Keeton v. State

• Decision Date: 06 April 1988
• Docket Number: No. 69639,69639
• Citation: 749 S.W.2d 861
• Parties: Perry KEETON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 861

749 S.W.2d 861

Perry KEETON, Appellant, v. The STATE of Texas, Appellee.

No. 69639.

Court of Criminal Appeals of Texas En Banc.

April 6, 1988.

William L. Smith, Corsicana, for appellant.

Patrick C. Batchelor, Dist. Atty., Corsicana, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION FOLLOWING ABATEMENT

MILLER, Judge.

Appeal was taken from a conviction for capital murder. V.T.C.A. Penal Code, § 19.03. After finding appellant guilty, the jury returned affirmative findings to the special issues under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death. We issued one opinion reforming the punishment in the judgment to life and affirming the case, and then granted rehearing on our own motion and abated the appeal for a trial court hearing concerning the prosecutor's use of peremptory strikes. Keeton v. State, 724 S.W.2d 58(Tex.Cr.App.1987). The trial court conducted a hearing and returned findings of fact and conclusions of law to this Court. The transcription of the hearing, however, was not forwarded. We issued an unpublished order on May 27, 1987, requesting that the notes taken during the hearing, if any, be transcribed and sent to this Court.

The record of the hearing has been sent as requested. Thus, we are now equipped to dispose of appellant's fifth point of error, wherein he claims that the trial court erred in allowing the prosecutor to exercise peremptory strikes against members of appellant's race in violation of appellant's constitutional rights as set forth in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), (hereinafter cited as Batson ).

As stated in Keeton, supra at 65, once the defendant has established a prima facie case of discrimination regarding the State's use of its peremptory strikes, the burden shifts to the State to come forward with a neutral explanation for the challenges. The trial court then has the duty to consider the evidence and determine whether the explanations are sufficient.

PROCEEDINGS IN THE TRIAL COURT

In the case before us, the State exercised three peremptory strikes against members of appellant's race. One black person did serve on the jury. We will consider the State's explanation regarding each strike.

William Littleton was the first prospective juror struck by the State. After appellant's counsel objected to the prosecutor's use of a peremptory strike against Littleton, the following testimony was given by the prosecutor: ¹

"I am Pat Batchelor. I'm Criminal District Attorney of Navarro County, Texas. I am representing the State in this cause number against Perry Keeton.

I have just examined William Alexander Littleton in this case and have exercised a preemptory [sic] strike against Mr. Littleton. The reasons that I did exercise that strike against Mr. William Alexander Littleton was that on the 12th day of October, 1974, in Cause No. 17,099, in the County Court of Navarro County, Texas, Mr. Littleton was convicted of transporting whiskey and wine in a dry area. He plead guilty to that and was found [guilty] by the Court of that offense.

Also in Cause No. 17,438 on December the 17th, 1975, this prospective venireman, Mr. William Alexander Littleton, was convicted of sale of whiskey in a dry area in Cause No. 17,438.

Also on December the 17th, 1975, this prospective venireman, Mr. William A. Littleton, was convicted of sale of whiskey in cause No. 17,437 in the County Court of Navarro County, Texas.

I exercised my right to preemptorily [sic] challenge Mr. Littleton based solely upon these prior misdemeanor convictions and run-ins with the law and did not exercise that challenge because Mr. Littleton was of any particular race, color or creed."

At the Batson hearing, the prosecutor stated that he used a peremptory strike against Littleton because:

"[I]t was my feeling that because of these prior convictions and contacts at and by my office, he could not be fair to the State of Texas."

The second prospective juror struck by the State was Jeanetta Chaney. The record of her voir dire examination revealed that Chaney was well acquainted with appellant and his mother. She indicated that she would have trouble making a decision concerning the death penalty in this case because appellant was related to her daughter and was "kind of like in the family."

After the prosecutor exercised a peremptory strike against Chaney, appellant's counsel objected. [See footnote 1, supra.] The prosecutor again was sworn in as a witness and testified as follows:

"I am Pat Batchelor. I'm the Criminal District Attorney in Navarro County Texas. I will be representing the State in the case of 'The State of Texas versus Perry Keeton.'

