# Mathews v. State > Court of Criminal Appeals of Texas · April 12, 1989 · 768 S.W.2d 731 URL: https://www.frixlaw.com/law-library/cases/9682867 ## Case - **Full name:** Kenneth Ray MATHEWS, Appellant, v. STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** April 12, 1989 - **Citations:** 768 S.W.2d 731; 1989 Tex. Crim. App. LEXIS 70; 1989 WL 33811 - **Precedential status:** Published - **Opinion:** Dissent by Teague - **Judges:** Clinton, Teague, Miller - **Cited by:** 27 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9682867 ## How later opinions describe it (automated extraction) - holding Batson is not immune from procedural default - declining to hear Batson complaint because not preserved at trial ## Opinion text TEAGUE, Judge, dissenting. Because I continue to subscribe to the views that I expressed in the dissenting opinion I filed on original submission in this Court's opinion of Williams v. State, (Tex.Cr.App. No. 69,582, June 22,1988), which is *734 contrary to what the majority opinion holds in this cause, I am compelled to dissent. Contrary to what the majority opinion by Judge Clinton might insinuate, the Supreme Court’s decision of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed. 2d 69 (1986), was so novel and so revolutionary that some scholars have claimed that it “leaves the law in a state of confusion.” Batson held for the first time in Supreme Court history that “the prosecution’s freedom of choice [was circumscribed] by deciding that the principles embodied in the Equal Protection Clause are applicable in reviewing the exclusion of potential jurors from the venire.” Erickson, Neighbors, and George, United States Supreme Court Cases and Comments (1986 edition), § 12.07[b] at pages 12-154 and 12-155. Therefore, given the impact that Batson has had on our criminal jurisprudence, it should not be questioned, in the sense that it favors a defendant, that Bat-son is probably the most revolutionary criminal law opinion handed down by the Supreme Court since former Chief Justice Earl Warren left office. Much like many of the “Warren” Court’s “revolutionary” opinions were criticised by both lay and legal persons, Batson , of course, has received its fair share of unjustified criticisms, usually from those who favor the law enforcement model penal code and code of criminal procedure. I believe that everyone in the criminal legal community who consistently reads this Court’s opinions should now be familiar with Judge Clinton’s use of footnotes in his opinions. Therefore, it seems to me that given Judge Clinton’s conclusion regarding the claim that Kenneth Ray Matthews, henceforth appellant, makes, that the prosecuting attorney wrongfully used one of his peremptory strikes to remove from the venire the sole black venireperson who could have served as a juror in this cause, and who was more than qualified to serve as a juror, was not so novel when appellant’s case was tried that a proper objection should have then been leveled at the prosecuting attorney’s use of one of his peremptory strikes to eliminate the sole qualified black venireperson from serving as a juror, it should be a very simple task for Judge Clinton, of course without his taking into consideration what the Supreme Court stated and held in Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , what this Court had long held on the subject of a prosecuting attorney blatantly using his peremptory strikes on minority venireper-sons, and without being prescient in August, 1985, to set out in a footnote what objection appellant’s trial counsel should have made that this Court would have at that time held was not only sufficient to establish error, but that it also established reversible error. Perhaps Judge Clinton does not accept my challenge because he is fully aware that back in those hard times this Court’s members would have considered any such objection, no matter how perfect, as either frivolous or that it bordered on being frivolous. This Court’s majority opinion by Judge Clinton holds: “[U]nder the caselaw of this State, appellant may not raise Batson error for the first time on appeal, when there is nothing in the record which would allow him to show purposeful discrimination, or even an objection.” Given the fact that we are only talking about one qualified black venireperson, rather than several, who was struck by the prosecuting attorney, the question that should be addressed by this Court, but is not, is whether, if appellant had made a proper “Batson” objection, he would have established a prima facie case of racial discrimination, a necessary prerequisite under Batson that must be satisfied before appellant is entitled to be granted any relief. This Court has not yet precisely defined the perimeters of just what “a prima facie case of discrimination” might be when there was only one qualified black venireperson on the jury panel and the prosecuting attorney used one of his peremptory strikes to eliminate that individual from the jury panel. I believe that this case is a good one in which to address that issue. Sad to say, this Court does not take the opportunity to address that issue. The majority opinion states the following: “What may be a ‘small step’ for appel *735 lant would unquestionably amount to a ‘giant leap’ for this Court.” (All quotes found on page 733 of the majority opinion.) I am not quite sure what to make out of this statement. However, given the revolutionary holding that the Supreme Court made in Batson , what the Supreme Court actually did in Batson was not the taking of “one small step for mankind”, but was actually the taking of a giant step for all persons of a minority race who have been accused of committing a criminal wrong who desire to have a jury trial without fear that the prosecuting attorney will arbitrarily and capriciously eliminate from the jury panel any individual who just happens to be of the same race as the defendant. The majority opinion states: “We do not find the [Batson ] claim was so novel that appellant’s failure to object may be excused.” Page 733 of the majority opinion. Given the fact that for over twenty