Hardin v. State, 44408

• Decision Date: 14 December 1971
• Docket Number: No. 44408,44408
• Citation: 475 S.W.2d 254
• Parties: Thomas Franklin HARDIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 254

475 S.W.2d 254

Thomas Franklin HARDIN, Appellant, v. The STATE of Texas, Appellee.

No. 44408.

Court of Criminal Appeals of Texas.

Dec. 14, 1971.

Rehearing Denied Feb. 9, 1972.

Phillip Bordages, Beaumont, for appellant.

Tom Hanna, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

This is an appeal from a conviction of robbery by assault. The jury assessed the punishment at thirty-five years.

The appellant's sole contention is that 'The Court should have permitted only challenges for cause thereby preventing the State from achieving an all-white jury through systematic exclusion of Negroes by peremptory challenges.'

Appellant is a Negro, and the victim of the robbery is a white police officer. The petit jury, which tried the issue of guilt, was drawn from a panel of thirty-six persons, five of whom were Negroes. Four of the five Negroes on the panel were stricken by the State on its peremptory challenges, and one was excused as the result of illness.

The record reflects that three practicing attorneys from Jefferson County testified at the hearing on appellant's motion for new trial. Two of the attorneys, Johns and Willard, are Negroes, and Griffin is a former district attorney of Jefferson county. Johns testified in the cases he had tried, where the defendant was a Negro and the victim was a white, that the Negores on the panel had been stricken by peremptory challenges, and that he had observed this in other cases in which he did not participate. On cross-examination, Johns stated, not knowing the District Attorney's mind, he was unable to say why the State struck the Negro people in the cases he was talking about. He further stated that such consideration as a person's intelligence, family background, economic status and occupation were sometimes considerations which influenced his exercise of peremptory challenges in cases he tried. The testimony of Willard, a law partner of Johns, reflects that he has tried many criminal cases; that all of his clients are Negroes, and in the cases where the injured party has been white and the defendant a Negro, the District Attorney has used his peremptory challenges to exclude members of the Negro race from juries. On cross-examination, he testified that he never struck a Negro from the jury panel for the reason that they relate better to people of their own race, and further that he considered intelligence, economic status, occupation, and probably religious background in selecting jurors. Like Johns, he testified that he had no personal knowledge why the District Attorney struck any particular jurors.

Griffin testified that, in his opinion, the State has used peremptory challenges to systematically exclude Negroes from the jury in cases where the defendant was a Negro. In cross-examination, the record reflects:

'Q So you are not saying the State excluded Negroes from the jury only where there was a color barrier?

'A I would not say that is the only time they excluded them or struck them. I am sure the State is like us; we try to get the best jury we think would be in our favor.'

It is undisputed that Negroes have served on petit juries in the trial of criminal cases in Jefferson County.

In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, the U.S. Supreme Court said:

'* * * we cannot hold that the striking of Negores in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and while, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor's challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterwards. The prosecutor's judgment underlying each challenge would be subject to scrutiny for...