*1 one, holding that John- upon least the first chance of ultimate success
son’s realistic AND POLICY The ADVERTISING I, 6 is his claim under article section RENT the AVIS OF COMMITTEE slight. 766 S.W.2d 395. A et al. CAR SYSTEM challenge validity of did not Johnson v. appeals. section 13.001 court of SYSTEM, A INC. RENT CAR AVIS for the first time this court contends Avis, Inc. I, 13.001violates article section section Constitution, “open Texas 13 of the No. C-9243. provision. This contention is not courts” of Texas. Supreme Court Tex.R.App.P. properly before us. See Wells, 131(e); Insurance Co. v. Aetna Life 17, 1990. Oct. (Tex.1978)(withdraw- 566 S.W.2d error). granting order writ of John- denied. ' application for writ of error is son’s parties pursuant Joint motion of the not, however, ap- imply Our action does 11, 1990 filed herein on October settlement an action based proval of a dismissal of opinions judgments granted. 13.001(b)(1) solely upon section or of vacated, and the appeals the court opinion. reasoning appeals’ of the court of trial court for are remanded to the causes with the judgment accordance
entry of parties. Rule agreement of settlement 59(a), Tex.R.App.P. AND
The ADVERTISING POLICY RENT COMMITTEE OF AVIS et al. A CAR SYSTEM v. SYSTEM, WHITSEY, Appellant, A Larry AVIS RENT CAR INC. Williams Avis, Inc. No. C-9242. Texas, Appellee. The STATE Texas. Court of 1121-87. No. 17, 1990. Oct. Texas, Appeals of of Criminal
En Banc. parties pursuant Joint motion May 1989. 11, 1990 filed herein on October settlement Rehearing Nov. 1989. Granted judgments granted. opinions Rehearing Sept. On vacated, and the appeals are the court of to the trial court
causes are remanded judgment accordance with entry of Rule agreement parties. settlement 59(a), Tex.R.App.P. *2 30.02(a)(1). Code, The trial
Penal § years imprison- punishment at 99 assessed Department ment Texas Correc- Appeals tions. The Fourteenth Court *3 appellant’s appeal and ordered the abated hearing court on the trial to conduct by appellant ap- on Batson1 issue raised transcript peal. Upon receipt of the Appeals ad- hearing, Batson the Court appellant’s points dressed of error and af- unpublished firmed his in an conviction State, No. C14-85- opinion. Whitsey v. 530-CR, 15052, 30, July delivered WL 1987 Appellant petitioned 1987. then originally de- discretionary for review. We granted appellant’s petition nied but rehearing motion for on the Batson issue. judgments We will the reverse Appeals. court the Court jury panel After the dire of the was voir sworn, jury the was completed, before jury appellant’s objected on counsel had ground used that the challenges to exclude jury appel- and that denied blacks from the fair cross-section right lant “his to a community’’. Appellant’s counsel stated there were seven blacks record that venirepersons, forty first was struck for first black veniremember cause, remaining six blacks on the peremptorily by the venire were struck State, and used six of its ten that the State peremptory challenges to strike blacks Schneider, jury panel. Counsel then also from Stanley Houston, appel- G. being objected appellant was denied lant. process. his due The trial court overruled Holmes, Jr., Atty. John B. Dist. appellant’s objections and swore in the Stabe, Asst. Kathlyn Giannaula and Bob jury. Huttash, Houston, Attys., Dist. Robert appellant’s on After conviction March Austin, Atty., State’s State. trial he a motion for new and an filed amended for new trial which he motion jury alleged not tried of his peers strikes were PETITION OPINION ON APPELLANT’S claim), (a racially Batson motivated REVIEW FOR DISCRETIONARY chal- used MILLER, Judge. lenges systematically exclude blacks jury panels (a on Appellant was convicted from claim based Swain Alabama, 202, 85 S.Ct. 13 burglary of a habitation with v. offense of hearing (1965)).2 held L.Ed.2d A sexual assault. V.T.C.A. intent to commit Kentucky, not been decided at the U.S. S.Ct. 2. The Batson case had 1. (1986). hearing on the amended motion for time L.Ed.2d 69 appellant’s against amended motion for new tri- the black venirepersons. Nor was May 30, onal At hearing, appel- Appeals the Court of appel- satisfied that lant’s attempted counsel question present lant could not rebutting evidence striking about his reasons for any offered panel. the blacks appellant’s jury Thus, State. Appeals Court of ordered attorney hearing object- State’s at the hearing conduct Batson ed to inquiry as to the appeal abeyance held pending reasoning process “individual in this case” filing of the statement of facts from Swain, supra, basis of and the trial hearing and the of fact and objection thereby court sustained pre- judge. conclusions of law of venting appellant from determining why *4 prosecutor venireper- struck black first sup We note that record however, judge, sons his trial. The trial ports Appeals’ the Court of decision that appellant’s allowed question counsel to appellant established in the motion for new prosecutor his use of about hearing prima a showing pur trial facie of challenges in other cases and Coun- Harris poseful prosecutor discrimination ty prosecutors’ use of chal- his of peremptory challenges.4 exercise lenges general past. At the con- appellant reflects record is a black hearing, appellant's clusion of the counsel man and that no served on appel blacks argued to the present court state Also, jury. per lant’s seven black of the law him question allowed indi- panel, jury sons that were on the one was prosecutor vidual peremp- as his use of remaining struck for cause and the six tory particular challenges in a de- peremptorily prosecu were struck termine whether a defendant a was denied hearing tor. At on the motion for new fair trial. any argument, The State waived trial, ques testified that he and the trial denied the amended only tioned one of the six black members of Appellant’s motion for new trial. counsel panel, cause, jury who struck for was gave notice of appeal. general but he had conducted a voir dire of Appeals The Fourteenth Court of many questions did not ask 1987, on appeal abated March of An venirepersons. individual inference hearing ordered to conduct a discriminatory purpose prosecu of provide “to opportu with an peremptory challenges sup tor’s use of nity appellant’s prima to rebut facie show ported totality these facts. ing i.e., purposeful discrimination”, order, hearing.3 Batson In its the Court hearing After the on June Appeals appellant concluded established following entered the showing prima purposeful facie discrimi findings of fact and conclusions law: hearing. nation in the motion new trial Complainant black, “1. The was but the concluded, however, Appeals The Court of only State’s two identification witnesses was not afforded the police were white officers. opportunity appellant’s prima facie rebut question by 2. racially black ei- case and offer neutral reasons for challenges (sic) the exercise of the ther related State Defense to that Appellant’s applicable new trial. amended new motion for the Batson decision is to it. See trial, therefore, specifically did not cite the Bat- Kentucky, S.Ct. Griffith case, appellant’s son but the record indicates (1987). 93 L.Ed.2d holding, anticipated such a counsel as the Bat- granted during son case was certiorari these 4. Although Appeals right the Court of made the hearings, objections compli- formed regarding appellant’s prima decision facie show- Appellant’s ance therewith. did not motion also discrimination, purposeful proper Swain, phrased language supra, cite procedure is for the trial court to decide wheth- from that case. showing. appellant er made such a DeBlanc v. (Tex.Cr.App.1987). S.W.2d 640 appellant’s pending Since direct 3. case on decided, review at the time the Batson case was peremp- exercised police offi- 13. That Bob Stabe juror’s friendship with several challenge venireperson number tory cers. Fuller, a Anita twenty-four, Maurine any did not ask 3. Prosecutor Stabe female, occupation her because of black jurors, questions of of the six black in Mr. Stabe’s a teacher and that individually any of question nor did tend to be liberal opinion teachers panel. jurors other on the forgiving. in- did not have an 4. Prosecutor Stabe peremp- exercised 14. That Bob Stabe dependent recollection as to basis number venireperson tory challenge on hearing of a the time of the his strikes at Mireles, female L. a white thirty, Carol May 1985. New Trial in Motion of teacher. occupation as a of her eight spent six to 5. Prosecutor Stabe peremp- exercised That Bob Stabe memory refreshing his hours challenge venireperson number tory Motion for New actual voir dire and the Johnson, Kaye a black thirty-two, Glenda hearing develop Trial female, religious prefer- her because of strikes. for his ence, In Mr. namely, Pentacostal. ethnic, reli- used 6. Prosecutor Stabe Pentacostal opinion those of the Stabe’s stereotypes as a gious job related *5 religion to to their faith tend to look explanation.’ ‘neutral basis for his feel that and sometimes make decisions Stabe, during jury se- 7. Prosecutor therefore, tongues, becom- speak in they lection, black identified each of six religious group. fringe a by writ- jurors on his information sheet peremp- a exercised 16. That Bob Stabe (sic) ‘B’ their ing the letters above venireperson number tory challenge on names. male, Hunt, thirty-five, Lee a black Willie Attorney District Bob 8. The Assistant religious preference, of his because of Texas represented the State Stabe God, of namely, and because Church [appellant]. the trial of jury in- question on his an unanswered exercised all ten of 9. That Bob Stabe Specifically, Mr. Stabe card. formation challenges afforded him peremptory his he has never heard testified that 35.15(b) the Texas Code of by Article religion is unaware of God Church Procedure. Criminal may influence a deci- those beliefs how by Mr. Hunt. sion peremp- exercised a 10. That Bob Stabe number challenge venireperson on tory peremp- a That Bob Stabe exercised 17. male, Wauson, a be- Wesley white venireperson John number challenge tory attorney an and stated cause he was Thompson, a thirty-six, Virgil James proof opinion the State’s burden white-male, occupation in his of his because a difficult burden. time on the hair-stylist, length his a that, months, in Mr. job of three peremp- a That Bob Stabe exercised 11. mind, appeared to be homo- he Stabe’s venireperson number challenge on tory sexual. Mitchell, seven, Wright a black Gloria
