Carrion v. State

• Decision Date: 19 December 1990
• Docket Number: No. 3-88-162-CR,3-88-162-CR
• Citation: 802 S.W.2d 83
• Parties: Luis CARRION, a/k/a "Papo", Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 83

802 S.W.2d 83

Luis CARRION, a/k/a "Papo", Appellant, v. The STATE of Texas, Appellee.

No. 3-88-162-CR.

Court of Appeals of Texas Austin.

Dec. 19, 1990.

Fancy H. Jezek, Lackmeyer, Jezek & Holbrook, Killeen, for appellant.

Arthur C. Eads, Dist. Atty., James T. Russell, Administrative Asst., Belton, for appellee.

Before POWERS, JONES and ONION, ^* JJ.

ONION, Justice (Retired).

Appellant was convicted of conspiracy with the intent to commit the offense of aggravated delivery of cocaine over 400 grams. See Tex.Pen.Code Ann. § 15.02 (Vernon 1974) and 1983 Tex.Gen.Laws, ch. 425, § 6, at 2373 [Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 4.03(c) (Texas Controlled Substances Act), since repealed]. ¹ Following the jury's verdict, the trial court assessed appellant's punishment at twenty (20) years' imprisonment.

Appellant advances five points of error. He contends the trial court erred in overruling: (1) his motion to quash the indictment because it failed to state an offense, (2) his motion to dismiss the array because some of the State's peremptory challenges were based on race, and (3), (4), and (5) his objections to the court's charge.

The appellant was tried jointly with five co-defendants including Donald Ray Woods. There was a single indictment charging all the defendants with the same offense. Appellant's first point of error urges that the trial court erred in overruling his motion to quash the indictment for its failure to state an offense under the law. This is the same contention as is raised in the companion case of Woods v. State, 801 S.W.2d 932 (Tex.App.1990). For the same reasons set forth in Woods, we overrule appellant's first point of error.

In his second point of error, appellant advances the contention that the trial court "erred in failing to grant appellant's motion to dismiss the array after the State exercised peremptory challenges to exclude persons from the jury based on their race."

After the voir dire examination of the jury panel, but before the jury was sworn, the appellant and the co-defendants urged their motions to dismiss the array. It was stipulated that appellant was a Puerto Rican, a member of the Hispanic race, and thus, a member of an identifiable racial group. There was no showing that any member of the jury was a member of the Hispanic race, or that any Hispanic was struck by the State. The prosecutor was only called upon to make racially-neutral explanations for his peremptory challenges against eight black jurors. After the hearing, the trial court overruled all of the motions to dismiss the array. This hearing was discussed at length in the companion case of Woods where the defendant was shown to be a black.

In his brief, appellant relies upon what he terms the improper exclusion of two black veniremen, Bullock and Jenkins, whom this Court found in Woods to have been improperly excluded by the State. The appellant recognizes that he seeks to complain of the State's strikes against a different racial group than his own, but he relies upon Tex.Code Cr.P. art. 35.261 rather than the decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

In Batson, the United States Supreme Court recognized that purposeful racial discrimination in jury selection violates the defendant's right to the equal protection of the law. The Court held that a defendant in a criminal case may make a prima facie showing of purposeful racial discrimination in jury selection by showing: (1) that he is a member of a cognizable racial group; (2) that the prosecutor has exercised peremptory challenges to remove members of the defendant's race from the jury panel; and (3) that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude veniremen from the jury on account of their race. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. In addition, the defendant can rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who have a mind to discriminate. Id.

When a prima facie case of discrimination is determined, the burden shifts to the State to come forward with racially neutral explanations as to why peremptory challenges were exercised against veniremen of the same cognizable racial group as the defendant. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Hill v. State, 775 S.W.2d 754 (Tex.App.1989, pet. ref'd).

