*1 861 WHITE, J., Penalty one concurs in the result. groups and two in- groups. only prohibited controlled sub- clude ONION, P.J., dissents. four, Penalty groups three and stance. only prohibited include not substance, “[a]ny also
controlled mate- mixture,
rial, compound, preparation any quantity of the follow-
which contains
ing [emphasis ... Arti- substances added]” 4476-15, 4.02(d), V.A.C.S. differ-
cle § Legis-
ing penalty groups indicate that the legislation capable drafting is of
lature material, clearly “any includes com-
which For
pound, preparation.” mixture or some
reason, Legislature to limit has chosen penalty groups substances
the controlled to the listed controlled sub-
one and two KEETON, Perry Appellant, Amphetamine, only. possession stance guilty, appellant of was found is which group penalty two substance. Texas, Appellee. The STATE of sought Legislature obviously No. 69639. potential liability offender’s broaden the weight pure beyond the controlled Texas, Appeals of of Criminal The desire to broaden the of- substance. En Banc. limitless, liability fender’s was not how- By using the ever. terms “adulterant” and April phrases “dilutant” rather than words or “any such as “detectable amount” or mix-
ture,” clearly Legislature intended to some The definition
establish constraints.
of “adulterant” and “dilutant” which we comports legislative set out in-
tent. is clear from record
It that without water, appellant
the addition of possession grams. of less than any pertaining is of
record devoid evidence presence purpose
to the reason or for the the water the solution. Absent evidence it cannot
such be said was an or dilutant. That
water adulterant
is, the record contains no evidence that the
water was intended to increase the bulk or
quantity product. final foregoing analysis,
Based on the
judgments the trial court and court of the cause re-
appeals reversed and to the trial court with instructions
manded judgment acquittal as to the
to enter possession amphetamine over
offense grams.
OPINION FOLLOWING ABATEMENT MILLER, Judge.
Appeal was taken from a conviction for
capital
Code,
murder. V.T.C.A. Penal
finding appellant guilty,
19.03. After
§
jury
findings
returned affirmative
to the
37.071(b),
special issues under Art.
V.A.C.
C.P. Punishment was assessed at death.
opinion reforming
pun-
We issuеd one
judgment
ishment
to life and affirm-
case,
ing
granted rehearing
and then
appeal
our own motion and abated the
for a
hearing concerning
trial court
peremptory
tor’s use of
strikes. Keeton v.
(Tex.Cr.App.1987).
The record Thus, requested. equipped are now we point dispose appellant’s fifth of er- ror, trial court wherein he claims that the exercise allowing erred in ap- peremptory against strikes members of pellant’s appellant’s in violation of con- race rights as set forth Batson stitutional 1712, Kentucky, 476 U.S. 106 S.Ct. (hereinafter (1986), cited as Bat- L.Ed.2d ). son Keeton, supra at once stated in
As prima facie has established a the defendant regarding the State’s case of strikes, the peremptory burden use of its forward with a to come shifts to the State challenges. explanation for the neutral duty consid- has the The trial court then determine whether er the evidence and are sufficient. explanations Smith, Corsicana, appel- William L.
lant. THE TRIAL COURT IN PROCEEDINGS Batchelor, Atty., Dist. Corsica- Patrick C. us, exercised Austin, the State na, Huttash, In the case before Atty., Robert State’s members three for the State. Mr. Lit- exercise that person One did appellant’s race. black race, particular color or tleton was jury. We will consider serve on creed.” regarding each strike. State’s At the Batson hearing, prospec- the first
William Littleton was stated that used a appel- After tive struck the State. against Littleton because: objected counsel
lant’s *3 against peremptory strike Little- use of a my feeling of was that because “[I]t ton, testimony given by following the was contacts at prior these convictions and prosecutor:1 the office, fair my he could not be to and the of Texas.” State Dis- “I Pat Batchelor. I’m Criminal am Attorney County, Texas. of Navarro trict juror struck prospective The second the in this cause representing I State am Chaney. The the was Jeanetta State against Perry Keeton. number re- her voir dire examination record of just acquainted Alexan- Chaney I have examined William was well vealed that case have exer- der Littleton in this and and his mother. She indi- appellant with against making preemptory strike she cised a cated that would trouble [sic] penalty I concerning that did the death Mr. Littleton. reasons a decision appellant related to that strike Mr. William this was exercise like in daughter her and “kind of the Littleton was that on 12th Alexander 1974, 17,- October, family.” No. day Cause 099, County in the Court of Navarro peremp- exercised After Texas, Mr. Littleton was convict- County, appellant’s against Chaney, tory strike transporting whiskey wine in a ed of and 1, supra.] footnote objected. counsel [See plead guilty to that and dry area. He in as a prosecutor again was sworn [guilty] by was found the Court that as and testified follows: witness offense. “I I’m the Criminal am Pat Batchelor. 17,438 No. on Also Cause December County Attorney in Navarro District 17th, 1975, prospective venire- this representing I the State Texas. will be Littleton, man, Mr. William Alexander of ‘The State of Texas versus the case whiskey dry was convicted of sale Perry Keeton.’ 17,438. in Cause No. area veni- prospective I have examined 17th, this Also December I Chaney did reperson Jenetta [sic] venireman, A.
