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describing the re-opening of an earlier disposed-of writ application as "an ‘unusual’ measure that we undertake only under extraordinary circumstances"
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NO. WR-30,077-01
07-01-2020
EX PARTE Mark ROBERTSON, Applicant
ORDER
Per curiam.
We have before us a suggestion that the Court reconsider on its own motion Applicant's 1997 application for a writ of habeas corpus.
In 1991, a jury found Applicant guilty of the August 1989 capital murder of 81-year-old Edna Brau (murder in the course of committing or attempting to commit robbery). The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set Applicant's punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Robertson v. State , 871 S.W.2d 701 (Tex. Crim. App. 1993).
Unless otherwise indicated, all future references to "articles" are to the Texas Code of Criminal Procedure.
In his initial application for a writ of habeas corpus filed in 1997, Applicant raised six claims. In his second claim, Applicant alleged that his trial counsel "did not want African-Americans on the jury" and reached an agreement with the prosecution to excuse African-American venire members. Consequently, Applicant maintained, all of the African-American venire members were excused and he stood trial before an all-Caucasian jury. He argued that counsel's actions violated "the principles of Batson v. Kentucky " and his Sixth Amendment right to effective counsel. The trial court held an evidentiary hearing in 1997 to address this claim and other matters. In 1998, the trial court entered findings of fact and conclusions of law finding that Applicant failed to prove the existence of the alleged agreement by a preponderance of the evidence and recommended that this Court deny relief. This Court adopted the trial court's findings and denied relief on all of Applicant's claims. Ex parte Robertson , No. WR-30,077-01 (Tex. Crim. App. Nov. 18, 1998) (not designated for publication). Applicant filed a subsequent writ application, and this Court ultimately granted him relief on punishment because he had received an unconstitutional nullification issue at trial. Ex parte Robertson , No. AP-74,720, 2008 WL 748373 (Tex. Crim. App. Mar. 12, 2008) (not designated for publication). After the completion of a new punishment trial, a jury answered the special issues submitted pursuant to Article 37.0711, and the trial court, accordingly, set Applicant's punishment at death. This Court affirmed Applicant's sentence on direct appeal. Robertson v. State , No. AP-71,224, 2011 WL 1161381 (Tex. Crim. App. Mar. 9, 2011) (not designated for publication). This Court denied Applicant relief on his initial habeas application filed after his new death sentence. Ex parte Robertson , No. WR-30,077-03, 2013 WL 135667 (Tex. Crim. App. Jan. 9, 2013) (not designated for publication).
Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
In April 2019, Applicant filed a motion to stay his execution and a suggestion that we reconsider, on our own motion, his 1997 writ application in light of new legal authority. See, e.g., Pena-Rodriguez v. Colorado , ––– U.S. ––––, 137 S. Ct. 855, 197 L.Ed.2d 107 (2017) ; Buck v. Davis , ––– U.S. ––––, 137 S Ct. 759, 197 L.Ed.2d 1 (2017) ; Ripkowski v. State , 61 S.W.3d 378, n.48 (Tex. Crim. App. 2001). On April 8, 2019, we entered an order staying Applicant's execution pending a further order from this Court.
On our own initiative, we now re-open Applicant's -01 writ application to reconsider his Batson claim. See TEX. R. APP. P. 79.2(d) (providing that a motion for rehearing a denial of habeas corpus relief "may not be filed"; however, "[t]he Court may on its own initiative reconsider the case"). This is an "unusual" measure that we undertake only under extraordinary circumstances. See Ex parte Moreno , 245 S.W.3d 419, 420, 427 (Tex. Crim. App. 2008).
See also Flowers v. Mississippi , ––– U.S. ––––, 139 S. Ct. 2228, 2243, 204 L.Ed.2d 638 (2019) (stating that, in the decades since Batson , the Supreme Court has "vigorously enforced and reinforced the decision" and "extended Batson in certain ways"); Pena-Rodriguez , 137 S. Ct. 855 ; Buck , 137 S Ct. 759 ; Miller-El v. Dretke (Miller-El II) , 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) ; Miller-El v. Cockrell (Miller-El I) , 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).
