Tennard v. State

• Decision Date: 28 November 1990
• Docket Number: No. 69729,69729
• Citation: 802 S.W.2d 678
• Parties: Robert James TENNARD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 678

802 S.W.2d 678

Robert James TENNARD, Appellant, v. The STATE of Texas, Appellee.

No. 69729.

Court of Criminal Appeals of Texas En Banc.

Nov. 28, 1990.

Rehearing Overruled Jan. 30, 1991.

Robert A. Scardino, Jr., court appointed, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Deborah Mantooth, J. Sidney Crowley and Mike Anderson, Asst. Dist. Attys., Houston, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

PER CURIAM ^*.

Appellant, Robert James Tennard, was convicted of capital murder, V.T.C.A. Penal Code, § 19.03(a)(2). Thereafter, the jury made affirmative findings to the special issues required by Article 37.071(b), V.A.C.C.P. In response, the trial court assessed appellant's punishment at death. Appellant's cause is now before us on direct appeal pursuant to Articles 4.04, § 2, and Article 37.07(h), V.A.C.C.P.

Appellant presents three points of error: (1) the prosecutor improperly exercised his peremptory strikes so as to strike black veniremen; (2) a police officer made reference to a witness' taking and passing a polygraph exam; and (3) two witnesses gave unresponsive answers which implied that appellant had previously been incarcerated in the penitentiary.

The sufficiency of the evidence is not challenged; therefore, only a brief recitation of the facts is necessary. Paul Anthony Bogany testified that on the evening of August 15, 1985, he went to the Groovey Shack Lounge located in Harris County, Texas. There he met appellant and another man, Daniel Groom. Around 8:00 p.m., the three walked to the house of an alleged friend of appellant. Appellant, Bogany, and Groom drank liquor and smoked marihuana with the eventual victims, Larry Neblett and Chester Smith, for about half an hour. At some point, Neblett left the room, followed by appellant. Smith remained in the front room with Groom and Bogany. Shortly thereafter, as Smith was changing a record, Groom struck Smith several times with a hatchet. After Smith fell to the ground, Groom ran to the bedroom where appellant and Neblett had gone. As Groom opened the door, a bloody Neblett fell through the doorway. Appellant was seen in the bedroom clutching a knife in his hand. Appellant, Groom, and Bogany then took various pieces of property from the home of the victims and left in a car belonging to one of the victims. Later that evening, the three men arrived at the home of Fred Stewart and Ruby Montgomery. Appellant enlisted Stewart to help sell the proceeds of the robbery. Stewart testified that appellant gave him a couple of gasoline credit cards which he used to purchase gasoline. Stewart was arrested for the unauthorized use of the credit cards, and this ultimately resulted in appellant's arrest.

I.

In his second point of error (which is multifarious but will nevertheless be examined), appellant contends that the trial court erred in allowing the prosecution to exercise peremptory challenges against five members of the black race. At the outset it should be noted that appellant is black. Appellant contends that the prosecutor struck these potential jurors solely on the basis of race in violation of the United States Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (hereinafter cited as "Batson "). In Batson, the Supreme Court concluded that the State's purposeful or deliberate denial of jury participation to black persons solely because of race violates a defendant's rights under the Equal Protection Clause of the United States Constitution.

The record reflects that a venire panel of fifty-six prospective jurors was questioned by the court and the parties. Eighteen of these potential jurors were challenged for cause. The State exercised fifteen peremptory strikes and the defense used ten before the jury, including an alternate, was finally selected. One black was eventually sworn as a juror in this case. After the jury was chosen, but before it was sworn, appellant made a motion to strike the jury and declare a mistrial based on the Batson decision.

At a hearing on appellant's motion, the parties stipulated that appellant was a black man and that fifty-two veniremen had been voir dired. ¹ Appellant offered into evidence copies of the Juror Information Sheets pertaining to the veniremen questioned. The State thereafter reminded the trial court that an explanation had been offered by the prosecutor following the exercise of each peremptory strike upon a black juror. The prosecutor then supplemented his previous explanations with regard to several of those jurors. There is nothing in the record to indicate exactly how many blacks were among the questioned venire. ²

Although the State struck seven blacks peremptorily, appellant complains on appeal of the prosecutor's peremptory strikes of only five of these veniremen. ³

In order to invoke the protections set forth in Batson, a defendant must establish purposeful discrimination by showing that:

(1) he is a member of a cognizable racial group;

(2) the prosecutor exercised peremptory challenges to remove from the venire members of the defendant's race; and

(3) the facts and any other relevant circumstances raise an inference that the prosecutor used these peremptory challenges to exclude the veniremen solely on account of their race.