I have examined the prospective venireperson Jenetta [sic] Chaney and I did exercise a preemptory [sic] challenge on behalf of the State. The reason that I exercised that preemptory [sic] challenge was because of her knowledge of and relationship with the family of the Defendant and the statement that she felt like that the Defendant was on a level with one of her sons and that they were related in some fashion, that I was unable to ascertain the exact degree of relationship, but she felt it was somewhat of a close relationship from the impression that I got.

The reason that I exercised a preemptory [sic] challenge is I felt that this would cause her undue stress to serve on this jury and have to make a decision of life or death with somebody that she obviously was this close with and had absolutely nothing to do with the fact that she was black and I did not strike her because of her race, color or creed."

During the Batson hearing, the prosecutor stated that this prospective juror was struck because:

"... the Defendant had too close a tie to the--that the prospective venireman had too close a relationship to the Defendant to be completely fair to the State of Texas and the people of Navarro County in making a decision in this case."

Tommy Crosby was the third prospective juror struck. The record of the voir dire examination shows the following:

Q. [By the prosecutor] In capital cases, Capital Murder cases, the State's burden of proof is beyond a reasonable doubt. That's the same burden--It's a relatively high burden. It's the highest that we have in the criminal just [sic] system. But it's also the same burden that we have in a speeding ticket case or misdemeanor; it's no higher.

Do you feel like if you were sitting on a Capital Murder case where a person's life was involved that you would require the State to bring you more evidence and carry forth a higher burden than you would in, say, a speeding ticket case?

A. Definitely.

* * *

Q. [By Appellant's attorney] ... Mr. Crosby, there's one aspect of what you and the District Attorney talked about that I would like to go into a little deeper with you, and that is--I believe that you told the District Attorney that due to the fact that this was a Capital Murder case that you would require a higher burden on the State than the burden of reasonable doubt. Am I right when I say that?

A. Yes, sir.

Later in the examination, the juror did indicate that he could follow the court's instructions with regard to the State's burden of proof.

After the State exercised its strike, appellant's counsel objected. The prosecutor took the stand [see footnote 1, supra] and stated:

"I am Pat Batchelor. I'm District Attorney in Navarro County, Texas. I am representing the State in this cause. I have just examined Tommy Crosby and exercised a preemptory [sic] challenge on behalf of the State of Mr. Crosby [sic] for the reason that Mr. Crosby vacilated [sic] a great deal on whether or not he could hold the State to no higher burden than the law required. When first asked he was fairly definite that he would hold the State to a higher burden even to the point of saying beyond a shadow of a doubt. This is the reason that I exercised that preemptory [sic] challenge. It had nothing to do with his race, color, creed, religious [sic] or national origin."

In explaining the use of a peremptory strike against Crosby during the Batson hearing, the prosecutor stated:

"The State did strike preemptorily [sic] the prospective venireman, Tommy J. Crosby ... for the reason that during his voir dire examination, he had stated numerous times that in this particular case he would have to hold the State to a higher burden of proof than he would in an ordinary case where the death penalty was not involved.

I felt like that we could have challenged Mr. Crosby for cause, but out of an over abundance of precaution--and since the State had not used all of its preemptory [sic] challenges--the State chose to exercise a preemptory [sic] challenge instead of challenging for cause because we felt Mr. Crosby could not be fair because of his belief that he would have to hold the State to a higher burden of proof in this particular case."

After the hearing, the trial court filed findings of fact and conclusions of law which included the following:

1. The Court finds that the defendant, PERRY KEETON, is a member of a cognizable racial group.

2. The Court finds that the prosecutor exercised premptory [sic] challenges to remove from the venire members of the defendant's race.

3. The Court finds that the attorney for the defendant raised an inference of purposeful discrimination.

4. The Court finds that the prosecutor came forward with a neutral explanation for each of the premptory [sic] challenges of prospective jurors of the defendant's race.

5. The Court finds that the explanation given by the prosecutor in each case is completely credible.

6. The Court finds that the explanations given by the prosecutor in each case is [sic] completely sufficient as to content.

7. The Court finds that there was no purposeful discrimination by the prosecutor in the use of his premptory [sic] strikes whatsoever.

8. The defendant's objection to the prosecutor's premptory [sic]...