Casarez v. State

HOPKINS, Justice,

concurring.

I concur in the results reached by the majority.

In Hill v. State, 827 S.W.2d 860 (Tex.Crim.App.1992), the majority opinion contained the following: “[R]ace may be a factor coexisting with nonracial reason for a strike, however, race may not be the reason for the strike.” Id. at 866 (emphasis added). “[AJppellant must show that the prosecutor’s other explanations for his challenge were merely a pretext for discrimination.” Id. at 869 .

Texas has not adopted the so-called “bright line” rule suggested in Judge Baird’s concurring opinion in Hill. Id. at 875 (Baird, J., concurring).

*789 Applying the rationale set forth by the majority in Hill , should the Batson prohibition against racial discrimination in the exercise of peremptory challenges later be extended to include prohibition against religious discrimination, as suggested by Chief Justice Hill in the dissenting opinion, I would follow Hill, supra, and hold that religious beliefs or affiliation as reasons for strikes may co-exist with nonreligious and nonracial reasons in the exercise of strikes. In the present case, the State, in my view, enunciated sufficient nonracial and nonreligious reasons for the exercise of the State’s strikes of the two black, Pentecostal venirepersons, including the fact that one’s brother was currently incarcerated and the venireperson expressed discomfort with the law applicable to the offenses charged, i.e., aggravated sexual assault and sexual assault of a child. The appellant did not show that these explanations were merely a pretext for discrimination.

It should be noted that one of the venire-persons struck appeared as number thirty-three on the list, and that the twelve jurors were obtained from the first thirty-two venirepersons. Although the prosecutor gave similar nonracial and nonreligious reasons for striking number thirty-three, none were required because striking number thirty-three did not have an impact on the composition of the jury since the jurors were obtained from the first thirty-two members of the venire panel, nor did it deprive venireperson number thirty-three the privilege of service on the jury. See Gambel v. State, 835 S.W.2d 788, 791 (Tex.App. — Houston [14th Dist.] 1992, no pet.); Rodriguez v. State, 832 S.W.2d 727, 729 (Tex.App. — Houston [1st Dist.] 1992, no pet.); Henderson v. State, 816 S.W.2d 845, 848 (Tex.App. — Fort Worth 1991, no pet.).

With these comments, I concur in the results reached by the majority.

Joined by LATTIMORE, J.