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Williams v. State , 736 S.W.2d 906 ( 1987 )


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  • 736 S.W.2d 906 (1987)

    Curtis WILLIAMS, Appellant,
    v.
    The STATE of Texas, Appellee.

    No. 13-85-269-CR.

    Court of Appeals of Texas, Corpus Christi.

    August 28, 1987.

    *907 Carl E. Lewis, Corpus Christi, for appellant.

    Grant Jones, Dist. Atty., Corpus Christi, for appellee.

    Before NYE, C.J., and KENNEDY and SEERDEN, JJ.

    ORDER

    NYE, Chief Justice.

    Appellant was convicted of sexual assault and assessed a punishment of ten years' imprisonment with a recommendation that the punishment be probated. We affirmed the conviction. See Williams v. State, 712 S.W.2d 835 (Tex.App.—Corpus Christi 1986). Without considering the merits of the case, the Court of Criminal Appeals, in an unpublished opinion, summarily reversed our decision and remanded the cause with instructions.

    The Court based this disposition on its apparently blanket rule that if a black defendant was tried before Batson was delivered, and that defendant made any objection to the State's use of its peremptory challenges to strike any black prospective juror, the appropriate procedure on direct appeal, where the ground of error has been raised, is to abate the appeal and remand the case to the trial court for a hearing on this issue.

    Therefore, in accordance with the Court of Criminal Appeals' instructions, we ABATE this appeal and ORDER the trial court to:

    1. Conduct a hearing at which appellant shall be given the opportunity to raise the inference that the State improperly exercised its peremptory strikes;

    2. If appellant makes this showing to the satisfaction of the trial court, the State shall then be required to come forward with a neutral explanation for the use of each strike;

    3. If the trial court determines, in accordance with Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), that purposeful discrimination has been established, then the trial court shall enter this finding in his findings of fact and conclusions of law.

    It is so ORDERED. See Miller v. State, Nos. 13-86-247-CR, 13-86-248-CR, 13-86-249-CR, 13-86-250-CR (Tex.App.— Corpus Christi, August 28, 1987) (not yet reported).