Williams v. State

TEAGUE, Judge,

dissenting.

Until the dust recently settled, see post, the law of this State, per this Court, and of these United States, per the United States Supreme Court, was that a black defendant could not establish a violation of the Federal Constitution solely on proof of the prosecutor’s use of peremptory challenges to strike black jurors at the defendant’s own trial, for which there was a presumption that he did not do so for discriminatory purposes, but could raise the inference of same where it was shown that the prosecutor had engaged in a pattern of challenging black jurors in a series of cases. See Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965). My research to date reveals that the scorecards, from the defendants’ perspectives, closely resemble the number of points, 0, that the 1888 Yale football team’s opponents scored against the Eli’s, who scored 688 points that year; the number of points, 0, the Washington Redskins managed to score against the Chicago Bears in their 1940 championship game; and the number of points, 0, that Cumberland University scored against Georgia Tech in 1916 which scored 222 points. I will not say, however, that there is no reported or unreported case that reflects that a defendant did not “win” under Swain, supra; I will only say that my research at this time has not yet revealed such a case. Hopefully, if any such cases exist, where the defendants won, under Swain, supra, someone who knows will *540 send me copies of them, so I can share them with my Brethren.

The majority opinion correctly states that before appellant’s third point of error, whether “[t]he trial court erred in allowing the State to strike peremptorily the only remaining black venire person, as it systematically excluded a distinct qualified group and created a conviction prone jury”, can be reviewed, it must first be decided whether appellant can raise this issue for the first time on appeal. The majority opinion holds that he cannot. Given the past history of this subject, and the odds that favored a defendant winning on this claim, I strongly disagree.

The majority opinion correctly points out that appellant did not complain in the trial court of the State’s using one of its peremptory strikes on one of the two black prospective jurors and waited until he filed his appellate brief on April 17, 1987. The record reflects that the State’s challenge for cause as to the other black venireper-son was sustained. Thus, all blacks were eliminated from the jury panel.

It does not appear to be disputed that other than the fact that the black venire-person who was peremptorily struck by the State was black, the same race as appellant, as appellant asserts, “he fits perfectly the profile of a State, conviction prone juror, as is evidenced by his personal background and responses.” (Page 8 of appellant’s brief, which also refers the reader to vol. 25 at page 3011 of the statement of facts in support of his assertion.)

Appellant was tried in 1985. At that time, given what this Court had stated and held, and what the Supreme Court had done in this area of the law, see, for example, Harris v. Texas, 467 U.S. 1261 , 104 S.Ct. 3556 , 82 L.Ed.2d 858 (1984); Williams v. Illinois, 466 U.S. 981 , 104 S.Ct. 2364 , 80 L.Ed.2d 836 (1984); Gilliard v. Mississippi, 464 U.S. 867 , 104 S.Ct. 40 , 78 L.Ed.2d 179 (1983); and McCray v. New York, 461 U.S. 961 , 103 S.Ct. 2438 , 77 L.Ed.2d 1322 (1983), in which certiorari had been denied, had any defense attorney asserted that a defendant in a criminal trial could establish a prima facie case of racial discrimination violative of the Fourteenth Amendment, based on the prosecutor’s use of peremptory challenges to strike members of the defendant’s race from the jury venire, and that, once the defendant had made the prima facie showing, the burden shifted to the prosecution to come forward with a neutral explanation for those challenges, he would have been laughed out of the courtroom, and made fun of in every bar and club in town where criminal defense attorneys gathered in the evening to discuss worldly events that had occurred that day.

Appellant’s authority in support of his point of error is the Supreme Court’s recent decision of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), which, figuratively speaking, came out of the blue, and affirmed what some brave criminal defense attorneys , had been previously, albeit unsuccessfully, asserting in trial and appellate courts. However, Batson, supra, was not handed down until April 30, 1986. Appellant’s trial occurred in 1985.

In Allen v. Hardy, 478 U.S. 255 , 106 S.Ct. 2878 , 98 L.Ed.2d 199 (1986), decided on June 30, 1986, the Supreme Court held that Batson did not apply to defendants whose appeals had become final on April 30, 1986. In Allen, supra, the Supreme Court stated that “[t]he rule in Batson v. Kentucky is an explicit and substantial break with prior precedent”, by “announcing a new standard that significantly changes the burden of proof imposed on both defendant and prosecutor”, and that “prosecutors, trial judges, and appellate courts throughout our state and federal systems justifiably relied on the standard of Swain.” 106 S.Ct. at 2880, 2881. Nevertheless, the Court held that “the reliance interest of law enforcement officials is ‘compelling’ and supports a decision that the new rule should not be retroactive.” 106 S.Ct. 2881 . The Court further stressed that “retroactive application of the Batson rule on collateral review of final convictions would seriously disrupt the administration of justice.” 106 S.Ct. at 2881.

*541 But in Griffith v. Kentucky, 479 U.S. 314 , 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987), which was handed down on January 13, 1987, the Supreme Court once again sent tremors throughout the criminal justice systems of the United States when it held that Batson, supra, was applicable to defendants whose appeals had not become final by April 30, 1986, when Batson, supra, was decided.

