Malone v. State

MANSFIELD, Judge,

dissenting.

Appellant, L.D. Malone, was indicted for felony possession of crack cocaine in an amount less than 28 grams. The indictment contained one enhancement paragraph alleging appellant was convicted of the felony of burglary of a building in 1990. Appellant pled not guilty to the present offense but pled true to the enhancement paragraph. The jury found appellant guilty as charged in the indictment and the trial court found true the allegations in the enhancement paragraph. Appellant was sentenced to seven years confinement in the Texas Department of Criminal Justice — Institutional Division. The court of appeals affirmed. Malone v. State, 899 S.W.2d 256 (Tex.App.—Houston [14th] 1995).

This Court granted review to determine if the court of appeals erred in holding that the trial court did not err in overruling appellant’s motion under Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986) because appellant failed to make a prima facie case of purposeful racial discrimination by the State in its exercise of its peremptory challenges. Because I believe the court of appeals decision is correct, I respectfully dissent.

After the State and appellant had exercised their peremptory challenges, appellant made a Batson motion, claiming the State struck two black venirepersons. 1 The following exchange took place:

Appellant: I beg your pardon, No. 4 and No. 28.

Court: What says the State?

Prosecutor: That in fact those two jurors, as far as I can tell, are Black and that they were struck by the State.

Court: And what?

Prosecutor: These are two jurors that are Black and they were struck by the State. There has been no showing or prima facie case that the State has exercised [sic] those jurors in a manner that is not race neutral. And are you requiring me to come forward with some race neutral reasons?

Appellant: I would point out that of the four that were Black, 50% of those were struck by the State. I don’t recall any basis of an intelligent strike, except their race.

*417 Court: Black Jurors 10 and 32 are on the jury, is that right?

Prosecutor: Yes.

Court: Anything further?

Prosecutor: Nothing from the State.

Court: Okay, overruled.

Subsequently, after the jury was sworn, appellant entered his plea of not guilty to the indictment, and after the jury panel was sent home for the day, the State asked the Court for an opportunity to put on the record the racially neutral reasons for its peremptory strikes. The State expressed its concern that if an appellate court later found appellant had made a prima facie ease of purposeful racial discrimination, the necessity of remanding the case back for another hearing could be avoided by permitting the State to put its racially neutral reasons on the record. The trial court granted the State’s request, and appellant was provided an opportunity to contest the State’s racially neutral explanation for its peremptory strikes of the two black veniremembers.

The Fourteenth Amendment to the United States Constitution prohibits the State from exercising its peremptory strikes in a racially or sexually discriminatory manner. J.E.B. v. Alabama, — U.S. -, 114 S.Ct. 1419 , 128 L.Ed.2d 89 (1994); Powers v. Ohio, 499 U.S. 400 , 111 S.Ct. 1364 , 113 L.Ed.2d 411 (1991); Esteves v. State, 849 S.W.2d 822 (Tex.Crim.App.1993). Texas Code of Criminal Procedure Article 35.261 also prohibits the State from using race as the basis for exercising its peremptory strikes.

In order to be entitled to a Batson hearing, the defendant must establish a prima facie case of purposeful discrimination on the part of the State. Batson, 476 U.S. at 96-97 , 106 S.Ct. at 1722-23 ; Harris v. State, 827 S.W.2d 949, 955 (Tex.Crim.App.), cert. denied, 506 U.S. 942 , 113 S.Ct. 381 , 121 L.Ed.2d 292 (1992). “In this context, a pri-ma facie showing is that minimum quantity of evidence necessary to support a rational inference that the allegation of purposeful discrimination is true.” Harris v. State, 827 S.W.2d at 955 n. 4. This is just that amount of evidence with “the power to incline toward a belief.” Linscomb v. State, 829 S.W.2d 164, 166 (Tex.Crim.App.1992).

If the defendant makes a prima facie showing, the burden shifts to the State to provide race- or sex-neutral explanations for its peremptory challenges with respect to the veni-repersons at issue. Cook v. State, 858 S.W.2d 467 (Tex.Crim.App.1993). Subsequently, the burden shifts back to the defendant to refute the State’s neutral explanations or, alternatively, to show they are merely a pretext for discrimination. Salazar v. State, 795 S.W.2d 187 (Tex.Crim.App.1990). 2 If the trial court determines the State used its peremptory strikes in a racially discriminatory manner, Texas Code of Criminal Procedure Article 35.261 requires that the court dismiss the entire jury panel and call a new array.

