Trevino v. State

OPINION ON REMAND FROM THE UNITED STATES SUPREME COURT

CAMPBELL, Judge.

Appellant was convicted of capital murder. See Tex. Penal Code § 19.03(a)(2). The jury returned affirmative answers to the two special issues submitted, and appellant was sentenced to death. Appeal to this court was automatic.

Appellant filed a pre-trial motion requesting that the State not be permitted to use peremptory challenges based on race. He alleged that the State had historically used peremptory challenges in a racially discriminatory manner. This, he asserted, would deprive him of a jury drawn from a fair cross section of the community in violation of the Sixth Amendment. A ruling was reserved until voir dire. During voir dire the State used peremptory challenges to strike all the qualified black members of the venire. 1 Appellant asked the trial court to require the State to articulate its reasons for striking the particular venireper-sons. This request was denied.

On appeal appellant reasserted that the prosecution’s racially-motivated use of peremptory challenges had deprived him of his rights under the Sixth and Fourteenth Amendments. Shortly after appellant filed his brief in this Court, the United States Supreme Court held in Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), that the Equal Protection Clause of the Fourteenth Amendment allows a party to demonstrate racially motivated use of peremptory challenges in a single case. This Court determined that *387 appellant’s “fair cross section” argument was premised on the Sixth Amendment and that he had failed to raise an equal protection claim. Trevino v. State, 815 S.W.2d 592, 598 (Tex.Cr.App.1991). Thus, we held in effect, that the rule of Batson was not available to appellant.

On April 6, 1992, the United States Supreme Court granted certiorari, reversed our decision, and remanded appellant’s case to this Court. Trevino v. Texas, — U.S. -, 112 S.Ct. 1547 , 118 L.Ed.2d 193 (1992). Based on the decision in Ford v. Georgia, 498 U.S. 411 , 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991), the Supreme Court found that appellant’s claim of an historical pattern of racial discrimination was sufficient to preserve the equal protection claim. Thus, the Supreme Court stated, appellant was entitled to the rule of Bat-son.

The State filed a brief on remand in which it suggests that we have two options: 1) remand the cause to the trial court for a Batson hearing, or 2) decide the merits of appellant’s claim on the record already before us. The State argues that the latter is preferable and supplies us with several plausible reasons why this should be done in appellant’s case. To adopt the State’s preferred approach, however, would eviscerate appellant’s right to have the trial court pass on the credibility of the prosecutor’s explanations for his use of peremptory challenges. We therefore decline to adopt the State’s preferred approach and will remand the cause to the trial court.

This appeal is abated and the cause remanded to the trial court with instructions to conduct a full adversarial hearing complying with Batson concerning the State’s use of peremptory strikes of venirepersons Sanders, Hollie, and Johnson. The record of that hearing, together with the trial court’s findings of fact and conclusions of law, shall be forwarded to this Court for our review within 120 days of the date of this opinion.

It is so ordered.

McCORMICK and WHITE, JJ., concur in the result.

. Appellant and the State differ on the precise number of black venirepersons struck. Appellant maintains that Margaret Sanders, Ella Hollie, and Oscar Johnson were struck with per-emptories. The State agrees as to Sanders and Hollie but contends that Johnson was struck for cause. The record reflects that Johnson was, in fact, struck for cause and that appellant objected; however, the State then used a peremptory challenge on Johnson "in an abundance of caution," for fear that the trial court’s decision might have been in error. The court heard argument on the propriety of the State's position but evidently made no ruling. We note that on original submission to this Court both the State and appellant were in agreement on the number of peremptories used on the black venirepersons; that is, three. We will not now allow the State to reopen that question. We proceed on the assumption that three black ven-irepersons were struck with peremptory challenges.