female, engaged peremp- in a dia- a she exercised because 18. That Bob Stabe attorney, venireperson nodded number challenge the defense logue tory with Rosen, attor- a white thirty-eight, of the defense H. the statements Edward with mind, and, appeared male, being of the Jewish ney, in Bob Stabe’s because of Baltimore, credibility Maryland, both problem faith and from to have nature. general. indicating liberal police officers traits peremp- exercised That Bob Stabe peremp- 19. exercised 12. That Bob Stabe venireperson number challenge on tory venireperson number challenge on tory Ardoin, a Reginald Bernard thirty-nine, Ramsey, a fe- Sherry Lynn black eight, male, age of of his because twenty-four black male, age of of her because appeared to be he years and em- her husband was years and because spell his he could not in that illiterate assistant. as a nurses’ ployed religious preference Baptist nor his respective interests. For us to in- place of birth. terfere with process, other than 20. That the crime when it [appellant] specific constitutes discrimina- accused of committing (sic) tion as was not ennunciated Supreme interra- cial. Court, would be sys- destructive of our tem peremptory challenges in criminal
CONCLUSIONS OF LAW cases. If this area of constitutional ex- Based on the amination foregoing peremptory as to challenges the Court has arrived at be further following broadened to include con- occu- law; pational, clusions of political, areas, religious Court must State,
1. make that ex- That the through his Assist- pansion. We ant do not construe District Attorney, Stabe, Bob stated prior decisions to have had neutral made such an reasons for the exercise Further, of six extension. we believe that strikes on the six black unlimited venirepersons, broadening of such inquiry would be fatal to chal- 2. appellant That the did not rebut lenge system long (sic) so entreached explanations. State’s jurisprudence. our appellant That the prove by did not preponderance agree We do not with the Appeals’ Court of evidence that Bob opinion. engaged Stabe purposeful discrimina- tion in the petit selection of the initially We note that the Ap Court of
through the use of
chal- peals applied the wrong standard for re
lenges.”
view of the trial
findings.
In Kee
The trial
ton v.
(Tex.Cr.App.
then
S.W.2d 861
*6
appel-
concluded that
1988)
(Opinion Following Abatement)
lant
equal
was not denied
protection
the
(Hereinafter
by
II),
the
cited
prosecutor’s
law the
as Keeton
use
wherein
per-
of his
thoroughly
we
emptory challenges.
discussed the Batson deci
progeny,
sion and
specifically
its
we
reject
Upon receipt of
transcript
and the
ed
“clearly
erroneous” standard. Kee-
statement of facts from the Batson hear-
II,
Instead,
ton
at 870.
we considered the
ing, the
Appeals
Court of
appel-
addressed
light
evidence in the
most favorable to the
error;
lant’s
points
however,
three
only
judge’s
trial
rulings and determined wheth
disposition
point
of the first
of error
er
supported
the record
findings
of the
concerns us here. The
appeals
court of
judge.
trial
If there is sufficient evidence
concluded
findings
that
of the trial
support
judge’s finding
of no
court, that the
peremptory
reasons for the
purposeful discrimination,
will
challenges
racially
were
neutral and that
not be
appeal.
disturbed
Keeton II
did
purposefully
dis-
the finding
trial
that the pros
against
criminate
appellant, were not clear-
ecutor’s
solely
strikes were not based
and,
ly
therefore,
erroneous
ap-
overruled
juror’s
amply supported
race was
by
pellant’s
point
first
of error. Whitsey, su
the record at trial and at the Batson hear
pra, slip opinion
p.
2. The Court of
ing. See Keeton II at 870. The Court of
Appeals stated:
Appeals erred in the
by apply
instant case
Appellant
ethnic,
that
religious
contends
ing clearly
erroneous standard in overrul
job-related stereotyping
cannot be a
ing appellant’s point of error.
explanation.
perceive
neutral
We do not
it
judicially
Furthermore,
to be our function to
weigh
Appeals
the Court of
peremptory
reasons for
strikes other
perception
is incorrect in its
of its role as
than
that
constitutionally pre-
those
are
presented
court when
with a
very
cluded. The
nature
peremptory
Batson issue. The
Appeals ap
Court of
strikes is to afford both
the leeway
sides
parently
appropriate
finds that it is
to in
prospective jurors
to eliminate
from the
terfere with the peremptory challenge sys
they
perceive
that
as adverse to tem only when the exercise of a strike is
pre-
reviewing constitutionally
precluded”,
that
limited to
“constitutionally
oth-
question
strikes,
Appeals
erwise we should not
the rationale
as
cluded
the Court
prospective juror.
for the strike of a
From concludes,
required to review
we are
language
Appeals' opin-
of the Court of
ap-
for each strike which an
the rationale
ion,
appears
would
Court
facially
racially-
is
pellant prima
establishes
review the exercise of a
chal-
seemingly
spite
motivated
lenge
there is a blatant constitution-
where
prosecutor.
rationale offered
violation,
as
al
such
where a
cause,
reviewing
in this
the record
After
juror
“I
prospective
states
struck that
be-
findings and conclu-
we do not find that the
Limiting
our review to
cause
is black.”
holding
sions of the trial
challenge ignores
the exercise of such
supported by the
Appeals
are
Court of
challenge
reality
sys-
expla-
Although
record.
permits
tem
discrimination
those “who
the exercise of his
nations for
of a
As
are
mind
discriminate.”
Jus-
neutral on their
challenges
racially
are
concurring
opin-
tice Marshall stated
face,
appellant
Batson,
presented by
2.
there
questioning
lack of
wording
don’t recall the
of the second
juror
challenged
aor
lack of
answer but
mean-
the tone
the answers as
questions;
ingful
I
best
recall were such that it would be
thing
the last
in her mind that she would
Disparate
persons
3.
with
treatment —
believing
police
ever think of
officer
same
similar characteristics as the
nonpolice
my
than
officer witness.
challenged
struck;
juror
were
jury
police
selection had two Houston
Disparate
4.
examination of members
officer
that were
witnesses
critical to the
venire, i.e.,
questioning a chal-
case and it bothered me in that Ms.
lenged juror
so
to evoke a certain
reason,
may
Mitchell
have
some
be-
response
asking
ques-
without
the same
experience
cause
her
with Houston
members;
tion
panel
of other
vice,
police
at
officers
have reasons
group
based
bias
police
not to believe
officers based on the
group
where the
trait is not shown to
general tone
questions
and answers to
apply
challenged juror
specifically.
[appellant’s counsel.]
See
citing
Keeton II
Slappy v.
prosecutor
the only
admitted
(Fla.Dist.Ct.App.1987),
The or conversation be- because their religious preference, prosecutor [appellant’s tween made and Mrs. counsel] juror no notes or circles on their or informa- any Mitchell dealt with friends rela- regarding tion religion, sheets their but he tives that Mitchell had in law en- Ms. “B”, did a denoting indicate their race with forcement, Ms. Mitchell and indicated they were black. in the that she had friends Houston Po- Department vice lice division also prosecutor The also stated that he struck Safety. [Appel- Department of Public prospective jurors occupa- because of their lant’s asked on two different counsel] prosecutor peremptorily tion. The chal- occasions whether would influence women, black, lenged a hispanic two a believe, whether, officer, I police her a teachers, or they prose- because were and the officer, police a that was a witness opinion cutor stated that teachers my recollection of what bothered me forgiving. pros- tend to liberal and The Ms. Mitchell is were occupation about her answers ecutor noted each woman were, “Oh, just circling no no.” And I on juror but information sheets probably to their wives questioned by appellant’s general conveyed counsel it. When teacher, my versa. was why he struck the black more so than vice That as off, prosecutor prospec- feeling. “First stated [this juror] was female and I struck tive a black Okay.... COURT: THE primarily she was a teacher.” because [her] prospective on this *9 appli- equally reasons were based on sons in typically past and been a male as who were to white veniremembers cable my opinion was profession and
female
challenged
prosecutor. The
by the
not
may
a social
she
have too much of
that
venire
from the
struck two blacks
that State
type philosophy
attitude
worker’s
age
appellant
they
in
to
her,
were close
still because
might
conveyed
think—I
any of the six white
did not strike
ideas
kind of believe that husbands’
however,
voir dire
object,
the exercise of
prosecutor
able restrictions on
not
6. The
did
thereof,
State,
time,
dire.
case
of
Court
just
the minor-
placing jurors,
placing
knowledges
appropriate
be the
stan-
you
sitting
dard,
ity jurors
when
it to
but
yet
apply
fails
the facts of
trying
people
panel
front of
with 50
the
Inexplicably,
majority’s
the case.
is, frankly,
juror
out
No. 26
figure
who
analysis
sup-
much of the evidence
omits
sheet,
that
looking at
I know
Juror
my
porting the trial court’s determination of
the black fe-
26 is
down from
No.
two
purposeful
of
discrimination.
lack
Accord-
have been
male that at the time would
ingly,
respectfully dissent.
preme
S.Ct.
dard
Batson
previously
Alabama,
It’d be
85 S.Ct.
sitting up
dire when I'm
at counsel
voir
(1965),
L.Ed.2d
which
criminal
up
my
when I look
and refresh
table
prima facie
defendant could establish a
memory
people
have
of faces
what
of the
case
racial discrimination violative
voir
during
done
the
dire.