A trial court’s ruling on a Batson motion will not be overturned on appeal unless clearly erroneous. In conducting its review of said ruling, the appellate court must review the entire record to determine if the trial court erred. Hernandez v. New York, 500 U.S. 352 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991); Whitsey v. State, 796 S.W.2d 707, 723 (Tex.Crim.App.1989) (opinion on rehearing); Young v. State, 826 S.W.2d 141 (Tex.Crim.App.1991); Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App.1991).

In the present case, after the trial court had already denied appellant’s Batson motion, the State indicated for the record its reasons for striking the two black venireper-sons: one was struck on the basis of a medical condition, and the other was struck due to her youth, her nonresponsiveness, and her inappropriate answer to one of the questions asked during voir dire. Appellant responded by claiming the State’s explanations were pretextual, but offered no evidence to support its claim. The trial court found the State’s strikes were made for racially neutral reasons and again overruled appellant’s Bat-son motion.

*418 As the court of appeals noted in its opinion, this case is unusual procedurally, because the State offered its racially neutral explanations after the trial court initially denied appellant’s Batson motion. The State’s intent was merely to put its racially neutral explanations on the record to avoid the expense of a remand if the court of appeals or this Court found the trial court erred in ruling appellant did not establish a prima facie ease. Appellant does not cite any persuasive authority that the trial court abused its discretion in allowing the State to put on the record its racially neutral explanations in the manner it did, or that, by not giving its racially neutral explanations at the time appellant initially made his Batson motion, the State waived its right to offer them later during the trial. Furthermore, appellant fails to show he was harmed in any way as he was permitted to contest the State’s racially neutral reasons as pretextual, and, in effect, obtained a second ruling on his Batson motion. While the procedure followed in the present ease is irregular, we discern no harm and hold that the State did not waive its right to offer its racially neutral explanations by offering them after the trial court’s initial ruling on appellant’s Batson motion. 3

We now turn to the issue of whether the trial court’s initial ruling that appellant failed to make a prima facie case of racial discrimination was clearly erroneous. Appellant’s evidence in support of his Batson motion was solely statistical, i.e., the fact that the State used two of its peremptory challenges to strike 50% of the eligible black venireper-sons. 4

The mere striking of a black venireperson, in and of itself, does not make a prima facie ease of purposeful discrimination. A defendant must come forward with facts, not mere numbers alone. See Thompson v. United States, 509 U.S. 931 , 113 S.Ct. 3060 , 125 L.Ed.2d 742 (1993); United States v. Branch, 989 F.2d 752, 755 (5th Cir.1993); United States v. Davis, 40 F.3d 1069 (10th Cir.1994); United States v. Canoy, 38 F.3d 893 (7th Cir.1994). In United States v. Lewis, 892 F.2d 735, 736 (8th Cir.1989), the court held that “reliance on percentages alone does not make out a prima facie case.” In Lewis , the prosecutor used a peremptory challenge to strike one of the two black venirepersons on the panel, i.e., 50% of the black venireper-sons.

Numbers, in and of themselves, may constitute a prima facie case where the State has used its peremptory challenges to strike all or almost all minority venirepersons on the panel. In Whitsey, supra, we found a prima facie case was made where the State struck all six eligible black venirepersons. We reached a similar result in Chambers v. State, 784 S.W.2d 29, 30 (Tex.Crim.App.1989) (State struck all three eligible black venire-persons) and Salazar v. State, supra (State struck the only minority venireperson). Several other courts have also held a prima facie case is made where the State uses its peremptory challenges to strike all eligible black venirepersons. United States v. Horsley, 864 F.2d 1543 (11th Cir.1989); United States v. Clemons, 843 F.2d 741 (3rd Cir.1988); Brown v. State, 762 P.2d 959 (Okl.Crim.App.1988).

As the State, in the present case, used its peremptory challenges to strike only 50% of the eligible black venirepersons, appellant’s argument that this statistic alone constitutes a prima facie case is not as compelling as it would be had the State struck all or almost all of the eligible minority veniremembers. Factors that may give rise to a prima facie *419 case in circumstances like those in the present case include:

1) whether peremptory strikes were used to strike minority venirepersons at a rate substantially in excess of that used to strike nonminority venirepersons;

2) whether minority veniremembers were questioned in substantially the same manner as nonminority veniremembers;

3) whether white venirepersons with characteristics similar to those of struck minority venirepersons were not struck; and

4) whether the prosecutor’s statements during voir dire indicated a bias against minority venirepersons.

Batson, 476 U.S. at 96-97 , 106 S.Ct. at 1722-23 ; Branch, 989 F.2d at 765 ; Lewis, 892 F.2d at 736 ; Keeton v. State, 749 S.W.2d 861, 867 (Tex.Crim.App.1988); Linscomb v. State, 829 S.W.2d at 166 .

