Hill v. State

report: Tex.App., Prior 371. S.W.2d appellant’s petition discretionary

On judgment Appeals

review: Court of

affirmed.

TEAGUE, J., dissents.

MILLER, J., participating. HILL, Appellant,

Michael Lee Texas, Appellee. STATE

No. 347-90. Texas,

Court of Criminal

En Banc. 8, 1992.

Jan.

Rehearing April Denied Dallas, appellant. Boyd,

Lawrence G. Vanee, Atty., Jeffrey John Bri- Dist. to challenge potential jurors Keck, Dallas, Atty., solely an Asst. Dist. Robert on account of their race or on the Huttash, Austin, Atty., assumption group State’s for the that black as a impartially State. will be unable to consider the against State’s case a black defendant.” Batson, 476 106 S.Ct. at 1719. In this there African- were five Americans on the venire. Two of the five OPINION ON STATE’S PETITION FOR and, thus, were at the end of panel the DISCRETIONARY REVIEW three, were not remaining reached. Of the MALONEY, Judge. two women jury sat on the and one male peremptorily challenged was by prose- the Hill, herein, appellant Michael Lee appellant cutor. objected When to the by jury aggravated robbery. convicted a exclusion of the black male on the basis of V.T.C.A., Code, Penal Section 29.03. He Batson and article 35.261 of the Texas was sentenced the trial court to confine Procedure, (V.A.C.C.P.), Code of Criminal sixty years ment for Depart the Texas responded that he chal- Justice, ment of Criminal Institutional Divi lenged the I venireman “because felt like Appellant appealed sion. to the Court of identify he would with the defendant. He’s Appeals alleging that the trial court erred black, male, I way he’s and didn’t like the denying his claim that the State violated responded my questions.” he The trial Kentucky, the rule of Batson v. appellant’s court objection. overruled 106 90 L.Ed.2d 69 reversed, Appeals holding Court of that the and article 35.261 of the Texas Code of prosecutor equal protection violated the Procedure, by exercising per Criminal clause of the United States Constitution emptory challenge against a venire black 35.261,V.A.C.C.P., and also violated article racially discriminatory man in a manner. exercising peremptory challenge The Court of reversed the convic against a venireman on the black basis appellant’s tion on the basis of claim. Hill his race. State, (Tex.App. v. 787 S.W.2d 74 — Dallas 1990). I. рetition filed The State for discretion- raising (1) ary grounds: appel- review three UNDER WAS APPELLANT’S CLAIM (2) timely; appellant lant’s claim was not 35.261, ART. V.A.C.C.P. TIMELY? prima did not establish a facie case of Appellant objection voiced after discrimination; (3) purposeful discharged the venire was but before the Appeals applied wrong appel- alleges jury was sworn. The State determining late standard of review in appellant’s claim should dismissed as finding correctness of the trial court’s untimely authority Henry under the provided a race-neutral ex- (Tex.Cr.App. S.W.2d planation striking prospective juror. 1987), this held that a where Batson petition granted We the State’s on all three objection composi must be made “after grounds. We will affirm. jury tion of the is made known but before panel the United States jury is sworn and the venire is discharged.” Subsequent Henry Court held that Protection to the decision, however, legislature of the Fourteenth Amendment to enacted Clause 35.261, specifying “forbids the article that a Batson ob- the United States Constitution although raising appeal. Cooper failed to ob- 1. We note that the State it on 1990) (Tex.Cr.App. (opinion ject motion in S.W.2d on State’s to the timeliness of defendant’s court, precluded rehearing). from the State is not motion for trial jection timely interposed can be jury, may request elled the the defendant “[a]fter parties per- have delivered their lists the court to array dismiss the and call a [of emptory challenges] array ... and before the new in the case. The court shall impanelled jury.” grant court has Art. 35.- the motion of a defendant for dis- 261(a), array Henry V.A.C.C.P. Both and article missal of the if the court deter- 35.261(a)require objection that the be made mines that the defendant is a member group, an identifiable jury impanelled, before the is Hen- racial that the at- torney representing the state ry requires that it also be made before the exercised peremptory challenges purрose for the panel discharged. Appellant venire con- excluding persons from the on the requirements tends that time of article race, basis of their and that the defen- govern, 35.261 not those in Henry. set out dant has offered evidence of relevant agree appellant. with We challenges facts that tend to show that Batson, the Court did not by attorney representing made the the procedural specify the mechanism for a state made for reasons were based on objection, explaining Saisora-based race. If the defendant pri- establishes a light variety jury selection [1]n case, ma facie the burden then shifts to practices in followed our state and feder attorney representing the the state to courts, al attempt trial we make no to give racially explanation a neutral for imple instruct these courts how best to challenges. persua- the burden holding today. ment our For the same sion remains with the dеfendant to estab- reason, express we no view on whether it purposeful lish discrimination. appropriate is more in particular (b) If the court determines that the attor- upon finding of discrimination ... ney representing challenged the state discharge the trial court to "the venire race, prospective jurors on the basis of jury and select a new panel from a array the court shall in call new the previously associated the case with ... case. or to the discriminatory disallow chal that, light The Court of held in lenges and resume selection with the im express provisions 35.261, the of article properly challenged jurors reinstated on longer governs Henry, “no the timeliness venire, the [citations omitted]. Hill, challenge.” of a 787 S.W.2d at 76. 24, 476 U.S. at 100 n. 106 S.Ct. at 737, In Henry, 729 S.W.2d at this Court 1725, n. 24. pointed requiring objection out that codify implement To and Batson jury be made before the is sworn and the Texas, legislature enacted article 35.- panel discharged is allows the trial court State, V.A.C.C.P. Oliver 808 S.W.2d option remedying the violation State, (Tex.Cr.App.1991); Carrion v. installing challenged either venire- (Tex.App. 802 S.W.2d 87-88 — Austin discharging jury member to the or 1990). We have held that article 35.261 sug- calling array. and a new It was also proce was “intended to create uniform gested remedy if Henry that when and a dures and remedies to address claimed con eradicated, accompanying is timeliness during jury stitutional violations selection.” requirements should be modified. Therefore, Oliver, at 496. whenever legislative history We have examined the claim is made that veniremembers were of Texas House Bill 65 and Texas Senate challenged peremptorily on the basis of Legislature, find that in Bill 70th and their article 35.261 must be followed. 35.261, enacting legislature con- article 35.261, V.A.C.C.P., provides: Article sug- possible remedies sidered both (a) numerous hear- parties gested Henry After the have delivered their and held reme- challenges] ings determine which lists to the and debates to [of Ultimately, they elected tо impan- dy has best. clerk ... and before the court was have remedy the sole the call of a new them.4 The State relies on this Court’s array. remedy This was chosen to elimi- decisions in Brown v. 769 S.W.2d any possible nate (Tex.Cr.App.1989) bias toward the State Cooper might if remedy exist (Tex.Cr.App.1990). were 791 S.W.2d 80 But seat a just venireman whom the State had these cases support argu- do not the State’s struck. The Senate countered House Bill ment. prior Brown’s trial occurred to the 65, requiring impanelment and, of a new effective date of article 35.261 there- fore, array remedy, as a Bill with Senate Henry applicable was to his trial. which would leave Although Cooper’s it to the trial court’s trial did occur after the discretion to either array 35.261, call a new effective date of article we noted improperly reseat struck venireman. that the statute was “not mentioned parties See Senate Committee on Criminal Appeals.” Justice or the Court of Coоper, Bill February Thus, Debate Senate 791 S.W.2d at 81. we were not origi- 1989. This bill defeated upon interpret and the called the effect of article (House 65) nal House version Bill became in that 35.261 case. Thus, legislature article clearly 35.261. Henry inapplicable We now hold that rejected requirement objection that the any equal protection to the timeliness discharged. made be before the venire is arising racially claim from the discriminato 35.261(b),

