Hill v. State

• Citation: 827 S.W.2d 860
• Decision Date: 08 January 1992
• Docket Number: No. 347-90,347-90
• Parties: Michael Lee HILL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 860

827 S.W.2d 860

Michael Lee HILL, Appellant, v. The STATE of Texas, Appellee.

No. 347-90.

Court of Criminal Appeals of Texas En Banc.

Jan. 8, 1992.

Rehearing Denied April 15, 1992.

Lawrence G. Boyd, Dallas, for appellant.

John Vance, Dist. Atty., and Jeffrey Brian Keck, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

Michael Lee Hill, appellant herein, was convicted by a jury of aggravated robbery. V.T.C.A., Penal Code, Section 29.03. He was sentenced by the trial court to confinement for sixty years in the Texas Department of Criminal Justice, Institutional Division. Appellant appealed to the Court of Appeals alleging that the trial court erred in denying his claim that the State violated the rule of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and article 35.261 of the Texas Code of Criminal Procedure, by exercising a peremptory challenge against a black venireman in a racially discriminatory manner. The Court of Appeals reversed the conviction on the basis of appellant's claim. Hill v. State, 787 S.W.2d 74 (Tex.App.--Dallas 1990).

The State filed a petition for discretionary review raising three grounds: (1) appellant's claim was not timely; (2) appellant did not establish a prima facie case of purposeful discrimination; and (3) the Court of Appeals applied the wrong appellate standard of review in determining the correctness of the trial court's finding that the prosecutor provided a race-neutral explanation for striking a prospective juror. We granted the State's petition on all three grounds. We will affirm.

In Batson, the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution "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 to impartially consider the State's case against a black defendant." Batson, 476 U.S. at 89, 106 S.Ct. at 1719.

In this case, there were five African-Americans on the venire. Two of the five were at the end of the panel and, thus, were not reached. Of the remaining three, two women sat on the jury and one male was peremptorily challenged by the prosecutor. When the appellant objected to the exclusion of the black male on the basis of Batson and article 35.261 of the Texas Code of Criminal Procedure, (V.A.C.C.P.), the prosecutor responded that he challenged the venireman "because I felt like he would identify with the defendant. He's black, he's male, and I didn't like the way he responded to my questions." The trial court overruled appellant's objection. The Court of Appeals reversed, holding that the prosecutor violated the equal protection clause of the United States Constitution and also violated article 35.261, V.A.C.C.P., by exercising a peremptory challenge against a black venireman on the basis of his race.

I. WAS APPELLANT'S CLAIM UNDER ART. 35.261, V.A.C.C.P. TIMELY?

Appellant voiced his objection after the venire was discharged but before the jury was sworn. The State alleges that appellant's claim should be dismissed as untimely under the authority of Henry v. State, 729 S.W.2d 732, 737 (Tex.Cr.App.1987), where this Court held that a Batson objection must be made "after the composition of the jury is made known but before the jury is sworn and the venire panel is discharged." ¹ Subsequent to the Henry decision, however, the legislature enacted article 35.261, specifying that a Batson objection In Batson, the Supreme Court did not specify the procedural mechanism for a Batson-based objection, explaining that

                can be timely interposed "[a]fter the parties have delivered their lists [of peremptory challenges] ... and before the court has impanelled the jury."  Art. 35.261(a), V.A.C.C.P.  Both Henry and article 35.261(a) require that the objection be made before the jury is impanelled, but only Henry requires that it also be made before the venire panel is discharged.  Appellant contends that the time requirements of article 35.261 govern, not those set out in Henry.   We agree with appellant
                

[i]n light of the variety of jury selection practices followed in our state and federal trial courts, we make no attempt to instruct these courts how best to implement our holding today. For the same reason, we express no view on whether it is more appropriate in a particular case, upon a finding of discrimination ... for the trial court to discharge the venire and select a new jury from a panel not previously associated with the case ... or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire. [citations omitted].

Batson, 476 U.S. at 100 n. 24, 106 S.Ct. at 1725, n. 24.

To codify and implement Batson in Texas, the legislature enacted article 35.261, V.A.C.C.P. Oliver v. State, 808 S.W.2d 492 (Tex.Cr.App.1991); Carrion v. State, 802 S.W.2d 83, 87-88 (Tex.App.--Austin 1990). We have held that article 35.261 was "intended to create uniform procedures and remedies to address claimed constitutional violations during jury selection." Oliver, at 496. Therefore, whenever a claim is made that veniremembers were peremptorily challenged on the basis of their race, article 35.261 must be followed.

Article 35.261, V.A.C.C.P., provides:

(a) After the parties have delivered their lists [of peremptory challenges] to the clerk ... 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.

The Court of Appeals held that, in light of the express provisions of article 35.261, Henry, "no longer governs the timeliness of a challenge." Hill, 787 S.W.2d at 76.

In Henry, 729 S.W.2d at 737, this Court pointed out that requiring the objection to be made before the jury is sworn and the panel is discharged allows the trial court the option of remedying the violation by either installing the challenged veniremember to the jury or discharging the jury and calling a new array. It was also suggested in Henry that when and if a remedy is eradicated, the accompanying timeliness requirements should be modified.

We have examined the legislative history of Texas House Bill 65 and Texas Senate Bill 345, 70th Legislature, and find that in enacting article 35.261, the legislature considered both of the possible remedies suggested in Henry and held numerous hearings and debates to determine which remedy was best. Ultimately, they elected to As we noted in Henry, when the only possible remedy is the call of a new array, the objection to the strike need not be lodged before the venire is discharged since the venire will no longer be needed whether the objection is sustained or not. ² When the legislature speaks to an issue subsequent to this or any other court's decision on the issue, and the effect of the legislation is to modify existing caselaw, the statute shall control unless it is unconstitutional. ³

have the sole remedy be the call of a new array. This remedy was chosen to eliminate any possible bias toward the State which might exist if the remedy were to seat a venireman whom the State had just struck. The Senate countered House Bill 65, requiring the impanelment of a new array as a remedy, with Senate Bill 345 which would leave it to the trial court's discretion to either call a new array or reseat the improperly struck venireman. See Senate Committee on Criminal Justice Debate of Senate Bill 345, February 21, 1989. This bill was defeated and the original House version (House Bill 65) became article 35.261. Thus, the legislature clearly rejected the requirement that the objection be made before the venire is discharged. Art. 35.261(b), V.A.C.C.P.

The State alleges that this Court has already interpreted article 35.261 to include the Henry time limits and that, since the legislature has not acted to amend the statute to specifically exclude those time requirements, we should continue to apply them. ⁴ The State relies on this Court's decisions in Brown v. State, 769 S.W.2d 565 (Tex.Cr.App.1989) and Cooper v. State, 791 S.W.2d 80 (Tex.Cr.App.1990). But these cases do not support the State's argument. Brown's trial occurred prior to the effective date of article 35.261 and, therefore, Henry was applicable to his trial. Although Cooper's trial did occur after the effective date of article 35.261, we noted that the statute was "not mentioned by the parties or the Court of Appeals." Cooper, 791 S.W.2d at 81. Thus, we were not called upon to interpret the effect of article 35.261 in that case.

We now hold that Henry is inapplicable to the timeliness of any equal protection claim arising from the racially discriminatory exercise of a peremptory challenge after the effective date of article 35.261. Since appellant's trial occurred after the effective date of article 35.261, the provisions of article 35.261 apply. For...