prospective Mr. William challenge on preemptory exercise [sic] Littleton, of whis- was convicted of sale I The reason that of the State. behalf 17,437 County in cause No. in the key challenge preemptory exercised [sic] County, Texas. of Navarro knowledge of and of her was because De- right family of the my preemptorily relationship to with the
I exercised she felt solely and the statement Mr. Littleton based fendant [sic] aon level the Defendant was upon prior misdemeanor convic- like that these they were of her sons did with one run-ins with the law and not tions and Thielman, Seymore Bаtson v. during voir low. See record shows that dire 1. The trial, objected Defense, appellant’s Weapon Voice portion Kentucky: counsel A New they Defense, peremptory strikes as of the State’s 21-24. There each October black race. The were leveled at members prosecutor hearing it we conceive now was no Batson subsequent took stand each rather, trial; hearing took during held testimony presented objection as to Batson Court, mentioned at place of this the order after jurors why prospective struck. The were opinion, Since we beginning of issued. this clear, doing prosecutor's reason for so passing record when the entire must examine attempt may we assume that this a laudable rejection of upon propriety of a trial court’s homage supra, which was pay objection, trial testi- a Batson trial and two before the instant delivered weeks mony in this discussion. is included generated procedures to fol- confusion over the fashion, Capital I was un- this Murder case related some fact that was a degree higher you require exact would burden able to ascertain the some- than of reason- relationship, but she felt it was State the burden say Am I relationship right from the able doubt. I that? what of a close when got. that I impression Yes, A. sir. preemp- The reason that exerсised examination, did indi- Later tory challenge is I felt that this [sic] in- cate that he could follow the court’s her to serve on would cause undue stress regard bur- structions with to the State’s jury and make a decision of have to proof. den of somebody death that she life or with strike, ap- After the State exercised its obviously and had was this close with objected. pellant’s counsel absolutely nothing do the fact 1, supra] and took the stand footnote [see I did not that she was black and stated: race, or creed.” her because her color “I Pat I’m District Attor- am Batchelor. *4 hearing, Batson During the I ney County, in Navarro Texas. am prospective juror that tor stated this in representing the State this cause.
struck because: just Tommy Crosby and have examined had too close a tie to “... Defendant challenge preemptory a on exercised [sic] prospective venireman had the—that Crosby of the State of Mr. behalf [sic] relationship a to the Defendant too close Crosby the reason Mr. vacilated for that State of completely to be fair he great deal or not a on whether [sic] County people Texas and the of Navarro higher no burden could hold State to making a decision in this case.” required. first asked than the law When fairly he would hold he was definite that Tommy Crosby prospective third was the higher even to thе to a burden the State voir juror struck. The record of the dire of a saying a shadow point beyond of following: examination shows the I exer- This is that doubt. the reason cases, Q. prosecutor] capital In [By the challenge. It preemptory cised that [sic] cases, Capital Murder burden the State’s color, race, nothing to do had with proof beyond is doubt. of a reasonable origin.” creed, religious or national [sic] relatively a That’s the same burden —It’s a explaining In use of highest that high It’s the we burden. during the Batson against Crosby system. just have in the criminal [sic] hearing, the stated: that it’s also the same burden we But misde- speeding ticket case or have a preemptorily did strike “The State [sic] meanor; higher. no it’s venireman, Tommy J. prospective during his Crosby for the reason that ... sitting you you feel if were Do like nu- examination, he had stated dire voir person’s Capital Murder case where a a particular case that in this merous times require you would life was involved that ato have to hold the State he would bring you the State to more evidence and proof of than he would higher burden you than carry higher forth burden penalty ordinary case where the death an in, say, speeding ticket case? would not involved. Definitely. A. chal- like that could have I felt we cause, out of Crosby lenged Mr. Q. Appellant’s attorney] precaution ... [By Mr. abundance of an over —and all of its aspect you what used Crosby, there’s one of the State had not since challenges State Attorney preemptory talked about District [sic] —the deeper preemptory chal- to exercise go I would like into a little chose [sic] challenging for cause you lenge instead of you, and that is—I believe not be Crosby could we felt Mr. Attorney due to the because the District told states. Since the Batson decision calls of his would belief fair higher procedure to a burden familiar to to hold State a new not heretofore have particular case.” proof demanding of a daily practice of —that per- their exercise of party the reasons for filed hearing, the trial court After the are, we emptory states strikes —most of law findings of fact and conclusions attempts are, ground. A few plowing new following: included which role, define the trial defendant, The finds that the 1. Court made, we and to those already been KEETON, is a member PERRY now turn. group. racial cognizable cutor cause of racial In lenges necessarily record. To answer this 3. purposeful tor poseful discrimination. lenges the defendant 2. remove exercised 7. ecutor’s came forward given [sic] ruled. given by fendant’s completely credible. for each of defendant’s strikes whatsoever. *5 5. 6. sum, judge’s The The The defendant’s had question completely sufficient as by from the venire members Court finds Court Court finds Court premptory not exercised examine both race. premptory prospective findings use race. black we now prosecutor in each case is prosecutor in each case bias or raised an inference finds that the with a neutral finds that the finds that the finds that there was of premptory prospective objection [sic] held that the face is whether the [sic] prejudice. question we must jurors of the de- peremptory supported the trial court’s premptory by challenges explanations attorney for explanation to to content. [sic] jurors be- is by the over- pros- chal- chal- [sic] pur- no is tion. Batson. their under poses, Then, trial lish a to be traveled sumption of discrimination burden explanation is come forth 1987), defendant particular neutral cult. nonverbal thus circumstances member of based on race. determining admit that the subtle ecutor “The trial participatory State judge’s understanding [******] improper discrimination. If and most they dealt with the the Missouri requires the One such himself. production to the may explanation is but an with a strike use which creates judge’s facie case doubts role: Antwine, the venire nuance member communication his decision attempt from merely The defendant must estab importantly for our explanation whether an dеaling role racially The court is trial task that a of of discrimination of and from the a to show is both voir awith procedural neutral difficulty of the the venire pretextual totality extremely S.W.2d that shifts to prosecution to Court dire, from each articulated verbal given, the that such left embrace explana Batson of excuse noting noted route pros- diffi- (Mo. pur one. will pre and a making appropriate determina- role room that Batson leaves And we believe hearing, as in a Batson our role and tions peremptory its exercise State to for the reviewing those deter- court in appellate an prosecu basis of challenges minations. expe past and “hunches” legitimate tor’s is
rience,
long
racial descrimination
so
not, therefore,
THE TRIAL JUDGE
THE ROLE OF
We do
motive.