Art. V.A.C.C.P. ry peremptory challenge exercise of a after the effective date of article 35.261. Since As in Henry, we noted when the appellant’s trial occurred after the effec only possible remedy is the call of a new 35.261, tive date of article the provisions of array, objection to the strike need not apply. objection article 35.261 For the lodged discharged be before the venire is timely “[ajfter be it must have been raised longer since the venire will no be needed parties ... delivered their lists ... and objection whether the is sustained or not.2 impanelled before the court jury”. ... legislature speaks When the to an issue 35.261(a), Art. jury V.A.C.C.P. A is con subsequent to this or other court’s “impanelled” sidered when the members issue, decision on the the effect of jury have been both selected and legislation caselaw, modify existing is to State, sworn. Price v. S.W.2d the statute shall control unless it is uncons 1989). (Tex.App. also, See — Beaumont titutional.3 State, (Tex.Cr. Woolls v. 665 S.W.2d 455 alleges The State that this Court has App.1983); Reese v. 151 S.W.2d 828 already interpreted article 35.261to include (Tex.Cr.App.1941). that, time Henry limits and since the

legislature Here, appellant lodged objection has not acted to amend the stat- his ute specifically peremptory exclude those time re- after the list had strike been quirements, apply we should continue to delivered and the stricken veniremembers presented 2.We note that in Sims v. 792 S.W.2d we dis- Because issue was not that, discretionary (Tex.Cr.App.1990), althоugh petition this Court held missed the for review being improvidently granted. the case was tried after the effective date of 35.261, article we would not address issue legislature’s competence wipe 3. "It is within a Appeals “whether the erred in conclud- regarded judicial precedent the slate clean of a ing improperly that reinstatement of an exclud- Keeton, Venturing as undesirable." To Do Jus- jury permissible ed venireman to the is a reme- University (Cambridge, tice Mass.: Harvard under, of, 35.261(b).” dy spite or in Article Press, ‍​​‌​‌‌​‌‌​‌‌‌‌‌​​‌‌‌‌​​‌‌‌​‌‌‌​​‌‌‌‌‌‌​‌​‌​​‌‌‌‌‍1969), pp. 95-96. request- at 81. Since the defendant in Sims had juror ed at trial either the be reinstated or a that Appellant attempt an noted that there was called, array challenged new and had not legislature made in the 35.261, to amend article 71st Appeals' holding limits, Court of that he invited Henry V.A.C.C.P.to include the error, adequately presented Clearly, legislature we were not with if the had it failed. required the issue of whether article 35.261 those limits it would have intended to inсlude remedy array. be the call of a new done so. sworn, excused, strike, lenged peremptory appellant but before the was cross- held, him, Appeals correctly judge As the Court of examined and the trial entered appellant requirements met the of article finding. appellant his Whether the estab- issue, 35.261(a) and, therefore, objection was prima lished a facie case is a moot timely.

III.

II.

