Malone v. State

• Decision Date: 28 February 1996
• Docket Number: No. 328-95,328-95
• Citation: 919 S.W.2d 410
• Parties: L.D. MALONE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 410

919 S.W.2d 410

L.D. MALONE, Appellant, v. The STATE of Texas, Appellee.

No. 328-95.

Court of Criminal Appeals of Texas En Banc.

Feb. 28, 1996.

Brian W. Wice, Houston, for appellant.

Alan Curry, Ass't. Dist. Atty., Houston, Robert A. Huttash, State's Atty., Austin, for the State.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted of possession of cocaine and sentenced to seven years confinement. Tex. Health & Safety Code Ann. § 481.115. The Court of Appeals affirmed. Malone v. State, 899 S.W.2d 256 (Tex.App.--Houston [14th Dist.] 1995). We granted review to determine whether the Court of Appeals erred in addressing the issue of whether appellant made a prima facie case as a part of his motion under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). ¹ We will reverse and remand.

After voir dire, but before the jury was impaneled, appellant lodged a Batson objection, contending the State excluded two of four black veniremembers on the basis of race. The State responded that appellant failed to make a prima facie showing of racial discrimination and the trial judge overruled appellant's Batson motion. After the jury was sworn and dismissed the prosecutor explained why she struck the contested veniremembers. ² Appellant responded that the explanations were pretextual. The trial judge found the strikes were made for racially neutral reasons and again overruled appellant's Batson motion. ³

On appeal appellant contended "the State waived its right to maintain that no prima facie showing of discrimination was made when it chose to give its reasons for striking" the contested veniremembers. Malone, 899 S.W.2d at 259. The Court of Appeals disagreed, stating the State provided race-neutral explanations only after appellant's motion was overruled and only "to avoid the time and expense of a remand if [the Court of Appeals] were to decide that a prima facie case of discrimination was made." Ibid. The Court of Appeals held appellant failed to make prima facie showing of discrimination and did not address the merits of appellant's first and second points of error. Id., 899 S.W.2d at 260. Appellant contends the Court of Appeals erred in addressing the trial judge's decision of whether appellant had made a prima facie case. Appellant argues the prima facie issue was moot once the prosecutor offered her explanations.

The Supreme Court addressed this issue in Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). Hernandez raised a Batson objection contending the prosecutor struck two Latino veniremembers on the basis of race. Id., 500 U.S. at 354-56, 111 S.Ct. at 1864. Before the trial judge ruled on Hernandez's objection the prosecutor provided race-neutral explanations for the peremptory strikes. Ibid. The Supreme Court held that once the prosecutor has provided race-neutral explanations, the explanations, and not the prima facie showing, are to be reviewed by the appellate court:

... Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.

Id., 500 U.S. at 359, 111 S.Ct. at 1866.

We have addressed this issue in a number of cases and have consistently held that we, like the Supreme Court, will not review the issue of whether the defendant established a prima facie case where the prosecutor has articulated reasons for the contested peremptory strike and the trial judge has ruled on the ultimate question of intentional discrimination. Hill v. State, 827 S.W.2d 860, 865 (Tex.Cr.App.1992). Wheatfall v. State, 882 S.W.2d 829, 835 (Tex.Cr.App.1994) ("Because the State offered a race-neutral explanation we will not review the trial court's prima facie ruling, as it is moot.") (citing Chambers v. State, 866 S.W.2d 9, 23 (Tex.Cr.App.1993)). For example, in Staley v. State, 887 S.W.2d 885 (Tex.Cr.App.1994), the defendant objected to the State's peremptory challenge alleging it was racially motivated. Id., 887 S.W.2d at 897. The trial judge agreed with the State's contention that a prima facie case had not been made, but stated, "I want to hear the reason anyway." Id., 887 S.W.2d at 897, n. 2. The State then provided race-neutral reasons for their peremptory strikes. Id., 887 S.W.2d at 898. A majority of the Court held it "will not review the issue of whether the defendant established a prima facie case where the prosecutor has articulated his reasons for the challenged peremptory strike and the trial court has ruled on the ultimate questions of intentional discrimination." Ibid. (quoting Hill, supra.) (Baird, J. concurring, joined by Miller, Campbell, Overstreet and Maloney, JJ.).