not the
BATSON
holding
UNDER
[Butler
Butler
adopt
265, 269, 41
CrL
S.W.2d
first
that the trial
We
note
only objectively
1987)]
(Mo CtApp
by our sister
slowly being defined
is
role
supportable explanations of its use of
ed
strikes. After an exhaus-
challenges
survive a Batson
tive
handling
examination of California’s
challenge.
constitution,
the issue under their state
Florida
analy-
court noted that California’s
believe, however,
Wedo not
that Batson
holdings,
sis
prosecutor’s explana-
explanations”
“neutral
satisfied
tions were insufficient under the facts of
facially legit-
which are no more than
discussed,
the four cases
had the effect of
imate,
reasonably specific and clear.
giving meaning
requirements
to the
of Bat-
facially
explanations
Were
neutral
suf-
part
Then
analysis,
son.
a five
sometimes
more,
without
Batson would be
ficient
test,
misnomered a
announced:
meaningless.
It would take little effort
prosecutors who are
such a mind
presumption
party
After a
arises that a
adopt
explanations”
rote “neutral
peremptory challenges
has used its
legitimacy
which bear
but con-
prospective jurors
exclude
on
the basis
facial
discriminatory
race,
offending party
ceal a
motive.
doWe
must articulate
“legitimate
not believe the
Court intend-
reasons” which are “clear
ed a charade when it announced Bat-
reasonably specific”
and which are
son.
particular
“related
case to be
factors must
judge to
ner
lenges
paring his observations and assessments
lifetime
both his
of a
defendant to show a
voir dire
State.
of veniremen with those
[W]e
[*]
over the
prosecutor using peremptory
read
in a
experiences
assess the entire milieu
personal experiences
[*]
objectively
Batson
must consider his
addition,
racially discriminatory
course of
[*]
considered as circum-
evidence
with voir
*6
pattern
he must consider
[*]
require
explained by
time. Other
subjectively.
offered
[*]
dire,
personal,
with the
practice
man-
chal-
[*]
com-
neutral
tried.” The
ly against
lenged venireperson
4)
certain
unrelated to
3) disparate
ry
lenged
same
bias where thе
2)
shown to
specifically;
1)
the reason
no
examination of the
question
examination
explanation:
juror,
response
apply
following
examination
given
legitimacy
of
i.e.,
to the
facts
other
without
group
based
for the
questioning
will
so as to evoke
only perfuncto-
challenged
of the
challenged
panel
weigh
trait
of the chal-
challenge is
asking the
any
case;
members;
is not
heavi-
group
juror;
race-
chal-
and
5) disparate
stances demand.
where there is
treatment
given
responses
no difference between
Ultimately,
the trial
must
unchallenged venirepersons.
and
focus
of the
all
information
intuitive
case,
gathered
in
perceptions he has
to determine
The
in this
as it was
error
[Peo
Hall,
161, 197Cal.Rptr.
prosecutor’s
per-
use of his
ple
whether
Cal.3d
v.]
[35
emptory challenges proceeds
71,
(1983)]
from
a ra-
867
variety
both men and women and are a
hold now that is not
sufficient
ages, occupations,
eco-
of
and social or
explanations,
meeting
in
conditions,’ indicating
race
nomic
presumption
deciding
was the
factor.
abused,
facially
being
is
race-neutral. The trial court must
2.
pattern
A
of strikes
black
fur-
explana-
proffered
evaluate
ther
venire; e.g.,
jurors
particular
4
light
recog-
in
we
tions
the standards
challenges
used
were
here, other
nize
circumstances
jurors.
to strike black
case,
knowledge
the judges’
3.
conduct
at-
past
of the state’s
tactics
order to make a reasoned de-
challenges
torney
using peremptory
prosecutor’s facially
termination that the
jury ve-
to strike all blacks from the
explanations
innocuous
are not contrived
nire.
admitting
group
to avoid
acts of
discrimi-
type
4. The
and manner of the state’s
Florida,
Slappy
nation.
So.2d
attorney’s questions
statements
Dist.1987).
(Fla.App.3
dire,
nothing
during
including
voir
omitted)
supplied
(emphasis
and citations
desultory
more
dire.
than
voir
type
questions
5.
and manner of
far,
By
attempt
most exhaustive
challenged juror,
to the
includ-
directed
analyze
the Batson decision and
both
ing
questions,
or a lack of
a lack
appellate
guidance
in im-
lower
courts
meaningful questions.
plementing
procedure
its
was done
Supreme
in Ex
Alabama
Court
Parte
Disparate
6.
treatment of members
Branch,
(Ala.1987).
