Yarborough v. State

• Decision Date: 11 June 1997
• Docket Number: No. 0235-94,0235-94
• Citation: 947 S.W.2d 892
• Parties: Larry YARBOROUGH, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 892

947 S.W.2d 892

Larry YARBOROUGH, Appellant, v. The STATE of Texas.

No. 0235-94.

Court of Criminal Appeals of Texas,

En Banc.

June 11, 1997.

Charles H. Roach, Fort Worth, for appellant.

Steven W. Conder, Asst. Dist. Atty., Fort Worth, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

WOMACK, Judge.

The question in this case is whether a prosecutor's unchallenged statement about a venire member's demeanor can constitute adequate support for a trial court's finding in a Batson hearing.

The venire panel in this case comprised 42 persons. Because one person was excused for cause, the last person reached for jury service was Number 33. The parties agreed that the State peremptorily challenged 7 black venire members and 2 Hispanic venire members. The parties also agreed that 10 of the 33 people were black, 3 of whom served on the jury. The appellant challenged each of these 9 strikes on Batson grounds. It is not disputed that the appellant made a prima facie showing that the State used peremptory challenges to exclude venire members from jury service because of their race.

When the State came forward to present race-neutral explanations for each of the contested strikes, the prosecutor offered to take the witness stand and be sworn. Defense counsel said he would "waive the oath as far as [the prosecutor] is concerned, being an officer of the Court, and assume the testimony is the same as if he is under oath."

When Venire Member Martinez was discussed, the prosecutor stated:

Mr. Martinez, quite frankly, Judge, the notes I put down when I got through talking to him was he has poor facial expressions. He's very inattentive, looks unhappy to be here, body language, posture was such that just made him feel he was uncomfortable. The only way I can characterize it is he had a very long, unhappy face, mouth down-turned at the corners, eyes downcast. And he was, quite frankly, that way not only to the State, but when being addressed by Defense Counsel.

My feelings were is that [sic ] he just wasn't--didn't want to be here, wasn't happy to be here, and I just felt like he was an unknown quantity rather than risk having an unhappy person on the jury or somebody that didn't respond readily to questions that were asked, would be to strike him, Judge.

Defense counsel did not dispute the prosecutor's characterization of Martinez's demeanor. In reply, the defense counsel stated that Martinez had been a juror in a civil case, that he ranked punishment as the primary goal of the criminal justice system, and that "the only significant question" the prosecutor asked Martinez individually concerned his occupation. (In fact the prosecutor had asked Martinez ten questions which inquired about some of these matters and about other matters as well. The defense counsel also addressed Martinez individually twice.) The prosecutor agreed that Martinez looked good "on paper" (the venire members had answered a written questionnaire), but that Martinez's body language and posture gave him a "gut feeling" Martinez did not want to be there.

The trial judge made no comment regarding whether he had observed Martinez.

The court heard dialogue from counsel about all the peremptory challenges. The court simply ruled, "I find that the reasons given by the State are reasonable and not racially motivated and deny the Batson challenge." The appellant does not question that the trial court's ruling was an adverse finding of fact.

The jury convicted the appellant of delivery of cocaine, and the court sentenced him to five years' confinement.

In the court of appeals the appellant presented one point of error, that under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the trial court erred in overruling his challenges to the State's systematic exclusion of nine venire members from the jury solely because of their race. The court of appeals sustained the point of error, reversed the judgment entered by the trial court, and remanded for a new trial. Yarborough v. State, 868 S.W.2d 913 (Tex.App.--Fort Worth 1994).

In its petition for discretionary review, the State claims that the trial court's ruling was not clearly erroneous, see Tennard v. State, 802 S.W.2d 678, 682 (Tex.Cr.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1991); Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Cr.App.1989) (opinion on rehearing), and that therefore the court of appeals improperly reversed the judgment of the trial court. We granted review to determine if the court of appeals rendered an opinion in conflict with opinions of this Court and of other courts of appeals. Tex.R.App. Pro. 200(c)(1), (3).

