Grady v. State

730 S.W.2d 191, 1987 Tex. App. LEXIS 7550
CourtCourt of Appeals of Texas
DecidedMay 12, 1987
Docket05-86-00533-CR, 05-86-00534-CR
StatusPublished
Cited by12 cases

This text of 730 S.W.2d 191 (Grady v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grady v. State, 730 S.W.2d 191, 1987 Tex. App. LEXIS 7550 (Tex. Ct. App. 1987).

Opinions

BAKER, Justice.

Appellant, Jimmy Lee Grady, appeals judgments of conviction in two cases of aggravated sexual assault. Appellant pleaded not guilty and was tried before a jury. Appellant was found guilty in both cases and punishment assessed by the jury at life confinement and a fine of $10,000 in each case.

Appellant appeals on two points of error as follows: (1) the trial court erred in overruling appellant’s motion to discharge the jury because, during jury selection, the State used its peremptory challenges to systematically exclude blacks from serving on the jury solely on the basis of race; and (2) the trial court erred during the punishment phase when, over objection, it instructed the jury as to the existence and possible effects of the law regarding parole. We affirm.

Appellant’s first point of error asserts the State exercised its peremptory challenges to strike minorities from the jury for racial reasons. He maintains such purposeful discrimination denied him federal and state constitutional guarantees of equal protection, as well as his right to a jury drawn from a cross-section of the community under article I, section 10 of the Texas Constitution. At the trial appellant objected to the State’s use of its peremptory challenges to strike all four remaining black members of the venire. After hearing evidence and argument the trial court overruled appellant’s objection. On appeal [193]*193it is clear that appellant bases his discrimination argument on the recent case of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Appellant’s case was tried six weeks before the Batson case was decided. Obviously, neither counsel nor the trial court could have anticipated the impact of that decision on this case. Nevertheless, Batson’s requirements apply retroactively to cases like this one pending on direct appeal or not yet final. Griffith v. Kentucky, — U.S. -, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).

The exercise of peremptory challenges by the State for purely racial reasons violates the Equal Protection clause. Swain v. Alabama, 380 U.S. 202, 203-04, 224, 85 S.Ct. 824, 826-27, 13 L.Ed.2d 759 (1965). In Swain, the Supreme Court held that a defendant could prove unlawful discrimination by the State through its use of peremptory challenges, not merely by pointing to the exclusion of a racial group from the jury in his own case, but only by showing a systematic exclusion in case after case. In Batson, the court overturned the evidentiary requirements of Swain and held:

[A] defendant may establish a prima fa-cie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group ... and that the prosecution has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate”.... Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.
In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a “pattern” of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and statements during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors.
Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors.... [W]e emphasize that the prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause ... [b]ut the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race.... [T]he Equal Protection Clause ... forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black ... Nor may the prosecutor rebut the defendant’s case merely by denying that he had a discriminatory motive or “affirming his good faith in individual selections ...” The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination.

Batson, 106 S.Ct. at 1722-24. (citations and footnotes omitted).

[194]*194On original submission of this case, the record was carefully reviewed. The record revealed that after the appellant objected that the State utilized its peremptory strikes for discriminatory purposes, the appellant offered testimony from two witnesses, his attorney and the prosecutor. This evidence established that Grady is black, that the victims of rape of which he is accused are white, and that the prosecutor used his peremptory challenges to strike all four remaining blacks on the ve-nire. These individuals were Mr. Turner, number two; Ms. Gardner, number seven; Mr. Willis, number fourteen; and Ms. Moore, number thirty-two. As previously stated, the court overruled this motion and empaneled the jury. We could not determine from the record before us on original submission whether appellant met his burden under the Batson criteria. Accordingly, the case was remanded to the trial court for a hearing to determine whether the appellant could make a prima facie case of racial discrimination and, if so, whether the State could provide racially neutral reasons for the exercise of its peremptory challenges with respect to the four veniremen in question. The trial court carefully carried out a full hearing on these issues and filed findings of fact and conclusions of law with this Court together with a transcript of all the testimony and evidence adduced at this hearing. The Court found that appellant did establish a prima facie case of purposeful discrimination in the State’s use of its peremptory challenges to strike all four blacks remaining on the venire, but it further found that the State had given racially neutral explanations for its use of peremptory challenges against each of the four blacks who were struck.

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Bluebook (online)
730 S.W.2d 191, 1987 Tex. App. LEXIS 7550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grady-v-state-texapp-1987.