Silva v. State , 1990 Tex. App. LEXIS 3167 ( 1990 )

CHAPA, Justice,

concurring.

The majority rejects appellant’s Batson v. Kentucky¹ challenge to the State’s exclusion from the jury of persons with Hispanic surnames. I concur in the result only because the record fails to show that the appellant made the trial judge aware of the information in the record which casts considerable doubt on the State’s “permissible racially neutral selection criteria” explanation to the court for the Hispanic challenges. Batson, 476 U.S. at 94, 106 S.Ct. at 1721.

In Batson, the United States Supreme Court announced it’s disapproval of the State’s systematic exclusion from the jury of persons of the same race as the defendant, stating:

Moreover, since Swain [v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759], we have recognized that a [Hispanic] defendant alleging that members of his race have been impermissibly excluded from the venire may make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts give rise to an inference of discriminatory purpose_ Once the defendant makes the requisite showing, the burden shifts to the State to explain adequately the racial exclusion.... The State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties.... Rather, the State must demonstrate that “permissible racially neutral selection criteria and procedures have produced the monochromatic result.” Alexander v. Louisiana, ... [405 U.S. 625] at 632, 31 L.Ed.2d 536, 92 S.Ct. 1221 [1226]; see Washington v. Davis, ... [426 U.S. 229] at 241, 48 L.Ed.2d 597, 96 S.Ct. 2040 [2048]. (Footnote omitted.)

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Thus, since the decision in Swain, this court has recognized that a defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case. These decisions are in accordance with the proposition, articulated in Arlington Heights v. Metropolitan Housing Development Corp., that “a consistent pattern of official racial discrimination” is not “a necessary predicate to a violation of the Equal Protection Clause. A single invidiously discriminatory governmental act” is not “immunized by the absence of such discrimination in the making of other comparable decisions.” 429 U.S. [252], at 266, n. 14, 50 L.Ed.2d 450, 97 S.Ct. 555 [564]. ... (Emphasis in original.)

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If the trial court decides that the facts establish prima facie, purposeful discrim-¡nation and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner’s conviction be reversed....

Id. 476 U.S. at 93-100, 106 S.Ct. at 1721-25.

The Texas Court of Criminal Appeals recognized the dictates of Batson, and adopted a standard of review for such cases in Texas stating:

We believe that our focus, as well as that of the trial judge, should be on whether purposeful discrimination was established. We will of course consider the evidence in the light most favorable to the trial judge’s rulings and determine if those rulings are supported by the record. If the record supports the findings of the trial judge, they will not be disturbed on appeal.

Keeton v. State, 749 S.W.2d 861, 870 (Tex.Crim.App.1988). (Emphasis added.)

However, subsequently, in Whitsey v. State ², the Texas Court of Criminal Appeals declared that the proper standard of review in Batson cases is the “clearly erroneous” standard which they described as follows:

This case law review teaches that the “supported by the record” standard adopted in Keeton, 749 S.W.2d 861, is actually an analytical tool used in determining whether a trial judge’s findings of fact are clearly erroneous or should be accorded great deference. While the nomenclature is different, the analysis is essentially the same under each of the three “standards of review” — clearly erroneous, great deference, supported by the record — and, in fact, the clearly erroneous and great deference standards engage in the same level of review.

Whitsey, 796 S.W.2d at 715.

The record here clearly reflects that the trial court found that the appellant had indeed made a prima facie case of purposeful discrimination by showing that the appellant was Hispanic, that six of the ten jurors struck by the State were Hispanics, and that the result was, what was termed by the appellant, a “lilly white” jury, consisting of no Hispanics or Blacks. Thus, the burden shifted to the State to “explain adequately the racial exclusions” as required by Batson, 476 U.S. at 94, 106 S.Ct. at 1721.

Of the ten jurors struck by the State, six had Hispanic surnames: Bueno, Casarez, Campos, Nieto, Castillo, and Rodriguez. Initially, the State attempted to comply with its Batson burden of explaining adequately the racial exclusion in this case by succeeding in having the trial court take judicial notice of past cases tried before the same trial court wherein, allegedly, the State did not strike all the Hispanics. However, the United States Supreme Court declared that the determination to be made under the Batson rule must rely on “the facts concerning [the State’s] selection in this case” because “[a] single invidiously discriminatory governmental act’ is not ‘immunized by the absence of such discrimination in the making of other comparable decisions.” Batson, 476 U.S. at 97, 106 S.Ct. at 1723. The State then presented the following explanation:

STATE: Now, for the strikes that were ... primarily exercised on the basis of age. I have never, with the exception, I believe, of one juror, to strike [sic] every juror under the age of thirty years old because I feel from my experience as a prosecutor and as a defense lawyer that the older jurors are generally more likely to be prosecution minded or favorable to the prosecution.

