# Hill v. State

> Court of Criminal Appeals of Texas · January 8, 1992 · 827 S.W.2d 860

URL: https://www.frixlaw.com/law-library/cases/9770794

## Case

- **Full name:** Michael Lee HILL, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** January 8, 1992
- **Citations:** 827 S.W.2d 860; 1992 Tex. Crim. App. LEXIS 5; 1992 WL 1133
- **Precedential status:** Published
- **Opinion:** Concurrence by Baird
- **Judges:** Maloney, Baird, Miller
- **Cited by:** 190 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/9770794

## How later opinions describe it (automated extraction)

- concluding that when a litigant gives several reasons for a peremptory strike, one of which is gender-based, the litigant has not tendered a gender-neutral explanation
- holding Batson objection timely when made after peremptory strike list had been delivered and stricken venire members excused, but before jury was sworn
- explaining that jury is “impanelled” when members of jury have been selected and sworn
- holding that prosecutor may consider race among other factors in making strike

## Opinion text

BAIRD, Judge,
concurring.
I concur with the result reached by the majority; the judgment of the Court of Appeals should be affirmed. However, I write separately to address Part IV. of the majority opinion.
I. THE MAJORITY’S HOLDING
The majority phrases the State’s contentions as follows: “The State contends that the Court of Appeals’ decision effectively creates the rule that, if a prosecutor states that the venireman’s race influenced his decision to peremptorily challenge the venireman, the defendant has conclusively proven racial discrimination.” At 866. “The State contends that identification between the venireman and appellant can be a legitimate race-neutral reason for the exercise of a peremptory challenge against the venireman, even if one of the factors relied upon to establish the identity is shared race, so long as there are other nonracial factors which also established identity.” At 866. The majority embraces the State’s contentions by holding: “The fact that the prosecutor mentioned race as a part of his explanation for his peremptory challenge to establish an identity which is not present is indicative of purposeful discrimination in this case, but is not conclu sive, 1 ... [AJppellant must show that the prosecutor’s other explanations for his challenge were merely a pretext for discrimination.” At 869.
II. A VIEW FROM THE UNITED STATES SUPREME COURT
The right of a citizen to participate in the administration of justice by serving on a petit jury is a very precious right in our society, second only to a citizen’s right to participate in our society, second only to a citizen’s right to participate in our democratic system by voting. Powers v. Ohio, — U.S. -, 111 S.Ct. 1364, 1369 , 113 L.Ed.2d 411 (1991).
In Strauder v. West Virginia, 100 U.S. 303 , 25 L.Ed. 664 (1880), the defendant, a “colored man,” complained of the State law which provided that no colored man was eligible to be a member of a grand jury or to serve on a petit jury. The controlling question presented in Strauder was:
whether by the Constitution and laws of the United States, every citizen of the United States has a right to a trial of an indictment against him by a jury selected and impaneled without discrimination against his race or color, because of race or color[.]
It is to be observed that [the question] is not whether a colored man, when an *871 indictment has been preferred against him, has a right to a grand or a petit jury composed in whole or in part of persons of his own race or color; but it is whether, in the composition or selection of jurors by whom he is to be indicted or tried, all persons of his race or color may be excluded by law, solely because of their race or color, so that by no possibility can any colored man sit upon the jury.
Id. at 305 .
The Supreme Court deemed the question important because it demanded a construction of the “recent [13th, 14th and 15th] amendments of the Constitution.” Id. The Court recognized that the 14th Amendment was “designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons[.]” Id. at 306 . Under the Court’s construction the “recent amendments” were ratified to provide “the right to exemption from unfriendly legislation against them distinctively as colored; exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.” Id. at 308 .
When specifically addressing the statute of which the defendant complained the Court stated:
The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens and may be in other respects fully qualified, is practically a brand upon them, affixed by the law; an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.
Id. at 308 .
