Opposition Brief — Texas v. Chambers

May 10, 1990

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

THE STATE OF TEXAS,

Petitioner,

vs.

RONALD CURTIS CHAMBERS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF TEXAS

RESPONDENTS BRIEF IN OPPOSITION

RESPECTFULLY SUBMITTED,

RICHARD ALAN ANDERSON

ONE QUADRANGLE TOWER

2828 ROUTH STREET, SUITE 850

DALLAS, TEXAS 75201

(214) 871-1133

COUNSEL OF RECORD

R. K. WEAVER

404 EXPRESSWAY TOWER - LB 35

6116 N. CENTRAL EXPRESSWAY

DALLAS, TEXAS 75206

(214) 739-6464

COUNSEL FOR RESPONDENT

QUESTIONS PRESENTED

The Respondent does not accept the Petitioner's formulation of the question presented in

the instant case. Respondent believes that this case actualy presents the following

questions:

1. Can the requirement of Batson v. Kentucky that a prima facie case of purposeful racial

discrimination in the exercise of peremptory strikes by the State be rebutted by the

testimony of a prosecutor to the effect that he cannot recall why he exercised the

strike, however, he has in other cases has a racially neutral excuse for striking members

of the accused's race and that it is his habit not to exercise strikes for racial motiva-

tions?

2. Assuming that the first question is answered “yes”, will that testimony suffice to

rebut a prima facie case of purposeful racial discrimination in the exercise of peremp-

tory strikes by the State when the prosecutor neither conducted the vior dire of the

jurors at issue nor in fact exercised the strikes at issue? Will the habits on one

prosecutor suffice to answer why another prosecutor struck a member of the accused's race

or must the prosecutor who actually engaged in the racially discriminatory conduct ex-

plain his own actions?

3. Should the Court abandon the standards accounced in Batson v. Kentucky that the

question of whether the State had rebutted a prima facie case of purposeful racial

discrimination in the exercise of peremptory strikes by the State is a question of fact

for the trial judge to resolve and substitute in its place a class of “excuses” which

will, as a matter of law, always rebut the defendant's prima facie case of racially

discriminatory exercise of peremptory challenges?

TABLE OF CONTENTS

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REASONS FOR REFUSING THE WRIT

1. The Court of Criminal Appeals holding in this case has no particular

importance to the interpretation of Batson and ff left undisturbed, the holding will

have no impact on the public's confidence in the criminal justice system...................... 11

2. The holding below is totally consistent with this Court's opinion in

EER SSE ee OE REE: EEE ee RC IS He ERE MC? ON LO LoS 14

3. The meaning of the phrase “clear and reasonably specific’ explanation, as

that term applies to Batson has been extensively explained by the lower

courts and no further explanation iS rEQUIFED..................eceeceeceeeeeeseeeeeeeeeeeeeeeees sedsasieaaeeal 16

4. The holding of the Texas Court of Criminal Appeals is in no way inconsistent

with this Honorable Court's previous interpretations of any term in any case,

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acs OF CONTENTS - ocanaal

5. The State failed to give any explanation as to why Prosecutor Beach

struck two of the three black jurors in this case, and failedto give any

reason why Prosecutor Macaluso struck the third black juror...

6. There is no need for this Honorable Court to further address the issue of

what constitutes “clear and reasonably specific” testimony as the lower courts

have clearly and unambiguously resolved that issue...

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APPENDIX A (CASES REMANDED FOR BATSON HEARING)

APPENDIX B (CASES AFFIRMED ON BATSON ISSUE)...........

APPENDIX C (TEXAS RULES OF APPELLATE PROCEDURE, RULE 90)...

LIST OF AUTHORITIES

Cases:

Batson v. Kentucky, 476 U.S. 79 (1986), passim

Daniels v. State, 768 S.W.2d 314 , 315 (Tex. App. - Tyler, 1988 PDA refd), 13

Evans v. State, 622 S.W.2d 866, 868 (Tex. Crim. App. 1981), 6

Farris v. State, 712 S.W.2d 512 (Tex. Crim. App. 1986), 6

Fry Roofing Co. v. Wood, 344 U.S. 157, 600 (1962), 2

Grayson v. Harris, 267 U.S. 352, 358 (1952), 2

Griffith v. Kentucky, 479 U.S. 314 (1987), 5

Hill v. State, 775 S.W.2d 754 (Tex. App. - Dallas, 1989 PDA refd), 13

Johnson v. State, 527 S.W.2d 525 (Tex. Crim. App. 1975), 6

Lewis v. State, 775 S.W.2d 13, 15 (Tex. App. - Hou[14th], 1989 PDA refd), 13

Lewis v. State, 779 S.W.2d 449, 454 (Tex. App. - Tyler, 1989), 13

McKinney v. State, 761 S.W.2¢ 549, 551 (Tex. App. - Corpus Christi, 1988 no PDR

Miller v. State, 741 S.W.2d 501 (Tex. App. - Corpus Christi, 1987), 13

Portland Ry. Co. v. Railroad Commission, 229 U.S. 397, 412 (19

Robinson v. State, 756 S.W.2d 62 (Tex. App. - Texarkana, 1988 no PDA), 12

Stewart v. State, 686 S.W.2d 118, 122 (Tex. Crim. App. 1984), 6

Swain v. Alabama, 380 U.S. 202 (1965), 6

Williams v. State. 485 S.W.2d 274 (Tex. Crim. App. 1972), 6

Statutes & Rules:

TEX. CODE CRIM. PROC. ANN. art. 34.01 ef. seq. (1965), 3

LIST OF AUTHORITIES (continued)

Statutes & Rules (continued):

TEX. CODE CRIM. PROC. ANN. art. 35.03 (1965), 3

TEX. CODE CRIM. PROC. ANN. art. 35.04 (1965), 3, 4

TEX. CODE CRIM. PROC. ANN. arts. 35.15 ef. seq. (1965), 4

TEX. CODE CRIM. PROC. ANN. art. 35.16 (1965), 4

TEX. CODE CRIM. PROC. ANN. art. 35.17 (2) (1965), 3

TEX. CODE CRIM. PROC. ANN. art. 36.20 (1965), 6

TEX. R. APP. PRO. 52 (1986), 6

TEX. R. APP. PROC. 90, 12

Miscellaneous:

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No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

THE STATE OF TEXAS,

Petitioner,

vs.

RONALD CURTIS CHAMBERS,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF TEXAS

RESPONDENTS BRIEF IN OPPOSITION

Respondent, Ronald Curtis Chambers, respectfully requests that this Court deny the

petition for writ of certiorari, seeking review of the Texas Court of Criminal Appeals

opinion in this case. That opinion is not yet reported, and dppears in the Petitioner's

Appendix as “Appendix A".

JURISDICTION

The Respondent does not dispute the jurisdictional statement contained in the peti-

tion.

re

The Respondent would, however, note that whether the State has successfully rebut-

ted a prima facie case of racially discriminatory application of peremptory challenges

RESPONDENT'S BRIEF IN OPPOSITION - PAGE 1

= ww

has been cetermined to be a question of fact for the trial court to resolve. Batson v.

