Aguilar v. State

• Decision Date: 10 March 1992
• Docket Number: No. 2-91-031-CR,2-91-031-CR
• Citation: 826 S.W.2d 760
• Parties: Jesus Quintana AGUILAR, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 760

826 S.W.2d 760

Jesus Quintana AGUILAR, Appellant, v. The STATE of Texas, State.

No. 2-91-031-CR.

Court of Appeals of Texas Fort Worth.

March 10, 1992.

Discretionary Review Refused

June 3, 1992.

Mary B. Thornton, Fort Worth, for appellant.

Tim Curry, Crim. Dist. Atty., C. Chris Marshall, Steven W. Conder, Kenneth Mullen and Glen Wood, Assts., Fort Worth, for appellee.

Before WEAVER, C.J., and FARRIS and LATTIMORE, JJ.

OPINION

LATTIMORE, Justice.

This is an appeal by Jesus Quintana Aguilar from a conviction for robbery which caused bodily injury. See TEX.PENAL CODE ANN. § 29.02(a)(1) (Vernon 1989). The jury assessed punishment at fifty years confinement in the Institutional Division of the Texas Department of Criminal Justice. In his two points of error, Aguilar asserts that the trial court erred in overruling his objection to the State's use of two of its peremptory challenges on venirepersons number eleven, Betty Groover Garcia, and number twenty-five, Martha Morolez Deanda.

We affirm.

Appellant's Points of Error

Under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the defendant is required to make a prima facie case of discrimination; in other words, he must raise an inference of "purposeful discrimination" on the part of the prosecuting attorney. Id. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88; see also TEX.CODE CRIM.PROC.ANN. art. 35.261 (Vernon 1989). If, after the State has exercised its peremptory challenges, the defendant is able to show: (1) that the prosecutor has exercised peremptory challenges to remove a particular race from the jury (in this regard, the defendant is entitled to rely on the fact: "that peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate' "); and (2) that the above "facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." See Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 1377, 113 L.Ed.2d 411 (1991); Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88; Bean v. State, 816 S.W.2d 115, 118-19 (Tex.App.--Houston [14th Dist.] 1991, no pet.). If the defendant establishes this minimum quantum of evidence, he is then entitled to a Batson hearing which shifts the burden to the prosecution to establish racially neutral reasons for its strikes. Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88; see also TEX.CODE CRIM.PROC.ANN. art. 35.261.

The prima facie showing which the defendant must make has been the subject of considerable concern. The Texas Court of Criminal Appeals has discussed the level to which this showing must rise in Dewberry v. State, 776 S.W.2d 589 (Tex.Crim.App.1989). There the court observed:

"A prima facie case represents the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true. The party with the burden of proof must produce at least this much evidence to avoid a finding that the allegation is not true as a matter of law. Once produced, however, the allegation must be found true unless it is contradicted, impeached, or rebutted by other evidence...."

Id. at 590 (quoting Tompkins v. State, 774 S.W.2d 195, 201 (Tex.Crim.App.1987), cert. granted, 486 U.S. 1053, 108 S.Ct. 2818, 100 L.Ed.2d 919 (1988), judgment aff'd per curiam, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989).

Additionally, the Texas Court of Criminal Appeals, in Dewberry, ruled:

In deciding whether the defendant has made a requisite showing the trial court should consider all relevant circumstances, including:

"[A] 'pattern' of strikes against black jurors included in the particular venire might give rise to an inference of discrimination." Batson, 476 U.S. at 97, 106 S.Ct. at 1723.

The "pattern" may be shown in a number of ways.

Dewberry, 776 S.W.2d at 591.

In the present case, the defendant had the burden to establish a prima facie case under Batson. Batson, 476 U.S. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88. At trial, Aguilar's sole argument supporting his Batson challenge was that the State struck two of four veniremembers with Hispanic surnames. However, Betty Groover Garcia, one of the two alleged Hispanics who were peremptorily removed by the State, was found by the trial court not to be a Hispanic because her maiden name was Groover. We agree with the trial court's implicit determination that the fact that a veniremember has married a person of a particular race does not then automatically categorize that individual as a member of their spouse's race. Hence, absent further proof by Aguilar as to the race of Betty Groover Garcia, we hold that the trial court's finding that Garcia is not Hispanic was proper.

Next, we address the issue of whether the striking of Deanda raised a prima facie case of purposeful discrimination. Deanda was deemed to be a Hispanic name by the trial court. After finding supra that Garcia does not qualify as a Hispanic for Batson purposes, we conclude that only three Hispanics remained on the venire. These Hispanics included: (1) veniremember number eight, Daniel Perez who was seated on the jury; (2) veniremember number twenty-five, Deanda who was peremptorily challenged by the State; and (3) veniremember number...