H. J. JONES, Appellant v. THE STATE OF TEXAS, Appellee

ABATED and REMANDED OPINION filed October 25, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-00882-CR
............................
H. J. JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F87-86106-QLU
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O P I N I O N
Before Justices McClung, Thomas and Whittington
Opinion By Justice Thomas
        A jury convicted H.J. Jones of possession of a controlled substance with intent to deliver and the trial court assessed punishment, enhanced by one prior felony conviction, at seventy-five years' confinement in the Texas Department of Corrections. Although Jones raises five points of error, this opinion concerns only the second and third points. In his second point of error, Jones contends that the trial court erred when it denied his request to cross-examine the prosecutor's explanations for exercising peremptory challenges on veniremen who were members of a racially cognizable group. We agree. Consequently, we abate this appeal and remand for a Batson FN:1 hearing at which Jones should be given an opportunity to cross-examine the State's witness.
FACTUAL BACKGROUND
        After questioning all prospective jurors, but before exercising their strikes, Jones's attorney stated for the record that Jones is a black male and that five prospective jurors were black. After the jury was seated, the trial judge asked if there were objections to the jury regarding peremptory challenges. The State had no objections, but Jones's attorney objected to the composition of the jury alleging that the State used its peremptory challenges to strike two members of the same race as Jones. Jones's attorney then requested a Batson hearing outside the presence of the jury in order to develop the record and explore the State's reason for peremptorily challenging the two black jurors. The trial court granted the hearing.
        At the Batson hearing, the court asked the prosecutor his reasons for striking the prospective jurors. As to juror number 13, the prosecutor explained that she was a single lady with a child; on questioning relating to drugs there was no eye contact by the juror; and computer records available to the prosecutor showed several persons with the same name as juror number 13 that had theft and possession of controlled substance convictions. The computer records of these convictions had no date of birth, but one of the persons with theft and drug convictions was shown on the computer records to be a black female. Jones's attorney then requested permission to cross-examine the prosecutor but was denied.
        As to juror number 16, the prosecutor explained that a person with the same date of birth and name as juror number 16 was shown by computer records to have had four charges for theft, two of which had been dismissed and two of which had resulted in misdemeanor convictions. Jones's attorney then requested permission to cross-examine the prosecutor but was denied.
        The prosecutor also stated for the record that juror number 23, a black male, was seated on the jury and that there were no single women with children seated, which the court reflected in the record. Jones's attorney again requested permission to cross-examine the prosecutor about this statement but his request was denied.
        The trial court found that the State had not systematically excluded persons of the defendant's race based solely on race. Jones's attorney then requested that the court make an in-camera review of all the materials used by the prosecutor to exercise his peremptory challenges and seal them after making findings for inclusion in the record in the event that the case was appealed. This request was also denied by the trial court.
CROSS-EXAMINATION OF THE PROSECUTOR
        Jones contends that the trial court erred in denying his request to question the prosecutor about the basis of his peremptory challenges during jury selection. In Williams v. State, 767 S.W.2d 872, 876-77 (Tex. App.--Dallas 1989, pet. filed) (en banc), this Court held that a Batson movant has the right to question the prosecutor concerning his racially neutral reasons for striking minority veniremembers. Because Jones was denied this right, we abate this appeal and remand this case so that Jones may cross-examine the prosecutor with regard to the facially neutral reasons given at the first Batson hearing. This second hearing should be conducted in conformity with the procedures set out in Williams.
 
IN-CAMERA INSPECTION OF PROSECUTOR'S PAPERS
        In anticipation that defense counsel will request the trial judge to examine the prosecutor's computer records, we will address point of error number three. Jones contends that the trial court erred in denying his request that the trial court make an in-camera inspection of the materials used by the prosecutor to exercise his peremptory challenges. If the defendant raises an inference of purposeful discrimination through the State's use of its peremptory challenges, and the trial court determines that a prima facie case of discrimination exists, then the burden shifts to the prosecutor who must come forward with a neutral explanation for the challenges. The trial court must then determine whether, despite the State's explanation, the defendant has established purposeful discrimination. By largely judging credibility of the prosecutor, content of the explanation and all other surrounding facts and circumstances, the trial judge must make a finding of fact concerning purposeful discrimination. Batson, 474 U.S. at 96-98.
        Wisdom and experience teach us that trial judges must have the broadest latitude in presiding over the cases before them. Trial judges are on the scene and can consider and weigh competing interest with much greater precision than appellate judges, who must rely on a cold and often incomplete record. Moreover, trial judges are able to consider matters that may be unique to particular fact situations and tailor procedures to serve the ends of justice in the many cases before them. And, they must often make these decisions quickly, yet with finality, lest the litigation process become stalled in procedural disputes. By and large, therefore, appellate courts should defer to the procedures selected by trial judges. United States v. Thompson, 827 F.2d 1254, 1258 (9th Cir. 1987).
        Therefore, we give the trial judge great latitude in determining whether an in-camera inspection of the prosecutor's materials used to exercise peremptory challenges during voir dire is necessary. Such an instance might arise where the prosecutor states that he relied solely on one piece of information to exercise his peremptory challenge. We are in no way implying, however, that defense counsel may seek discovery of these materials for use in corroborating or impeaching explanations offered by the prosecutor for his use of peremptory challenges. An attorney's files and papers are work product and are therefore privileged. Brem v. State, 571 S.W.2d 314, 322 (Tex. Crim. App. 1978). Batson does not create an exception to the work product privilege. Therefore, we leave it to the trial judge to determine if an in-camera inspection is necessary and we will give great deference to the trial judge and his determination.
 
 
 
 
 
                                                          
                                                          Linda Thomas
                                                          Justice
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
880882OF.U05
 
FN:1 Batson v. Kentucky, 474 U.S. 79 (1986)
File Date[10-25-89]
File Name[880882OF]