Young v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

A jury convicted appellant of forgery. V.T.C.A. Penal Code § 32.21. Finding the two enhancement paragraphs to be true, the trial judge sentenced appellant to 40 years imprisonment in the Texas Department of Corrections. 1 Appellant raised two points of error in the court of appeals, which were overruled in an unpublished opinion. Young v. State, No. 05-89-00571-CR, delivered March 5, 1990. This Court granted appellant’s second ground for review in his petition which challenged the court of appeals’ ruling on his Batson 2 claim. We will reverse and remand.

The facts of this offense are not relevant to the disposition of appellant’s ground for review, nor are the circumstances of the voir dire even though appellant has raised a Batson claim. However, a Batson hearing was held in this cause after voir dire, the facts of which are pertinent.

After the jury was selected, but before it was sworn, appellant, a black man, lodged his Batson objection; that is, he asked the trial court to require the State to explain the strikes of several black persons from the jury panel. Henry v. State, 729 S.W.2d 732, 737 (Tex.Cr.App.1987). The State explained its use of peremptory strikes on the seven prospective jurors listed by appellant, and appellant did not seek to cross-examine the prosecutor thereafter. In rebuttal, appellant quarreled with the State’s reason for striking one of the black prospective jurors and argued generally that he was denied a trial by a jury of his peers. The trial court overruled appellant’s Bat-son motion. 3

In the court of appeals, appellant contended the trial court erred in overruling *143 his objections to the State’s use of peremptory strikes. In advancing this argument before the appellate court, appellant pointed to testimony from the voir dire examination of the panel which weighed against the racial neutrality of the reasons offered by the State. Appellant argued the State’s reasons were merely pretexts because of the lack of questioning of the struck veni-repersons and the disparate treatment of the black and white venirepersons. See Keeton v. State, 749 S.W.2d 861, 868 (Tex. Cr.App.1988) (Opinion following Abatement). The court of appeals, however, refused to consider appellant’s comparisons of the venirepersons in his effort to show disparate treatment since appellant had not urged these same comparisons before the trial court during the Batson hearing. Young, slip op. at p. 7, citing Tompkins v. State, 774 S.W.2d 195, 202 , n. 6A (Tex.Cr. App.1987), judgment affirmed by equally divided court, 490 U.S. 754 , 109 S.Ct. 2180 , 104 L.Ed.2d 834 (1989) (O’Connor, J., not participating). The court of appeals thus reviewed the State’s explanations, found that they were race neutral, and held that the record supported the trial judge’s denial of appellant’s Batson motion. Young, slip op. at p. 8.

In his petition for discretionary review, appellant contends the court of appeals erred in holding “alleged discrepancies in use of strikes by the State were not available on Appellant’s behalf on appeal because not urged in the trial court.” Appellant argues that footnote 6A in Tompkins, 774 S.W.2d at 202 , did not hold that comparisons had to be raised in the trial court to be available for consideration on appeal. Moreover, appellant claims the position of the State and the court of appeals requires him to remind the trial judge of his role and responsibilities during a Batson hearing. That is, the trial court must examine the State’s reasons for its strikes in light of the circumstances of that particular case— the racial composition of the panel, the State’s voir dire, the voir dire testimony of each panel member whether or not peremptorily challenged, and the testimony from the Batson hearing — when making determinations of weight and credibility and in eventually ruling on the Batson claim. Whitsey v. State, 796 S.W.2d 707, 716 (Tex. Cr.App.1989).

The State counters with several arguments. First, the State asserts that if the appellate court considers appellant’s comparisons, it (the appellate court) will be considering matters not raised in the trial court and thus will not be reviewing the trial court’s decision, but rather will be making the Batson decision de novo, which is not a function of the appellate court, and consequently will not be giving the trial court decision due deference. The second reason addresses the appellant’s burden in Batson cases. Once the defendant has made a prima facie case and the State articulates race neutral reasons for its strikes, the burden shifts to the defendant to rebut those explanations. Williams v. State, 804 S.W.2d 95 (Tex.Cr.App.1991) (Opinion on Remand). If the defendant perceives discrepancies between the prosecutor’s explanations and the voir dire, according to the State, the defendant should raise those discrepancies in the trial court as part of his rebuttal. The State asserts this burden is not onerous. Finally, the State argues that if the appellant may raise matters on appeal which were not raised in the trial court, then the State should be allowed to do the same, to-wit: bring forward facts in the record which support its explanation or rebut the appellant’s rebuttal.

