Salazar v. State

• Decision Date: 30 October 1991
• Docket Number: No. 298-88,298-88
• Citation: 818 S.W.2d 405
• Parties: Carlos SALAZAR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 405

818 S.W.2d 405

Carlos SALAZAR, Appellant, v. The STATE of Texas, Appellee.

No. 298-88.

Court of Criminal Appeals of Texas En Banc.

Oct. 30, 1991.

Rick Bowman, Fort Worth (Court-appointed), for appellant.

Tim Curry, Dist. Atty., and C. Chris Marshall and Betty Stanton, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION AFTER REMAND

MILLER, Judge.

Appellant was convicted by a jury of aggravated robbery. V.T.C.A. Penal Code, § 29.03(a)(2). After the finding of guilty, the jury assessed appellant's punishment at forty years confinement in the Texas Department of Corrections ¹.

Appellant then filed an appeal with the Second Court of Appeals raising eight points of error. The court of appeals overruled appellant's points and affirmed his conviction. Salazar v. State, 745 S.W.2d 385 (Tex.App.--Fort Worth 1987). Subsequently, appellant filed a motion for rehearing raising six points of error and, in response, the court of appeals withdrew its original opinion and abated the appeal for a trial court hearing in conformity with the decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (hereinafter referred to as Batson ). After the trial court rendered findings of fact and conclusions of law, the State filed a post-submission brief to which the appellant responded. In his response, appellant raised eight points of error alleging Batson -type error revealed by the hearing. The court of appeals addressed two of the alleged points of error and re-affirmed the conviction. Thereafter, appellant filed a second motion for rehearing raising fifteen points of error, ten of which stemmed from the Batson hearing. The second motion for rehearing was granted ² and the conviction was again affirmed.

On June 8, 1988, we granted appellant's petition for discretionary review to address nine grounds, numbers two through ten, in which appellant claimed violations of his constitutional rights under the equal protection guarantees of the Fifth Amendment to the United States Constitution as applied through the Fourteenth Amendment and interpreted in Batson.

In our opinion of June 13, 1990, grounds for review numbers two through five, in which appellant contended that the court of appeals erred in failing to address alleged procedural errors ³ in the Batson hearing conducted by the trial court, were sustained. Salazar v. State, 795 S.W.2d 187, 193 (Tex.Crim.App.1990). Appellant's sixth ground was rendered moot by our disposition of his fifth ground. Id. In his seventh ground for review, appellant contended the court of appeals erred in failing to hold, because it did not address the issue, that the trial judge's actions during the Batson proceeding denied him the effective assistance of counsel. We found this ground to be moot due to the remedy which a remand of this cause would provide. Id. at 194.

Grounds for review eight, nine, and ten were interrelated and alleged, respectively, that the court of appeals erred in holding: (1) that appellant failed to establish a prima facie case of racial discrimination by the prosecutor's use of peremptory strikes; (2) that the court erred in failing to hold the prosecutor's use of a peremptory strike to exclude a venireperson of appellant's race On the basis of the evidence from the first Batson hearing, we held appellant had established a prima facie case of discrimination. Id. at 193. At the time of our decision, defendant, in order to establish a prima facie case, needed to show ⁴: (1) he is a member of a cognizable racial group ⁵; (2) the prosecutor exercised peremptory challenges to remove from the venire members of the defendant's race (relying on the principle that peremptory challenges constitute a jury selection practice which permits those to discriminate who are of a mind to discriminate); and (3) these facts and any other relevant circumstances raise an inference the prosecutor used the peremptory challenges to exclude the veniremembers on account of their race. Keeton v. State, 724 S.W.2d 58 (Tex.Crim.App. 1987) (hereinafter cited as Keeton I ). Appellant is a hispanic. The venire consisted of only one hispanic person, Ms. Catalina Gonzalez, and she was peremptorily struck by the State. Although striking a single juror does not, alone, make out a prima facie case of discrimination, a prima facie case was made when the State peremptorily struck Ms. Gonzalez as she represented 100% of the venirepersons who were of appellant's race. Thus, appellant made out a prima facie case, and appellant's eighth ground was sustained. Because the trial court committed procedural errors in the conduct of the first Batson hearing, a remand of the cause for a proper hearing was necessary.

is Batson error; and (3) that the court erred in failing to hold the prosecutor's use of peremptory strikes against the minority members of the venire constituted Batson error.

