Hutchinson v. State

• Decision Date: 27 March 2001
• Docket Number: No. 06-00-00044-CR,06-00-00044-CR
• Citation: 42 S.W.3d 336
• Parties: (Tex.App.-Texarkana 2001) CLYDE T. HUTCHINSON, JR., Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 336

42 S.W.3d 336 (Tex.App.-Texarkana 2001)

CLYDE T. HUTCHINSON, JR., Appellant v. THE STATE OF TEXAS, Appellee

No. 06-00-00044-CR

In The Court of Appeals Sixth Appellate District of Texas at Texarkana.

Submitted March 12, 2001.

Decided March 27, 2001.

On Appeal from the 71st Judicial District Court Harrison County, Texas Trial Court No. 99-0129 X [Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.

Opinion by Chief Justice Cornelius.

OPINION

Clyde Hutchinson appeals from his conviction for burglary of a building. Hutchinson was tried before a jury which found him guilty and, after Hutchinson pleaded true to enhancements in the indictment, assessed his punishment at twenty years in prison. Hutchinson filed a motion for new trial which the trial court denied. In four points of error, Hutchinson contends that the trial court erred: 1) by denying his Batson challenge to the State's exercise of its peremptory challenges, and 2) by denying his motion for new trial. He also challenges the legal and factual sufficiency of the evidence to support his conviction.

Hutchinson was employed at the Pottery Tent in Marshall from November 1998 until April 1999. Due to health problems, Hutchinson was unable to continue his work as a stock handler. At the end of July, the store's management began noticing that certain items were missing from the store. The assistant manager, Glenwood Oney, set up a video camera to surveil the store after closing. One of the tapes showed an individual in the store after normal business hours, carrying merchandise. Mr. Oney viewed the tape with Paul Herrington, the store manager, and the two decided that the person on the surveillance film was Hutchinson. They based their opinion on the person's physical characteristics and similarities to Hutchinson. Herrington took the video to Jeff Ash at the Harrison County Sheriff's Department and told him of his belief that Hutchinson had been stealing from the Pottery Tent. During his investigation, Ash visited Hutchinson's house and found numerous items that allegedly were removed from the store.

In his first point of error, Hutchinson contends that the trial court erred by overruling his objection to the State's use of peremptory challenges to strike five of seven African-Americans from the venire. In Batson v. Kentucky, the United States Supreme Court held that the Equal Protection Clause of the United States Constitution forbids a prosecutor from challenging potential jurors solely on account of their race or on the assumption that jurors of the same race as a defendant, as a group, will be unable to impartially consider the State's case against that defendant. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In determining whether Hutchinson's rights have been violated under the Batson holding, the standard of review is whether a trial court's finding is clearly erroneous. Whitsey v. State, 796 S.W.2d 707, 726 (Tex. Crim. App. 1989).¹ As a reviewing court, we are no longer obliged to consider the evidence in the light most favorable to the trial judge's rulings to determine if those rulings are supported by the record.² Rather, under Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)), as a court of appeals we hold a trial court's finding clearly erroneous when "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Additionally, we are not bound by the rule of deference to accept every ruling of a trial court, especially when there is no specific finding of fact. Yarborough v. State, 947 S.W.2d 892, 896 (Tex. Crim. App. 1997).

In order to invoke the protection set forth in Batson, a defendant must raise an inference of purposeful discrimination, and the trial court must determine that a prima facie case of discrimination exists by virtue of the State's use of its peremptory challenges.³ A defendant may establish this by showing: that he is a member of a cognizable racial group, that the prosecutor has exercised peremptory challenges to remove members of the defendant's race from the venire, and that these facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude members of the venire because of their race. Tex. Code Crim. Proc. Ann. art. 35.261(a) (Vernon 1989); Batson v. Kentucky, 476 U.S. at 96; Brooks v. State, 802 S.W.2d 692, 694 (Tex. Crim. App. 1991). A Batson inquiry entails a three-step process. Batson v. Kentucky, 476 U.S. at 106; Chambers v. State, 866 S.W.2d 9, 23 (Tex. Crim. App. 1993). First, the opponent of a peremptory challenge must make a prima facie case of racial discrimination. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834, 839 (1995); Williams v. State, 937 S.W.2d 479, 485 (Tex. Crim. App. 1996). Then the burden shifts to the proponent of the strike to come forward with a race-neutral reason for the challenge. Id.⁴ Finally, if a race-neutral reason is given, the opponent of the strike shoulders the burden of proving intentional discrimination. Id. Whether the trial judge believes a proffered race-neutral reason is a step-three inquiry, and the opponent of the strike bears the burden of showing that the reason offered is merely a pretext for discrimination.

