Fowler v. State , 1993 Tex. App. LEXIS 2472 ( 1993 )

MURPHY, Justice,

dissenting.

I respectfully dissent. The majority holds that appellant failed to properly preserve her Batson complaints, and I disagree. Appellant clearly made her complaints about the prosecutor’s racial motivations for his peremptory strikes known to the trial court. It is apparent from the record that the trial court conducted a Batson hearing after jury selection was completed. The court’s first question to the prosecutor asked, “On the first row did you strike any blacks?” Shortly after, appellant’s counsel argued to the court, “I don’t think that’s an adequate cause to strike her, Your Honor, under Batson.”

The court proceeded to ask the prosecutor about each juror struck, and whether the strike was racially motivated. The prosecutor responded with race-neutral reasons for his strikes. The court overruled an objection to a challenge on the basis that the prospective juror answered that “the primary purpose for the criminal justice system was rehabilitation.” The court then asked, “Anything further on your Batson motion?” When the prosecutor identified two black prospective jurors that he had not struck, the court noted, “So you did not strike several blacks.” Appellant’s counsel then renewed his Batson objection, arguing that “the State has not made any intelligent reason for striking these people.” The court then overruled his objection stating, “I find that he had reason, that he has demonstrated it on the record, but let me admonish the State, in the future to be very careful about your strikes, because I am taking you at good faith, that you have struck these people for good cause.” The court further stated, “Well, I don’t see any pattern, that he strikes blacks or minorities.”

In my opinion, appellant preserved her Batson challenge, and the court conducted a Batson hearing on her complaints. I would follow the longstanding Texas rule that no waiver results from a general or imprecise objection where the ground of objection was obvious to the trial court and opposing counsel. See Carter v. State, 717 S.W.2d 60, 76 (Tex.Crim.App.1986). Here, appellant’s objection to the array was obvious to both the court and the State, as shown by the court’s conducting a hearing and the prosecutor’s participation at the hearing by providing his reasons for his strikes. Thus, I would review appellant’s complaints on appeal and sustain her second point of error. In appellant’s second point of error, she complains that the State’s use of a peremptory strike against prospective juror no. 24, Rosalia Taylor, was racially motivated. The entire discussion about this challenge was as follows:

DEFENSE COUNSEL: Are there any other blacks you did not strike?

PROSECUTOR: I don’t know. I don’t know who’s black and who’s not from my sheet.

Juror No. 20, is he black?

DEFENSE COUNSEL: Yes, but he was for cause.

PROSECUTOR: I didn’t strike him. No. 22?

DEFENSE COUNSEL: No.

PROSECUTOR: No. 24.

THE COURT: You struck her?

PROSECUTOR: Because she served on a hung jury before, two hung juries before.

THE COURT: Okay. Any response? Who else?

In reviewing a Batson claim, an appellate court must determine if the State exercised its peremptory strikes in a purposefully discriminatory manner. Keeton v. State, 749 S.W.2d 861, 870 (Tex.Crim.App.1988). The standard of review for a Batson challenge is whether the fact findings of the trial court are clearly erroneous. Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Crim.App.1989) (op. on reh’g). A trial court’s finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed. Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App.), cert. denied, — U.S. -, 113 S.Ct. 381, 121 L.Ed.2d 292 (1992).

The State contends that appellant has not made a prima facie showing of purposeful discrimination because the record is silent as to the race of the challenged prospective juror. Appellant failed to establish by evidence, in the nature of a stipulation or otherwise, that prospective juror no. 24 was black. See Dutton v. State, 836 S.W.2d 221, 224 (Tex.App.—Houston [14th Dist.] 1992, no pet.); Price v. State, 726 S.W.2d 611, 613 (Tex.App.—Houston [14th Dist.] 1987, no pet.). The juror information cards do not indicate race. She also failed to establish how many of the jurors the State struck were black, and how many blacks served on the jury, although it is clear from the record that at least one black person served on the jury.

However, the court of criminal appeals has held that the issue of whether appellant has established a prima facie case will not be reviewed when the prosecutor has articulated his reasons for the challenged peremptory strike and the trial court has ruled on the ultimate question of intentional discrimination. Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App.), cert. denied, — U.S.-, 113 S.Ct. 297, 121 L.Ed.2d 221 (1992). Here, the prosecutor articulated his reasons for the strikes, and trial court ruled there was no intentional discrimination. Thus, the issue of whether a prima facie case was established is moot.

The prosecutor claimed to have struck prospective juror no. 24, Ms. Taylor, because she had served on two prior juries that had failed to reach a verdict. This has been held to be a sufficiently race-neutral explanation for exercising a peremptory challenge. Frierson v. State, 839 S.W.2d 841, 854 (Tex.App.—Dallas 1992, pet. ref'd). However, my review of the record shows that the State failed to ask Ms. Taylor about her prior jury service. Her juror information card indicates that she had served on both criminal and civil juries before, but does not indicate whether a verdict was reached. Many of the prospective jurors were asked about their prior jury service and informed the prosecutor whether that jury had reached a verdict, but the. record is silent about the result of Ms. Taylor’s jury service.

The prosecutor’s stated reason for striking Ms. Taylor may have been pretextual, or merely an honest mistake. In either case, based on my review under the appropriate standard, I am left with the definite and firm conviction that a mistake has been made. Therefore, I would conclude that the trial court’s finding that the State gave sufficient race-neutral reasons for its strikes is clearly erroneous with respect to the strike of this prospective juror. I would sustain appellant’s second point of error and reverse her conviction and remand this cause for a new trial.