years the law of this State was that “The mere exercise of peremptory challenges [by the prosecuting attorney] is not sufficient to sustain the ground of error [of wrongful jury selection]”, see Williams v. State, 682 S.W.2d 538 (Tex.Cr.App.1984), certiorari granted and cause remanded to Court of Criminal Appeals “for further consideration in light of Griffith v. Kentucky, U.S., 107 S.Ct. 708 , L.Ed.2d (February 27, 1987)”, which occurred after appellant’s case was tried, I am unable to understand why, when the jury was selected in this cause, it was necessary for appellant to have made what was then a non-existent objection, or at best what this Court would have deemed a frivolous objection. In Harris v. State, 658 S.W.2d 180 (Tex.Cr.App.1983), notwithstanding that the defendant’s attorney objected to his client, a black, being tried by an all-white jury, which resulted because the prosecutor used his peremptory strikes to eliminate all the black members of the venire from jury service, this Court rejected the defendant’s claim in a per curiam opinion. The defendant Harris’s authority for his claim was Swain v. Alabama. I believe this Court rejected his claim in a per curiam opinion because the members of this Court thought the issue was so well settled that it was unnecessary to repeat its prior holding one more time in a published opinion. However, this Court’s per curiam opinion did not deter the defendant Harris for he petitioned the Supreme Court of the United States for relief, which denied his petition for certiorari. Justice Marshall, joined by Justice Brennan, wrote a strong dissenting opinion to that Court’s denial of the defendant’s petition for certiorari. Justice Marshall pointed out the following in his dissenting opinion: “Over the past year, I have repeatedly urged my colleagues to grant certiorari in similar cases in which state prosecutors have blatantly employed peremptory challenges to remove Negro jurors. See Williams v. Illinois, 466 U.S. 981 [, 104 S.Ct. 2364 , 80 L.Ed.2d 836 ] (1984) (MARSHALL, J., dissenting); Gilliard v. Mississippi, 464 U.S. 867 [, 104 S.Ct. 40 , 78 L.Ed.2d 179 ] (1983); (MARSHALL, J., dissenting); M c Cray v. New York, 461 U.S. 961, 963 [, 103 S.Ct. 2438, 2439 , 77 L.Ed.2d 1322 ] (1983) (MARSHALL, J., dissenting). The Court, however, remains satisfied that Swain v. Alabama, 380 U.S. 202 [, 85 S.Ct. 824 , 13 L.Ed.2d 759 ] (1965), adequately protects criminal defendants against prosecu-torial misuse of peremptory challenges.” 467 U.S. 1261, 1262 , 104 S.Ct. 3556, 3557 , 82 L.Ed.2d 858 . However, in a relatively short period of time, Justice Marshall and Justice Brennan’s voices were finally heard by the other members of the Court. On September 3, 1985, a little over one year after Justice Marshall filed his dissenting opinion in Harris v. Texas, the members of the Supreme Court voted to grant the defendant’s petition for certiorari in Batson . Thus, over 20 years had elapsed since the Supreme Court handed down Swain v. Alabama, which amounted to “it-is-a-pleasing-to-a-defendant’s-eye-opinion, but-was-really-a-no-win-for-the-defendant-opinion.” Jury selection in this cause commenced on August 22, 1985, at which time Swain v. Alabama controlled the issue of the prosecuting attorney using peremptory strikes on members of a minority race. When the members of the Supreme Court were considering whether or not to grant the defen *736 dant Harris’ petition for certiorari, I wonder if those justices who voted to deny granting the petition for certiorari, in referring to Justice Marshall’s dissenting opinion, mumbled out loud: “Justice Marshall, where have you been all these years? What you are arguing has already been rejected by this Court’s decision of Swain v. Alabama.” I do not disagree with the general abstract academic proposition that even if the score is 222-0 against the defendant, and there are only two minutes left in the last quarter, a gutsy defendant’s attorney will continue to stand and make objections. These kind of criminal defense attorneys are great believers in the addage, “We didn’t lose the game, time just ran out.” However, after you have lost 222-0 for 20 straight years, should it be necessary for the defendant’s attorney to continue to object, hoping all the while that someday the members of the Supreme Court will see fit to change the law? I don’t believe so. The majority opinion, however, tells us, at least implicitly, that Batson did not really do anything, from a federal constitutional standpoint, to Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965). Literally that may be true. However, from a practical standpoint, Batson stood the law on its head in this area of the law and was so revolutionary that its vibes are still being felt in the criminal justice community, and I predict that in Texas, in areas where a minority race makes up a substantial proportion of the population from which the jurors come, Batson’s vibes will be felt long after the present members of this Court are dead and buried. Today, the members of this Court, and the members of the courts of appeals of this State, almost on a weekly basis, are flooded with Batson claims. And this Court has not yet fine tuned its interpretation of Batson . Perhaps when all is said and done only Justice Marshall and a few other hearty souls might disagree with the statement in this Court’s majority opinion that “We do not find the [Batson ] claim was so novel that appellant’s failure to object may be excused.” Count me as one of those individuals. Given the state of the law when appellant’s jury was selected, any objection that appellant’s trial attorney might have made would have been treated by this Court as either frivolous or that it bordered on being frivolous. Therefore, I respectfully dissent to the majority opinion’s above holding that it was incumbent upon the defendant to make what I believe would have then been considered by this Court either as a frivolous objection or as an objection that bordered on being frivolous. MILLER, J., joins. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9682867. Public record. Not legal advice.