Young v. State

OPINION DENYING STATE’S MOTIONS FOR REHEARING

MILLER, Judge.

The State Prosecuting Attorney’s Office and the Dallas County District Attorney’s Office have each filed a motion for rehearing in this cause. In its motion, the State Prosecuting Attorney alleges the court of appeals, when reviewing a Batson1 claim, is not required to engage in a comparative analysis of the differences between the peremptorily challenged prospective jurors and those not so challenged when the defendant failed to present any such evidence at trial.2 The District Attorney contends in his motion that this Court erred “in failing to recognize that evidence brought forward for the first time on appeal may be considered in determining the legal sufficiency of the prosecutor’s explanation, but should not be considered in determining the prosecutor’s credibility.” Implicitly alleged in these motions for rehearing is that this Court should grant the motions in part to resolve a perceived conflict between the holding in this case on original submission, see p. 141, and this Court’s holding the following week in McNairy v. State, 1991 WL 105620 (Tex.Crim.App. No. 1407-89, *150delivered June 19, 1991). The State’s motions for rehearing will be denied for three interrelated reasons: (1) the Court’s holding on original submission in Young was consistent with general rules for preservation of claims for appellate review; (2) we continue to adhere to the reasoning in the majority opinion on original submission and see no conflict between the holdings in Young and McNairy; and (3) our ruling on original submission encourages equity in the rules of preservation of error.

On original submission in this case, the Court held that the appellant was not required to request the trial judge to make his findings and conclusions upon the Bat-son motion based upon a comparative analysis in order to have that same evidence considered on direct appeal. See p. 146. By contrast, in McNairy, which presented a search issue, the Court concluded the appellant procedurally defaulted his claims on appeal concerning the facial invalidity of the affidavit in support of the search warrant, and the search of the trailer home pursuant to the search warrant being invalid as a continuation of a prior illegal search. The claims were defaulted because, at the pretrial hearing in that cause, the appellant failed to object to the State’s introduction of the affidavit and search warrant, and the appellant made no attempt to demonstrate the facial invalidity of the affidavit and warrant or argue the later search of the trailer home was invalidated by the alleged prior illegal search. See pp. 146-147.

The holding in Young was largely a result of the substantive and procedural aspects of a Batson claim. When a defendant lodges an objection based upon Bat-son, he calls into question the motivation behind the prosecutor’s peremptory challenges; that is, whether the prosecutor engaged in purposeful racial discrimination in the exercise of his peremptory challenges. This Court has never required that a sufficient Batson objection include a comparison by the defendant of the prosecutor’s questioning of the challenged and unchallenged prospective jurors. Indeed, as a general rule, a sufficient objection need only be specific enough to apprise the trial judge of the complaint. The complaining party must state the specific ground for the objection, but only if the ground was not apparent from the context. Tex.R.App. Proc. 52(a). See generally Lankston v. State, 827 S.W.2d 907 (Tex.Crim.App.1992); Zillender v. State, 557 S.W.2d 515 (Tex. Crim.App.1977); and Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991).3 A comparative analysis is not necessary to apprise the trial court that the defendant is asserting an objection to the State’s jury selection based upon Batson and thus is not necessary to preserve a Batson claim for appellate review.

Moreover, a comparative analysis is not a new or different legal theory, from the Batson claim asserted in the trial court, upon which a defendant seeks relief on appeal. As stated on original submission, the comparative analysis is merely the argument accompanying the Batson claim. See p. 145. The legal theory which the defendant asserts during the voir dire process, that the prosecutor has engaged in purposeful racial discrimination, is the same legal contention raised on appeal. The comparative analysis is but an analytical tool that the appellant uses on appeal to show that the trial judge’s ruling on his Batson claim was not supported by the *151voir dire record and thus was clearly erroneous; it is not the legal theory upon which relief is sought. The legal claim is the same at trial and on appeal: the State used racially motivated peremptory challenges during its jury selection.

In this regard, the holding in McNairy is distinguishable. There the defendant moved to suppress methamphetamine seized during the search of his trailer home. At the pretrial hearing on the motion, the defendant argued “primarily the extent and validity of the consent given by [his] landlord, and whether [the police officers] had sufficient justification for entering the trailer to ‘secure’ the premises.” Slip op. at p. 3, n. 1. The defendant presented no evidence and no argument at the hearing regarding the validity of the affidavit supporting the search warrant or the warrant itself. Thus, when he raised these claims on appeal, the court of appeals held the claims advanced on appeal did not comport with the arguments made at the pretrial hearing, and nothing was presented for review regarding the affidavit and search warrant. This Court upheld that decision. Slip op. at p. 10. In McNairy the defendant violated the well-established rule that nothing is preserved for review where the defendant’s objection made in the trial court differs from the complaint made on appeal. See Rezac v. State, 782 S.W.2d 869, 870-71 (Tex.Crim.App.1990); Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App.1986), citing Hodge v. State, 631 S.W.2d 754, 757 (Tex.Crim.App.1982); Williams v. State, 549 S.W.2d 183, 187 (Tex.Crim.App.1977). There was no such violation in Young.