Kentucky, infra at 476 U.S. 98 and fn. 21. In this case, the trial judge found as a

matter of fact that “[A]fter considering all of the evidence admitted at the hearing, and

after evaluating the credibility of the witness and giving due weight to the evidence

proffered by the State, the Court was, and still is, of the opinion that the State has

failed to meet the ‘clear and reasonably specific” criteria constitutionally necessary

to rebut the Appellant's prima facie case of racially discriminatory exercise of

peremptory strikes." Trial Court's Findings of Fact, Appendix A-8 of Petitioner's

Petition. This fact finding was reviewed by the Texas Court of Criminal Appeals and

was found to be supported inthe appellate record. Appendix A-2, Petitioner's

Petition.

Traditionally this Honorable Court will not exercise its jurisdiction merely to

review a decision of a state court upon a question of fact. See: Grayson v. Harris, 267

U.S. 352, 358 (1952); Portland Ry. Co. v. Railroad Commission, 229 U.S. 397, 412 (1913);

Fry Roofing Co. v. Wood, 344 U.S. 157, 600 (1962). In order to grant the relief that the

Petitioner requests, this Honorable Court will of necessity have to reexamine the state

court's findings and conclusions of fact which are supported in the record. For this

reason, the Respondent respectfully prays that the Court decline jurisdiction of this

case.

STATEMENT OF THE CASE

The Respondent expressly objects to the Statement of the Case contained in the

Petitioners Petition for Writ of Certiorari. Respondent believes that the Petitioner's

Statement contains material misrepresentations of fact, omits critical facts and includes

argument which is unsupported in law and/or the appellate’ record.

RESPONDENTS BRIEF IN OPPOSITION - PAGE 2

The Respondent, Ronala Curtis Chambers, was charged by indictment with the offense

of capital murder. In a jury trial beginning November 6, 1985, the Respondent entered a

plea of not guilty to the allegations contained in the indictment charging him with the

offense of murder during the course of a robbery. At the conclusion of the

guilt/innocence phase of the trial, the Respondent was found guilty and the trial pro-

ceeded to the punishment phase. At the conclusion of the punishment phase of the trial,

the jury found both of the special issues submitted to tt "yes", and,

pursuant to Texas law, the Respondent was sentenced to death.

The sufficiency of the evidence to support the verdict is not relevant to the issues

presented in the instant Petition. The Respondent will accept the recitation of the trial

evidence found at pages four and five of the Petitioner's Petition for Writ of Certiorari

as being substantially correct.

In order to fully understand the issues raised by Respondent on appeal and chai-

lenged by Petitioner in this Application for Writ of Certiorari, a brief recitation of

the facts concerning the jury selection process is necessary.

A special venire was issued to summon potential jurors for the trial of this cause

pursuant to the provisions of TEX. CODE CRIM. PROC. ANN. art. 34.01 ef. seq. (1965)

After the veniremen were called and the general excuses and exemptions were resolved by

e trial judge pursuant to TEX. CODE CRIM. PROC. ANN. arts. 35.03 & 35.04 (1965),

ndividual voir dire of the remaining jurors was conducted pursuant to TEX. CODE CRIM

PROC. ANN. art. 35.17 (2) (1965). (R.II 1-125, R.Ill- 1-92, R.VI- 11). Prior to the

eginning of the individual voir dire, it was agreed that the race of the individual

urors would be reflected in the appellate record by having the court reporter note on

he record the race of the potential juror. (R.IV- 4-6).

RESPONDENTS BRIEF IN OPPOSITION - PAGE 3

BEST AVAILABLE COPY

During the course of the voir dire, sixteen (16) black potential jurors were called

for consideration. Of these, eleven (11) were excused upon a challenge for cause by the

State pursuant to TEX. CODE CRIM. PROC. ANN. art. 35.16 (1965). (R.IV- 42, 44: R.VI- 62,

98; R.VIl- 92, 99-100; R. XIV- 8; R.XVIll- 181; R.XXI- 93; R_XXII- 16; R.XV- 46; R.XV-

79; R.XVI- 109; R. XVII- 231

Of the remaining five potential biack jurors, one, Mrs. Thelma Sanders Clardy, was

excused Dy the parties by agreement (R.VI- 99-101). A second black potential juror, Ms.

Ethel R. Tennell, was excused upon her claiming of a statutory exemption. (R.XV- 80)

TEX. CODE CRIM. PROC. ANN. art. 35.04 (1965)

The remaining three (3) black potential jurors, Norrette Cereese Johnson, Loretta

B. Rooks and Sandra A. Harrison, were all excused when the State exercised a peremptory

cnalienge on each pursuant to TEX. CODE CRIM. PROC. ANN. arts. 35.15 ef. seg. (1965)

(R.VI- 28; R.IX- 68); R.XIV- 36). In the case of both Ms. Rooks and Ms. Harrison. the

exercise of a peremptory followed the State's unsuccessful efforts to have the potential

juror Struck for cause. (R.IX- 53; R.XIV -24).

In each instance where the State exercised a peremptory challenge to excuse a black

potential juror, the Respondent objected to the use of a peremptory strike to excuse the

juror, asked that the prosecutor be examined on the issue of use of peremptory strikes

to excuse black jurors, and, as a proffer to justify the request to be allowed to

examine the prosecutor on the exercise of the strike, advised the trial court that if

permitted to question the prosecutor, the Respondent believed that he could establish

that the veniremen were stricken due to their race. (R.VI- 38-39; R.IX- 68-68: R.XIV-

36-37). The trail judge refused to permit the prosecutor to be examined on this issue.

The Appellant's proffers triat he expected the examinations to establish that the strikes

RESPONDENTS BRIEF IN OPPOSITION - PAGE 4

were racially motivated were not challenged by the State.

