Young v. State

CAMPBELL, Judge,

dissenting.

I cannot subscribe to the majority opinion, which reaches a result contrary to the plain meaning of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986); our recent holding in Tompkins v. State, 774 S.W.2d 195 , 202 fn. 6A (Tex.Cr. App.1987), aff’d by an equally divided Court, 490 U.S. 754 , 109 S.Ct. 2180 , 104 L.Ed.2d 834 (1989); Article 35.261 of the Texas Code of Criminal Procedure; and Texas Rule of Appellate Procedure 52(a). The majority’s holding is also unfair to trial courts and prosecutors and unreasonably burdensome to appellate courts.

The record reflects that on February 22, 1989, at the conclusion of appellant’s voir dire, appellant objected that the prosecutor had peremptorily struck seven of the eight blacks on the venire. Appellant complained that the prosecutor’s strikes showed “a pattern” of racial discrimination, and asked the trial court to require the prosecutor to provide explanations for the strikes. The prosecutor, without the court’s request, immediately articulated detailed, racially-neutral explanations for all seven challenged strikes. After the prosecutor finished, appellant chose not to cross-examine him. Rather, appellant chose simply to argue to the court that “by using a systematic method of striking each black on the jury, no matter what reason is used, the State has in effect denied the defendant a jury of his peers.” Hearing no other evidence or argument, the trial court overruled the Batson claim.

On appeal appellant argued for the first time that the prosecutor’s explanations for three of the peremptory strikes were unacceptable as a matter of law because “[veniremen] with the same or similar characteristics as the challenged [veniremen] were not struck.” See Whitsey v. State, 796 S.W.2d 707, 714 (Tex.Cr.App.1989) (disparate treatment of veniremen is strong indicator of racial bias). The court of appeals, relying correctly upon our recent holding in Tompkins, 774 S.W.2d at 202 fn. 6A, held the point not preserved for appellate review “[b]ecause appellant did not urge the trial court to make [such] comparisons during the Batson hearing.” Young v. State, No. 05-89-00571-CR (Tex.App.—Dallas 1990), slip op. at 7 (unpublished).

We granted review to consider whether our holding in Tompkins should remain the law. The majority concludes unwisely that it should not.

Batson v. Kentucky

The majority’s holding today is contrary to the reasoning in Batson itself. In Bat-son the Supreme Court held that, as in any equal protection case, the burden is on the defendant who alleges discriminatory jury selection to prove the existence of purposeful discrimination. Batson at 93 , 106 S.Ct. at 1721 . To make a prima facie showing of purposeful racial discrimination under Bat-son, 1 a defendant must first show, at a hearing, that the prosecutor has exercised peremptory strikes to remove, from the venire, members of a particular racial group. Batson at 96 , 106 S.Ct. at 1722 . A defendant is, of course, “entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate.” Id. However, a defendant must do more than merely show that the *148 prosecutor has peremptorily struck the veniremen in question. “[T]he defendant must show that th[is] fact[ ] and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” Id. (Emphasis added.) In other words, the defendant must explain to the trial court why the totality of the circumstances of the voir dire logically indicates that the prosecutor purposefully discriminated. In determining whether a prima facie case exists, the trial court should, of course, consider all the circumstances of the voir dire that it can remember and that have been pointed out to it by the defendant. But Batson imposes no obligation on the trial court to take detailed notes during the entire voir dire regarding everything that transpires or to photographically remember every detail. Batson does not require the trial court to make the defendant’s equal protection case for him; the burden always remains on the defendant to argue and prove up his own case.

If the defendant makes out a prima facie case of racial discrimination, then the burden shifts to the prosecutor to come forward with racially-neutral explanations for his peremptory strikes. Batson at 97 , 106 S.Ct. at 1723 . Once the prosecutor has given his explanations, the defendant has the right to cross-examine him. Salazar v. State, 795 S.W.2d 187, 192 (Tex.Cr.App. 1990). The reason the equal protection clause grants the defendant the right of cross-examination is so that he can show the trial judge why the prosecutor’s stated reasons may indicate bad faith (such as where they reveal disparate treatment of veniremen) or are facially unlawful. The adversarial Batson hearing that is the defendant’s constitutional right affords him a reasonable opportunity to prove up his equal protection case in the trial court. That is all that Batson requires or logically should require.

