# Ex Parte Haliburton

> Court of Criminal Appeals of Texas · June 29, 1988 · 755 S.W.2d 131

URL: https://www.frixlaw.com/law-library/cases/9767631

## Case

- **Full name:** Ex Parte Charlie Joe HALIBURTON, Jr.
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 29, 1988
- **Citations:** 755 S.W.2d 131; 1988 Tex. Crim. App. LEXIS 140; 1988 WL 66886
- **Precedential status:** Published
- **Opinion:** Concurrence by Onion
- **Judges:** Miller, Onion, Teague, Duncan, McCormick
- **Cited by:** 4 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/9767631

## How later opinions describe it (automated extraction)

- finding that the State did not use peremptory challenges to strike minorities

## Opinion text

ONION, Presiding Judge,
concurring.
In Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), the United States Supreme Court recognized that a State’s purposeful or deliberate denial to Blacks on account of race of participation as a juror in the administration of justice violates the Equal Protection Clause. In order to prove such a violation, however, the Court required that the defendant prove the establishment of a pattern by which the prosecutor in numerous cases had peremptorily stricken veniremen of a particular race. Id. at 222-226 , 85 S.Ct. at 837-839 , 13 L.Ed.2d at 773-776 . It was not enough to show just what was done in the defendant’s own case.
In Willis v. Zant, 720 F.2d 1212 (11th Cir.1983), cert. den. 467 U.S. 1256 , 104 S.Ct. 3548 , 82 L.Ed.2d 851 (1984), the Court, in ordering an evidentiary hearing on a Swain claim, noted that the petitioner at such hearing had to prove the prosecutor had a systematic and intentional practice of excluding blacks from petit juries in criminal cases through the exercise of peremptory challenges, “and that practice continued unabated in petitioner’s trial. The exclusion must have occurred ‘in case after case, whatever the circumstances, whatever the crime and whoever the defendant may be.’ Swain, 380 U.S. at 223 , 85 S.Ct. at 837 .” Willis was affirmed sub nom. Willis v. *136 Kemp, 838 F.2d 1510 (11th Cir.1988), where the Court adopted the above stated standard. See also Evans v. Cabana, 821 F.2d 1065 (5th Cir.1987), cert. den. — U.S.-, 108 S.Ct. 5 , 97 L.Ed.2d 795 .
And it has been held by this Court in the past that the mere alleged use of peremptory challenges to strike qualified blacks is not a prohibited systematic exclusion of blacks in the selection of petit jurors. See Ridley v. State, 475 S.W.2d 769, 772 (Tex.Cr.App.1972); Evans v. State, 622 S.W.2d 866, 868, 869 (Tex.Cr.App.1981); McKay v. State, 707 S.W.2d 28 (Tex.Cr.App.1985), cert. den. 479 U.S. 871 , 107 S.Ct. 239 , 93 L.Ed.2d 164 .
Then along came Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), wherein the Supreme Court reaffirmed the principle announced in Swain but reexamined the evidentiary burden placed on a defendant who wishes to challenge the prosecution’s use of peremptory challenges as racially discriminatory. In Batson the Supreme Court relaxed the evi-dentiary burden on a defendant by holding that a prima facie case of purposeful discrimination can be established solely by facts pertaining to the defendant’s trial. Id. 106 S.Ct. at 1722-1724 , 90 L.Ed.2d at 87-88 .
It is to be observed that in Allen v. Hardy, 478 U.S. 255 , 106 S.Ct. 2878 , 92 L.Ed.2d 199 (1986), the Court held that Batson was not available to defendants whose convictions were final at the time Batson was announced. Subsequently, however, in Griffith v. Kentucky, 479 U.S. 314 , 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987), the Court held that Batson was applicable to those defendants whose appeals were pending or not yet final by the time of the Batson decision.
These cases form the background for applicant’s post-conviction application for writ of habeas corpus brought pursuant to Article 11.07, V.A.C.C.P.
The record before us reflects that applicant was convicted by a jury of aggravated robbery in 1980 in Cause No. F-80-1312KQ in the 204th District Court of Dallas County. The court assessed punishment at 35 years’ imprisonment after the State dismissed the paragraphs of the indictment alleging two prior convictions for enhancement of punishment.
Applicant appealed his conviction to this Court and the case was docketed as Cause No. 66,994. On September 1, 1981, the cause was transferred to the Fifth Court of Appeals in Dallas when that court and other Courts of Appeals acquired criminal jurisdiction. See Article V, § 6 (as amended 1980) and S.B. 265, Acts 1981, 65th Leg.
In his appeal one of applicant’s points of error was that “constitutional rights to due process of law and the equal protection of the law were violated by the racially discriminatory actions of the State in peremptorily challenging all venirepersons of the Black Race and thereby subjecting appellant, a black person, to trial before an all white jury in a case involving an assault against a white woman.”
In his appellate brief applicant stated that “By Bill of Exception and/or Motion to Supplement the Record of Trial, appellant shall establish the facts necessary to support this Ground of Error.” 1
Applicant’s appellate brief also asserted that the jury panel in his case contained less than ten blacks and each were peremptorily challenged by the prosecutors in accordance with their official policy and custom when the accused is black and the victim is white. “In support of appellant’s contention that such ‘official policy’ or ‘custom’ exists, appellant points out the fact that every such case involving the same prosecutors, such a policy and custom has been followed without exception.” Applicant cited “Swain v. Alabama, 380 U.S. 202 [ 85 S.Ct. 824 ],” but did not cite any portion of the record supporting the assertions in his brief.
Applicant’s counsel on appeal did submit an exhaustive brief on the Swain question *137 including most of the federal and state authorities outstanding at that time. His brief, however, never pointed out any trial objection on the basis of Swain nor did it call attention to just how the record was developed to support any Swain claim. The Court of Appeals rejected applicant’s point of error on the basis that appellant had waived the transcription of the court reporter’s notes of the voir dire examination of the jury, and the appellate record was not such as to permit the court to pass on the contention. 2 Applicant’s other points (nee grounds) of error were disposed when his conviction was affirmed. Haliburton v. State (Tex.App.-Dallas 1982, No. 05-81-00318-CR) (unpublished opinion) (no PDR filed).