tion sharefd] After facie case is a membership group— tic-—their peremp- the presumption there that is a respects they other all challenges and to discriminate tory were used heterogeneous as the com- then has jurors. The state black [were] instance, clear, specif- articulating For ‘it munity as whole.’ the burden ic, chal- significant persons legitimate the reason for the may be black, particular case lenge relates to the challenged, although all include which 868 tried, types of that can be used to
to is nondiscriminato- evidence and which However, showing pretext: rise show sham or ry. need not challenge to of a for cause. the level given not 1. reasons related clear, specific, plausible addition to a to the facts of the case. spe- nondiscriminatory explanation of a questioning to 2. There was a lack the deci- cific characteristic affected challenged juror, the or a lack of mean- challenge, following are illus- sion to ingful questions. can types of the of evidence that trative persons Disparate 3. treatment — presumption be used to overcome or similar characteristics as same neutrality: show challenged juror were struck. challenged ju- non-black 1. The state Disparate 4. examination members or charac- the same similar rors with venire; e.g., question designed jurors were teristics as the black who response provoke to a certain struck. likely disqualify juror was to asked pattern There is no evidence of a 2. jurors. not to jurors, to black white ju- used to black of strikes having peremp- prosecutor, 5. The rors; having peremp- total e.g., of 6 tory challenges, the used challenges, the 2 to tory state used only remaining blacks remove and 4 jurors strike black on the venire. there blacks jurors, and were white based on a “[A]n remaining venire. group group trait is not bias where clear, however, makes it Batson challenged juror apply shown to to the cannot meet this burden State “[t]he instance, specifically.” For an as- general assertions that its officials mere sumption as a that teachers class are they properly or that did not discriminate liberal, any specific ques- too without Rather, performed their official duties. panel having tions directed been ‘permis- must demonstrate that the State showing po- or the individual racially neutral selection criteria sible nature of the chal- tentially liberal produced procedures have the mo- lenged juror. Furthermore, intui- result.” nochromatic merely accept cannot The trial suspicion prose- judgment tive given reasons specific pre- cutor is insufficient rebut value, must con- cutor face Finally, a of discrimination. sumption facially neutral ex- sider whether the pre- prosecutor cannot overcome the ad- planations are contrived avoid “merely by denying any dis- sumption mitting group discrimination. acts of good criminatory ‘affirming motive or his by the trial is nec- This evaluation ” in individual selections.’ faith possible that at- essary it is omitted) supplied and (emphasis citations intentionally dis- torney, although not try to reasons criminating, may find citation, Echoing, procedure without challenge a black race to other than Supreme by Missouri outlined primary may be juror, when race Antwine, the Alabama juror. deciding to strike factor on: Court went omitted) (emphasis citations supplied and has articulated “Once the *8 challenging nondiscriminatory conceptual analysis reason for of approve We of employed other can offer court jurors, proceedings side in the trial the black Alabama, Flor- or ex- of showing Supreme reasons Courts evidence harmony in Missouri, find them merely pretext. planations are a sham or ida with, considerably more elaborative though following are of The illustrative
869 Keeton, Citing approval part the five test set than, analysis supra.2 in with our infra, Slappy, in discussed
forth
ceedings involving
what
late
ployed, has
viewed
tor’s
sometimes
Stamps v.
preme
reviewing
has carried over
review
Bryant v.
App.1987),
the reason
mination,
in
court’s
purposeful discrimination.
the stricken venireman had written bad
establish
souri trial
checks
decide
discretion and denial of a fair
In
The Alabama Court of Criminal
voir
reviewing
court should
explanations for the use of his strikes
Antwine, supra,
standard of review should be
if
The
Court was somewhat
ruling
used
all of the voir dire and the
blacks
Supreme
dire,
THE
the Missouri
APPELLATE COURT
judge that the defendant did not
State,
the determination of
cursorily) by other states.
question
seemingly
given by
previously
past,
also
and concluded that the trial
claimed Batson error
ROLE
play
THE CASE AT BAR
TEAGUE, Judge, concurring.
Applying this standard to the facts
bar,
trial court’s find
we find that the
issue that is before this Court
One
finding
ings
supported by
the record. Dur
were
is whether the trial
resolve
examinations,
racially
expla-
ing
dire
both Lit-
neutral
their voir
believed
why
potential
prosecutor gave him as to
Chaney
evidenced a
nation the
tleton
peremptory strike on venire-
be- he exercised a
biased
the State: Littleton
*10
11 or 12
approximately
Littleton was that
by the evi-
person
supported
Littleton is
years previously Littleton had been convict-
in this record
dence. There is no evidence
being
“bootlegger”, a
three times for
finding.
If
ed
might support
contrary
disquаli-
not
misdemeanor offense that did
believed,
prosecutor’s explanation
was
serving
in this
fy Littleton from
as
sufficient to demonstrate that he exercised
however,
nothing,
that re-
There is
cause.
strike on Littleton for non-ra-
intervening
him,
flects or indicates that
judge
cial reasons. The trial
believed
years Littleton had contin-
or twelve
supports
finding.
eleven
and the record
he,
activities,
“bootlegging”
or that
ued his
I
I
that the
write because do not believe
time,
Littleton,
had
during
period
sufficiently
majority opinion is
clear on
activity, or
engaged
any
other criminal
only
prosecutor,
fact that the
who was the
a “fine” and
Littleton was other than
issue,
testify
was never
witness
County
“upstanding” citizen of Navarro
by appellant’s attorney, ei-
cross-examined
prospective juror
he served as a
when
at trial
prosecutor
ther when the
testified
wise,
Thus,
least record
this cause.
post-trial hear-
or when he testified at the
might re-
nothing before us that
there is
conduct-
ing that this Court ordered to be
Littleton would not
flect or indicate that
repeat:
only testimony
I
or evi-
ed.
“good” juror for the
as
have made a
judge had to decide
dence that the trial
fact,
In
the record
well as the defense.
of his
prosecutor
exercised one
whether
to me that Littleton would
clearly indicates
on Littleton because
“good”
probably
made the State a
was the un-
racial or race-neutral reasons
That,
be-
is not the issue
juror.
testimony
prosecutor.
impeached
The issue be-
to resolve.
fore this Court
prose-
The trial
chose to believe
is
there
to resolve whether
fore
cutor,
testimony
unimpeached,
was
whose
support
is sufficient evidence
support
is sufficient to
and the evidence
believing
prosecuting
attor-
judge’s
judge’s finding.
the trial
why he
explanation as to
ney’s race-neutral
correctly
majority opinion
Because
As
peremptory strike on Littleton.
used a
sup-
holds that the evidence is sufficient
stands,
given
the record
the law now
finding
judge’s
that the
port the trial
us,
uphold
compelled to vote to
I am
before
gave
a “race-neutral”
or
cutor
finding
he believed
judge’s
the trial
why
peremptory strike on
reason
he used a
explanation or reason
the “race-neutral”
concur,
Littleton,
venireperson
I
the black
gave.
that the
reluctantly.
