Mathews v. State

• Decision Date: 12 April 1989
• Docket Number: No. 437-87,437-87
• Parties: Kenneth Ray MATHEWS, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 731

768 S.W.2d 731

Kenneth Ray MATHEWS, Appellant, v. STATE of Texas, Appellee.

No. 437-87.

Court of Criminal Appeals of Texas,

En Banc.

April 12, 1989.

Larry P. Urquhart, Brenham, for appellant.

John B. Holmes, Jr., Dist. Atty. & Cathleen C. Herasimchuk & Carol Davies, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court En Banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted of aggravated robbery and sentenced by a jury to twenty years in the Texas Department of Corrections. The court of appeals affirmed his conviction in an unreported opinion. Mathews v. Texas, No. 01-85-0974-CR, 1987 WL 7654 (Tex.App.--Houston [1st Dist.] 1987).

We granted appellant's petition for discretionary review to determine whether the court of appeals erred in failing to abate the appeal and remand for a Batson hearing. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Appellant's case was tried in early November of 1985, and was pending on appeal when the Supreme Court's opinion in Batson was handed down. Therefore, he is among those to whom retroactivity would apply. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). However, the record in this case is devoid of any evidence which would enable appellant to make out a prima facie case of purposeful discrimination. There is no information as to the racial makeup of the venire or the race of those peremptorily struck by the State. There are no juror information cards, or anything else to indicate the racial composition of the panel. The jury strike list is present, but there is no indication there, either, as to the race of the veniremen. Appellant's counsel did not even object to the jury panel at any time before or after trial. Appellant is thus asking this Court to allow him to raise Batson error for the first time on appeal.

Appellant asserts that, because his trial occurred before the Supreme Court's opinion in Batson was handed down, it would have been useless for him to have objected. In pre-Batson cases, a defendant was required to assemble evidence of an historical use of peremptories by the prosecutor to strike all Blacks from criminal venires. Because of this onerous burden, an objection to no more than the composition of his petit jury would have availed him nothing prior to Batson. Although this assertion may be true, it has been settled law for many years that "a 'State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.' " Batson v. Kentucky, supra, 476 U.S. at 84, 106 S.Ct. at 1716, citing Swain v. Alabama, 380 U.S. 202, 203-04, 85 S.Ct. 824, 826-27, 13 L.Ed.2d 759 (1965). Appellant's trial counsel must surely have been aware of the rule enunciated in Swain, supra. In Batson and Griffith, as well as cases from this Court, there was at least an objection in the record. ¹ In Henry v. State, 729 S.W.2d 732 (Tex.Cr.App.1987), we left open the question of whether Batson error may be raised for the first time on appeal. Henry, supra at 736 n. 3. In Henry, the defendant had objected to the State's use of its peremptories to strike all Blacks from the venire only after the jury had been selected and sworn when he moved to strike the panel. There, we observed:

"We find nothing in the Supreme Court opinions which requires that, in cases pending on review or not yet final at the time the Batson case was decided, the defendant object before the jury was sworn. Rather, the opinions suggest at most that the defendant present the issue to the trial court."

729 S.W.2d at 736 (emphasis in original).

Appellant asks this Court to take the "small step strongly suggested" by the above quote to allow him to raise his claim even though he failed to preserve error or to make a record sufficient to show prima facie discrimination. However, we believe the referenced quote does imply that a defendant must at least call the trial court's attention to the issue at some point during the pendency of the trial. Here, defendant did not do so at any time. It was for this reason the appellate court rejected his claim, holding that because appellant had not objected, he failed to preserve error and so presented nothing for review. ² We would be inclined to agree without additional comment were it not for prior holdings of this Court regarding this State's contemporaneous objection rule which further complicate our analysis.

