841 S.W.2d 385 (Tex.Crim.App. 1992), 69,337, Trevino v. State

Docket Nº:69,337.
Citation:841 S.W.2d 385
Party Name:Joe Mario TREVINO, Appellant, v. The STATE of Texas, Appellee.
Case Date:October 14, 1992
Court:Court of Appeals of Texas, Court of Criminal Appeals of Texas

Page 385

841 S.W.2d 385 (Tex.Crim.App. 1992)

Joe Mario TREVINO, Appellant,


The STATE of Texas, Appellee.

No. 69,337.

Court of Criminal Appeals of Texas.

October 14, 1992

Page 386

Art Brender, Terry M. Casey, court appointed on appeal, Fort Worth, Charles Van Cleve, court appointed on appeal, Arlington, for appellant.

Tim Curry, Dist. Atty. & C. Chris Marshall, Mary Thornton Taylor, Rufus Adcock & Tanya S. Dohoney, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.



Appellant was convicted of capital murder. See Tex. Penal Code § 19.03(a)(2). The jury returned affirmative answers to the two special issues submitted, and appellant was sentenced to death. Appeal to this court was automatic.

Appellant filed a pre-trial motion requesting that the State not be permitted to use peremptory challenges based on race. He alleged that the State had historically used peremptory challenges in a racially discriminatory manner. This, he asserted, would deprive him of a jury drawn from a fair cross section of the community in violation of the Sixth Amendment. A ruling was reserved until voir dire. During voir dire the State used peremptory challenges to strike all the qualified black members of the venire. 1 Appellant asked the trial court to require the State to articulate its reasons for striking the particular venirepersons. This request was denied.

On appeal appellant reasserted that the prosecution's racially-motivated use of peremptory challenges had deprived him of his rights under the Sixth and Fourteenth Amendments. Shortly after appellant filed his brief in this Court, the United States Supreme Court held in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), that the Equal Protection Clause of the Fourteenth Amendment allows a party to demonstrate racially motivated use of peremptory challenges in a single case. This Court determined that

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appellant's "fair cross section" argument was premised on the Sixth Amendment and that he had failed to raise an equal protection claim. Trevino v. State, 815 S.W.2d 592, 598 (Tex.Cr.App.1991). Thus, we held in effect, that the rule of Batson was not available to appellant.

On April 6, 1992, the United States Supreme Court granted certiorari, reversed our decision, and remanded appellant's case to this Court. Trevino v. Texas, 503 U.S. 562, 112 S.Ct. 1547, 118 L.Ed.2d 193 (1992). Based on the decision in Ford v. Georgia, 498 U.S. 411, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991), the Supreme Court found that appellant's claim of an historical pattern of racial discrimination was sufficient to preserve the equal protection claim. Thus, the Supreme Court stated, appellant was entitled to the rule of Batson.

The State filed a brief on remand in which it suggests that we have two options: 1) remand the cause to the trial court for a Batson hearing, or 2) decide the merits of appellant's claim on the record already before us. The State argues that the latter is preferable and supplies us with several plausible reasons why this should be done in appellant's case. To adopt the State's preferred approach, however, would eviscerate appellant's right to have the trial court pass on the credibility of the prosecutor's explanations for his use of peremptory challenges. We therefore decline to adopt the State's preferred approach and will remand the cause to the trial court.

This appeal is abated and the cause remanded to the trial court with instructions to conduct a full adversarial hearing complying with Batson concerning the State's use of peremptory strikes of venirepersons Sanders, Hollie, and Johnson. The record of that hearing, together with the trial court's findings of fact and conclusions of law, shall be forwarded to this Court for our review within 120 days of the date of this opinion.

It is so ordered.

McCORMICK and WHITE, JJ., concur in the result.

CLINTON, Judge, concurring.

This dust up is, alas, symptomatic of the contentious nature of too many communities of interest in our society. When the issue is alleged discrimination on account of race, their adversarial tendencies become especially acute as tensions mount between degrees of respective sensibilities. See, e.g., Seubert v. State, 787 S.W.2d 68 (Tex.Cr.App.1990).

