Mathews v. State

768 S.W.2d 731, 1989 Tex. Crim. App. LEXIS 70, 1989 WL 33811

• Court: Court of Criminal Appeals of Texas
• Decided: April 12, 1989
• Docket: 437-87
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted of aggravated robbery and sentenced by a jury to twenty years in the Texas Department of Corrections. The court of appeals affirmed his conviction in an unreported opinion. Mathews v. Texas, No. 01-85-0974-CR, 1987 WL 7654 (Tex.App.—Houston [1st Dist.] 1987).

We granted appellant’s petition for discretionary review to determine whether the court of appeals erred in failing to abate the appeal and remand for a Batson hearing. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Appellant’s case was tried in early November of 1985, and was pending on appeal when the Supreme Court’s opinion in Batson was handed down. Therefore, he is among those to whom retroactivity would apply. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). However, the record in this case is devoid of any evidence which would enable appellant to make out a prima facie case of purposeful discrimination. There is no information as to the racial makeup of the venire or the race of those peremptorily struck by the State. There are no juror information cards, or anything else to indicate the racial composition of the panel. The jury strike list is present, but there is no indication there, either, as to the race of the veniremen. Appellant’s counsel did not even object to the jury panel at any time before or after trial. Appellant is thus asking this Court to allow him to raise Batson error for the first time on appeal.

Appellant asserts that, because his trial occurred before the Supreme Court’s opinion in Batson was handed down, it would have been useless for him to have objected. In pre-Batson cases, a defendant was required to assemble evidence of an historical use of peremptories by the prosecutor to strike all Blacks from criminal venires. Because of this onerous burden, an objection to no more than the composition of his petit jury would have availed him nothing prior to Batson. Although this assertion may be true, it has been settled law for many years that “a ‘State’s purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.’ ” Batson v. Kentucky, supra, 476 U.S. at 84, 106 S.Ct. at 1716, citing Swain v. Alabama, 380 U.S. 202, 203-04, 85 S.Ct. 824, 826-27, 13 L.Ed.2d 759 (1965). Appellant's trial counsel must surely have been aware of the rule enunciated in Swain, supra. In Batson and Griffith, as well as cases from this Court, there was at least an objection in the record.¹ In Henry v. State, 729 S.W.2d 732 (Tex.Cr.App.1987), we left open the question of whether Bat-son error may be raised for the first time on appeal. Henry, supra at 736 n. 3. In Henry, the defendant had objected to the State’s use of its peremptories to strike all Blacks from the venire only after the jury had been selected and sworn when he moved to strike the panel. There, we observed:

“We find nothing in the Supreme Court opinions which requires that, in cases pending on review or not yet final at the time the Batson case was decided, the defendant object before the jury was sworn. Rather, the opinions suggest at most that the defendant present the issue to the trial court.”

729 S.W.2d at 736 (emphasis in original).

Appellant asks this Court to take the “small step strongly suggested” by the above quote to allow him to raise his claim even though he failed to preserve error or to make a record sufficient to show prima facie discrimination. However, we believe the referenced quote does imply that a defendant must at least call the trial court’s attention to the issue at some point during the pendency of the trial. Here, defendant did not do so at any time. It was for this reason the appellate court rejected his claim, holding that because appellant had not objected, he failed to preserve error and so presented nothing for review.² We would be inclined to agree without additional comment were it not for prior holdings of this Court regarding this State’s contemporaneous objection rule which further complicate our analysis.

This Court has, in the past, declined to apply the contemporaneous objection rule to error involving a novel constitutional claim. “Where a defect of constitutional magnitude has not been established at the time of trial, the failure of counsel to object does not constitute waiver.” See Cuevas v. State, 641 S.W.2d 558, 563 (Tex.Cr.App.1982); Ex Parte Bravo, 702 S.W.2d 189, 191 (Tex.Cr.App.1985); Cook v. State, 741 S.W.2d 928, 944 (Tex.Cr.App.1987); Ex Parte Chambers, 688 S.W.2d 483 (Tex.Cr.App.1984). In Chambers, supra, we re-prised our own state’s rule, viz.:

“[A] defendant has not waived his right to assert a constitutional violation by failing to object at trial if at the time of his trial the right had not been recognized.”