We remand this case to the convicting court for further fact finding regarding Applicant's second ground for relief. On remand, the trial court shall obtain an official court reporter's transcript and all exhibits from the 1997 evidentiary hearing and all other evidence filed during Applicant's initial-writ proceedings related to his second ground. The trial court shall also attempt to locate other relevant evidence from Applicant's 1991 trial, including the venire members' questionnaires and any agreements executed by counsel during jury selection. The trial court may allow the parties to submit additional briefing and evidence and present live testimony, if the court deems it necessary. The trial court shall enter new findings of fact and conclusions of law regarding Applicant's second ground in light of legal authorities, the parties's pleadings, and all of the relevant evidence and information in this habeas case.
The trial court shall complete its fact finding and enter findings of fact and conclusions of law within 120 days of the date of this order. Immediately after the habeas judge signs the findings of fact and conclusions of law, the district clerk must forward to this Court a supplemental record containing the findings and conclusions, all materials received by the trial court, and transcripts of any hearings. The habeas judge must obtain any extensions of time from this Court. IT IS SO ORDERED THIS THE 1ST DAY OF JULY, 2020.
Newell, J., filed a concurring opinion.
Keller, P.J., filed a dissenting opinion in which Keel, J., joined.
Yeary and Slaughter, JJ., dissent.
Newell, J., filed a concurring opinion.
Racially-motivated peremptory strikes during jury selection not only affect a defendant's rights, they also deprive a community of its voice in a criminal trial. At the core of the United States Supreme Court decision in Batson v. Kentucky prohibiting such practices is the holding that "one racially discriminatory peremptory strike is one too many." In this case, both the defendant and the prosecution appear to have colluded to exclude thirty-three African-Americans from the jury pool, six of whom were excluded without questioning. Given the stakes, I agree with the Court's decision to reconsider its previous holding on this issue and remand the case to the habeas court for more development. But I write separately because I am not convinced that the United States Supreme Court will regard the law in this area as clear cut, even if this claim is regarded as an ineffective assistance of counsel claim rather than a stand-alone Batson claim.
See Batiste v. State , 888 S.W.2d 9, 11 (Tex. Crim. App. 1994) ("The Court observed in Batson that use of peremptory challenges to exclude black veniremen solely on account of their race injured not only the defendant on trial, but also the veniremen themselves, and indeed, the ‘entire community.’ "); Batson v. Kentucky , 476 U.S. 79, 87, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) ("The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community.").
Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
Flowers v. Mississippi , ––– U.S. ––––, 139 S. Ct. 2228, 2241, 204 L.Ed.2d 638 (2019) (explaining Batson , 476 U.S. 79, 106 S.Ct. 1712 ).
The trial court's Findings of Fact and Conclusions of Law were numbered 1 through 86 and do not separate findings from conclusions. Finding 44 therefore appears to be a combination of findings and conclusions.
Even though Batson is often thought of as a case that merely prevents the prosecution from exercising peremptory challenges in a racially discriminatory manner, its holding was also concerned with ending racial discrimination in the jury selection process as a matter of equal protection. The Supreme Court has made clear that it does not matter if the defendant is of a different race than the excluded juror. The use of race to prevent someone from serving on a jury is so abhorrent that the Supreme Court has recognized that the prosecution may raise a Batson challenge against a defendant who tries to exclude a potential juror based upon race. I question whether the Supreme Court would hold, even in this case, that the interests served by Batson must give way to the rights of the criminal defendant.
Batson , 476 U.S. at 86, 106 S.Ct. 1712 ("[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.").
61 S.W.3d 378 (Tex. Crim. App. 2001).
Powers v. Ohio , 499 U.S. 400, 409, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) ; Flowers , 139 S. Ct. at 2241.
Georgia v. McCollum , 505 U.S. 42, 59, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992).
Id. at 58, 112 S.Ct. 2348 (considering whether the prohibition against the exercise of discriminatory peremptory challenges violates a defendant's Sixth Amendment right to effective assistance of counsel).
As the Supreme Court recently explained, the core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless if the Court were to approve the exclusion of jurors on the basis of race. Further, the Court emphasized that discrimination against one defendant or juror on account of race is not remedied or cured by discrimination against other defendants or other jurors on account of race. As the Court has explained, "Selection procedures that purposefully exclude [African-American] persons from juries undermine public confidence in the fairness of our system of justice." Holding that the collusion in this case was neither harmful nor prejudicial would seem to undermine the Supreme Court's understanding of Batson and it progeny.
Flowers , 139 S. Ct. at 2241.
Id. at 2242.
Batson , 476 U.S. at 87, 106 S.Ct. 1712.
