Townsend v. State

730 S.W.2d 24, 1987 Tex. App. LEXIS 6666

• Court: Court of Appeals of Texas
• Decided: March 17, 1987
• Docket: 6-86-059-CR
• Status: Published

Opinions

BLEIL, Justice.

Donnell Townsend appeals his conviction for burglary of a building. He contends that the prosecutor’s use of peremptory strikes to remove all eight black persons from the jury panel violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution. We find no violation of his rights and affirm.

On April 28, 1986, the prosecutor and defense counsel conducted a brief voir dire examination of the jury panel. The prosecutor asked only one question of an individual, who was not a black person. Subsequently, the prosecutor used eight of the ten peremptory challenges to strike all of the black persons eligible for service on the jury.

Before the jury was sworn, Townsend moved for a mistrial on the basis that the State peremptorily challenged all blacks eligible for service on the jury because they were black and that this precluded a fair trial. Thereafter, the prosecutor testified regarding the State’s exclusion of black persons from this jury. At the conclusion of the prosecutor’s testimony, the trial court denied the motion for mistrial.

On appeal, Townsend contends that the trial court erred by not granting a mistrial after he had made a prima facie showing of racial discrimination by the State in jury selection. Townsend relies on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).¹ In Batson, the prosecutor used peremptory challenges to remove all four black persons on the jury panel and an all-white jury was selected to try the black defendant. Relying on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Kentucky Supreme Court affirmed the subsequent conviction. On certiorari, the United States Supreme Court reversed and remanded, reaffirming the principle that a denial of equal protection under U.S. Const, amend. XIV occurs when a state puts a black defendant on trial before a jury from which blacks have been purposefully ex-eluded. Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 25 L.Ed. 664 (1880). Although a defendant has no right to a jury composed wholly or partly of persons of his own race, the equal protection clause guarantees that the state will not exclude members of the defendant’s race from the jury solely because of race. Batson v. Kentucky, supra. A defendant may establish a prima facie case of purposeful discrimination in the selection of the jury based solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. Batson v. Kentucky, supra.

To establish a prima facie case, a defendant must show that he is a member of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove persons of the defendant’s race from the jury panel. And, the defendant must show facts that raise an inference that the prosecutor used that practice to exclude persons from the jury because of race. Once the defendant makes a prima facie showing, the burden shifts to the State to give neutral explanations for challenging all black jurors. The explanations, however, need not rise to the level justifying exercise of a challenge for cause. Batson v. Kentucky, supra.

A new rule for conducting criminal prosecutions is to be applied retroactively to all cases pending on direct review or not yet final. Griffith v. Kentucky, 479 U.S. -, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). The Court directly applied the decision to Batson. Thus, Batson applies to the case before us.

The prosecutor testified about the use of peremptory challenges to remove all eight blacks from the jury. The prosecutor denied that race was the sole criterion for the strikes and testified that she had seated a black juror on the criminal case immediately preceding this one. She said that many of the blacks on the jury panel were young and that she tended to strike young persons in favor of those who have longer ties with the community. She further testified that she considered oral responses, appearances, and the way prospective jurors reacted to the defense counsel.

The prosecutor gave the following reasons for striking the prospective jurors: a lack of eye contact and attentiveness and no development of a back-and-forth relationship during voir dire; a short term of employment; a single person with no children who lacked jury experience; an indefinite answer on the personal data form; a response not as favorable as from other jurors; an asking of unusual questions in earlier jury selections; an illegible information sheet; and a lack of information about the jury panel member because she was not initially expected to be eligible for the jury.

Townsend contends that he made a prima facie showing of racial discrimination by the State in the jury selection process. The State concedes in its brief that Townsend is a member of cognizable racial group. The State also concedes that all eight black persons on the panel who would have been eligible to serve on the jury were peremptorily challenged by the State. Townsend argues that these facts raise an inference that the State used the strikes to exclude blacks from the jury because of their race, and that the burden then shifted to the State to offer neutral explanations for challenging the black persons on the jury panel.

Townsend presented no evidence to the trial court which supported the required inference that peremptory strikes were used to exclude black persons from the panel because of their race. The prosecutor did select a black person to serve on the jury in the case immediately preceding this one, and this tends to negate claims that the prosecutor’s peremptory strikes in this case were racially motivated. See Keeton v. State, 724 S.W.2d 58 (Tex.Crim.App.1987).

Trial judges, experienced in supervising voir dire, can decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima fa-cie case of discrimination against black jurors. Townsend fails to conclusively show purposeful discrimination by the State in its use of peremptory challenges during the jury selection. The trial court could have overruled appellant’s motion for mistrial because it did not find that appellant had made a prima facie showing of discrimination under Batson. Or, the court could have overruled the motion because it found that the State’s neutral explanations rebutted appellant’s prima facie showing of purposeful discrimination. In either instance, we do not find that the trial court’s action was erroneous.

We affirm the trial court’s judgment.

1 . This decision was handed down on April 30, 1986, two days after the jury in this case was selected.