Between the State's challenges for cause and its exercise of peremptory challenges,

the Respondent, a black man, was tried by an all white jury for the killing of a white

man.

in the subsequent direct appeal, the Respondent challenged the prosecutors exer-

cise of peremptory challenges against the three black potential jurors on the basis of

this Honorable Court's decision in Batson v. Kentucky, 476 U.S. 79 (1986). *

On direct appeal, it was Respondent's stated position that no remand for a Batson

hearing was necessary as, under Texas law, since the State failed to contradict the

Respondent's proffer that the State's use of its peremptory strikes was racially moti-

vated, the Respondent was entitled to relief as a matter of law. This proffer was never

Jenied or modified or contradicted in any manner, and, thus, should be binding on the

April 30, 1986, some four months after the trial of this cause. This Court nas, however

subs2quently held that the decision in Batson shall be applied retroactively to those

cases which were pending on direct appeal on the date that the decision was rencerec

See: Griffith v. Kentucky, 479 U.S. 314 (1987). The instant case falls wrtnin these

guidelines making the decision of the Court in Batson fully applicable in this case

Assuming, arguendo, that Batson were not applicable to this case, the Responcent »

nevertheless be entitled to a reversal of his conviction as nis uncontracictec pro*er

established that the exclusions at issue were racially mMotivatec Oninging NIM wrr

dictates of Swain v. Alabama, 380 U.S. 202 (1965

RESPONDENTS BRIEF IN OPPOSITION - PAGE 5

State and under Texas law, should have been binding on the reviewing court.*

The Respondent argued that in this case, the State had a full opportunity to

explain why they struck all possible black jurors. When the Respondent sought to elicit

testimony to establish that the strikes were racially motivated, the State refused to

provide that testimony. When the Respondent advised the Court that he expected the

evidence would show that the strikes were racially motivated, the State failed to deny

or contradict this allegation. Even under the long standing holding of Swain the Re-

spondent had established an uncontradicted prima facie case that the State had excluded

the aforesaid black veniremen for racial reasons, thus the State may not plead that it

should be permitted a second opportunity to explain its actions based upon the Supreme

Court's holding in Batson. The State chose to stay silent at trial and should not be

permitted to avoid the results of that choice by being permitted to atternpt to justify

2. See: Stewart v. State, 686 S.W.2d 118, 122 (Tex. Crim. App. 1984) (an offer by counsel

of a statement concerning what the excluded evidence would have been had the testimony

been acmitted preserves exclusion for appellate review); Johnson v. State, 527 S.W.2d 525

(Tex. Crim. App. 1975) (defendant must proffer evidence when it becomes relevant to

preserve for appellate review). See: TEX. CODE CRIM. PROC. ANN. art. 36.20 (1965) (since

repealed); TEX. R. APP. PRO. 52 (1986); Evans v. State, 622 S.W.2d 866, 868 (Tex. Crim.

App. 1981) (appellate court bound by the record on appeal as presented to it); Williams

v. State, 485 S.W.2d 274 (Tex. Crim. App. 1972) (matters not supported by appellate

record may not provide a basis for making any appellate decision); Farris v. State, 712

S.W.2d 512 (Tex. Crim. App. 1986) (party may not supplement an appellate record by

adding new testimony not educed at original trial).

RESPONDENTS BRIEF IN OPPOSITION - PAGE 6

ar

he

5 actions at this late date. The Texas Court of Criminal Appeals did not address this

rgument, rather it remanded the case to the trial court for a retrospective Batson

earing.

On March 3, 1988, the retired state district judge who presided over the jury

selection process in Respondent's trial conducted the retrospective Batson hearing

ordered by the Texas Court of Crimina! Appeals. The judge took judicial notice of the

events which transpired during the original voir dire, including the fact that the State

exercised its peremptory strikes to exclude all members of the accused's race from the

iury who were not successfully challenged for cause by the State; it exercised a dispro-

Dortionate percentage of its strikes to exclude members of the accused's race from the

lury; its voir dire questions of members of the accused's race were in no way dis-

tinctive, nor did they elicit any information which would, on its face, justify the use

of a peremptory challenge on the jurors; much of the questioning of black jurors was

perfunctory and not designed to elicit any information which wouid justify using a

peremptory strike; the State sought to challenge blacks for cause on frivolous grouncs,

and when those were rejected by the court, the State exercised a peremptory challenge to

exclude the biack jurors; as a result of the prosecutor's exercise of the State's

peremptory challenges, members of the Respondent's race were substantially underrepre-

sented on his jury; the State exercised peremptory challenges on blacks who, Dy their

answers during voir dire appeared to be strong law enforcement advocates and pro-State

Based upon these facts, the trial judge determined that the Respondent had estabiishec a

prima facie case of purposeful racial discrimination by the State in its exercise of

peremptory challenges. The State does not now challenge this finding.

In an effort to rebut the Respondent's prima facie case of discriminatory exercise

of peremptory challenges, the State calied one of the two prosecutors who conducted par

,ESPONDENTS BRIEF IN OPPOSITION - PAGE 7

of the voir dire in this cause, Paul Macaluso. Mr. Macaluso expressly stated that due to

the passage of time since the trial of this cause, he could not remember these jurors,

and more specifically, he could not recall why he exercised peremptory strikes to

eliminate these black jurors from the Respondent's jury. (Tr.-45, 51, 59, 71, 80-81, 87-

88, 94-95, 96, 125-128).

Mr. Macaluso did indicate that he had never stricken a potential juror solely on the

basis of race, (Tr.- 51, 67, 78); however, this Honorable Court specifically rejected

"such an “excuse” as an adequate basis for finding that the accused's prima facie case of

discrimination had been rebutted, holding that the prosecutor could not rebut a prima

facie case “merely by denying that he had a discriminatory motive or affirming his good

faith in individual selections." Batson, supra at 1723. Further, this prosecutor, Mr.

Macaluso, did not exercise all of the strikes at issue, although he did profess to have

“some input" into the decision to strike the juror. See, e.g.: (Tr.- 90-93) and where Mr.

Beach, and not Mr. Macaluso, exercised the State's peremptory strike on jurors Rooks a

Jonhnson. (R.VI- 28; R.1X- 68).

In attempting to justify their striking of the black jurors, the prosecutor testi-

fied that though he couldn't remember why he struck the jurors at issue, he had, prior

~ to the h2aring on March 3, 1988, reviewed the transcription of the voir dire proceedings

regarding the three jurors stricken and their respective juror questionnaires. (Tr.- 33-

34). He then testified, over objection, that in general he found certain answers in the

voir dire and the juror questionnaires which were of such a nature as would, in most if

not all cases, result in his striking similarly situated jurors in other cases.

It must be remembered that Mr. Macaluso did not testify from a refreshed recollec-

tion after reviewing the materials from the original trial. Though he reviewed the

RESPONDENTS BRIEF IN OPPOSITION - PAGE 8

iaterials, they did not refresh his independent recollection, (Tr.-45, 51, 59, 71, 80-

1, 87-88, 94-95, 96, 125-128); he was not speaking from memory thus revived. He had no

ersonal knowledge concerning anything which happened at the trial at issue and based

lis testimony entirely on habit in other cases.

Even though inadmissible as a matter of Texas Evidentiary law, the prosecutor was

ermitted to testify concerning general matters of practice and procedure employed by

im in exercising peremptory challenges in other cases. The proposed inference presumab-

y is that if he struck jurors generally in other cases on the grounds related, he

struck the instant jurors for similar non-racial reasons.

In addition, it was clearly established that Mr. Macaluso did not make two of the

strikes at issue. Mr. Beach did. Mr. Macaluso had no knowledge as to why Mr. Beach

sxercised strikes, testifying only that he recalled that they discussed the strikes and

hat Mr. Macaluso had “some input" into the decision. He did not make the strikes at

ssue; he did not know why Mr. Beach made the strikes; he did discuss the decision anc

yenerally had some input into the decision, but could not testify as to Mr. Beach's

hought processes or reasons for making two of the three strikes at issue. (Tr.- 7-8).

