Ex parte Robertson, NO. WR-30,077-01

CourtTexas Court of Criminal Appeals
Writing for the CourtPER CURIAM.
Citation603 S.W.3d 427 (Mem)
Docket NumberNO. WR-30,077-01
Decision Date01 July 2020
Parties EX PARTE Mark ROBERTSON, Applicant

603 S.W.3d 427 (Mem)

EX PARTE Mark ROBERTSON, Applicant

NO. WR-30,077-01

Court of Criminal Appeals of Texas.

JULY 1, 2020


ORDER

Per curiam.

We have before us a suggestion that the Court reconsider on its own motion Applicant's 1997 application for a writ of habeas corpus.

In 1991, a jury found Applicant guilty of the August 1989 capital murder of 81-year-old Edna Brau (murder in the course of committing or attempting to commit robbery). The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set Applicant's punishment at death.1 This Court affirmed Applicant's conviction and sentence on direct appeal. Robertson v. State , 871 S.W.2d 701 (Tex. Crim. App. 1993).

In his initial application for a writ of habeas corpus filed in 1997, Applicant raised six claims. In his second claim, Applicant alleged that his trial counsel "did not want African-Americans on the jury" and reached an agreement with the prosecution to excuse African-American venire members. Consequently, Applicant maintained, all of the African-American venire members were excused and he stood trial before an all-Caucasian jury. He argued that counsel's actions violated "the principles of Batson v. Kentucky "2 and his Sixth Amendment right to effective counsel. The trial court held an evidentiary hearing in 1997 to address this claim and other matters. In 1998, the trial court entered findings of fact and conclusions of law finding that Applicant failed to prove the existence of the alleged agreement by a preponderance of the evidence and recommended that this Court deny relief. This Court adopted the trial court's findings and denied relief on all of Applicant's claims. Ex parte Robertson , No. WR-30,077-01 (Tex. Crim. App. Nov. 18, 1998) (not designated for publication).

603 S.W.3d 428

Applicant filed a subsequent writ application, and this Court ultimately granted him relief on punishment because he had received an unconstitutional nullification issue at trial. Ex parte Robertson , No. AP-74,720, 2008 WL 748373 (Tex. Crim. App. Mar. 12, 2008) (not designated for publication). After the completion of a new punishment trial, a jury answered the special issues submitted pursuant to Article 37.0711, and the trial court, accordingly, set Applicant's punishment at death. This Court affirmed Applicant's sentence on direct appeal. Robertson v. State , No. AP-71,224, 2011 WL 1161381 (Tex. Crim. App. Mar. 9, 2011) (not designated for publication). This Court denied Applicant relief on his initial habeas application filed after his new death sentence. Ex parte Robertson , No. WR-30,077-03, 2013 WL 135667 (Tex. Crim. App. Jan. 9, 2013) (not designated for publication).

In April 2019, Applicant filed a motion to stay his execution and a suggestion that we reconsider, on our own motion, his 1997 writ application in light of new legal authority. See, e.g., Pena-Rodriguez v. Colorado , ––– U.S. ––––, 137 S. Ct. 855, 197 L.Ed.2d 107 (2017) ; Buck v. Davis , ––– U.S. ––––, 137 S Ct. 759, 197 L.Ed.2d 1 (2017) ; Ripkowski v. State , 61 S.W.3d 378, n.48 (Tex. Crim. App. 2001). On April 8, 2019, we entered an order staying Applicant's execution pending a further order from this Court.

On our own initiative, we now re-open Applicant's -01 writ application to reconsider his Batson claim. See TEX. R. APP. P. 79.2(d) (providing that a motion for rehearing a denial of habeas corpus relief "may not be filed"; however, "[t]he Court may on its own initiative reconsider the case").3 This is an "unusual" measure that we undertake only under extraordinary circumstances. See Ex parte Moreno , 245 S.W.3d 419, 420, 427 (Tex. Crim. App. 2008).

We remand this case to the convicting court for further fact finding regarding Applicant's second ground for relief. On remand, the trial court shall obtain an official court reporter's transcript and all exhibits from the 1997 evidentiary hearing and all other evidence filed during Applicant's initial-writ proceedings related to his second ground. The trial court shall also attempt to locate other relevant evidence from Applicant's 1991 trial, including the venire members' questionnaires and any agreements executed by counsel during jury selection. The trial court may allow the parties to submit additional briefing and evidence and present live testimony, if the court deems it necessary. The trial court shall enter new findings of fact and conclusions of law regarding Applicant's second ground in light of legal authorities, the parties's pleadings, and all of the relevant evidence and information in this habeas case.