The majority opinion agrees that “Since appellant’s appeal is still pending, his case falls within the Griffith ambit.” (Page 529.) It then holds, erroneously in my view, that appellant should not be permitted to raise the Batson issue initially on appeal.

On page 529, the majority appears to place great emphasis on the fact that in cases where this Court has either remanded the cause for a hearing, or has considered appellant’s “Batson” claim, that each defendant complained in the trial court. However, I point out that but for Batson, supra, and Griffith, supra, such would not have meant anything to this Court in cases that were then pending on appeal. This is clearly reflected in Williams v. State, 682 S.W.2d 538 (Tex.Cr.App.1984), which defendant is not the same Williams as here, where this Court did not mention, much less discuss, whether the defendant had complained in the trial court. There, in response to the defendant’s “ground of error”, this Court merely stated the following: “The mere exercise of peremptory challenges is not sufficient to sustain the ground of error; there is no showing of systematic exclusion. (Citations omitted.) The ground of error is overruled.” (543). I must point out, however, that it was not until after the Supreme Court vacated this Court’s judgment in Williams, supra, and remanded the cause to this Court “for further consideration in light of Griffith v. Kentucky, 479 U.S. 314 , 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987) ”, see Williams v. Texas, 479 U.S. 1074 , 107 S.Ct. 1266 , 94 L.Ed.2d 128 (1987), that this Court chose to point out that the defendant Williams had complained in the trial court. See Williams v. State, 731 S.W.2d 563, 564 (Tex.Cr.App.1987). In fact, my careful reading of Griffith v. Kentucky, supra, has yet to reveal where the Supreme Court stated that before a defendant whose case was not final when Batson, supra, was decided, he must have first complained in the trial court. Again, given the law that was extant when appellant’s trial occurred, other than Swain, supra, which was, for any black defendant, a no win proposition, what objection could appellant have uttered to the trial judge? To answer the question is to ask it because in 1985, when appellant’s trial occurred, he did not know, nor could he have reasonably anticipated or have been expected to be prescient, that the Supreme Court would on April 30,1986, state and hold what it did in Batson, supra.

A main flaw in the majority opinion is its reliance upon Engle v. Isaac, 456 U.S. 107 , 102 S.Ct. 1558 , 71 L.Ed.2d 783 (1982), see commencing on page 10 of its slip opinion. It is important to remember and understand that Engle, supra, concerned the issue of procedural default by a federal ha-beas corpus defendant, and did not concern the raising for the first time on appeal a claim such as “Batson” error, as occurred in this cause. Furthermore, Engle, supra, concerned whether the federal district court’s findings were “clearly erroneous.” Neither of those issues is implicated in this cause.

I find it rather interesting that in the Supreme Court’s latest discussion of Federal Rule Civ.Proc. 52(a), and the “cause-and-prejudice” standard, see Amadeo v. Zant, 486 U.S. 214 , 108 S.Ct. 1771 , 100 L.Ed.2d 249 (May 31, 1988), Engle, supra, is not even mentioned, much less discussed therein.

To implicitly, if not expressly, hold, as the majority opinion does, that “Batson” error is not so novel an idea as to excuse the defendant’s failure to make a timely objection, is to truly make like the ostrich and ignore what went on before Batson, supra, was decided. Dear reader: Don’t you think it would be nice if the majority opinion, without using any hindsight whatsoever, would expressly state what proper objection appellant could have made that might have preserved for appellate review *542 the “Batson” error he now asserts occurred during his trial? Perhaps, without using any hindsight, it can be prescient and state a proper objection for us.

If the majority opinion is correct in what it states and holds concerning appellant’s procedural default, then I vote to hold, as a matter of law, that appellant’s trial counsel was ineffective for failure to be prescient in 1985 as, at least by the prescient majority of this Court, he knew or he should have known what the Supreme Court was going to do on April 30, 1986, when it handed down Batson v. Kentucky, supra.

The majority opinion, however, much like Sherman marching through Georgia back in Civil War times, trudges onward. It implicitly, if not expressly, next states and holds that merely because the State used a peremptory strike on the only black who was quálified to serve on the jury, and there were no more blacks on the panel, that a prima facie case may not be established.

For my part, I believe this Court should adopt the more sound rule which the Arkansas Supreme Court recently adopted in its case of Mitchell v. State, 295 Ark. 341 , 750 S.W.2d 936 (Sup.Ct.1988), that “[W]here the use of a peremptory challenge results in exclusion from the jury of all members of the defendant’s minority race, it is not necessary to show exclusion of more than one minority juror of the same race as the defendant to make a prima facie case of discriminatory use of a peremptory challenge, and thus to invoke the ‘sensitive inquiry’ of Batson v. Kentucky, supra.” (My emphasis.) I so believe because of what the Supreme Court taught us in Gray v. Mississippi, 481 U.S. 648 , 107 S.Ct. 2045 , 95 L.Ed.2d 622 (1987), and Davis v. Georgia, 429 U.S. 122 , 97 S.Ct. 399 , 50 L.Ed.2d 339 (1976), which held that the improper excusal of one prospective juror in a death penalty case contaminates and pollutes, irreversibly, the entire proceeding.

For the above and foregoing reasons, I respectfully dissent to this Court’s overruling appellant’s third point of error. This, however, does not mean that I join the remainder of the majority opinion, because I don’t.