Salazar v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: MILLER; McCORMICK; WHITE
• Citation: Salazar v. State, 795 S.W.2d 187 (Tex. Crim. App. 1990)
• Decision Date: 13 June 1990
• Docket Number: No. 298-88,298-88
• Parties: Carlos SALAZAR, Appellant, v. The STATE of Texas, Appellee.

Page 187

795 S.W.2d 187

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

No. 298-88.

Court of Criminal Appeals of Texas En Banc.

June 13, 1990.

Rick Bowman (court appointed), Fort Worth, 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 ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

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

The procedural history of this case is critical to the disposition of this petition, so a recitation of the pertinent facts is necessary. Appellant was convicted on January 9, 1986. Appellant filed a Motion for New Trial alleging, inter alia, he was denied a trial by a fair and impartial jury since the trial court denied his motion to quash the petit jury in which appellant alleged the State systematically struck all black and hispanic members of the panel. The motion for new trial was denied March 17 1986, and appellant filed an appeal with the court of appeals raising eight points of error on September 26, 1986. The court of appeals overruled appellant's points of error and affirmed his conviction in an opinion on March 12, 1987.

Appellant thereafter filed his first motion for rehearing on March 30, 1987, raising six points of error. Tex.R.App.Proc. 100(a). In the one point of error pertinent to this petition, appellant contended the court of appeals erred in holding the trial court properly denied his motion to quash based on the State's use of peremptory strikes to exclude minorities from the venire. In his motion for rehearing appellant argued the court of appeals erred in finding his Batson ¹ claim was waived because he did not lodge an objection on this basis prior to the jury being sworn. Appellant then filed an amended motion for rehearing urging the waiver issue was decided in his favor in Henry v. State, 729 S.W.2d 732 (Tex.Cr.App.1987). In its response, the State agreed the Batson error was preserved, and on June 30, 1987, the court of appeals withdrew its original opinion of March 12, 1987, and abated the appeal for a Batson hearing in the trial court.

The Batson hearing was held July 16, 1987, and findings of fact and conclusions of law were filed on August 21, 1987, and a supplemental transcript was filed. The State filed a motion for leave to file a post-submission brief which was granted by the court of appeals on September 15, 1987. In its brief, the State responded to appellant's original claim of purposeful discrimination in the State's use of peremptory challenges and to the trial judge's conclusion that appellant failed to establish a prima facie case of discrimination under Batson. Appellant also then filed motion for leave to file a post-submission brief which was granted in part on September 16, 1987. In his brief, appellant raised eight points of error alleging error from the Batson hearing. ² The court of appeals again affirmed appellant's conviction addressing two of the eight Batson points, holding in pertinent part that the trial court did not err in finding an inference of purposeful discrimination was not raised, and that the exclusion of veniremembers of a different cognizable racial group did not support appellant's claim of purposeful discrimination. ³ Salazar v. State, 745 S.W.2d 385 (Tex.App.--Fort Worth 1987). Appellant filed a second motion for rehearing raising fifteen points of error, ten of which dealt with alleged errors from the Batson hearing. The court of appeals granted this second motion for rehearing on one ground only, to wit: whether the trial court committed fundamental error in charging the jury on the parole law at punishment. See Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1988) (Opinion on Rehearing). The conviction was again affirmed. See Id.

We granted appellant's petition for discretionary review to address nine grounds, numbers two through ten, he raises on Batson error. In grounds for review numbers two through six, appellant contends the court of appeals erred in failing to address his alleged procedural errors in the conduct of the Batson hearing by the trial court. In his seventh ground for review, appellant contends 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. Grounds for review eight, nine, and ten, which present issues addressed by the appellate court, are interrelated and allege respectively that the court of appeals erred in holding appellant failed to establish a prima facie case of racial discrimination by the prosecutor's use of peremptory strikes; that the court erred in failing to hold the prosecutor's use of a peremptory strike to exclude a venireperson of appellant's race is Batson error; and 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.

At the Batson hearing, defense counsel initially objected to the hearing being held in the trial judge's library as opposed to the courtroom. The trial judge overruled the objection finding merit in the State's claim that "the hearing should be held behind closed doors in order to preserve the sanctity of our work product." Appellant and the State stipulated that appellant is Hispanic, that four minority venirepersons, one hispanic and three blacks, were peremptorily struck from the panel, and that he was tried by an all white jury. Appellant then asserted he had established a prima facie case of discrimination, to which the State objected that the exclusion of persons of a different race than the defendant was inapplicable in Batson. The hearing proceeded with the trial judge assuming appellant had established a prima facie case of discrimination and affording the State an opportunity to respond.

Robert Gill, the lead prosecutor in this cause, then testified he and Donald Hase were responsible for the peremptory strikes in this case. The State used all ten of its peremptory challenges, striking the four minority venirepersons in question and six white venirepersons. Gill testified extensively as to the general procedure he follows during voir dire and when making his peremptory strikes. As to prospective juror Gonzalez, the subject of the Batson hearing in the State's view since she was the only Hispanic veniremember, Gill noted on his juror information form that she was Hispanic, while Hase noted she was white. Gill testified Gonzalez was struck for two reasons, to wit: she had the same last name as the defense lawyer and she was a Seventh Day Adventist with a Master of Divinity degree. Gill did not know if Gonzalez was related to defense counsel ⁴, but felt she might favor defense counsel's position over his because of that similarity. Gill also felt that Gonzalez would be weak on punishment and favor rehabilitation because of her advanced degree in religion. ⁵ Appellant's attorney requested the opportunity to cross-examine Gill, but the trial judge denied the request since he believed the hearing was not to be "a full blown adversary type proceeding." ⁶ Appellant's attorney was allowed to make a bill of exception but not by cross-examination, thus no bill was made. Appellant's attorney also requested the juror questionnaires with the State's notes be included in the record. The State objected to this request claiming that put its work product into evidence. The trial judge agreed to seal the juror questionnaires and transmit them with the record if he could obtain them from the court reporter. Appellant's counsel then requested the State present their questionnaire forms for copying and placement into the record in the event that the court reporter could not find her copy of the questionnaires. The State again lodged a work product objection and asked that appellant's attorney include in the record his juror information forms. It was established, however, that appellant's attorney at this hearing was not also trial counsel, and he therefore did not have a copy of the juror information forms. The court again stated he would transmit these forms with the record "if we have them". The hearing then concluded. From reviewing the record, we find the juror questionnaire forms are not included in the supplemental transcript submitted after the hearing.

In the trial judge's findings and conclusions, he stated, after reviewing the evidence offered at the Batson hearing and the objection at trial ⁷, appellant failed to establish a prima facie case of discrimination. In the event the trial court was in error as to that finding, the trial judge went on to address the rebuttal evidence presented by the State and concluded the record did not demonstrate purposeful discrimination in the jury selection process. In its post-submission brief, the State agreed with the trial court that appellant had not established a prima facie case of discrimination, but if the appellate court should find otherwise, the State contended it met its obligation to come forward with neutral explanations for use of peremptory strikes against the four minority veniremembers.

The court of appeals affirmed the trial court's conclusion that appellant failed to raise an inference of purposeful discrimination. The court of appeals held that appellant failed to meet the three Batson criteria for raising an inference of purposeful discrimination. Specifically, the appellate court determined, one, that appellant, as a Hispanic, was a member of a cognizable racial group, and, two, that the State exercised a peremptory challenge to remove Gonzalez, the only member of appellant's race, from the panel, but that, three, appel...