Silva v. State, 04-89-00415-CR

• Decision Date: 24 October 1990
• Docket Number: No. 04-89-00415-CR,04-89-00415-CR
• Citation: 800 S.W.2d 912
• Parties: Ben SILVA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 912

800 S.W.2d 912

Ben SILVA, Appellant, v. The STATE of Texas, Appellee.

No. 04-89-00415-CR.

Court of Appeals of Texas San Antonio.

Oct. 24, 1990.

William Rugeley, San Marcos, for appellant.

W.C. Kirkendall, Dist. Atty., Seguin, for appellee.

Before BUTTS, REEVES and CHAPA, JJ.

OPINION

BUTTS, Justice.

This is an appeal from a conviction for voluntary manslaughter with punishment assessed at ten years' imprisonment.

There are two points of appeal, both contending error occurred during trial. The first is that the trial court erred by denying appellant's Batson v. Kentucky ¹ challenge to the State's exclusion from the jury of persons of Hispanic surname.

After the peremptory strike lists of appellant and the prosecution were completed ², appellant obtained a hearing based on the prosecution striking persons with Hispanic surnames from the jury venire, which resulted in an all white petit jury. The court conducted a Batson hearing. See also TEX. CODE CRIM PROC.ANN. art. 35.261 (Vernon 1989).

In Batson the United States Supreme Court held that the Equal Protection Clause forbids a prosecutor from challenging potential jurors solely on account of their race or on the assumption that jurors of the same race as a defendant, as a group, will be unable impartially to consider the State's case against that defendant. Dewberry v. State, 776 S.W.2d 589, 590 (Tex.Crim.App.1989). The defendant must first show he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. The defendant must further show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the impaneling of the petit jury raises the necessary inference of purposeful discrimination. See Dewberry v. State, 776 S.W.2d at 590, citing Batson 476 U.S. at 96, 106 S.Ct. at 1722.

The court, in Tomkins v. State, 774 S.W.2d 195 (Tex.Crim.App.1987), aff'd, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989), stated that a prima facie case represents the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true. Id. at 201. Once the defendant establishes a prima facie case, the burden shifts to the State to come forward with a neutral explanation of why its peremptory strikes were used on persons of the defendant's race. The explanation need not rise to the level of justifying the exercise of a challenge for cause, however, the prosecutor must articulate a neutral explanation related to the particular case to be tried. See Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723-24. The trial court then will have the duty to determine if the defendant has established purposeful discrimination. Id. at 98, 106 S.Ct. at 1724.

The Batson court emphasized that a finding of intentional discrimination is a finding of fact. A reviewing court ordinarily should give findings by the trial judge great deference since they turn largely on evaluation of credibility. Id. at 98, note 21, 106 S.Ct. at 1724, note 21. Accord Keeton v. State, 749 S.W.2d 861, 870 (Tex.Crim.App.1988). "[The focus of the trial judge, as well as the appellate court] should be on whether purposeful discrimination was established. We will of course consider the evidence in the light most favorable to the trial judge's rulings and determine if those rulings are supported by the record. If the record supports the findings of the trial judge, they will not be disturbed on appeal." Keeton, 749 S.W.2d at 870.

In this case the trial court did not make findings of fact. However, by overruling the motion for a determination of purposeful discrimination, the court impliedly found there was none. We will review the record accordingly.

The strike lists in our record reflect that the defendant struck one Hispanic and exercised all 10 peremptory strikes, with two of them exercised on unreached potential jurors (outside the final panel). The State's strike list shows it exercised all 10 peremptory strikes, four of them on Hispanic veniremen who were encompassed within the final panel and two on Hispanic veniremen who were not reached. The State struck three white veniremen who were reached on the panel and one who was not reached. The strike lists reflect three "double" strikes by appellant and the State, all on white veniremen with two above the cut-off place, and one below.

Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all as long as that reason is related to his view concerning the outcome of the case to be tried, he may not do so solely on account of race on the assumption that Hispanic jurors will be unable to impartially consider the State's case against a Hispanic defendant. Batson, 476 U.S. at 97, 106 S.Ct. at 1723.

