Martinez v. State, 2-91-142-CR
| Decision Date | 05 February 1992 |
| Docket Number | No. 2-91-142-CR,2-91-142-CR |
| Citation | 824 S.W.2d 724 |
| Parties | Jesus MARTINEZ, Appellant, v. The STATE of Texas, State. |
| Court | Texas Court of Appeals |
Frank Coffey (Appointed on appeal only), Fort Worth, for appellant.
Tim Curry, Crim. Dist. Atty., C. Chris Marshall, Chief of Appellate Section, Lynn Allison, Susannah Touzel, Tim Bednarz, Asst. Dist. Attys., Fort Worth, for appellee.
Before HILL, MEYERS and DAY, JJ.
Jesus Martinez appeals his conviction by a jury for the offense of driving while intoxicated. The court assessed his punishment at ninety days in the Tarrant County jail, probated for twenty-four months, and a fine of $300.00. Martinez contends in two points of error that the trial court erred in overruling his objection to two of the State's peremptory challenges because the challenges were racially discriminatory as prohibited by TEX.CODE CRIM.PROC.ANN. art. 35.261 (Vernon 1989).
We reverse the judgment and remand for trial because the prosecutor's first explanation for striking a Hispanic veniremember was not a legitimate one, and because the record reflects that any determination by the trial court that the prosecutor's stated reasons were not a pretext, but that her strikes were exercised for race-neutral reasons, was clearly erroneous.
Martinez contends in point of error number one that the trial court erred by overruling his objection, based upon article 35.261 of the Texas Code of Criminal Procedure, to the State's use of a peremptory challenge against a Hispanic venireman. Without making a finding that Martinez had made a prima facie case of discrimination based upon race, the trial court asked for a response from the prosecutor, who stated that she struck the juror because of his attitudes toward intoxication and his views on the validity of an intoxilyzer test.
During voir dire, counsel for Martinez explained to the members of the venire that mere drinking prior to driving did not constitute a crime unless the blood alcohol content was raised to a certain level or that one lost the normal use of one's physical or mental faculties. He then asked the Hispanic veniremember, "So I guess Mr. Hernandez, does that make sense to you that you can have a drink or several drinks, get in a car and drive and not commit a crime?" Mr. Hernandez responded, "Yes, I understand what you're saying."
As we previously indicated, the prosecutor also stated that she struck the Hispanic veniremember because of his views on the validity of the intoxilyzer test. Our record does not reflect that the Hispanic veniremember expressed any views on the validity of the intoxilyzer test. The record does show that an unidentified member of the venire stated that his cousin, who was a police officer in Dallas, told him that he believed more in the blood test than the breathalyzer test. However, that member of the panel was not asked about his views of the intoxilyzer test.
We must determine whether the trial court's ruling overruling Martinez's motion brought in accordance with article 35.261 of the Texas Code of Criminal Procedure was clearly erroneous. Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App.), cert. denied, 501 U.S. 1239, 111 S.Ct. 2875, 115 L.Ed.2d 1038 (1991). Although we believe that it is preferable to do so, the trial court did not make findings of fact and conclusions of law at the conclusion of the proceeding regarding article 35.261. We will assume, for the purposes of this discussion, that the trial court found the reasons stated by the prosecutor to be credible and not a pretext, thereby determining that she did not exercise this peremptory strike on the basis of race. Since the trial judge's finding in this type of proceeding usually turns on an evaluation of credibility, we will ordinarily give the findings great deference. Id. at 106, quoting United States v. Mathews, 803 F.2d 325, 330 (7th Cir.1986).
As part of our analysis of whether the trial court's findings are clearly erroneous, we may consider whether the findings are supported by the record. Williams, 804 S.W.2d at 101. We may also consider certain factors, the presence of any one of which tends to show that the State's reasons are not actually supported by the record or are an impermissible pretext. These factors are:
1. The reason given for the peremptory challenge is not related to the facts of the case;
2. There was a lack of questioning to the challenged juror or a lack of meaningful questions;
3. Disparate treatment--persons with the same or similar characteristics as the challenged juror were not struck;
4. Disparate examination of members of the venire, i.e., questioning a challenged juror so as to evoke a certain response without asking the same question of other panel members; and
5. An explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically.
Williams v. State, 804 S.W.2d at 106; Whitsey v. State, 796 S.W.2d 707, 713-14 (Tex.Crim.App.1989).
We also note that the prosecutor's reason must be a "legitimate reason." Batson v. Kentucky, 476 U.S. 79, 99 n. 20, 106 S.Ct. 1712, 1724 n. 20, 90 L.Ed.2d 69 (1986); Whitsey, 796 S.W.2d at 713. We understand this to mean that it must be a nonracial reason that a rational prosecutor might in good faith wish to use as a peremptory challenge.
As we have noted, the prosecutor first stated that she wished to challenge the Hispanic veniremember because of his views on intoxication. The only views expressed by the veniremember in effect were that the D.W.I. law made sense and he understood it. We do not consider that a peremptory challenge based upon a juror's response to the effect that he understands or agrees with the applicable law in the case is a legitimate reason for peremptory challenge as required by Batson and article 35.261 of the Texas Code of Criminal Procedure. Additionally, we may presume that the non-Hispanic jurors who were not challenged also understood and were in agreement with the D.W.I. law. We would also point out that the State did not ask the venireman any questions concerning his views about intoxication.
Also, as we have noted, the prosecutor told the court that she struck the veniremember because of his opinion on the validity of the intoxilyzer test. The record reflects that the veniremember never expressed...
To continue reading
Request your trial
-
Texas Tech University Health Sciences Center v. Apodaca
...that none of the peremptory challenges at issue were exercised on the basis of the venirepersons' race. Martinez v. State, 824 S.W.2d 724, 726 (Tex.App.--Fort Worth 1992, pet. ref'd.); see also Lott v. City of Fort Worth, 840 S.W.2d at 150. We so find In order to challenge possible discrimi......
-
Lott v. City of Fort Worth
...that none of the peremptory challenges at issue were exercised on the basis of the venirepersons' race. Martinez v. State, 824 S.W.2d 724, 726 (Tex.App.--Fort Worth 1992, pet. ref'd.). We so find Appellate review of Batson issues follows the "clearly erroneous" standard to determine whether......
-
Hughes v. State
...veniremember was biased against the State. Cf. Hill v. State, 827 S.W.2d 860, 870 (Tex.Crim.App.1992); Martinez v. State, 824 S.W.2d 724, 727 (Tex.App.--Fort Worth 1992, pet. ref'd). In this case, the State came forward with a description of the nonverbal behavior that prompted it to strike......
-
Craig v. State
...explanation for a peremptory strike that is challenged pursuant to Batson. He relies on the holding in Martinez v. State, 824 S.W.2d 724, 726 (Tex.App.-Fort Worth 1992, pet. ref'd). In that case, one of the State's explanations for a challenged strike was the panelist's "attitudes toward in......
-
Trial practice
...rehabilitation. At the very most, it will prevent it altogether. §619.3 Racially Biased Preemptory Challenges In Martinez v. State , 824 S.W.2d 724 (Tex. App. Fort Worth 1992), the defendant appealed a conviction of driving under the influence of alcohol, claiming that the trial court denie......