Jesse Bueno lists his age as twenty-four.

Felipe Casarez was struck because he is currently unemployed. Unemployed people are less likely to be sympathetic to the prosecution. In addition, I elicited during voir dire the fact that he is unemployed, and I believe I embarrassed him in front of the rest of the jury panel, and he would not be disposed to be favorable to me.

Ralph Campos, the next strike I made, he is twenty-seven years old. And he was struck because of age.

Edward Nieto is twenty-two years old and also a student at Gary Job Corps. It’s frequently been my experience — Mr. Rugeley [defense counsel] may know more about this than I do, I suspect — has been a place in the past — I don’t know about Mr. Nieto specifically — that people with criminal records or problems with authorities in the past have been students.

Mrs. Castillo is the next one. She is twenty-five years old. I struck her because of her age.

The last one was Lea Ann Miller Rodriguez. I would like the record to reflect although she has a Hispanic surname, she is not Hispanic. And is anglo, I suspect. Her husband’s name is Antiago Rodriguez. Her maiden name was Miller. But I struck her because she is twenty-one years of age.

The only juror that I know that was not struck by me under the age of thirty is John Edward Peterson. And I struck him [sic] because I know of him personally. And I also know he works for the City of Schertz and has worked there for a long time. I kept him because he is employed by a public entity. I know him to be of a good reputation.

My practice has been to make strikes of jurors under the age of thirty years old unless I know them or their family or know of them.

Those are my reasons for the strikes in this case, Your Honor. I offer myself for cross examination.

[APPELLANT’S DEFENSE COUNSEL]: It’s your testimony that the only juror that is on this jury that is under thirty years old is Mr. Peterson, is that correct?

[PROSECUTOR]: That’s the only one that I am aware of that I did not strike under the age of thirty.

[APPELLANT’S DEFENSE COUNSEL]: Nothing further, Your Honor.

In argument to the court, appellant merely noted that it was “just convenient” that the Hispanics happened to be young, without pointing out to the court significant information in the statement of facts and the transcript which casts doubts on the State’s explanations to the court. The court overruled appellant’s Batson challenge.

The statement of facts reflects that the only questions asked of all the jurors on the panel with Hispanic surnames by the State were the following:

STATE: Mr. Casarez, are you retired as well?

MR. CASAREZ: Yes.

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STATE: Thank you. Mr. Nieto, where do you work?

MR. NIETO: Gary Job Corps.

A review of the juror information cards on each of the jurors, which form a part of the transcript, reveals that although jurors Shuler, Gregory, Stansberry and Hafley were retired like Casarez, only Casarez was struck by the State. Likewise, jurors Baughman, Turner, Lange, and McCarthy were unemployed, but were not struck by the State. Further, the information cards reveal that although jurors Brencick, Bond, Baumann, Peterson, and Hammond were all under thirty years of age, none were struck by the State. The State did, however, offer some explanation as to Peterson. Clearly, the complete failure of the State to question the Hispanics in any significant way, the failure of the record to support the State’s explanation for the striking of Casarez, and the number of Anglo jurors who were under the age of 30, unemployed, and/or retired that were not struck by the State, makes the State’s “permissible racially neutral selection criteria” explanation considerably suspect in my view, and casts serious doubts as to whether the State complied with its burden of “explaining] adequately the racial exclusions.” Batson, 476 U.S. at 94, 106 S.Ct. at 1721.

However, the appellant had the burden of bringing to the attention of the trial court all this information in order that the court could consider it prior to making its ruling. The trial court should never abandon its impartial role and seek out reasons to sustain motions on behalf of the State or the accused. Since this record does not indicate that the trial court was made aware of all of the foregoing, it’s ruling cannot be found to be “clearly erroneous.” Whitsey, at 726.

I concur with the results.

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

2 . Whitsey v. State, 796 S.W.2d 707 (Tex.Crim.App.1990) (on State’s Motion for Rehearing).