Silva v. State

800 S.W.2d 912, 1990 Tex. App. LEXIS 3167, 1990 WL 255555
CourtCourt of Appeals of Texas
DecidedOctober 24, 1990
Docket04-89-00415-CR
StatusPublished
Cited by18 cases

This text of 800 S.W.2d 912 (Silva 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
Silva v. State, 800 S.W.2d 912, 1990 Tex. App. LEXIS 3167, 1990 WL 255555 (Tex. Ct. App. 1990).

Opinions

OPINION

BUTTS, Justice.

This is an appeal from a conviction for voluntary manslaughter with punishment assessed at ten years’ imprisonment.

There are two points of appeal, both contending error occurred during trial. The first is that the trial court erred by denying appellant’s Batson v. Kentucky1 challenge to the State’s exclusion from the jury of persons of Hispanic surname.

After the peremptory strike lists of appellant and the prosecution were completed 2, appellant obtained a hearing based on the prosecution striking persons with Hispanic surnames from the jury venire, which resulted in an all white petit jury. The court conducted a Batson hearing. See also TEX. CODE CRIM PROC.ANN. art. 35.261 (Vernon 1989).

In Batson the United States Supreme Court held that the Equal Protection Clause forbids a prosecutor from challenging potential jurors solely on account of their race or on the assumption that jurors of the same race as a defendant, as a group, will be unable impartially to consider the State’s case against that defendant. Dewberry v. State, 776 S.W.2d 589, 590 (Tex.Crim.App.1989). The defendant must first show he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. The defendant must further 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 impaneling of the petit jury raises the necessary inference of purposeful discrimination. See Dewberry v. State, 776 S.W.2d at 590, citing Batson 476 U.S. at 96, 106 S.Ct. at 1722.

The court, in Tomkins v. State, 774 S.W.2d 195 (Tex.Crim.App.1987), aff'd, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989), stated that a prima facie case represents the minimum quantum of evi[914]*914dence necessary to support a rational inference that the allegation of fact is true. Id. at 201. Once the defendant establishes a prima facie case, the burden shifts to the State to come forward with a neutral explanation of why its peremptory strikes were used on persons of the defendant’s race. The explanation need not rise to the level of justifying the exercise of a challenge for cause, however, the prosecutor must articulate a neutral explanation related to the particular case to be tried. See Batson, 476 U.S. at 97-98, 106 S.Ct. at 1723-24. The trial court then will have the duty to determine if the defendant has established purposeful discrimination. Id. at 98, 106 S.Ct. at 1724.

The Batson court emphasized that a finding of intentional discrimination is a finding of fact. A reviewing court ordinarily should give findings by the trial judge great deference since they turn largely on evaluation of credibility. Id. at 98, note 21, 106 S.Ct. at 1724, note 21. Accord Keeton v. State, 749 S.W.2d 861, 870 (Tex.Crim.App.1988). “[The focus of the trial judge, as well as the appellate court] should be on whether purposeful discrimination was established. We will of course consider the evidence in the light most favorable to the trial judge’s rulings and determine if those rulings are supported by the record. If the record supports the findings of the trial judge, they will not be disturbed on appeal.” Keeton, 749 S.W.2d at 870.

In this case the trial court did not make findings of fact. However, by overruling the motion for a determination of purposeful discrimination, the court impliedly found there was none. We will review the record accordingly.

The strike lists in our record reflect that the defendant struck one Hispanic and exercised all 10 peremptory strikes, with two of them exercised on unreached potential jurors (outside the final panel). The State’s strike list shows it exercised all 10 peremptory strikes, four of them on Hispanic veniremen who were encompassed within the final panel and two on Hispanic veniremen who were not reached. The State struck three white veniremen who were reached on the panel and one who was not reached. The strike lists reflect three “double” strikes by appellant and the State, all on white veniremen with two above the cut-off place, and one below.

Although a prosecutor ordinarily is entitled to exercise permitted peremptory-challenges for any reason at all as long as that reason is related to his view concerning the outcome of the case to be tried, he may not do so solely on account of race on the assumption that Hispanic jurors will be unable to impartially consider the State’s case against a Hispanic defendant. Batson, 476 U.S. at 97, 106 S.Ct. at 1723.

In the present case the prosecutor offered his explanation of the use of peremptory strikes which excluded venireper-sons of the same race as the defendant. He testified that the strikes were based primarily on the age of the veniremen. “I struck, with the exception of one juror, every juror below the age of thirty because ... from my experience as a prosecutor and defense lawyer ... older jurors are generally more likely to be prosecution minded or favorable to the prosecution.” He gave the recorded age of veniremen struck by him. They were: 1. Bueno, age 24; 2. Shaper (white), age 22 (double strike); 3. Reed (white), age 28; 4. Campos, age 27; 5. Nieto, age 22 (a student at Gary Job Corps—the prosecutor said it was his experience that some people with criminal records or problems with authorities have been students there); 6. Mitchell, age 25 (white, a double strike who was not reached on the panel); 7. Castillo, age 25; 8. Lea Ann Miller Rodriguez (white, married to Hispanic), age 25; 9. Guinn (white, “didn’t like his looks”—a double strike also); 10. Casarez, age 47. The prosecutor said he made this strike because “he is currently unemployed. Unemployed people are less likely to be sympathetic to the [915]*915prosecution. In addition, I elicited during voir dire the fact that he is unemployed, and I believe I embarrassed him in front of the rest of the jury panel, and he would not be disposed to be favorable to me.”

He stated he did not strike one juror, Peterson, age 28, because “I know him personally. And I also know he works for the City of Schertz and has worked there a long time. I kept him because he is employed by a public entity. I know him to be of a good reputation. My practice has been to strike jurors [less than thirty years of age] unless I know them or their family or know of them.”

On cross-examination the prosecutor was asked only one question: whether Peterson was the only juror on the jury under thirty years old. The answer was that was the only one the prosecutor was “aware of that I did not strike.” The record reflects that, in fact, Peterson was the only juror under the age of thirty. There was therefore no resulting impeachment by the question and answer. The appellant presented no other evidence.

The finding of the trial court is based on the credibility of the prosecutor, content of the explanation, and all the other surrounding facts and circumstances.

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Silva v. State
800 S.W.2d 912 (Court of Appeals of Texas, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
800 S.W.2d 912, 1990 Tex. App. LEXIS 3167, 1990 WL 255555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silva-v-state-texapp-1990.