this cause to the trial court for further proceedings in conformity with this opinion.
The record reflects that following voir dire there was a brief recess at which time the attorneys exercised their peremptory strikes of the panel. Thereafter, appellant’s counsel began discussing pretrial motions on the record before the court. The court then read the names of the individuals selected to sit on the jury and dismissed the remainder of the panel without objection from appellant. Appellant’s counsel continued to request rulings on pretrial motions. After the court had ruled on all of appellant’s pretrial motions, appellant objected to the jury as selected on the grounds that the State exercised peremptory strikes against prospective jurors on racial grounds. The court overruled this objection without stating a reason for the ruling. Subsequently, the court swore in *290 the jury panel, and no further hearing was ever conducted.
Article 35.261(a) of the Texas Code of Criminal Procedure provides in pertinent part:
(a) After the parties have delivered their lists to the clerk under article 35.26 of this Code and before the court has impaneled the jury, the defendant may request the court to dismiss the array and call a new array in the case.
In determining whether appellant’s
Bat-son
objection was timely, the question to be answered is the meaning of the phrase “impaneling the jury.” Appellant contends that impaneling the jury means the identification
and
swearing of the individuals who will serve as the panel for the trial of the case. The State contends that the Texas Court of Criminal Appeals has held that in order for a
Batson
objection to be timely, the request must be made after the composition of the jury is known but before the jury is sworn
and
the venire panel is discharged.
See Henry v. State,
We note that
Henry
was tried before the enactment of article 35.261.
See Brown v. State,
We are aware of no decisions which have resolved the question of what constitutes “impaneling” under article 35.261(a), presumably because the article is of such recent vintage. However, the Texas Court of Criminal Appeals has long held that impan-elment of a jury is not complete until those who have chosen to serve have been both selected and sworn. In
Howard v. State,
In our view, the time limit for a Batson objection must be clear and understandable. For such purpose, the swearing of the jury is the most definitive point in the selection process that can reasonably be chosen as a Batson cutoff point. A jury selection process has not reached its logical conclusion until the oath has been administered. In our view, the swearing of the jury should signal the deadline for the presentation of a Batson challenge. We hold that within the context of article 35.261(a) of the Code “impaneling the jury” means both the selection and swearing of the individuals who will try the case and that a Batson objection made before the jury is sworn is timely for purposes of the article.
Next, we must determine whether appellant presented a prima facie case of purposeful discrimination so as to require the trial court to conduct a further hearing to determine if the State’s peremptory challenges were racially motivated. In order to *291 invoke the protections set forth in Batson, a defendant must establish purposeful discrimination by showing that:
1. He was a member of a cognizable racial group;
2. The prosecutor had exercised peremptory challenges to remove from the venire members of the defendant’s race (peremptory challenges constitute a jury selection practice which permits those to discriminate who are of a mind to discriminate); and
3. These facts and any other relevant circumstances raise an inference that the prosecutory used peremptory challenges to exclude the veniremen on account of their race.
See Keeton v. State,
Since we have held that appellant’s
Bat-son
objection was timely, we will consider that the trial court’s ruling was an implicit finding that appellant failed to establish a prima facie case of discrimination. We must determine whether the record supports such a finding. When the record is reviewed, the evidence must be considered in the light most favorable to the trial court’s ruling and should not be disturbed if supported by the record.
Keeton v. State,
The record reflects that appellant is black. The State’s two principal witnesses were not. After challenges for cause, thirty-five potential jurors were available to serve. Of these thirty-five jurors, eight were black. The State exercised all of its ten permissible peremptory challenges. The State used five of these challenges to strike black venire persons. The State did not exercise peremptory challenges on two black jurors who served on the jury. The eighth and final black venire person was struck by the defense. During voir dire, the prosecutor did not individually question the prospective jurors.
The record reflects that the first two prongs required by Batson are present. The remaining determination is whether the record reflects any other relevant circumstances that raises an inference that the prosecutor used the peremptory challenges to exclude the black venire persons on account of their race. It has been held that there are a number of illustrative types of evidence that can be used to raise the inference of discrimination. This evidence includes, but is not limited to, the following:
1. A pattern of strikes against black jurors on the particular venire, e.g., five of ten peremptory challenges were used to strike black jurors.
2. The type and manner of the prosecutor’s questions and statements during voir dire, including nothing more than desultory voir dire.
3. Circumstantial evidence of intent may be proven by disparate impact where all or most of the challenges were used to strike blacks from the jury.
4. The State used peremptory challenges to dismiss all or most black jurors.
Keeton II,
Because we have determined that appellant has established an inference of discrimination, the burden then shifts to the prosecutor, who must come forward with a racially neutral explanation for the strikes.
Keeton II,