There is, quite simply, no evidence as to why Mr. Beach exercised strikes in two of the

hree cases at issue.

After briefing by the parties and submission of proposed findings of fact and

sonclusions of law by both sides, the trial judge reconvened the proceedings on May 6,

|988, and announced rulings in favor of Respondent. The complete record, including

indings of fact and conclusions of law was forwarded to the Texas Court of Criminal

\ppeals.

ESPONDENTS BRIEF IN OPPOSITION - PAGE 9

In a post submission brief, the State complained that based upon portions of the

findings of fact and record which it found ambiguous, the Court could not be sure that

the trial judge had given full consideration to the testimony of Mr. Macaluso. Essen-

tially, the State argued that the trial judge had rejected the testimony out of hand

and had not properly considered it.

On June 28, 1989, the Texas Court of Criminal Appeals delivered a per curiam

opinion declaring that it could not be sure from the record that the trial judge had

property “considered” the proffered testimony, but expressly refusing to judge the

weight or credibility of the witness’ testimony, and remanded it to the trial judge to

supplement his findings of fact to clarify whether he had considered the testimony in

reaching the conclusions contained in the findings of fact filed with the Court.

On July 18, 1988, the trial judge filed new findings of fact and conclusions of law

wherein he clarified his earlier findings by expressly stating that he had considered

the testimony of the only State's witness. The findings of fact otherwise remained the

same.

These findings were forwarded to the Texas Court of Criminal Appeals, and on

October 25, 1989, that court adopted those findings in its opinion, finding that they

_ were adequately supported in the appellate record. In that opinion, the Texas Court of

Criminal Appeals reversed the Respondent's conviction and remanded the case to the trial

court for a new trial. It is from this opinion of the Texas Court of Criminal Appeals

that the State now seeks relief.

RESPONDENTS BRIEF IN OPPOSITION - PAGE 10

REASONS WHY THE PETITION SHOULD BE DENIED

1. The Court of Criminal Appeals holding in this case has no particular importance to

the interpretation of Batson and if left undisturbed, the holding wil! have no impact on

the public's confidence in the criminal justice system.

In its first reason for granting this writ, the State suggests that the instant

decision is a critical holding that will seriously erode the public's confidence in the

criminal justice system. Any serious, impartial review of this case, or the cases handed

down by the Texas appellate courts since this Honorable Court's decision is Batson will

quickly dispel any such conclusion.

First, this case does not purport to provide any guidance or explanation of the

Batson case. All this decision holds is that the unique findings of fact are

adequately supported in the appellate record. The conclusions of law are each

quotations from existing cases and break no new ground whatsoever. This case will have

next to no precedential value and is clearly limited to the unique facts of this case.

Second, the State suggests that the Texas Courts have somehow fallen into 2

“morass” and are incapable of dealing with the Batson decision absent some additional

guidance from this Honorable Court. Nothing could be further than the truth.

Since 1986, when the Batson case was handed down, the Texas courts have had

numerous opportunities to address the application of that holding.

First, the various courts exercised their jurisdiction to abate numerous appeals

and remand the cases to the trial court for retrospective Batson hearings such as were

had in this case. See Appendix A.

After such hearings were had, a review of WESTLAW shows seventy-four (74) unpub-

lished decisions and eight-nine (89) published decisions addressing the application of

RESPONDENTS BRIEF IN OPPOSITION - PAGE 11

Batson. Under Texas law, the appellate courts may only declare a case to be unpublished

if the issues are clearly settled. TEX. R. APP. PROC. 90. The standards for publication

dictate that an opinion by the court of appeals shall be published only if, in the

judgment of the majority of the justices participating in the decision, it is one that

"(1) establishes a new rule of law, alters or modifies and existing rule, or applies an

existing rule to a novel fact situation likely to recur in future cases; (2) involves a

legal issue of continuing public interest; (3) criticizes existing law; or (4) resolves

an apparent conflict of authority."

Clearly, the shear volume of unpublished cases in Texas dealing with Batson issues

establishes that the Texas courts do not believe that the issues presented are particu-

larly difficult or deal with matters of continuing public interest.

Of the published opinions, seventy-nine (79) resulted in the appellate court de-

termining that either the appellant failed to establish a prima facie case, or that

prosecutor gave racially neutral explanations sufficiently related to the facts of

the case to rebut the prima facie case. See Appendix B.

Not counting this case, there have been a total of ten (10) published cases where

the prosecutor's explanation was found inadequate. In three cases, the prosecutor admit-

ted that he had exercised a peremptory challenge on the accused because of the race of

the juror: Robinson v. State, 756 S.W.2d 62 (Tex. App. - Texarkana, 1988) no PDR;

McKinney v. State, 761 S.W.2d 549, 551 (Tex. App. - Corpus Christi, 1988) no PDR; Speake

v. State, 740 S.W.2d 486 (Tex. App. - Hou[1st], 1997) no PDR.

In two cases, the appellate court simply noted that the trial court had filed

findings of fact noting that the state's exercise of peremptory strikes on minorities

was racially motivated, and that their review of the record showed that the findings

RESPONDENTS BRIEF IN OPPOSITION - PAGE 12

BEST AVAILABLE COPY ' /

were supported in the record of the Batson hearing: Miller v. State, 741 S.W.2d 501

(Tex. App. - Corpus Christi, 1987); Witz v. State, 749 S.W.2d 519, 520 (Tex. App. -

Hou[14th], 1988) no PDR.

In another case, the State refused to give any reason for the exercise of their

Strikes after the appellant established a prima facie case: Seubert v. State, 749 S.W.2d

585 (Tex. App - Hou[1st] 1988.

The final group of cases were reversed when the prosecutor gave explanations

that were not related to the facts of the case, there was a total lack of meaningful

questioning by the prosecutor, there was disparate treatment of jurors (persons with

the same or similar characteristics were not struck), there was disparate examination

of the members of the venire (questions of a challenged juror so as to evoke a

certain response without asking the same questions of other members of the venire),

and explanations based upon assumed group traits not shown to apply to the challenged

juror specifically: Lewis v. State, 775 S.W.2d 13, 15 (Tex. App. - Hou[14th], 1989)

PDR refd; Daniels v. State, 768 S.W.2d 314, 315 (Tex. App. - Tyler, 1988) PDR

refd; Lewis v. State, 779 S.W.2d 449, 454 (Tex. App. - Tyler, 1989); Hi// v. State,

775 S.W.2d 754 (Tex. App. - Dallas, 1989) PDR refd.

Clearly, the only way the State can loose a Batson argument is if it confesses

error, refuses to answer at all, or makes an answer that is either totally refuted by

the record or so vague and unconnected to the case as to constitute no answer at all.

