*1 24 Ames, in ownership.2 previously pleaded sought connec
Ricardo transferred 450; National with new of action. Amarillo 672 S.W.2d at tion causes Be 38, (Tex. alleges Dilday, Bank v. petition 43 cause the causes 693 S.W.2d amended see 1985, writ); also of App. factually origi actions distinct from the — Amarillo Gray, 723 at 958. nal action contains matters the amend S.W.2d ing party such a time should have known at argues motion Lorenzo also that the require amendment did not the leave when dismissal, of for non-suit and order with court, appellant of the has failed to respect to the cause of action between Ri trial court its discre show abused Lorenzo, prevented cardo and the Bank Valdez v. denying in leave file. tion interpleading Ricardo under the doc Inc., Hospital, Lyman-Roberts 638 S.W.2d res The not judicata. trine of Bank was 111, 1982, (Tex.App. Corpus Christi — party to of the cause action dismissed. n.r.e.); ref’d 63. writ Tex.R.Civ.P. We judicata applica doctrine res not of is appellant’s points of overrule all of error. See identity parties. there ble as is no of is judgment of the trial court af- Independent Oso School District v. West firmed. Inc., Minerals, 300, Paisano 661 S.W.2d 1983, (Tex.App. Corpus Christi writ — n.r.e.).
ref’d argues
Lorenzo also that the trial allowing attorney’s erred in fees
court
the Bank. A disinterested stakeholder who party
has reasonable doubts as to the enti possession, in its
tled to funds and who faith, interpleads good the claimants in is TOWNSEND, Appellant, Donnell fees. United attorney’s entitled recover Co., Thomas Ray States Gravel 576, (Tex.1964); Foreman v. S.W.2d Texas, Appellee. STATE Graham, (Tex.App.— 693 S.W.2d No. 6-86-059-CR. n.r.e.).
Fort Worth writ Al ref’d though this suit was denominated as a con Texas, Appeals Court of Lorenzo, by actually nothing it is version Texarkana. Bank, than interpleader.
more a disin March 1987. CDs, terested stakeholder was con properly fronted with two claimants and
interpleaded the funds. argues
Finally, Lorenzo that the tri granting
al court erred not leave to file Original
“Appellant’s First Amended Peti hearing
tion.” The on the motion for sum
mary judgment was set and heard Janu 2,1986. 30, 1985,
ary Loren On December attempted petition.3
zo to file his amended plead sought
Lorenzo the additional prac negligence, deceptive
causes of trade
tices, process. Damages and abuse of original petition purchased requir- Appellant’s is CDs 3. first amended
2. Since Ricardo new endorsement, filed, ing possession appellant argues his the mere yet, before this marked transfer CDs Lorenzo did not evidence a leave to trial court denied file. ownership as Ricardo’s endorsement was still any not contain order indicat- The record does ing required. This consistent with Ricardo's file, court denied leave to that the trial action, ownership interpleader claims which in the record. there is no for leave to file motion the motion for non-suit. followed
25 BLEIL, Justice. appeals
Donnell Townsend his conviction burglary building. for aof He contends prosecutor’s the use of eight persons strikes to remove all jury panel rights the un- from violated his der the Fourteenth Amendments Sixth and find to the United States Constitution. We rights his no violation of and affirm. 1986, 28, prosecutor April On the defense counsel conducted brief voir dire jury panel. prose- examination of the question only cutor asked one of an individ- ual, person. who was not a black Subse- quently, prosecutor the used of the peremptory challenges ten strike all persons eligible the black for service on the jury. sworn, jury
Before was moved for a mistrial on the basis that peremptorily eli- challenged State all blacks gible jury they for service on the because precluded black and that this a fair Thereafter, trial. testified regarding the State’s exclusion of black persons from this At the conclusion prosecutor’s testimony, the trial court denied the motion for mistrial. appeal,
On
Townsend contends that the
granting
trial court erred
a mistrial
after he had made a
jury
racial discrimination
the State in
selection. Townsend relies on Batson v.