THE STANDARD FOR REVIEW THERE A PRIMA WAS FACIE ground In its third for review the SHOWING OF RACIAL State contends that the Court of DISCRIMINATION? by applying erred an incorrect standard of ground In its second the State review appellate The State asserts that review. alleges Appeals erred in that the Court of “clearly the correct standard review is holding appellant prima made a facie authority erroneous” and cites as Hernan — showing of racial discrimination. York, U.S. -, dez v. New (1991) (“[W]e 114 L.Ed.2d 395 The United States decline to overturn the state court’s [trial] recently held that where a has in finding discriminatory on the issue allеgedly articulated the reasons for his tent unless that its convinced determination racially discriminatory peremptory chal erroneous.”). clearly lenges any prompting inquiry “without We held that the correct standard have from the trial court” and “the trial court of review for claims that question has ruled on the ultimate of inten racially strikes were used in a discriminato discrimination, preliminary tional the issue ry “clearly manner is erroneous”. pri- of whether the defendant had made a 95,101 State, (Tex. 804 Williams v. S.W.2d showing ma facie becomes moot.” Her State, Cr.App.1991); Tennard v. 802 —York, -, nandez v. New 111 (Tex.Cr.App.1990); Whitsey S.W.2d 678 v. 114 L.Ed.2d 395 State, 707, (Tex.Cr.App. 796 S.W.2d 726 Likewise, “[a]p- this Court has noted that 1989)(opinion on State’s motion for rehear pellate bogged review should not become ing). To determine whether the factfind question down on the of whether the defen erroneous”, “clearly appel er’s decision is prima dant has out made facie case [un they late courts look to the rеcord to see if ruling prima less the on the facie case] and firm convic are “left with the ‘definite stop[s] finding process.” the fact Dewber tion that a mistake has been committed’.” State, 589, (Tex.Cr. ry v. 776 S.W.2d 591 (5th Hernandez, 887 F.2d 567 U.S. v. Forbes, App.1989) [citing U.S. v. 816 F.2d Cir.1989); (citing quoting and Anderson v. (5th Cir.1987)].5 Thus, poli the N.C., City, City Bessemer Court, cy of this like that of the United of 1504, 1511, 84 L.Ed.2d 518 Court, is that we will not States (1985)). the issue of whether the defendant review prima facie case the established where Appeals In this the of “con- Court

prosecutor has articulated his reasons for light the most evidence sider[ed] challenged peremptory the strike and the judge’s rulings and favorable to the trial ques the trial court has ruled on ultimate rulings sup- if those determine[d] [were] discrimination. tion of intentional Hill, by S.W.2d 74 ported the record.” doing, Appeals In so the In case the articulated all at 77. Court this State, upon decision in Keeton v. of his reasons for the exercise of his chal- relied our State, (Tex.Cr. Appeals ended the the Court had In 795 S.W.2d 187 becаuse Salazar by App.1990), inquiry claim conclud this Court addressed the issue of into the defendant’s ing prima had been established that it had not been. whether a facie case (Tex.Cr.App.1988), 749 S.W.2d peremptory challenge_ We deter- by Whitsey modified given S.W.2d mine prose- reasons (Tex.Cr.App.1989) (opinion on State’s challenging cutor for [the venireman] rehearing). motion for were unrelated to the case and based on assumptions. although “clearly We have held that er- Hill at 78-79. appellate roneous” is the correct standard review, record,” “supported by urges The State that the Court of appellate standard we announced Kee- Appeals accepted prosecu should have ton, analytically intellectually and tor’s reason for the Identity strike: be “clearly Whitsey, same as erroneous”. appellant. tween venireman and the (“adopting 722-724 clearly erroneous The State contends that identification be merely ‘sup- standard ... extend[s] appellant tween the venireman and can be ported by the record’ ulti- standard its legitimate race-neutral reason for the ex conclusion”); Williams, logical mate and ercise of peremptory challenge against 804 S.W.2d 95. venireman, if even one of the factors

Since the utilized standard upon identity relied to establish the Appeals equivalent is the functional long shared so as there are other non standard, “clearly erroneous” we can- identity. racial factors also establish say Appeals’ ap- the Court of contention, support of its the State relies However, proach was incorrect. disa- we (Tex.App.— on Lee v. 747 S.W.2d 57 vow the nomenclature which the ref’d.). 1988) (pet. Houston In that [1st] Appeals appellate used in its review. Appeals case the First Court of held that announced reason for the challenge, identity between venireman

IV. appellant, on based the fact that were both black males and ten were DID APPELLANT PROVE RACIAL years apart age, sufficiently was a race- DISCRIMINATION? neutral reason for the strike. The Court of appellant objection After to the made wrote, venireman who is sim “[a] challenge, prosecutor’s peremptory the age might sympathetic ilar in and for a be prosecutor testified before the court that justifiably defendant can be excluded from challenged the I he venireman “because agree jury panel.” the Id. at 59. We that identify like he felt would with the defen- coexisting non may race a factor with a black, male, dant. He’s he’s and I didn’t however, strike, for a race racial reason way responded my ques- he to like the may the strike. not be the reason for tions.” Supreme Since 1880 the United States The State contends that the Court of Equal interpreted has the Protection Court Appeals’ effectively decision creates the Amendment to of the Fourteenth Clause that, prosecutor rule if a states that the selection, grаnd and apply jury to both venireman’s race influenced his decision to petit. Virginia, 100 U.S. Strauder v. West venireman, peremptorily challenge the the 303, (1880) (holding 664 a West 25 L.Ed. conclusively proven racial defendant has citi- Virginia prohibited statute which black the of discrimination. But Court serving grand juries from on violative zens wrote, Supreme Court equal protection). of Fourteenth held in that the Strauder prosecu- examine each of the we must that “the law Amendment mandates striking poten- for tor’s reasons a black the black as shall be the same for States juror the circumstances of the tial within white; persons shall the that all ... particular case to determine whether laws of States equal is stand before the explanation” for the strike “neutral and, shall be racially that no discrimination really pretext for a motivated ...

