Young v. State

BENAVIDES, Judge,

dissenting.

On original submission, I joined the opinion of the Court, voting for the reasons expressed therein to reverse the Fifth Court of Appeals and to remand this cause for additional appellate review. I am now persuaded, upon further reflection and study, that our decision on original submission was in error. Accordingly, I would grant the State’s motions for rehearing in this cause and affirm the lower court’s judgment.

I.

In the first place, it is now evident to me that our original opinion misunderstood the significance of controlling precedent by characterizing footnote 6A of Tompkins v. State 1 as “dictum.” 2 Apparently, this Court is now inclined to view footnotes as unsuitable for the expression of binding precedent. If we in fact intend to regard footnotes as superfluous, we ought to eliminate them from our opinions altogether. Neither precedential purpose nor direction to bench and bar is served when we clutter the authoritative decisional law with inessential musings that the Court may later have to repudiate.

Be that as it may, it is apparent from the Tompkins opinion itself that footnote 6A was not gratuitous or otherwise unnecessary, but was added specifically to address matters raised by the appellant in a supplemental brief. It was not just an interesting parenthetical remark. Accordingly, Tompkins is not fair game for an emerging anti-footnote policy in this case. Indeed, the now controversial footnote 6A was so critical in Tompkins that the outcome itself would, in all likelihood, have been different except for the holding which appears only in that footnote. To label it “dictum,” therefore, is patently incorrect. 3

What follows is that Tompkins, unless it was wrongly decided, should control dispo *154 sition of the instant cause. Of course, if it was wrongly decided, it should be overruled expressly, as its essential holding cannot be reconciled with the majority opinion in this case. But, after careful reconsideration of the matter, I believe that Tompkins does, indeed, provide the appropriate rationale for decision in cases such as this one. Thus, failure to follow it here represents a disregard for precedent which, as a court of last resort, we should be loath to countenance.

II.

Here, the appellant would like the Court of Appeals to consider some circumstances of the jury selection process, which it declined to consider before, in reviewing the trial court’s adverse disposition of his Batson 4 claim. These circumstances include the number and kinds of questions propounded by the prosecuting attorney to prospective jurors during voir dire. Appellant maintains that these circumstances would reveal a manner of interrogation fraught with racial prejudice, inasmuch as black veniremembers were questioned in a far more perfunctory way than were those seriously regarded by the State as candidates for jury service.

The argument is promising if supported by evidence. Undoubtedly, significant differences in the way prospective jurors are questioned may expose underlying prejudices of the questioner. And, where the questioner’s motives are at issue, such circumstances are clearly relevant. But during voir dire, a prosecutor’s motives are not at issue, and the questions propounded to prospective jurors are not evidence.

Once a Batson motion has been made, of course, new questions of fact are presented, and an evidentiary hearing becomes necessary to resolve them. The burden of proof on these questions falls to the mov-ant, and he is obliged to meet that burden, if he can, in the same manner as litigants with the burden of proof on other factual questions — that is, by the production of evidence. 5 In the Batson context, such evidence must be sufficient to prove that the prosecuting attorney actually exercised peremptory challenges against venire-members on account of their race. 6 Although the evidence may come from a number of possible sources, the most fertile ground after Batson is the voir dire examination itself.

Still, even a relatively brief voir dire by both parties typically yields a great deal of dialogue which has nothing specifically to do with the Batson question. And because the issues at voir dire necessarily do not include the motives of prosecutors, one would not expect the entire voir dire to be relevant at a subsequent hearing to determine those motives. For this reason alone, the notion that a trial judge must automatically revisit the entire voir dire examination sua sponte every time one party accuses the other of racial prejudice is untenable. More to the point, it is contrary to elementary principles of adversary procedure. A trial judge is never obliged to sort through evidence, even when it has been formally tendered, to cull the relevant from the irrelevant. 7 Surely, we should not enforce a more rigorous rule against him when, as here, the evidence was never properly offered at all.

The majority on original submission took the position that nothing in Batson itself requires “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.” 8 Evidently, we lost sight on original submis *155 sion of the difference between the preservation of a complaint and the merits of its disposition. The only issue on appeal in this case is whether the trial judge’s decision was supported by the evidence, was clearly erroneous, was an abuse of discretion, or whatever the current fashion is to call it. 9 It comes to the same thing. The appellate court’s task is to review the evidence. Neither this Court nor the Court of Appeals would be doing that if appellant’s complaint had been forfeited by a procedural default at trial.

The majority opinion points out that “a comparative analysis is an argument of the evidence presented to the trial judge during voir dire and the Batson hearing[,]” and is not evidence itself. 10 Certainly, this is true. And it is equally certain that litigants are not obliged by the law to argue their cases at the conclusion of evidence. After even the most complex, protracted trial, the parties may decline summation or jury argument altogether. Yet, the fact-finder, whether judge or jury, is still obliged to make a decision on the whole evidence presented, which decision is reviewable for its correctness on appeal. To say that the appellant in this case was required to argue the evidence before he was entitled to a decision from the factfinder on the basis of such evidence is simply mistaken.