79,
Kentucky, 476 U.S.
1712,
(1986).1
Batson,
L.Ed.2d 69
In
prose-
peremptory challenges
cutor used
to re-
persons
jury
move all four
jury
and an all-white
was
selected
try the black
on
Relying
defendant.
Alabama,
202,
Swain v.
U.S.
S.Ct.
824,
(1965),
Kentucky
eluded. Strauder West counsel. to the defense (10 acted Otto) L.Ed. 664 U.S. right to a Although has no a defendant following gave the rea- persons composed wholly partly or *3 jurors: a striking prospective the sons for race, clause equal protection of his own the attentiveness and eye contact and lack of not exclude guarantees that the state will rela- development of a back-and-forth race from the of the defendant’s members dire; short term of tionship during voir a v. of race. Batson jury solely because no chil- single person with employment; a may A estab- Kentucky, supra. defendant experience; indefi- jury an dren lacked who purposeful dis- prima case of lish a facie form; personal data nite answer on the jury crimination in the selection as from other response not as favorable concerning the solely on evidence based questions in asking unusual jurors; an peremptory chal- prosecutor’s exercise of selections; illegible informa- jury an earlier trial. Batson v. lenges at the defendant’s sheet; a lack of information about tion and supra. Kentucky, panel because she was jury the member eligible jury. the initially expected to for be case, a prima facie To establish a prima made a contends that he Townsend member he is a must show that defendant discrimination showing of racial facie group and that the cognizable racial of a process. The jury in the selection the State chal peremptory exercised
prosecutor has in that Townsend concedes its brief State defend persons of the lenges to remove group. The cognizable racial a member of And, jury panel. the race from the ant’s eight black concedes that all State also raise an facts that defendant must show have been panel on the who would persons prosecutor used that that the inference jury perempto- eligible serve on the were to jury the persons from practice to exclude challenged by the State. Townsend rily the defendant of race. Once because an inference argues facts raise that these showing, prima the burden makes a facie to exclude used the strikes that the State explana give neutral to the State shifts race, of their jury from the because blacks challenging jurors. all black tions for to the then shifted that the burden however, not rise to the need explanations, chal- explanations for to offer neutral State challenge of a for exercise justifying level pan- jury on the persons lenging the black supra. Kentucky, v. cause. Batson el. conducting criminal for A new rule no evidence to presented retroactively applied is to be prosecutions required supported court which or not direct review pending cases strikes were peremptory to all inference that U.S. Kentucky, 479 persons yet final. exclude black used to Griffith prosecu -, 93 L.Ed.2d race. The of their panel because decision to serve on the directly applied person select a black tor did this Thus, immediately preceding to the case applies jury Batson in the case Batson. that negate claims one, tends to and this us. before peremptory strikes prosecutor’s the use testified about Keeton racially motivated. See case were challenges remove all peremptory (Tex.Crim.App. State, 724 S.W.2d de- from the blacks 1987). was the sole criterion nied that race super in experienced seated a judges, that she had Trial and testified strikes if circum dire, vising case immediate- can decide on the criminal voir juror use of concerning prosecutor’s many that one. She said stances ly preceding this prima fa- challenges creates young peremptory of the blacks ju against black discrimination young per- cie case of tended to strike and that she conclusively show Townsend fails longer ties rors. have in favor of those who sons by the State discrimination purposeful further testified community. She with the during the challenges appear- its use of responses, oral she considered examples selection. The trial court could have There are two set forth in Bat appellant’s overruled -, motion for mistrial Kentucky, 474 son v. U.S. at did appellant because it not find S.Ct. at 90 L.Ed.2d at of relevant showing made facie of discrimina- give circumstances which could rise to an Or, tion under Batson. the court could (1) pattern inference of discrimination: have overruled the motion it because found jurors against