Amendment,
upon the
Fourteenth
based
challenges
prosecution’s
use of
logically supports the
Further evidence
defendant’s race
to strike members
the
“B” nota-
prosecutor’s explanation that the
Batson,
the
su
venire. Under
peremp-
marked to assist
tions were not
pra,
prima
once
makes a
the defendant
solely
Even the
tory strikes based
on race.
showing, the burden
to the
facie
shifts
opinion recognizes
prose-
majority
to advance race neutral
State
made other notations on several
cutor
challenges. Id.,
for the
476 U.S. at
juror information forms which were
the
at
jotted on the forms of white venire-
members. II. explanation, Without majority fails to Because majority to set fails out the prosecutor’s address the reasons for mark- prosecutor’s striking reasons for each ing “B” black veniremembers infor- veniremembers, individually black I will forms, opting mation repeatedly instead to address each strike to demonstrate the evi- cite this as evidence which controverts the supporting dence finding the court’s noof findings.
trial court's
I find this informa- purposeful discrimination. Veniremember
tion insufficient to overcome the deference
Mitchell,
No. Gloria
was the first black
required
give
We are
to
the trial court’s panel
peremptorily
member
struck. The
findings. Batson,
n.
U.S. at 98
106 prosecutor
scribbled
her
informa-
21;
S.Ct. at 1724 n.
favorable to the factfinder’s determination McCORMICK, P.J., WHITE, J., and and reverse if no trier rational of fact join opinion. allega could have failed to find his factual preponderance
tion true of the evid Tompkins, ence.2 774 202. OPINION ON STATE’S MOTION brief, post however, its submission FOR REHEARING suggests State three other standards MILLER, Judge. addressing review which utilized claim, Batson v. submission, (1) Jackson original On to wit: addressing ap- claim, Virginia, pellant’s we Batson1 held U.S. S.Ct. (1979),
judge’s findings
prosecu-
concerning
reviewing
L.Ed.2d
standard for
explanations
sufficiency
evidence,
(2)
tor’s
for his
of the
chal-
abuse of
lenges
record,
not supported by
reviewing
were
discretion standard utilized
majority
prays
things
2.
claims
"the
2.
state struck two
The State
for one of
its
two
viz,
they
blacks from the venire because
were close
grant
motion:
this Court
the State's motion
age
appellant
but did not strike
of the
conviction,
rehearing
and affirm the
venirepersons
six white
age
close
who were also
grant the State’s
and
motion
remand this cause
appellant.”
doing,
At 715.
In so
to the trial court with instructions to make
majority ignores
prosecutor’s
rea-
additional
specific findings
regarding
and conclusions
two,
striking
young
sons
black venire-
credibility
racially
detailed,
prosecu-
previously
members. As
use
of his
chal-
tor was concerned with veniremember Ram-
lenges.
generally
The State
asks this
sey’s age
profession.
her
husband’s
Venire-
appellate
re-examine
role of
court when
years younger
member Ardoin was a
than
few
reviewing a Batson claim and to consider the
veniremember,
any other
to his
in addition
ina-
impact
original opinion
perempto-
our
bility
spell.
It should also be noted that the
challenge
ry
system
appellate
sys-
ages
circled the
on the information
tem, specifically this Court’s docket. The State
youthful
venire-
forms
members,
some
white
improper
asserts we have created an
standard
young
but did not do so on other
Yet,
rehearing
of review.
in its motion for
white veniremembers. There is
in the
evidence
Court,
during
argument
oral
before this
youth
record to demonstrate that
of both
position
State
took
also
the untenable
played
black and white veniremembers
some
trial court’s
of fact should not be sub-
part
use of
ject
strikes.
review.
Kentucky,
Batson
v.
106 S.Ct.
(1986).
723
rectly
relying predominantly on
concludes trial court
dard of review
clearly
amply supported
explication of
standard
erroneous because
addressing
record);
Richmond,
City
Anderson v. Bessemer
City
Virgi
reversing
ap-
the court
States,
the issue.
nia v.
422 U.S.
95 S.Ct.
United
holding,
conclud-
(1975)
peals’
(dissenting
12. Without opinion. enumerated in the erroneous, clearly findings the of fact were not This review of federal case explanations, law in tral appellant’s and rebuttal terpreting impeaching and and applying clearly errone evidence.
ous standard is not only instructive to this briefly To recapitulate pertinent upholds Court but also and reinforces the facts: there were seven in blacks seated conclusion of the in majority this cause on forty venirepersons first panel; original submission. This case law review venireperson one black struck for “supported by teaches the record” cause and the remaining six venire- black adopted Keeton, persons standard peremptorily challenged by were Thus, actually an State. State six analytical tool used of its used in ten peremptory challenges determining to remove all whether trial judge’s find remaining panel, blacks ings of fact clearly erroneous or should appellant, male, black was tried great be accorded deference. While the At the jury. hearing, all-white different, nomenclature is analysis prosecutor presented explana- his neutral essentially the same under each of the striking tions for venireper- six black three “standards clearly erro review”— predominantly sons. His reasons included neous, great deference, supported by the age, religious preference, occupation.15 and, clearly erroneous record— Appellant’s attorney presented then extrin- great deference engage standards sic in rebuttal evidence Indeed, the same level of review.14 for his Fifth clearly Circuit has used the erroneous sheets, strikes. On his information great deference interchange standards indicated the race each ably reviewing when the district court’s venireperson by black marking the letter findings. e.g. Terrazas-Carrasco, See 861 “B” his or her next to name. After the 94; Lance, 1181; F.2d at F.2d explained peremptorily Williams, 515; Forbes, F.2d at 816 struck venirepersons two because of black F.2d at 1010. age appellant, appel- closeness attorney lant’s noted there six were white foregoing analysis, Under the hereby we venirepersons with this same characteristic adopt “clearly erroneous” standard as peremptorily challenged by who were not the standard of review for courts Additionally, the State. ten venire- in addressing Batson issues. Our decision persons had friends or who relatives con- Keeton, 749 S.W.2d at is so mod- agencies, only nected enforcement with law ified. peremptorily challenged two were merits, Returning original sub- venirepersons State and these were both mission we the trial judge’s determined Moreover, black.16 testified findings supported by record; were not venirepersons black he struck two who he ergo, clearly were erroneous. though believed were “liberal” he did even arriving conclusion, at this analyzed we any questions prospective not ask of either evidence case same man- *19 juror during dire. prospective voir One Circuit, ner as the Fifth reviewing viz: juror’s was a assistant. husband nurse’s entirety record in its by considering the venireper- also struck black process voir including dire of religious prefer- racial consti-. sons on the basis venire, ence, although empha- tution of the he did prosecutor’s neu- not mark "supported by finding 14.We term 15. In his record” a stan- sixth prosecutor of ethnic, religious, stated the used only adopted dard review since we it as our job-related stereotypes his neu- as the bases for appel- in Keeton. standard Within the federal explanations. tral system separate there late is not a standard of record”, "supported by as review known but 16. The stated of these he struck one clearly great rather erroneous and def- prospective jurors religious pref- because of her which erence standards we have noted are actu- erence, struck the woman and he other black standard, ally utilizing analy- same both an demeanor and the because of her intonation support sis which determines whether there is question her voice she answered a when judge's findings. for the in the record appellant's attorney during voir dire.
727
State,
juror
concurring
opinion
size on the
information sheets
Keeton v.
(Tex.Cr.App.1988),
religion
he
at 874-875.
venirepersons
black
as
S.W.2d 861
per-
did with the white venireman
he
who
by
raised
The second matter
challenged
emptorily
because he was Jew-
the dissent deals
the combination
use,
comparison analysis
ish. This
of the
blacks,
given
striking
reasons
several
thereof,
or lack
of the
chal-
failure to consider the combination
and the
lenges against
prospec-
the black and white
comparative analysis
original sub
in the
jurors
disparate
indicates
tive
the State’s
24, May
For instance:
mission.