The business of criminal justice in Texas has in no way been eroded by this

case, nor by Batson itself. The Texas courts are more than up to the challenge of

resolving these issues and have, in fact, done so with remarkable dispatch. No one is

RESPONDENTS BRIEF IN OPPOSITION - PAGE 13

“bewildered” by this holding or any other holding on Batson handed down by the Texas

appellate courts.

2. The holding below is totally consistent with this Court's opinion in Batson.

In its second reason for review, the State suggests that the instant opinion is in

conflict with this Honorable Court's holding in Batson. Again, a review of the proce-

edings below and the limited opinion in this case clearly establishes that the instant

opinion is at total harmony with Batson.

In this case, the Respondent established a prima facie case of racial discrimina-

tion in the application of the State's peremptory challenges. In an effort to rebut

that showing, the state called one of two prosecutors who represented the State at the

voir dire proceedings in this case. He testified that he couldnt remember why he

struck the one juror he struck. He further admitted that he didn't strike two of the

black jurors at issue, another prosecutor did.

If Batson has any meaning at all, it must mean that "I don't remember" will not

constitute a reasonably specific racially neutral explanation related to the facts of

the case sufficient to justify a finding that a prima facie case has been rebutted.

Surely some explanation is clearly required. The instant explanation is totally specu-

lative, inferential and in no way related to this particular case.

Further, the one witness the State chose to cail did not in fact strike two of the

three jurors at issue! The witness that they did call had no independent knowledge as to

why those jurors were stricken, and could only state that he had some "input" into the

decision. Perhaps he didn‘ act for racially discriminatory reasons, but the record is

silent as to the motivation of the prosecutor who in fact conducted the instant voir

dire and who in fact exercised the peremptory strikes at issue.

RESPONDENTS BRIEF IN OPPOSITION - PAGE 14

This Honorable Court specifically stated that it intended the prosecutor to come

rward “with a neutral explanation of his action” to rebut a prima facie case.

mphasis added) Batson, supra at 100. Clearly, to rebut the Respondent's prima

cie case with regards to jurors Rooks and Johnson, the prosecutor who

Nducted the voir dire, who made the decision to exercise the State's strike

1d who actually made that strike, Mr. Beach, if available, is constitutionally required

come forward and explain "his action". The record in this case affirmatively

tablishes that Mr. Beach was available to testify.

It seem curious to suggest that in light of a requirement to explain why strikes

ere used on members of the Respondent's race, the State would tenaciously hold to the

osition that “I don't remember" and "I didn't do it” would suffice. Rather than

ander the prosecutor's explanations futile, all this case does is state that where no

2asonable explanation is proffered, or where that explanation consists of "I don't

2mempber", the State has failed to meet its burden. Such a holding is in total accord

ith this Honorable Court's decision in Batson.

Further, even if one prosecutor could speak for the actions of another, then that

osecutor should have to explain why the first prosecutor struck the juror at issue.

vere was no such explanation here. All Mr. Macaluso stated was why he acted the way

2 did, not why Mr. Beach acted as Mr. Beach was shown to have acted. Mr. Macaluso

stified concerning his prior actions in other cases, attempting to raise the

ference that if he had acted in a racially neutral manner in striking blacks in

her cases, he must have also acted in a racially neutral manner in this case, even

ough he admitted that he could not in fact testify that such was the case.

ESPONDENT'S BRIEF IN OPPOSITION - PAGE 15

Finally, the excuses i a by Mr. Macaluso amuiaatin actions in other

cases were not related to the facts of the case, there was a total lack of meaningful

questioning by the prosecutor, there was disparate treatment of jurors (persons with the

same or similar characteristics were not struck), there was disparate examination of the

members of the venire (questions of a challenged juror so as to evoke a Certain response

without asking the same questions of other members of the venire), and explanations

based upon assumed group traits not shown to apply to the challenged juror specifically.

Even if the testimony was accepted at face value, it is of the nature that would fail to

rebut the Respondent's prima facie case of racially discriminatory application of the

State's peremptory challenges.

3. The meaning of the phrase “clear and reasonably specific" explanation, as that

term applies to Batson has been extensively explained by the lower courts and no

further explanation is required.

The State's suggestion that the term “clear and reasonably specific” explanations

for the exercise of peremptory challenges has not been adequately addressed by the lower

courts is unsupportable. As noted above, the Texas courts have had nearly 90 opportuni-

ties in published opinions to address this issue. Essentially, any explanation will

suffice, uniess that explanation constitutes an admission of racial motivation in making

a strike or the explanation is totally refuted by the record, such as when the reason

given is that the juror is too young, but similarly situated white jurors were not

stricken.

The Texas courts have been extremely tolerz.it of the State's use of

peremptory challenges to exclude members of the accused's race. Day in and day

out, black men continue to be tried by all white juries. As long as the State

makes even the slightest effort to justify its use of peremptory challenges on

RESPONDENTS BRIEF IN OPPOSITION - PAGE 16

: 4 . ,

non-racial grounds, the courts will accept that reason unless the excuse is

Clearly and demonstrably false.

The problem in this case is that the State simply couldn't, or wouldn't, explain

why it struck three black jurors. The State wishes this Court to deciare that "I can't

remember" is a specific, racially neutral excuse related to the facts of the case. Such

a conclusion is totally out of harmony with the clear holding in Batson, and would, if

adopted, totally evicerate Batson.

4. The holding of the Texas Court of Criminal Appeals is in no way inconsistent with

this Honorable Court's previous interpretations of any term in any case, including Title

Vil cases.

The argument advanced by the State in this reason for review assumes that the State

in fact gave an explanation for the exercise of peremptory challenges on the remaining

members of the Respondent's race. As previously noted, the State totally failed to make

any explanaticn as to why two jurors were stricken, and the only explanation as to the

third juror was that in other cases the prosecutor had not stricken jurors for racial

reasons.

In no instance has Respondent been able to find a Title VIl case where "I don't

remember" constituted a “clear and reasonably specific’ explanation to justify racially

discriminatory actions. The State cites to no such case. The State did not offer any

legitimate reason for the strikes at issue, and the holding of the Texas Court of

Criminal Appeals is in no way inconsistent with any holding of this Honorable Court.

5. The State failed to give any explanation as to why Prosecutor Beach struck two

of the three black jurors in this case, and failed to give any reason why

Prosecutor Macaluso struck the third black juror.

In its fifth reason for review, the State seeks to suggest that it gave an adequate

RESPONDENTS BRIEF IN OPPOSITION - PAGE 17

justification for striking the three black jurors and, therefore, the instant case

should be reversed. This conclusion ignores the clear import of the trial testimony and

the clear intention of this Honorable court to rely on the trial judge's determination

of whether the excuses proffered meet the standards set out in Batson.

While the State gives lip service to the proposition that the trial judge is the

sole arbiter of the testimony given, it then ignores the clear and unmistakable finding

of fact by the trial judge that the State did not explain why Prosecutor Beach struck

two jurors. Further, the State ignores the clear finding of fact that the excuses given

by Prosecutor Macaluso were not sufficiently specific, or related to this case to rebut

the Respondent's prima facie case of racially discriminatory use of peremptory chal-

lenges.

