Reich-Bacot v. State, REICH-BACO

• Decision Date: 30 April 1990
• Docket Number: A,No. 05-88-01356-CR,REICH-BACO,05-88-01356-CR
• Citation: 789 S.W.2d 401
• Court: Texas Court of Appeals
• Parties: Jesusppellant, v. The STATE of Texas, Appellee.

Page 401

789 S.W.2d 401

Jesus REICH-BACOT, Appellant, v. The STATE of Texas, Appellee.

No. 05-88-01356-CR.

Court of Appeals of Texas,

Dallas.

April 30, 1990.

Kerry P. FitzGerald, Dallas, for appellant.

Patricia Poppoff Noble, Dallas, for appellee.

Before STEWART, THOMAS and KINKEADE, JJ.

OPINION

THOMAS, Justice.

Jesus Reich-Bacot appeals his murder conviction for which the jury assessed punishment at seventy-five years' confinement and payment of a $10,000 fine. Reich-Bacot raises five points of error, including a complaint that the prosecutor's peremptory challenge of one veniremember was racially motivated in contravention of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We agree; consequently, we reverse the trial court's judgment and remand the cause for new trial.

In the third point of error, Reich-Bacot contends that the prosecutor's peremptory challenge of prospective juror number twenty-six constituted impermissible discrimination under Batson. To invoke the protection of Batson, a defendant must raise an inference of purposeful discrimination, and the trial court must determine that a prima facie case of discrimination exists by virtue of the State's use of its peremptory challenges. A defendant may establish a prima facie case of discrimination by showing:

1. that he is a member of a cognizable racial group;

2. that the prosecutor has exercised peremptory challenges to remove members of the defendant's race from the venire; and

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

Batson, 476 U.S. at 96, 106 S.Ct. at 1723; Keeton v. State, 724 S.W.2d 58, 65 (Tex.Crim.App.1987); see also TEX.CODE CRIM.PROC.ANN. art. 35.261(a) (Vernon 1989). In addition, the defendant is entitled to rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. When a prima facie case of discrimination is determined, the burden shifts to the State to come forward with racially neutral explanations as to why peremptory challenges were exercised against veniremembers of the same cognizable racial group as the defendant. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Keeton, 724 S.W.2d at 65.

The record reveals that Reich-Bacot is black; the prosecutor used his peremptory challenges to strike two black veniremembers. Reich-Bacot's trial counsel objected under Batson. Without expressly ruling on the objection, the trial court asked the prosecutor why he struck prospective juror number twenty-six. The prosecutor responded by objecting that the defense had failed to lay the "proper predicate" to shift the burden to the State to justify its strikes. The trial court overruled this objection. The prosecutor then explained that he struck prospective juror number twenty-six because she stated during voir dire that "she had in the past worked with people who were involved in criminal activity. She mentioned working at a halfway house type situation in her experience in Philadelphia." ¹ The trial court overruled Reich-Bacot's Batson objection.

The record further reflects that prospective juror number twenty-six discussed with the prosecutor her former occupation as a resident advisor at a school in Philadelphia. She stated that she worked with persons with disabilities of various kinds, including work with retarded children, some of whom had behavior problems. She also worked with some adults. She did not work with anyone who got in any trouble; their only problems were related to their handicaps. The prosecutor asked, "You didn't get any strictly criminals or people involved in criminal activity who somehow became your wards?" The veniremember responded that she did not.

Reich-Bacot contends that the prosecutor's explanation did not rebut the prima facie case because there is no support in the record for the reason given for the strike. The State first argues that Reich-Bacot did not make a prima facie case; thus, the prosecutor was not required to give any explanation for the strike. In the alternative, the State contends that the prosecutor's reasons were racially neutral and thus satisfied the State's burden under Batson. Lastly, the State argues that the prosecutor's reason justified the strike, even if the prosecutor's explanation was based on an erroneous assumption.

As to the State's contention that Reich-Bacot failed to establish a prima facie case of discrimination, we note that the trial court overruled the State's objection that it was not required to give any explanation. Thus, the trial court impliedly found that Reich-Bacot had met his burden of establishing a prima facie case. Further, the State did offer explanations for the strikes. As the Court of Criminal Appeals has noted, where the opposing party has done everything that would be required of him if the movant had properly made out a prima facie case, whether the movant really did so is no longer relevant. See Dewberry v. State, 776 S.W.2d 589, 591 n. 2 (Tex.Crim.App.1989) (quoting United States Postal Service Bd. of Govs. v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)). "Appellate review should not become bogged down on the question of whether the defendant has made a prima facie showing in cases where the district court has required an explanation." United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir.1987). Thus, we will not address the State's contention that Reich-Bacot did not make out a prima facie case and will, instead, accept the trial court's implied finding that Reich-Bacot met his initial burden under Batson.

The State next contends that the prosecutor gave a race-neutral explanation which rebutted Reich-Bacot's prima facie case. The prosecutor stated that he struck veniremember number twenty-six because she had worked with criminals in a halfway house. The State avers that the prosecutor's reason was, on its face, race-neutral, which is all Batson requires. The State contends that we need look no further. We disagree. Although a prosecutor's explanations are racially neutral on their face, we must still examine every reason given by the prosecutor within the circumstances of the particular case to determine whether the "neutral explanation" for the...