Number
treatment17 of them and that
the State
Fuller,
was a
was struck because she
rine
group
group
relied on
biases where the
not fill in
on her
teacher and did
one blank
apply
specifically
trait was
shown to
minority,
But
information form.
another
jurors.
challenged
woman, was struck be
Mexican-American
a teacher.
Sher
fully
more
dis-
cause she was
Number
While
evidence was
struck
her hus
original
ry Ramsey,
in our
the dissent18
was
because
opinion,
cussed
nurse and
close to
factual
that were not.
band
she was
raises two
matters
venireman,
expla-
age. But a
appellant’s
The first concerns
white
part
juror
Virgil Thompson,
he
informa-
was struck in
be
nation that
marked the
occupation (hairstylist).
of the
of the
of his
tion sheets
black members
cause
striking
Again,
analysis
them
more detailed
of the facts
panel
purpose
not for
(see
race,
original opinion
also
of their
rather as “land-
is contained in our
but
Berchelmann).
by
dissenting opinion
Judge
in the sea of
so
marks”
faces on
readily
in Certainly
non-blacks
the cumulative force of several
could
locate
reasons,
individually racially dispar
by
juror
reference
list. The
each
the sea
to his
ate,
prima
to overcome a
facie
trial court made no
of fact concern-
suffice
marks,
single one
“B”
discrimination where a
the reason
the six
case of
prosecutor’s description,
simply
This case is
not one of
analysis
of the
would not.
dissent,
quoted
seating
situations.
order to sustain
those
findings we
find that as
Ms.
must
panel with
Fuller on row 3 as number
trial court’s
minority venireman
his deci
puts
by
side
side in row to
struck
“landmarks”
each
erroneous,
2,1
clearly
the use
4 and
none in row
row 3 on row
sion was
theoretically
racially
is
purely
motivated strike
none on row 5. While it is
of one
system
prohibited
Henry
that a “landmark”
Batson.
possible
Here,
(Tex.Cr.App.1987).
only goal,
“system” is
questioning
a total lack of
disjointed, unwieldy, and inefficient
the face of
such a
alleged
to determine if
hardly plau-
one that this
mi
pertain to the individual
again
group
the words
biases
We
reminded
sible.
Batson,
implausibly explained
ob
quoted
nority jurors, the
Marshall in
of Justice
jective
of race
Judge Teague’s
evidence
notation
original opinion
our
Keeton,
quoting
a mistake
been commit-
Ex
conviction that
has
729 exercising dence, resolving peremptory comes to strike. then the answer to State, prosecutor simply question, v. changed has occurred Keeton garb jury (Tex.Cr.App.1988),Tomp in order to eliminate 749 from the S.W.2d 861 (Tex.Cr.App. members of the same as the kins v. 774 195 race 1987), cause, usually accused. even this is an easy to make. one the trial For appellate purposes, review are such following as the Is the to seal off perhaps race-neutral solution going prosecu- satisfy jury panel, prevent to be sufficient Batson? order to so, tor, might If as well file the defense judge, we Batson attor- go ney on seeing archives of this Court and to better from the race of members things: (1) thought jury panel? compare Coy prosecutor that the See and v. 2798, defendant; (2) Iowa, juror at the 487 108 S.Ct. 101 had smiled U.S. (1988). way, prosecutor thought juror that the L.Ed.2d 857 At least that appeared going very appellate through to be to the not be yet inattentive would (3) attempting attorney; pocus the defendant’s a bunch of hocus or attentive to prosecutor thought logical make the juror that the did use non reasons to deter- him; (4) given has eye-contact not the mination whether the maintain prosecutor thought legitimate why that there no de- race-neutral was velopment relationship he exercised strike on mi- of back-and-forth or during nority panel. the voir At least that communication dire exami- member of the (had hunch?) highly nation; prosecutor felt would the scene sus- eliminate from juror picious questionable explanations distrusted him and that unfavorable”; (5) giving, and “something prosecutors ap- fond of seemed are so quick approve. prosecutor thought juror pellate did not are so courts appear proceedings E.g., Tompkins, supra. in the court interested kept glancing he at because the clock The cause is one of those cases at Bar wall; and the prosecutor courtroom prior was decided to when Batson decided problems juror had with the because the the United Court. States in his “slumped” down seat. That, however, for the is no excuse condi- accepted type being in the state it judges
Trial have these tion record is actually put courts this time because there have been reasons and have them, stamp hearings in this cause. Trial approval on in this and two “Batson” pre- not simply for appellant other counsel was States. hearing, pared for a understand- “Batson” course, difficulty, appel- from an hearings were ably because both held when standpoint, accepting late court these He yet had decided. sim- Batson not been lies the fact that the balderdash reasons how to ply did the that he knew do best responsibility with the judge is vested under circumstances. totality of determining the circum- However, pending ap- it was ranging explana- verbal stances— tion of the decided, Larry venireperson venireper- peal when was appellant, is prose- Whitsey, interaction with Williams henceforth unspoken son’s of that decision. during cutor the voir dire examination— entitled the benefits Kentucky and expla- Also see v. Brown an articulated race-neutral whether Griffith above, States, nation, ex- v. S.Ct. as those but an United such (1987), and Allen improper cuse discrimination L.Ed.2d pretext S.Ct. by Hardy, 478 U.S. through the use of a strike (1986). prosecutor, often L.Ed.2d 199 decision is making decisions. final in such Batson, of law Texas Prior to the rule attorney quite The mere use unpre- simple: the defense Where challenges hearing, of his pared a “Batson” in that minority persons from the questions qualified strike prosecutor no and does asks the prose- prohibited, and per se present any impeaching or evi- rebuttal *22 730 cutors were free to strike such persons members on the venire of the same See, almost will. example, at accused, Evans v. race as the systematic a man-
State, 622
(Tex.Cr.App.1981); ner,
S.W.2d 866
and the
was
to
unable
come
State,
(Tex.
Chambers v.
The injected time race was into this jurors, looking I look and—I consider at case was when white disqual- individual age, occupation, religion, place ified himself serving because he I position punish they of birth. look would not be in at how fill out the defendant for what some other blacks information sheet. I look had at how years previously. they done to him appear try several An- I court. to watch juror, minority other prospective juror, they them as into the come courtroom. appeared who to be of Chinese-American respond, certainly I—those that do I lis- descent, stated that he could be fair they respond ten to how to whatever appellant was a member of a mi- questions. them they observe as sit in nority was, race like he would re- panel. those, jury as As far that is prove quire beyond the State to its case all just general observations. I take And against appellant. doubt into trying that all consideration in make a decision. appellant’s At conclusion of counsel’s examination, dire jury voir and after the course, simply Of these are old fashioned seated, appellant was counsel then ob- why might reasons one use a jected ground “to jury on that the. juror, regardless strike on a of that individ- opposing had counsel used ual’s race. challenges jury to exclude blacks from the prosecutor in this cause testified panel disqualified Whitsey’s right Mr. hearing motion new trial fair community. to a cross section of the court, only or 13 he had cases tried theAll blacks were struck the State. one black individual had ever as a served panel jury There six blacks on the juror. testified that judge agreed been struck.” The have cases he had tried two those jury there were six blacks on the who cases a black juror. had served as a peremptorily prosecu- struck were of appeals The court sustained the rea- tor, and that these six were in first 32 prosecuting attorney gave sons the as be- person panel. pros- members neutral, opined prose- race that if a only response appellant’s ecutor's coun- cuting attorney may give following: race neutral objection “I sel’s [do occupational, routinely politi- reasons that related to policy striking have a not] cal, economical, areas, religious Nothing “the developed further blacks.” expan- issue, make and the trial Court must denied process” rehearing, appel- sion.” In his motion appellant’s objection “due hearing ap- complained appeals that was seated. The lant that the court of in not requiring allegation erred have failed find factual “articulate neutral that relat- true the evidence.” preponderance of tried.” particular case to be (Emphasis ed to This 774 S.W.2d at supplied.) request was denied. however, did not Tompkins, The Court in decided, Court,
Since Batson was
relationship
between the race-
discuss
as other
courts
gave
well
of this State
and the
reason the
Nation,
where the trial
has
tried,
nor did it make
case about to be
found,
expressly
implicitly,
either
that a
type analysis, nor did it
comparison
sort of
prima facie case of racial discrimination
although postal
delve into the fact
established,
grappled
had been
has
might
ju-
employees
general
poor
make
*25
appellate
standard
what
of
review should
State, nothing
elicited
rors for the
was
applied
prosecuting
to
attorney’s
be
postman might
that
this
about
fact
explanation,
“race-neutral”
and the issue
juror for
State
have made an excellent
attempt-
was contested. These courts have
in this
This is understandable be-
case.
a
ed to reach decision that does
insulate
developed
that
poorly
cause of the
record
judge’s
the trial
decision behind
facade
review,
it
that
this
had before
"credibility”,
of
while at the same time not
Keeton, supra,
like
it had in
much
the one
insulting
every
the integrity
of
trial
review.
in
of
decision
the State Texas whose
was
many prosecutors,
appears
It now
that
explanation
uphold the race-neutral
perhaps
judges,
trial
our
and
some
took
prosecuting attorney gave to substantiate
in
mean
holding
Tompkins to
that when
why
minority venireperson.
he struck a
judge’s
a trial
this Court sustains
decision
regard,
State,
Tompkins
In this
in
v.
this
expla-
uphold prosecutor’s
a
race-neutral
Court ruled:
do not substitute our
“We
nation, no
what
the race-neutral
matter
judgments
credibility
of
evi-
witnesses’
be,
might
praising
it is
the trial
reason
weight
dentiary
for those of
factfinder
whereas,
decision,
had
judge’s
this Court
judge],
judg-
trial
affirm those
but
[the
decision,
judge’s
trial
we
overruled the
whenever
record
ments
discloses suffi-
insulting
integrity
have
of
would
been
(774
support.”
cient evidence
judge,
every
only
very
trial
202.)