I do so
I do not concern
albeit
ap-
reflects that counsel
The record
peremptory strikes the
myself with the two
challenged the “race-neutral”
pellant never
venireper-
on
other
prosecutor used
two
gave
why
as to
explanation the
appel-
race as
sons who were of
same
peremptory strikes
one of his
he exercised
I find that the evidence is
lant because
fact,
reflects
the record
on Littleton.
support
than sufficient to
the trial
more
testified after
that when
findings
prosecutor’s ex-
Littleton,
peremptory strike on
exercised a
exercising his
planations or reasons for
post-trial
at the
he testified
as well when
persons
were
peremptory strikes
those
cross-examined
hearing, he
never
was
“race-neutral”.
ap-
counsel, although
was
counsel
defense
me,
from cross-exam-
why
parently
prohibited
Littleton concerns
and that
made
only
effort
concurring opinion.
ining
ex-
him.1 Nor
file this
to have the trial
gave
striking
defense counsel
planation the
course,
course,
prospective member of the
hearing,
if one
should be an
Of
A “Batson”
reasons,
adversary proceeding.
compare
See and
United
for racial
race is excluded
defendant’s
Cir.,
(9th
Thompson,
pro-
jury
S.Ct.
held,
alia,
prose-
preme Court
inter
Although I
find that
rational trial or
peremptory
his
strikes
cutor’s exercise of
appellate
court
could have found that
as the
venirepersons of the same race
on
although
explanation
by
race-neutral
se
a denial
per
did not
constitute
defendant
prosecutor
ring
had the
of truth or
Although
equal protection.
the Su-
plausibility
it,
he could have also found it
Swain,
expressly held in
su-
preme Court
actually
thus,
was
(specious);
fallacious
may not exclude
pra,
prosecutors
say
am unаble to
that the record would
through
race
of the defendant’s
members
support
finding
the trial
solely
peremptory strikes
the exercise of
should have disbelieved the
race,
“the
it also held that
the basis of
rejected
explanation
the “race-neutral”
must,
issue, show the
pose
defendant
prosecutor gave
as to Littleton.
peremptory
systematic use of
period
challenges against Negroes over a
Tompkins
In
(Tex.Cr.App.
v. State
No.
at 839.
Court
of time ...” 85 S.Ct.
68,870,
7, 1987)(presently pending
October
presumption that the
further held that a
Supreme
before the
Court of the United
peremptory
his
did not exercise
appellant’s petition
certiorari,
States on
for
false
of race or on the
on account
Texas,
Tompkins
see
the defend-
assumption
members of
87-6405),
following
Number
pointed
qualified group are not
race as a
ant’s
judge,
out: “A
determining
whether a
existed,
merely
jurors
serve
prospective juror
challenged
has
been
race had
of the defendant’s
no member
prosecution on a racial basis in violation of
case
in a criminal
as a
ever served
...,
the United States Constitution
has an
prosecuted
had
which the
obligation weigh
the evidence and assess
prima
facie
to establish
insufficient
credibility
(footnote
of the witnesses
jury se-
in his
purposeful discrimination
omitted).
short,
the trial
is a fact-
of his
exercise
process or in the
lection
If
finder.
from the evidencehe believes that
of the Ne-
on members
peremptory strikes
exercised
Swain,
Thus,
gro race.
under
venirepersons
strikes to exclude
based
pri-
to establish
for the defendant
considerations,
order
duty
upon
it is his
racial
racial discrimination
ma facie case of
provide appropriate relief.
so find and to
process, it was
jury selection
appeals
and the courts of
This Court
necessary
him to show that
for
reviewing
do not
principally
courts. We
in a
repeatedly
had
struck blacks
cutor
judgments
our
of witnesses’
substitute
prosecuted.
of cases which he had
evidentiary weight for those number
credibility and
shows,
factfinder,
judg-
the above test effec-
affirm those
As case law
articulate a race-neutral
go further and
from
tively insulated
particular
to the
case to
explanation
strikes on veni-
related
use of
tor’s
i.e.,
“give
race as
tried,
of the same
has to
a ‘clear
repersons who were
defendant,
he was thus free to
explanation
of his ‘le-
reasonably specific’
of the same
venireperson who was
reasons,’
exercising
per-
gitimate
[his
impuni-
defendant —almost with
as the
However,
race
once the
emptory strikes].”
See,
example, Ridley v.
ty.
defendant’s
prosecutor does that the
This
(Tex.Cr.Apр.1972).
S.W.2d
deci-
is
and the ultimate
facie case
rebutted
in coun-
reflect that even
records
Court’s
prosecutor’s “race-neu-
sion whether
large numbers
this State which have
ties of
solely
rests
believable
tral”
race,
Negro
and the
of members
judge, subject to review
race,
was of that
few members
*12
defendant
appellate court.
jurors
got to serve as
that race ever
Batson,
defendant
supra, once the
Under
struck,
peremptorily
they were
showing of racial dis-
prima facie
makes a
example,
prosecutor. For
usually
prosecutor’s
use
crimination based
County in
in Dallas
felony
“In 100
trials
per-
peremptory strikes on
of his allotted
1983-1984,
peremptorily struck
prosecutors
defendant, the
as the
sons of the same race
eligible
jurors;
of 467
black
405 out
prosecutor to
to the
burden then shifts
sitting
jury
qualified
on a
chance of a
black
give
ex-
and
a race-neutral
come forward
one-in-ten,
for
compared to one-in-two
of each of the
planation for the exercise
(Footnote omitted.)”