Further, I am not convinced that the Supreme Court would resolve the tension between "structural error" and the prejudice prong of an ineffective assistance analysis in the same way that it did in Weaver v. Massachusetts . Though the Supreme Court seems to have drawn the same distinction regarding structural error on direct appeal and ineffective assistance of counsel claims we drew in our own precedent Batiste v. State , the right at issue in Weaver was qualitatively different. It's possible, in a situation like the one presented in Weaver , to determine that a defendant was not prejudiced by the failure to raise a denial of a public trial claim when the violation occurred during two days of voir dire and only involved the exclusion of two spectators.
Weaver v. Massachusetts , ––– U.S. ––––, 137 S. Ct. 1899, 1911, 198 L.Ed.2d 420 (2017) (holding that when a defendant raises a violation of the right to a public trial via a claim of ineffective assistance of counsel, prejudice on the ineffective-assistance claim is not shown automatically; rather, the burden is on the defendant to show a reasonable probability of a different outcome in his or her case).
Id. ; see Batiste v. State , 888 S.W.2d 9, 14–15 (Tex. Crim. App. 1994) (holding that failure to preserve Batson error does not so invariably detract from the fairness of trial as to justify exempting ineffective counsel claims for lack of a Batson objection from Strickland 's "prejudice" prong). Under the rationale announced in Batiste , I do not see how any defendant could demonstrate prejudice in an ineffective assistance claim based upon the failure to raise a Batson challenge.
Weaver , 137 S. Ct. at 1913.
But Batson claims involve the denial of the rights of the jurors to participate in civic life. According to the Supreme Court, structural error is either an error that defies a harm analysis, or possibly, an error of such magnitude that it causes fundamental unfairness, either to the defendant in a specific case or by pervasive undermining of the systemic requirements of a fair and open judicial process. Excluding the defendant's mother and her minister from two days of voir dire certainly doesn't seem to fit in the latter category. Collusion with a prosecutor to exclude thirty-three African-American jurors based upon their race sure does.
Id. at 1907–08.
Id. at 1913.
Of late, the United States Supreme Court has issued opinions focused upon removing considerations of race in criminal prosecution. The Court has held race is an impermissible consideration by jurors during jury deliberations. The Court upheld an ineffective-assistance claim when it was the defendant himself who relied upon an expert who based his opinions on racial considerations. And the Court has very recently reiterated that race should play no part in the selection of the jury. Just this term, the Court noted the roots of racism behind permitting non-unanimous jury verdicts in criminal cases as part of the justification for overruling precedent that allowed such verdicts. Though these cases are not directly on point with this one, they convince me that the answer to this issue is not so clear that we can be comfortable with our previous resolution of it in this case. That is why I join the Court's order reopening the case on our own initiative and remanding to the habeas court for further development.
Pena-Rodriguez v. Colorado , ––– U.S. ––––, 137 S. Ct. 855, 869, 197 L.Ed.2d 107 (2017) (holding that "where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee").
Buck v. Davis , ––– U.S. ––––, 137 S. Ct. 759, 776–78, 197 L.Ed.2d 1 (2017).
Flowers , 139 S. Ct. at 2239, 2241.
See Ramos v. Louisiana , ––– U.S. ––––, 140 S. Ct. 1390, 1393–94, 206 L.Ed.2d 583 (2020).
Keller, P.J., filed a dissenting opinion in which Keel, J., joined.
Applicant is a white male who claims that his own trial attorney violated Batson 1 by striking black jurors on the basis of race (or agreeing with the State on such strikes). His claim is that this behavior by his attorney constituted ineffective assistance of counsel. He raised this claim in his initial habeas application, and we rejected it. In rejecting his claims, we adopted the habeas court's findings, which included Finding 44, that Applicant has not satisfied the ineffective-assistance-of-counsel requirement of showing prejudice.2 Applicant contends that we should grant reconsideration of his ineffective-assistance claim because (1) previously unavailable portions of the habeas record now substantiate the factual basis for the claim, (2) this Court's later decision in Ripkowski v. State 3 first recognized that an ineffective-assistance claim could be used to get around invited error, (3) Batson error is structural, and this status exempts the error from the usual ineffective-assistance requirement of showing prejudice, and (4) the Supreme Court's later decisions in Buck v. Davis and Pena-Rodriguez v. Colorado exempted race-based claims from estoppel or waiver and required granting relief. As we shall see below, these contentions are either inaccurate or fail to refute the habeas court's determination of no prejudice in Finding 44.
––– U.S. ––––, 137 S. Ct. 759, 197 L.Ed.2d 1 (2017).
