Casarez v. State

• Citation: 857 S.W.2d 779
• Decision Date: 30 June 1993
• Docket Number: No. 2-91-401-CR,2-91-401-CR
• Parties: George Toby CASAREZ, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 779

857 S.W.2d 779

George Toby CASAREZ, Appellant, v. The STATE of Texas, State.

No. 2-91-401-CR.

Court of Appeals of Texas,

Fort Worth.

June 30, 1993.

William S. Harris, Fort Worth, for appellant.

Tim Curry, Criminal Dist. Atty., David Curl, Asst. Criminal Dist. Atty., Fort Worth, for state.

Before the court en banc. ^*

OPINION

WEAVER, Justice.

George Toby Casarez was convicted by a jury of aggravated sexual assault of a child. See TEX.PENAL CODE ANN. §§ 22.011, 22.021 (Vernon 1989). The jury assessed punishment at twelve years confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant brings ten points of error on appeal. We affirm.

By his first point of error, appellant attacks the State's peremptory strikes of two venirepersons. Appellant claims that such strikes violated the equal protection clause of the Fourteenth Amendment to the United States Constitution because they were made by the State on the basis of the venirepersons' religious faith, namely their membership in the Pentecostal faith.

This attack springs from occurrences in the trial following appellant's Batson ¹ objection. The two jury panel members here in question are black. At the Batson hearing the prosecutor gave racially neutral explanations for striking these two venirepersons. Among the reasons given for striking one member was that she had a brother currently in the Texas penitentiary, she was a postal clerk and she expressed discomfort with the law as it regards sexual assault of a child. Among the reasons given for striking the other member was that his brother had been arrested, he incorrectly completed his juror questionnaire, and the questioning during voir dire left the prosecutor with the impression that he was somewhat slow. The prosecutor also cited as a reason for striking each of the two members that they were Pentecostals. The prosecutor explained that in his experience, Pentecostals often have difficulty assessing punishment. The appellant offered no rebuttal evidence. Following the close of the prosecutor's testimony, the appellant's attorney raised the following objection: "I object to the exclusion by the State on peremptory grounds of both Ms. Burton and Mr. Gee because this decision is based in part on an impermissible reason, and that is their membership in the Pentecostal faith." Appellant's attorney then argued to the trial court that the Equal Protection Clause of the fourteenth amendment prohibits discrimination on the basis of race or religion, and the reason espoused by the prosecutor constitutes a violation of that amendment. The appellant argued that the State used an impermissible reason for striking these venirepersons, their religious faith. Based on that argument he asked the trial court to disqualify the panel and call another one.

The trial court simply denied the Batson challenge without making any reference to appellant's impermissible religious faith objections. The appellant does not attack the trial court's Batson ruling on this appeal. Instead, appellant limits his position under point of error one to the argument that the prosecutor's religious explanation was in and of itself an impermissible reason for exercising the peremptory strikes. Apparently, the appellant would have us apply an expanded version of Batson so as to hold that the religious explanation in this case tainted the jury panel without regards to racial considerations.

Traditional equal protection analysis is not appropriate when applied to peremptory challenges. The Batson decision itself did not apply traditional equal protection analysis; instead, Batson was based on a hybrid form of equal protection because its application was limited "to allegations of impermissible challenge on the basis of race ". Batson, 476 U.S. at 123, 106 S.Ct. at 1737 (Burger, C.J., dissenting) (emphasis in original). See also Perry v. State, 770 S.W.2d 950, 951-52 (Tex.App.--Fort Worth 1989, no pet.). As Chief Justice Burger noted, "if conventional equal protection principles apply, then presumably defendants could object to exclusions on the basis of not only race, but also sex, age, religious or political affiliation, mental capacity, number of children, living arrangements, and employment in a particular industry or profession." Batson, 476 U.S. at 124, 106 S.Ct. at 1737 (citations omitted) (emphasis added). According to the Chief Justice, "it is quite probable that every peremptory challenge could be objected to on the basis that, because it excluded a venireman who had some characteristic not shared by the remaining members of the venire, it constituted a 'classification' subject to equal protection scrutiny." Id. 476 U.S. at 124, at 1738. ² The proposition here urged by appellant would, in effect, seriously limit or perhaps do away with peremptory challenges altogether. This we decline to do. The United States Supreme Court refused to do so in the Batson case despite Justice Marshall's urging that peremptory challenges be eliminated. Batson, 476 U.S. at 101-08, 106 S.Ct. at 1726-29 (Marshall, J., concurring). Instead, the Batson majority recognized the importance of the peremptory challenge and sought to harmonize the conflict between peremptory challenges for which no reason must be stated and its new rule by limiting Batson's holding to instances of peremptory challenges based upon race alone. See id. 476 U.S. at 96, 106 S.Ct. at 1723.

