Opinion
No. AP-74,574
Delivered: April 27, 2005. DO NOT PUBLISH.
On Direct Appeal from Cause No. 01-F-0387-102 in the 102nd Judicial District Court, Bowie County.
EN BANC.
OPINION
In February 2003, a jury convicted the appellant of a capital murder committed July 29, 2001. Pursuant to the jury's answers to the special issues set forth in Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial judge sentenced the appellant to death. Direct appeal to this Court is automatic. The appellant raises seven points of error. We abate and remand. In his fourth and fifth points of error, the appellant asserts that the trial court erred in ruling that he failed to make a prima facie showing that the State had exercised its peremptory strikes with a discriminatory purpose. He also asserts that harm must be presumed because Batson error is fundamental and not subject to a harm analysis. Under Batson, after the State uses a peremptory strike, and the appellant makes the appropriate objection, the appellant then carries the burden of establishing a prima facie case of discrimination. The burden then shifts to the State to give race-neutral reasons for the strike. However, the State is not required to give race-neutral reasons unless and until the defendant has established a prima facie case of discrimination. A prima facie case represents the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true. While the opponent of the strike carries the burden of establishing a prima facie case of discrimination, this burden is not onerous. A defendant is entitled to rely on the fact that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate. Using this fact, plus any other relevant circumstances, the defendant may raise an inference that the prosecutor used the practice to exclude the venire member because of race. In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. The appellant made the court aware that eleven of thirteen African-American venire members had been excused from service — five by State peremptory challenge and four by State's challenge for cause. This statistic was at least sufficient to support an inference of racial discrimination. Once the appellant established a prima facie case, the burden shifted to the State to offer a race-neutral explanation for the peremptory strikes. The trial court erred in failing to require the State to bring forth race-neutral reasons for its strikes against Venire Members Seymour, Drake, Nelson, and Talton. Having held that the trial court erred in ruling that the appellant failed to make a prima facie case on his challenges to the State's use of its peremptory strikes, we must now determine the remedy. The appellant claims that harm must be presumed because Batson error is fundamental and not subject to a harm analysis. Thus, he implies, his conviction must be reversed. We disagree. Instead, the appropriate remedy when an appellate court determines that the trial court erroneously ruled that a prima facie case had not been made is to abate of the appeal and remand for a full adversarial hearing. Therefore, we abate this appeal and remand the case to the trial court for a hearing regarding the State's use of peremptory strikes against the four challenged venire members. The record of that hearing, together with any findings of fact and conclusions of law derived therefrom, shall thereafter be forwarded to this Court for our review within 120 days of this opinion. IT IS SO ORDERED.
Tex. Code Crim. Proc. Art. 37.071, § 2(g).
Tex. Code Crim. Proc. Art. 37.071, § 2(h).
See Batson v. Kentucky, 476 U.S. 79 (1986); Tex. Code Crim. Proc. Art. 35.261.
The appellant does not distinguish between Batson and Article 35.261. Therefore, we address both points together.
Guzman v. State, 85 S.W.3d 242, 245-46 (Tex.Crim.App. 2002); Rousseau v. State, 824 S.W.2d 579, 581 (Tex.Crim.App. 1992).
Guzman, 85 S.W.3d at 245-46; Rousseau, 824 S.W.2d at 581.
Rousseau, 824 S.W.2d at 581.
Tompkins v. State, 774 S.W.2d 195, 201 (Tex.Crim.App. 1987).
Salazar v. State, 795 S.W.2d 187, 193 (Tex.Crim.App. 1990).
Harris v. State, 827 S.W.2d 949, 955 (Tex.Crim.App.), cert. denied, 506 U.S. 942 (1992).
Ibid.
Ibid.
See Linscomb, 829 S.W.2d at 166.
Salazar, 795 S.W.2d at 193.
Emerson v. State, 820 S.W.2d 802, 804-05 (Tex.Crim.App. 1991).