––– U.S. ––––, 137 S. Ct. 855, 197 L.Ed.2d 107 (2017).
I present and evaluate these claims in what I perceive to be their logical order, rather than the order presented by Applicant.
A. The Habeas Court's "No Prejudice" Finding
Findings 39, 42, and 43 serve as some background for Finding 44. In Finding 39, the habeas court concluded that applicant could not complain of any Batson error "because he himself invited the error. A defendant may not create reversible error by his own manipulation." In Findings 42 and 43, the habeas court relied upon Mata v. Johnson for the proposition that a defendant can waive a Batson claim if the defense colludes with the State to exclude members of a racial group from the jury. The habeas court pointed out that the defendant confessed to killing his victims and never alleged that he was innocent. The habeas court concluded that, as in Mata , a defendant who has never alleged innocence should not be permitted to benefit (by getting a new trial) from a Batson error that he invited.
In Findings 40 and 41, the habeas court summarizes some contentions and authorities presented by Applicant.
99 F.3d 1261 (5th Cir. 1996), vacated on other grounds , 105 F.3d 209 (5th Cir. 1997).
In Finding 44, the habeas court addressed whether an ineffective-assistance-of-counsel claim could be used to get around waiver or invited error. Under the usual Strickland standard, a convicted person is entitled to relief if he can show that (1) his attorney engaged in deficient performance and (2) he suffered prejudice as a result. The habeas court concluded that Applicant did not show that he was entitled to relief because he could not show harm:
Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The Court finds that applicant attempts to avoid the waiver of his constitutional rights by asserting that his trial counsel were ineffective for making this alleged agreement. But the Court finds that even if there was an agreement to excuse all African-American veniremembers from the jury panel or even if defense counsel's reason for agreeing to excuse any specific veniremember was race-based, because applicant would have made this choice deliberately, his constitutional right to a jury selected without regard to race had been waived. Furthermore, the Court finds that applicant cannot establish ineffective assistance of counsel, because he cannot establish that he suffered any harm as a result of his attorney's decision. Finally, because applicant did not object at the time of his trial to his attorney's alleged decision to enter into such agreement or make jury selections based on race, the Court finds that he cannot establish that his desires differed from his attorney's. See United States v. Boyd. Thus, the Court concludes as a matter of law that applicant cannot complain of alleged constitutional error that he invited.
86 F.3d 719, 722-23 (7th Cir. 1996).
Citation moved to footnote. See supra at n.10.
In a written order, we adopted the habeas court's findings of fact in their entirety.
Ex parte Robertson , No. 30,077-01, slip op. at 2 (Tex. Crim. App. November 18, 1998) (not designated for publication) ("Having reviewed the record, we adopt the trial court's finding of fact and conclusions of law and find that neither the facts nor the law support Applicant's allegations.").
B. Factual Basis
Applicant contends that the Court's records show that the reporter's record from the 1997 writ hearing, and the exhibits that were admitted, were never transmitted to this Court. Applicant contends that this evidence shows defense counsel's desire to strike black jurors and the State's awareness of this desire. He contends that there were "competing versions" about whether the State and the defense had an agreement, he points to notes from defense counsel in which the names of black jurors were underlined, and he points to a recording of a conversation between prosecutors that suggests the State was aware of defense counsel's desire to strike black jurors.
Applicant further states that he "recognizes that there is some possibility that the Court has either lost or misfiled these records, but the absence of the transcript and exhibits strongly suggests that the court never received them."
However, Finding 44, concluding that Applicant had not shown prejudice, explicitly assumed that defense counsel struck jurors on the basis of race or that there was an agreement with the State to do so. Because the truth of Applicant's race-basis allegations was assumed, additional evidence supporting those allegations cannot affect the no-prejudice finding. Consequently, even if Applicant were correct that this Court had an incomplete picture of the habeas evidence regarding the parties' use of race in striking jurors, this would not disturb the no-prejudice finding that the habeas court made and that we adopted.
C. Ripkowski
Applicant states that we explained for first time in Ripkowski (in applicant's words) that "a defendant may get around waiver or estoppel issues by alleging ineffective assistance of counsel, so long as the defendant can establish that counsel ‘procured’ the error ‘without a valid trial strategy.’ " In Ripkowski , defense counsel sought to waive the mitigation special issue in a capital case and succeeded in persuading the trial court to allow the waiver. The defendant complained that waiver of the mitigation special issue was not authorized by law. We declined to address whether the law allowed such a waiver and held, instead, that the defendant was barred by the doctrine of invited error from complaining about the waiver. In footnote 48, we suggested that a defendant could make the waiver of the mitigation special issue the basis for a claim of ineffective assistance of counsel "if it is discovered that a particular attorney procured the omission of [the] issue without a valid trial strategy."