The Court concluded that the West Virginia statute’s discrimination in the selection of jurors amounted to a denial of equal protection and was, therefore, unconstitutional. Id. at 310 .
In Carter v. Texas, 111 U.S. 442, 444, 20 S.Ct. 687, 688 , 44 L.Ed. 839 (1900), a Galveston County defendant filed a motion to quash his indictment because the grand jury commissioners, who appointed the grand jury, excluded “all colored persons or persons of African descent” because of their race and color. The trial court overruled the motion. The defendant was convicted and sentenced to death. On appeal the defendant did not contend that the law was facially unconstitutional but rather that it was being administered in a discriminatory fashion by the grand jury commissioners who were selecting only whites as grand jurors. Nevertheless, this Court affirmed the judgment of the trial court. See, Carter v. State, 39 Tex.Crim. 345 , 46 S.W. 236 ; 39 Tex.Crim. 345 , 48 S.W. 508 (Tex.Cr.App.1898) (Appellant’s mtn. for reh’g overruled).
In 1890, when the Supreme Court reviewed our Carter decision the rules of law which governed the case were already “clearly established” by Supreme Court precedent. Carter, 20 S.Ct. at 689 .
Whenever by any action of a state, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because ■of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment of the Constitution of the United States. Strauder v. West Virginia, 100 U.S. 303 , 25 L.Ed. 664 ; Neal v. Delaware, 103 U.S. 370, 397 , 26 L.Ed. 567, 574 ; Gibson v. Mississippi, 162 U.S. 565 , 40 L.Ed. 1075 , 16 Sup.Ct.Rep. 904 .
Id. at 689 .
The Supreme Court found: “The necessary conclusion is that the defendant has been denied a right duly set up and claimed *872 by him under the Constitution and laws of the United States; and therefore the judgment is reversed ...” Id. at 690 (Emphasis in original).
In spite of the decision in Carter, fifty years later, the Supreme Court was asked to review the Harris County practice of selecting individuals for grand jury service. In Smith v. Texas, 311 U.S. 128 , 61 S.Ct. 164 , 85 L.Ed. 84 (1940), the defendant complained of the intentional and systematic exclusion of “negroes” from grand jury service. The defendant’s timely filed motion to quash the indictment was denied by the trial court and that decision was affirmed by this Court. See, Smith v. State, 140 Tex.Crim. 565 , 136 S.W.2d 842 (App. 1940). The Texas statutory scheme was capable of being carried out with no racial discrimination. However, because of the wide discretion permissible under the statute it was equally capable of being applied in a discriminatory manner. In Smith, two grand jury commissioners testified that “their failure to select negroes was because they did not know the names of any who were qualified and the other said that he was not personally acquainted with any members of the negro race.” Smith, 61 S.Ct. at 166 . In reversing the defendant’s conviction the Supreme Court held:
It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community. For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government.
Id. at 165 .
In Cassell v. Texas, 339 U.S. 282 , 70 S.Ct. 629 , 94 L.Ed. 839 (1950), the defendant attacked the way the statutory method of grand jury selection had been administered by the grand jury commissioners of Dallas County. The defendant contended the commissioners were limiting the number of “Negroes selected for grand-jury service to not more than one on each grand jury.” Cassell, 70 S.Ct. at 631 . The Supreme Court held:
Jurymen should be selected as individuals, on the basis of individual qualifications, and not as members of a race.
An accused is entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race.
Id.
Holding that a proportional racial limitation was forbidden under the 14th Amendment, Id. at 632, the Supreme Court again reversed a judgment of this Court. See, Cassell v. State, 154 Tex.Crim. 648 , 216 S.W.2d 813 (App.1949).
In Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965) the Supreme Court confronted for the first time the use of peremptory challenges as a device to exclude jurors because of their race. The Court re-stated the principle that “a State’s purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.” Swain, 85 S.Ct. at 826 .
The question of whether a defendant had met the Swain burden of proving purposeful discrimination was re-visited in Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). The Batson court recognized that while many of the earlier decisions by the Supreme Court had “been concerned largely with discrimination during selection of the venire, the principles announced there also forbid discrimination on account of race in selection of the petit jury.” Batson, 106 S.Ct. at 1718 . Accordingly, “the State may not draw up its jury lists pursuant to neutral procedures but then resort to discrimination at ‘other stages in the selection process.’” Id., quoting Avery v. Georgia, 345 U.S. 559, 562 , 73 S.Ct. 891, 893 , 97 L.Ed. 1244 (1953). Therefore, “the State’s privilege to strike *873 individual jurors through peremptory challenges, is subject to the commands of the Equal Protection Clause.” Batson, 106 S.Ct. at 1719 .
