Victor Washington v. The State of Texas--Appeal from 278th District Court of Madison County

IN THE

TENTH COURT OF APPEALS

No. 10-92-130-CR

VICTOR WASHINGTON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 278th District Court

Madison County, Texas

Trial Court # 8953

O P I N I O N

Appellant Victor Washington was found guilty of aggravated assault on a fellow inmate while incarcerated at the Ferguson Unit of the Texas Department of Criminal Justice, Institutional Division. He was sentenced to thirteen (13) years imprisonment.

On appeal, Appellant Washington raises five points of error; however, since we sustain Appellant's second point of error and thereby reverse and remand the case for a new trial, we will not discuss his remaining four points.

By his second point of error, Appellant complains that the State made racially discriminating use of its peremptory challenges. Appellant filed a Batson motion which was denied by the trial court.

Case law regarding Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), continues to be developed. The correct standard of review for a Batson hearing is the "clear error standard." Vargas v. State, 838 S.W.2d 552, 554 (Tex. Crim. App. 1992) (citing Hernandez v. New York, U.S. , 111 S. Ct. 1859, 1871, 114 L. Ed. 2d 395 (1991)). The standard is applied by reviewing the record, including the voir dire, the racial makeup of the venire, the explanations of the prosecutor, and the appellant's rebuttal and impeaching evidence. The ruling of the judge on the Batson motion must be supported by the record so that it is not clearly erroneous. Vargas, 838 S.W.2d at 554. "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Whitsey v. State, 796 S.W.2d 707, 721 (Tex. Crim. App. 1990) (on rehearing) (citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 (1948)).

The party raising a Batson challenge must first make a prima facie showing that the opposing party has made its preemptory strikes with discriminatory purpose. // Batson, 106 S. Ct. at 1723, see also Emerson v. State, 851 S.W.2d 269, 271 (Tex. Crim. App. 1993); Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991), cert. denied, 111 S. Ct. 2875, 115 L. Ed. 2d 1038 (1991). The burden then shifts, requiring the opposing party to provide non-discriminatory explanations for its preemptory strikes. Emerson, 851 S.W.2d at 271-72. The explanations provided by the non-movant must be clear and reasonably specific to the veniremember challenged. Whitsey, 796 S.W.2d at 713. It is not sufficient that these reasons be facially non-discriminatory; they must be individualized to the stricken veniremembers. Each strike of a veniremember must be evaluated individually and the non-moving party's actions evaluated as a whole for a pattern of purposeful discrimination. The court then decides whether the party raising the issue has succeeded in sustaining its burden of persuasion; that is, were the non-discriminatory reasons provided by the opposing party merely pretextual? Emerson, 851 S.W.2d. at 273. The trial court must adequately preserve both its reasoning and the evidentiary basis for its decision on the record. Williams, 804 S.W.2d at 101.

We begin our analysis by first addressing the reasoning and the evidentiary basis for the lower-court decision. The trial court has failed to provide either and simply states that, with regard to the voir dire, it finds no evidence of discrimination on the part of the prosecutor. Great deference is to be placed in the court's ruling, yet, in reviewing the record, there exists clear grounds to question the propriety of the State's preemptory strikes. For an appellate court to review the hearing properly, the trial court must preserve its reasoning in the record. Whitsey, 796 S.W.2d at 716.

Appellant Washington, who is black, made a prima facie showing of discrimination by showing that he belongs to a cognizable group, that the State used preemptory strikes against minority veniremembers, and that these facts, as well as the surrounding facts and circumstances, raise an inference of discrimination on the part of the prosecutor. See Linscomb v. State, 829 S.W.2d 164, 165 n.6 (Tex. Crim. App. 1992) A party may not eliminate any potential juror with discriminatory purpose. Keeton v. State, 724 S.W.2d 58, 65 n.5 (Tex. Crim. App. 1987).

Once this initial showing had been made, the State had to offer non-discriminatory reasons for the strikes. The State asked no questions to the black veniremembers it subsequently struck. Lack of examination implicates the holdings in Whitsey and Emerson. In each of those cases the prosecution failed to ask veniremembers questions that would have assisted the court in determining whether the veniremember possessed those qualities ascribed to him at the later Batson hearing: qualities which the State alleged would prevent this person from being a good juror in its non-discriminatory reason for striking. See Emerson, 851 S.W.2d 269; Whitsey, 796 S.W.2d 707.

In the present case, the State failed to overcome the presumption of discriminatory purpose behind the strike. The prosecutor offered data from the juror information card as evidence regarding the veniremembers. See Cornish v. State, 848 S.W.2d 144 (Tex. Crim. App. 1993) (holding that juror information cards, though not formally introduced into the record, were nevertheless part of the record on appeal). However, he did not supplement this information with any particularized reason for the strike. Indeed, misspellings on the cards and incomplete cards were offered as the reason for these strikes of black veniremembers, yet white veniremembers with incomplete cards were not struck. Further, the State inexplicably bolstered Appellant's complaint with the comment regarding the empaneling of a black juror "[as] my minority black person . . . on the jury." Having a "token minority" on the jury is never sufficient to dispel any taint of discriminatory purpose inherent in other actions regarding the panel. Linscomb, 829 S.W.2d at 167. Tokenism is simply a more insidious form of the racism and discrimination Batson seeks to eliminate.

The type of discriminatory purpose that is present in this case is exactly the type of behavior which Batson seeks to prevent. We hold that the ruling on the Batson motion was clearly erroneous, and sustain point of error two. Because we reverse the judgment and remand the case for a new trial, we do not reach Appellant's other points of error.

JOHN A. JAMES, JR.

Justice (Retired)

Before Chief Justice Thomas,

Justice Cummings, and

Justice James (Retired)

Reversed and remanded

Opinion delivered and filed July 7, 1993

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