Applicant has now filed the instant and his third post-conviction application for writ of habeas corpus. 3 The main thrust of the instant habeas application is that there was Batson error at the time of his 1980 trial and he is entitled to relief. The judge of the convicting court clearly viewed the application as advancing only a Batson claim of error, and in his finding of fact and conclusions of law found that a Batson error claim was not entertainable on collateral attack after the conviction had become final citing Griffin v. Kentucky, supra. See also Allen v. Hardy, supra. In this the trial judge was correct even if a timely trial objection is made. See Allen v. Hardy, supra.
The habeas record was forwarded to this Court pursuant to the provisions of Article 11.07, supra.
Upon review of the record this Court entered a 5-4 order instructing the convicting court to conduct an evidentiary hearing. The Court agreed that a Batson error was not cognizable by collateral attack, but, directed the convicting court’s attention to the possibility of a Swain error in the 1980 trial, although that case was not cited by the applicant. The order speeifi-cally directed the convicting trial court to determine in the evidentiary hearing whether an objection was made in applicant’s 1980 trial for aggravated robbery. “In order for applicant to raise the Swain issue, he must have objected at trial pursuant to the grounds of Swain , and produce evidence that Dallas County has a history of systematically excluding blacks from juries through the use of peremptory challenges solely because of their race. Since such evidence may have developed subsequent to applicant’s trial, we will remand this cause to the trial court for appointment of an attorney and an evidentiary hearing to determine whether applicant can produce evidence of the systematic exclusion of blacks from juries in Dallas County in violation of the holding in Swain, supra.” 4
After entry of the order the State filed a motion for rehearing pointing out that this Court had ordered an evidentiary hearing to resolve an issue raised and rejected on direct appeal. The State pointed out that if an issue has been addressed on direct appeal it need not be addressed again by way of a post-conviction habeas corpus proceeding, citing Ex parte Acosta, 672 S.W.2d 470 (Tex.Cr.App.1984). The motion was denied.
Following the evidentiary hearing the trial judge made supplemental findings of fact and conclusions of law. The judge found that applicant testified that his trial attorney made an objection towards the jurors by stating “... something to the nature as that I was the only black facing the court.” While applicant’s trial counsel was called as a witness he was not asked by anyone if he objected at the 1980 trial on the basis of the 1965 decision in Swain . Neither one of applicant’s two appellate counsel who raised the Swain question on appeal were called to testify at the eviden-tiary hearing. With only applicant’s testimony the trial judge found in his conclusions of law that “no legal objection raising *138 the ‘Swain issue’ was made at trial that encompassed the grounds of the Swain case.”
The trial judge also found that at the 1980 trial the State used only seven of its ten peremptory challenges and these were used to strike white prospective jurors and none were exercised against blacks, and that on appeal applicant’s counsel waived the transcription of the “voir dire process.” The trial judge concluded that without a trial objection and without the use of any peremptory challenges against blacks in applicant’s trial Swain was inapplicable and applicant was entitled to no relief. No finding was made as to the existence of any systematic and intentional practice of excluding blacks from jury service in Dallas County prior to applicant’s 1980 trial or that such practice continued unabated during said trial. It is not clear whether the trial judge thought that Swain was inapplicable without the necessity of such a finding or that he concluded the evidence was insufficient to establish that the claimed exclusion in 1980 occurred “in case after case, whatever the circumstances, whatever the crime, and whoever the defendant may be.” Swain, 380 U.S. at 223 , 85 S.Ct. at 837 .
Despite the fact that the order for an evidentiary hearing noted that it was necessary in order to raise the Swain issue that appellant objected at his 1980 trial on this basis, today’s majority opinion ignores the finding that no such trial objection was made.
The majority simply concludes: “Since applicant has failed to establish that blacks were excluded from his jury panel solely because of his race, he has failed to meet his burden of proof. Willis v. Zant, supra. ...” This is not the standard set forth in Willis v. Zant, supra, and is more like some Rafeo»-type standard which is not applicable to a Swain claim. Swain made clear that it was not enough to show what was done in the defendant’s own case.
In my opinion Swain is not applicable because applicant did not sustain his burden in showing that he made a timely objection on the basis of Swain . But even if he did make such an objection there was not sufficient evidence to sustain his burden of showing that prior to his 1980 trial that Dallas County prosecutors had a systematic and intentional practice “in case after case” of excluding blacks from juries in criminal cases by peremptory challenges and that such established practice continued unabated during applicant’s trial.
While agreeing with the result reached by the majority opinion, I do not agree with all of its reasoning or the implications left by that opinion.
McCORMICK, J., joins this opinion.
. This applicant apparently did not do so on his appeal where he was represented by different counsel than at trial.
. Even at this late date there seems to be no doubt about the waiver of the said transcription.
. Applicant’s other post-conviction applications for writ of habeas corpus did not involve a Batson or Swain claim.
. See pp. 133-34 and 134 by the majority.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9767631. Public record. Not legal advice.