# Butler v. State

> Court of Criminal Appeals of Texas · March 9, 1994 · 872 S.W.2d 227

URL: https://www.frixlaw.com/law-library/cases/9768553

## Case

- **Full name:** Steven Anthony BUTLER, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** March 9, 1994
- **Citations:** 872 S.W.2d 227; 1994 Tex. Crim. App. LEXIS 30; 1994 WL 68878
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** White, Maloney, Clinton, McCormick, Baird
- **Cited by:** 237 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/9768553

## How later opinions describe it (automated extraction)

- holding that defense counsel reasonably accepted venire person who stated that the perpetrators of a violent crime against a family friend should have received the death penalty, because venire person’s other statements showed her to be fair and open-minded and willing to set …
- concluding that the autopsy report prepared by one medical examiner was admissible as a business record based on the authenticating-witness testimony of a different medical examiner in the same office
- holding that sentencing scheme that permits jury consideration of unadjudicated offenses, which differs from punishment scheme in non-capital cases, does not violate equal protection clause
- holding that an objection that a witness was testifying from an autopsy report he did not author was not sufficiently specific to preserve a hearsay complaint for appellate review
- explaining that before the requested instruction under article 38.22, section 7, is required, some evidence must be presented to the jury raising the issue of voluntariness

## Opinion text

CLINTON, Judge,
dissenting.
In his third point of error appellant contends the trial court erred in failing to dismiss the entire array and begin the whole voir dire anew, having found the prosecutor had exercised a peremptory challenge in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). The majority concludes that dismissing only the “mini-panel” of which the erroneously challenged venireman was a part was sufficient to fully vindicate Batson interests because it “elimi-nat[ed] the group from jury selection that was directly associated with the State’s racially discriminatory use of a peremptory challenge” against the venireman. Op. at 233. I do not know what this means or why it.is dispositive of appellant’s claim.
Batson was not a capital case, and its principles do not always translate readily into our particular method of capital voir dire. In capital voir dire jurors are selected by a process of elimination, as in non-capital cases, but not all at once by striking names from a list. Instead, in capital cases, after the trial court has voir dired the entire panel, each venireman is called individually in the order he appears on the list, and is passed first to the State for challenge or acceptance, and then to the accused. Article 35.13, V.A.C.C.P. When a venireman is struck by neither the State nor the accused, he is thereby selected to become a member of the jury, to be sworn in as soon as the remainder of the jury is likewise selected. Article 35.-22, V.A.C.C.P.
The problem with this process, from the perspective of deciding Batson error, vel non, is how to determine the point at which it can be said that an accused has established a prima facie case of discrimination by the *247 State. The State does not exercise its per-emptories all at once at the end of voir dire. It is therefore impossible to know, at the time the State exercises its first peremptory challenge against a member of a protected class, be it racial, religious, gender-related, or some other, whether it presages a pattern of discrimination sufficient to make out a prima facie case. Indeed, even after a second, third or fourth such challenge, it is doubtful it can be determined with any degree of confidence that a prima facie case has been made out, since it is often impossible yet to know whether the protected class is being disproportionately excluded from jury service. See Linscomb v. State, 829 S.W.2d 164 (Tex.Cr.App.1992). Only after the voir dire is complete can it be said with certainty (and often not even then) that the State’s peremptory challenges have been used to exclude members of a protected class to such disproportionate degree as to call for an explanation from the prosecutor why it should not be presumed that the disproportion is a product of his deliberate discrimination.
Therefore, it is a puzzle to me how the trial court was even able to conclude that appellant had established a prima facie case of discrimination in this cause. In a perfect world, the State should not have been required to explain its peremptory challenge against venireman Hadnott — or at least not until a pattern of discrimination had clearly emerged. In my view, the trial judge erred to hold there was a Batson error in the first place, at least at the time that he did. The State makes this argument in its reply brief. It does not, however, raise it by way of cross-appeal, as permitted by Article 44.01(c), V.A.C.C.P. That is presumably why the majority proceeds to the question whether the remedy for the supposed Batson error here was a permissible one — the State has not appealed the trial court’s ruling that Batson error even occurred.
The majority concludes that Article 85.261, V.A.C.C.P., does not require dismissal of the entire array in this cause because that provision only applies to non-capital cases. This is an odd conclusion, if only because the State’s brief concedes (whether correctly or not, I need not decide) that Article 35.261 does apply to capital as well as non-capital cases. My own view is that since appellant invoked the protections of the federal Equal Protection Clause, the trial court was not limited to the remedy embodied in Article 85.261 in any event. See Curry v. Bowman, 1993 WL 500500 (Tex.Cr.App., No. 71,606, delivered December 8, 1993) (State’s motion for rehearing pending). The question simply becomes whether dismissing only the “mini-panel” was a permissible remedy under the Fourteenth Amendment.
Harris County’s local practice of utilizing so-called “mini-panels” has been approved by this Court only in dicta, in Hall v. State, 661 S.W.2d 113 (Tex.Cr.App.1983), and then, only on the dubious authority of Esquivel v. State, 595 S.W.2d 516 (Tex.Cr.App.1980). That dicta notwithstanding, this practice seems to violate Article 35.17, § 2, V.A.C.C.P., which provides for individualized questioning of veniremen, but contemplates that the entire panel “shall” first be questioned by the trial court as to certain enumerated principles, apparently as a body. It is therefore anomalous to rely on the existence of the local practice of “mini-panels” to avoid the remedy appellant seeks in this cause, viz: dismissal of the entire array.
Nevertheless, the majority describes dismissal of the “mini-panel” as “the most satisfactory method in the instant ease to preserve appellant’s rights to equal protection.” Op. at 233. Of course, the. most satisfactory remedy for Batson error is the reinstatement of the excluded venireman, since that vindicates both the appellant’s and the venireman’s equal protection rights. See Curry v. Bowman, supra. I cannot agree, moreover, that dismissal of the “mini-panel” was a constitutionally acceptable remedy for Batson error, much less the “most satisfactory.” Certainly dismissal of the array is an acceptable remedy under Batson , to the extent that it at least vindicates the accused’s right, where he is the same race as the excluded venireman, to a jury untainted by prejudice against his kind. It hardly seems likely that dismissal of only a part of the array can remove that spectre, however. That a prima facie case of discriminatory use of peremptory challenges has been established means, of *248 course, that it is to be presumed, absent rebuttal from the State, that a like discriminatory purpose infected the whole of the voir dire process, not just some selective part. The prosecutor’s inability to satisfy the trial court that his motives were race-neutral confirms that discriminatory purpose. If we accept the trial court’s conclusion hei’e, as the majority apparently does, that appellant conclusively established such a purpose, we do not provide sufficient constitutional succor when we also accept his conclusion that dismissal of only a portion of the product of that tainted process is an acceptable remedy.
I therefore respectfully dissent. *
Responding to appellant’s eighth point of error, the majority concludes the trial court erred in failing to instruct the jury to disregard witness Hartman’s testimony. However, the majority concludes, the error was harmless under Tex. R.App.Pro., Rule 81(b)(2). In my view, for the same reason the majority concludes the error was harmless, it should have concluded the trial court committed no error in the first place.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9768553. Public record. Not legal advice.