688 S.W.2d at 486 (Campbell, J., concurring).

At this juncture, it is appropriate to reiterate that the federal procedural default doctrine also involves a “novelty” test, providing that “where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.” Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984). This test determines federal eognizability where there has been a procedural default at the state level, and as pointed out in Chambers, supra, the federal procedural default doctrine per se applies only in federal habe-as corpus proceedings. This Court also conducts a “novelty” analysis; however, when we do so, it is to decide whether there need be a contemporaneous objection in the first instance. Finding a eonstitu-tional claim sufficiently “novel”, we hold there is no procedural default.

However, we hold the rule in Chambers does not control here.³ Batson did not create a new constitutional right. That purposeful discrimination by the State through use of peremptories to strike Blacks from the jury venire violates the Fourteenth Amendment had already been set forth in Swain v. Alabama, supra, wherein the United States Supreme Court held that in order to establish a case of purposeful discrimination, “the defendant must show ... the prosecutor’s systematic use of peremptory challenges against Negroes over a period of time.” 380 U.S. at 227, 85 S.Ct. at 839. Batson reprised this equal protection right, merely shifting the evidentiary burden to the State to rebut a defendant’s prima facie case of purposeful discrimination. See Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 2881, 92 L.Ed.2d 199 (1986). We do not find the claim was so novel that appellant’s failure to object may be excused. Ergo, we hold that, under the caselaw of this State, appellant may not raise Batson error for the first time on appeal, when there is nothing in the record which would allow him to show purposeful discrimination, or even an objection. What may be a “small step” for appellant would unquestionably amount to a “giant leap” for this Court. The court below did not err by refusing to abate the appeal and remand the case for a Batson hearing. Accordingly, the judgment of the court of appeals is affirmed.⁴

1 . See especially Arthur Lee Williams v. State, 731 S.W.2d 563, at 564 (Tex.Cr.App.1987), on remand for further consideration of disposition of ground six on original submission, 682 S.W.2d 538, at 543 (Tex.Cr.App.1984), after which we stayed mandate on motion filed October 25, 1984, by same counsel who tried the instant cause in November 1985. See also, e.g., Keeton v. State, 724 S.W.2d 58 (Tex.Cr.App.1987) DeBlanc v. State, 732 S.W.2d 640 (Tex.Cr.App.1987).

2 . Although the State asserts that under federal law, Batson error may not be raised on collateral attack, Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986), the State has misconstrued the holding there. In Griffith, supra, the Supreme Court held that Batson was to be applied retroactively to all cases, state or federal, pending on direct review or not yet final when the Batson opinion was handed down. Allen v. Hardy, decided before the Court's opinion in Griffith, merely held that Batson was not to be applied retroactively on collateral review of convictions that became final before that opinion was announced. (This holding was recently reaffirmed by the Supreme Court in Teague v. Lane, — U.S.-, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)). Clearly, that is not the situation here. Therefore, questions of preservation aside, the appellant would be permitted to raise this issue in an application for writ of habeas corpus.

3 . This is unlike the situation in Chambers, where Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 error was the issue; unquestionably, that case established a new constitutional violation.

4 . We find it unnecessary to invoke cases from other state courts in support of our holding, as the State urges in its brief. For example, without extensive research, we do not perceive the Arizona Supreme Court's meaning of “fundamental error" when it holds “a Batson issue does not present fundamental error, and a failure to raise it cannot be excused on that ground." Williams v. State, No. 69,582 (Tex.Cr.App.1989, delivered June 22, 1988), quoting State v. Holder, 155 Ariz. 83, 745 P.2d 141 (1987).