Wyle v. State

• Decision Date: 19 August 1992
• Docket Number: No. 08-90-00339-CR,08-90-00339-CR
• Citation: 836 S.W.2d 796
• Parties: James WYLE, III, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 796

836 S.W.2d 796

James WYLE, III, Appellant, v. The STATE of Texas, Appellee.

No. 08-90-00339-CR.

Court of Appeals of Texas El Paso.

Aug. 19, 1992.

Dolph Quijano, Jr., El Paso, for appellant.

Steve W. Simmons, Dist. Atty. of El Paso County, El Paso, for appellee.

Before OSBORN, C.J., and KOEHLER and BARAJAS, JJ.

OPINION

BARAJAS, Justice.

This is an appeal from a conviction of capital murder which resulted in the assessment of a life sentence. In two points of error, James Wyle, III, Appellant, seeks review of the trial court's judgment by challenging the State's allegedly improper exercise of two peremptory strikes. Due to the nature of these points of error, a synopsis of the underlying facts is not necessary, and we will address both points simultaneously. We affirm.

In both points of error, Appellant argues the trial court's denial of his BATSON ¹ challenge to the State's peremptory challenges and subsequent excusing of two black veniremembers was error. In Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), the Supreme Court has reaffirmed that an accused is entitled to a trial by a jury whose members were selected on a racially-neutral, nondiscriminatory basis. The proper standard of review will be set out as we discuss the merits of Point of Error No. One and will be similarly applied to the merits of Appellant's complaint in Point of Error No. Two.

Initially, it is incumbent upon Appellant, if he is to be successful, to provide a record illustrating the trial judge's findings are clearly erroneous. Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App.), cert. denied, 501 U.S. 1239, 111 S.Ct. 2875, 115 L.Ed.2d 1038 (1991). See also generally, Lemon v. State, 837 S.W.2d 163, 167-68 (Tex.App.--El Paso 1992, pet. filed). The record is viewed in the light most favorable to the trial judge's ruling, and if the findings are supported by the record, the trial judge's ultimate conclusion that the prosecution exercised its peremptory challenges with no purposeful discrimination will not be found to be clearly erroneous. Cantu v. State, No. 70,739, slip op. at 31, 1992 WL 116290 (Tex.Crim.App. June 3, 1992); Williams, 804 S.W.2d at 101. As propounded in Williams, such a review is conducted in three steps. First, did the accused introduce sufficient evidence at a Batson hearing to establish a prima facie case of the State's purposeful discrimination? Second, if so, did the State rebut the accused's prima facie case with a neutral explanation? Lastly, if the prima facie case is adequately rebutted by the State, did the accused meet his continued burden to persuade the court, by a preponderance of evidence, by countering the State's proposed neutral, nondiscriminatory explanation. Williams, 804 S.W.2d at 101. In sum, we must, if properly preserved, review the record to determine whether the State's explanations "were indeed race neutral on their face," and if so, whether evidence to the contrary persuasively demonstrates the State's "utilization of the jury strikes were nothing more than a pretext for the racially motivated exercise of the peremptory challenge...." Id. at 102. See also Tex.Code Crim.Pro.Ann. art. 35.261 (Vernon 1989).

In order to establish a prima facie case, Appellant must show: (1) the excused veniremember was a member of a minority; and (2) other relevant circumstances which raise an inference of discriminatory use of peremptory challenges. Salazar v. State, 818 S.W.2d 405, 408 (Tex.Crim.App.1991); Lemon, 837 S.W.2d at 168. ² The record illustrates Appellant is a black male. The State does not challenge Appellant's assertions to the trial court that the excused veniremembers were also black; thus, establishment of a prima facie case that the State utilized discriminatory criteria in the selection process is deemed by default. Lemon, 837 S.W.2d at 168; Jones v. State, 795 S.W.2d 32, 34 (Tex.App.--Houston [1st Dist.] 1990), aff'd, 818 S.W.2d 532 (Tex.Crim.App.1991). ³

Accordingly, the burden of production shifted to the State to rebut the prima facie showing with a neutral explanation for striking the venireman. Salazar, 818 S.W.2d at 409. At this point, the issue is the facial validity of the prosecutor's explanation which will be deemed race neutral unless a discriminatory intent is inherent in the explanation. Hernandez, 500 U.S. at ----, 111 S.Ct. at 1866, 114 L.Ed.2d at 406. Regarding Appellant's first point of error, the prosecutor iterated to the court that the reason venireman Walter Keys was struck was because he stated that, under no circumstances, would he assess the death penalty to a member of a minority. The prosecutor elaborated in that Keys had "done some independent research concerning the death penalty and found out that minority groups were the ones that, ... were more likely [to receive] the sentence of death in almost all the states and therefore we felt that his response to that question that under no circumstances he would give the death penalty, that he had a bias against the State and a prejudice against the State and against the law...."

After the State asserted its racially neutral reason for excluding the venireman, the burden of persuasion rested on Appellant to prove by a preponderance of evidence the invalidity of the State's explanation. See Salazar, 818 S.W.2d at 409. Appellant responded that he had rehabilitated the veniremember in that Mr. Keys stated he would be able to assess the death penalty "should the facts warrant it and should the State meet its burden of proof." Appellant also pointed out that he believed Mr. Keys statement regarding the disproportionate application of the death penalty was based merely on common knowledge. Not having been persuaded, the trial judge denied Appellant's Batson challenge and concluded that Mr. Keys changed his mind regarding the potential assessment of the death penalty "only after astute counsel for defense reminded him he was not serving his race at all by disqualifying himself [from] the jury." As such, the court found the State had articulated an "explanation on the strike that is completely different from the grounds of the race even though race is involved in the man's reasoning and his justifiable and quite obvious hostility towards what's happening...."

As previously stated, Appellant, if he is to be successful, must provide a record illustrating the trial judge's findings are clearly erroneous. Williams, 804 S.W.2d at 101. The trial court accepted the explanation of the State as one based upon racially neutral grounds. Since the best evidence from which to make this determination is the demeanor of the prosecutor, the trial judge is peculiarly situated to ascertain the credibility of the prosecutor; therefore, the court's ruling is given great deference. Hernandez, 500 U.S. at ----, 111 S.Ct. at 1869, 114 L.Ed.2d at 409; Cantu, slip op. at 32-3. Since the decision to strike a particular veniremember is a fluid process and not susceptible to rigid quantification, the trial court's denial of a Batson challenge will not be found clearly erroneous unless the record persuasively indicates that the prosecutor's explanation was undermined to the extent that the trial court's ruling was unreasonable. See Cantu, slip op. at 32-3.

In regard to Mr. Keys, the veniremember stated repeatedly, during individual voir dire, that he would neither sentence nor vote to sentence a minority member to death. In his attempt to rehabilitate Mr. Keys, Appellant asked whether he "would never be able to answer [the capital punishment questions] based on the evidence" in relation to a minority defendant. The response was "I have a problem with it." In a further attempt to rehabilitate Mr. Keys, Appellant stated that in order to qualify him as a juror, he must assure the court that he could follow the law and answer the questions "Yes" without regard to Appellant's minority status if the State proved its case beyond a reasonable doubt. Keys stated, "[y]eah, I could do it." Since the State had not levied a challenge for cause against Keys, Appellant sought to persuade the trial court that the State's assertion of a bias in its proposed racially neutral explanation was a "sham." Otherwise, Appellant did not further seek to persuade the court that the State's peremptory strike was purposefully discriminatory.

Generally, it is proper to exclude a veniremember by peremptory ⁴ strike due to opposition to the death penalty even if such a belief would not...