Tompkins v. State

In Tompkins , a direct capital appeal before this Court in 1987, the defendant asked this Court to engage in a comparison Batson analysis identical to that in which Appellant Young asked the court of appeals to engage. We refused to do so, because the defendant, “though certainly afforded the opportunity to do so,” had not asked the trial court to make such an analysis. Tompkins, 774 S.W.2d at 202 fn. 6A. Although this holding, to which there was no dissent, appeared in a footnote, it was a holding nonetheless, and nothing the majority says to the contrary can alter that fact.

Article 35.261

The majority opinion also runs counter to the plain language of Article 35.261 of the Texas Code of Criminal Procedure. That article, obviously intended to codify the ruling in Batson , provides in relevant part:

After the parties have delivered their [juror] lists to the clerk ... and before the court has impanelled the jury, the defendant may request the court to dismiss the array and call a new array in the case. The court shall grant the motion of a defendant for dismissal of the array if the court determines that ... the attorney representing the state exercised peremptory challenges for the purpose of excluding persons from the jury on the basis of their race, and that the defendant has offered evidence of relevant facts that tend to show that challenges made by the attorney representing the state were made for reasons based on race. If the defendant establishes a pri-ma facie case, the burden then shifts to the attorney representing the state to give a racially neutral explanation for the challenges. The burden of persuasion remains with the defendant to establish purposeful discrimination.

(Emphasis added.) Thus, article 35.261 recognizes, and requires, as did Batson , that the burden is always on the defendant to show the trial court why the circumstances of the voir dire prove up purposeful discrimination. Article 35.261 does not require the trial court to remain aware of all the minute details of voir dire or risk reversal on appeal.

*149 Rule 52(a)

Finally, it should be plain that the majority holding is contrary to the requirements of Rule 52(a) of the Texas Rules of Appellate Procedure, which provides in relevant part: “In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context.” There are many rationales for this raise-or-waive rule: that it is a necessary corollary of our adversary system in which issues are framed by the litigants and presented to the trial court; that fairness to all parties requires a litigant to advance his complaints at a time when there is an opportunity to respond to them or cure them; that reversing for error not raised in the trial court permits the losing party to second-guess its tactical decisions after they do not produce the desired result; and that there is something unseemly about telling a trial court it erred when it was never presented with the opportunity to be right. The principle rationale for the rule, however, is judicial economy. If the losing side can obtain a reversal on a point not argued in the trial court, the parties and the public are put to the expense of a retrial that could have been avoided by better lawyer-ing. Furthermore, if the issue had been timely raised in the trial court, it could have been resolved there, and the parties and the public would have been spared the expense of an appeal. 2 All these rationales apply with full force to the instant case.

The majority opinion also places an unreasonable burden on appellate courts, who will now be obligated to comb voluminous voir dire records and engage in tedious, difficult comparison analyses and (perhaps) other analyses. It is no comfort to suggest, as the majority does, that its holding may not apply to capital cases, because applying a different rule there would, in my view, itself be constitutionally suspect.

I dissent.

McCORMICK, P.J., joins this dissent.

Before the court en banc.

. See also Edmonson v. Leesville Concrete Co., — U.S.-, 111 S.Ct. 2077 , 114 L.Ed.2d 660 (1991) (Batson ruling applies to civil cases); Powers v. Ohio, —U.S.-, 111 S.Ct. 1364 , 113 L.Ed.2d 411 (1991) (Batson ruling applies even if defendant and improperly excluded veniremen of different races).

. The raise-or-waive rule is not absolute, of course. We have previously explicated the right-not-recognized exception, see Black v. State, 816 S.W.2d 350 (Tex.Cr.App.1991) (Campbell, J., concurring), and other exceptions for certain errors that arguably compromised the basic fairness of a defendant’s conviction. See, e.g., Rabb v. State, 730 S.W.2d 751 (Tex.Cr.App. 1987). Batson error does not fall in either category. See Mathews v. State, 768 S.W.2d 731 (Tex.Cr.App.1989).