Seubert v. State

787 S.W.2d 68, 1990 Tex. Crim. App. LEXIS 49, 1990 WL 37566

• Court: Court of Criminal Appeals of Texas
• Decided: April 4, 1990
• Docket: 535-88, 536-88
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

In a joint trial, a jury convicted appellant of aggravated sexual assault and attempted aggravated kidnapping and assessed punishment at 40 years imprisonment for the former offense and five years for the latter. The Court of Appeals reversed appellant’s conviction and remanded to the trial court. Seubert v. State, 749 S.W.2d 585 (Tex.App.-Houston [1st Dist.] 1988). In reversing, the Court of Appeals held:

“We hold that Peters v. Kiff[, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972)] gives a white defendant the right to challenge the State’s peremptory strike of a black venire member; that under Batson [ft Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ], the State was required to make a racially neutral explanation for striking Mr. Oliver; that the record does not rebut the inference that the State struck Oliver because he was black; and that the error has not been shown to be harmless by evidence that the jury selected was fairly representative.” Seubert, 749 S.W.2d at 588-89.

We granted the State’s Petition for Discretionary Review to determine whether a defendant has a Sixth Amendment right to a petit jury that represents a fair-cross section of the community and to resolve the conflict on this question between the Second and Seventh Courts of Appeals. See Easter v. State, 740 S.W.2d 107 (Tex.App.-Amarillo 1987); Mead v. State, 759 S.W.2d 437 (Tex.App.-Fort Worth 1988).

In the reasoning leading to the holding the Court of Appeals eschewed any attempt to ground their decision on Batson’s equal protection grounds relying instead on Peters v. Kiff and Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 701-02, 42 L.Ed.2d 690 (1975). Seubert, 749 S.W.2d at 588. The Court of Appeals adopted procedural aspects of Batson. Seubert, 749 S.W.2d at 588. The Court, however, carefully pointed out that appellant could not meet the “same race” requirement of Bat-son. Thus, the Court of Appeals decision will stand or fall based on the validity of appellant’s Sixth Amendment right to a petit jury that is representative of the community.

This issue was decided adversely to the Court of Appeals decision in Holland v. Illinois, — U.S. -, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990). In that case the United States Supreme Court considered Petitioner’s invitation to incorporate into the Sixth Amendment the test devised in Batson which permits defendants to establish a prima facie violation of the Equal Protection Clause when a prosecutor challenges jurors solely on account of their race. In Holland, Petitioner, who was white, complained that the exclusion of blacks from his jury through the exercise of the State’s peremptory challenges, excluded a distinctive group in the community from representation on his jury. Holland, — U.S. at -, 110 S.Ct. at 805. The Court rejected petitioner’s fundamental thesis that the State’s use of peremptory challenges to eliminate a distinctive group in the community deprives a defendant of a Sixth Amendment right to the “fair possibility” of a representative jury. The Court squarely held:

“A prohibition upon the exclusion of cognizable groups through peremptory challenges has no conceivable basis in the text of the Sixth Amendment, is without support in our prior decisions, and would undermine rather than further the constitutional guarantee of an impartial jury.” Holland, — U.S. at -, 110 S.Ct. at 806.

Relying primarily on Strauder v. West Virginia, 100 U.S. 303 (1880), Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) and Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986), Justice Scalia, writing for the majority, carefully distinguished the difference between the fair cross section requirement applied to the venire from which the petit jury is drawn and the makeup of the petit jury itself. The Court reaffirmed its commitment to the fair-cross-section requirement, applied to the venire from which the petit jury is drawn, as fundamental to the jury trial guaranteed by the Sixth Amendment. Holland, — U.S. at-, 110 S.Ct. at 806 citing Taylor, 419 U.S. at 530, 95 S.Ct. at 697. The Court, however, emphatically rejected any fair-cross-section requirement applicable to pet-it juries. The Court explained that it should be:

“emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition.” Holland, — U.S. at -, 110 S.Ct. at 809 citing Taylor, 419 U.S. at 538, 95 S.Ct. at 702.

And as Justice Scalia explained, the Court had continued to adhere to the no fair-cross-requirement as applicable to petit juries in Lockhart because “we have never invoked the fair-cross-section principle to invalidate the use of either for-cause or peremptory challenges to prospective jurors, or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large.” Holland, — U.S. at-, 110 S.Ct. at 809, citing Lockhart, 476 U.S. at 178, 106 S.Ct. at 1767. In addition, the theory underlying the decision in Holland found its underpinnings in Lockhart. The Court explained:

“The fundamental principle underlying today’s decision is the same principle that underlay Lockhart, which rejected the claim that allowing challenge for cause, in the guilt phase of a capital trial, to jurors unalterably opposed to the death penalty (so-called “Witherspoon [v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)] — excludable”) violates the fair-cross-section requirement. Holland, — U.S. at -, 110 S.Ct. at 809 citing Lockhart, 476 U.S. at 178, 106 S.Ct. at 1767.

Lockhart and in turn, Holland, are bottomed on the principle that selection of an impartial jury through the use of peremptory strikes is constitutionally permissible. The decision in Holland also rested on the constitutional guarantee promising jury impartiality to both contestants and the Holland majority opined that the goal of impartiality “would positively be obstructed by a petit jury cross-section requirement which, as we have described would cripple the device of peremptory challenge.” Holland, — U.S. -, 110 S.Ct. at 809.

Turning now to the instant case we again note that the Court of Appeals based its holding on the due process decision in Peters v. Kiff and on the Sixth Amendment right to a venire selected from a fair-cross-section of the community enunciated in Taylor v. Louisiana. Seubert, 749 S.W.2d at 588. Under Holland, appellant has no Sixth Amendment right to a petit jury that is fairly representative of the community. We reverse the Court of Appeals and affirm the trial court.