Young v. State

¶1OPINION DENYING STATE’S MOTIONS FOR REHEARING

¶2The 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 Batson1claim, 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.

¶3On 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.

¶4The 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.

¶5Moreover, 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.

¶6In this regard, the holding in McNairyis 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 McNairythe 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.

¶7The 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.

¶8On 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

¶9Another 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.

¶10448 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.

¶11The 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.” 6Id. (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.

¶12Consequently, 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.

¶13By 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

¶14In 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.

¶15In 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.

¶16On the basis of the foregoing reasons, the State’s motions for rehearing are denied.

¶28dissenting.

¶29On original submission, I joined the opinion of the Court, voting for the reasons expressed therein to reverse the Fifth Court of Appeals and to remand this cause for additional appellate review. I am now persuaded, upon further reflection and study, that our decision on original submission was in error. Accordingly, I would grant the State’s motions for rehearing in this cause and affirm the lower court’s judgment.

¶30I.

¶31In the first place, it is now evident to me that our original opinion misunderstood the significance of controlling precedent by characterizing footnote 6A of Tompkins v. State1as “dictum.”2 Apparently, this Court is now inclined to view footnotes as unsuitable for the expression of binding precedent. If we in fact intend to regard footnotes as superfluous, we ought to eliminate them from our opinions altogether. Neither precedential purpose nor direction to bench and bar is served when we clutter the authoritative decisional law with inessential musings that the Court may later have to repudiate.

¶32Be that as it may, it is apparent from the Tompkins opinion itself that footnote 6A was not gratuitous or otherwise unnecessary, but was added specifically to address matters raised by the appellant in a supplemental brief. It was not just an interesting parenthetical remark. Accordingly, Tompkins is not fair game for an emerging anti-footnote policy in this case. Indeed, the now controversial footnote 6A was so critical in Tompkins that the outcome itself would, in all likelihood, have been different except for the holding which appears only in that footnote. To label it “dictum,” therefore, is patently incorrect.3

¶33What follows is that Tompkins, unless it was wrongly decided, should control dispo*154sition of the instant cause. Of course, if it was wrongly decided, it should be overruled expressly, as its essential holding cannot be reconciled with the majority opinion in this case. But, after careful reconsideration of the matter, I believe that Tompkins does, indeed, provide the appropriate rationale for decision in cases such as this one. Thus, failure to follow it here represents a disregard for precedent which, as a court of last resort, we should be loath to countenance.

¶34II.

¶35Here, the appellant would like the Court of Appeals to consider some circumstances of the jury selection process, which it declined to consider before, in reviewing the trial court’s adverse disposition of his Batson4claim. These circumstances include the number and kinds of questions propounded by the prosecuting attorney to prospective jurors during voir dire. Appellant maintains that these circumstances would reveal a manner of interrogation fraught with racial prejudice, inasmuch as black veniremembers were questioned in a far more perfunctory way than were those seriously regarded by the State as candidates for jury service.

¶36The argument is promising if supported by evidence. Undoubtedly, significant differences in the way prospective jurors are questioned may expose underlying prejudices of the questioner. And, where the questioner’s motives are at issue, such circumstances are clearly relevant. But during voir dire, a prosecutor’s motives are not at issue, and the questions propounded to prospective jurors are not evidence.

¶37Once a Batson motion has been made, of course, new questions of fact are presented, and an evidentiary hearing becomes necessary to resolve them. The burden of proof on these questions falls to the mov-ant, and he is obliged to meet that burden, if he can, in the same manner as litigants with the burden of proof on other factual questions — that is, by the production of evidence.5 In the Batson context, such evidence must be sufficient to prove that the prosecuting attorney actually exercised peremptory challenges against venire-members on account of their race.6 Although the evidence may come from a number of possible sources, the most fertile ground after Batson is the voir dire examination itself.

¶38Still, even a relatively brief voir dire by both parties typically yields a great deal of dialogue which has nothing specifically to do with the Batson question. And because the issues at voir dire necessarily do not include the motives of prosecutors, one would not expect the entire voir dire to be relevant at a subsequent hearing to determine those motives. For this reason alone, the notion that a trial judge must automatically revisit the entire voir dire examination sua sponte every time one party accuses the other of racial prejudice is untenable. More to the point, it is contrary to elementary principles of adversary procedure. A trial judge is never obliged to sort through evidence, even when it has been formally tendered, to cull the relevant from the irrelevant.7 Surely, we should not enforce a more rigorous rule against him when, as here, the evidence was never properly offered at all.