strikes included explanations State’s neutral rebut- particular venire, (2) prosecutorial appellant’s prima ted pur- questions during and statements the voir poseful instance, discrimination. In either dire examination. we find do not that the trial court’s action *4 Looking challenges to the first was erroneous. case, present prosecutor we find that the We affirm the judgment. trial court’s struck of all black members panel strikes, by using eight which consti- Justice, GRANT, Concurring, eighty percent of tuted the allotted strikes. I with the concur results reached voir dire behalf of the State in the majority, agree I but do not that the present brief, lasting case was from three ruling appellant’s court’s on the motion for to four prosecutor minutes. The asked a mistrial could ap- have been based on the questions general panel. number of to the pellant’s to prima failure make a facie only prospective juror responding to showing purposeful of discrimination. question Rose, any Shirley was was who prima case, To establish a facie the de- beyond range strike and who stated that fendant first must show that he is a mem- she a specific police knew officer whom the cognizable of a group, ber racial and that prosecutor had as stated she would call a prosecutor has peremptory exercised witness. Rose her indicated that knowl challenges to remove venire of members edge police of prevent officer not would Second, the defendant’s race. the defend- being her from fair impartial. and fact, ant is rely entitled to on the as to prosecutor’s questions and dur statements which there can dispute, be no peremp- ing the voir dire nothing examination offer tory challenges constitute a selection support or an refute inference of dis practice permits “those to discriminate criminatory purpose. A voir dire examina who are of a mind Third, to discriminate.” likely tion is not to contain comments or the defendant must show that these facts statements a that would indicate discrimi any and other relevant circumstances raise natory purpose striking specific mem an inference prosecutor used that However, panel. bers of the questioning practice to exclude veniremen from the of jurors may individual reveal basis for jury on of account their race. Batson v. peremptory challenges which are unrelated Kentucky, 476 U.S. race, as was demonstrated in Keeton v. L.Ed.2d 69 State, 724 (Tex.Crim.App.1987), S.W.2d 58 undisputed It is that Townsend is a black State, Rijo (Tex.App. S.W.2d562 man and thus a cognizable member of a pet.). —Amarillo no group racial and that the per- State made State, In the of emptory Rodgers case challenges eight to all per- S.W.2d (Tex.App. sons who could have [1st been Dist.] — Houston (not pet.) yet reported), reached for the defendant The sec- was black assumed, prosecutor ond and the element under Batson struck all six only remaining therefore the black members of the re- venire and four element quired to prima ques constitute a white members. The prosecutor facie case is showing only tioned facts and circumstances three of the six black members. which raise an prosecu- inference that court found that these factors estab peremptory tor used challenges prima showing to exclude lished a purposeful facie members of the panel on account of If discrimination. six chal their race. lenges of members of the defendant’s race only having interrogated been
with three prosecutor prima facie establishes fortiori,
case, per- out of ten then a challenges
emptory remove all
panel members with no individual interro-
gation by the would constitute Accordingly,
prima facie case. the trial overruling
court’s action in Townsend’s mo-
tion for mistrial could not have been based
upon present his failure purposeful discrimination. peremp-
A is entitled to make subjectively long
tory challenges as as such
challenges on race. I con- are based
clude that the trial court case testimony sufficient
before it rebuttal *5 grounds upon
racially neutral which to its denial of Townsend’s motion for
base
mistrial. SHIREY,
Harvey Appellant, K. SHIREY, Appellee.
Susan Childress
No. 13-86-416-CV. Texas, Appeals
Corpus Christi.
March 1987. Christi, Keeling, appel- Corpus
J.R. lant. pro Shirey, se. Childress
Susan DORSEY, UTTER and Before SEERDEN, JJ.
OPINION DORSEY, Justice. court’s from a trial appeal is an
This after a default grant new trial refusal to The decree action. judgment in divorce appointed conservators of divorce children, support, set child parties’ two