Rodgers v. State

• Decision Date: 12 February 1987
• Docket Number: No. 01-86-0370-CR,01-86-0370-CR
• Citation: 725 S.W.2d 477
• Parties: Joseph Earl RODGERS, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 477

725 S.W.2d 477

Joseph Earl RODGERS, Appellant, v. The STATE of Texas, Appellee.

No. 01-86-0370-CR.

Court of Appeals of Texas Houston (1st Dist.).

Feb. 12, 1987.

Robert Morrow, Hocker, Rodriguez & Morrow, Janet Morrow, Morrow & Burnett, Houston, for appellant.

John B. Holmes, Jr., Harris Co. Dist. Atty., Frances M. Northcutt, Danise Crawford, Harris Co. Asst. Dist. Attys., Houston, for appellee.

Before JACK SMITH, DUGGAN and COHEN, JJ.

OPINION

JACK SMITH, Justice.

The sole issue in this case is whether the appellant's constitutional right to equal protection under the law has been violated. A jury found the appellant, a black person, guilty of unauthorized use of a motor vehicle. The court found the enhancement allegation to be true and assessed punishment of five years confinement. Appellant alleges that the State purposely excluded all members of his race on the basis of race alone by use of its statutory strikes.

On May 15, 1986, the voir dire examination of a venire of 40 persons was conducted. Since no members of the jury panel were excused for cause, the jury was selected, after the exercise of peremptory strikes, from the first 32 members of the venire. Six of the 32 members were black. The State exercised all ten of its peremptory challenges by striking six black and four white persons, while the defense counsel exercised his peremptory challenges by striking ten white persons.

After the peremptory challenges were exercised, the defense attorney appears to have made an off the record objection to the racial composition of the jury. The trial judge then conducted recorded proceedings in chambers, during which the prosecutor, who was also black, was asked to state her reasons for striking the six blacks from the panel. After the court heard the prosecutor's reasons for each of her strikes and the appellant's contention that the State's strikes were based on race, it concluded that the defense attorney had not made a prima facie case of unfairness and that the prosecutor's reasons for her peremptory strikes were sufficient.

Appellant's sole point of error asserts that he was denied equal protection of the law when the State purposely excluded members of his race from the jury by means of peremptory challenge. Appellee responds that appellant failed to carry his burden of proving a prima facie case of intentional discrimination, and that even if he had satisfied his burden, the trial court correctly found that the appellant failed to carry his burden of showing that the prosecutor's strikes were made with invidious intent.

To establish a prima facie case of purposeful discrimination in the selection of jurors, the defendant must initially show that he is a member of a racial group capable of being singled out for different treatment and that the prosecutor has exercised the peremptory challenges to remove from the venire members of the defendant's race. Secondly, 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. Finally, the defendant must show that these facts and other relevant circumstances raise an inference that the prosecutor used that practice to exclude members of the venire on account of their race. In deciding whether the defendant made the requisite showing, the trial court should consider all relevant circumstances. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986).

Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for using its peremptory strikes on persons of the defendant's race. The prosecutor's explanation need not rise to the level of justifying the exercise of a challenge for cause. However, the prosecutor may not rebut the defendant's prima facie case of discrimination by merely stating that he challenged jurors of the defendant's race on the assumption, or his intuitive judgment, that they would be partial to the defendant's race; nor may the prosecutor rebut the defendant's case merely by denying that he had a discriminatory motive or affirming his good faith in individual selections. The prosecutor must articulate a neutral explanation related to the particular case to be tried. Id., 106 S.Ct. at 1723-1724.

The record shows that the appellant objected to the composition of the jury after the State's peremptory challenges but before the jury was sworn in. This is the proper time to raise such an objection. Williams v. State, 712 S.W.2d 835, 840 (Tex.App.--Corpus Christi 1986, no pet.). The State concedes in its brief that the record establishes that the first and second requirements set forth in Batson for a prima facie case were met, however, it challenges appellant's contention that he also satisfied the third Batson requirement, i.e., that the facts and any other circumstances raise an inference that the prosecutor used that practice to exclude members of the venire from the jury on account of their race. Batson, 106 S.Ct. at 1719.

Although Batson requires a showing that members of appellant's race were removed from the jury, it does not speak to how many members of appellant's race must be struck. Williams, 712 S.W.2d at 841. There is no quantitative formula with which to gauge peremptory challenges. Such determinations should be based on all relevant circumstances in a particular case. The court in Batson gave trial judges wide discretion to make these determinations, but requires that they undertake a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. Batson, 106 S.Ct. at 719. It discussed several factors that should be considered when making this determination, such as whether there is a pattern of strikes against black jurors. A trial court can also consider the prosecutor's questions and statements during voir dire examination and in exercising his challenges. Id.

In Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499 (1979), the court said:

We begin with the presumption of proper use of peremptory challenges. That presumption is rebuttable, however, by either party showing that (1) a pattern of conduct has developed whereby several prospective jurors who had been challenged peremptorily are members of a discrete group, and (2) there is a likelihood they are being excluded from the jury solely by reason of their group membership.

Id., 387 N.E.2d at 517. The court in Soares held that the pattern of conduct was clearly demonstrated, when the prosecutor challenged 12 of 13 eligible blacks. The second element was also shown based on the disproportionate exclusion by the prosecutor of 92 percent of the prospective blacks compared to only 34 percent of the white panel members. The court in Soares noted that 100 percent of minority jurors need not be challenged to establish racial discrimination.

The prosecution in People v. Wheeler, 22 Cal.3d 258, 583 P.2d 748, 148 Cal.Rptr. 890 (1978), struck all the blacks on the panel, which resulted in an all white jury. In Wheeler, the defendant, a black man, was charged with the murder of a white man. The court held that the defendant had established a prima facie case, which showed a strong likelihood that the State had removed jurors solely on the ground of group bias. The court also delineated several factors to be considered: (1) whether the State struck all or most of the group members or used a disproportionate number of its strikes against group members; (2) whether the struck jurors shared only one characteristic--their membership in the group--and that in all other respects they are as heterogenous as the community when considered as a whole; (3) whether the...