Further, the State totally ignores the fact that Prosecutor Macaluso could not

remember this case in any particulars, and could not state why he struck the one juror

he struck. All he could do was Say that in other cases he had exercised strikes for

specified reasons, and that he assumed that consistent with his habit, he had exercised

the strike on Juror Harrison for similar reasons. He could not, or would not,

affirmatively state under oath that in fact these reasons were why he struck Juror

Harrison.

Further, although he professed to have some “input” into the decision of Prosecutor

Beach to strike the other two jurors, he admitted that he didnt make the strike,

couldn't say why Prosecutor Beach struck the jurors, and couldn't begin to testify as to

the thought processes of Prosecutor Beach.

Prosecutor Beach was available at the hearing to testify, but the State chose not to

RESPONDENTS BRIEF IN OPPOSITION - PAGE 18

ve ww

Call him, raising the reasonable inference that his testimony would not support the

State's efforts to rebut the Respondent's prima facie case.

At no time did Prosecutor Macaluso testify to any fact, only to habit. He expressly

Stated he had no independent memory of the events of the trial. His testimony was

exclusively about what he did in other cases, not this one. When stripped of the State's

hyperbole, the testimony was simply “I don't remember" coupled with, “well, | didn't do

it any case that | can remember, so | must not have done it in this case either". To

suggest that such vague, speculative, self-serving testimony will, as a matter of law,

meet the State's burden of proof is to argue that no answer short of a judicial confes-

sion by the prosecutor will result in an accused having an opportunity to be tried by

members of his own race.

In Batson, this Honorable Court heid that whether the State had rebutted a prima

facie case of racially discriminatory application of its peremptory challenges was a

matter of fact for the trial judge to resolve. Batson, supra at 476 U.S. 98 and fn. 21.

In this case, the trial judge found as a matter of fact that “[A]fter considering all of

the evidence admitted at the hearing, and after evaluating the credibility of the witness

and giving due weight to the evidence proffered by the State, the Court was, and still

is, of the opinion that the State has failed to meet the ‘clear and reasonably specific”

criteria constitutionally necessary to rebut the Appellant's prima facie case of

racially discriminatory exercise of peremptory strikes." Trial Court's Findings of

Fact, Appendix A-8 of Petitioner's Petition. This fact finding was reviewed by the

Texas Court of Criminal Appeals and was found to be supported iri the appellate record.

Appendix A-2, Petitioner's Petition.

What the State is in fact asking this Honorable Court to do is to abandon the

RESPONDENTS BRIEF IN OPPOSITION - PAGE 19

formulation that whether the State has managed to rebut the Respondent's prima facie case

is a question of fact for the trial judge to resolve, and to substitute in its stead a

Class of answers that will, as a matter of law, always suffice to rebut the prima facie

case. In essence, the State wants to take the trial judge out of the resolution of these

types of cases and to permit it to list one of a category of answers that will in every

case rebut the accused's showing of racially discriminatory application of peremptory

strikes. As long as this is a matter of fact for the trial judge to resolve, there is at

least an outside chance that the State will lose a Batson hearing. The State proposes a

new standard that will ensure that it cannot lose.

6. There is no need for this Honorable Court to further address the issue of what

constitutes "clear and reasonably specific” testimony as the lower courts have cleariy

and unambiguously resolved that issue.

The State argues that the trial judge refused to consider the testimony of Prosecu-

tor Macaluso. This simply isn't true. The trial judge clearly stated in his second

findings of fact and conclusions of law that he hac considered this testimony. What he

also considered was the fact that Prosecutor Macaluso did not in fact strike two of the

three jurors at issue; that Prosecutor Macaluso had “some input" into the decision to

strike these jurors but, in the final analysis, simply didn’t conduct the voir dire at

issue, didnt make the decision at issue nor did he in fact exercise the peremptory

strike at issue. What the trial judge also considered was that the prosecutor who made

the decision was present and available to testify as to his motivations and reasoning,

but the State chose not to call him. The obvious inference from this failure is that the

testimony would not have aided the State's case. Finally, the trial judge clearly consi-

dered the simple fact that one prosecutor cannot possible testify as to the thought

processes or motivations of another prosecutor.

RESPONDENTS BRIEF IN OPPOSITION - PAGE 20

& ®

When stripped of the smoke and mirrors, the State is actually asking this Honorable

Court to sanction the State's use of one prosecutor, who has no memory of the trial, to

testify about his general practices, and from those practices, to infer that since he

had not struck jurors for racial purposes in other cases, he also did not strike jurors

in this case for racial purposes. Further, they are asking this Court to sanction

calling one prosecutor to explain the acts and motives of another prosecutor, even

though he readily admitted that he didn't know wnat the motivations were and

couldnt even testify as to his own mental processes, let alone the mental

processes of another prosecutor. The State simply couldn't rebut the Respondent's

prima facie case of racially discriminatory exercise of peremptory challenges.

There was no evidence available to them, probably due to the simple passage of time. The

trial judge, viewing this testimony, rightly found that the evidence was so speculative

and inferential that it simply couldn't be sufficient to rebut a prima facie case. Under

the facts of this case, any other conclusion would have been absurd.

RESPONDENTS ERIEF IN OPPOSITION - PAGE 21

$ s

CONCLUSION

In Texas, black men are still tried by all white juries for crimes allegedly

committed against white men. Batson didn't change that. In this one case, the trial

judge, when viewing the testimony, concluded that the Respondent had made a prima fac

case of racially discriminatory application of peremptory strikes to ensure that Ronald

Curtis Chambers would be tried by an all white jury. The State does not now contest that

conclusion. With that decision, the burden shifted to the State of Texas to establish by

clear and reasonably specific testimony exactly why the State struck members of the

Respondent's race. The trial judge, hearing the testimony, had the temerity to conclude

that “I don't remember" simply would not suffice. The judge also noted that the prosecu-

tor who did testify, didn't conduct the voir dire, nor did he actually exercise the

peremptory strikes used to exclude two black jurors from the jury. There was, thus, NO

evidence to explain the prosecutor's actions. The prosecutor was available to testify,

but the State chose not to put him on the stand. Under the facts of this case, the trial

judge simply refused to sanction such vague, speculative and inferential suppositions as

the kind of clear and reasonably specific answers necessary to rebut a prima facie case

of racial discrimination. The Texas Court of Criminal Appeals carefully reviewed the

trial judge's findings, and recognizing this Honorable Court's decision that the trial

judge's opinions should carry great weight, determined that his conclusions were totally

supported in the record and that his conclusions of law were accurate statements of the

controlling authority. Ronald Curtis Chambers thus became one of a very few inmates who

would receive relief on the basis of this Honorable Court's decision in Batson.