This Court has, in the past, declined to apply the contemporaneous objection rule to error involving a novel constitutional claim. "Where a defect of constitutional magnitude has not been established at the time of trial, the failure of counsel to object does not constitute waiver." See Cuevas v. State, 641 S.W.2d 558, 563 (Tex.Cr.App.1982); Ex Parte Bravo, 702 S.W.2d 189, 191 (Tex.Cr.App.1985); Cook v. State, 741 S.W.2d 928, 944 (Tex.Cr.App.1987); Ex Parte Chambers, 688 S.W.2d 483 (Tex.Cr.App.1984). In Chambers, supra, we reprised our own state's rule, viz.:

"[A] defendant has not waived his right to assert a constitutional violation by failing to object at trial if at the time of his trial the right had not been recognized."

688 S.W.2d at 486 (Campbell, J., concurring).

At this juncture, it is appropriate to reiterate that the federal procedural default doctrine also involves a "novelty" test, providing that "where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures." Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984). This test determines federal cognizability where there has been a procedural default at the state level, and as pointed out in Chambers, supra, the federal procedural default doctrine per se applies only in federal habeas corpus proceedings. This Court also conducts a "novelty" analysis; however, when we do so, it is to decide whether there need be a contemporaneous objection in the first instance. Finding a constitutional claim sufficiently "novel", we hold there is no procedural default.

However, we hold the rule in Chambers does not control here. ³ Batson did not create a new constitutional right. That purposeful discrimination by the State through use of peremptories to strike Blacks from the jury venire violates the Fourteenth Amendment had already been set forth in Swain v. Alabama, supra, wherein the United States Supreme Court held that in order to establish a case of purposeful discrimination, "the defendant must show ... the prosecutor's systematic use of peremptory challenges against Negroes over a period of time." 380 U.S. at 227, 85 S.Ct. at 839. Batson reprised this equal protection right, merely shifting the evidentiary burden to the State to rebut a defendant's prima facie case of purposeful discrimination. See Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 2881, 92 L.Ed.2d 199 (1986). We do not find the claim was so novel that appellant's failure to object may be excused. Ergo, we hold that, under the caselaw of this State, appellant may not raise Batson error for the first time on appeal, when there is nothing in the record which would allow him to show purposeful discrimination, or even an objection. What may be a "small step" for appellant would unquestionably amount to a "giant leap" for this Court. The court below did not err by refusing to abate the appeal and remand the case for a Batson hearing. Accordingly, the judgment of the court of appeals is affirmed. ⁴

TEAGUE, Judge, dissenting.

Because I continue to subscribe to the views that I expressed in the dissenting opinion I filed on original submission in this Court's opinion of Williams v. State, (Tex.Cr.App. No. 69,582, June 22, 1988), which is contrary to what the majority opinion holds in this cause, I am compelled to dissent.

Contrary to what the majority opinion by Judge Clinton might insinuate, the Supreme Court's decision of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), was so novel and so revolutionary that some scholars have claimed that it "leaves the law in a state of confusion." Batson held for the first time in Supreme Court history that "the prosecution's freedom of choice [was circumscribed] by deciding that the principles embodied in the Equal Protection Clause are applicable in reviewing the exclusion of potential jurors from the venire." Erickson, Neighbors, and George, United States Supreme Court Cases and Comments (1986 edition), § 12.07[b] at pages 12-154 and 12-155. Therefore, given the impact that Batson has had on our criminal jurispurdence, it should not be questioned, in the sense that it favors a defendant, that Batson is probably the most revolutionary criminal law opinion handed down by the Supreme Court since former Chief Justice Earl Warren left office. Much like many of the "Warren" Court's "revolutionary" opinions were criticised by both lay and legal persons, Batson, of course, has received its fair share of unjustified criticisms, usually from those who favor the law enforcement model penal code and code of criminal procedure.

I believe that everyone in the criminal legal community who consistently reads this Court's opinions should now be familiar with Judge Clinton's use of footnotes in his opinions. Therefore, it seems to me that given Judge Clinton's conclusion regarding the claim that Kenneth Ray Matthews, henceforth appellant, makes, that the prosecuting attorney wrongfully used one of his peremptory strikes to remove from the venire the sole black venireperson who could have served as a juror in this cause, and who was more than qualified to serve as a juror, was not so novel when appellant's case was tried that a proper objection should have then been leveled at the prosecuting...