The court of appeals addressed only the strike of Venire Member Martinez, in this fashion:

"When the State strikes a juror on a basis that cannot easily or objectively be determined by the reviewing court, that basis must be substantiated by something other than the prosecutor's statement and that something must be on the record. See Roberson [v. State, 866 S.W.2d 259, 261 (Tex.App.--Fort Worth 1993) ] (emphasis added). Such substantiating evidence can be an admission by opposing counsel, a finding by the trial court, or an admission by the panel member. Id.

. . . . .

In this case, there is no substantiating evidence on the record. The State gave only one reason for excluding venireperson Martinez and it was subjective. In addition, the record does not reveal the trial judge had an adequate opportunity to observe Martinez' demeanor because neither the State nor the defense extensively examined him during voir dire. Therefore, we find the record contains no evidence corroborating the prosecutor's statement.

Consequently, we hold the trial judge's finding, the prosecutor's explanation for striking Martinez is race neutral, is not supported by the record and the State failed to rebut Yarborough's prima facie showing of racial discrimination."

Yarborough, 868 S.W.2d 913, 914-15 (Tex.App.-Fort Worth, 1994) (emphases in original) (footnote omitted).

We think we detect two holdings in the court of appeals' opinion: (1) A trial court's Batson finding is unsupported if the record contains only a prosecutor's statement. (2) A State's strike for a "subjective" reason cannot be found to satisfy Batson without more evidence than a prosecutor's statement.

Though the court of appeals' discussion was in terms of the State's peremptory strikes and prosecutors' statements, we presume that it would apply equally to defendants' strikes and defense counsels' statements. The requirements of Batson apply equally to defendants, and the prosecution is equally permitted to challenge a defendant's unconstitutional exercise of peremptory challenges. See Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). The court of appeals did not state or imply any reason to treat prosecuting and defending counsel differently on this question, and we cannot think of any reason to do so.

As to the first holding, we believe the court of appeals did not give proper regard to the weight of uncontradicted statements by counsel about occurrences in the courtroom. A counsel's statement about an occurrence in the courtroom, which was made for the purposes of the record, recorded by the court reporter, undisputed by the opposing counsel, and unquestioned and unqualified by the judge in whose presence the statement was made, establishes the occurrence for purposes of the appellate record. Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975). This Court has specifically recognized the validity of such statements made during Batson hearings:

The Court of Appeals, in its unpublished opinion, dismissed appellant's statements in the record because, "observations of counsel offered in support of his motion to dismiss the array do not constitute evidence." [Citation to court of appeals' slip opinion omitted.] The Court of Appeals' conclusion here is erroneous. In the instant case, the State did not dispute or object to any of the observations made by appellant before the trial court in support of his Batson motion. Because there were no objections made to appellant's undisputed observations, we hold that those observations constitute valid proof in support of appellant's prima facie case.

Emerson v. State, 820 S.W.2d 802, 804 (Tex.Cr.App.1991). Accord, Rousseau v. State, 824 S.W.2d 579 (Tex.Cr.App.1992); Salinas v. State, 888 S.W.2d 93 (Tex.App.--Corpus Christi 1994); Moss v. State, 877 S.W.2d 895 (Tex.App.--Waco 1994).

The procedure whereby counsel make statements for the record is especially well suited to the Batson hearing because the counsel (and the judge) naturally will be the best-placed observers of the venire members. Of course the lawyers are free to call each other as witnesses and to question each other formally and under oath. But they are also free to dispense with such formalities, as is often done and as was done in this case. The prosecutor's statement was support in the record for the trial judge's finding.

The basis of the court of appeals' second holding, that a peremptory challenge for "subjective" reasons must be supported by something other than counsel's statement, is not clear. It was made on authority of Roberson v. State, 866 S.W.2d 259, 261 (Tex.App.--Fort Worth 1993), an opinion of the same court which contains no more discussion than its opinion in this case. The Roberson opinion cites only Daniels v. State, 768 S.W.2d 314, 317 (Tex.App.--Tyler 1988, pet. ref'd), where no such proposition is to be found.

The Daniels opinion did hold that a prosecutor's statements about the inattentiveness of venire members were insufficient when the record showed that the prosecutor never personally questioned the venire members. The Daniels court also said that it was unwilling to hold that a juror's demeanor could never be a racially neutral reason...