Tompkins,
notwith-
Nothing
trial
in the State
Texas.
standing
greatly
that this Court was
con-
could be
from the truth in either
further
that one
cerned with the reason
neither affirm nor reverse a
instance. We
gave
prosecutors
as to his race-neutral ex-
sen-
judgment
trial
conviction or
court’s
planation why
minority
a
he struck
vernire-
tence on
that decision would or
whether
person solely
venireperson
because
—
among
judi-
popular
would not
the trial
had
an
of the United
employee
been
States
ciary
citizenry
or the
of this
this
years,
Postal Service
some thirteen
matter,
if chance
State for that
that she had
co-counsel stated
twinge
anyone
criticism
there is
experiences
had terrible
with such individu-
decision,
accept
spirit
it
our
in the
about
we
jurors
past
als as
who had served
on
criticism.
of constructive
had
juries she
selected—this Court sus-
Supreme Court of
United
When the
judge’s
accept
decision to
tained the
it
granted
Tompkins
certiorari
States
prosecutor’s race-neutral
anticipated many quarters of this
venireper-
why
peremptorily
he
struck
Nation,
the members of
especially by
con-
Notwithstanding this Court’s
son.
give
Court,
appellate
would
that Court
cern,
has
it held that “where
accused
guidance
Nation
courts
throughout
prove a
ultimate
factual alle-
burden
reviewing
judge’s
the trial
deci-
appeal
purposeful
such as
discrimination
gation,
sion to
or overrule
selection,
sustain
preponderance
by a
strike”
used on
“non-racial
evidence,
must
an
view
i.e., it
clear-
minority venireperson,
would
in manner favorable to the
entire record
it had stated and held
ly flesh out what
and reverse
factfinder’s determination
5, 1989,
However,
June
trier
could Batson.
only
no rational
of fact
if
Justice
disqualifying
able,
O’Connor
herself
race
explana-
neutral
from participation, this
judgment
Court’s
equal
tion need not be
to a challenge for
evenly
affirmed
Thus,
divided
cause.
under
Batson it is
when
Court. See Tompkins
Texas,
prima
U.S.
the defendant
showing
makes
facie
109 S.Ct.
(1989).
L.Ed.2d
then,
only then,
the burden
shifts
Thus,
under
Biggers,
Neil v.
to the State to come forward with a race
93 S.Ct.
(1972),
It is thus
for us
determine
defendant
to first
has
review
Tompkins.
discrimination,
established purposeful
and
reviewing
a
ordinarily
court
give
should
Because Batson had been decided while
findings,
those
whether favorable or unfa-
Tompkins
pending
appeal,
direct
vorable, great
It
deference.
is the burden
and
hearing
no “Batson”
previously
had
persuade
the accused
judge
the trial
conducted,
been
necessary
it was
for this
preponderance
a
of the evidence that
22,1987,
April
Court on
appeal
abate the
allegations
purposeful
discrimination
judge
order the
trial
conduct a “Bat-
in
party alleging
true
fact. The
that he
type
son”
hearing, which is what this Court
has
been the victim intentional discrimi-
State,
had
in
previously
Henry
done
v.
729
nation
per-
carries the ultimate burden of
(Tex.Cr.App.1987);
S.W.2d 732
Keeton v.
suasion.
State,
(Tex.Cr.App.1987);
mask his real intent to discriminate on the minority with member of a race should (Page Id.) basis race.” always be race-blind when it comes de- ciding
The State
whether or not
argues
rehearing
peremptorily
that once
strike that
guilty
individual. We are all
has determined
wrongful first
impressions.
example,
truthfully
For
articulated his meth-
prior
states he has a
record
odology
exercising
arrests
complained
police
or has
strike, i.e.,
harass-
once the
has made
ment.
may
He
not wear conventional
acceptable facially
clothing.
length may suggest
His hair
strikes,
courts,
therefore,
“Appellate
lifestyle.
may
unconventional
He
even
virtually
assessing
pro-
have
no role
earring.
wear an
juror ignores
or
priety
impropriety of prosecutor’s
use
prosecutor, or
smiles
defense counsel.
(Page
Id.)
challenges.”
Justice
pointed
Dennis further
out that
disagree.
case,
If
were the
both
may
prior
blacks and whites
have
likely that no
ever
defendant could
“win”
records;
may
arrest
both
have been victims
claim,
pretex-
on a “Batson”
no matter how
crime;
may
both
have
relatives
tual the
reason of
non-racial
penitentiary
police force;
or on the
both
might
If
given
have been.
to be
Batson is
may
strong
believe
weak law
any meaning,
appellate
pur-
review
order;
party by
and others
alienate a
poses, it must not fall within the construc-
gestures,
bare
looks
and still make
given by
tion that Swain v. Alabama was
good jurors for that
“It
ease.
follows that
this and other
Courts
this Nation.
peremptory challenges predicated on such
court,
course,
An
is bound
significantly
popu-
reasons do not
skew the
say,
the record
it.
before
Sad
lation mix of the
venire
one direction or
hearing”
“Batson
records that
*28
another; rather,
promote
they
impar-
privy
lacking
has
sorely
been
to are
when tiality
jury
destroying
of the
without
its
is
to
issue whether
rule for the defen-
representativeness
Manifestly
ju-
if
...
short,
In
prosecuting
dant.
neither the
at-
simply
they may
rors are struck
because
torneys,
attorneys,
defense
nor the trial
beliefs,
hold those
such interaction becomes
judges appear
prepare
to know how to
impossible
jury
and the
will be dominated
hearing.
and conduct a
Other
“Batson”
prejudices
the conscious or unconscious
prosecutor affirmatively
than
a
when
ad-
(1371).
majority.”
of the
a venireperson
mits that he struck
because
hypothetical
my
Let me use a
to make
race,
appellate
of his
how does an
point.
prosecutor gives
these reasons
prosecutor
make the
determination
why
peremptory
as to
he is
using
strike
challenges
peremptory
his
to
exercised
re-
minority
juror
on a
of a
race.
member
move from the
of the de-
venire members
prosecutor
informs the
that he has four
race?
fendant’s
penitentiary;
brothers incarcerated
concurring opinion
In the
that Justice
Presumably,
one
is
of whom on death row.
Dennis
Court of Louisiana
facially
would not
make a
individual
Eames,
filed in State v.
However, Batson did not indicate what hearing, judge is a Batson2 might race-neutral constitute a sufficient is whether trier of fact. The fact issue except say explanation, that it “need perempto- prosecutor used one or more justifying rise to the level exercise of challenges persons to exclude ry challenge cause” and that it must “be race. This is in no jury on account of their particular related to the case to be tried.” question of law. If the sense a regard, present- had this this Court been members says that he did not strike venire cause, my in this ed with a better record race, is not of their the defendant reasons conclusion is entitled to relief unless cause, why gave that he being of his mistaken lying; chances members of the used strikes on exercising about his own motives appellant’s implausible, race as same insignificantly small. peremptory strike are might be different. prosecu- If the trial believes that truth, overrule telling tor is he must
It is far from clear that the various stan-
review,
jury.
quash
the defendant’s motion to
appellate
whose catch-
dards
any appel-
or
easily
Accordingly,
when this Court
words are bandied about so
finding
of the trial
opinion, really differ at all from late court reviews
Court’s
necessarily assess the ration-
practical
judge,
effect.1 Does the
it must
one another
ality
judgment
prosecu-
“clearly erroneous” standard real-
of his
about
so-called
credibility.
it is the defendant’s
ly require reversal in fewer cases than does
tor’s
Since
in fact
prove
Isn’t
burden to
the “rational trier of fact” standard?
always
challenges
the ba-
clearly
finding
fact
exercised
on
erroneous
therefore,
race,
and,
it is
under these cir-
unsupported by the record
sis of
essential
prove
prosecutor to
cumstances that he
an abuse of discretion? Won’t constitu-
judge nevertheless
tionally
invariably pro-
lying.