Subsequent United States Supreme Court cases have also limited Batson's equal protection safeguards to instances of racial discrimination. See Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). Justice Powell, the author of the majority opinion in the Batson case, has explained that "[o]ur decision in Batson ... was justified by the compelling need to remove all vestiges of invidious racial discrimination in the selection of jurors, ..." Gray v. Mississippi, 481 U.S. 648, 672, 107 S.Ct. 2045, 2059, 95 L.Ed.2d 622, 642 (1987). Relying upon the "unique history of racial discrimination in this country," Justice O'Connor has also interpreted Batson narrowly. See Brown v. North Carolina, 479 U.S. 940, 941, 107 S.Ct. 423, 423-24, 93 L.Ed.2d 373, 374 (1986) (O'Connor, J., concurring in the denial of certiorari). Justice O'Connor explains that "Batson does not touch, indeed, it clearly reaffirms the ordinary rule that a prosecutor may exercise his peremptory strikes for any reason at all. Batson, in my view, depends upon this Nation's profound commitment to the ideal of racial equality, ..." Id. ³ (citation omitted).

As mentioned above, appellant does not attack the sufficiency of the State's racially neutral explanations on this appeal, and we are not asked to review the sufficiency of any of the explanations given, including whether any group bias explanation was proper with respect to the two Pentecostals who were struck from the panel. However, we observe that when religious affiliation has been challenged as a pretext to racial discrimination, the courts of our state have repeatedly held religious beliefs to be racially neutral reasons for striking potential jurors. See Earhart v. State, 823 S.W.2d 607, 624-25 (Tex.Crim.App.1991), vacated on other grounds, 509 U.S. 917, 113 S.Ct. 3026, 125 L.Ed.2d 715 (1993); Gerber v. State, 845 S.W.2d 460, 465 (Tex.App.--Houston [1st Dist.] 1993, pet. ref'd); Dixon v. State, 828 S.W.2d 42, 45-46 (Tex.App.--Tyler 1991, pet. ref'd); Salazar v. State, 745 S.W.2d 385, 389 (Tex.App.--Fort Worth 1987), rev'd on other grounds, 795 S.W.2d 187 (Tex.Crim.App.1990); Johnson v. State, 740 S.W.2d 868, 871 (Tex.App.--Houston [14th Dist.] 1987, pet. ref'd, untimely filed). See also United States v. De La Rosa, 911 F.2d 985, 990-91 (5th Cir.1990), cert. denied, 500 U.S. 959, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991). In those cases, the influence of a person's religious beliefs upon his or her ability to assess punishment was found to be related to the purpose of the trial, and thus, a racially neutral reason for striking the potential juror. See id. We believe those cases lend support to our holding in this case.

Because we do not find any authority supporting the extension of the Batson holding beyond the boundaries of racial discrimination, and because the United States Supreme Court has repeatedly and consistently limited the holding of Batson and its progeny to race, we decline to apply an expanded version of Batson to peremptory challenges made on the basis of a venireperson's religious affiliation. ⁴ Point of error one is overruled.

Points of error two through seven complain of two statements by the prosecutor allegedly commenting on the appellant's failure to testify at either the guilt/innocence or punishment phases of the trial. Points of error two, three, and four complain of a comment made during the closing argument of the guilt/innocence stage of trial. Points of error five, six, and seven complain of an objection made during the punishment hearing.

The failure of an accused to testify may not be the subject of comment by the prosecution. Montoya v. State, 744 S.W.2d 15, 34 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1227, 108 S.Ct. 2887, 101 L.Ed.2d 921 (1988). Such comment is in violation of the privilege against self-incrimination contained in article I, section 10 of the Texas Constitution and the express provisions of article 38.08 of the Texas Code of Criminal Procedure. In addition to violating the constitution and laws of Texas, a comment on the defendant's failure to testify constitutes a violation of the Fifth Amendment to the United States Constitution, which is made applicable to the states by the fourteenth amendment. Griffin v. California 380 U.S. 609, 611, 85 S.Ct. 1229, 1231, 14 L.Ed.2d 106, 108 (1965); Montoya, 744 S.W.2d at 34.

Appel...