867 required pattern their defendant to against made them law because of was show 307, just in not his 665. of invidious discrimination at 25 L.Ed. Strauder color[.]” cаse, but several cases. Supreme But until 1965 that the it wasn’t equal protec- a claim that Court addressed 79, Kentucky, In Batson v. 476 U.S. had denied to a criminal defen- tion been 1712, L.Ed.2d 69 the Court S.Ct. use of dant portion to “reexamine that was asked 202, Alabama, strikes. Swain concerning evidentiary bur- Swain ... 824, 85 S.Ct. 13 L.Ed.2d 759 placed den on a criminal defendant who equal pro- he has been denied claims that Swain, great In first noted the through peremp- use tection the State’s peremptories play system role that our challenges exclude tory to members jurisprudence, and realized that their ‍​​‌​‌‌​‌‌​‌‌‌‌‌​​‌‌‌‌​​‌‌‌​‌‌‌​​‌‌‌‌‌‌​‌​‌​​‌‌‌‌‍82, petit jury.” at race from Id. very purpose prospective is to eliminate addressing this issue the S.Ct. at 1715. may for reasons which on be based history Equal Court reviewed feelings, logic. rather than See Id. at Protection Clause. challenges (“[Peremptory 85 S.Ct. at 836 grounds normally exercised on are] explained that “the Court Batson thought legal proceedings irrelevant to or purpose of the Fоurteenth Amendment was action, namely, religion, official put governmental to an end to discrimina- nationality, occupation or affiliations of 85-86, tion on account race.” Id. at people jury duty.”). summoned for The S.Ct. at 1716-1717. “Discrimination within acknowledged possi- Court then that it was judicial system pernicious is most be- prosecutors peremptories that ble could use preju- cause it is ‘a stimulant to that race citizens, against to discriminate black impediment securing to dice which is an to required, in equal protection order for an equal justice that [black citizens] established, proof claim to be of more than to all others.” at law aims to secure just per- the fact that the exercised (quoting State at 1718 Strauder 308). emptory challenges against all the black U.S. at citizens on one venire. The Court held that Quoting Swain 380 U.S. at presumption any particular case “[t]he explained using must be that the it “im- Protection Clause makes challenges tо im- State’s obtain a fair and permissible for a to use his chal- partial jury try the case before lenges to exclude from the ‘for blacks court.”6 Id. at 85 S.Ct. at 837. How- wholly reasons unrelated to the outcome ever, acknowledged it the Court also particular deny case on trial’ or to possible “proof might support that the right opportunity ‘the blacks same a reasonable inference that citizens [black justice participate in the administration of ” juries for excluded from reasons were] enjoyed by population’ Batson white wholly unrelated to the outcome Further, 91, 476 at 106 S.Ct. at 1720. U.S. per- and that the particular case on trial stated, concerning the Court “our cases being emptory system deny used to [was] general reflect the selection of the venire oppor- right the same and citizens] [black Equal principle Protection that the ‘invid- tunity participate to in the administra- quality’ governmental action ious enjoyed by popu- the white justice tion racially discriminatory claimed to ‘must 224, (empha- at 85 at 838 lation.” Id. S.Ct. ultimately racially to a discrimi- be traced added). If 93, sis that were the 106 at natory purpose’ ”. Id. at S.Ct. recognize Equal Davis, Pro- would then an 426 (quoting Washington Court 1721 Thus, 2040, 2048, 229, 240, in prove claim. order to 96 48 tection S.Ct. Protection, (1976)). Equal a criminal L.Ed.2d 597 violation of evenly guarantees are to be held.” “freedom from and the state the scales The Constitution 350, Missouri, any against any prej- Hayes bias the accused ... [and] 351, 578, (1887). against prosecution. udice Between him 30 L.Ed. 580 868 overriding

The Equal intent of the the law. If a any member of race is struck Clause, interpreted wholly Protection “for reasons by the unrelated to the out- particular come of the Supreme case on trial applied Court and peremptory to deny order to to right the same challenges, protect [him/her] is to African-Americans opportunity participate to in the admin- against from discrimination them because justice enjoyed by istration of [others]” African-Americans, they are guar and to Equal then the Protection clause has been rights antee them the same enjoyed as are violated. if Conversely, a venireman is by other citizens. struck for being reasons related to the case Supreme The Court in Batson made it tried and he would have been struck for easier for a prove criminal defendant to regardless race, that reason of his the mere that a peremptory used chal- mention of the fact that the venireman is of lenges in violation of the Fourteenth particular automatically race does not Amendment than it had been under Swain. establish a Batson claim.7 The Court Equal held that “the Protection Equal Protection clause is de Clause challenge forbids the to signed protect all being citizens from potential jurors solely on account of their against discriminated because of their race. assumption race or on thе that black protect It does them from a group as a impartially will be unable challenge against levelled them because of against consider the State’s case a black prosecutor’s they reasonable belief that defendant.” 476 U.S. at can sufficiently impartial par not be course, S.Ct. at 1719. “Of counsel’s effort they ticular case on which would sit as a possibly to obtain relevant information juror. against Unless racial discrimination prospective jurors about is to be distin- a venireman is party established guished practice from the at issue here.” claim, raising Equal Protection Id. at- n. S.Ct. n. 12. implicated. Although Clause is not courts