The trial court shall complete its fact finding and enter findings of fact and conclusions of law within 120 days of the date of this order. Immediately after the habeas judge signs the findings of fact and conclusions of law, the district clerk must forward to this Court a supplemental record containing the findings and conclusions, all materials received by the trial court, and transcripts of any hearings. The habeas judge must obtain any extensions of time from this Court.

603 S.W.3d 429

IT IS SO ORDERED THIS THE 1ST DAY OF JULY, 2020.

Newell, J., filed a concurring opinion.

Keller, P.J., filed a dissenting opinion in which Keel, J., joined.

Yeary and Slaughter, JJ., dissent.

Newell, J., filed a concurring opinion.

Racially-motivated peremptory strikes during jury selection not only affect a defendant's rights, they also deprive a community of its voice in a criminal trial.1 At the core of the United States Supreme Court decision in Batson v. Kentucky prohibiting such practices is the holding that "one racially discriminatory peremptory strike is one too many."2 In this case, both the defendant and the prosecution appear to have colluded to exclude thirty-three African-Americans from the jury pool, six of whom were excluded without questioning. Given the stakes, I agree with the Court's decision to reconsider its previous holding on this issue and remand the case to the habeas court for more development. But I write separately because I am not convinced that the United States Supreme Court will regard the law in this area as clear cut, even if this claim is regarded as an ineffective assistance of counsel claim rather than a stand-alone Batson claim.

Even though Batson is often thought of as a case that merely prevents the prosecution from exercising peremptory challenges in a racially discriminatory manner, its holding was also concerned with ending racial discrimination in the jury selection process as a matter of equal protection.3 The Supreme Court has made clear that it does not matter if the defendant is of a different race than the excluded juror.4 The use of race to prevent someone from serving on a jury is so abhorrent that the Supreme Court has recognized that the prosecution may raise a Batson challenge against a defendant who tries to exclude a potential juror based upon race.5 I question whether the Supreme Court would hold, even in this case, that the interests served by Batson must give way to the rights of the criminal defendant.6

As the Supreme Court recently explained, the core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless if the Court were to approve the exclusion of jurors on the

603 S.W.3d 430

basis of race.7 Further, the Court emphasized that discrimination against one defendant or juror on account of race is not remedied or cured by discrimination against other defendants or other jurors on account of race.8 As the Court has explained, "Selection procedures that purposefully exclude [African-American] persons from juries undermine public confidence in the fairness of our system of justice."9 Holding that the collusion in this case was neither harmful nor prejudicial would seem to undermine the Supreme Court's understanding of Batson and it progeny.

Further, I am not convinced that the Supreme Court would resolve the tension between "structural error" and the prejudice prong of an ineffective assistance analysis in the same way that it did in Weaver v. Massachusetts .10 Though the Supreme Court seems to have drawn the same distinction regarding structural error on direct appeal and ineffective assistance of counsel claims we drew in our own precedent Batiste v. State ,11 the right at issue in Weaver was qualitatively different. It's possible, in a situation like the one presented in Weaver , to determine that a defendant was not prejudiced by the failure to raise a denial of a public trial claim when the violation occurred during two days of voir dire and only involved the exclusion of two spectators.12

But Batson claims involve the denial of the rights of the jurors to participate in civic life. According to the Supreme Court, structural error is either an error that defies a harm analysis, or possibly, an error of such magnitude that it causes fundamental unfairness, either to the defendant in a specific case or by pervasive undermining of the systemic requirements of a fair and open judicial process.13 Excluding the defendant's mother and her minister from two days of voir dire certainly doesn't seem to fit in the latter category.14 Collusion...

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1 practice notes
  • Ex parte Roy, WR-41
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 27, 2022
    ...face of a reasonable and good faith argument that our disposition on original submission was incorrect"); see also Ex parte Robertson, 603 S.W.3d 427, 428 (Tex. Crim. App. 2020) (describing the re-opening of an earlier disposed-of writ application as "an 'unusual' measure that we undertake ......
1 cases
  • Ex parte Roy, WR-41
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 27, 2022
    ...face of a reasonable and good faith argument that our disposition on original submission was incorrect"); see also Ex parte Robertson, 603 S.W.3d 427, 428 (Tex. Crim. App. 2020) (describing the re-opening of an earlier disposed-of writ application as "an 'unusual' measure that we undertake ......

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