But it is no mistake to hold that the factfinder need not consider information which was not received in evidence, even if aware of that information. Indeed, it is unlawful for him to do so, as should be apparent from the abundant case law of this Court holding it grossly improper for jurors to make decisions based in whole or part upon concededly relevant information known to them from a source other than trial. 11

Even if the circumstances of voir dire could be considered evidence in this case, such evidence was certainly not admitted during jury selection to discover the ulteri- or motives of lawyers. Rather, it was necessarily received only to test the qualifications of prospective jurors. 12 And because evidence received for one purpose is not available for another unless reoffered, 13 the evidence received during voir dire, or a circumstance surrounding its receipt, does not automatically constitute evidence at a subsequent Batson hearing, even to the extent it might be relevant for that purpose. If a litigant desires that evidence or circumstances in the record be considered by the trial judge at a later evidentiary hearing on a different issue, it behooves him to offer it in the usual way at that hearing or simply to ask that the trial judge judicially notice it as provided by law. 14

This procedure may seem unnecessarily slavish or hypertechnical to some practitioners, especially in circumstances such as those presented here. But these procedural mechanisms have the same practical importance in the present context as they do at every other stage of an adversary proceeding. They ensure that the most fundamental principles of fairness and order will be observed invariably throughout trial. With respect to the admission of evidence, they assure that an opposing party will always know precisely what is offered by his opponent and for what purpose. This is so that he can interpose objection if the law makes one available, or offer his own evidence in rebuttal or explanation if it does not. 15 Neither course is a realistic alternative for him if, instead, the evidence is received without his knowledge, or without his knowing the issue to which it is addressed.

*156 Application of these basic tenets to the present case is not strained. Without some reasonably clear indication from appellant of the circumstances from voir dire upon which he intended to rely for proof of a racial motive, the State was effectively denied a chance to object to that evidence or to meet it with controverting evidence. And the right to an opportunity for objection in this context was not merely an empty formality. Had appellant attempted the simple expedient of offering the entire voir dire, a relevancy objection from the State would have been well-founded because, as has already been noticed, most of the jury selection process in this and in other cases does not bear upon the questions at issue in a Batson hearing. Unless the appellant could successfully limit his offer only to those portions of the voir dire relevant to the matters in issue, the trial judge would have been within his discretion in any case to disallow all of the preferred evidence. 16

These are the necessary and unremarkable consequences of a fair and orderly system governing virtually all litigation, including Batson hearings. Here, when the trial judge convened a hearing for the purpose of receiving evidence, appellant rested and closed without producing any. He called no witnesses, offered no transcripts, and made no request that the court judicially notice relevant circumstances of the voir dire examination or testimony offered for another purpose during the jury selection process. The State was, therefore, entitled to resume trial in the certain belief that appellant had offered no evidence whatsoever to meet his burden of proof. Yet a majority of this Court would force upon the trial judge a duty to search alone for the most arcane evidence of racial prejudice in a long transcript of jury selection, to then notice that evidence without any request from its beneficiary or opportunity for its opponent to object, and finally to make a critical credibility decision based upon such evidence without asking any further explanation from either side. Let me be no longer a part of that majority, for its holding is repugnant to the legal system of which I have been a member for over twenty years.

I do not dispute for a moment that racial prejudice is an evil of unparalleled magnitude in the history of this country. I am unalterably committed to its opposition under all circumstances. But it is one thing to allege bigotry, and quite another to prove it. In the final analysis, I would not like to have it said of me that I found an attorney representing the State of Texas guilty of such serious misbehavior without affording him an opportunity to rebut or explain the evidence against him. Because, in my view, a majority of the Court continues to encourage just such a result in this case, I dissent.

The judgment of the Fifth Court of Appeals should be affirmed.

Having dissented on original submission, McCORMICK, P.J., and CAMPBELL and WHITE, JJ, join the opinion of BENA-VIDES, J., dissenting to the denial of the State’s Motions for Rehearing.

. 774 S.W.2d 195 (Tex.Cr.App.1987).

. See p. 144, fn. 5.

. To do so in a footnote, as we did on original submission, only compounds the irony. If footnotes have no precedential value, what prece-dential value should we accord footnote 5 of the opinion holding that footnote 6A of Tompkins was "dictum"? Is it "dictum” as well?

. Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986); Art. 35.261, V.A.C.C.P.

. Batson, 476 U.S. at 93 , 106 S.Ct. at 1721 .

. Hernandez v. New York, 500 U.S. -, 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991).

. See Goode, Wellborn and Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal, 33 Texas Practice § 103.2 at 11-14 (West 1988) (hereinafter "Goode"); Cleary (ed.), McCormick on Evidence, § 52 at 131 (West 1984) (hereinafter "Cleary”).

. See p. 145.

. See Whitsey v. State, 796 S.W.2d 707, 739-740 (Tex.Cr.App.1989) (Teague, J., concurring).

. See p. 145.

. See generally 16 Texas Digest 2d, Criminal Law 925½ (West 1983).

. See Arts. 35.10 through 35.21, V.A.C.C.P.

. See Tex.R.Crim.Evid. 105(b); Goode, § 105.1 at 26-27; Cleary, § 51 at 125.

. See Tex.R.Crim.Evid. 103, 201.

. Cleary, § 51 at 122.

. Goode, § 105.1 at 27.