Malone v. State

KELLER, Judge,

dissenting.

I join Judge Mansfield’s dissenting opinion except for the following remarks:

I write separately to discuss whether the State waived its objection that appellant failed to meet his prima facie case by offering and litigating the validity of race-neutral reasons after the trial court had ruled in the State’s favor concerning the lack of a prima facie showing. While Judge Mansfield characterizes this procedure as “irregular,” I believe that this procedure was a perfectly sensible method of developing the record to further judicial economy and to avoid the potential expense of a remand if the Court of Appeals, or this Court, later decided that a prima facie case had been established. I believe that the State should always be permitted to develop such a record without forfeiting its right to challenge appellant’s pri-ma facie showing on appeal.

If the trial court rules that a prima facie case has not been established, and on appeal that ruling is determined to be erroneous, the State will be permitted to attempt to articulate race-neutral explanations for its strikes at a hearing on remand. See Emerson v. State, 820 S.W.2d 802, 805 (Tex.Crim. App.1991). The only question here is whether that articulation will occur sooner or later; therefore, it seems irrational that these two situations would be treated differently. Moreover, if making the articulation occur “sooner” (at trial) results in waiving an objection to the defendant’s prima facie ease, the State will have every incentive to wait until “later” (on remand), in the hope that its objection to the prima facie case will succeed. Delaying the race-neutral explanations until remand results not only in greater time and expense but also in the risk that the proceedings will be less accurate due to the fading memories of its participants.

In Hernandez v. New York, 500 U.S. 352 , 111 S.Ct. 1859 , 114 L.Ed.2d 395 (1991), the Supreme Court analogized to Title VII cases under the Civil Rights Act of 1964 and stated that the prima facie case is no longer relevant “where the defendant has done everything that would be required of him” if a prima facie case had been established. Id., 500 U.S. at 359 , 111 S.Ct. at 1866 , 114 L.Ed.2d at 405 . But the Court also pointed out that the “trial court had no occasion to rule” whether or not a prima facie showing had been made in that case. Id. These two statements highlight two possible approaches to addressing the validity of the prima facie case on appeal:

(1) to treat the issue as moot-if the trial court rules upon the ultimate question of intentional discrimination regardless of whether or not the State obtained a ruling concerning the existence of a prima facie case, or

(2) to treat the issue as moot only if the trial court rules upon the ultimate question of intentional discrimination and the State has failed to obtain a ruling (or object to the trial court’s failure to rule) concerning the existence of a prima facie case.

Both approaches are found in the caselaw of this state. In one decision, we held the issue of the establishment of a prima facie case to be moot where the State “fail[ed] at trial to object to the trial court’s failure to rule on the defendant’s prima facie case.” Chambers v. State, 866 S.W.2d 9, 23 (Tex.Crim.App.1993). In that situation, the trial judge’s ruling denying the Batson claim was presumed to cover the ultimate question of intentional discrimination. Because the trial court avoided ruling upon the prima facie case, we declined to address it on appeal. Id.

By contrast, we have also held moot the issue of whether a prima facie case was established, even though the trial court apparently ruled upon the issue, where the State subsequently offered race-neutral ex *421 planations. Staley v. State, 887 S.W.2d 885, 897-898 (Tex.Crim.App.1994). Wheatfall v. State, 882 S.W.2d 829, 835 (Tex.Crim.App.1994). Other eases have used rather expansive language for fact situations that conform to the narrower language found in Chambers. Hill v. State, 827 S.W.2d 860, 862 (Tex.Crim.App.1992) (trial court did not overrule appellant’s objection until after the State offered race-neutral reasons). Dewberry v. State, 776 S.W.2d 589 , 591-592 n. 2 (Tex.Crim.App.1989) (we addressed the prima facie case because trial court’s finding of no prima facie case stopped the fact finding process).

I would point out that Hernandez does not establish substantive constitutional law but merely sets forth a procedural rule for appellate review purposes that the Supreme Court, for policy reasons, has decided to adopt. State procedural rules for implementing remedies for constitutional violations may differ from those formulated in the federal system. See Wainwright v. Sykes, 433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977) (state procedural rules concerning the litigation of federal constitutional rights may constitute adequate state law grounds on both certiorari and federal habeas corpus).

To the extent that Hernandez’s analogy to Title VII civil cases may manifest a policy of disregarding the question of whether a prima facie case has been established whenever the State also offers its race-neutral reasons, I do not find that analogy to be convincing. Unlike federal civil cases, where a Title VII claim stands on its own as an action for money damages, a Batson claim is merely an objection made in the context of jury selection for a trial. Viewing the Batson claim as a trial objection, it makes sense to require the State to obtain a ruling concerning the prima facie case in order to advance the contention on appeal. Without a ruling, the prima facie case is not an issue that can be evaluated clearly on appeal, and the case is more properly addressed on the merits of the ultimate issue of intentional discrimination. On the other hand, an explicit ruling on the prima facie case draws the issue into sharp focus, encouraging the parties to develop the issue fully so that appellate review does not become “bogged down” as a result. See Dewberry, 776 S.W.2d at 591 n. 2.

Moreover, the reversal of an erroneous ruling on the prima facie case is different in effect for a Batson claim than for a Title VII civil claim. A reversal on a Title VII claim affects only the Title VII claim; if other claims do exist, they would be unaffected by a trial court’s ruling on the prima facie case for the Title VII claim. Not surprisingly, the Title VII case cited by Hernandez notes that the mootness issue is raised only when the civil defendant, who opposes the Title VII claim, loses. United States Postal Service Bd. of Govs. v. Aikens, 460 U.S. 711, 714 , 103 S.Ct. 1478, 1481 , 75 L.Ed.2d 403 (1983). Once a trial judge rules in favor of the civil defendant that there was no prima facie showing, there will be no further trial proceedings relating to the Title VII claim.

On the other hand, reversal on a Batson claim affects the entire trial of the case. If the trial court rules that the criminal defendant has not made his prima facie ease, and nothing more is offered with regard to the Batson claim, the trial of the criminal defendant will proceed. If the Batson claim is later found to have merit, the conviction will be reversed in its entirety. In other words, a favorable ruling on a Title VII claim halts the fact-finding process on all proceedings that could be reversed as a result of an erroneous ruling on the claim, but a favorable ruling on a Batson claim does not halt the fact-finding process on all proceedings that could be reversed as a result of the Batson issue because the criminal defendant’s trial continues to proceed. Unlike Title VII litigation, in the Batson context the prosecutor is faced with the possibility that the reversal of a favorable ruling could undo proceedings that had not yet occurred at the time the ruling was obtained. This unique position requires that the prosecutor be given the opportunity to preserve the record without being penalized on appeal for doing so.

I would hold that the State did not sacrifice the favorable ruling on the prima facie case by litigating the merits of the Batson claim in order to preserve the record. To the extent that Staley and Wheatfall have *422 held to the contrary, they should be overruled, and we should disavow the broader language found in other opinions.

I respectfully dissent.

McCORMICK, P.J., and WHITE, J., join.