be
If the trial
sufficient evidence
prosecutor's racially neutral
support
in the record for a
of believes the
vide
automatically
explanation,
complaint
defendant’s
fact?
a factfinder
Doesn’t
necessarily
that the trial
appeal
the record
must
abuse his discretion whenever
weight
Surely
against
great
support
finding?
no
belief
will not
This
preponderance
of the evidence.3
intelligent person really thinks that these
logic,
it makes
is true
force of
so-called standards indeed mean different
in-
precious little difference whether one
things
as a matter of law
more than
involving the words
willing
slogan
some
they do in fact. Yet we have been
vokes
erroneous,”
discretion,” “clearly
enterprise
to let the entire
“abuse
fact,”
“supported
trier of
or
evidentiary
upon
turn
this senseless
“rational
review
his dis-
the record.” If the
abused
bickering
which standard is nominal-
about
erred,
cretion,
irrationally,
clearly
acted
ly
applied, when neither one of the
to be
unsupported by the evidence in believ-
explain, nor could was
parties has bothered to
racially
expla-
rationally explain,
the kind of review
how
appeals
upon
are called
opinion
the courts of
almost concedes this
3.“[W]hen
1. The Court’s
is,
reviewing
nearly
pages
point
jurisdiction,
federal
exam-
after
fact
to exercise their
"supported by
We then learn that the
case law.
appellant proved his affirmative
ine whether the
standard, adopted by
Court in
the record"
issue where the law has
defense or other fact
(Tex.Crim.
State, 749 S.W.2d
Keeton v.
designated
the burden of
that the defendant has
original
applied
submission
App.1988), and
evidence,
proof
preponderance of
the cor-
case,
principle
really no different in
in this
after consid-
of review is whether
rect standard
"clearly
of Fed.R.
erroneous" standard
than
ering
relevant to the issue
all the evidence
*31
therefore,
52(a). Naturally,
the Court
Civ.Proc.
hand,
great
against
judgment
is so
adopts the latter.
weight
preponderance
so as
of the evidence
State,
manifestly unjust.”
79,
v.
785
to be
Meraz
Kentucky, 476 U.S.
106 S.Ct.
2. Batson v.
1712,
(1986).
(Tex.Crim.App.1990).
S.W.2d 146
versed. opinion Court’s impres- leaves one with the simply sion that we don’t prose- believe the be, is,
It should if this Court is willing testimony. And, cutor’s accept point for the first time that evidentiary by review appellate all, court we don’t. But the judge, after is assessing includes rationality of a fact- matters, institutional factfinder in such finder’s conclusions about the credibility of and it long has policy been the of this Thusfar, witnesses at trial. my knowl- Court, as usually reviewing is with edge, we have not accepted proposi- such a resort, courts of last not to substitute its tion, and we circumspect should be rather judgment evidentiary weight or credibili- doing about traditionally so now.4 Both ty for that of the Consequent- factfinder. appellate and as a prac- matter of careful ly, whether we think to be tice, always it has seemed best regard lying largely Rather, point. beside the credibility of witnesses as a matter only appellate approach with even an largely appellate inaccessible to the courts. arguable claim to legitimacy is one which Perhaps because we consider the demeanor inquires whether the factfinder was “clear- of witnesses to disclose so much about erroneous,” ly discretion,” “abused his their, honesty, a cold thought record is es- irrationally,” “acted “unsupported or was pecially unrevealing questions of credi- by believing the record” in bility. reason, But whatever the we have testimony. glosses Which of these one always paid ultimate deference to the fact- puts project on the fundamentally unim- judgments now-, finder’s in this area. Until they officially portant, have been they unreviewable.5 since all come to the same thing. Far more critical is that neither this changes This case all of that. new Our nor the Courts Appeals become willingness to assess the credibility of wit- the actual factfinder in such matters. It is integral nesses as an part appellate of our essential opinion that the Court’s evidentiary significant depar- review is a past ture from practice and case be understood to put should be authorize such a perspective in better for the bench and bar. result.6 majority heavily upon
4.The
relies
consistently
definitive in-
5. This Court has rather
declined
terpretation
52(a),
pass upon
credibility
invitations to
of Fed.R.Civ.Proc.
of wit
State,
721,
E.g.,
nesses.
Porter v.
601 S.W.2d
Supreme
723
United States
Court to demonstrate
(Tex.Crim.App.1980). We have done so whether
appeals
may
that a federal
court
review the
State,
jury,
the trier of fact is a
as in Coe v.
683
credibility of witnesses to some extent:
431,
(Tex.Crim.App.1984)
S.W.2d
438
and Jack
objective
may
"Documents or
evidence
contra-
State,
801,
(Tex.Crim.App.
son v.
672 S.W.2d
804
story;
story
may
dict the witness’
or the
itself
1984),
State,
judge,
or a
as in Bellah v.
653
internally
implausible
so
inconsistent or
on its
795,
(Tex.Crim.App.1983)
Lang-
S.W.2d
796
face that a reasonable factfinder would not
State,
737,
(Tex.Crim.
v.
578 S.W.2d
739
ford
present,
credit it. Where such factors are
App.1979). Usually,
simply
the Court
writes
may
appeals
court
well find clear error even
trier of fact is the
"[t]he
sole
finding purportedly
credibility
in a
based on a
weight
credibility
of the witnesses and
determination.”
any part
believe or disbelieve all or
564, 575,
City,
State,
testimony.” E.g.,
671,
Anderson v. Bessemer
witness’
Williams v.
692
1512,
1504,
518,
(1985).
(Tex.Crim.App.1984).
105 S.Ct.
asio
84 L.Ed.2d
Occ
154,
nally,
judgments
State,
we also hold that such
But until
S.W.2d at
Meraz
"binding upon
the factfinder are
this court.”
acknowledge
this Court did not even
that inter-
State,
E.g., Green v.
146 Tex.Crim.R.
mediate
courts in Texas have constitu-
But,
(1943).
S.W.2d
guage
whatever the lan
authority
questions weight
tional
"to resolve
it,
express
invariably
used to
the Court
evidence[,]"
preponderance
let alone
tamper
factfindings
has refused to
depend upon
credibility
of witnesses. See Tex. Const. Art.
credibility
of witnesses.
And,
V,
given
Sec. 6.
that Texas has no rule in
remotely analogous
criminal cases even
to fed-
6. In Batson itself the
Court warned
52(a),
prodigous leap
eral rule
it is a
"[sjince
judge’s findings
City
anything
conclusion that Bessemer
has
largely
context under consideration here
will
problem confronting
all to do with the
us here.
credibility,
reviewing
turn on evaluation of
law,
terms
Texas
which controls evidentia-
ordinarily
give
findings great
should
those
ry
review in this
the rule announced
deference.” 476 U.S. at
n.
106 S.Ct. at
the Court in this case is made of whole cloth.
n. 21.
*32
not
Secondly,
regard
peremptory challenge
do
the Court’s
decide whether a
previous
opinion
impugn
motivated,
to
case law on the
racially
may
nor
he leave
subject
require
which
appears
same
to
questions to an
resolution.
appellate
such
approach
appellate
somewhat different
matters,
and
He is the factfinder
such
particular, I
review of Batson issues.
facts fairly
judiciously,
must find the
and
adopted
remain committed to
method
according
pre-
proof
to the burdens of
by
Tompkins
the Court in
by law.
scribed
(Tex.Crim.App.1987).7
That
Tompkins,
Having “supported dressed clothes, plurali- record” in a new set of however, plurality, fails to cite one ty opinion really reject states that we didn’t case, federal, state or that makes the state- “clearly erroneous” standard in Kee- ment analysis employed in the ton, just the “nomenclature.” In other “supported by “clearly the record” and er- words, the standard of review has been roneous” synonymous. standards are “clearly along, erroneous” all the Court Judge spend Miller does page a half just forgot to inform the bench and bar at string trying somebody cites to convince Judge time Keeton was Mil- delivered. that a “supported by analysis the record” however, ler and plurality, get never is the “clearly same as used in erroneous.” meaning around explaining of “re- Op. along at 722. The cases cited ject” quote as used in following parentheticals list the conclusions of Keeton: courts. I cannot find indica- adopting “In our own standard for re- analysis place. tion of what took Evident- view, reject ‘clearly we Alabama’s erro- ly, plurality they repeat believes that if standard, neous’ which is the federal “supported by the “clearly record” and er- reviewing findings standard for of fact. roneous” in the same sentence the stan- 52(a), See Rule Federal Rules of Civil Judge dards become the same. Miller Procedure. adopt Nor do we Indiana’s writes two occasions that: abuse of discretion standard. We believe phrase ‘supported by “The the record’ is focus, that our as as that of the trial well found in conjunction clearly with the er- judge, should purposeful be on whether roneous standard in a substantial num- discrimination was established. We will Op. ber of cases.” at 722. of course consider the evidence in the light most favorable to the trial continues, rulings if rulings and determine those different, “While the nomenclature is supported by the record. If the analysis essentially the same under supports record of the trial each of the three ‘standards of review’— judge, they ap- will not be disturbed on erroneous, deference, clearly great sup- Keeton, (em- peal.” and, ported by the record— added). phasis clearly great erroneous and deference rejected “clearly We erroneous” stan- engage in the standards same level of says dard. Not one sentence in Keeton (footnote omitted). Op. review.” at 726. Evidently, plurality otherwise. finds alchemy does not work. embarrassing less to misconstrue the law finally given glimpse We are of what than admit a mistake was made Keeton plurality analysis as considers under adopted “supported by when we (now “supported by the record” clothed record” standard for review of Batson erroneous) clearly standard when the questions. Regarding the Keeton standard plurality arriving origi- states that in at the “modified,” being Judge that is Miller an- nal conclusion this case: nounces: analyzed “... we the evidence in this
“Believing
analysis (referring
Keeton)
synonymous
‘clearly
case in the same manner as the Fifth
with the
Circuit,
analysis,
reviewing
standard’s
erroneous’
we are
viz:
record
its
1988).
