Saldivar v. State
| Decision Date | 01 October 1998 |
| Docket Number | No. 14-96-00010-CR,14-96-00010-CR |
| Citation | 980 S.W.2d 475 |
| Parties | Yolanda SALDIVAR, Appellant, v. The STATE of Texas, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Patrick J. McGuire, Corpus Christi, for appellant.
Adolfo Aguilo, Corpus Christi, for appellee.
Before MURPHY, C.J., and HUDSON and SEARS, JJ. *
Appellant entered a plea of not guilty to the offense of murder. See TEX. PENAL CODE ANN. § 19.02 (Vernon 1994). A jury found her guilty and assessed punishment at confinement for life in the Institutional Division of the Texas Department of Criminal Justice. In seventeen points of error, appellant contends the trial court erred in: (1) permitting the prosecutor to exclude venire persons solely on account of their race; (2) sustaining the State's challenge of a venire person; (3) denying certain constitutional protections because the State did not disclose impeachment evidence; (4) admitting her written statement; (5) admitting evidence of extraneous misconduct; (6) denying a requested jury instruction and a special issue; (7) admitting irrelevant and prejudicial opinion evidence at the punishment phase of trial; (8) denying her motion for mistrial because of prosecutorial misconduct; and (9) denying her motion for new trial because exhibits have been lost or destroyed. We affirm.
Appellant shot complainant, Selena Quintanilla Perez, in the back as complainant walked toward the door of appellant's room at the Corpus Christi Days Inn. Complainant ran from the room toward the lobby of the motel, screaming. Appellant followed her in armed pursuit. Upon entering the lobby, complainant collapsed. Before passing out, complainant told motel employees that appellant shot her.
In the meantime, appellant returned to her room. Shortly, thereafter, she went to her truck in the motel parking lot, where she was confronted by police officers. For more than nine hours, appellant sat in the truck and threatened to commit suicide. She eventually surrendered to police after conversing for several hours with members of a special hostage negotiation team.
In her first point of error, appellant contends the trial court erred in permitting the State to exercise its peremptory challenges to exclude venire members solely on account of their race. The Fourteenth Amendment to the United States Constitution prohibits the State from using its peremptory strikes in a racially discriminatory manner. See Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). To codify and implement this prohibition in Texas, the Legislature enacted article 35.261 of the Texas Code of Criminal Procedure. See Hill v. State, 827 S.W.2d 860, 863 (Tex.Crim.App.1992). Article 35.261 provides in pertinent part:
After the parties have delivered their lists [of peremptory challenges] to the clerk ... and before the court has impaneled the jury, the defendant may request the court to dismiss the array and call a new array in the case. The court shall grant the motion of a defendant for dismissal of the array if the court determines that the defendant is a member of an identifiable racial group, that the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race. If the defendant establishes a prima facie case, the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges. The burden of persuasion remains with the defendant to establish purposeful discrimination.
(b) If the court determines that the attorney representing the state challenged prospective jurors on the basis of race, the court shall call a new array in the case.
TEX.CODE CRIM. PROC. ANN. art. 35.261 (Vernon 1989).
The record reflects that appellant's trial counsel did not raise the Batson challenge until after the jury was seated and sworn. After both parties exercised their peremptory challenges but prior to seating the jury, appellant's trial counsel requested an opportunity to make a record regarding the trial court's denial of his request for additional peremptory challenges. Appellant's trial counsel said, The trial judge responded, "That's correct." The trial judge asked if everyone had inspected the jury list. Both parties responded that they would like to inspect it. The jury was then sworn and seated. After the trial court released the jury, appellant's trial counsel objected to the State's use of its peremptory challenges as follows:
Secondly, Your Honor, with regard to the jury selection, I just want to make a note that the juror--the prosecution has struck all but one of the African-Americans that were on the panel. There's only one African-American there. They have struck eight African-Americans from the panel. They struck 13, 21, 26, 34, 38, 39, 48, and 49. We demand that the panel be quashed because of the way they did their striking, and they did it in a prejudicial way by striking racially.
The prosecutor objected that the motion was untimely. The trial judge, however, questioned whether the prosecutor was present when appellant's trial attorney made the objection. After a brief discussion as to whether the objection was preserved, the trial court postponed argument on the motion until the next morning.
The following day, appellant's trial counsel reminded the trial court that he asked to make objections to the impaneling of the jury and that the court permitted him to do so after the jury was seated. Once again, a discussion ensued regarding when appellant's trial counsel made the Batson challenge and whether the trial court permitted him to make objections to the impaneling of the jury after the jury was seated. Appellant's trial counsel finally admitted, "Your Honor, let me say this: I had no inclination as to pass the challenge because I hadn't seen the color of the faces; and then, as they were seated, at the time that they did, I knew that I should do that, and I made it." Without deciding whether the objection was preserved, the trial judge allowed appellant's trial counsel to renew his Batson challenge. The prosecutor once again objected, stating the challenge was untimely. When asked, the prosecutor declined the opportunity to state the reasons for striking the African-American venire members and objected that appellant had not met her burden to establish a prima facie case. After hearing argument, the trial court denied appellant's motion to quash the panel.
The record shows that appellant's trial attorney did not make a Batson challenge until after the jury was seated and sworn. Still, appellant contends the challenge was timely. She implies the parties discussed the Batson challenge during an unrecorded bench conference, thus explaining the trial court's response that the prosecutor who objected to the challenge was not present when the objection was made. 1 "Such supposition on the part of this Court, however, cannot substitute for what has actually found its way into the appellate record." Cockrum v. State, 758 S.W.2d 577, 585 n. 7 (Tex.Crim.App.1988). Because the record reflects that appellant's trial attorney did not timely object, appellant's Batson challenge was not preserved for appellate review.
Even if the Batson challenge was untimely, appellant contends her request to strike the panel based on a Batson violation was timely and preserved for review in light of Moss v. State, 877 S.W.2d 895 (Tex.App.--Waco, 1994, no pet.) (opinion on reh'g). Moss is distinguishable from the facts of this case. The defendant in Moss filed a written Batson objection before the trial court called the jurors' names, but failed to obtain a ruling before the jury was seated and sworn. Id. at 897. "Thus, the objection was timely under article 35.261." Id. (emphasis in original). The question before the Waco Court of Appeals was whether the objection was preserved for appellate review. See id. That appellate court noted the purpose of requiring a timely specific objection under former rule 52(a) of the Texas Rules of Appellate Procedure is to allow the trial court the opportunity to rule on the complaint and then to proceed with trial in a proper procedural and substantive manner. Id. Consequently, the Waco Court of Appeals found the defendant obtained a timely ruling because the trial court could have granted a mistrial after empaneling the jury if it had found a Batson violation. Id. at 898.
Here, appellant did not make a timely Batson objection. Therefore, she did not preserve error for appellate review. We overrule appellant's first point of error.
In her second point of error, appellant contends the trial court abused its discretion in sustaining the State's challenge for cause levied against prospective juror Gwendolyn J. Harris and in denying appellant's requests for additional peremptory challenges. Appellant contends Harris was a qualified venire person; thus, the trial court had no discretion to excuse her under article 35.16 of the code of criminal procedure. Article 35.16 "provides a framework under which unqualified potential jurors may be discovered by the parties and excised from the panel without a need to resort to the exercise of a peremptory strike." Butler v. State, 830 S.W.2d 125, 130 (Tex.Crim.App.1992) (emphasis in original).
Harris indicated on a...
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