Whitsey v. State

• Decision Date: 10 May 1989
• Docket Number: No. 1121-87,1121-87
• Citation: 796 S.W.2d 707
• Parties: Larry Williams WHITSEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 707

796 S.W.2d 707

Larry Williams WHITSEY, Appellant, v. The STATE of Texas, Appellee.

No. 1121-87.

Court of Criminal Appeals of Texas,

En Banc.

May 10, 1989.

Rehearing Granted Nov. 8, 1989.

On Rehearing Sept. 19, 1990.

Stanley G. Schneider, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Kathlyn Giannaula and Bob Stabe, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted by a jury of the offense of burglary of a habitation with intent to commit sexual assault. V.T.C.A. Penal Code, § 30.02(a)(1). The trial court assessed punishment at 99 years imprisonment in the Texas Department of Corrections. The Fourteenth Court of Appeals abated appellant's appeal and ordered the trial court to conduct a hearing on the Batson ¹ issue raised by appellant on appeal. Upon receipt of the transcript of the Batson hearing, the Court of Appeals addressed appellant's points of error and affirmed his conviction in an unpublished opinion. Whitsey v. State, No. C14-85-530-CR, 1987 WL 15052, delivered July 30, 1987. Appellant then petitioned this Court for discretionary review. We originally denied appellant's petition but granted his motion for rehearing on the Batson issue. We will reverse the judgments of the trial court and the Court of Appeals.

After the voir dire of the jury panel was completed, but before the jury was sworn, appellant's counsel objected to the jury on the ground that the prosecutor had used his peremptory challenges to exclude blacks from the jury and that denied appellant "his right to a fair cross-section of the community". Appellant's counsel stated for the record that there were seven blacks in the first forty venirepersons, that the first black veniremember was struck for cause, that the remaining six blacks on the venire were struck peremptorily by the State, and that the State used six of its ten peremptory challenges to strike the blacks from the jury panel. Counsel then also objected that appellant was being denied his due process. The trial court overruled appellant's objections and swore in the jury.

After appellant's conviction on March 11, 1985, he filed a motion for new trial and an amended motion for new trial in which he alleged he was not tried by a jury of his peers because the prosecutor's strikes were racially motivated (a Batson claim), and that the prosecutor used peremptory challenges to systematically exclude blacks from jury panels (a claim based on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965)). ² A hearing was held The Fourteenth Court of Appeals abated the appeal on March 26, 1987, and ordered the trial court to conduct a hearing "to provide the prosecutor with an opportunity to rebut appellant's prima facie showing of purposeful discrimination", i.e., a Batson hearing. ³ In its order, the Court of Appeals concluded appellant established a prima facie showing of purposeful discrimination in the motion for new trial hearing. The Court of Appeals concluded, however, that the prosecutor was not afforded the opportunity to rebut appellant's prima facie case and offer racially neutral reasons for the exercise of the peremptory challenges against the black venirepersons. Nor was the Court of Appeals satisfied that appellant could not present evidence rebutting any neutral explanations offered by the State. Thus, the Court of Appeals ordered the trial court to conduct a Batson hearing and held the appeal in abeyance pending the filing of the statement of facts from the hearing and the findings of fact and conclusions of law of the trial judge.

on appellant's amended motion for new trial on May 30, 1985. At the hearing, appellant's counsel attempted to question the prosecutor about his reasons for striking the blacks from appellant's jury panel. The State's attorney at the hearing objected to any inquiry as to the prosecutor's "individual reasoning process in this case" on the basis of Swain, supra, and the trial court sustained that objection thereby preventing appellant from determining why the prosecutor struck the black venirepersons in his trial. The trial judge, however, allowed appellant's counsel to question the prosecutor about his use of peremptory challenges in other cases and Harris County prosecutors' use of peremptory challenges in general in the past. At the conclusion of the hearing, appellant's counsel argued to the court that the present state of the law allowed him to question an individual prosecutor as to his use of peremptory challenges in a particular trial to determine whether a defendant was denied a fair trial. The State waived any argument, and the trial judge denied the amended motion for new trial. Appellant's counsel gave notice of appeal.