(Tex.Cr.App.
1. Keeton v.
entirety by considering the voir dire
*34
including
My
the racial constitution of
ings
supported
cess
must
the record.
be
venire,
neutral ex-
the trial court is
emphasis on the role of
appellant’s
planations, and
rebuttal
appel-
the role the
conjunction
used in
impeaching
Op.
evidence.”
at 726.
“clearly
plays
utilizing
late court
reject
What I
is the
erroneous” standard.
I
of what
plurality’s explanation
take the
an
“clearly erroneous” means
notion that
analysis
place
takes
under their version of
reweighs
“supported by
record/clearly
appellate
errone-
the evidence
court
is,
explana-
at face value. That
ous”
record and then substitutes
based on a cold
analysis
telling
is a
statement of
tion of the
of the trial court.
judgment
its
for that
plurality
what role the
thinks trial courts
grips
plurality opinion never comes to
The
play
finding
in fact
in this State. Trial
plays
the trial court
primary
with the
role
expla-
plurality’s
courts do not exist. The
workings
“clearly erroneous”
in the
of the
“sup-
crystal
it
clear that
nation makes
standard.
“clearly
the record” now
errone-
ported
564,
Bessemer,
v.
In Anderson
nothing
ous” involves
more than reconsid-
(1985),
1504,
518
Jus-
84 L.Ed.2d
105 S.Ct.
substituting our
ering the evidence and
White,
clearly
discussing the
erroneous
tice
judgment for that of the trial court.
standard,
meaning
although
wrote
plurality
the role of the
does mention
phrase “clearly erroneous” was
finding process
in the fact
trial court
—in
general prin-
immediately apparent, certain
op. p. 727.
footnote. See footnote 18 at
power
ciples governed
appellate
court’s
footnote,
Miller,
Judge
in that
continues his
A
findings of a district court.
to overturn
ignore
the trial court’s
quest to
the role
when, although
finding clearly erroneous
process.
findings play
in the
it,
support
the review-
there is evidence to
Judge Miller writes:
ing
on the entire evidence is left with
court
comparison
“As can
seen from a
firm convictionthat a mis-
the definite and
dissent
Presiding Judge McCormick’s
Anderson,
committed. See
take has been
majority opinion
rehearing,
with the
1511;
573,
at
see also
470
105 S.Ct.
U.S.
high-
text to
appropriateness
which
Gypsum
States
States v. United
United
eye
light,
beauty,
like
is often in the
Co.,
“The
passage
rationale for deference
origi-
plurality opinion.
judge’s finding
not
finding,
coherent and
witnesses even
plurality between the interposed has itself apply I now turn to the instant case and deciding trial court’s “clearly the federal erroneous” standard regard *36 de without for factual issues novo appellant review. The record reflects that the credibility the determinations is a black and that no served male blacks made. court jury the jury. on his blacks were on Seven cause; argument panel. was struck for plurality
The
also raises an
One black
peremptorily
remaining
I have advanced a “combination of
the
six blacks were
that
argument
by
Six
ten
justify
that would
struck
the State.6
of the State’s
reasons”
peremptories
if
used
blacks.
racially
Op.
even
not
neutral.
at
were
to strike
strikes
not
not
the
727.
have
and do
advocate
dire was
The record also reveals that voir
explanation
a
proposition that
race neutral
per
forty
limited
minutes
side. Most
negates
a race based
of a
prosecutor’s questions
the
position
My
strike.
is that the trial court
general
individ-
were
in nature with limited
accept
are
may
reasons for strikes that
taking place
the
questioning
ual
before
by
assumptions,
influenced
intuitive
for ex-
challenges
Appellant’s
bench on
cause.
Lance,
eye contact
demeanor.
ample,
general questioning
engaged
counsel
specifically
F.2d at 1181. Lance
teach-
individual
with a
amount of
substantial
though
prosecutor may
es that even
the
over
queries
jurors expressing concern
accepted
juror
a
with some
have
white
particular questions.
persons
similar to the black
characteristics
that
The
in this case also reflects
may
record
rejected, the
still find a
he
played
role
judge
an active
permissible
strike based on
intuitive ba-
as
words,
questioning
testifying prosecutor
the
a record does not have
sis. In other
parties
compar-
moving
both
toward
perfect
a
match as far as
well
to reflect
minority
a
that we can
pages
plurality does
a
members from venire
4. Several
later the
make
clearly
applying
their version of
errone-
took
stab
assume that
intentional discrimination
they do
when
term the race notations
presence
ous
prosecutor
or
place. Op.
At the
at 728.
best
"implausible.” Op.
at 727.
petit jury
on a
is a factor
absence of minorities
judge
rest
will
with the
the trial court
consider
original
point out that on
submission
5. I also
by
presented
and the
the State
evidence
castigating
majority
point
made a
proper
Any implication
ratio
that a
defendant.
hearing
preparing
that
for the Batson
State
occurred in
re-
is
to white veniremembers
minorities
original
Op.
submis-
case.
jury
quired
"good”
Hol-
is incorrect. See
for a
point
727. I revisit this
comment
sion at
—
-,
-,
-,
Illinois,
U.S.
land
majority’s
plurality’s conclu-
and now
that
804-06,
(1990) (Re-
107 L.Ed.2d
S.Ct.
part
implica-
case is
based on
in this
sion
petit
jecting
a
Amendment claim that
prosecutor’s explanations
the Sixth
were "too
tion
contending
prosecu-
plurality
good.”
a fair cross section
is
has to reflect
Likewise,
eight
preparation for the
community).
six to
hours of
Amend-
tor’s
Fourteenth
hearing
improper
neces-
it
Batson
Fifth
appropriate
for the
vehicle
ment
sarily
were not
follows
"x”
to use
insure that
Circuit
this court
or
course,
speck
worthy
not one
of belief. Of
type
particular
veniremember
number of a
proposition.
support
is cited to
caselaw
eliminating indi-
directed to
seated. Batson is
discrimination;
insuring proportion-
vidual
Forbes,
Williams,
Lance,
plurali-
Citing
jury.
representation
group
al
all
ty
that if the State removes
also intimates
development of evidence that would allow
Lance,
United
(5th
States v.