The court of appeals based its decision on footnote 6A in Tompkins, 774 S.W.2d 195 , which stated:

In a supplemental brief, filed on September 28, 1987, appellant has offered [to compare the black venirepersons struck with those venirepersons not struck], inviting this Court to employ the record of jury selection that exists in this cause to impeach or rebut testimony given by the prosecutors at the “Batson” hearing, supra. The point is well-taken and does cast considerable doubt upon the neutral explanations offered by counsel for the State. Had the matter been pressed by defense counsel during his cross-examination of the prosecutors, or *144 otherwise brought before the trial judge at the “Batson” hearing, it might have materially affected the trial judge’s ultimate findings of fact.

However, even though the trial judge might have judicially noticed or independently recalled testimony from the jury selection process, there is nothing in the “Batson” hearing to suggest that she was requested by defense counsel to do so. In short, at the “Batson” hearing counsel for appellant gave no indication to the trial judge that he wanted her to consider the credibility of any neutral explanation offered by the State based upon the manner in which similarly-situated white veniremen were treated during voir dire.

We point out that, at the hearing conducted pursuant to Batson, the trial judge is the fact-finder, and it is his responsibility to weigh the evidence and determine the credibility of the witnesses. A reviewing court should reverse his findings only when they are not supported by sufficient evidence or, as we often say, for an “abuse of discretion.” Because the trial judge was not urged to make, and did not make, a finding based upon a comparison analysis in deciding the issue whether the prosecutor’s neutral explanations were rebutted or impeached at the “Batson” hearing with evidence that unchallenged white veniremen also possessed the same purportedly undesireable (sic) characteristics, we do not consider this circumstance in reviewing the trial judge’s findings in this cause.

Id. at 202-203.

Judge Teague, the author of the Tompkins opinion, makes a valid point that urging the comparisons at the Batson hearing could materially affect the trial judge’s findings of fact and conclusions of law on the Batson claim. Such comparisons draw into question the genuine neutrality of the prosecutor’s explanations for his peremptory challenges and suggest that the race neutral explanations may be pretexts. Indeed, we would urge defense counsel to make comparisons as part of his rebuttal evidence either during his cross-examination of the State’s attorney or during the Batson hearing, as suggested in Tompkins , because the trial judge’s findings are accorded great deference upon appellate review. See Keeton, 749 S.W.2d at 870 ; Whitsey, 796 S.W.2d at 721, n. 4 . 4 Moreover, Tompkins was a capital murder case, to which the pronouncement in footnote 6A may be more appropriately applicable. Voir dire for a capital murder trial generally runs for weeks, with hundreds of questions and thousands of pages of transcription, making it extremely difficult for the trial judge, as well as the parties, to remember discrepancies in the voir dire of the various veniremembers who are questioned individually. In contrast, voir dire in a trial for a non-capital offense is done before the full jury panel rather than individually, usually lasts less than a day, and all peremptory challenges are made at its conclusion. Discrepancies in the voir dire of the various veniremembers can be readily determined by the trial judge during the procedure, and comparisons of the challenged prospective jurors with those not struck can be made contemporaneously with the use of the peremptory strikes.

For several reasons we believe appellant is correct that this footnote in Tompkins is not a holding of this Court, and we decline to adopt it as one. 5 First, *145 we observe the Supreme Court’s decision in Batson does not support the idea that discrepancies in the voir dire of the various panel members must be brought to the trial judge’s attention by the accused in order to preserve for appellate review the issue of the constitutionality of the prosecutor’s peremptory challenges. In Batson, defense counsel timely objected to the prosecutor’s removal of all blacks from the jury panel, viz: he moved to discharge the jury before it was sworn on the grounds that the prosecutor’s actions violated Batson’s Sixth and Fourteenth Amendment rights to a jury drawn from a cross-section of the community and to equal protection of the laws. The Supreme Court articulated the requisite showing to establish such violations. After his objection, the defendant must establish a prima facie case of purposeful discrimination, which he does by:

1. showing he is a member of a cognizable racial group, and the prosecutor has exercised peremptory challenges to remove from the venire members of his race;

2. relying on the fact that peremptory challenges constitute a jury selection practice that permits discrimination; and

3. showing these facts and other relevant circumstances which raise an inference that the prosecutor peremptorily struck veniremembers on account of their race.