In the present case the prosecutor offered his explanation of the use of peremptory strikes which excluded venirepersons of the same race as the defendant. He testified that the strikes were based primarily on the age of the veniremen. "I struck, with the exception of one juror, every juror below the age of thirty because ... from my experience as a prosecutor and defense lawyer ... older jurors are generally more likely to be prosecution minded or favorable to the prosecution." He gave the recorded age of veniremen struck by him. They were: 1. Bueno, age 24; 2. Shaper (white), age 22 (double strike); 3. Reed (white), age 28; 4. Campos, age 27; 5. Nieto, age 22 (a student at Gary Job Corps--the prosecutor said it was his experience that some people with criminal records or problems with authorities have been students there); 6. Mitchell, age 25 (white, a double strike who was not reached on the panel); 7. Castillo, age 25; 8. Lea Ann Miller Rodriguez (white, married to Hispanic), age 25; 9. Guinn (white, "didn't like his looks"--a double strike also); 10. Casarez, age 47. The prosecutor said he made this strike because "he is currently unemployed. Unemployed people are less likely to be sympathetic to the prosecution. In addition, I elicited during voir dire the fact that he is unemployed, and I believe I embarrassed him in front of the rest of the jury panel, and he would not be disposed to be favorable to me."

He stated he did not strike one juror, Peterson, age 28, because "I know him personally. And I also know he works for the City of Schertz and has worked there a long time. I kept him because he is employed by a public entity. I know him to be of a good reputation. My practice has been to strike jurors [less than thirty years of age] unless I know them or their family or know of them."

On cross-examination the prosecutor was asked only one question: whether Peterson was the only juror on the jury under thirty years old. The answer was that was the only one the prosecutor was "aware of that I did not strike." The record reflects that, in fact, Peterson was the only juror under the age of thirty. There was therefore no resulting impeachment by the question and answer. The appellant presented no other evidence.

The finding of the trial court is based on the credibility of the prosecutor, content of the explanation, and all the other surrounding facts and circumstances. The age reasons given by the prosecutor in this case can be said to be related to the outcome of this case. Further, the record does not disclose disparate examination of Hispanic members of the venire, nor did appellant argue that to the trial court or on appeal.

Under Batson, once this prosecutor gave a race-neutral explanation of his legitimate reasons for exercising his peremptory strikes, appellant's prima facie case was rebutted. The burden to show purposeful discrimination shifted back to appellant to impeach or refute the neutral explanation or show that it was merely a pretext. However, the prosecutor's testimony was not controverted or impugned. The trial judge in the present case, as the fact finder, determined no purposeful discrimination had been shown. We cannot say this was "clearly erroneous." See Whitsey v. State, 796 S.W.2d 707 (Tex.Crim.App.1990). We agree and overrule point of error one.

Appellant next asserts that error occurred when the trial court allowed the prosecutor to "testify" during final argument at the guilt/innocence phase of trial.

When appellant testified at trial, the prosecutor sought to impeach him by reading from excerpts of his testimony before the grand jury. The grand jury testimony was typed into transcript from a tape recording (no grand jury reporter). Defense counsel then countered by questioning appellant about the grand jury testimony, filling in and correcting certain missing and unrecorded parts of the transcript, where the word "inaudible" had been inserted. From his testimony at trial explaining and enlarging upon the grand jury transcript, it was plain that appellant relied upon self defense or proof of the lesser offense of voluntary manslaughter.

During jury argument the defense counsel said he was upset because the prosecutor misread something about his client. "He intentionally left you with the impression that that was all my client had said at that time in that tape recording." Defense argument continued:

But on the end of that was the word "inaudible." The question was, "Did you think he was going to kill you." "Well, nobody know." Then inaudible. And then the prosecutor got up here and showed that to Mr. Silva ... He gets him to admit that [was] all he said ... "I don't know why the State is driven to do that to try and get a conviction in this case."

The prosecutor, in final argument, called this a slur. "How can I be underhanded when I showed it to his client and he was reading along, and counsel had a copy." The court sustained the defense objection to "outside the record." At that...