The State provides no new authority on this issue nor has the State provided a reason for us to ignore, distinguish or overrule controlling authority from the United States Supreme Court or this Court. ⁴ Consequently, we reaffirm those cases and hold that once the State's offers explanations for striking the contested veniremembers, and the trial judge rules on the ultimate question of intentional discrimination, the issue of whether the defendant made a prima facie case is moot and, therefore, not subject to appellate review.

The judgment of the Court of Appeals is reversed and this case is remanded to that Court for further proceedings consistent with this opinion.

CLINTON, J., concurs.

CLINTON, Judge, concurring.

I agree with Judge Meyers that the court of appeals erred to conclude appellant did not present a prima facie case of Batson error in this cause. In my view, however, the trial court has yet to conduct a full-scale, proper Batson hearing on the question whether the prosecutor's motives were in fact race neutral. I would therefore remand the cause to the trial court for an out of time Batson hearing to determine that issue.

MALONEY, J., concurs in the result.

MEYERS, Judge, concurring.

It appears to me that the relevant sequence of events in this case was as follows. After jury selection, but before the jury was empanelled or sworn, appellant objected to the exclusion of two black veniremembers upon the ground that they had been struck by the prosecuting attorney on the basis of their race. The trial judge, believing that circumstances surrounding the exclusion of these prospective jurors did not make a prima facie case of deliberate racial discrimination, refused to require an explanation from the prosecutor and overruled appellant's motion. The prosecutor then immediately offered to make such an explanation anyway, but the judge proceeded at once to swear, empanel, and admonish the jury without responding to the prosecutor's request. After the jury was dismissed for the day, the prosecuting attorney then promptly renewed her offer to give an explanation for striking the black veniremembers. Appellant objected to her offer upon the ground that his motion had already been overruled. But the judge decided to allow it and the prosecutor then articulated a different racially neutral explanation for the peremptory exclusion of each black veniremember. Appellant responded by arguing that the State did not engage in any significant questioning of these prospective jurors and that the record disclosed no basis for the proffered explanation. At this point, the trial judge inquired of the parties whether they had "anything else." A short discussion of unrelated matters followed, after which one of the prosecutors asked the judge to find "that he's heard the prosecutors [sic] reasons for the peremptory challenges in question, and that the peremptory challenges were made for racially neutral reasons." Without any further discussion, the trial judge simply announced, "Court so finds."

Our law is clear that, when one party to a criminal prosecution claims that the other has used a peremptory challenge to exclude a prospective juror on the basis of race, he must prove by a preponderance of the evidence that his claim is true in fact before the trial judge is required to grant him any relief. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). If such party is able to raise a reasonable inference of racial discrimination from circumstances of the jury selection process, including the constituency of the jury panel, the number and kind of questions propounded to prospective jurors during the voir dire examination, and the number or pattern of strikes exercised against such prospective jurors, he is entitled to a favorable ruling from the trial judge unless the other party is willing to declare that his strikes were not racially motivated and to reveal on the record his actual reasons for using peremptory challenges against veniremembers of an identifiable racial group. If the complaining party makes such a prima facie case of racial discrimination and the other party fails to give a racially neutral explanation for his strikes or admits that his strikes were racially motivated, then the complaining party is entitled to relief. On the other hand, if the party whose motives are in question does offer an explanation for each of his peremptory strikes which is racially neutral on its face, the judge must then proceed to try the issue of racial motivation just as he would any other issue of fact. He must consider the evidence proffered by the moving party to make his prima facie case, the racially neutral explanations of the other party, any relevant portions of the voir dire examination conducted in his presence or to which his attention is called, and all other evidence offered by the parties in support of their respective positions. If, and only if, the trial judge as factfinder concludes by a preponderance of the evidence that the party whose motives are in question actually did strike prospective jurors because of their...