Malone v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted of possession of cocaine and sentenced to seven years confinement. Tex. Health & Safety Code Ann. § 481.115 . The Court of Appeals affirmed. Malone v. State, 899 S.W.2d 256 (Tex.App.—Houston [14th Dist.] 1995). We granted review to determine whether the Court of Appeals erred in addressing the issue of whether appellant made a prima facie case as a part of his motion under Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). 1 We will reverse and remand.

After voir dire, but before the jury was impaneled, appellant lodged a Batson objection, contending the State excluded two of four black veniremembers on the basis of race. The State responded that appellant faded to make a prima facie showing of racial discrimination and the trial judge overruled appellant’s Batson motion. After the jury was sworn and dismissed the prosecutor explained why she struck the contested veniremembers. 2 Appellant responded that the explanations were pretextual. The trial judge found the strikes were made for racially neutral reasons and again overruled appellant’s Batson motion. 3

On appeal appellant contended “the State waived its right to maintain that no prima facie showing of discrimination was made when it chose to give its reasons for striking” the contested veniremembers. Malone, 899 S.W.2d at 259 . The Court of Appeals disagreed, stating the State provided race-neutral explanations only after appellant’s motion was overruled and only “to avoid the time and expense of a remand if [the Court of Appeals] were to decide that a prima facie case of discrimination was made.” Ibid. The Court of Appeals held appellant failed to make prima facie showing of discrimination and did not address the merits of appellant’s first and second points of error. Id., 899 *412 S.W.2d at 260 . Appellant contends the Court of Appeals erred in addressing the trial judge’s decision of whether appellant had made a prima facie case. Appellant argues the prima facie issue was moot once the prosecutor offered her explanations.

The Supreme Court addressed this issue in Hernandez v. New York, 500 U.S. 352 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991). Hernandez raised a Batson objection contending the prosecutor struck two Latino veniremembers on the basis of race. Id., 500 U.S. at 354-56 , 111 S.Ct. at 1864 . Before the trial judge ruled on Hernandez’s objection the prosecutor provided race-neutral explanations for the peremptory strikes. Ibid. The Supreme Court held that once the prosecutor has provided race-neutral explanations, the explanations, and not the prima facie showing, are to be reviewed by the appellate court:

... Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.

Id., 500 U.S. at 359 , 111 S.Ct. at 1866 .

We have addressed this issue in a number of cases and have consistently held that we, like the Supreme Court, will not review the issue of whether the defendant established a prima facie case where the prosecutor has articulated reasons for the contested peremptory strike and the trial judge has ruled on the ultimate question of intentional discrimination. Hill v. State, 827 S.W.2d 860, 865 (Tex.Cr.App.1992). Wheatfall v. State, 882 S.W.2d 829, 835 (Tex.Cr.App.1994) (“Because the State offered a race-neutral explanation we will not review the trial court’s prima facie ruling, as it is moot.”) (citing Chambers v. State, 866 S.W.2d 9, 23 (Tex.Cr.App.1993)). For example, in Staley v. State, 887 S.W.2d 885 (Tex.Cr.App.1994), the defendant objected to the State’s peremptory challenge alleging it was racially motivated. Id., 887 S.W.2d at 897 . The trial judge agreed with the State’s contention that a prima facie case had not been made, but stated, “I want to hear the reason anyway.” Id., 887 S.W.2d at 897, n. 2 . The State then provided race-neutral reasons for their peremptory strikes. Id., 887 S.W.2d at 898 . A majority of the Court held it “will not review the issue of whether the defendant established a prima facie case where the prosecutor has articulated his reasons for the challenged peremptory strike and the trial court has ruled on the ultimate questions of intentional discrimination.” Ibid, (quoting Hill, supra.) (Baird, J. concurring, joined by Miller, Campbell, Over-street and Maloney, JJ.).

The State provides no new authority on this issue nor has the State provided a reason for us to ignore, distinguish or overrule controlling authority from the United States Supreme Court or this Court. 4 Consequently, we reaffirm those cases and hold that once the State’s offers explanations for striking the contested veniremembers, and the trial judge rules on the ultimate question of intentional discrimination, the issue of whether the defendant made a prima facie case is moot and, therefore, not subject to appellate review.

The judgment of the Court of Appeals is reversed and this ease is remanded to that Court for further proceedings consistent with this opinion.

CLINTON, J., concurs.

. Appellant’s ground for review states:

Whether the Court of Appeals erred in holding that the trial court did not err in overruling the appellant’s Batson motion because defense counsel failed to make a prima facie case of racial discrimination.

. The prosecutor explained:

On the record, Judge, recent opinions for the Court of Criminal Appeals, Your Honor, have indicated a tendency by the appellate court to make a prima facie showing in a Batson case to be [easily made]. There have been cases where 50 percent of the strikes of the African American jurors have indicated that a prima facie case has been shown. In these instances, the appellate cases go back to the trial court for hearings for the prosecutor to have an opportunity to put forth their racially neutral reasons if there are any for the exercise of peremptory [challenges]. Therefore we’d ask the Court for an opportunity for Ms. Wayne to state on the record what her reasons are for striking any African American jurors, and then we would obviously ask the Court to make a finding that these were indeed racially neutral reasons....

Thereafter, the State indicated to the Court that it struck one of the contested .veniremembers on the basis of a medical condition and the other contested veniremember because she was young, non-responsive, and inappropriately answered one of the voir dire questions.

.Specifically, the State, after offering her explanations asked the trial judge to make a finding on the record that the reasons for the peremptory challenges were racially neutral. And the trial judge did so.

. The State contends it preserved its objection to appellant’s prima facie evidence because: 1) it did not concede that a prima facie case had been made; and, 2) the trial judge did not retract his initial ruling that no prima facie evidence was shown. State’s Brief, pp. 4-5. These arguments are specifically rejected for the reasons stated in Staley, 887 S.W.2d at 897, n. 2 , and because the State specifically requested the trial judge to make a finding that the explanations for the contested strikes were racially neutral. See, n. 3, supra.