Vargas v. State

• Decision Date: 24 June 1992
• Docket Number: No. 1507-89,1507-89
• Citation: 838 S.W.2d 552
• Parties: Orlando VARGAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 552

838 S.W.2d 552

Orlando VARGAS, Appellant, v. The STATE of Texas, Appellee.

No. 1507-89.

Court of Criminal Appeals of Texas,

En Banc.

June 24, 1992.

Karen Zellars, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Lester Blizzard, Debbie Hawkins and Gilbert Alvarado, Asst. Dist. Attys., Houston, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

BENAVIDES, Judge.

A jury convicted appellant of unlawful delivery of a controlled substance. The court found two enhancement paragraphs true and assessed punishment at confinement for thirty-five (35) years. The Court of Appeals affirmed the conviction. Vargas v. State, 781 S.W.2d 356 (Tex.App.--Houston [1st] 1989). We granted appellant's petition for discretionary review to consider whether the State's use of its peremptory challenges violated appellant's right of due process under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

In Batson the United States Supreme Court reaffirmed that the State's purposeful use of peremptory challenges in a racially discriminatory manner violates the equal protection clause of the fourteenth amendment. The Court outlined a new method of showing such discrimination. Once a defendant makes a prima facie showing of the State's discriminatory use of peremptory challenges, the burden shifts to the State to give a neutral explanation for the peremptory challenges. The Supreme Court emphasized that this explanation must be clear and reasonably specific. General assertions that a prosecutor's reasons are not discriminatory or that the challenged venireperson would be partial to the defendant because of their shared race are not sufficient to rebut a prima facie case.

The record reflects that after the jurors were selected but before they were sworn, defense counsel objected to the State's use of its peremptory challenges to strike five of six blacks on the venire. At the trial court's request the prosecutor proffered his response to defense counsel's objection setting forth the reasons for his strikes. The prosecutor did so.

The Court of Appeals characterized the prosecutor's reasons for his strikes as "racially neutral, albeit weak." Citing Keeton v. State, 749 S.W.2d 861 (Tex.Cr.App.1988), the court examined the evidence in the light most favorable to the trial court's rulings and upheld the ruling because it was supported by the record. The court noted that other than his initial objection, appellant did nothing further to prove his allegations that the prosecutor had exercised his peremptory strikes in a racially discriminatory manner and did not show that the prosecutor's neutral explanations were merely pretextual. The Court of Appeals refused to consider appellant's argument, made for the first time on appeal, that a comparison of the white venirepersons that the State did not strike with the black venirepersons that the State struck showed some white venirepersons with characteristics similar to the black venirepersons.

Appellant contends that the Court of Appeals erred in holding that footnote 6A in Tompkins v. State, 774 S.W.2d 195, 202 (Tex.Cr.App.1987), precluded a comparison analysis between white venirepersons who were not struck and black venirepersons who were struck. Appellant also contends that even if the comparison analysis is not utilized, the prosecutor's stated reasons are racially discriminatory under so-called objective standards such as those discussed in Keeton. It is to this latter contention we turn first.

As the Court of Appeals stated, in Keeton a majority of this Court held that an appellate court should review a Batson issue by viewing the evidence in the light most favorable to the trial judge's rulings and determining if those rulings are supported by the record. A plurality of this Court sought to further define the applicable appellate standard of review in Batson cases. In Whitsey v. State, 796 S.W.2d 707 (Tex.Cr.App.1990) (opinion on rehearing), the plurality adopted the "clearly erroneous standard" as an extension of the "supported by the record" standard. Id. at 712. ¹ The plurality also stated that the "supported by the record" standard "is actually an analytical tool used in determining whether a trial judge's findings of fact are clearly erroneous or should be accorded great deference." Id. at 740. The analysis is essentially the same under any of these standards.

In Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (delivered May 28, 1991), a majority of the United States Supreme Court held that Batson claims, whether from federal or state courts, are to be analyzed under a "clear error standard of review." Id. at ----, 111 S.Ct. at p. 1871. The Court emphasized the factual nature of Batson inquiries stating:

Batson's treatment of intent to discriminate as a pure issue of fact, subject to review under a deferential standard, accords with our treatment of that issue in other equal protection cases. [citations omitted]

* * * * * *

Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding will 'largely turn on evaluation of credibility.' 476 U.S., at 98, n. 21 . In the typical peremptory challenge inquiry, the decisive question will be whether counsel's race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor's state of mind based on demeanor and credibility lies 'peculiarly within a trial judge's province.' [citation omitted]

Id. at ----, 111 S.Ct. at p. 1869. The Court discounted a claim that caselaw indicated an appellate court should make an independent review of the facts involved in a Batson contention. The Court noted that proper deference was shown to state court factual determinations when a reviewing court was not left with a " 'definite and firm conviction that a mistake has been committed.' United States v. United States Gypsum Co., supra, [333 U.S. 364] at 395 [68 S.Ct. 525, at 542, 92 L.Ed. 746 (1948) ]." Id. at p. ----, 111 S.Ct. at p. 1871.

We apply this "clear error standard of review" as explained in Hernandez. We apply this standard by reviewing the record, including the voir dire and the racial makeup of the venire, the prosecutor's neutral explanations, and appellant's rebuttal and impeaching evidence.

Appellant's contention that the objective factors discussed in Keeton control the analysis is not correct. These factors certainly may be considered in evaluating the trial judge's overruling of a Batson claim, but they are not determinative. The overriding standard is still whether the trial judge's decision was supported by the record so that it is not clearly erroneous. Appellant relies upon three of these objective factors to contend that the prosecutor's reasons for his strikes were not shown to be racially neutral. Appellant argues that the prosecutor's strikes of Clark, Porter and Martin demonstrate an assertion of a group bias without showing that the group trait applies to the challenged juror; that there was no examination or perfunctory examination of the challenged venirepersons; and that the given explanation had no rational relationship to the case on trial. Appellant did not cross-examine or impeach the prosecutor to show that the prosecutor's "assumptions" that a venireperson who was a legal assistant, a venireperson with a previous arrest, and one who had a relative convicted of public intoxication, would not favor the State in any given case.

In Whitsey this Court discussed with approval several federal cases involving prosecutors' explanations based upon age, eye contact, body language, and that the venirepersons were " 'young, single, and without children or a 'substantial stake in the community' and that each appeared inattentive....' ....' " Whitsey, supra, at 725 (quoting United States v. Lance, 853 F.2d 1177 (5th Cir.1988). This Court noted that the courts of appeals in those cases deferred to each trial judge's findings because the prosecutor partially based his neutral explanations on nonquantifiable characteristics and the trial judge personally observed the proceedings. Likewise, in the instant case the trial judge observed the proceedings, including that of the six blacks on the venire, one served on the jury and the prosecutor struck the other five for the following reasons:

Veniremember Gordon--No. 4

No. 4, Your Honor, she stated that in response to my question she needed more than one eyewitness. She was brought up to the bench and upon further questioning she told you that she could be a fair and impartial witness; she thinks she could follow the law.

I'm not convinced of that fact and therefore, I struck No. 4.

Veniremember Clark--No. 16

No. 16 is Ms. Lennie Clark. She's a legal assistant, Your Honor. And I'm not making a general habit to strike people in the legal community. It's my experience that they have been my toughest. So therefore, I struck; and also, she sat somewhat unattentively.

Veniremember Guitry--No. 22

No. 22 told me during my voir dire examination he had a nephew killed by police officers and he had a real bad experience. He didn't think he would block that from his mind. At the bench he told this Court that he didn't have faith in the D.A.'s Office and therefore, Your Honor, I struck him. ²

Veniremember Porter--No. 28

No. 28 has a family member that was convicted of a PI. I struck her for those reasons. I struck 26 which is a white male Caucasian because he had a cousin that was in drugs. I struck No. 7 which is a white male Caucasian because he was arrested for PI ...

Veniremember Martin--No. 36

... [A]nd then on No. 36, Your Honor, ...