Vargas v. State

838 S.W.2d 552, 1992 WL 139302, 1992 Tex. Crim. App. LEXIS 166
CourtCourt of Criminal Appeals of Texas
DecidedJune 24, 1992
Docket1507-89
StatusPublished
Cited by235 cases

This text of 838 S.W.2d 552 (Vargas v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vargas v. State, 838 S.W.2d 552, 1992 WL 139302, 1992 Tex. Crim. App. LEXIS 166 (Tex. 1992).

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

BENAVIDES, Judge.

A jury convicted appellant of unlawful delivery of a controlled substance. The court found two enhancement paragraphs true and assessed punishment at confinement for thirty-five (35) years. The Court of Appeals affirmed the conviction. Vargas v. State, 781 S.W.2d 356 (Tex.App.— Houston [1st] 1989). We granted appellant’s petition for discretionary review to consider whether the State’s use of its peremptory challenges violated appellant’s right of due process under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

In Batson the United States Supreme Court reaffirmed that the State’s purposeful use of peremptory challenges in a racially discriminatory manner violates the equal protection clause of the fourteenth amendment. The Court outlined a new method of showing such discrimination. Once a defendant makes a prima facie showing of the State’s discriminatory use of peremptory challenges, the burden shifts to the State to give a neutral explanation for the peremptory challenges. The Supreme Court emphasized that this explanation must be clear and reasonably specific. General assertions that a prosecutor’s reasons are not discriminatory or that the challenged venireperson would be partial to the defendant because of their shared race are not sufficient to rebut a prima facie case.

The record reflects that after the jurors were selected but before they were sworn, defense counsel objected to the State’s use of its peremptory challenges to strike five of six blacks on the venire. At the trial court’s request the prosecutor proffered his response to defense counsel’s objection setting forth the reasons for his strikes. The prosecutor did so.

The Court of Appeals characterized the prosecutor’s reasons for his strikes as “racially neutral, albeit weak.” Citing Keeton v. State, 749 S.W.2d 861 (Tex.Cr.App.1988), the court examined the evidence in the light most favorable to the trial court’s rulings and upheld the ruling because it was supported by the record. The court noted that other than his initial objection, appellant did nothing further to prove his allegations that the prosecutor had exercised his peremptory strikes in a racially discriminatory manner and did not show that the prosecutor’s neutral explanations were merely pretextual. The Court of Appeals refused to consider appellant’s argument, made for the first time on appeal, that a comparison of the white venireper-sons that the State did not strike with the black venirepersons that the State struck showed some white venirepersons with characteristics similar to the black venire-persons.

Appellant contends that the Court of Appeals erred in holding that footnote 6A in Tompkins v. State, 774 S.W.2d 195, 202 (Tex.Cr.App.1987), precluded a comparison analysis between white venirepersons who were not struck and black venirepersons who were struck. Appellant also contends that even if the comparison analysis is not utilized, the prosecutor’s stated reasons are racially discriminatory under so-called objective standards such as those discussed in Keeton. It is to this latter contention we turn first.

As the Court of Appeals stated, in Kee-ton a majority of this Court held that an appellate court should review a Batson issue by viewing the evidence in the light most favorable to the trial judge’s rulings and determining if those rulings are supported by the record. A plurality of this Court sought to further define the applicable appellate standard of review in Batson cases. In Whitsey v. State, 796 S.W.2d 707 (Tex.Cr.App.1990) (opinion on rehearing), the plurality adopted the “clearly erroneous standard” as an extension of the “supported by the record” standard. Id. at [554]*554712.1 The plurality also stated that the “supported by the record” standard “is actually an analytical tool used in determining whether a trial judge’s findings of fact are clearly erroneous or should be accorded great deference.” Id. at 740. The analysis is essentially the same under any of these standards.

In Hernandez v. New York, — U.S. -, 111 S.Ct. 1859, 114 L.Ed.2d 395 (delivered May 28, 1991), a majority of the United States Supreme Court held that Batson claims, whether from federal or state courts, are to be analyzed under a “clear error standard of review.” Id. at -, 111 S.Ct. at p. 1871. The Court emphasized the factual nature of Batson inquiries stating:

Batson’s treatment of intent to discriminate as a pure issue of fact, subject to review under a deferential standard, accords with our treatment of that issue in other equal protection cases, [citations omitted]
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Deference to trial court findings on the issue of discriminatory intent makes particular sense in this context because, as we noted in Batson, the finding will ‘largely turn on evaluation of credibility.’ 476 U.S., at 98, n. 21 [106 S.Ct. at 1724, n. 21]. In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies ‘peculiarly within a trial judge’s province.’ [citation omitted]

Id. at -, 111 S.Ct. at p. 1869. The Court discounted a claim that caselaw indicated an appellate court should make an independent review of the facts involved in a Bat-son contention. The Court noted that proper deference was shown to state court factual determinations when a reviewing court was not left with a “ ‘definite and firm conviction that a mistake has been committed.’ United States v. United States Gypsum Co., supra, [333 U.S. 364] at 395 [68 S.Ct. 525, at 542, 92 L.Ed. 746 (1948)].” Id. at p. -, 111 S.Ct. at p. 1871.

We apply this “clear error standard of review” as explained in Hernandez. We apply this standard by reviewing the record, including the voir dire and the racial makeup of the venire, the prosecutor’s neutral explanations, and appellant’s rebuttal and impeaching evidence.

Appellant’s contention that the objective factors discussed in Keeton control the analysis is not correct. These factors certainly may be considered in evaluating the trial judge’s overruling of a Batson claim, but they are not determinative. The overriding standard is still whether the trial judge’s decision was supported by the record so that it is not clearly erroneous. Appellant relies upon three of these objective factors to contend that the prosecutor’s reasons for his strikes were not shown to be racially neutral.

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Cite This Page — Counsel Stack

Bluebook (online)
838 S.W.2d 552, 1992 WL 139302, 1992 Tex. Crim. App. LEXIS 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vargas-v-state-texcrimapp-1992.