The courts of appeals have read Batson literally and have held a defendant cannot complain unless the excluded venireman is of the same race as the defendant. Easter v. State, 740 S.W.2d 107, 108-09 (Tex.App.1987, no pet.); Kline v. State, 737 S.W.2d 895, 899 (Tex.App.1987, pet. ref'd); Catley v. State, 726 S.W.2d 595, 597 (Tex.App.1987, pet. ref'd). The Court of Criminal Appeals has apparently left open the question of whether Batson prohibits cross-racial strikes. Salazar v. State, 795 S.W.2d 187 (Tex.Cr.App.1990).

Appellant appears to base his contention solely upon a state statutory provision. See Tex.Code Cr.P.Ann. art. 35.261 (1989).

Article 35.261 of the Code of Criminal Procedure provides:

(a) After the parties have delivered their lists to the clerk under Article 35.26 of this code and before the court has impanelled the jury, the defendant may request the court to dismiss the array and call a new array in the case. The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race. If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges. The burden of persuasion remains with the defendant to establish purposeful discrimination.

(b) If the court determines that the attorney representing the state challenged prospective jurors on the basis of race, the court shall call a new array in the case.

Appellant argues that the foregoing "code requirements" differ from Batson in that art. 35.261 does not require that the challenged veniremen and the defendant be of the same race. The appellant appears to rely upon that portion of the statute which requires the trial court to grant the defendant's motion to dismiss the array if the court determines that the defendant has offered evidence of relevant facts that tend to show that challenges to veniremen made by the attorney representing the State were made "on the basis of their race." The importance of this distinction between Batson and art. 35.261 is that the language of the statute appears to permit no strike by the State in which race played any part.

In Atuesta v. State, 788 S.W.2d 382, 384 (Tex.App.1990, pet. ref'd), the court stated that it was the duty of the prosecutor to explain his strikes under art. 35.261 where a Columbian national defendant challenged the prosecution's peremptory strikes against both black and Hispanic veniremen. In Atuesta, the trial court called upon the State to explain its strike of a single Hispanic venireman, not the black panel members who had been peremptorily challenged. The next day, after the jury had been sworn, the trial court permitted the prosecution to explain its reasons for striking three black veniremen. On appeal, the sufficiency of the prosecution's explanations for the strikes was not contested. The claimed error was that the trial court permitted the prosecution to give its explanations for striking the black veniremen after the jury was sworn. In holding that art. 35.261 did not limit the prosecution to making its explanation only before the jury is sworn, the court, without more than a look at its language, noted that art. 35.261, unlike Batson, "does not require the defendant to be of the same race as the challenged venire person."

In Oliver v. State, 787 S.W.2d 170, 173 (Tex.App.1990, pet. granted), the court held that the white defendant might be entitled to relief under art. 35.261 with regard to the State's use of peremptory challenges to exclude eight of nine black veniremen from the jury panel. The court observed the difference in the language between Batson and the statute and found no ambiguity in the statute to be construed. The interpretation is seemingly based on the face of the statute alone.

The most common thread running through competing rules for statutory construction is for the judiciary to attempt to effectuate the intent of the Legislature. Patterson v. State, 769 S.W.2d 938, 940 (Tex.Cr.App.1989).

Section 312.005 of the Government Code provides:

In interpreting a statute, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy.

See Tex.Gov't Code Ann. § 312.005 (1988).

Section 311.021 of the Government Code (Intention in Enactment of Statutes) provides:

In enacting a statute, it is presumed that:

(1) compliance with the constitutions of this state and the United States is intended;

(2) the entire statute is intended to be effective;

(3) a just and reasonable result is intended;

(4) a result feasible of execution is intended; and

(5) public interest is favored over any private interest.

See Tex.Gov't Code Ann. § 311.021 (1988).

Section 311.023 of the Government Code (Statute Construction Aids) provides:

In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the:

(1) object sought to be attained (2) circumstances under which the statute was enacted;

(3) legislative history;

(4) common law or former statutory provisions, including...