Batson, 106 S.Ct. 1712, 1722-23 .

The Supreme Court then discussed the trial court’s role in deciding whether the defendant has made a prima facie case. The Court directed the trial judge to “consider all relevant circumstances” of the voir dire examination. Id. at 1723 . Those “circumstances” were the facts discerned by the trial judge during his supervision of the voir dire. The Supreme Court gave illustrative examples: a pattern of strikes against black veniremembers and the prosecutor’s questions and statements during voir dire and in exercising his challenges. After the defendant makes his prima facie showing, the burden shifts to the State to come forward with neutral explanations for challenging black prospective jurors. It is then the trial court’s duty to determine if the defendant has established purposeful discrimination. Id. at 1724 . 6

The Supreme Court makes no mention of a “comparative analysis” in its discussion of a defendant’s burden in Batson , but the Court notes the trial judge’s decision on whether the defendant has proved his Bat-son claim turns, in part, on his observations during the voir dire examination. As supervisor of the voir dire, the trial judge is in a position to readily perceive discrepancies during the jury selection process, such as, the prosecutor failing to question any of the minority veniremen, yet striking them anyway; the prosecutor striking minority veniremen who gave answers similar to those of majority veniremen who were not struck; or the prosecutor striking minority veniremen who had the same characteristics professionally, socially, religiously, etc. as majority veniremen who were not struck. These factors which may indicate disparate treatment of prospective jurors enter into the trial judge’s assessment of the prosecutor’s credibility and eventually the trial judge’s determination of the racial neutrality of his peremptory challenges.

Furthermore, we find that discrepancies in the voir dire do not constitute a specific Batson objection in and of themselves, nor are they necessarily an element of the Bat-son objection. 7 The “comparative analysis” is also not the cross-examination of the prosecutor at the Batson hearing, although it may indeed be a part of that examination. Rather, we believe a comparative analysis is an argument of the evidence presented to the trial judge during the voir dire and the Batson hearing. It is defense counsel’s opportunity to rehash the voir dire, argue any perceived discrepancies in the voir dire and impeaching evidence brought out during cross-examination of the prosecutor, and show that the prosecu *146 tor’s race neutral explanations for his peremptory strikes are not in fact race neutral. While this analysis is certainly critical to a defendant’s rebutting the prosecutor’s facially neutral explanations and sustaining his burden under Batson , it is not required. Moreover, this type analysis is significant, maybe even more so, on appeal when the appellate court is reviewing the trial judge’s findings as to . purposeful discrimination. When making its review, the appellate court is obviously not in the voir dire “catbird seat”, and a detailed comparison of the prosecutor’s strikes, the explanations therefor, and other relevant circumstances of the voir dire gives the appellate court a more accurate picture of the voir dire than a cold record.

The State asserts that if the appellant may make comparisons for the first time on direct appeal, then it should be allowed to do the same, viz: bring forward facts in the record which support its explanation or rebut the appellant’s rebuttal. The State’s argument is flawed for two reasons. First, by our ruling today, we are not allowing appellant to raise matters on appeal which were not raised in the trial court. 8 On the contrary, our ruling merely allows appellant to argue what is in evidence from the voir dire and the Batson hearing and why he should prevail on his Batson claim. Secondly, we are according the State the same privilege. The State is likewise allowed to argue before the appellate court the facts developed in the record to support its neutral explanation given in response to appellant’s prima facie case, or to controvert the rebuttal evidence offered by appellant in the Batson hearing or the comparisons raised on appeal. Our ruling thus allows the State to argue what is in evidence to buttress its position that the trial judge did not clearly err in finding no purposeful discrimination.