This Court has used some or all of the factors described above in determining if defendants had made a prima facie case. In Emerson v. State, 820 S.W.2d 802, 804 (Tex.Crim.App.1991), we held the defendant had made a prima facie case by showing the State struck four out of six eligible black venire-persons (67%) from the panel, the State asked no questions of one of the struck black venirepersons, asked only perfunctory questions of another, and the State did not strike white venirepersons with characteristics similar to those of the two other black venireper-sons who were struck.

In Rousseau v. State, 824 S.W.2d 579, 583 (Tex.Crim.App.1992), a capital case, we held appellant made a prima facie ease where the State used seven of its thirteen strikes on black and Hispanic venirepersons, and the State was not required by the trial court to give its racially neutral explanations for striking a black female venireperson after appellant made a timely Batson motion with respect to that venireperson.

In Linscomb, supra, the State exercised four out of its ten peremptory challenges to strike four out of six eligible black venireper-sons. The two remaining black venireper-sons actually served on the jury. In response to appellant’s Batson motion, the State chose not to offer any racially neutral explanations for its strikes of the four black venirepersons. This Court held that because the State used 40% of its peremptory strikes to exclude four out of six minority venireper-sons, who comprised 19% of the 32 eligible venirepersons, a prima facie case was made. “In the instant cause, the prosecutor exercised peremptory challenges against black veniremembers at more than twice the rate one would expect from a random selection. Because she was not made to reveal her actual motives, we have no reason to suppose that this disproportionately large number was merely coincidental ... In short, given the suspiciously high rate at which she struck black veniremembers, some explanation of her actual motives seems clearly to be called for. And, as a practical matter, that is all ‘prima facie case’ really means.” Linscomb, supra, at 167 .

Linscomb appears to stand for the proposition that any statistical disparity in the exercise by the State of its peremptoiy challenges with respect to majority venireper-sons may constitute a prima facie case of purposeful discrimination in violation of Bat-son 5 While the validity of that proposition is open to question, 6 we are not now confronted with that issue. Today we need decide only whether the trial court could have reasonably concluded that appellant had not made a prima facie case of intentional discrimination by the State in violation of Bat-son and Article 35.261 when the only evidence offered by appellant in support of his Batson motion was statistical. We hold that he could have. A reasonable trial judge *420 could conclude that the mere fact that the State peremptorily struck two out of four eligible black veniremembers, in and of itself, did not raise a rational inference of intentional discrimination.

Having reviewed the record in its entirety, I agree with the court of appeals finding there was no abuse of discretion by the trial court with respect to its ruling on appellant’s Batson motion.

I respectfully dissent.

. The record indicates venirepersons 4; 10, 23, 26, 29, 32, and 40 were Black. Number 40 was not reached; numbers 26 and 29 were struck for cause. Out of the four remaining, the State exercised peremptories with respect to numbers 4 and 23. Numbers 10 and 32 actually served on the jury.

. See also Purkett v. Elem, - U.S. -, 115 S.Ct. 1769 , 131 L.Ed.2d 834 (1995); Hernandez v. New York. 500 U.S. 352 . 111 S.Ct. 1859 . 114 L.Ed.2d 395 (1991); U.S. v. David, 844 F.2d 767, 769 (11th Cir.1988).

. I agree with the implication of the majority that, in effect, the trial court conducted a second Batson hearing when it allowed the State to place its racially neutral explanations on the record, permitted appellant an opportunity to rebut the State’s racially neutral explanations and then, for a second time, overruled appellant's Batson motion. Had the trial court found the State's explanations to be unpersuasive (e.g. pre-textual) it would have had to rule in favor of appellant’s Batson motion and a new jury would have had to have been selected.

. The record shows the State used 20% of its peremptory challenges (two) to strike 50% (2 out of 4) of the eligible black veniremembers, who were 13% of the 32 eligible veniremembers. 80% (eight) of the State’s peremptory challenges were used to strike 29% (8 out of 28) of the eligible nonminority venirepersons, who were 87% of the 32 eligible venirepersons.

. Left unanswered in Linscomb is whether any statistical disparity — no matter how slight — in the exercise by the State of its peremptory challenges with respect to minority venirepersons vis-a-vis nonminority venirepersons may constitute a prima facie case of purposeful discrimination, absent any racially neutral explanation offered by the State.

. See United States v. Branch, 989 F.2d 752 (5th Cir.1993); United States v. Lewis, 892 F.2d 735 (8th Cir.1989); United States v. Davis, 40 F.3d 1069 (10th Cir.1994).