The issue of whether Hutchinson established a prima facie case of racial discrimination is unchallenged on appeal.⁵ Accordingly, our review begins at the second step of the Batson analysis. A review of the record illustrates the following sequence of events. Shortly after the court dismissed jurors for cause, defense counsel asked the court to let the record reflect that the State excused five of seven African-Americans on the panel. The court responded in the affirmative and called on the prosecutor to respond. The prosecutor then proceeded to give race-neutral reasons for its decision to challenge four of the five panelists who were challenged. The prosecutor explained that a person at the same address as panelist #17 had a criminal history; panelist #21 contacted the defense counsel for legal advice; panelist Joe Robertson executed a hot check in 1990; and panelist Ms. Singleton stated that a punishment of twenty years was "too much time for the offense," and a person named James Singleton, an occupant at the same address, had been arrested for possession of a controlled substance. At the conclusion of the State's presentation of the fourth race-neutral basis for its peremptory challenges, the court denied Hutchinson's Batson motion. The prosecutor did not give any explanation for his strike of the fifth challenged panelist.

On appeal, Hutchinson does not challenge the propriety of the race-neutral bases proffered by the State for the first four challenged panelists, but he contends that the State wholly failed to provide a similar response for the fifth challenged venireman. Hutchinson thus argues that the State did not fulfill its burden to demonstrate that the exercise of its peremptory strike was not racially motivated.⁶ The fact that the State neglected to offer a fifth race-neutral basis precludes the Batson analysis from proceeding any further. In Brooks, the Court of Criminal Appeals held that where the State did not meet its minimum requirement of coming forward with specific reasons for challenging two African-American veniremen, which the court could find nondiscriminatory, the trial court's finding regarding the two challenged venirepersons was clearly erroneous. Brooks v. State, 802 S.W.2d at 695.⁷ Based on the State's failure to meet its burden of producing permissible race-neutral justifications, the Court of Criminal Appeals reversed and remanded to the trial court for a new trial. Id. A little over a year later, the Court of Criminal Appeals faced this same issue in Wright v. State, 832 S.W.2d 601, 604-05 (Tex. Crim. App. 1992). Again the Court held that the failure of the State to articulate any specific reason, race-neutral or otherwise, rendered the trial court's determination as to the particular veniremember in question clearly erroneous. Id. at 605. Despite these two authoritative holdings, the Tyler Court of Appeals held that a prosecutor's failure to proffer race-neutral reasons for four of thirteen challenged veniremen did not show that the trial court's determination of no racial discrimination was clearly erroneous. See McGee v. State, 909 S.W.2d 516, 520-21 (Tex. App.-Tyler 1995, pet. ref'd). The State relies heavily on McGee for the proposition that we should follow the Tyler court's disposition of a case having an analogous fact situation. However, because the parties did not complete the evidence at the Batson hearing as to all the challenged panelists, we deemed it the better procedure to abate this appeal and remand the case to the trial court to complete the Batson hearing, and to hear evidence and make written findings on whether the omitted panelist was struck for racially discriminatory reasons.⁸

The trial court has now held an evidentiary hearing and made written findings of fact and conclusions of law on whether the State used a peremptory challenge for race-based reasons against the fifth panelist, and has filed those findings and conclusions with this Court by means of a supplemental clerk's record. The court found, based on testimony, that the fifth panelist was Roderick Dixon, and the prosecutor struck Dixon because he had previously sought legal advice from Hutchinson's attorney. The court thus found, and the record supports, that the omitted panelist was struck for a nonracial reason. The court's denial of Hutchinson's Batson challenge was therefore not error.

In his third point of error, Hutchinson contends that the evidence is legally...