Hinojosa v. State, 09-87-228

• Decision Date: 18 October 1989
• Docket Number: No. 09-87-228,09-87-228
• Citation: 780 S.W.2d 299
• Parties: Alberto Barrera HINOJOSA, Appellant, v. The STATE of Texas, Appellee. CR.
• Court: Texas Court of Appeals

Page 299

780 S.W.2d 299

Alberto Barrera HINOJOSA, Appellant, v. The STATE of Texas, Appellee.

No. 09-87-228 CR.

Court of Appeals of Texas Beaumont.

Oct. 18, 1989 Discretionary Review Refused (Appellant) Jan. 24, 1990 Discretionary Review Refused (State) Jan. 24, 1990.

Donald M. Brown, Conroe, for appellant.

Thomas D. Glenn, Conroe, for appellee.

Before DIES, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

BURGESS, Justice.

A jury found appellant guilty of delivery of more than five pounds but less than fifty pounds of marijuana by actual transfer and assessed punishment at fifteen years' confinement in the Texas Department of Corrections and a $5,000 fine. Appellant has perfected this appeal.

By his second and third points of error, appellant urges the state's attorney exercised peremptory challenges on the basis of race to exclude black prospective jurors in violation of appellant's rights as a member of an identifiable racial group, and his right to a jury comprised of a fair cross-section of the community under the sixth and fourteenth amendments of the United States Constitution. Appellant urges three distinct sources of authority to support these contentions.

First, appellant argues that even though he is a non-black hispanic person, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) allows him to show systematic exclusion of blacks from jury service by showing the prosecutor's peremptory strikes in this case were racially motivated. In order to invoke the protections set forth in Batson, a defendant must establish that:

1. he is a member of a cognizable racial group;

2. the prosecutor exercised peremptory challenges to remove from the venire members of the defendant's race; and

3. the facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to excuse the veniremen on account of their race.

Keeton v. State, 724 S.W.2d 58, 65 (Tex.Crim.App.1987). The record clearly reveals that appellant failed to meet the second of these requirements, because he is hispanic and his only complaint is blacks were struck for reasons of race. Therefore, the protections set out in Batson are not applicable to this case.

Appellant also argues a Texas statute affords him protections similar to those set out in Batson, regardless of whether the venire members peremptorily struck by the prosecutor for racial reasons were of the same racial group as appellant. TEX.CODE CRIM.PROC.ANN. art. 35.261 (Vernon 1989). Article 35.261 reads as follows:

Art. 35.261

. Peremptory Challenges Based on Race Prohibited.

(a) After the parties have delivered their lists to the clerk under Article 35.26 of this code and before the court has impaneled 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.

However, we need not decide whether article 35.261 requires a defendant to show the prosecutor used peremptory challenges to strike members of the defendant's race from the venire. The statute clearly requires a defendant who wishes to complain of racially motivated peremptory strikes to request that the trial court dismiss the array. This request must be made after the parties have delivered their strike lists to the clerk and before the court has impaneled the jury.

In the present case, appellant requested, prior to the commencement of voir dire, the trial court prohibit the prosecutor from using peremptories to exclude minority venire members for reasons of their race. The trial court stated it felt such use of peremptories was improper, but would take no action on the request until after the parties had made their peremptory strikes. After the parties delivered their strike lists to the clerk, the trial court reconsidered the appellant's request. The court ascertained appellant was a hispanic person and he was complaining the prosecutor struck black venire members because of their race. The trial court heard argument from both parties and determined Batson did not apply. Appellant never mentioned any other authority than Batson v. Kentucky, supra, during these arguments. The trial court clearly stated the reason he decided Batson was inapplicable was appellant was complaining the prosecutor struck venire members of an identifiable racial group to which appellant did not belong. Appellant still did not urge such strikes by the prosecutor violated any right other than those protected under the United States Constitution under authority of Batson v. Kentucky, supra.

The trial judge then seated the jury according to all the peremptory challenges and challenges for cause exercised by the parties. The jury so selected was sworn without objection from appellant, at no time prior to the impaneling of the jury did appellant request that the trial court dismiss the array as required by article 35.261. Therefore, we hold appellant failed to properly preserve any error the trial court may have committed with regard to the peremptory challenges exercised by the prosecutor which may have been based upon the race of the venire members. Therefore, appellant's second and third point of error are overruled.

By his first point of error appellant urges that the trial court erred in excluding evidence of the true criminal record of a state's witness after the state's attorney deliberately planted a false impression in the minds of the jurors that he had no criminal record. Arthur Narvaiz, appellant's co-defendant, testified T.J. Vaughn asked him to obtain fifty pounds of marijuana. Narvaiz testified he contacted appellant for the purpose of obtaining the marijuana. Narvaiz testified appellant later told him the marijuana would be available for transfer at a certain address in Conroe on the evening of April 20, 1987. The address was shown to be the home of Israel Gomez, another co-defendant. Narvaiz stated appellant agreed to pay him fifty dollars per pound transferred as compensation for his part in the transaction. Narvaiz testified that when he, Vaughn, and I.E. Jordan went to Gomez's house on the night of April 20, 1987, appellant and Gomez took them to Gomez' garage where three large bales of marijuana were located. He testified appellant discussed the terms of the deal with Jordan, took the money Jordan offered and made the bales available for Jordan to remove by truck.

During direct examination of Narvaiz, the prosecutor asked the following question:

[PROSECUTOR]: Prior to this offense had you ever been convicted in this state or any other state of a felony offense or an offense involving moral turpitude?

Narvaiz answered in the negative. During cross-examination appellant's attorney attempted to question Narvaiz concerning his previous arrest and conviction in federal court for the offense of unlawfully transporting illegal aliens into the United States. The trial court refused to allow such cross-examination because Narvaiz testified he had successfully completed the probationary sentence the federal court had assessed. The prosecutor stipulated that the offense of which Narvaiz had been found guilty was a felony. While the state is correct in asserting the witness' prior conviction was not admissible under TEX.R.CRIM.EVID. 609, the very authority the state cites acknowledges an exception to rule 609 which is applicable to this case. See Prescott v. State, 744 S.W.2d 128 (Tex.Crim.App.1988). In that case the court of criminal appeals stated:

An exception to this general rule arises when a witness, during direct examination, leaves a false impression as to the extent of either his prior (1) arrests (2) convictions (3) charges or (4) "trouble" with the police.

It is, therefore, still the law that where such a false impression as to a witness' criminal history is given to the jury on direct examination, the opposing party is entitled to elicit testimony from the witness which will correct the false impression. This exception to the inadmissibility for impeachment purposes of prior convictions resulting in probated sentences which have been successfully completed was applied in Trippell v. State, 535 S.W.2d 178 (Tex.Crim.App.1976). In Trippell, the witness portrayed himself on direct examination as a law-abiding citizen attempting to help police out of a sense of civic duty. The court of criminal appeals found the trial court committed reversible error in excluding evidence showing the witness had previously been convicted of an assault on a woman even though the witness had successfully completed his probated sentence for such offense.

In the present case, the state argues since Narvaiz had no prior conviction ordinarily usable for impeachment, his negative answer to the prosecutor's question did not "open the door" to evidence of the prior conviction. We find this argument to be entirely without merit. The average juror is unaware of the technicalities of the rules of evidence. Therefore, Narvaiz' testimony left the impression he had never been convicted of a felony. This impression was patently false. Furthermo...