*1 Aрplication system legal these basic tenets ing repugnant to the is to the present case not strained. Without for over twen- sоme which I have a been member reasonably appellant clear indication from ty years. of the circumstances frоm upon voir dire racial a that dispute I do not for moment rely which he proof intended to of a magni- prejudice unparalleled is an evil of motive, racial the State effectively country. I am history tude in the of this nied a object chance to tо that evidence or unalterably opposition un- its committed to to controverting meet it with evidence. thing is one der all But it circumstances. right And the opportunity objec- to an to allege quite to and another bigotry, tion in this context was merely not an I not рrove would analysis, it. In final the empty formality. appellant Had attempted I found like to have it said of me that expedient thе simple of offering the entire of Texas representing attorney the State dire, voir relevancy a objection from the withоut guilty of such serious misbehavior State would have been well-founded be- or to rebut affording opportunity him an cause, noticed, hаs already been most of Because, against him. explain the evidence the jury process selection in this and Court contin- my mаjority a other upon cases does not bear the ques- in this a result encourage just ues to such hearing. tions at issue in a Batson Unless case, I dissent. successfully could limit his Court of the Fifth only portions offer to those voir dire peals should affirmed. be issue, relevant matters in submission, Having original dissented judge would have been within his discretion P.J., preferred to all any case disallow of the WHITE, JJ, of BENA- join evidence.16 VIDES, J., dissenting denial of the necessary are These and unremarka- Rehearing. State’s Motions consequences sys- fair orderly
blе of a governing virtually litigation, tem in- all Here, hearings.
cluding when hearing pur- for the judge
trial convened evidence,
pose receiving rested any. producing He
and closed without witnesses, transcripts, no
called no offered judicial- request
and made no HENDERSON, Appellant, ly relevant circumstances the voir notice Nathaniel testimony offered dire examination jury selection purpose another Texas, Appellee. STATE therefore, was, entitled process. The State No. 601-90. trial in the certain belief to resume had offered evidence whatso- Texas, Appeals Court Criminal proof. Yet meet his ever to burden En Banc. upon force majority of this would Court June 1991. alone for the duty to searсh judge prejudice in evidence racial most arcane Dissenting Opinion to Denial selection, jury to then long transcript of Rеhearing Judge any request evidence without notice that April Benavides 1992. opportunity for beneficiary or from its finally to objeсt, opponent upon such credibility decision based
critical expla- asking any further
evidence without me Let side. be from either
nation majority, for its hold-
longer part of that Goode, 105.1 at *2 APPEL- AND
OPINION ON STATE’S PETITIONS FOR DIS- LANT’S REVIEW CRETIONARY MALONEY, Judge. charged by indictment
Appellant was Penal aggravated robbery, V.T.C.A. Code, 29.03, by prior convic- enhanced § robbery, Pe- aggravated for V.T.C.A. tion 12.42(c). Code, juryA found the nal the trial court as- appellant guilty and (40) forty years con- punishment at sessed Department of Crim- finement in the Texas Justice, Division inal Institutional (TDCJID).1 The Fourteenth Court apрellant’s conviction as peals reversed the opinion, punishment published in a (Tex. Henderson v. 788 S.W.2d 1990). App. [14th Dist.] —Houston petition for disсretion The State’s ary was filed to determine whether review Rules misconstrued 902, TEX.R.CRIM.EVID., in its 901 and that the trial court admitted determination pen рacket authenticated punishment phase trial. on direct claimed overruling court erred
that the trial objection to admission of fense counsel’s because the pen packet from TDCJID prop- sentence did not reflect judgment and clerk of the er the district certification pen packet original convicting court. The by the trial court into evidence admitted sen- copy contained a previous conviction tence of robbery on file with the aggravated duly attested The recоrds were TDCJID. at TDCJID. by the custodian of records Dingier opinion Based on this Court’s (Tex.Cr.App.1989), pen pack- held that the court Houston, Saum, appellant. Patricia R. admitted because not have been et should sentence copy Holmes, Jr., Atty. Tim- Dist. John B. reflect the certifi- therein did not contained Hawkins, Bill Asst. Dist. othy Taft and G. of the convict- the district clerk cation from Huttash, Houston, Attys., Robert State’s ing cоurt. Austin, for the State. Atty., grant summarily We and reverse Justice, Department Corrections as the Texas Department known of Criminal The Texas (TDC). (TDCJID) formerly Division Institutional may facie Bat- of the court of based on defendant establish recent our Reed son claim. overruling Aсcordingly, summarily grant
Dingier, supra.2
State’s
*3
one,
grounds
appel-
three
two and
review sustained and
review,4 re-
petition
discretionary
lant’s
appеals
court
is reversed on this
appeals
verse the
court of
issue.
issues, and
on these three
remand this
Appellant
petitiоn
also
has
filed
to that court for reconsideration of
cause
discretionary
alleging
Batson3 er
grounds in a manner consistеnt
these three
grounds,
separate
challenging
in
ror
five
stated,
respect
opinion.
with this
As
by peremptory strike
the state’s exclusion
re-
venirepersons.
three
The court of
black
reverse
of the court
we
appeals
appellant’s
in
Bat
found merit
finding
pen
as
appeals
to its
Henderson, supra, at 788
son claims.
au-
packet
was
as
inadmissible
that,
The court
as to
S.W.2d 624.
reasoned
thenticated.
11,
juror
prima
showing
facie
number
CAMPBELL,
by
P.J. and
J.
was made out
discrimination
and, further,
disposition
can
that “an
not do dissеnt
grounds
1
on
comparison analysis
raise a claim of
for review
and 2 based
CAMPBELL,
appeal,” citing
Young
dissent
in
pretext for the first timе on
J.’s
v.
State,
(Tex. State,
Tompkins
S.W.2d 625. grounds 1 and 2. for review two, appellant In grounds one and CLINTON, in J. concurs the result. miscon contends that State, 774 S.W.2d Tompkins strued v. (Tex.Cr.App.1987), pre 202-203 at n. 6A as BENAVIDES, Judge, dissenting. claiming cluding a who is Bat- defendant expressed today in For the reasons “comparison making error from son (Tex.Cr. Young v. 826 analysis analysis” on unless (dissent motion for App.1992) on State’s level. first made at See J., (Benavides, I dis rehearing) dissenting), Henderson, at 625. In supra, the Court’s denial of the State’s sent to Young v. our recent decision rehearing. motion we held that
S.W.2d Tompkins is not to be read footnote 6A in analysis” holding “comparison McCORMICK,P.J., it at the level before must be made WHITE, JJ., join. appeal. argued ean be three, contends the
In disposition erred respecting juror claim
appellant’s Batson sum- The court’s
number 11. upholding point,
mary disposition of this appel- determination that trial court’s showing facie
lant failed to discrimination, is with this inconsistent opinion Dewberry
Court’s (Tex.Cr.App.1989), where
S.W.2d which acceptable methods
delineated
Kentucky,
200(c)(3)
(4).
476 U.S.
S.Ct.
2.Tex.R.App.P.
(1986).
1712,