Recently, Supreme recognized must in their be cautious determination of and held that the intent for the strike Fourteenth when Amendment he mentions we can conceive of sce protects every against race purely racially- narios which the race of the venireman motivated exercises of рeremptory chal — particular could be related to the case to be lenges. Ohio, U.S. -, Powers v. way tried in such a as to create a biased 1364, 1373-1374, S.Ct. 113 L.Ed.2d 411 jury if race were not considered (1991). Additionally, litigants exercising their peremptory has declared that Protection present strikes.8 This case does not such a applied peremptory challenges clause as scenario. protects prospective jurors also in civil tri Co., als. Edmonson v. Leesville Concrete alleges State there was “identi- — U.S. -, ty” appellant, L.Ed.2d between the venireman and however, similarity evidence of appellant

between the venireman and The Fourteenth Amendment man were black males. The both dates that all United States citizens called prosecutor did not articulate other sim- jury duty shall ilarity. be treated alike under concurring opinion, prospective 7. Unlike the which makes a interracial crime is entitled to have strong argument pеr- for the eradication of the jurors informed of the race of the victim and challenge emptory altogether, which decision questioned on the issue of racial bias." Since belongs rightly Legislature, we do not holding day the same this was handed down on magic believe that there are words which auto- Batson, as the Court did not mean to exclude matically establish a Batson claim. at this sort of bias from the State's consideration Carolina, South voir dire. See also Ham v. 28, Murray, 8. In Turner v. 476 U.S. 524, 848, L.Ed.2d 46 90 L.Ed.2d 27 capital held that "a defendant accused of an specifically provides “pros- found, Batson that a Appeals the Court of As may prima ecutor prosecutor rebut defendant’s stated that he challenged the upon facie case of discrimination venireman I “because felt like he would [based prosecutor’s peremptory challenges] use of black, identify with the defendant. He’s by stating merely challenged jurors that he male, way he’s and I didn’t like the he assump- of the defendant’s race on the responded Hill, my questions.” at 78. judgment—that they tion—or his intuitive After examining prosecutor’s dire voir partial would be to the defendant because in entirety, venireman its the Court Batson, of their shared race.” at found perfunctory: that it was 106 S.Ct. at 1724. Protec- “[T]he meaningful questions “there were no asked prosecutor tion Clause forbids the to chal- upon challenge juror.” which to lenge potential jurors solely on account of exchange The between the assumption their race or on the that black black venireman who was subse- group as a will impartially be unable quently struck and appel- about whom the to consider against the State’s case a black claim, lee raised his Batson consisted of defendant.” 106 S.Ct. at following:

Prosecutor: Is that last [venireman’s alleged identity Thus the between right, Is that sir? name]? and appellant, only venireman based on Venireman: Uh-huh. the shared sex and shared race оf the ve you Prosecutor: What do do for AT & T? appellant, nireman and escape does not Venireman: ‍​​‌​‌‌​‌‌​‌‌‌‌‌​​‌‌‌‌​​‌‌‌​‌‌‌​​‌‌‌‌‌‌​‌​‌​​‌‌‌‌‍I’m a data tech— prohibition against making

Batson’s the as sumption that because the defendant and Prosecutor: Pardon me? the venireman are of the same race A Venireman: data technician. identify would with each other. If there A Prosecutor: data technician? How significant were other similarities between long—I barely can read that. How appellant venireman, and the then race long you compa- have been with that might have been one of those similarities ny? which empathy appel established between lant and the venireman. Ap Twenty years. The Court of Venireman: peals is correct in holding that this is not you Prosecutor: Can think of reason sufficient constitutional, to establish a non- why you impar- would not be fair and identity. race based Insofar the lan as particular tial this case? guage Lee v. 747 S.W.2d con Vеnireman: No. opinion flicts with this expressly it is disa Okay. Prosecutor: vowed. agree We that the State’s voir dire exam- fact that the men perfunctory. ination of this venireman was part tioned race explanation of his prosecu- We must examine the rest of the peremptory challenge to establish an tor’s light reasons for this strike in of his identity present is not is indicative of perfunctory Whitsey, voir dire. See purposeful discrimination this prosecutor’s S.W.2d at 713. The additional it Appellant is not conclusive. still must way reasons were: didn’t like the he “[I] 35.261(a), prove racial Art. discrimination. responded questions my [the venireman] words, appellant In other V.A.C.C.P. must attitude, ... his his demeanor.” explana show that other challenge other statements made merely pre tions for his were response appel- venireman were made Whitsey text for discrimination. See questions. by appel- (Tex.Cr.App. 796 S.W.2d lant’s When asked 1989) prior on (opinion State’s motion for rehear lant’s сounsel about his contact with ing). activity, responded criminal the venireman had He “The contends that

that his coworker been robbed. State identification be- however, stated, knowing appellant that the facts tween the venireman and can be any him in legitimate his friend’s case would not bias a race-neutral reason for the ex- give way. When asked if he could peremptory challenge against ercise of a “your venireman, the benefit of individual defendant if even one of the factors answered, judgment?” he a “without upon identity relied to establish doubt.” long shared so as there are other non- racial factors also which established identi- reproduction from the As can be seen ty.” majority At 866. The embraces dire, above, nothing the voir there is to by holding: contentions “The fact State’s suggest hostile to that venireman was prosecutor that mentioned race as a point, the State. Illustrative of this when part explanation peremptory of his for his gave asked what answers the venireman challenge identity to an establish which is like, prosecutor that he didn’t answer- present purposeful is indicative of dis- ed, “I’ll them to me. have to have read back case, crimination in this but is not conclu- I can’t remember what were.” Be- sive,1 [AJppellant ... must show that the any cause the never mentioned prosecutor’s explanations for other his language, specific body or other non- challenge merely pretext were for dis- actions which led him to that verbal believe crimination.” At 869. against venireman was biased speaks the record for itself. II. A FROM THE UNITED VIEW burden;