The majority opinion in Young also considered principles of equity and common sense in reaching its conclusion, although these principles played a lesser part in our holding than did the nature of the Batson claim or the general rules governing preservation of error on appeal. Past interpretations of these rules typically resulted in a favorable ruling for the prosecution. The result in Young ensures that the ends of justice are met.

On original submission, the majority opinion in Young noted the inconsistency, in just one instance, in this Court’s preservation of error rules. See p. 146, n. 8-9. That instance is found in Wilson v. State, 692 S.W.2d 661 (Tex.Crim.App.1984) (Opinion on State’s Motion for Rehearing), which held that the State could challenge for the first time on appeal a defendant’s standing to complain of an illegal search or seizure. This Court subsequently applied, even extended, that same rule in Boyle v. State, 820 S.W.2d 122, 141 (Tex.Crim.App.1991) (Opinion on State’s Motion for Rehearing), where the State contested for the first time, in a motion for rehearing on direct appeal, the appellant’s standing to assail the search of a truck. Pursuant to our discretionary authority, this Court considered the State’s assertion that the third party consent obtained from the owner of the trucking company was valid, thereby making the search of the appellant’s truck legal. 820 S.W.2d at 141.4

Another longstanding rule which aids the State on appeal is found in Spann v. State, 448 S.W.2d 128 (Tex.Crim.App.1969). The rule is:

When the trial court’s ruling on the admission of evidence is correct, though for a wrong or insufficient reason, it will not result in a reversal if it is admissible for any reason.

448 S.W.2d at 130.5 In Spann, the State was allowed to use for impeachment purposes the defendant’s oral statements which he made to the arresting officer regarding his shooting of two persons. The Court recognized the rule that incriminating statements made by an accused, while under arrest, which would not be admissible as original evidence, may not be used *152for impeachment. Id. at 129. Nevertheless, the Court noted that such statements may be admissible under the res gestae exception, and the Court concluded the defendant’s statements regarding the shooting were admissible as res gestae. Id. at 130. Thus, the Court did not reverse the defendant’s conviction, even though the defendant’s statements were improperly admitted, because the statements were admissible on another basis. What is troubling with this ruling is that there is nothing in the Court’s opinion which indicates the State even advanced the res gestae theory of admissibility at trial or on appeal.

The same was true in Miles v. State, 488 5.W.2d 790 (Tex.Crim.App.1972). In that case, the trial judge admitted into evidence the defendant’s oral statement that he “cut the boys,” referring to the victims of a stabbing incident. The statement was admitted as part of the res gestae of the offense. 488 S.W.2d at 791. On appeal of the murder conviction, this Court reviewed the evidence and decided the trial court had sufficient evidence to conclude the statement was res gestae of the arrest. Id. at 792. The trial judge’s error in admitting the evidence at trial for the wrong reason, however, was inconsequential because “[i]f the decision is correct on any theory of law applicable to the case, it will not be disturbed.” 6 Id. (citations omitted). Once again, nothing in the opinion suggested the State offered the correct legal theory for admissibility at either the trial or appellate level.

Consequently, this Court disagrees with the State’s position which would require a defendant to present a comparative analysis argument to the trial court to have those same facts and circumstances from the voir dire considered on appellate review of a Batson claim. Under our analysis, that evidence (e.g., the disparate treatment of venirepersons in the State’s jury selection) is before the trial judge during the voir dire process for his consideration on the Batson claim. Although a comparative analysis is not a necessary element of a Batson objection which must be made at the trial level or else be waived, it will have its greatest impact at the trial court level. See discussion at p. 144. With this comparative analysis, the defendant may, inter alia, present persuasive evidence of disparate treatment of venirepersons, show a pattern of peremptory strikes against minority venirepersons, discredit the credibility of the prosecutor, and call into question the racial neutrality of the prosecutor’s explanations for his peremptory challenges.

