*1 LAGARDE, Before THOMAS and NEWSOME, Larry Appellant, Donnell , OVARD1 JJ. Texas, Appellee. The STATE of THOMAS, Justice.
No. 05-87-00276-CR.
A jury
Larry
convicted
Donnell New-
aggravated
some of
sexual assault and as
Texas,
Appeals
Court of
punishment,
prior
sessed
enhanced
one
Dallas.
conviction,
felony
imprisonment. In
at life
8,May
1989.
unpublished opinion,
an
this Court held
support
that the
evidence was sufficient
Rehearing Denied June
1989.
conviction,
the cause must be
but that
hearing,
light
remanded for a
79, 106
Kentucky,
L.Ed.2d 69
to determine whether
per
it used its
State discriminated when
emptory challenges to excuse black venire-
of the
has
members.2 The record
for review as
been forwarded to this Court
requested.
supple
filed a
Newsome has
brief, contending
mental
that the trial
request
erred when it denied his
to cross-
Ovard, Justice,
State,
1. The Honorable John
No.
succeeded
2. See Newsome v.
05-86-00276-CR
Devany,
Joseph
1988)
A.
(unpublished
the Honorable
a member of
(Tex.App. Dallas, March
—
original panel,
expiration
at the
of his term
90.).
pursuant
to TEX.R.APP.P.
on December
Justice Ovard has re-
viewed the briefs and the record before the
court.
*2
challenges.
peremptory
of its
agree.
State’s use
prosecutor.
We
Con
examine
Batson,
The assistant district who participated in voir dire at the New- submission, joined the ma- original On some trial called to the witness stand. was directing abating appeal and jority in this questioned by He another assistant was a formal Batson1 the trial court to conduct ex- attorney. allegedly district The neutral findings make of fact and to question in planations were thus offered file with of law and to them conclusions tes- and answer format. After the witness supplemen- in a in written form this court tified, posed questions, the trial court two view, my In an abatement transcript. tal asking generally for a reaffirmance of two necessary, was because at that time given peremptory chal- of the reasons findings of factual absence from the record lenges. At the of this direct conclusion “prevent[ed] proper asked to cross- testimony, defense counsel the case to this court presentation” of witness, but the trial court examine the point. the Batson ob- request. Defense counsel denied 81(a). order March abatement Our against cross-ex- jected prohibition to this reads as follows: right of Newsome’s amination as a denial of trial and to effective assistance to a fair ORDER counsel. opinion In accordance with this Court’s ABAT- appeal this court, of March findings of facts
The trial its conduct law, the trial court to ED. We direct of concluded and conclusions determine, under the hearing prima facie a formal had established a Newsome opinion, standards of Batson and this discrimination, that the State but case purposeful racial has been its whether there racially neutral reasons for had offered exercise discrimination the State’s Thus, failed to es- Newsome had strikes. trial at trial. The peremptory strikes in the purposeful discrimination tablish (1986). Kentucky, court should consider all prosecutor. relevant circum- mer The relies on original stances at the trial as well as this Court’s seven to six decision in developed those at hearing. State, Williams v. 767 S.W.2d 876-77 hearing, appellant (Tex.App. Dallas, ref’d) (en At the Larry Donnell rev. — *3 banc) given opportuni- Newsome should be authority as that Newsome was enti ty prima to demonstrate a facie case as tled to cross-examine the at the outlined in If Batson. the trial court hearing by conducted the trial determines that he fails to establish a year ago. court almost a case, prima facie the State is not re- quired explain per- the bases for its Abatement emptory challenges. If the trial court my It is view that once a case has been appellant making finds that succeeds in a properly presented review, to us for it is prima case, facie given State shall be duty our to conduct such a review opportunity expla- to offer a neutral record us. If before the' record reflects nation for its actions. The trial court error, then it is the mandate of rule appellant shall then decide whether has 81(b)(2)3 appellate to reverse “unless the purposeful established discrimination. beyond determines a reasonable prepare It is ordered that the trial court doubt that the error made no contribution findings written of fact and conclusions punishment.” to the conviction or to the If of law and file them with this Court as a determine, doubt, beyond we a reasonable supplemental transcript along with state- us, based on the record before that ment of hearing by facts from the March error made no contribution convic- 31, 1988. punishment, tion or to the we should affirm though nature, purportedly specific Even in 81(b)(2). TEX.R.APP.P. our order does not direct the trial court to Further, 81(a) I read rule us allow to cross-examination, indeed, allow and read appeal judge abate an and direct the trial context, in implicitly can be construed to only to correct its error in cases where two direct the trial court to base decision as exist, (1) things is: that where error purposeful discrimination on the State’s “prevents proper presentation” of the explanation of its strikes. (2) where, appellate case to court and The trial court conducted a Batson action, remedial without reversal would be and, my judgment, thereby complied in required. things I felt both those Because specific given by with the it directive this abatement, existed at the time of our first Findings Court. of fact and conclusions of directing joined majority in the trial filed, law have been and the case has been Because, court to take action.4 in remedial properly presented to us for our review. my judgment, things neither of these now No factual are nec further determinations exists, join in decline to a second abate- essary for our of the case on the review so, sponte, ment. To do sua under the merits of the Batson of error. Even here, my opinion, facts removes the so, following rather than the mandate of rightful court from its role of a fair and 81(b)(2) Appel of the Texas