Miller-El v. State

• Decision Date: 03 March 1988
• Docket Number: MILLER-E,A,No. 69677,69677
• Citation: 748 S.W.2d 459
• Parties: Thomas Joeppellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 459

748 S.W.2d 459

Thomas Joe MILLER-EL, Appellant, v. The STATE of Texas, Appellee.

No. 69677.

Court of Criminal Appeals of Texas En Banc.

March 3, 1988.

Rehearing Denied April 27, 1988.

E. Brice Cunningham, Royce West, Dallas, for appellant.

John Vance, Dist. Atty. and Jeffrey B. Keck, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

W.C. DAVIS, Judge.

Thomas Joe Miller-El, hereinafter referred to as appellant, was convicted by a jury of intentionally causing the death of Douglas Walker while in the course of committing the underlying offense of robbery, which elevated the offense of murder to capital murder. See V.T.C.A., Penal Code, § 19.03(a)(2). After the jury answered the two special issues in the affirmative, the trial judge assessed appellant's punishment at death. V.A.C.C.P., Art. 37.071.

In his brief appellant asserts thirty-six points of error. In his first seven points of error, appellant contends that the prosecutor's use of ten of fourteen peremptory challenges to exclude black veniremen from sitting as jurors in this case violated his right under the Sixth Amendment to a jury drawn from a cross-section of the community. We shall abate the appeal and remand to the trial court for a hearing under the auspices of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

The record reflects that during voir dire, the prosecutors exercised fourteen of the allowed fifteen peremptory challenges. Ten of the fourteen challenges were used to exclude black veniremen from sitting as jurors. Only eleven members of the black race were on the venire panel. In the end, one black juror was seated. Appellant is a member of the same race as the ten excluded veniremen. Appellant contends that the conduct of the prosecutors, in excluding the ten black veniremen, violated his constitutional rights guaranteed by the Sixth Amendment and the Equal Protection Clause of the Fourteenth Amendment to a jury drawn from a cross section of the community. Appellant asserts that the prosecutor's use of the peremptory challenges to exclude the ten black veniremen clearly established a purposeful or deliberate denial to blacks to participate as jurors in his case.

Prior to the individual voir dire of the veniremen, appellant filed a Motion To Quash The Indictment because of the exclusion of blacks from the jury panel. After the hearing, the trial court refused to quash the indictment. In this cause, it can be argued that appellant had a Batson, supra, hearing on his motion to quash the jury that heard his case. However, given the fact that Batson, supra, was not decided until after the case at bar had been tried to completion in the trial court, and given the testimony that transpired at the hearing, we believe such an argument would border on being specious.

We find that on the facts of this case, appellant sufficiently raised the issue of the State's use of its peremptory strikes at trial to invoke Batson, supra, protections on appeal. Cf. DeBlanc v. State, 732 S.W.2d 640 (Tex.Cr.App.1987).

In Batson, supra, the Supreme Court reiterated its observation that the State's purposeful or deliberate denial of jury participation to black persons because of race violated a defendant's rights under the Equal Protection Clause of the United States Constitution. It then found that the State could not challenge potential jurors solely on account of their race.

In order to invoke the protections set forth in Batson, supra, a defendant must establish purposeful discrimination by showing that:

1. he was a member of a cognizable racial group;

2. the prosecutor had exercised peremptory challenges to remove from the venire members of the defendant's race (peremptory challenges constitute a jury selection practice which permits those to discriminate who are of a mind to discriminate); and

3. the facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen on account of their race.

106 S.Ct. at 1723.

If the defendant raises an inference of purposeful discrimination through the State's use of its peremptory strikes, the burden shifts to the prosecutor who must come forward with a neutral explanation for the challenges. The trial court must then determine whether despite the State's explanation, the defendant has established purposeful discrimination. The Supreme Court in Batson, supra, stressed that not just any explanation would do, and in fact some explanations would per se not be sufficient. Batson, supra, 106 S.Ct. 1722, 1723. By largely judging credibility of the prosecutor, as well as content of the explanation, the trial judge must make a finding of fact concerning purposeful discrimination which should be...