Bean v. State, A14-90-178-CR

• Decision Date: 08 August 1991
• Docket Number: No. A14-90-178-CR,A14-90-178-CR
• Citation: 816 S.W.2d 115
• Parties: Louis Eugene BEAN, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 115

816 S.W.2d 115

Louis Eugene BEAN, Appellant, v. The STATE of Texas, Appellee.

No. A14-90-178-CR.

Court of Appeals of Texas Houston (14th Dist.).

Aug. 8, 1991.

Terrill L. Flenniken, Mary B. Hennessy, Houston, for appellant.

Linda A. West, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and MURPHY and CANNON, JJ.

OPINION

MURPHY, Justice.

Appellant entered a plea of not guilty before the jury to the offense of aggravated robbery. He was convicted, and the jury assessed punishment, enhanced under TEX.PENAL CODE ANN. § 12.42(c) (Vernon Supp.1990), at confinement for life in the Institutional Division of the Texas Department of Criminal Justice and a fine of $10,000.00. In two points of error, appellant complains of the trial court's ruling on his Batson motion and statements made by the prosecutor during voir dire. We affirm.

In his first point of error, appellant contends that the trial court erred in denying his motion for mistrial under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, appellant asserts that his conviction should be reversed, because the state failed to present racially neutral reasons for its peremptory strikes against four venirepersons. The venire consisted of forty prospective jurors, eight of whom were black. Of those eight black venirepersons, one was struck for cause, four were peremptorily struck by the prosecutor and three were impaneled on the jury.

After the jury was impaneled, but prior to the jury being sworn, appellant made his Batson motion. In the course of the Batson hearing, the trial court judicially noticed for the record that four of the eight black venirepersons had been peremptorily struck by the state. Appellant's attorney then made the following statements:

[DEFENSE COUNSEL]: Your Honor, I would also like the record to reflect that Juror No. 1 was struck by the State, who is black. Juror No. 2, who was black, was struck by the State. Juror No. 18, who is black, was struck by the State. And Juror No. 35, who is black, was struck by the State.

And, Your Honor, I'd also request that the record reflect, if it does not, though I think that it probably does, that Juror No. 15, who was black, who was struck for cause was on motion of the State and that I objected to that motion being granted.

THE COURT: All right, sir.

[DEFENSE COUNSEL]: And with that, Your Honor, the defendant would invoke Batson.

No further evidence or argument was set forth by appellant in support of his Batson challenge.

Following the above presentation by appellant, the trial court, in an effort "[t]o simplify things, speed things up," requested the prosecutor to explain her peremptory strikes. The prosecutor proceeded to provide the court with racially neutral explanations for each of her peremptory strikes against black venirepersons. Based upon these explanations and its own observations, the trial court made the following finding:

[T]here was no systematic exclusion of any person because of any race, religion or for any other reason, that the reasons set forth for the State's peremptory challenges were justifiable, legitimate and completely not in any way based or influenced because of color.

Following a brief discussion, the trial court overruled appellant's Batson motion.

The state contends that this point of error should be overruled, because appellant failed to establish a prima facie case of purposeful racial discrimination in the court below. Before we address the merits of this contention, however, we must first determine whether the state, by providing explanations for its peremptory challenges, has waived its right to complain of appellant's failure to establish a prima facie case. The Court of Criminal Appeals has tangentially addressed this issue on at least two occasions. In Dewberry v. State, 776 S.W.2d 589, 591 n. 2 (Tex.Crim.App.1989), the court suggested that the question of whether a defendant has established a prima facie case should normally not be a concern subject to appellate review. However, the court touched on the matter more directly in Cooper v. State, 791 S.W.2d 80 (Tex.Crim.App.1990), which was decided six months after Dewberry.