¶39The majority on original submission took the position that nothing in Batson itself requires “that discrepancies in the voir dire of the various panel members must be brought to the trial judge’s attention by the accused in order to preserve for appellate review the issue of the constitutionality of the prosecutor’s peremptory challenges.”8 Evidently, we lost sight on original submis*155sion of the difference between the preservation of a complaint and the merits of its disposition. The only issue on appeal in this case is whether the trial judge’s decision was supported by the evidence, was clearly erroneous, was an abuse of discretion, or whatever the current fashion is to call it.9 It comes to the same thing. The appellate court’s task is to review the evidence. Neither this Court nor the Court of Appeals would be doing that if appellant’s complaint had been forfeited by a procedural default at trial.

¶40The majority opinion points out that “a comparative analysis is an argument of the evidence presented to the trial judge during voir dire and the Batson hearing[,]” and is not evidence itself.10 Certainly, this is true. And it is equally certain that litigants are not obliged by the law to argue their cases at the conclusion of evidence. After even the most complex, protracted trial, the parties may decline summation or jury argument altogether. Yet, the fact-finder, whether judge or jury, is still obliged to make a decision on the whole evidence presented, which decision is reviewable for its correctness on appeal. To say that the appellant in this case was required to argue the evidence before he was entitled to a decision from the factfinder on the basis of such evidence is simply mistaken.

¶41But it is no mistake to hold that the factfinder need not consider information which was not received in evidence, even if aware of that information. Indeed, it is unlawful for him to do so, as should be apparent from the abundant case law of this Court holding it grossly improper for jurors to make decisions based in whole or part upon concededly relevant information known to them from a source other than trial.11

¶42Even if the circumstances of voir dire could be considered evidence in this case, such evidence was certainly not admitted during jury selection to discover the ulteri- or motives of lawyers. Rather, it was necessarily received only to test the qualifications of prospective jurors.12 And because evidence received for one purpose is not available for another unless reoffered,13 the evidence received during voir dire, or a circumstance surrounding its receipt, does not automatically constitute evidence at a subsequent Batson hearing, even to the extent it might be relevant for that purpose. If a litigant desires that evidence or circumstances in the record be considered by the trial judge at a later evidentiary hearing on a different issue, it behooves him to offer it in the usual way at that hearing or simply to ask that the trial judge judicially notice it as provided by law.14

¶43This procedure may seem unnecessarily slavish or hypertechnical to some practitioners, especially in circumstances such as those presented here. But these procedural mechanisms have the same practical importance in the present context as they do at every other stage of an adversary proceeding. They ensure that the most fundamental principles of fairness and order will be observed invariably throughout trial. With respect to the admission of evidence, they assure that an opposing party will always know precisely what is offered by his opponent and for what purpose. This is so that he can interpose objection if the law makes one available, or offer his own evidence in rebuttal or explanation if it does not.15 Neither course is a realistic alternative for him if, instead, the evidence is received without his knowledge, or without his knowing the issue to which it is addressed.

¶44*156Application of these basic tenets to the present case is not strained. Without some reasonably clear indication from appellant of the circumstances from voir dire upon which he intended to rely for proof of a racial motive, the State was effectively denied a chance to object to that evidence or to meet it with controverting evidence. And the right to an opportunity for objection in this context was not merely an empty formality. Had appellant attempted the simple expedient of offering the entire voir dire, a relevancy objection from the State would have been well-founded because, as has already been noticed, most of the jury selection process in this and in other cases does not bear upon the questions at issue in a Batson hearing. Unless the appellant could successfully limit his offer only to those portions of the voir dire relevant to the matters in issue, the trial judge would have been within his discretion in any case to disallow all of the preferred evidence.16

¶45These are the necessary and unremarkable consequences of a fair and orderly system governing virtually all litigation, including Batson hearings. Here, when the trial judge convened a hearing for the purpose of receiving evidence, appellant rested and closed without producing any. He called no witnesses, offered no transcripts, and made no request that the court judicially notice relevant circumstances of the voir dire examination or testimony offered for another purpose during the jury selection process. The State was, therefore, entitled to resume trial in the certain belief that appellant had offered no evidence whatsoever to meet his burden of proof. Yet a majority of this Court would force upon the trial judge a duty to search alone for the most arcane evidence of racial prejudice in a long transcript of jury selection, to then notice that evidence without any request from its beneficiary or opportunity for its opponent to object, and finally to make a critical credibility decision based upon such evidence without asking any further explanation from either side. Let me be no longer a part of that majority, for its holding is repugnant to the legal system of which I have been a member for over twenty years.

¶46I do not dispute for a moment that racial prejudice is an evil of unparalleled magnitude in the history of this country. I am unalterably committed to its opposition under all circumstances. But it is one thing to allege bigotry, and quite another to prove it. In the final analysis, I would not like to have it said of me that I found an attorney representing the State of Texas guilty of such serious misbehavior without affording him an opportunity to rebut or explain the evidence against him. Because, in my view, a majority of the Court continues to encourage just such a result in this case, I dissent.

¶47The judgment of the Fifth Court of Appeals should be affirmed.