For the foregoing reasons, we hold appellant was not required to request the trial judge to make his finding upon the Batson motion based upon a comparison analysis in order to have that very same evidence considered on direct appeal. 9

In the instant case, the court of appeals states:

[Ajppellant brings forward testimony from the voir dire which he asserts casts doubt on the prosecutor’s explanations. Appellant urges that we compare the individuals that the State struck with those who were not struck and to use these alleged discrepancies to determine whether the State’s explanations were credible....

Young, slip op. at p. 7. As previously noted supra, the court of appeals refused to consider appellant’s comparisons in reviewing the trial court’s ruling on the Bat-son issue. In this respect, the court of appeals erred, and we remand this cause to that court for consideration thereof. However, in reviewing this evidence, the court *147 of appeals is not to determine whether the prosecutor’s explanations are credible, but rather, whether the trial judge’s ruling on appellant’s Batson motion was supported by the record and therefore not clearly erroneous. See Whitsey, 796 S.W.2d 707 (Opinion on State’s Motion for Rehearing).

The judgment of the court of appeals is reversed, and this cause is remanded to that court for further proceedings not inconsistent with this opinion.

WHITE, J., dissents.

. Now called the Texas Department of Criminal Justice, Institutional Division.

. Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986).

. In its opinion, the court of appeals assumed, without deciding, that appellant had established a prima facie case of discrimination because the prosecutor advanced his neutral explanations for his peremptory challenges immediately upon appellant's listing of the struck jurors, without any prompting from the trial judge. The court of appeals also construed the trial court’s denial of appellant’s Batson motion as a finding that the State articulated race neutral reasons for its use of its peremptory strikes. Slip op. at p. 5.

. Also see Judge Teague’s concurring opinion in Keeton, 749 S.W.2d at 879-880 . There, Judge Teague was compelled to agree with the majority that the prosecutor’s race neutral explanations for his peremptory challenges were "supported by'the record”, our appellate standard of review at that time, because there was no cross-examination or impeaching evidence from the Batson hearing which rebutted, disputed, controverted, or impugned the prosecutor’s testimony. Judge Teague recognized the importance of a comparative analysis to the trial judge’s findings and the appellate court’s review thereof. See also Whitsey, 796 S.W.2d 707 , 726 et seq. (discussing extrinsic evidence presented by defense counsel in rebuttal of prosecutor's race neutral explanations for peremptory strikes).

. As is generally true with footnotes, we regard this footnote as dictum even though we are not in complete disagreement with some of its observations.

. The Supreme Court declined to formulate particular procedures for trial courts to follow upon a defendant's timely objection to the prosecutor’s use of his peremptory challenges.

. We express no opinion on what is necessary for a legally sufficient Batson objection.

. Compare Wilson v. State, 692 S.W.2d 661 (Tex. Cr.App.1984) (Opinion on State’s Motion for Rehearing), where Court allows the State to raise for first time on appeal the issue of defendant’s standing to challenge validity of a search. Id. at 671 . The Court states a reviewing court may properly sustain the trial court’s denial of a motion to suppress on the ground that the evidence failed to establish standing as a matter of law, even though the record does not reflect that the issue was considered by the parties or the trial court. Id. Cf. Angel v. State, 740 S.W.2d 727 (Tex.Cr.App.1987) (State may not raise standing for first time on petition for discretionary review).

. The dissent of course would require just the opposite, but we believe the dissenters fail to appreciate the difference between evidence and argument. Disparate treatment is an argument made from the evidence. The evidence shows how each venireman was treated, not the argument. To say, as the dissent does, that Batson , in the wording “ ‘The defendant must show ’ ” (dissenting slip opinion page 2) means that the defendant must argue aptly demonstrates this confusion.

Suffice to say it would be the height of inconsistency to restrict a defendant on appeal to only those arguments he made in the trial court and yet allow the State to raise “standing” for the first time on appeal (as we do, see Wilson v. State, 692 S.W.2d 661 (Tex.Cr.App.1984). To be consistent we would need to further restrict a defendant on appeal to only those arguments he made to the trial court in his "motion to suppress" or any other motion.

Granted, trial judges must remain attentive, alert and mentally awake during voir dire, but that allusion is all that the majority can find to agree with in the dissent.