In Cooper, the state contended that the appellant had failed to preserve his Batson challenge for appellate review, because he had failed to make his motion in a timely manner. See Cooper, 791 S.W.2d at 82. The court initially concluded that the state had waived its complaint as to the preservation of error, because it had failed to raise its objection in the trial court prior to the Batson hearing. See id. In its opinion on the state's motion for rehearing, however, the court reexamined the state's argument and determined that implicit in TEX.R.APP.P. 52(a) "is the requirement that only the party seeking to appeal an adverse ruling by the trial court is burdened with the obligation of interposing a timely objection to the trial court's action." Id. at 83. Based upon this reasoning, the court abandoned its prior conclusion and held that "[t]he fact that the trial court proceeded to conduct a Batson hearing is irrelevant to the issue of whether appellant actually preserved error." Id. In view of this holding, we conclude that the state has not waived its right to challenge the sufficiency of appellant's prima facie case in this appeal.

The state contends that appellant failed to establish a prima facie case of purposeful racial discrimination in the court below. In this regard, we first note that the burden of establishing a prima facie case is on the criminal defendant. E.g., Tompkins v. State, 774 S.W.2d 195, 200 (Tex.Crim.App.1987), aff'd by an equally divided Court, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989). Only after the defendant has established a prima facie case of discrimination does the burden of proof shift to the state to articulate racially neutral reasons for its peremptory strikes. Dewberry v. State, 776 S.W.2d 589, 590 n. 1 (Tex.Crim.App.1989); see Batson v. Kentucky, 476 U.S. 79, 97, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986).

In the aftermath of Batson, courts fashioned a uniform test for determining whether a defendant had established a prima facie case of purposeful racial discrimination. Under this test, a defendant was required to show that he is a member of a cognizable racial group, that the prosecutor exercised peremptory challenges to remove from the venire members of the defendant's race, and that these facts and other relevant circumstances raise an inference that the prosecutor used the peremptory challenges to exclude the venirepersons from the jury on account of their race. E.g., Tompkins, 774 S.W.2d at 200. Relying upon this traditional analysis, the state argues that appellant has failed to establish the first and third elements of his prima facie case.

Initially, we note that appellant has failed to establish that he is a member of a cognizable racial group. The record in this case fails to reveal appellant's race. The trial court did not take judicial notice of the fact, and neither the prosecutor nor appellant's counsel referenced the matter in their Batson arguments. The record does contain references to the sex and race of several venirepersons, but we are not at liberty to assume from these references that appellant is a member of a particular cognizable racial group. This is particularly true in view of the Supreme Court's holding in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), which was anticipated at the time of appellant's trial. Under the traditional Batson analysis, appellant had the burden, however slight, of establishing on the record that he was a member of a cognizable racial group, and it is evident that he failed to satisfy that burden. In view of the Supreme Court's opinion in Powers, however, we conclude that appellant's failure to show that he is a member of a cognizable racial group is not per se dispositive of the question of whether he established a prima facie case in his Batson challenge.

Since 1986, the substantive and procedural legal issues surrounding Batson challenges have been in a state of constant flux reminiscent of Hericlitus's stream. At its inception, Batson emphasized the necessity of racial identity between the defendant and the excluded jurors. This principle was reflected in the Court's description of the first two elements of a prima facie case:

To establish such a case, the defendant must first show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race.

Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986) (citation omitted). Thus, when Batson was announced as the Law of the Land, it was necessary for a defendant to establish his race in order for him to show that other members of that particular race had been excluded from the jury. The Supreme Court has recently concluded that the necessity of racial identity emphasized in Batson is now "irrelevant" to a defendant's right to raise a Batson challenge. See Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 1377, 113 L.Ed.2d 411 (1991).

In Powers, the petitioner was "a white man" who had been convicted in a state-court trial of murder, aggravated murder and attempted aggravated murder. See 111 S.Ct. at 1366. During the jury selection process, Powers had objected to the state's use of peremptory challenges to exclude seven black venirepersons from the jury. Id. His objections, which were overruled at trial, were based on Batson and were raised in the course of a typical Batson motion. See id. On appeal, Powers contended that his own race should have no bearing on his right to object to the state's peremptory challenges. Id. The Supreme Court agreed and concluded that a defendant in a criminal case can object to the race-based exclusion of jurors through peremptory challenges...