The Batson Court described Swain as having placed on defendants a crippling burden of proof which had the effect of immunizing prosecutors from constitutional scrutiny. Id. at 1721. Consequently, the Batson Court relaxed the Swain burden. Id. at 1723. After establishing a prima facie case of purposeful discrimination in the selection of the petit jury, the burden shifts to the State to come forward with a “neutral explanation” for challenging black jurors. Id. at 1723. When describing the State’s burden the Supreme Court held in part:
... Just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors, [citation omitted] so it 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. The core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ race. Nor may the prosecutor rebut the defendant’s case merely by denying that he had a discriminatory motive or ‘affirmpng] [his] good faith in making individual selections.’ [citation omitted] If these general assertions were accepted as rebutting a defendant’s prima facie case, the Equal Protection Clause ‘would be but a vain and illusory requirement.’ [citation omitted] The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried.
Id. at 1723.
In Powers v. Ohio, — U.S. -, 111 S.Ct. 1364, 1366 , 113 L.Ed.2d 411 (1991), the Supreme Court reaffirmed the premise “that racial discrimination in the qualification or selection of jurors offends the dignity of persons and the integrity of the courts.” The Powers court extended the holding in Batson and held that “a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race.” Id. Relevant to the issue presented in the case at bar the Powers Court held:
We hold that the Equal Protection Clause prohibits a prosecutor from using the State’s peremptory challenges to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of their race, a practice that forecloses a significant opportunity to participate in civic life. An individual juror does not have a right to sit on any particular petit jury, but he or she does possess the right not to be excluded from one on account of race.
It is suggested that no particular stigma or dishonor results if a prosecutor uses the raw fact of skin color to determine the objectivity or qualifications of a juror. We do not believe a victim of the classification would endorse this view; the assumption that no stigma or dishon- or attaches contravenes accepted equal protection principles. Race cannot be a proxy for determining juror bias or competence. ‘A person’s race simply ‘is unrelated to his fitness as a juror’ ’. [citations omitted]. We may not accept as a defense to racial discrimination the very stereotype the law condemns.
Id. Ill S.Ct. at 1370.
The foregoing cases convincingly demonstrate the principle that race shall play no part in the jury selection process. The exclusion of minority citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure. Batson, 106 S.Ct. at 1716 . The Equal Protection Clause guarantees. the defendant that the State will not exclude members from the jury on account *874 of race. Strauder, 100 U.S. at 305 . Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability to consider impartially the evidence presented at trial. Batson, 106 S.Ct. at 1718 . A person’s race is simply unrelated to his fitness as a juror. Id.
III. A VIEW PROM TEXAS COURTS
Recently, our sister Court considered a similar issue in Powers v. Palacios, 813 S.W.2d 489 (Tex.1991). In Powers the plaintiff sought to question the defendant, Palacios, to establish a racially discriminatory use of peremptory strikes. Palacios conceded that race was a factor in his determination to exercise his peremptory strikes. Id. at 490. In reversing the judgment and remanding the case for a new trial the unanimous Court held:
Here, Powers established that opposing counsel had exercised a peremptory challenge discriminatorily. [footnote omitted] Such ‘automatic invocation of race stereotypes retards [our] progress [as a multiracial democracy] and causes continued hurt and injury.’ Edmonson [v. Leesville Concrete Co., Inc.], — U.S. at-, 111 S.Ct. at 2088 . We hold that equal protection is denied when race is a factor in counsel’s exercise of a peremptory challenge to a prospective juror.
Id. at 491.
A similar issue was addressed by the First Court of Appeals in Speaker v. State, 740 S.W.2d 486 (Tex.App. — Houston [1st Dist.] 1987). The Speaker Court held:
