Yarbough v. State

• Citation: 732 S.W.2d 86
• Decision Date: 05 June 1987
• Docket Number: 05-86-00502-CR,Nos. 05-86-00501-C,s. 05-86-00501-C
• Parties: Anthony Dwayne YARBOUGH, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

Page 86

732 S.W.2d 86

Anthony Dwayne YARBOUGH, Appellant, v. The STATE of Texas, Appellee.

Nos. 05-86-00501-CR, 05-86-00502-CR.

Court of Appeals of Texas,

Dallas.

June 5, 1987.

Douglas H. Parks, Dallas, for appellant.

Jeffrey B. Keck, Dallas, for appellee.

Before STEPHENS, HECHT and THOMAS, JJ.

HECHT, Justice.

An evening of fun at the State Fair became a night of horror for two young girls when they were abducted, brutally raped and threatened with death by Anthony Dwayne Yarbough and his companion, Jimmy Lee Grady. ¹ Yarbough was convicted on two indictments charging aggravated sexual assault of a child. The jury imposed upon him the maximum sentence allowed by law, life imprisonment and a $10,000 fine for each offense.

Now on appeal Yarbough complains of error in his trial. First, he contends that the State's exercise of its peremptory challenges to prospective jurors was racially motivated and denied him equal protection of the law in violation of the fourteenth amendment to the United States Constitution. Second, he contends that the statutory instructions to the jury regarding the existence of parole and good conduct time violated constitutional separation of powers and due process provisions. Finally, he contends that the district court erroneously admitted a penitentiary packet into evidence.

We reject Yarbough's contentions and affirm the judgment of the district court.

I

Reverend B__, an ordained Baptist minister, and his wife could not take their two daughters, D__, age 14, and S__, age 13, on their annual visit to the State Fair. Rev. B__ suffered from a cancerous and ultimately terminal brain tumor which impaired his eyesight, and his wife was tired. So Rev. B__'s associate, J__, age 26, who lived with the B__s as part of their family, took the girls to the fair.

J__ drove D__ and S__ to the fair in the church van about 5:00 p.m. and parked across the street from the fair grounds in a makeshift parking lot because all the official lots were full. For some five hours they enjoyed the fair, riding the rides and playing the games. By 10:30 p.m. they were ready to start home.

As J__ opened the door of the van, Yarbough and Grady came around the front of the van with a shotgun. Yarbough ordered J__ and the girls to crouch down and give him all their money or they would be "blown away". After they had complied, Grady forced them into the van at gunpoint. J__ begged Yarbough and Grady to just take the van and leave them there, but Yarbough said, "It just don't work that way."

Angry and swearing, demanding more money from his hostages, Yarbough drove the van on an erratic, high-speed course until he stopped by a dumpster near some apartments. Yarbough told Grady to kill J__ if he moved and then climbed into the back seat with D__. Yarbough ordered D__ to remove her clothes, lean back on the seat and spread her legs apart. Then, he raped her, causing her much pain. When she pretended to faint, he slapped her repeatedly and told her to put her clothes back on. Yarbough demanded more money or S__ would "get it" too, and drove off again.

Stopping a second time, Yarbough told S__ to get in the back of the van. Yarbough then raped S__, who was screaming and crying "no", while Grady again held the shotgun on J__. When Yarbough had finished with S__, he asked Grady if he "wanted some". Then he and Grady announced that they were leaving. Threatening death to their victims if they did not stay in the van for at least ten minutes, Yarbough and Grady left.

The peril past, J__, D__ and S__ began to hug one another and pray. Suddenly, Yarbough and Grady returned, looking for a baseball cap one of them had been wearing. After finding it, Yarbough again asked Grady if he "wanted some", and this time Grady said yes. Grady raped S__ first, then D__, in the back of the van while Yarbough held the shotgun on J__. Again warning their victims to remain in the van, Yarbough and Grady left them praying for the last time.

J__ drove the girls to Parkland Hospital where they were treated and released. At 5:00 a.m. they returned home, where Mrs. B__ had been waiting up all night.

II

In his first point of error Yarbough complains that the district court erred in overruling his objection to the State's use of its peremptory challenges to strike all four black members of the venire. Yarbough's first point of error is overruled.

A

The substantive rule has not changed: the State's exercise of peremptory challenges for purely racial reasons violates the Equal Protection Clause. Swain v. Alabama, 380 U.S. 202, 203-204, 224, 85 S.Ct. 824, 826-827, 838, 13 L.Ed.2d 759 (1965); Batson v. Kentucky, 476 U.S. 79, ----, ----, 106 S.Ct. 1712, 1716, 1719, 90 L.Ed.2d 69 (1986). What has changed is the evidentiary requirement to prove a violation of the rule. In Swain the Supreme Court held that a defendant could prove unlawful discrimination by the State through the use of its peremptory challenges, not merely by pointing to the exclusion of a racial group from the jury in his own case, but only by showing a systematic exclusion in case after case. In Batson the Court rejected the evidentiary requirement of Swain and held:

[A] defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits "those to discriminate who are of a mind to discriminate." ... Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empanelling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.

In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a "pattern" of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor's questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination against black jurors.

Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.... [W]e emphasize that the prosecutor's explanation need not rise to the level justifying exercise of a challenge for cause.... But the prosecutor may not rebut the defendant's prima facie case of discrimination by stating merely that he challenged jurors of the defendant's race on the assumption--or his intuitive judgment--that they would be partial to the defendant because of their shared race.... [T]he Equal Protection Clause ... forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black.... Nor may the prosecutor rebut the defendant's case merely by denying that he had a discriminatory motive or "affirming his good faith in individual selections." ... The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court will then have the duty to determine if the defendant has established purposeful discrimination.

Batson, 106 S.Ct. at 1722-1724.

Yarbough was tried six weeks before Batson was decided. Nevertheless, Batson 's requirements apply retroactively to cases like this one pending on direct appeal or not yet final, if the issue is preserved. Griffith v. Kentucky, 476 U.S. ----, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Henry v. State, 729 S.W.2d 732 (Tex.Crim.App.1987). Yarbough's objection was sufficient to preserve the issue for appeal. Henry v. State, 729 S.W.2d 732 (Tex.Crim.App.1987); Keeton v. State, 724 S.W.2d 58 (Tex.Crim.App.1987).

B

Whether an inference of unlawful discrimination is raised depends upon "all relevant circumstances." Batson, 106 S.Ct. at 1723. As the Supreme Court has noted, the determination of the trial court is crucial. Batson, 106 S.Ct. at 1723-1724. Not all factors to be considered in determining whether the State's exercise of its peremptory strikes is racially motivated appear in the record. Factors pertinent to credibility--voice inflections, hesitancy, facial expressions, and demeanor of both counsel and prospective jurors--may supply the basis for determining whether to infer unlawful discrimination by the State. The trial judge is accustomed to weighing such factors and is in a unique position to do so.

Not auguring the specific requirements of Batson, the district court did not make a finding at trial on what we now know to be the threshold issue of whether Yarbough raised an inference of purposeful discrimination. Absent that finding we cannot and should not attempt to resolve that issue based upon the trial record alone. See Batson, 107 S.Ct. at 1725; Henry v. State, 729 S.W.2d 732 (Tex.Crim.App.1987); Keeton v. State, 724 S.W.2d 58 (Tex.Crim.App.1987); United States v. Leslie, 813 F.2d 658 (5th Cir.1987).

Accordingly, during the pendency of this appeal we directed the district court to conduct a further hearing to...