We first note that the record supports the Court of Appeals' decision that appellant established in the motion for new trial hearing a prima facie showing of purposeful discrimination by the prosecutor in his exercise of peremptory challenges. ⁴ The record reflects that appellant is a black man and that no blacks served on appellant's jury. Also, of the seven black persons that were on the jury panel, one was struck for cause and the remaining six were peremptorily struck by the prosecutor. At the hearing on the motion for new trial, the prosecutor testified that he questioned only one of the six black members of the jury panel, who was struck for cause, but he had conducted a general voir dire of the panel and did not ask many questions of individual venirepersons. An inference of discriminatory purpose in the prosecutor's use of peremptory challenges is supported by the totality of these facts.

After the Batson hearing on June 5, 1987, the trial judge entered the following findings of fact and conclusions of law:

"1. The Complainant was black, but the State's only two identification witnesses were white police officers.

2. The only black jury question by either State of (sic) Defense related to that 3. Prosecutor Stabe did not ask any questions of any of the six black jurors, nor did he question individually any of the other jurors on the panel.

juror's friendship with several police officers.

4. Prosecutor Stabe did not have an independent recollection as to the basis of his strikes at the time of the hearing of a Motion of New Trial in May of 1985.

5. Prosecutor Stabe spent six to eight hours refreshing his memory from the actual voir dire and the Motion for New Trial hearing to develop his explanations for his strikes.

6. Prosecutor Stabe used ethnic, religious and job related stereotypes as a basis for his 'neutral explanation.'

7. Prosecutor Stabe, during the jury selection, identified each of the six black jurors on his information sheet by writing the letters 'B' (sic) above their names.

8. The Assistant District Attorney Bob Stabe represented the State of Texas in the trial of [appellant].

9. That Bob Stabe exercised all ten of his peremptory challenges afforded him by Article 35.15(b) of the Texas Code of Criminal Procedure.

10. That Bob Stabe exercised a peremptory challenge on venireperson number 3, John Wesley Wauson, a white male, because he was an attorney and stated that in his opinion the State's burden of proof was a difficult burden.

11. That Bob Stabe exercised a peremptory challenge on venireperson number seven, Gloria Wright Mitchell, a black female, because she engaged in a dialogue with the defense attorney, nodded with the statements of the defense attorney, and, in Bob Stabe's mind, appeared to have a problem with the credibility of police officers in general.

12. That Bob Stabe exercised a peremptory challenge on venireperson number eight, Sherry Lynn Ramsey, a black female, because of her age of twenty-four years and because her husband was employed as a nurses' assistant.

13. That Bob Stabe exercised a peremptory challenge on venireperson number twenty-four, Maurine Anita Fuller, a black female, because of her occupation as a teacher and that in Mr. Stabe's opinion teachers tend to be liberal and forgiving.

14. That Bob Stabe exercised a peremptory challenge on venireperson number thirty, Carol L. Mireles, a white female because of her occupation as a teacher.

15. That Bob Stabe exercised a peremptory challenge on venireperson number thirty-two, Glenda Kaye Johnson, a black female, because of her religious preference, namely, Pentacostal. In Mr. Stabe's opinion those of the Pentacostal faith tend to look to their religion to make decisions and sometimes feel that they speak in tongues, therefore, becoming a fringe religious group.

16. That Bob Stabe exercised a peremptory challenge on venireperson number thirty-five, Willie Lee Hunt, a black male, because of his religious preference, namely, Church of God, and because of an unanswered question on his jury information card. Specifically, Mr. Stabe testified that he has never heard of the Church of God religion and is unaware of how those beliefs may influence a decision by Mr. Hunt.

17. That Bob Stabe exercised a peremptory challenge on venireperson number thirty-six, Virgil James Thompson, a white-male, because of his occupation as a hair-stylist, his length of time on the job of three months, and that, in Mr. Stabe's mind, he appeared to be homosexual.

18. That Bob Stabe exercised a peremptory challenge on venireperson number thirty-eight, Edward H. Rosen, a white male, because of his being of the Jewish faith and from Baltimore, Maryland, both traits indicating a liberal nature.

19. That Bob Stabe exercised a peremptory challenge on venireperson number thirty-nine, Reginald Bernard Ardoin, a black male, because of his age of 21 years and because he appeared to be illiterate in that he could not spell his 20. That the crime that [appellant] was accused of committing was not interracial.

religious preference of Baptist nor his place of...