The proper procedure to be followed by the trial court was aptly stated in Keeton v. State, 724 S.W.2d 58 (Tex.Cr.App.1987):

If the defendant raises an inference of purposeful discrimination through the State's use of its peremptory strikes, and the trial court determines that a prima facie case of discrimination exists, then the burden shifts to the prosecutor who must come forward with a neutral explanation for the challenges. The trial court must then determine whether despite the State's explanation, the defendant has established purposeful discrimination. The Supreme Court in Batson, supra, stressed that not just any explanation would do, and in fact some explanations would per se not be sufficient. Batson, supra, 106 S.Ct. [at] 1722, 1723. By largely judging credibility of the prosecutor, content of the explanation and all other surrounding facts and circumstances, the trial judge must make a finding of fact concerning purposeful discrimination which should be given great deference by a reviewing court. Batson, supra, n. 21.

Keeton, 724 S.W.2d at 65. See also Keeton v. State, 749 S.W.2d 861, 862 (Tex.Cr.App.1988). The standard of review on appeal is the same "clearly erroneous" standard as that articulated in Fed.R.Civ.Proc. 52(a), under which the findings of the trial court will not be disturbed if they are supported by the record. Whitsey v. State, 796 S.W.2d 707 (Tex.Cr.App.1990) (Opinion on State's motion for rehearing).

There is no contention that the issue regarding the State's use of peremptory strikes was not timely presented to the trial court. Henry v. State, 729 S.W.2d 732 (Tex.Cr.App.1987). Indeed, appellant objected following the use of a peremptory strike on each of the veniremen of which he complains. Furthermore, appellant's motion to strike the jury and declare a mistrial was presented to the trial court before the jury was sworn.

A hearing on appellant's motion to strike the jury was held immediately, during which appellant was given the opportunity to present evidence supporting his motion. The State responded after appellant raised an inference of purposeful discrimination. Following the prosecution's explanations for the exercise of its peremptory strikes, the trial judge denied appellant's motion to strike the jury. We now turn to review the trial court's determination that the prosecutor did not improperly strike prospective jurors on the basis of their race.

Analyzing the procedural and evidentiary implications of Batson, in Tompkins v. State, 774 S.W.2d 195 (Tex.Cr.App.1987), affd., 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989), this Court noted 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. Obviously, the trial judge concluded that appellant had established a prima facie case, because he held a hearing to consider the issue. At such a hearing, the burden of production shifts to the State to bring forward a neutral explanation for exercising its peremptory strikes. Batson, 106 S.Ct. at 1723. However, it remains the ultimate burden of the accused to persuade the trial judge by a preponderance of the evidence that the allegations of purposeful discrimination are true. Tompkins, supra. An appellate court must view the entire record in a light most favorable to the trial judge's determination. Keeton, 724 S.W.2d at 64. Reversal is required only if the trial judge's findings of fact are "clearly erroneous" in light of the entire record. Whitsey v. State, supra.

It is the duty of the trial judge, as a fact finder, to weigh the evidence and assess the credibility of the witnesses. The five veniremen allegedly struck by the State because of their race and the prosecution's explanations for its peremptory challenges are set out below:

(1) Henry Nichols: Trouble understanding questions; venireman indicated that a defendant's past criminal history was not relevant to a determination that he might constitute a continuing threat to society; hostility towards prosecutor; venireman was of allegedly limited intelligence;

(2) Evelyn Guillory: Venireman expressed reservations and was ambivalent about the death penalty; venireman was clinical social worker who indicated that her rehabilitative work may influence her in judging this case;

(3) JoAnn Smith: Venireman initially indicated that she was opposed to the death penalty and could not vote so as to impose the death penalty. She later stated that she could follow the law despite her opposition to the death penalty;

(4) L.V. Tummer: Venireman initially...