Appellant has carried his STATES SUPREME COURT for the race-neutral reasons pretextual. exercise of his strike were The right participate The of a citizen to finding trial court’s that the by serving justice administration of on a challenge for race-neutral was exercised very precious right in our petit jury is a clearly judg- The reasons is erroneous. only right citizen’s to society, second ment of the Court of is affirmed. society, to a participate our second This cause is remanded to the trial court. right participate citizen’s our demo- Ohio, system by voting. cratic Powers v. — -, MILLER, J., concurs in result. L.Ed.2d BAIRD, Judge, concurring. Virginia, Strauder West I result reached concur with the defendant, L.Ed. 664 majority; judgment of the man,” complained of the State law “colored However, affirmed. I Appeals should be provided that no colored man was separately Part of the to address IV. write eligible grand jury to be a member of a majority opinion. petit jury. controlling to serve on a presented in was: question Strauder and laws of whether the Constitution THE HOLDING I. MAJORITY’S States, every citizen United phrases conten- majority the State’s right to a trial of an United States has a “The State contends that tions as follows: by jury selected against indictment him effectively Appeals’ the Court of decision impaneled discrimination without that, if a statеs creates the rule color, of race against his race or because race influenced his venireman’s or color[.] challenge the peremptorily ve- decision question] nireman, conclusively It is to be observed the defendant has [the man, an a colored when At 866. is not whether proven racial discrimination.” indicated, supplied by emphasis the author. all here- in is 1. Unless otherwise

871 against of preferred equal indictment has been amounted to a denial of him, was, therefore, right grand petit jury protection or has a to a a and unconstitu- composed part persons or in tional. at 310. whole Id. color; or it is of his own race wheth- Texas, 442, 444, In 111 20 Carter v. U.S. er, composition ju- or selection 687, 688, 44 S.Ct. L.Ed. 839 a Gal- by rors whom he is to be indicted or County veston defendant filed a motion to tried, may or color persons all of his race quash grand his indictment because the law, by solely excluded because of be commissioners, appоinted who color, by possibili- their race or so that no grand jury, persons excluded “all colored upon jury. ty can colored man sit persons or of African descent” because 305.

Id. at and color. The their race trial court over- ruled the motion. The defendant was con- Supreme question The Court deemed the appeal victed and sentenced to death. On a important because it demanded construc- the defendant did not contend that the law [13th, and tion of the “recent 14th 15th] facially unconstitutional but rather of the Id. amendments Constitution.” being that it was administered in a discrim- recognized The that the 14th Amend- Court inatory by grand fashion jury commis- “designed the col- ment was to assure to selecting only sioners who were whites as enjoyment ored race the of all the civil Nevertheless, grand jurors. this af- Court rights enjoyed by that under the are law judgment firmed the of the trial court. persons[.]” Id. at 306. Under the white See, 39 Tex.Crim. Carter construction the “recent amend- Cоurt’s 236; 39 Tex.Crim. 48 S.W. 508 S.W. provide right ments” were ratified to “the (Tex.Cr.App.1898) (Appellant’s mtn. exemption legislation unfriendly from overruled). reh’g colored; against distinctively them as ex- discriminations, emption legal imply- from Supreme re- when Court ing inferiority society, lessening in civil decision viewed our Carter the rules law security enjoyment rights of their of the already governed which the case were enjoy, which others and discriminations by Supreme “clearly established” steps reducing which are towards them to Carter, precedent. at 689. subject the condition race.” Id. at 308. state, by any action of a Whenever specifically addressing When the statute through legislature, through its whether complained of which the defendant courts, through executive or its its Court stated: officers, persons all of the administrative excluded, solely African race are because very people fact that colored are n of their race or color, serving from as singled expressly оut and denied prosecution grand jurors the criminal right participate statute all in the ad- equal person of the African law, jurors, of the be- ministration him, protection of the laws is denied to color, though they their are cause of Amendment contrary to the Fourteenth may respects in other citizens of the Constitution of the United States. qualified, practically a fully brand Virginia, 100 U.S. Strauder v. West them, law; an asser- upon affixed Delaware, 664; L.Ed. Neal v. inferiority, tion of their and a stimulant 567, 574; 26 L.Ed. Gibson prejudice impedi- is an to that race which 565, L.Ed. Mississippi, securing ment to to individuals Sup.Ct.Rep. equal justice the law race that others. aims to secure to all at 689. Id. at 308. “The neces- found: has is that the defendant Virgi- sary conclusion concluded that the West

The Court up and claimed right duly set in the selection been denied nia statute’s discrimination 872

