Trevino v. State

• Decision Date: 26 May 1993
• Docket Number: No. 69337,69337
• Citation: 864 S.W.2d 499
• Parties: Joe Mario TREVINO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 499

864 S.W.2d 499

Joe Mario TREVINO, Appellant, v. The STATE of Texas, Appellee.

No. 69337.

Court of Criminal Appeals of Texas En Banc.

May 26, 1993.

Rehearing Denied Sept. 22, 1993.

Art Brender, Terry M. Casey and Frank P. Colosi, court appointed on appeal, Fort Worth, Charles Van Cleve, court appointed on appeal, Arlington, for appellant.

Tim Curry, Dist. Atty. and C. Chris Marshall, Mary Thornton Taylor & Rufus Adcock, Asst. Dist. Attys, Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT

CAMPBELL, Judge.

Appellant was convicted of capital murder. See Tex.Penal Code § 19.03(a)(2). On original submission, we overruled appellant's twenty-four points of error and affirmed his conviction. Trevino v. State, 815 S.W.2d 592 (Tex.Cr.App.1991). In that opinion, we concluded that appellant had failed in his second point of error to raise an equal protection claim regarding the prosecution's use of its peremptory challenges to strike black people from the venire panel. Id. at 598. The United States Supreme Court granted certiorari, concluded that appellant had preserved his equal protection claim, and remanded appellant's case to this Court. Trevino v. Texas, 503 U.S. 562, 112 S.Ct. 1547, 118 L.Ed.2d 193 (1991). We remanded appellant's case to the trial court with instructions that a full hearing be conducted for the purpose of assessing appellant's BATSON ¹ contentions. Trevino v. State, 841 S.W.2d 385, 387 (Tex.Cr.App.1992). That hearing has been conducted and the record thereof is now before this Court. We will affirm appellant's conviction.

At the hearing, the trial court heard testimony from five witnesses from the prosecution concerning why peremptory challenges had been used to strike the three qualified black members of the venire, Margaret Sanders, Oscar Johnson, and Ella Hollie. Additionally, one of appellant's trial attorneys testified at the hearing. After the hearing, the trial court entered findings of fact and conclusions of law. The trial court found that the prosecution had exercised its peremptory challenges against Sanders, Johnson, and Hollie based upon race neutral reasons. We will overrule the trial court's determinations only if our review of the record reveals them to be clearly erroneous. DeBlanc v. State, 799 S.W.2d 701, 713 (Tex.Cr.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2912, 115 L.Ed.2d 1075 (1991); Whitsey v. State, 796 S.W.2d 707, 721 (Tex.Cr.App.1990) (opinion on rehearing). When the evidence in the record is susceptible to two reasonable interpretations and the trial court's decision is in accord with one of those interpretations, then the trial court's choice between those interpretations may not be deemed clearly erroneous. DeBlanc, 799 S.W.2d at 713; Whitsey, 796 S.W.2d at 721-722.

At the hearing, Judge Rufus Adcock testified. Adcock stated that he had been the lead prosecutor when appellant was tried. He testified that he had conducted the voir dire of both Sanders and Hollie. Regarding Sanders, he stated that he had struck her from the jury because she seemed indifferent to law enforcement and was not in favor of capital punishment. In support of these assertions, Judge Adcock relied on Sanders' comments that she did "not discuss politics, religion or anything to do with the law." He believed that Sanders was against the death penalty because she quoted the Bible in support of her belief "that God says thou shalt not kill [and] vengeance is mine." He also struck Sanders because she had two relatives in the penitentiary and was evasive in a number of the answers she gave.

Concerning Hollie, he was even more convinced that she was not in favor of the death penalty. Hollie admitted that she had not given much thought to capital punishment, but was "leaning closer to not being for the death penalty." Adcock was especially impressed by the fact that Hollie admitted that if she were the foreman of the jury, she would not be able to sign her name to a verdict that would result in a sentence of death. Hollie stated that her inability to perform such an act stemmed from her Christian beliefs. Adcock specifically testified that he received a definite visual and aural reaction from Hollie when he asked her the question about signing the verdict. Additionally, Adcock testified that he struck Hollie because appellant had already exhausted his peremptory challenges. This allowed Adcock to seek jurors who would be better able to return a verdict of death.

Adcock did not conduct the voir dire of Johnson. Instead, an assistant district attorney named Ken Gordon questioned Johnson. Gordon testified that Johnson was struck because he was strongly biased against the death penalty. In support of this, the record of the voir dire reflects that Johnson stated that he would automatically vote against the death penalty regardless of what the facts might show. Additionally, Johnson stated...