In this case, the trial court never reached the point of a factual determination of whether purposeful discrimination had been proven because the prosecutor’s explanation of his peremptory strikes was facially inadequate as a matter of law. At the hearing on the motion for new trial, the prosecutor admitted:
Although race is a factor I do consider, it is not an overriding factor and it was not an overriding factor in Mr. Speaker’s trial in the selection of these jurors.
While the prosecutor’s candor is commendable, his statement clearly shows that he considered race a factor while selecting the jurors in the appellant’s trial. This basis for juror selection has traditionally been condemned. See Cassell v. Texas, 339 U.S. 282, 287 , 70 S.Ct. 629, 632 , 94 L.Ed. 839 (1950) ([a]n accused is entitled to have the charges against him considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race). While we realize that it may be unrealistic to expect the prosecutor to put aside every improper influence when selecting a juror, we conclude that that is exactly what the law requires. Thus, a prosecutor’s admission that race was an influencing factor in the selection process vitiates the legitimacy of the entire procedure. See Batson 106 S.Ct. at 1719 ; Neal v. Delaware, 103 U.S. (Otto) 370, 397, 26 L.Ed. 567 (1881).
Speaker, 740 S.W.2d at 489 .
A similar issue arose in McKinney v. State, 761 S.W.2d 549, 551 (Tex.App.—Corpus Christi 1988) where the State admitted that race was not the reason but was a factor in peremptorily challenging the black venireman. Id. at 550 . Emphasis in original. Judge Benavides, then a Justice on the Corpus Christi Court of Appeals, held:
In the case before us, the prosecutor did not rebut the appellant’s prima facie case of discrimination by articulating a neutral explanation for the peremptory strike, but rather confirmed the discrimination by admitting that race was a factor in striking Evans. No “neutral explanation” can serve to rebut the presumption that the condemned practice of exclusion based on race occurred when the prosecutor admits that such an exclusion did occur....
McKinney, 761 S.W.2d at 551 .
*875 The majority, while failing to mention or distinguish Powers, Speaker, or McKinney , holds “that race may be a factor contributing to a non-racial reason for the strike, however, race may not be the reason for the strike.” At 866. Such a holding fails to recognize that the Equal Protection Clause forbids the State to strike minority veniremen “on the assumption that they will be biased in a particular case simply because" the defendant is also a minority. Batson, 106 S.Ct. at 1723 .
The majority reads this opinion as “makpng] a strong argument for the eradication of the peremptory challenge altogether.” At 868, n. 7. I strongly disagree. No one who has participated in the selection of a jury can discount the importance of the peremptory challenge. Indeed, we have elevated the intelligent use of peremptory challenges to a Constitutional right. See, Naugle v. State, 118 Tex.Crim. 566 , 40 S.W.2d 92, 94 (App.1931). However, that right is “subject to the commands of the Equal Protection Clause.” See, Batson, 106 S.Ct. at 1719 . Therefore, while the right to peremptorily challenge a venire member is important, its importance is clearly outweighed when the peremptory challenge is used to deny, on the basis of race, a citizen’s Constitutional right to participate in the administration of justice by serving on a jury. Discrimination has no place in the qualification or selection of jurors and offends the dignity of the individuals and the integrity of the Court. Powers, 111 S.Ct. at 1366 . The Equal Protection Clause extends to all citizens the rights and privileges of serving as a juror. Therefore, while the human condition will probably continue to fight for the freedom to discriminate, the justice system must not provide a means to that end. See, Garcia, Strike Three and It’s Out — There Goes the Peremptory, The Houston Lawyer, November-December 1991, at 22.
IV. ESTABLISH A BRIGHT LINE RULE
I would remain true to the clear intent and purpose of more than a century of established precedent from the United States Supreme Court. We should adopt the holdings in Speaker, McKinney, and Powers and immediately establish the following “bright line” rule: equal protection is denied whenever race is a factor in the exercise of a peremptory challenge. This “bright line” rule is necessary because one simply cannot articulate a “race-neutral” explanation for exercising a peremptory strike when race is a part of that explanation.
With these comments I concur in the results reached by the majority.
CLINTON, OVERSTREET and BENAVIDES, JJ., join this opinion.
. Unless otherwise indicated, all emphasis herein is supplied by the author.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9770794. Public record. Not legal advice.