Rules of rule reviewing casts it in the impartial court and proceeding late Procedure and to a harm chooses, “supervisor” of role of an advocate and a analysis, sponte,2 sua my judgment, the trial court. In this is not again appeal to once abate the this time, appellate specifically my order court to the “office” of an court. It presented properly the defense to cross-examine the for view that once a case is allow requested particular points nor the of error. Our March 2. Neither the defense abatement, any relief in the form of nor has opinion clearly partially the merits. addressed Therefore, said, action been filed. mandamus it could be as indeed the said, the first abatement was unneces- has 81(b)(2). Nevertheless, sary. felt an abate- at that time I 81(a). scope ment was within the of rule 81(a) "proper presen- speaks terms of 4. Rule case,” presentation proper of the not tation procedure, criminal is, rule of prevented constitutional to us—that when we are not i.e., (1) by a the new proper by purpose from review the absence of to be served a necessary to our decision— rule, (b) factual record law the extent of the reliance to a on the both sides are entitled review the old stan authorities on enforcement record then before us. dards, (c) the effect on the administra application justice tion of of a retroactive error, If, review, the record reflects after rule, Hardy, 478 of the new Allen v. U.S. 81(b)(2) mandates that conduct a rule we 2878, 2880, analysis. beyond If we determine harm Stumes, error is harm- citing reasonable doubt that the Solem less, 1338, 1341, in rule under the standard set out 79 L.Ed.2d *4 81(b)(2), is entitled to an then State should I conclude that 579 Williams determine, If we do not so affirmance. recognized retroactively applied. As not be to a reversal. appellant then the is entitled Williams, by the dissents in cross-examina and join I decline to in a second abatement nothing add to prosecutor tion of the would require the to thereby unnecessarily inquiry required by Batson. judicial to se- necessarily expend further resources 882, (Enoch, J., Williams, dis at 883 See Newsome,5 presence cure the of once J., dissenting). senting), (Lagarde, at 881 allowing purpose for the limited of again, Further, different facts render Williams prosecutor former cross-examination of the therefore, inapplicable. distinguishable, his as to his state of mind at the time of See infra. strikes, factually solely authority on of a However, assuming arguendo that error distinguishable hand- seven to six decision apply, does preserved is and that Williams year hearing. ed down almost after record, conclude, I the whole that error beyond a doubt. was harmless reasonable The Merits 81(b)(2); Chapman v. Cali- point I of error first address Newsome’s fornia, 386 U.S. by majority. as addressed Newsome (1967); Smith United cf. it serts that the trial court erred when (the States, (D.C.1980) 414 A.2d right him his to cross-examine the denied error trial court committed harmless prosecutor hearing. at the Batson Undis- request to cross- denying defense counsel’s of putedly, the record is devoid of an offer dire). witness on voir examine the State’s proof exception preserving or of for our bill court, not the The trier of fact here testimony review what the excluded would essentially one jury; real issue here is had the court cross-ex have been allowed ques- credibility. The trial court itself Consequently, the error is not amination. testing prosecutor, thereby tioned the State, 750 preserved for review. Brown v. explanations. Defense plausibility of his (Tex.App. — Beaumont propor- argued the mathematical counsel pet.); TEX.R.CRIM.EVID. no see in the minority members 103(a)(2). tions of the “reliability and cred- composition as well as Williams statements; pro- prosecutor’s ibility” of to counsel was allowed cedurally, defense Williams, 876- Retroactively applying at chal- prosecutor on voir dire to take the right had a hold Newsome rea- origin racially of his neutral lenge the concerning his question substance, sons, which, in was tantamount striking minori- racially neutral reasons cross-examination; se- defense counsel Applying the factors ty venire members. ruling objection to his cured a favorable traditionally considered deter- are which re- trial court general questions and the of a new mining application the retroactive (Vernon 1989). right to be Newsome has a a life sentence there- 5. Newsome received fore, hearing. TEX. presumably personally present has been "transferred at (Vernon Department a commitment of Corrections on art. 33.03 CRIM.PROC.ANN. CODE [appellate pending court].” from the a mandate 1989). 42.09, § art. TEX.CODE CRIM.PROC.ANN. quired specific prosecutor; answers of the suggested
and defense counsel to the court pretex- prosecutor's
that the reasons were
tual. Prior to the trial court’s rendition of findings, successfully defense counsel
required to search its files for the State
personal notes. conclude, therefore, as a on the record counsel,
whole, through defense his court, questioning,
voir dire
through questioning, adequately its own plausibility prose- of the former
tested peremptory
cutor’s reasons for its strikes. stated,
Therefore, for all the reasons
would overrule Newsome’s second reversibly
error that the trial court erred
denying request to cross-examine the
prosecutor. The trial court found as a fact occurred. purposeful
that no discrimination the trial court is the exclusive
Inasmuch as credibility of the witnesses
judge of the further, court’s find- because the trial evidentiary sup-
ings of fact have sufficient “great
port in the record and are entitled to
deference,” Batson, at 1724 n. first
I would overrule Newsome’s overruling erred in
that the trial court based on Batson er-
objection
ror.
Consequently, would affirm. Texas, acting By and
The STATE
Through DEPARTMENT the TEXAS HEALTH & MENTAL MENTAL
OF RETARDATION, Appellant, CRAWFORD, Independent
Norma Pruitt Estate of Cleo M.
Executrix of
Fowler, Appellee. 05-88-00645-CV.
No. Texas, Appeals of
Court
Dallas.
8,May 14, 1989.
Rehearing Denied June