In the instant cause on original submission this Court examined and rather summarily ruled on just such an issue that is still the bone of contention here, viz:

"In his second point of error, appellant asserts that he was deprived of a jury comprising a fair cross-section of the community as guaranteed to him by the Sixth and Fourteenth Amendments in that the State struck all black jurors from the jury panel. This issue has been decided adversely to appellant in Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990). In Holland, the Court decided that '[a] prohibition upon the exclusion of cognizable groups through peremptory challenges has no conceivable basis in the text of the Sixth Amendment, is without support in our prior decisions, and would undermine rather than further the constitutional guarantee of an impartial jury.' 493 U.S. at 478, 110 S.Ct. at 806. [note 3, stating in pertinent part that appellant "does not rely upon the Equal Protection Clause "]. See Seubert v. State, 787 S.W.2d 68 (Tex.Cr.App.1990). See also [citations omitted]. We overrule appellant's second ground of error."

Trevino, at 598. 1

In determining to grant certiorari the Supreme Court first critically and fairly reviewed circumstances surrounding the opinion on original submission and the opinion itself. That done it then determined that appellant had not only "presented his equal protection claim to the trial court," but also had "preserved his equal protection

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claim before [this Court]." Finally the Supreme Court rejected the State's contention that appellant's "equal protection claim had no legal support." Accordingly, without setting the cause for submission on briefs and oral argument, it simultaneously granted certiorari, reversed the judgment of this Court and remanded the cause "for further proceedings not inconsistent with this opinion." Trevino v. Texas, 503 U.S. 562, 112 S.Ct. 1547, 118 L.Ed.2d 193 (1992). 2

With those observations and because it is clear enough to me that the Supreme Court merely found we failed to consider all of its germane decisions then extant, and did not gratuitously undertake to override any local rule of procedure for preserving error, I join the opinion and order of this Court.

MALONEY, Judge, dissenting.

To remand this case or any case originally tried in 1984 back for a Batson hearing to test the motives of the prosecution as they existed eight years ago is asking for inventive reasoning that could border on inadvertent manufacture. In this case, the defendant presented a pre-trial motion requesting that the Court order the prosecution not to utilize its preemptory challenges "based on race". This motion was denied by the trial court and the record reflects that the state used its preemptory challenges to strike all the qualified black members of the venire.

Despite defendant's request made at the time of trial that the State place in the record its reasons for exercise of such preemptory challenges, the trial court did not require the State to do so.

I would reverse and remand this case for a new trial and respectfully dissent because this court does not do so.

BENAVIDES, Judge, dissenting.

I acknowledge that the United States Constitution is the supreme law of the land. I acknowledge that decisions of the United States Supreme Court on questions of federal constitutional law are superior to those of this Court. I acknowledge the duty of this Court not to implement any law of Texas in a manner contrary to the United States Constitution as authoritatively construed by the Supreme Court. But I do not acknowledge that the Supreme Court is the final arbiter of what is purely Texas law, nor do I acknowledge that the Supreme Court has authority to insist that the courts of Texas provide relief for the violation of federal constitutional rights in a forum or by a means not available under Texas law. See Case v. Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965); Ex parte Crispen, 777 S.W.2d 103, 107 (Tex.Crim.App.1989) (Clinton, J., concurring).

The opinion in Trevino v. Texas, 503 U.S. 562, 112 S.Ct. 1547, 118 L.Ed.2d 193 (1992) is unclear to me, as is the opinion upon which it relies, Ford v. Georgia, 498 U.S. 411, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). Specifically, it is unclear whether, in context

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of complaints about racially discriminatory peremptory challenges, the Court held that questions of procedural default, preservation of error, specificity of objection, and other usually local matters affecting the reviewability of legal questions, as opposed to the merits of those questions, is itself now a question of federal constitutional law in the state courts or if, instead, the Court held only that local rules affecting reviewability do not bar federal judicial review under some circumstances. If the former, it is clear that the rule of forfeiture we imposed on original submission in this case is unconstitutional, with the consequence that we must reach the merits of Appellant's claim under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), on remand. See Trevino v. State, 815 S.W.2d 592 (Tex.Crim.App.1991). If the latter, it is equally clear to me that Appellant's proper remedy is by writ of habeas corpus in a federal district court.


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