If the "excuses" proffered herein are legally adequate, in light of this record,

then the Equal Protection Clause of the United States Constitution has in truth become

a "vain and illusory requirement’, the precise result which this Honorable Court sought

RESPONDENTS BRIEF IN OPPOSITION - PAGE 22

to avoid with its holding in Batson. Any other interpretation wouid clearly eviscerate

Batson and make tt like the tale told by an idiot in Shakespeare's Macbeth: “full of

sound and fury, signifying nothing.” Macbeth, Wm. Shakespeare, Act V, Scene V, line 17.

This Honorable Court should deny the State's petition for a writ of certiorari.

Respectfully submitted,

RICHARD ALAN ANDERSON

ONE QUADRANGLE TOWER

2828 ROUTH STREET, SUITE 850

DALLAS, TEXAS 75201

(214) 871-1133

COUNSEL OF RECORD

R. K. WEAVER

404 EXPRESSWAY TOWER - LB35

6116 N. CENTRAL EXPRESSWAY

DALLAS, TEXAS 75206

(214) 739-6464

COUNSEL FOR RESPONDENT

RESPONDENTS BRIEF IN OPPOSITION - PAGE 23

APPENDIX A

CASES REMANDED FOR BATSON HERAINGS

3a/za V. State, ~

725 S.W.2d 482 (Tex. App. - Corpus Christi, 1982)

tardy v. State,

726 S.W.2d 158 (Tex. Crim. App. 1987)

tenry v. State,

729 S.W.2d 732 (Tex. Crim. App. 1987)

leveland v. State,

728 S.W.2d 490 (Tex. App. - Ft. Worth, 1987)

(Opinion on Motion for Rehearing),

remanded 730 S.W.2d 886 (Tex. App. - Ft. Worth, 1987)

Miller v. State,

682 S.W.2d 538 (Tex. Crim. App. 1984)

remanded 731 S.W.2d 563 (Tex. Crim. App. 1987)

Miller v. State,

733 S.W.2d 287 (Tex. App. - Corpus Christi, 1987)

JeBlanc v. State,

732 S.W.2d 640 (Tex. Crim. App. 1987)

Villiams v. State,

736 S.W.2d 906 (Tex. App. - Corpus Christi, 1987)

t0binson v. State,

738 S.W.2d 673 (Tex. Crim. App. 1987)

Shambers v. State,

742 S.W.2d 695 (Tex. Crim. App. 1988)

Niitz v. State,

746 S.W.2d 303 (Tex. App. - Hou[14th], 1988)

ee v. State,

747 S.W.2d 57 (Tex. App. - Hou[1st], 1988)

VillerE/ v. State,

748 S.W.2d 459 (Tex. Crim. App. 1988)

Keeton v. State,

724 S.W.2d 58 (Tex. Crim. App. 1987)

APPENDIX A - 1

a

Williams v. State,

767 S.W.2d 872 (Tex. App. - Dallas, 1989)

Newsome v. State,

771 S.W.2d 620 (Tex. App. - Dallas, 1989)

Hawkins v. State,

783 S.W.2d 288 (Tex. App. - Dallas, 1989)

Dewberry v. State,

776 S.W.2d 589 (Tex. Crim. App. 1989)

APPENDIX A- 2

ee

APPENDIX B

CASES AFFIRMED ON BATSON ISSUES

saraner v. State,

738 S.W.2d 541 (Tex. App. - Hou[1st], 1989)

lones v. State,

781 S.W.2d 415 (Tex. App. - Hou[1st], 1989)

"rice v. State,

782 S.W.2d 266 (Tex. App. - Beaumont, 1989)

/argas v. State,

781 S.W.2d 356 (Tex. App. - Hou[1st], 1989)

Tims v. State,

779 S.W.2d 517 (Tex. App. - Beaumont, 1989)

4tinojosa v. State,

780 S.W.2d 299 (Tex. App. - Beaumont, 1989)

(reversed on other grounds, affirmed re: Batson issues)

Grimes v. State,

779 S.W.2d 124 (Tex. App. - Hou[1st], 1989)

Arnold v. State,

778 S.W.2d 172 (Tex. App. - Austin, 1989)

Campbell v. State,

775 S.W.2d 419 (Tex. App. Hou[14th], 1989)

Munson v. State,

774 S.W.2d 778 (Tex. App. - El Paso, 1989)

Branch v. State,

774 S.W.2d 781 (Tex. App. - El Paso, 1989)

Dennis v. State,

772 S.W.2d 525 (Tex. App. Beaumone, 1989)

Yolman v. State,

772 S.W.2d 530 (Tex. App. - Beaumont, 1989)

Barnett v. State,

771 S.W.2d 654 (Tex. App. - Corpus Christi, 1989)

Ortiz v. State,

773 S.W.2d 941 (Tex. App. - San Antonio, 1989)

APPENDIX B - 1

Perry v. State,

770 S.W.2d 950 (Tex. App. - Ft. Worth, 1989)

Allen v. State,

769 S.W.2d 563 (Tex. Crim. App. 1989)

Brown v. State,

769 S.W.2d 565 (Tex. Crim. App.) .

(Reversed on other grounds; affrimed as to Batson issue)

Jackson v. State

772 S.W.2d 459 (Tex. App. - Beaumont, 1989)

Green v. State,

771 S.W.2d 576 (Tex. App. - Hou[14th], 1989)

Mathews v. State,

768 S.W.2d 731 (Tex. Crim. App. 1989)

Wilson v. State,

769 S.W.2d 682 (Tex. App. - Beaumont, 1989)

Crawford v. State,

770 S.W.2d 51 (Tex. App. - Texarkana, 1989)

Sims v. State,

768 S.W.2d 863 (Tex. App. - Texarkana, 1989)

Sosa v. State,

769 S.W.2d 909 (Tex. Crim. App. 1989)

McGee v. State,

774 S.W.2d 229 (Tex. Crim. App. 1989)

York v. State

764 S.W.2d 328 (Tex. App. - Hou[1st], 1988)

Catley v. State

763 S.W.2d 465 (Tex. App. - Hou[14th], 1988)

Castillo v. State,

761 S.W.2d 495 (Tex. App. - Waco, 1988)

Cruz v. State,

762 S.W.2d 624 (Tex. App. - Hou[14th], 1988)

Anderson v. State,

758 S.W.2d 676 (Tex. App. - Ft. Worth, 1988)

(Reversed on other grounds; affrimed as to Batson issue)

APPENDIX B - 2

Jones v. State,

756 S.W.2d 376 (Tex.

Hastings v. State,

755 S.W.2d 183 (Tex.

Ex parte Halburton,

755 S.W.2d 131 (Tex.

Allen v. State,

753 S.W.2d 792 (Tex.

Williams v. State,

752 S.W.2d 729 (Tex.

Williams v. State,

773 S.W.2d 525 (Tex.

Allen v. State

751 S.W.2d 931 (Tex.

Singleton v. State,

751 S.W.2d 316 (Tex.

Glenn v. State,

754 S.W.2d 290 (Tex.

Brown v. State,

750 S.W.2d 340 (Tex.

Keeton v. Sate,

749 S.W.2d 861 (Tex.

Stewart v. State,

748 S.W.20 543 (Tex.

Levy v. State,

749 S.W.2d 176 (Tex.

Rice v. State,

746 S.W.2d 356 (Tex.

Agbogun v. State,

App. - Hou[14th, 1988)

