Newsome v. State

Court of Appeals of Texas

Newsome v. State

771 S.W.2d 620, 1989 Tex. App. LEXIS 1685, 1989 WL 70145

CourtCourt of Appeals of Texas

DecidedMay 8, 1989

Docket05-87-00276-CR

StatusPublished

Cited by7 cases

This text of 771 S.W.2d 620 (Newsome 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.

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Newsome v. State, 771 S.W.2d 620, 1989 Tex. App. LEXIS 1685, 1989 WL 70145 (Tex. Ct. App. 1989).

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Opinions

THOMAS, Justice.

A jury convicted Larry Donnell New-some of aggravated sexual assault and assessed punishment, enhanced by one prior felony conviction, at life imprisonment. In an unpublished opinion, this Court held that the evidence was sufficient to support the conviction, but that the cause must be remanded for a hearing, in light of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to determine whether the State discriminated when it used its peremptory challenges to excuse black venire-members.² The record of the hearing has been forwarded to this Court for review as requested. Newsome has filed a supplemental brief, contending that the trial court erred when it denied his request to cross-[621]*621examine the prosecutor. We agree. Consequently, we again abate this appeal and remand for a Batson hearing at which Newsome should be given an opportunity to cross-examine the State’s witness.

At the Batson hearing in this cause, Newsome’s attorney stated for the record that Newsome is black and that the prosecutor used five peremptory challenges to excuse black prospective jurors. He also pointed out other facts which might raise an inference of discrimination. After defense counsel spoke, the State informed the court, “We do have some questions of him.” The court then went off the record. After returning to the record, the State did not again request permission to question defense counsel. At the court’s request, the State and Newsome presented argument on whether Newsome had raised an inference of discrimination. The court concluded that Newsome had raised an inference of discrimination and asked the State to come forward with any neutral explanations for its use of the strikes.

The assistant district attorney who had participated in jury voir dire at the New-some trial was called to the witness stand. He was questioned by another assistant district attorney. The allegedly neutral explanations were thus offered in a question and answer format. After the witness testified, the trial court posed two questions, asking generally for a reaffirmance of two of the reasons given for peremptory challenges. At the conclusion of this direct testimony, defense counsel asked to cross-examine the witness, but the trial court denied the request. Defense counsel objected to this prohibition against cross-examination as a denial of Newsome’s right to a fair trial and to effective assistance of counsel.

The trial court, in its findings of facts and conclusions of law, concluded that Newsome had established a prima facie case of discrimination, but that the State had offered racially neutral reasons for its strikes. Thus, Newsome had failed to establish purposeful discrimination in the State’s use of its peremptory challenges. See Batson, 106 S.Ct. at 1723-24.

Newsome contends that cross-examination is a matter of right and is essential to a fair trial. In Williams v. State, 767 S.W.2d 872, 876-77 (Tex.App.—Dallas 1989, n.p.h.) (en banc), this Court held that a Batson movant has the right to question the prosecutor concerning his racially neutral reasons for striking minority venire-members. Because Newsome was denied this right, we abate this appeal and remand this case so that Newsome 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.

LAGARDE, Justice, dissents.

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THOMAS, Justice.

A jury convicted Larry Donnell New-some of aggravated sexual assault and assessed punishment, enhanced by one prior felony conviction, at life imprisonment. In an unpublished opinion, this Court held that the evidence was sufficient to support the conviction, but that the cause must be remanded for a hearing, in light of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to determine whether the State discriminated when it used its peremptory challenges to excuse black venire-members.² The record of the hearing has been forwarded to this Court for review as requested. Newsome has filed a supplemental brief, contending that the trial court erred when it denied his request to cross-[621]*621examine the prosecutor. We agree. Consequently, we again abate this appeal and remand for a Batson hearing at which Newsome should be given an opportunity to cross-examine the State’s witness.

At the Batson hearing in this cause, Newsome’s attorney stated for the record that Newsome is black and that the prosecutor used five peremptory challenges to excuse black prospective jurors. He also pointed out other facts which might raise an inference of discrimination. After defense counsel spoke, the State informed the court, “We do have some questions of him.” The court then went off the record. After returning to the record, the State did not again request permission to question defense counsel. At the court’s request, the State and Newsome presented argument on whether Newsome had raised an inference of discrimination. The court concluded that Newsome had raised an inference of discrimination and asked the State to come forward with any neutral explanations for its use of the strikes.

The assistant district attorney who had participated in jury voir dire at the New-some trial was called to the witness stand. He was questioned by another assistant district attorney. The allegedly neutral explanations were thus offered in a question and answer format. After the witness testified, the trial court posed two questions, asking generally for a reaffirmance of two of the reasons given for peremptory challenges. At the conclusion of this direct testimony, defense counsel asked to cross-examine the witness, but the trial court denied the request. Defense counsel objected to this prohibition against cross-examination as a denial of Newsome’s right to a fair trial and to effective assistance of counsel.

The trial court, in its findings of facts and conclusions of law, concluded that Newsome had established a prima facie case of discrimination, but that the State had offered racially neutral reasons for its strikes. Thus, Newsome had failed to establish purposeful discrimination in the State’s use of its peremptory challenges. See Batson, 106 S.Ct. at 1723-24.

Newsome contends that cross-examination is a matter of right and is essential to a fair trial. In Williams v. State, 767 S.W.2d 872, 876-77 (Tex.App.—Dallas 1989, n.p.h.) (en banc), this Court held that a Batson movant has the right to question the prosecutor concerning his racially neutral reasons for striking minority venire-members. Because Newsome was denied this right, we abate this appeal and remand this case so that Newsome 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.

LAGARDE, Justice, dissents.

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771 S.W.2d 620, 1989 Tex. App. LEXIS 1685, 1989 WL 70145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newsome-v-state-texapp-1989.

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