State v. Oliver

• Decision Date: 01 May 1991
• Docket Number: Nos. 334-90,335-90,s. 334-90
• Citation: 808 S.W.2d 492
• Parties: The STATE of Texas, Appellee, v. William Robert OLIVER, Appellant.
• Court: Texas Court of Criminal Appeals

Page 492

808 S.W.2d 492

The STATE of Texas, Appellee, v. William Robert OLIVER, Appellant.

Nos. 334-90, 335-90.

Court of Criminal Appeals of Texas,

En Banc.

May 1, 1991.

Kenneth W. Smith, Houston, for appellant.

Patrick O. Hardy, Dist. Atty., Woodville, Robert Huttash, State's Atty. & Matthew W. Paul, Asst. Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITIONS FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

Appellant was convicted by a jury of possessing more than 400 grams of phenylacetone and less than 28 grams of methamphetamine. The jury assessed punishment at, respectively, ninety-nine years imprisonment and a $100,000.00 fine, and twenty years confinement and a $10,000.00 fine. ¹ These convictions were reversed. Oliver v. State, 787 S.W.2d 170 (Tex.App.--Beaumont 1990).

The State's petitions were granted on two grounds: to determine whether indictments returned after the effective date of Article 1.14(b), V.A.C.C.P., ² are fundamentally defective if they omit any reference to a culpable mental state, and whether a defendant may challenge, as racially discriminatory under Article 35.261, V.A.C.C.P., the State's use of peremptory strikes on prospective jurors of a different racial group than the defendant's.

Both indictments omitted any reference to a culpable mental state, in violation of V.T.C.A. Penal Code, § 6.02(b) and Article 21.03, V.A.C.C.P. Both were returned September 22, 1988. Appellant's motions to quash these indictments made no reference to these defects. On appeal appellant claimed that the failure to allege culpable mental states rendered the indictments fundamentally defective in that no offense was alleged with the result that the trial court never obtained jurisdiction of these cases. The court of appeals agreed, holding that Article 1.14(b) did not apply because purported charging instruments which fail to allege an offense are not indictments within the meaning of Tex. Const., Article V, § 12(b) (1891, amended 1985).

Subsequent to delivery of the court of appeals' opinion we held that a document presented by a grand jury to a trial court, purporting to allege commission of an offense, is an indictment under Article 1.14 even though it omits allegations of a required element or elements. Studer v State, 799 S.W.2d 263 (Tex.Cr.App.1990). The court of appeals erred in concluding the charging instruments in these causes were not indictments because they did not have the benefit of our Studer decision. Appellant waived the substantive defects in the indictments when he failed to complain of the defects prior to trial in these causes.

After the jury was selected, but before it was sworn, appellant presented a motion pursuant to both Article 35.261, V.A.C.C.P., and to Seubert v. State, 749 S.W.2d 585 (Tex.App.--Houston [1st] 1988). He argued that neither Article 35.261 nor the right to a jury representing a fair cross-section of the community, under the Sixth Amendment of the United States Constitution as interpreted in Seubert, require a defendant to be of the same racial group as panel members who are peremptorily struck by the State before he may challenge those strikes as impermissibly discriminatory. Appellant noted that the State had struck eight of the nine black prospective jurors present among the first 32 people on the panel. The State responded that both Article 35.261 and Seubert require that the defendant be of the same race as the persons struck, and the trial court denied appellant's motion without requiring any inquiry into the reasons for the State's strikes.

On appeal appellant abandoned his Sixth Amendment claim in light of this Court's reversal of Seubert v. State, 787 S.W.2d 68 (Tex.Cr.App.1990), but pressed his argument that Article 35.261 does not require that a defendant be of the same racial group as panel members whose strikes are challenged as discriminatory. The court of appeals reviewed the language of the statute, without addressing any constitutional issues, and concluded Article 35.261 made no "same race" requirement. However, the court held that in light of the fundamental defects in the indictments, remand for a hearing under Article 35.261 was unnecessary even though such a remand would otherwise be required.

The State asserts that the legislative intent of Article 35.261 was to codify the holding of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which requires the defendant to be of the same race as the prospective jurors who were struck. The State relies on the legislative history of Article 35.261, as reflected in Carrion v. State, 802 S.W.2d 83 (Tex.App.--Austin 1990, no pet.). Carrion reviewed the language of the statute, relevant provisions of the Government Code, and testimony before committees in both houses of the Legislature which enacted Article 35.261. The Third Court of Appeals rejected the conclusions reached by the courts of appeals in this cause and in Atuesta v. State, 788 S.W.2d 382 (Tex.App.--Houston [1st] 1990, pet. ref'd), concluding that the requirement of Article 35.261 that a defendant be "a member of an identifiable racial group," in light of the legislative history of the statute, effectively adopts the "same race" requirement of Batson.

Subsequent to delivery of all of the above opinions from courts of appeals, the United States Supreme Court held that a defendant has standing to assert the equal protection rights of potential jurors who are improperly prevented from serving as jurors through the discriminatory use of peremptory strikes. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). We now review the scope of Article 35.261, and whether Powers impacts that review.

Article 35.261 provides:

(a) After the parties have delivered their lists to the clerk under Article 35.26 of this code and before the court has impanelled 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.

Section 312.005 of the Government Code provides:

In interpreting a statute, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy.

Section 311.021 of the Government Code (Intention in Enactment of Statutes) provides:

In enacting a statute, it is presumed that:

(1) compliance with the constitutions of this state and the United States is intended;

(2) the entire statute is intended to be effective;

(3) a just and reasonable result is intended;

(4) a result feasible of execution is intended; and

(5) public interest is favored over any private interest.

Section 311.023 of the Government Code (Statute Construction Aids) provides:

In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the:

(1) object sought to be attained;

(2) circumstances under which the statute was enacted;

(3) legislative history;

(4) common law or former statutory provisions, including laws on the same or similar subjects;

(5) consequences of a particular construction;

(6) administrative construction of a statute; and

(7) title (caption), preamble, and emergency provision.

The statute was enacted in 1987, at the first regular session of the Legislature after delivery of Batson. Prior to Batson the use of peremptory strikes in a racially discriminatory manner could be shown only by demonstrating a systematic use of peremptory strikes by the State to prevent members of a cognizable racial group from serving on juries, see Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Therefore, no procedures existed...