106 S.Ct.
a white.
persons
he used on
peremptory strikes that
The
as the defendant.
of the same race
However,
Kentucky, 476 U.S.
Batson v.
exercising a
may
justify
prosecutor
not
(1986),
79,
1712,
prima discrimination, facie case of racial it effect will on the conduct of crimi- have prosecutor per- because the exercised his gainsaid.” nal trials cannot be S.Ct. at emptory strikes on members of the same perhaps very 1725-1726. This is true. defendant, race as the the defendant’s Batson, However, it if appear that would commenced, just has work and not ended. supra, any is to given be substantive mean- prosecutor gives When the comes forth and ing, prosecutor permitted should be explanation” why a “race-neutral as to he by giving ap- to sustain his what burden minority venireperson struck a who is of pear facially specious to be “race-neutral” accused, the same race as the the accused reasons, juror “I struck the such as be- clearly must demonstrate on the record cause he when I appeared to be inattentive judge why the trial should disbelieve spoke him, appeared with he attentive but prosecutor’s explanation. If judge trial him”; spoke when defense “I counsel prosecutor’s believes that the reasons are juror her struck the she held head because race-neutral, nothing and there is in the her, spoke in hands her when I to but when record to show that the trial judge’s deci- spoke defense she looked him counsel erroneous, appellate sion was court will “I straight struck the eye”; following: no choice but to state that she lived in believed judge “The the trier of trial is the facts and neighborhood the same as the defendant.” credibility judge of the of the witnesses nothing These than amount to less reasons weight given and the to to the testimo- strike. It exercising peremptory is ny, i.e., may accept reject he the testimo- true, course, each of the above ny deciding of the witnesses in the issues. reason, a generic reasons is “race-neutral” supports The evidence this cause nothing there is of the reasons judge’s finding.” compare trial See and involving might related to the judge’s the situation de- cause it to be challenged easily generated cision to admit a tried. confession of to be “If such ex- all, peremptory 2. After even after a State's strike is still a strike.
g75 discrimination; discharge 4. The ful Court finds that planations sufficient obligation justify prosecutor his strikes came forward with a neutral grounds, protection non-racial then the explanation premptory on for each of the [sic] today may be by the Court illuso- challenges jurors erected prospective of the de- (Marshall, J., concurring opinion, 106 ry.” race; tke fendant’s 5. The Court finds 1728). S.Ct. prosecutor explanation given by the (my em- completely each case credible is appears, that until the Su It there phasis); and 7. Court finds that Batson, supra, preme Court clarifies if the purposeful no was gives explаna race-neutral prosecutor premptory use of his [sic] tion, appears more the form of a Given the fact that whatsoever.” support conclusion rather than for that conc appellant found that estab- lusion,2A believes that showing purposeful lished a facie reason, that will be sufficient rebut the racial discrimination prima facie case of racial dis defendant’s per- three of his fifteen when exercised process, jury selection crimination emptory strikes on members of the same appel further will be sufficient for an appellant, race as I believe the main late court to sustain the trial deci primary that is issue before this Court prosecutor. sion to believe the compelled is whether the cause, appel- In this four members a more detailed as to veni- panel jury lant’s race were on the from reperson If required Littleton. all that is jury selected. One which reason, giving the mere of a race-neutral jury. four was selected to be on the giving any support details to without of his exercised three allotted reason, then the trial had a basis fifteen strikes on the remain- express finding that he which make ing persons. prosecutor, three black race-neutral ex- believed strike, after he exercised each testified and *14 planation why peremptorily he struck Lit- gave a race-neutral reason. He later con- tleton. post-trial firmed this the “Batson” hear- ing. venireperson the Lit- Pertinent to black tleton, the reflects Littleton record that After this Court remanded this cause to dire during testified his voir examination court hearing, for a “Batson” anybody acquainted he was “not with that upon prosecutor’s concession, based the the Attorney’s Lit- in ... the District Office.” found as a matter of law that he tleton also testified that had not “[ever] appellant prosecutor established that the any any police had with officers.” trouble struck members of the same race he respects, In Littleton was to be all shown (Negroid), finding appellant thus juror. no acceptable capital murder At prima a established facie case of racial during voir dire examination time prosecutor’s jury se- question prosecutor Little- Littleton did the process. judge expressly lection The trial past any ton about of his criminal trans- following: found the “2. The Court finds any gressions past dealings with or his prosecutor premptory exercised law enforcement establish- member challenges to remove from the venire [sic] ment, including prosecutor any mem- race; or members of the defendant’s [three] prosecuted appellant of his attorney The Court finds ber office who for the “bootlegging”. raised record purpose- defendant an inference of three for times exercising peremptory 2A. The term is defined as "a strike on a member "reason" statement a justification”, offered in or whereas the same race as the defendant involves “explain" reason, i.e., is defined as "to the reason for or underlying rationale for that of’, Collegiate Dictionary cause Webster’sNew minority why prosecutor reason struck the (1980 edition). The terms often used inter- itself. member rather than "reason" My changeably. with a concern acquainted anyone in the Dis- was not with Littleton’s voir dire also reflects that after Attorney’s Unfortunately, Office. Lit- completed prosecutor trict examination was granted, subpoenaed by short recess either the requested, and was tleton was appellant testify, records.” I assume nor did “to check out some post-trial testify was un- at the “Batson” hear- this statement that he past event, appellant’s nothing criminal ing. any familiar In there is if transgressions pertain