We did not, however, address appellant's ninth ground for review ⁶ because the record from the first Batson hearing was insufficient to determine whether appellant's claim was meritorious. Salazar, at 194. The trial court, in failing to allow cross-examination of the prosecution, did not, for Batson purposes, allow appellant to sufficiently explore the prosecutor's reasons for his strikes. The remand with orders to conduct a proper Batson hearing remedied this defect. Therefore, it is now appropriate that we address appellant's ninth ground for review.

Likewise, in our initial review of the cause, appellant's tenth ground was not addressed because the issue, originally raised on direct appeal and decided by the court of appeals, was improvidently granted. Appellant's tenth ground was a blended argument complaining of the State's exclusion of blacks and hispanics from his venire. Appellant, at the time of our decision, lacked standing to assert Batson error predicated upon the exclusion of persons of race or ethnicity different from his own. See, Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 805, 107 L.Ed.2d 905 (1990); Batson, supra, 476 U.S. at 96, 106 S.Ct. at 1723. Thus, since the sustaining of appellant's second through fifth and eighth grounds already entitled him to a second Batson hearing, and since Batson did not provide a remedy for challenges based upon the exclusion of veniremembers of other minority groups, our grant of appellant's tenth ground was improvident.

Nonetheless, the intervening months have seen an extension of the Batson standard to encompass claims made by defendants of all races. The United States Supreme Court, in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 1373, 113 L.Ed.2d 411 (1991), empowered defendants of all races with standing to challenge racially motivated venire strikes. It is no longer necessary that a defendant, when attempting to make out his or her prima facie case of discrimination the litigant must have suffered an 'injury in fact,' thus giving him or her a 'sufficiently concrete interest' in the outcome of the issue in dispute, [citing Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976) ]; the litigant must have a close relation to the third party, [id., at 113-114, 96 S.Ct., at 2873-2874, 49 L.Ed.2d 826]; and there must exist some hindrance to the third party's ability to protect his or her own interests.

                in jury selection, share the excluded venirepersons' skin color or ethnic background.  See, id.   The defendant, attempting to make out a prima facie case, must simply show that the prosecutor has used peremptory strikes against minorities and that the attendant circumstances raise an inference of discrimination.  The High Court reasoned that the defendant acts to protect the third-party equal protection claims of excluded jurors who would otherwise lack standing to assert a claim of racial discrimination.  Id.  In order to bring an action on behalf of a third-party, three criteria must be satisfied
                

Id. 111 S.Ct. at 1370-1371.

In Powers, the Supreme Court found that these criteria were met and the defendant, a caucasian, was allowed to bring a claim of racially motivated strikes on behalf of excluded black veniremembers. Id. Like a plaintiff in a civil case who brings a claim under the aegis of the Equal Protection Clause, the connection between the defendant and excluded venirepersons is not tenuous. First, a criminal defendant "suffers a real injury when the prosecutor excludes jurors at his or her own trial on account of race" because the resulting jury gives the impression that the trial was not fair and in accordance with the law. Id. at 1372. Second, the relation between the defendant and the third-party is very close because "[b]oth the excluded juror and the criminal defendant have a common interest in eliminating racial discrimination from the courtroom." Id. Last, the "barriers to a suit by an excluded juror are daunting" and it is unlikely that a claim would be brought except by the defendant. Id. at 1372-1373.

Conceptually, there is no distinction between a white asserting the third-party claims of blacks excluded from a venire and a hispanic asserting those same claims; thus, Powers is applicable, and appellant's tenth ground is ripe for review. We therefore will now address both appellant's ninth and tenth ⁷ grounds for review in light of the trial court's findings of facts and conclusions of law.

BATSON

ANALYSIS

In addressing Batson issues, this Court expressly adopted the "clearly erroneous" standard as the standard of appellate review. Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Crim.App.1990) (Opinion on State's Motion for Rehearing). Briefly stated, this standard is one in which the appellate court is to review the trial judge's findings of fact to determine whether they are adequately supported by the record. Id. In so doing, the reviewing court must consider the evidence in the light most favorable to the trial judge's...