cials her to disbelieve Since the trial in the instant case police witnesses crucial case bar. position was in the best to observe the proceedings credibility Appellant claims, however, per- that in prosecutor giving I would emptorily striking pros- Mitchell the Gloria finding. not disturb his ecution struck good State’s witness be- cause of her connection with law enforce- Next, the State exercised a Forbes, ment. United States challenge against venireperson black No. (5th Cir.1987), prosecu- F.2d Sherry Ramsey. prosecutor The testified venireper- striking tor’s reasons for a black (1) Ramsey that he struck her posture son were based on her and demean- (2) profession age. husband’s her respond might nega- or which indicated she Ramsey Since was married to a man who tively government’s case. The worked in a predominately profes- female suggest prosecutor’s probably record did sion and who was a “social work- assumption type,” prosecutor intuitive was based on race. In er felt that she would capital Nothing precludes 7. Trial courts in a murder dire rou- trial court voir involvement in tinely questioning questions take over to resolve ferreting out intentional discrimination in the involving juror qualifications. See Janecka v. use of strikes. (Tex.Cr.App.1987). addition, prosecutor peremptorily struck also good juror. state’s not be a Hunt, Lee be- veniremember No. Willie about prosecutor expressed concern in the Church cause of Hunt’s involvement years Ramsey’s age. twenty-four She was God, knew religion prosecutor age age appellant. close to the nothing venire- about. Hunt was Appellant argues that member who for this preference indicated a Ramsey against strike exercised particular denomination. Also marked age points on her out based failure Hunt’s information card was Hunt’s venirepersons did not strike six white State respond to whether he been an had appellant. age to the who were also close in a criminal case. The accused jurors with disparate treatment of While specifi- that he could not further testified prose- suspect, the similar characteristics is he struck Hunt cally remember whether expla- gave in this case an alternative cutor religious prefer- merely Hunt’s because of subject racially neutral nation that was ence, portion the omitted or whether court.8 The trial scrutiny of the trial also a considera- form was information make a position judge was best however, prosecutor, testified tion.10 credibility on the demeanor choice based respond to whether Hunt’s failure to and behavior in a criminal case he had been accused Again, rely- explanation. legitimacy of been a factor the exercise could have credibility ing on the trial court his strike. finding. affirm his choice would Appellant intimates No. prosecutor struck veniremember against venireper- exercised peremptories informa- Mayrine Fuller. On her their reli- Hunt based on sons Johnson and form, circled Fuller’s suspect. tion gious affiliation were her fail- occupation teaching and noted however, court, found that The trial on a to fill out whether she served ure regarding his *38 he struck Full- prior jury. He testified that what he considered reservations about too teachers to be er viewed religions,” and what kind “fringe type re- forgiving. The record also liberal and religions practitioners of those jurors only prosecutor struck the flects that the make, racially neutral. In ad- were would I panel, a other teacher on the nonblack.9 dition, a nonblack on prosecutor struck finding judge’s find no reason that the trial opining that he religion, the basis of his explanation was ra- prosecutor’s that the affiliation made thought religious cially neutral should be disturbed. The trial court’s juror too liberal. these neutrality in the exercise of race prosecutor peremptory The exercised a disturbed. should not be strikes Johnson, challenge venire- to strike Glenda Last, prosecutor No. 32. The testified exercised a member the State 39, Regi- challenge No. that he did so because Johnson indicated on veniremember prosecutor testified that preferred The Pentecostal was her reli- nald Ardoin. only Ardoin was prosecutor believed a he was concerned gion. The age and that Ardoin’s twenty-one years of religion “fringe type” because Pentecostals very the information form tongues” things spelling and do some “speak in misspelled Riv- Ardoin Specifically, poor. ordinary.” “out of Forbes, at 816 F.2d Lance, Circuit in Fifth 10. The F.2d at 1181. 8. 853 David, 7, citing 803 F.2d States v. United no. (Fla. Slappy 503 So.2d Cir.1986), (11th the failure noted that Dist.1987), reviewing rejected App. every peremptory explain prosecutor to explanation for a prosecutor’s necessarily jurors fatal is not black strike of group employment on an assumed strike based ability prima rebut the facie reviewing that the court concluded bias. The explanation of most will the case. Nor basis teacher on the prosecutor excluded black necessarily satisfy grounds nonracial strikes on teacher was not a nonblack race because of challenged. his burden. erside General as “Riveside Genral” prosecutor and The had also marked “0” to misspelled religious preference Bap- designate juror of the Oriental race. “Bapaitsm.” tist as The record reflects Appellant attempted to establish on that Ardoin was the veniremember prosecutor cross-examination of the age twenty-four. under the prose- only explanation marking “B” on expressed cutor concern over Ardoin’s abili- juror identify information cards was to ty to act competent juror as a based on an jurors for strikes on the of race. basis apparent lack of educational skills. Appellant was not successful. Appellant contends that the Had the intended to strike striking venireperson Ar- venirepersons solely based on the basis of doin racially was not Appellant, neutral. race then no additional notations or marks however, provide does not any basis for juror kind on the information cards undermining the trial determination necessary would have been in order for the that the strike was racially exercised in a State to exercise strikes in a neutral fashion. discriminatory manner. The trial court judge observed the demeanor and behavior Appellant argues also prosecu- prosecutor throughout the Batson tor’s indication of the race of black venire- hearing position and was in the best juror members on the information forms determine whether the had en- provides evidence of the State’s intentional gaged impermissible I conduct. find no discrimination that was not rebutted. At overruling reason the record for hearing the Batson ex- judge’s credibility choice. plained that he marked “B” juror on the Last, point painfully out what has been purposes information forms not per- throughout plural- obvious to me the entire strikes, emptory purposes rather for ity opinion. plurality’s “clearly errone- placement visual of the members on the ous” standard is “nomenclature” for an panel. prosecutor explained the nota- “analytic subjectivity tool” based on tions as follows: lip paid service to the role of the trial court. helps just placing a lot faces and “[I]t engaging pages “analysis” After in 14 placing jurors, just placing the minor- plurality states: ity jurors you but when sitting present appellant’s cause de- “[I]n front of a people trying with 50 presentation tailed indicating evidence figure is, out who No. frankly, the black members of the venire sheet, looking my I know that Juror *39 differently were treated than the white No. 26 is two down from the fe- black sufficiently prosecu- members rebuts the male that at the time would have been in tor’s neutral peremp- for his pretty the third row. That’s much tory challenges supports holding out, laying guess, basis for I landmarks that the clearly trial court erred in find- jury panel. of sorts in the entire purposeful no discrimination process appellant’s selection tri- helpful, helpful “It’s- more after all the added). Op. (underline al.” at 728 sitting up voir dire when I’m at counsel plurality sitting as a court de novo has up my table when I look and refresh reweighed and decided it the evidence “suf- memory people of faces of what have ficiently rebuts” the during done the voir dire.” explanations. again. I and dissent dissent “Sufficiently rebuts” is not “nomen- prosecu- The record also reflects that the clature” for the federal standard “clear- tor made other notations on several of ly erroneous.” information forms which were with marked “B.” Professions were cir- clearly the federal Under erroneous stan- cled, portions dard, unanswered of the forms upsetting there is no basis for marked, were and veniremember findings state- trial court’s in the instant case. I during grant ments made voir dire were noted. would the State’s motion for rehear- This Court should be the same. ing, Appeals, overrule this cause affirm the Court findings. trial court's adopt should defer to the of review and the Keeton standard clearly the federal erroneous standard “supported The trial court’s hearings. review for Batson the reasons set forth by the record” for opinion original submis-
my dissenting rea- supra. These same Page sion. BERCHELMANN, Judge, dissenting. Presiding correctly cited sons are my I stated dissent for reasons dissenting opinion on motion Judge in his opinion on dissenting opinion to the Court's that the find- rehearing to demonstrate (Ber- original Page 716-717 submission. Page “clearly erroneous.” ings are not J., chelmann, J., McCormick, P.J., White, 742, supra. dissenting). reasons, respectfully dissent For these call its this Court chooses to Whether refusal, through majority’s repeated “supported by the standard of review it chooses whichever semantic distinction record,” did in majority as the of this Court moment, findings of the to defer to the (Tex. State, 749 Keeton v. judge in the case at bar. majority of this Cr.App.1988),or whether a to call the Keeton stan Court now chooses WHITE, J., joins opinion. ‘clearly errone “synonymous dard ” page (opinion on re analysis, ous’ decides hearing), or whether this Court clearly sepa erroneous standard standard,
rate and from the Keeton distinct (McCormick, P.J., dissenting) page 742 rehearing), the end result (opinion on The notes prosecutor on also indicated her race “B”, indi- juror only the letter consisted juror desig- sheet information with the nothing cating juror, the race of the “B”, prospec- as did with third nation he age juror’s as to the marked or circled was juror was struck tive black who because occupation. or her husband’s occupation age. her husband’s and her Finally, the testified at juror’s as a employed This husband hearing he struck two black ex- nurse’s assistant. As including men- jurors, prospective juror plained that tends to strike nurses above, age. Again, their because of tioned liberal, jury panels they tend to be specific made no notations interrupted him and regarding on the information sheets following dialogue occurred: except to these two individuals note THE COURT: Nurses liberals? are The prosecutor “B”. race with letter (prosecutor): cer- THE WITNESS On Sherry Ramsey, the that he stated struck nurse, keep I Your might tain cases venireperson preceding discussed Honor, I general but in tend to strike age, 24, her was the paragraph, because nurses, yes. age appellant. prose- approximate think, Nurses, you THE COURT: however, cutor, other did not strike six per- be liberal a case where a would approx- also were white veniremen who charged burglary with intent son’s age appellant. persons, Those six imate commit sexual assault? years, ranged age from 25 to 28 who THE On a such as WITNESS: case jury. appellant’s on served this, well, on child abuse cases tend in Kee- of the factors discussed Several and, keep a nurse also teachers supra, weigh Slappy, II and which ton those kind of cases. On cases such legitimacy race-neutral against this, general my feeling is while in this As explanation, present are cause. rape general was a case that nurses in II, may be noted in Keeton these factors to be on the liberal side. tend State’s as evidence to show used THE COURT: You don’t think nurses merely a sham. rape, side with victims of sexual assault? evidence, we first note analyzing this opinion. just asking your I’m the prosecutor record reflects cases, yes, In some THE WITNESS: any questions not ask blacks did In this I didn’t much of an sir. case have though he struck jury panel whom even ques- opportunity to have individual information there were items on tioning question on voir dire6 either relating jurors to those which sheets problem that arose mind with him had been deleted. concerned prospective juror], was not that [the challenges her had husband she was nurse venireper- against certain black exercised job six months and was been