by “Negroes him under the Constitution and laws of grand-jury selected for service to States; judg- and therefore than grand jury.” United not more one on eаch Cassell, (Emphasis Supreme ment is reversed ...” Id. at 690 70 S.Ct. at 631. The original). Court held: Jurymen should be selected as individ- Carter, spite fifty In of the decision in uals, qualifica- on the basis of individual later, Supreme years Court was asked tions, and not as of a members race. County practice to review the Harris of selecting grand jury service. individuals An accused is entitled to have Texas, 128, In 311 61 Smith v. U.S. S.Ct. charges against by him considered (1940), 164, 85 L.Ed. 84 the defendant com- jury in the selection which there has of plained systematic of the intentional and been neither inclusion nor exclusion “negroes” grand jury exclusion of from because race. timely The defendant’s filed mo- service. quash by tion to the indictment denied Holding proportional that a racial limita- the trial court and that decision was af- tion was under the 14th forbidden Amend- See, by firmed this Court. Smith v. ment, 632, Supreme again Id. at 565, (App. 140 Tex.Crim. 136 S.W.2d 842 See, judgment reversed a of this Court. 1940). statutory The Texas scheme was 648, v. 154 Tex.Crim. 216 Cassell being capable of carried out with no rаcial (App.1949). S.W.2d 813 However, of the discrimination. because permissible wide discretion under the stat- 202, Alabama, In v. 85 Swain equally capable being applied ute it was 824, (1965) L.Ed.2d S.Ct. 13 759 Su- Smith, discriminatory in a manner. In two preme Court confronted for the first time grand jury commissioners testified that peremptory challenges the use of as a de- negroes “their failure to select was be- jurors of their race. vice to exclude because any did not know the names of cause principle re-stated the that “a qualified who were and the other said that purposeful or deliberate denial to State’s personally acquainted he was not with Negroes participation of race of on account Smith, negro race.” 61 members jurors justice administration reversing at 166. In the defendant’s S.Ct. violates the Protection Clause.” Supreme conviction the Court held: Swain, 85 at 826. S.Ct. part of the established tradition in It is question a defendant had of whether public juries the use of as instruments of proving purpose met the burden of Swain body truly justice jury be a ful discrimination was re-visited Batson representative community. For 79, 106 Kentucky, 476 U.S. S.Ct. 90 v. in the ex- racial discrimination result (1986). rec L.Ed.2d 69 The Batson court jury clusion from service of otherwise ognized many of the earlier deci while qualified groups not violates our Supreme Court had “been sions under Constitution and the laws enacted dur largely concerned with discrimination concepts it is at war with our basic but venire, principles ing selection of the society representative a democratic and a there also discrimination announced forbid government. petit on account of race selection of Id. at 165. Batson, Accord at 1718. jury.” up its Texas, may not draw ingly, 70 S.Ct. “the State Cassell pursuant procedures neutral the defendant lists 94 L.Ed. 839 ‘other way statutory method of then resort to discrimination attacked the Id., process.’” stages in selection administered grand jury selection had been Georgia, 345 U.S. quoting Avеry Dallas grand jury commissioners of L.Ed. County. contended the com- The defendant Therefore, to strike ‍​​‌​‌‌​‌‌​‌‌‌‌‌​​‌‌‌‌​​‌‌‌​‌‌‌​​‌‌‌‌‌‌​‌​‌​​‌‌‌‌‍privilege limiting “the State’s missioners were the number jurors through peremptory premise individual chal Court reaffirmed the lenges, subject qualifica- to the commands of the “that racial discrimination in the digni- Equal Protection Clause.” tion or selection of offends the ty persons integrity at 1719. of and the S.Ct. courts.” The Powers court extended the The as Batson Court described Swain holding in Batson held that “a criminal having placed crippling on defendants a may object defendant to race-based exclu- proof of which had the effect of burden jurors through perempto- sions of effected immunizing prosecutors from constitutional ry challenges whether or not the defendant scrutiny. Consequently, Id. at 1721. the juror and the excluded share the same Batson Court relaxed the burden. Swain presented the race.” Id. Relevant to issue establishing prima at 1723. After a Id. in the case at bar the Powers Court held: purposeful facie case of discrimination Equal We hold that the Protection petit jury, of the selection the the burden prohibits prosecutor using Clause a from shifts to the to come State forward with peremptory challenges the State’s to ex- explanation” challenging “neutral for black qualified clude otherwise and unbiased jurors. describing at 1723. Id. When the persons petit jury solely from State’s burden the Court held in race, practice reason of their that fore- part: significant opportunity partic- closes a Equal Just as the ... Protection ipate in juror civic life. An individual Clause to exclude forbids States right does not have a to sit on persons from the venire on the black particular petit jury, but he or she does assumption group as a blacks are possess right not to be excluded unqualified jurors, to serve as [citation one on account race. from so it the States to strike omitted] forbids assumption blаck veniremen on the suggested particular stig- It is that no particular prosecutor will be biased in a ma if or dishonor results simply case because the uses the raw fact of skin color to deter- defendant black. The guarantee equal objectivity core mine qualifications or of a protection, ensuring juror. citizens that their We do not believe a victim of the view; State will not discriminate on account classification would endorse this race, would be meaningless assumption stigma were we that no or dishon- approve jurors accepted equal exclusion on or attaches contravenes assumptions, the basis such protection principles. Race cannot be a solely jurors’ arise Nor proxy determining juror race. bias or from for may person’s simply rebut the defendant’s ‘A competence. race ‘is merely by denying case juror’ that he had a his fitness ’. unrelated to as a [ci- discriminatory ‘affirmpng] motive may accept tations We not as omitted]. good making faith in individual se- racial a defense to discrimination [his] lections.’ If very stereotype these condemns. law [citation omitted] general accepted assertions were as re- Id. Ill S.Ct. at butting prima a defendant’s facie foregoing convincingly cases demon- Protection Clause ‘would be play principle strate the that race shall no illusory requirement.’ but a vain and [ci- jury process. The part selection tation there- omitted] minority citizens from service exclusion of explana- must articulate a neutral fore primary example jurors constitutes particular tion related to the case to be the Fourteenth Amendment was evil tried. Batson, cure. 106 S.Ct. at designed to Id. at 1723. guar- Equal Protection Clause 1716. The —Ohio, -, Powers v. defendant that the State will antees. 113 L.Ed.2d 411 from the on account exclude members Strauder,

of race. 100 U.S. at 305. Com- not an overriding factor in Speak- Mr. petence juror ultimately to serve as a de- er’s trial in the selection of ju- these pends on an quali- assessment of individual rors. ability fications and impartially consider While the candor is com presented the evidence at trial. mendable, his statement clearly shows person’s 106 S.Ct. at 1718. A race is sim- that he considered race a factor while

