Casarez v. State

• Decision Date: 14 December 1994
• Docket Number: No. 1114-93,1114-93
• Parties: George Toby CASAREZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 468

913 S.W.2d 468

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

No. 1114-93.

Court of Criminal Appeals of Texas En Banc.

Dec. 14, 1994.

Opinion Granting Rehearing

Dec. 13, 1995.

William S. Harris, Fort Worth, for appellant.

Tim Curry, Dist. Atty., and David M. Curl, Asst. Dist. Atty., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted of aggravated sexual assault and sentenced to twelve years confinement. Tex.Penal Code Ann. §§ 22.011 and 22.021. The Court of Appeals affirmed. Casarez v. State, 857 S.W.2d 779 (Tex.App.--Fort Worth 1993). We granted appellant's petition for discretionary review to determine whether the Equal Protection Clause of the Fourteenth Amendment prohibits the use of a peremptory challenge on the basis of religion. ¹ U.S. Const., amend. XIV. We will reverse.

I. THE INSTANT CASE

The State peremptorily challenged two black veniremembers. Appellant objected, contending the peremptory challenges were racially discriminatory and prohibited by Tex.Code Crim.Proc.Ann. art. 35.261 and Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The prosecutor contended the veniremembers were not struck on the basis of race, but on the basis of their Pentecostal religion. ² Appellant again objected, this time contending the use of a peremptory challenge on the basis of religion violates the Equal Protection Clause of the Fourteenth Amendment. The trial judge overruled the objection.

On appeal, appellant argued Batson 's application of the Equal Protection Clause should be expanded to include religion. The majority opinion of the Court of Appeals read appellant's point of error as being limited to whether religion was of itself an impermissible reason for exercising peremptory strikes. Casarez, 857 S.W.2d at 783. The majority reasoned the Supreme Court's limited application of the Equal Protection Clause to race-based peremptory challenges indicated an intent to confine Batson to race and overruled the point of error. Casarez, 857 S.W.2d at 783-784. ³

II. EQUAL PROTECTION AND JURY SELECTION

The Supreme Court first applied the Equal Protection Clause to the jury selection process in Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879). Strauder, a black man, was convicted by an all-white jury under a West Virginia statute which prohibited blacks from serving on grand or petit juries. Id., 100 U.S. at 304, 25 L.Ed. 664. Strauder contended the statute violated the Equal Protection Clause of the Fourteenth Amendment. Id. The Supreme Court agreed and held the statute unconstitutional:

... The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others ... [T]he statute of West Virginia, discriminating in the selection of jurors ... amounts to a denial of equal protection of the laws to a colored man when he is put upon trial for an alleged offense against the State.

Id., 100 U.S. at 308, 310, 25 L.Ed. 664. Importantly, Strauder restricted the application of the Equal Protection Clause to racially discriminatory practices affecting the composition of the venire. Id., 100 U.S. at 312.

A.

Almost a century later, the Supreme Court expanded the application of the Equal Protection Clause to peremptory challenges. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). The Court held the Equal Protection Clause prohibits the racially discriminatory use of peremptory challenges but required criminal defendants to show the "systematic use" of such peremptory challenges over a period of time. Id., 380 U.S. at 227, 85 S.Ct. at 839. Under the "systematic use" burden a defendant was required to compile evidence from multiple trials demonstrating a racially discriminatory pattern. Id., 380 U.S. at 225-27, 85 S.Ct. at 838-839.

B.

Twenty years later the Supreme Court discarded the "systematic use" requirement in the landmark case of Batson v. Kentucky, 476 U.S. 79, 95, 106 S.Ct. 1712, 1722, 90 L.Ed.2d 69 (1986). In Batson, the State used its peremptory challenges to exclude every black from the jury. Id., 476 U.S. at 82-83, 106 S.Ct. at 1715. Recognizing a defendant was rarely entitled to relief under the crippling burden of Swain, the Court held the Equal Protection Clause prohibited the use of racially discriminatory peremptory challenges in an individual trial. Id., 476 U.S. at 92-95, 106 S.Ct. at 1721-22. Thus, criminal defendants were allowed to enforce the Equal Protection Clause's prohibition of racial discrimination whenever the State exercised peremptory challenges in a racially discriminatory manner.

