Rijo v. State

• Decision Date: 02 December 1986
• Docket Number: No. 07-86-0167-CR,07-86-0167-CR
• Parties: Carlos Rhadamez RIJO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 562

721 S.W.2d 562

Carlos Rhadamez RIJO, Appellant, v. The STATE of Texas, Appellee.

No. 07-86-0167-CR.

Court of Appeals of Texas Amarillo.

Dec. 2, 1986.

James Bowers, Pampa, for appellant.

Danny E. Hill, Dist. Atty., Amarillo, for appellee.

Before REYNOLDS, C.J., and DODSON and BOYD, JJ.

REYNOLDS, Chief Justice.

Upon his plea of guilty before a jury, appellant Carlos Rhadamez Rijo was convicted of delivery of a controlled substance, namely cocaine, of 200 grams or more but less than 400 grams. Art. 4476-15, §§ 4.02(a), (b)(3)(D), 4.03(a), (c), (d)(2) (Vernon Supp.1986). The jury assessed punishment at ninety-nine years confinement and a $10,000 fine.

By his single contention, ¹ appellant, characterized as partially Spanish and partially Negroid with Negroid features, submits that the trial court erred in denying his motion to discharge the jury, asserting that the prosecutor unconstitutionally used a peremptory challenge to remove a black venireman. The contention will be overruled and the judgment will be affirmed.

The record on appeal reveals that on the day of trial, the trial judge called the cause, received announcements of ready, and presided over the voir dire examination of the venire. Near the beginning of the voir dire, defense counsel acknowledged that appellant would plead guilty to the offense charged.

The jury panel was composed of forty people, three of whom were black men. Five of the forty were excused for cause. Of the five excused, one was a black man challenged by the State; another was a black man challenged by appellant.

The remaining black man, Billy D. Johnson, was struck by the State through the use of one of its ten peremptory challenges. Johnson, advised on voir dire that the punishment could include a fine up to a hundred thousand dollars, stated that in his mind the size of the deal, i.e., the quantity of cocaine delivered would not have anything to do with the fine assessed. He also said that he had cousins who had problems with the law, that one of them went to the penitentiary, and that he thought he was still there at the time of trial.

With the requirement of twelve jurors, ² the right to a total of twenty peremptory challenges, ³ and the five excused for cause being within the strike zone, it was possible for any of the first thirty-seven on the venire to be seated on the jury. Danny Valverde, a court-determined Hispanic, was number thirty-six on the panel; but, albeit he was not challenged by either party, he was not chosen to serve on the jury because the State and appellant twice peremptorily challenged the same panelists.

After the jury was selected, instructed and excused for lunch, the court was informed that appellant intended to question the State's use of its peremptory challenges. At a hearing outside the presence of the jury, appellant moved the court to dismiss the jury selected and to impanel another venire from which a jury may be selected. In support of the motion, appellant's counsel, attorney James Bowers, testified that appellant was from the Dominican Republic, and that he figured appellant was partially Negroid and partially Spanish. He named appellant's hair, nose, and skin coloration as features appearing to be Negroid, and deduced that for all intents and purposes, appellant is a black man.

Following Bowers' testimony, appellant urged the granting of his motion on the basis of the decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The court, without requiring the State to explain its peremptory challenge of Johnson, denied the motion, noting the challenges removing the three black members of the venire and that Valverde, obviously Hispanic, was not struck by either party.

The Batson court determined that a defendant may establish a prima facie case of purposeful discrimination in the selection of a petit jury solely on evidence concerning the prosecutor's use of peremptory challenges. To do so, the defendant must show that (1) he is a member of a cognizable racial group, (2) the prosecutor has exercised peremptory challenges to remove members of the defendant's race from the venire, and (3) these facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude veniremen from the petit jury because of their race. If the defendant makes a prima facie case, the State can rebut it by coming forward with a neutral explanation for challenging veniremen of the defendant's race. 476 U.S. at ----, ----, 106 S.Ct. at 1722-24, 90 L.Ed.2d at 87-88.

It may be accepted from the evidence that appellant, albeit partially Spanish and partially Negroid, is identified as being affiliated with the black race, a cognizable racial group. And it is certain that the prosecutor exercised a peremptory challenge to remove Johnson, the only remaining member of appellant's identifiable race, from the venire. Yet, since the trial court did not require the State to explain its challenge to Johnson, the court impliedly found that appellant's showing of these two facts, taken in concert with the other relevant circumstances, failed to raise the inference that the State utilized the peremptory challenge practice to exclude venireman Johnson on account of his race.

There is the recognition in Batson that a "pattern" of strikes against members of the identifiable racial group to which the defendant belongs might give rise to an inference of...