and wanted time to learn records this Court that before his office or the Clerk’s Office reflected might reflect or indicate this cause regarding possible pri- anything Littleton’s prior simply because of the misde- recess, the or criminal record. After the meanor convictions Littleton had sustained per- prosecutor then exercised one of his “hе could not be fair to the State Tex- Thereafter, emptory Littleton. strikes on Although appreciate I as.” can that he exercised a testified concern, cutor’s after he had learned that because on peremptory strike on Littleton previously convicted Littleton had been 12, 1974, (this trial occurred in October letting “bootlegging”, three times of about 1986, later), approximately years twelve cause, I juror serve as a in this Littleton transporting Littleton was convicted reason, am to conclude that unable area, dry whiskey and wine in a and on more, per cause him to se without would be he was convicted of December unacceptable as a this cause. am committing separate transporting two research that unaware of studies or dry offenses. whiskey and wine area might “bootleggers” make indicate that following prosecutor gave the reason poor jurors Given the State. striking my “I exercised Littleton. elapsed lengthy period of time that had right peremptorily challenge Mr. Little- convicted of “boot- since Littleton was last solely upon prior these misde- ton based might appears me that he legging”, it and run-ins with the meanor convictions “reformed boot- very classified as a well be law and did not exercise that so, and, like “reformed legger”, if much any particular Mr. Littleton was of drunk”, very dаngerous juror could race, However, color or creed.” there is defense, not the State. for the nothing might in the record that reflect or indicate, possibly except Littleton decided held that once a facie case has been being “bootlegger”, to retire in 1975from established the defendant the burden engaged “bootleg- that Littleton had then shifts to to come for ging” or other criminal activities after *15 explanation ward with a race-neutral hearing, At the “Batson” without 1975. is related to the why he details, giving any prosecutor embel- tried — his peremptory exercised strike or strikes trial, upon gave lished the reason he at persons on of the same race as the defend [appellant’s] at and “because of contacts ant, this case. such relates to and that office, my he could not be fair to the State held Bat Supreme Court also prosecutor, never of Texas.” The son, supra: prosecutor “The must artic might explained what “contacts” Littleton ulate a neutral related to the had with him or his office which have particular case to be tried.” 106 S.Ct. at prosecutor to later conclude caused 1723. He “must a ‘clear and and impar- that Littleton could not be a fair reasonably specific’ explanation of his ‘le certainly tial for the State. It would gitimate exercising reasons’ for the chal appear that if Littleton’s “contacts” with lenges.” 106 at S.Ct. prosecutor or his office had resulted in experience, any noteworthy unpleasant all of this mean? Exactly what does developed this dur-
prosecutor would have prose- exactly is the burden that Littleton, What ing his voir dire examination of satisfy once had to noted, cutor in this cause As testified but he didn’t. Littleton prima facie case? appellant established his during his voir dire examination that he
877
and trial
striking
juror,
reasons
heavy is this burden
Exactly how
second-guess
Batson,
ill-equipped to
judges
su-
are
carry? Under
must
at 1728.
106 S.Ct.
his
those reasons.”
not satisfied
prosecutor has
pra, the
not
merely
that he was
he
states
burden if
view, as
my
supra, did
What
his
he exercised
racially motivated when
forced the
goes, is that it
far this case
venireperson of
on a
peremptory strike
known
cause to make
The reasons the
race as the accused.
same
formerly
ex-
probably
covert
what were
the level
gives
not rise to
“need
might not otherwise
pressions of
he
what
challenge for cause.”
justifying a
record, i.e., he had to
say on the
dared
have
However,
satisfy
he cannot
S.Ct. at 1723.
why
his
world
he exercised
declare to the
he had
“merely by denying that
his burden
a minor-
on members of
peremptory strikes
‘affirming his
discriminatory motive or
race,
decision was not
ity
and that suсh
” 106
selections.’
good faith
individual
racially motivated.
at 1723.
S.Ct.
However,
rea-
racially
such
neutral
course,
admits that
if the
Of
following,
as the one
as well
sons as the
he exercised a
the reason
above,
cause,
suffi-
and the
given in this
race as the
of the same
strike on a member
cient,
explanation, to
more detailed
without
defendant,
unquestionably
his candor will
case of
a defendant’s
facie
overcome
satisfying
his burden
cause him to fail
ex-
racial discrimination
prima facie
defendant’s
proof to rebut the
on mem-
his
ercise of
“Thus, prosecutor’s admission that
case.
defendant, if
race as the
bers of the same
influencing factor in the selec-
race
anwas
believes
legitimacy of the
process
tion
vitiates
they constitute a sufficient
Do
conclusion?
process. See Batson 106 S.Ct.
entire
to believe
basis for a
Delaware,
(Otto)
v
1719;
Neal
103 U.S.
juror appeared to
“Because
cutor?
Speaker v.
(1881).”
370, 397,
ployed (Page 865.) statement, sister State”; phys- he states.” the “Because was This rors for appeared virtually he overlooks the handicapped”; “Because fact that ically disturbed”; every day he in each of our mentally “Because trial courts of this to be pret- judges State ugly”; upon she was too are called to too “Because become was fact, age finders usually the same as and their decisions ty”; “Because he was grandchild depend defendant”; upon he has a their “Because assessment of the credi- defendant”; bility of a Tomp- or age “Because witness witnesses. See same as the State, supra. “Be- kins v. contact”; eye juror’s like I did not thought juror and the defend- I cause company”; by the same employed
ant were
supra, situation,
the trial
earring in his
gold
he
“Because
wore a
judge certainly
obligation weigh
has the
to
ear”.3
the evidence and assess
credibility
If
witnesses.
he determines from the
faсially
The above are all
race-neutral
evidence that the
reasons for
reasons,
Will
kinds of
reasons.
these
exercising
his
strikes on mem-
alone,
standing
sufficient
Texas to
be
bers of
racially
the defendant’s race are
implicit
express
or
support
a trial
neutral,
duty
provide
it is his
to so find and
finding
reason
appropriate relief.