Accordingly ... the State's privilege to strike individual jurors through peremptory challenges, is subject to the commands of the Equal Protection Clause. Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, as long as that reason is related to his view concerning the outcome of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant. ⁴

Id., 476 U.S. at 89, 106 S.Ct. at 1719 (footnotes and citations omitted).

C.

Since Batson, the Supreme Court has expanded the scope and application of the Equal Protection Clause to the use of peremptory challenges. In Powers v. Ohio, 499 U.S. 400, 401-03, 111 S.Ct. 1364, 1366, 113 L.Ed.2d 411 (1991), the Court considered whether Batson required the excluded veniremembers to be of the same race as the defendant. Because the Equal Protection Clause prohibits racially discriminatory classifications, the defendant's race was irrelevant.

The Fourteenth Amendment's mandate that race discrimination be eliminated from all official acts and proceedings of the State is most compelling in the judicial system ... The statutory prohibition on discrimination in the selection of jurors ... makes race neutrality in jury selection a visible, and inevitable, measure of the judicial system's own commitment to the commands of the Constitution....

... Racial identity between the defendant and the excused person might in some cases be the explanation for the prosecution's adoption of the forbidden stereotype ... But to say that the race of the defendant may be relevant to discerning bias in some cases does not mean it will be a factor in others, for race prejudice stems from various causes and may manifest itself in different forms.

Id., 499 U.S. at 415-16, 111 S.Ct. at 1373-74.

In Edmonson v. Leesville Concrete, Co., the Supreme Court extended Batson's application of the Equal Protection Clause to civil trials. Edmonson v. Leesville Concrete, Co., 500 U.S. 614, 629-33, 111 S.Ct. 2077, 2088-2089, 114 L.Ed.2d 660 (1991). However, in order for the Equal Protection Clause to apply, civil litigants had to be classified as state actors. Id., 500 U.S. at 618-20, 111 S.Ct. at 2082. The Court determined civil litigants were state actors because the litigants "make extensive use of state procedures with the 'overt, significant assistance of state officials.' " Id., 500 U.S. at 622, 111 S.Ct. at 2083-84.

Further, the Court held civil litigants have third-party standing to challenge the peremptory challenges of another party because the potential juror is unable to defend his or her participatory right and the integrity of the verdict is cast into doubt. Focusing on the harm caused by racial discrimination the Court stated:

Race discrimination within the courtroom raises serious questions as to the fairness of the proceedings conducted there. Racial bias mars the integrity of the judicial system and prevents the idea of democratic government from becoming a reality ... If our society is to continue to progress as a multiracial democracy, it must recognize that the automatic invocation of race stereotypes retards that progress and causes continued hurt and injury.

Id., 500 U.S. at 628-31, 111 S.Ct. at 2087-2088.

In Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), the Supreme Court considered whether the Equal Protection Clause applied to the peremptory challenges of criminal defendants. The Court held criminal defendants, like civil litigants, constructively effect state action during voir dire because they wield the power to choose the jury, "the institution of government on which our judicial system depends." Id., 505 U.S. at 54, 112 S.Ct. at 2356. The Court then turned to the question of whether a criminal defendant's Sixth Amendment right to a fair trial and the criminal defendant's use of peremptory challenges defeated the State's third-party standing to raise a Batson issue. McCollum, 505 U.S. at 54-59, 112 S.Ct. at 2357-2359. In holding criminal defendants may not use peremptory challenges in a racially discriminatory manner, the Court focused on the "harm done to the dignity of persons and the integrity of the courts:"

We do not believe that this decision will undermine the contribution of the peremptory challenge to the administration of justice. Nonetheless, if race stereotypes are the price for acceptance of a jury panel as fair, we reaffirm today that such a price is too high to meet the standard of the Constitution ... The goal of the Sixth Amendment is jury impartiality with respect to both contestants.

Id., 505 U.S. at 58, 112 S.Ct. at 2358 (citations and...