Miller v. State of Texas

741 S.W.2d 501, 1987 Tex. App. LEXIS 8166

Opinions

OPINION

NYE, Chief Justice.

In a consolidated jury trial appellant was convicted of four aggravated assaults prior to the Supreme Court’s decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). On appeal, appellant complained to us that he had been denied a fair trial because the State used peremptory strikes to exclude members of appellant’s race from the petit jury solely on account of their race. As Batson was held to apply retroactively, Griffith v. Kentucky, — U.S. —, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Henry v. State, 729 S.W.2d 732 (Tex.Crim.App., 1987), we decided to abate these appeals with instructions to the trial court to conduct a proper Bat-son — type hearing and to file findings of fact and conclusions of law pursuant to Keeton v. State, 724 S.W.2d 58 (Tex.Crim.App.1987), 733 S.W.2d 287.

The trial court, in accordance with our instructions to conduct a hearing and make fact findings concerning the existence of racial discrimination, concluded that appellant had established purposeful discrimination against members of his race on the venire panel. The trial court found that the prosecutor exercised seven of his ten peremptory strikes against members of appellant’s race; that the explanations the prosecutor gave for striking five of the seven jurors were neutral and credible; that the prosecutor’s explanations for striking the other two jurors were not credible; and that the prosecutor purposefully discriminated to exclude from the jury at least one member of appellant’s race.

Based on the trial court’s findings, and after carefully reviewing the entire record, we now determine that appellant was denied a fair trial in violation of the equal protection clause of the fourteenth amendment. Therefore, the judgments of the trial court are REVERSED and the causes are REMANDED for a new trial.