If he determines the
race-neutral?
one or more of the
Will
contrary,
duty
it is his
to also so find.
above reasons
sufficient
overcome
the defendant’s
facie
of racial
answer, though,
question
The difficult
prosecutor’s jury
se
adequate
constitutes an
race-neu-
what
process,
require
this
lection
or will
plausible must it
explanation?
tral
How
Interestingly, many
more?
of the above
in-depth
must
be? How much
given
already
by prose
reasons have
been
his
support
prosecutor give
order to
cutors of this State to rebut a defendant’s
explanation?
particular-
How
race-neutral
case, see,
example,
Morri
prima facie
ized
his reason be? Must
must
(Waco
son v. State
Appeals,
Court of
No.
something more
cutor’s
amount to
reason
10-86-177-CR,
22,
January
1987, P.D.R.
prospec-
hunch
suspicion
than a
30, 1988);
March
refused
well as
his
juror to
not be a fair
tive
will
Branch,
cases,
parte
Ex
Alabama
526 So.2d
racially
gives a
side? If
(Ala.1987),
Bryant
v.
609
516
such as one
explanation,
neutral
(Ala.
So.2d 938
Cr.App.1987); the Missouri
reasons,
given in this
or the one
above
Antwine,
case,
State v.
(Mo.
prosecutor failed overcome the defend- further, prosecutor go require To the to prima of racial discrimina- ant’s facie case give explanation a for his reasonable pro- prosecutor’s jury in selection tion the juror not make a conclusion that the would say to cess. And this not that judge trial good juror, State’s before the deliberately will lie to our tors of this State favor, not, course, find in his does can states, as judges. prosecutor When a being prosecutor mean here, minority a that he struck occurred giving his to the trial truthful conclusion solely the prospective juror because he sup- it means until judge; simply that “bootlegging” sustained three convictions conclusory “legit- ports his reason with ago, probability he is in all years over are “clear and rea- imate reasons” which truth, i.e., peremptory telling he used a the sonably specific”, and which “relate to the just always past. he did in the like tried”, particular he has not case to has I that once the defendant believe prima the facie rebutted defendant’s racial prima a facie case of established prosecutor’s of racial discrimination the se- prosecutor’s jury in the jury process. selection Batson, supra, requires process, lection Furthermore, prose- the unless and until prosecutor merely generat- more than the further, gone judge has the trial has cutor ing previously reasons which he did not he nothing might evaluate the which give. any I find that of the above prosecutor’s justification why he struck the alone, reasons, standing are too weak and necessary I re- juror. find that is a support finding by insufficient to a the trial quirement judge in order for the trial prosecutor a the did not exercise determination that the make reasoned race; espe- peremptory strike explana- prosecutor’s facially innocuous cially light the fact that defendant contrived, appar- are not even when tions just prima has facie case of established unknowingly, admitting ently done to avoid prosecutor’s racial discrimination an act of racial discrimination racial However, jury process. selection a weak bias. reason offered above, I Although I am favor of the exercise of a strike on a mem- acknowledge in this compelled also am may same race ber as defendant counsel did not cause that because defense It is if imperative, be sufficient. prosecutor, impeach the cross-examine or uses one of his impeach he not seek to and because did strikes on a member of same race evidence, through such as other defendant, couple objec- he should his making presenting to the tively reason ex- stated with reasonable venireper- comparison analysis the white i.e., reason, go planation for his must not struck those minor- sons who were further and for his struck, venirepersons ity who were demonstrates, reason least had to evidence, only thing base preponderance of he has not to believe decision on whether or his overcome the defendant’s facie case. Batson, less, fear, own require To will cause testimony any meaning by testimony. The an act to be without unrebutted, unimpeached, uncontro- Court. As Justice Marshall stands verted, etc. The unimpugned, pointedly correctly undisputed, so stated attempted attorneys opinion appellant’s filed never concurring that he evidence, independently explana- either supra: easily generated present “If such through discharge prosecutor’s or cross-exami- tions are sufficient to might prosecutor, war- obligation justify on nation of the cutor’s finding contrary of fact grounds, protection rant a rational trier non-racial then *18 to what the trial found. There is
nothing might in this record that reflect or
indicate that the trial considered him- accept prosecutor’s expla-
self bound to meagre
nation at face value. Given
evidence which the trial had before issue,
him to decide the he had a choice:
He could believe or disbelieve
tor. In this chose instance he to believe supports and the record
express finding explanation
prosecutor gave constituted a race-neutral
reason. compelled
I am to reach the above con-
clusion, reluctantly, simply albeit I do so
because of the state the record that is Thus, although
before us. clear, reasonably specific,
reason is not as
neutral, legitimate as it should or could been, nevertheless,
have I cannot conclude reason as to Littleton transparent
amounted to a or contrived at-
tempt to convert a racial into a
legitimate race-neutral reason for exercis-
ing strike on Littleton. Cf. Brinkley, supra.
State v. Batson, Tompkins,
Under su- adduced,
pra, although the evidence terri-
bly meagre, supports find-
ing prosecutor gave a race-neutral exercising
reason for
on Littleton.
Therefore, record, given this I am com-
pelled majority’s to concur in the decision
to affirm the trial court. Given a better probably
record I compelled would given.
dissent for the reasons parte Bobby
Ex Aralan OWENBY.
No. 69707. Texas, Appeals
Court of Criminal
En Banc.
May