By contrast, the impact of the comparative analysis may be slight at the appellate level given the appellate standard of review for a Batson claim. The “clearly erroneous” standard of review accords great deference to the trial court’s findings and conclusions because these rulings are based in part upon a credibility determination which is not reviewable by the appellate court.7 The effectiveness of a comparative analysis is therefore lessened, yet it may be the only method by which the appellant can *153argue the circumstances of the voir dire examination, which are presented to the appellate court via the cold record, do not support the trial judge’s findings and conclusions. The appellate court does not consider the comparative analysis to decide whether the prosecutor’s explanations were believable, but rather looks to this evidence to determine whether the trial judge’s findings and conclusions are supported by the facts in the record.8

In sum, the comparative analysis is not only an analytical tool which a defendant may wield at trial to rebut a prosecutor’s facially racially neutral explanations for his peremptory challenges, but is also a tool which a defendant may use on appeal to argue the trial judge’s ruling is clearly erroneous. We reiterate that the comparative analysis is not a tool to be used by the appellate court to judge the credibility of the prosecutor, but rather a tool used when determining if the trial court’s decision was clearly erroneous. That determination remains solely within the domain of the trial judge as finder of fact at a Batson hearing.

In this case, the appellant Young did not violate any of our well-established rules regarding the adequacy of objections necessary to preserve a complaint for appellate review, and we are not persuaded to apply a more restrictive rule (as the dissent does on original submission) to the appellant in this cause, particularly in light of the past leniency this Court has afforded the State.

On the basis of the foregoing reasons, the State’s motions for rehearing are denied.

. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

. This same contention is raised in the State’s motion for rehearing in Henderson v. State, 156 S.W.2d 826 (Tex.Crim.App. 1991), which motion was also denied this day.

. Objections on the Batson issue have varied, as reflected in the first such cases to be addressed by this Court. In Henry v. State, 729 S.W.2d 732 (Tex.Crim.App. 1987), the defense counsel lodged the following objection:

Just for the record, Your Honor, we would respectfully point out that the defendant is black and that there are seven black persons in the array and would respectfully request the Court to instruct the District Attorney not to use his strikes, preemptory (sic) strikes, to eliminate members of any minority race. Such an attempt would be an improper use of preemptory (sic) challenges and we would respectfully request that the State not use all of its preemptory (sic) challenges just to strike members of any minority race.

Id. at 734-735.

In Keeton v. State, 724 S.W.2d 58 (Tex.Crim. App.1987), the record reflected that each time a black veniremember was struck from the panel by the State, defense counsel objected on the basis that the veniremember was the same race as the defendant. Id. at 64.

. By using Wilson and Boyle as examples of inconsistency in preservation of error rules I do not mean to imply that the holding in either case is incorrect. Rather, I cite these cases to encourage equitable treatment of the State and the appellant on waiver issues.

. Spann cites several authorities for the rule: 5 Tex.Jur.2d 606, Sec. 402; Boney v. State, 110 Tex.Cr.R. 371, 7 S.W.2d 961; Moreno v. State, 170 Tex.Cr.R. 410, 341 S.W.2d 455; Venable v. State, Tex.Cr.App., 397 S.W.2d 231.

. See also Dugard v. State, 688 S.W.2d 524, 530 n. 2 (Tex.Crim.App.1985), citing Sewell v. State, 629 S.W.2d 42 (Tex.Crim.App.1982) (panel opinion); Miles, 488 S.W.2d 790, and Spann, 448 S.W.2d 128, for this same principle.

. In Williams v. State, 804 S.W.2d 95 (Tex.Crim. App.1991) (Opinion on Remand), the trial court made its findings of fact and conclusions of law on the defendant’s Batson claim based upon the record established during the initial voir dire and the evidence adduced at the Batson hearing. 804 S.W.2d at 97. The evidence from the hearing consisted only of the prosecutor’s testimony as to why he struck each venireperson and local defense lawyers’ testimony that they were unaware of blacks serving on any juries in cases they had tried in Harris County. Id. at 102, 107.

In his brief on appeal, the appellant claimed that analysis of the prosecutor’s explanations revealed a "pattern of deception" and differences in the manner in which the prosecutor questioned the struck black venirepersons and the selected white venirepersons. Id. at 104. Apparently, from the opinion, appellant engaged in this comparative analysis for the first time on appeal from the Batson hearing. The appellant failed to show, however, the trial judge’s ruling was clearly erroneous in part because he made only “general allegations as to disparate treatment” and this was “insufficient to sustain his burden of persuasion." Id. at 107. The record from the voir dire of the challenged venirepersons supported the prosecutor’s explanations for his strikes against them and revealed a meaningful examination by him of each challenged person.

. Compare Emerson v. State, 820 S.W.2d 802 (Tex.Crim.App.1991), where the defendant employed a comparative analysis in the trial court to make a prima facie case of racial discrimination in the State’s use of its peremptory challenges. This Court held that the defendant’s "undisputed observations” of the State’s voir dire examination constituted valid proof in support of his prima facie case. Id., at 804.