ply juror. unrelated to his as a fitness selecting the appellant’s tri juror al. This basis selection has

traditionally been condemned. See Cas Texas, sell v. 339 U.S. III. A VIEW PROM TEXAS COURTS (1950) ([a]n L.Ed. 839 ac Recently, our sister Court considered a cused is entitled to charges have the Palacios, similar in issue Powers v. against him by considered a in the (Tex.1991). S.W.2d 489 In the Powers selection of which there has been neither plaintiff sought defendant, question the race). inclusion nor exclusion because of Palacios, to racially establish a discrimina- may While we realize that it be unreal tory peremptory use of strikes. Palacios expect prosecutor put istic to the conceded that race was a factor in his every improper aside when influence determination to exercise peremptory his selecting juror, а we conclude that that reversing judg- strikes. Id. at 490. In exactly Thus, requires. is what the law remanding ment and the case for a new a admission that race was trial the unanimous Court held: influencing an in the selection factor Here, oppos- Powers established that process legitimacy vitiates the ing peremptory counsel had exercised a procedure. entire See Batson 106 S.Ct. challenge discriminatorily. [footnote 1719; Delaware, Neal v. Such ‘automatic invocation of omitted] (Otto) 370, 397, 26 L.Ed. 567 race stereotypes progress retards [our] Speaker, 740 S.W.2d at 489. democracy] a multiracial and causes [as continued hurt injury.’ and Edmonson A McKinney similar issue arose in — Co., Inc.], Leesville Concrete [v. (Tex.App 761 S.W.2d . —Cor at-, 111 S.Ct. at 2088. holdWe that pus 1988) Christi where the State admitted equal protection is denied when race is that race was not the reason was a per- in counsel’s exercise a factor challenging in peremptorily factor challenge emptory prospective ju- to a Emphasis in black venireman. at 550. rоr. Benavides, original. Judge then a Justice Id. at 491. Appeals, Corpus on the Christi Court of held:

A by similar issue was addressed us, First in Speaker prosecutor the case before (Tex.App. 740 S.W.2d 486 prima facie appellant’s did not rebut [1st —Houston 1987). Speaker The Court held: articulating a by Dist.] case discrimination peremptory explanation neutral for In this the trial court never strike, the discrimi- but rather confirmed point reached the of a factual determina- admitting race was a nation purposeful tion of whether discrimination striking No “neutral factor Evans. proven prosecu- had been because the pre- explanation” to rebut the can serve explanation peremptory tor’s practice of sumption that the condemned facially inadequate strikes was as a mat- race occurred when exclusion based on hearing ter of law. At the on the motion an exclu- admits that such trial, for new admitted: sion did occur.... consider, Although is faсtor I do race overriding it 761 S.W.2d at 551. McKinney, it is not an factor and was precedent from the United failing established majority, while to mention adopt Powers, Supreme Court. We should or McKin- States distinguish Speaker, Speaker, McKinney, and holdings con- may a factor holds “that race ney, immediately the fol- establish the Powers reason for tributing to a non-racial equal protection rule: lowing “bright line” however, strike, may the rea- race not be is a factor race is denied whenever a hold- At 866. Such for the strike.” son challenge. This peremptory of a exercise Equal Pro- recognize that the ing fails to necessary because one “bright line” rule to strike Clause State tection forbids articulate a “race-neutral” simply cannot assumption minority veniremen “on exercising peremptory explanation case particular in a be biased will part explana- of that race is a strike when the defendant is also simply because" tion. Batsоn, 106 S.Ct. at 1723. minority. I concur in the With these comments majority opinion this reads majority. results reached strong argument for the eradi-

“makpng] a challenge alto- cation strongly disagree.

gether.” At n. 7. I CLINTON, OVERSTREET and in the selec- participated has No one who BENAVIDES, JJ., join opinion. this importance tion of a can discount Indeed, peremptory challenge. we of the intelligent peremp- use of elevated

have right.

tory challenges to Constitutional

See, 118 Tex.Crim. Naugle v. However, (App.1931).

S.W.2d

right “subject to commands See,

Equal Protection Clause.” Therefore, while the 106 S.Ct. at 1719. MOODY, Appellant, John Glenn right peremptorily challenge a venire important, importance is member is its

clearly outweighed when the Texas, Appellee. STATE deny, challenge is used to on the basis right par- a citizen’s Constitutional No. 70883. justice by ticipate in the administration of Texas, Appeals of Court of Criminal serving ‍​​‌​‌‌​‌‌​‌‌‌‌‌​​‌‌‌‌​​‌‌‌​‌‌‌​​‌‌‌‌‌‌​‌​‌​​‌‌‌‌‍jury. Discrimination has no on En Banc. qualification or selection of place dignity offends the of the indi- jurors and 15, 1992. Jan. integrity and the of the Court. viduals Powers, at 1366. The Pro- extends to all citizens

tection Clause privileges serving juror. as a

rights and

Therefore, the human condition will while fight the freedom continue to

probably discriminate, justice system must not See, Garcia, to that end.

provide a means It’s Goes Three and Out—There

Strike Lawyer, No- The Houston

Peremptory, 1991, at 22.

vember-December A BRIGHT ESTABLISH

IV.

LINE RULE intent true to the clear

I remain would century purpose of more than

Case Details

Case Name: Hill v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 8, 1992

Citation: 827 S.W.2d 860

Docket Number: 347-90

Court Abbreviation: Tex. Crim. App.