Id.
Id. at 388-89.
Id. at 391 n.48.
Ripkowski did indeed suggest that an ineffective-assistance claim could, in appropriate circumstances, be used to obtain relief where defense counsel had invited error. But that suggestion is not a new holding; it is merely an observation of how ineffective assistance of counsel works. In theory, any attorney error can give rise to a successful ineffective-assistance claim if the appropriate showing has been made (ordinarily meeting the two-part Strickland test). The "failure of counsel ... to comply with a procedural rule" can result in relief on a finding of ineffective assistance. And even before Applicant's initial application, we had recognized ineffective-assistance claims based on a waiver or an affirmative election made by the defendant. Applicant concedes that other jurisdictions had held, prior to his initial application, that an ineffective-assistance claim could, in appropriate circumstances, overcome the invited error doctrine. Applicant contends that the habeas court concluded that he "could not overcome invited error with an IAC [ineffective assistance of counsel] claim." That is incorrect. In Findings 39, 42, and 43, the habeas court found that the underlying Batson claim was barred by invited error, but the habeas court did not find such a bar to Applicant's ineffective-assistance claim. Rather, in Finding 44, the habeas court concluded that Applicant's ineffective-assistance claim lacked merit because Applicant could not show prejudice.
Ex parte Coy , 909 S.W.2d 927, 928 (Tex. Crim. App. 1995).
Ex parte Dunham , 650 S.W.2d 825, 826-27 (Tex. Crim. App. 1983) (ineffective-assistance claim in connection with waiver of jury trial); Jackson v. State , 766 S.W.2d 504, 509-10 (Tex. Crim. App. 1985), vacated on other grounds , 475 U.S. 1114, 106 S.Ct. 1627, 90 L.Ed.2d 175 (1986), different result reached on remand on other grounds , 766 S.W.2d 518 (Tex. Crim. App. 1988) (ineffective-assistance claim in connection with electing jury punishment).
He cites a case as old as 1978. See United States v. Bosch , 584 F.2d 1113, 1124 (1st Cir. 1978).
In finding no prejudice, the habeas court did cite Applicant's failure to object to his attorney's conduct as preventing him from showing "that his desires differed from his attorney's." Applicant seems to construe this statement as requiring him to contemporaneously object to his counsel's conduct to preserve an ineffective-assistance claim. He reads too much into the habeas court's statement. We have never held that a defendant's own conduct is always irrelevant to an ineffective-assistance claim. Under some circumstances, a defendant can doom an ineffective-assistance claim by preempting his attorney's sound strategy and insisting on a disastrous course of action. And in some circumstances, when the defendant has personal decision-making authority with respect to the right in question, he can complain about his attorney's conduct without having to show prejudice, but only if he contemporaneously expressed his disagreement with that conduct. This was the case in Turner , when the defendant contemporaneously expressed disagreement with his attorney's strategy to concede guilt of the offense of murder.
Ex parte McFarland , 163 S.W.3d 743, 755 n.35 (Tex. Crim. App. 2005) (quoting McFarland v. State , 845 S.W.2d 824, 848 (Tex. Crim. App. 1992) ) ("When a defendant preempts his attorney's strategy by insisting that certain evidence be put on or kept out, no claim of ineffective assistance can be sustained.").
See Turner v. State , 570 S.W.3d 250, 274-76 (Tex. Crim. App. 2018) (discussing McCoy v. Louisiana , ––– U.S. ––––, 138 S. Ct. 1500, 200 L.Ed.2d 821 (2018) (counsel conceding defendant's guilt against defendant's express wishes was reversible error without a harm analysis because the issue was the client's autonomy, not counsel's competence). I am not saying that every personal decision-making right is necessarily immune to a prejudice analysis, just that at least some of these sorts of rights are.
Id.