App. - San Antonio, 1988)

Crim. App. 1988)

App. - Beaumont, 1988)

App. - Corpus Christi, 1988)

Crim. App. 1988)

App. - Hou[1st], 1988)

App. - Hou[14th], 1988)

App. - Hou[1st], 1988)

App. - Beaumont, 1988)

Crim. App. 1988)

App. - Dallas, 1988)

App. - Hou[14th], 1988)

App. - Ft. Worth, 1988)

756 S.W.2d 1 (Tex. App. - Hou[1st], 1988)

Kemp v. State,

746 S.W.2d 316 (Tex.

Mead v. State,

759 S.W.2d 437 (Tex.

App. - Hou[1st], 1988)

App. - Ft. Worth, 1988)

APPENDIX B - 3

EEE EEE

Chandler v. State,

744 S.W.2d 341 (Tex. App. - Austin, 1988)

McKinney v. State,

744 S.W.2d 252 (Tex. App. - Waco, 1988)

Ali v. State,

742 S.W.2d 749 (Tex. App. - Dallas, 1987)

DeGrate v. State,

741 S.W.2d 553 (Tex. App. - Ft. Worth, 1987)

Porter v. State,

740 S.W.2d 600 (Tex. App. - Ft. Worth, 1987)

Easter v. State,

740 S.W.2d 107 (Tex. App. - Amarillo, 1987)

Johnson v. State,

740 S.W.2d 868 (Tex. App. - Hou[14th], 1988)

Salazar v. State,

745 S.W.2d 85 (Tex. App. - Ft. Worth, 1987)

Adams v. State,

740 S.W.2d 60 (Tex. App. - Dallas, 1987)

Tompkins v. State,

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

Rasco v. State,

739 S.W.2d 437 (Tex. App. - Hou[14th], 1987)

Kline v. State,

737 S.W.2d 895 (Tex. App. - Hou[1st], 1987)

Garza v. State,

739 S.W.2d 374 (Tex. App. - Corpus Christi, 1987)

Dewberry v. State,

734 S.W.2d 260 (Tex. App. - Dallas, 1987)

Yarbough v. State,

738 S.W.2d 86 (Tex. App. - Dallas, 1987)

Smith v. State,

734 S.W.2d 694 (Tex. App. - Hou[1st], 1987)

Grady v. State,

730 S.W.2d 191 (Tex. App. - Dallas, 1987)

APPENDIX B - 4

* *

Allen v. State,

726 S.W.2d 636 (Tex. App. - Eastland, 1987)

Townsend v. State,

730 S.W.2d 24 (Tex. App. - Texarkana, 1987)

Price v. State,

726 S.W.2d 611 (Tex. App. - Hou[14th], 1987

Sanders v. State,

727 S.W.2d 674 (Tex. App. - Texarkana, 1987)

Catley v. State,

726 S.W.2d 595 (Tex. App. - Hou[14th], 1987)

May v. State,

738 S.W.2d 261 (Tex. Crim. App. 1987)

Rogers v. State,

725 S.W.2d 477 (Tex. App. -Hou[14th], 1987)

Chambers v. State,

724 S.W.2d 440 (Tex. App. - Hou[14th], 1987)

Mogcden v. State,

721 S.W.2d 859 (Tex. Crim. App. 1986)

Allen v. State,

722 S.W.20 514 (Tex. App. - Beaumont, 1986)

Rijo v. State,

721 S.W.2d 562 (Tex. App. - Amarillo, 1986)

Hardy v. State,

722 S.W.2d 164 (Tex. App. - Hou[14th] 1986)

Marks v. State,

721 S.W.2d 401 (Tex. App. - Beaumont, 1986)

APPENDIX B - 5

APPENDIX C

TEX. R. APP. PRO. 90

Rule 90. Opinions, Publication and Citation

(a) Decision and Opinion. The court of appeals shall hand down a written opinion

which shall be as brief as practicable but which shall address every issue raised and

necessary to final disposition of the appeal. Where the issues are Clearly settled, the

court shall write a brief memorandum opinion which shouid not be published.

(6) Signing of Opinions...

(c) Standards for Publication. an opinion by the court of appeals shail de published

only if, in the judgment of the majority of the justices participating in the decision,

it is one that (1) establishes a new rule of law, alters or modifies and existing rule,

or applies an existing rule to a novel fact situation likely to recur in future cases:

(2) involves a legal issue of continuing public interest; (3) criticizes existing |aw; or

(4) resolves an apparent conflict of authority.

(d) Concurring and dissenting Opinions...

(e) Determining to Publish. A majority of the justicies participating in the cec:-

sion of a case shall determine, prior to the time it is issued, whether an o-pinion meets

the ctiteria for publication, and ff it does not meet the criteria for publication, the

opinion shall be distributerd only to the persons specified in Rule 91, Dut a copy may de

furnished to any interested person. On each opinion a notation shall be mace to ‘pudiish’

or "do not publish".

(f) Rehearing...

(g) Action of the Court En Banc...

(h) Order of the Supreme Court...

(i) Unpublished Opinions. Unpublished opinions shail not de cited as authorty oy

counsel or a court.

APPENDIX C -1

¢ * ——

APPENDIX C ei

TEX. R. APP. PRO. 90

Rule 90. Opinions, Publication and Citation

(a) Decision and Opinion. The court of appeals shall hand down a written opinion

which shall be as brief as practicable but which shall address every issue raised and

necessary to final disposition of the appeal. Where the issues are clearly settled, the

court shall write a brief memorandum opinion which should not be published.

(6) Signing of Opinions...

(c) Standards for Publication. an opinion by the court of appeals shall be published

only if, in the judgment of the majority of the justices participating in the decision,

it is one that (1) establishes a new rule of law, alters or modifies and existing rule,

or applies an existing rule to a novel fact situation likely to recur in future cases;

(2) involves a legal issue of continuing public interest; (3) criticizes existing law; or

(4) resolves an apparent conflict of authority.

(d) Concurring and dissenting Opinions...

(e) Determining to Publish. A majority of the justicies participating in the deci-

sion of a case shall determine, prior to the time it is issued, whether an o-pinion meets

the ctiteria for publication, and ff it does not meet the criteria for publication, the

Opinion shall be distributerd only to the persons specified in Rule 91, but a copy may be

furnished to any interested person. On each opinion a notation shall be made to “publish”

or “do not publish".

(f) Rehearing...

(g) Action of the Court En Banc...

(h) Order of the Supreme Court...

(i) Unpublished Opinions. Unpublished opinions shall not be cited as authority by 4

counsel or a court.

APPENDIX C -1