Young v. State , 1993 Tex. Crim. App. LEXIS 126 ( 1993 )

OPINION REFUSING STATE’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

This case is before us after having been remanded to the Court of Appeals. Young v. State, 826 S.W.2d 141 (Tex.Cr.App.1991). The Court of Appeals then determined on remand that the trial record did not support the trial court’s ruling on appellant’s Batson¹ motion and was therefore clearly erroneous. The Court of Appeals remanded for a new trial. Young v. State, 848 S.W.2d 203 (Tex.App.—Dallas 1992).

The State has petitioned this Court for discretionary review alleging three “points of error.” (Rule 202(d)(4) T.R.A.P. provides for “grounds for review”.) We will now refuse the State’s petition, but in so doing, we will take this opportunity to make some hopefully clarifying remarks concerning the State’s ground for review number two.²

Superficially, it would indeed appear as if this Court’s decision in Young is in conflict with our decision in Wright v. State, 832 S.W.2d 601 (Tex.Cr.App.1992). Upon examination, however, there is no conflict. It must be remembered that the Supreme Court in Batson established a tripartite procedure for the disposition of claims of peremptory discrimination by an allegedly aggrieved criminal defendant. First, it is incumbent on the defendant to make a pri-ma facie showing of racial discrimination by the prosecutor. Second, the prosecutor must then come forward with a race-neutral explanation for challenging cognizable minority jurors. Third, the trial court will then determine if the defendant has established purposeful discrimination. Batson, supra.

It should thus be obvious that at the core of Batson, is the premise that the prosecutor must bring forward his explanation at trial for his challenged peremptories, as was emphasized by Judge Benavides in his concurring opinion in Wright:

“Undoubtedly, it is the prosecutor’s obligation to tender such explanations at the time first called upon to do so in the trial court. It is no sufficient substitute to let her [prosecutor] offer them at a later time, certainly not on appeal or discretionary review. And it follows that any subsequent scrutiny by an appellate court of the voir dire process must necessarily be for the limited purpose of determining whether the prosecutor’s tendered explanations can be refuted or corroborated and not as a surrogate for the explanations themselves.”

Wright, at 605, Benavides, J., concurring.

In Wright, we pointed out that the prosecutor failed at trial, to offer a race-neutral explanation for a peremptory strike made against a cognizable racial minority venire-person. The State in Wright attempted to use the appellate record as a surrogate for the absence of a trial explanation.

In Young, this Court addressed a different procedural situation. The defendant had concededly made a prima facie case of purposeful discrimination. The State, at trial, offered at least facially race-neutral explanations for his strikes. The trial court ruled in favor of the State. On appeal the defendant argued that there was disparate treatment by the prosecutor of venirepersons of different ethnic or racial backgrounds. So the tripartite procedure discussed and mandated in Batson had already taken place, and the only issue addressed by this Court was strictly one of State procedural interpretation, i.e., whether a defendant could conduct or ask for the conduction of a comparative analysis of the disparate treatment of venirepersons by the prosecutor for the first time on appeal.

The Supreme Court’s mandate in Batson itself, and our explanation in Judge Bena-vides’ concurring opinion in Young, lead us to the firm conclusion that Young and Wright are not in conflict. With these observations, we will refuse the State’s Petition for Discretionary Review.

1 . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

2 . THIS HONORABLE COURT SHOULD RECONSIDER ITS HOLDING IN YOUNG, IN LIGHT OF THE COURT’S DECISION IN WRIGHT V. STATE, 832 S.W.2d 601 (Tex.Crim.App.1992).