The habeas court's statement in the present case seems to have something like the Turner situation in mind. After its statement, the habeas court provided a "see" cite to United States v. Boyd. Boyd explained that an ineffective-assistance claim could be a way around waiver in the Batson context but concluded that the defendant had not shown prejudice because his attorney had a strategy for excluding jurors based on race for the defendant's benefit. Then the Boyd court discussed a second possible way around waiver advanced by the defendant: that the defendant had a personal decision-making right to decide whether jurors would be struck. The Boyd court held that, even if this were true, the defendant's claim would fail because he failed to contemporaneously object to his attorney's conduct. The habeas court seems to be suggesting that, to the extent that a defendant's personal desire not to discriminate on the basis of race could be a "harm" flowing from defense counsel's deliberate use of race to strike jurors, a defendant would be expected to have contemporaneously expressed his disagreement with the attorney's trial strategy. The defendant's failure to do so would not foreclose some other type of harm, if it could be shown on the record.
Id.
Id. at 722-23.
Applicant contends that the habeas court has misconstrued the holding in Boyd and that, in any event, the Seventh Circuit abrogated it in a later case. See Winston v. Boatwright , 649 F.3d 618 (7th Cir. 2011). The habeas court's citation of Boyd in Finding 44 seems to be consistent with my discussion above, and, whatever significance might be ascribed to Winston , it is not binding authority on this Court.
D. Structural Error / Strickland prejudice
Applicant contends that the racially motivated removal of jurors by the defense constitutes structural error that requires automatic reversal. But that contention was explicitly rejected in Batiste v. State . In that case, we assumed, without deciding, that Batson error was the type of error that was structural, meaning that it was exempt from a harm analysis if preserved and raised on direct appeal. However, we held that defense counsel's failure to assert Batson error was subject to the prejudice prong of Strickland . And we concluded that, "A jury of any racial makeup is presumptively capable of providing the impartial tribunal necessary to ensure proper functioning of the adversarial process. That no defendant may ‘ever prove prejudice’ is a better reason, it seems to us, to reject a standard of presumed prejudice than to embrace it."
888 S.W.2d 9 (Tex. Crim. App. 1994).
Id. at 13-14.
Id. at 14-17.
Id. at 16.
We may have cast some doubt on that holding in Johnson v. State by saying that a structural error is subjected to a more limited-than-usual prejudice inquiry within the context of an ineffective-assistance claim. However, the Supreme Court's subsequent decision in Weaver v. Massachusetts makes clear that even some structural errors are subjected to the prejudice prong of Strickland when raised via an ineffective-assistance claim.
169 S.W.3d 223, 228 (Tex. Crim. App. 2005).
––– U.S. ––––, 137 S. Ct. 1899, 198 L.Ed.2d 420 (2017).
At issue in Weaver was the defendant's right to a public trial. Defense counsel raised no objection at trial, so the public-trial issue was raised as part of an ineffective-assistance claim. The Supreme Court observed that the violation of the right to a public trial is structural error.
Id. at 1905-07.
Id. at 1906.
Id. at 1908.
But in deciding whether a particular structural error is subject to the prejudice prong of Strickland , the Supreme Court found it relevant to determine why the error has been deemed structural. The Supreme Court set out three separate rationales for finding an error to be structural:
Id.
[1] the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest,
[2] the effects of the error are simply too hard to measure, [and]
[3] the error always results in fundamental unfairness.
Id. (bracketed material added, intervening text between numbered elements omitted
Some structural errors may involve more than one rationale. The Supreme Court expressed particular interest in determining whether the error in question "counts as structural because it always leads to fundamental unfairness or for some other reason."
Id.
Id.
The Court observed that the public-trial right had exceptions, that at least some violations of it were easily curable if timely brought to the trial court's attention, that violation of the public trial right does not render the trial fundamentally unfair in every case, and that the public-trial right protects some interests that do not belong to the defendant. The Court found that the discussion of these factors "confirm[s] the conclusion the Court now reaches that, while the public-trial right is important for fundamental reasons, in some cases an unlawful closure might take place and yet the trial still will be fundamentally fair from the defendant's standpoint." The Supreme Court also considered finality interests in concluding that the public-trial right should be subjected to a prejudice requirement in an ineffective-assistance inquiry:
Id. at 1909-10.
Id. at 1910.
When an ineffective-assistance-of-counsel claim is raised in postconviction proceedings, the costs and uncertainties of a new trial are greater because more time will have elapsed in most cases. The finality interest is more at risk, and direct review often has given at least one opportunity for an appellate review of trial proceedings. These differences justify a different standard for evaluating a structural error depending on whether it is raised on direct review or raised instead in a claim alleging ineffective assistance of counsel.
Id. at 1912.
Consequently, the Court held that the defendant claiming that his attorney's deficient performance caused him to be deprived of his right to a public trial had to demonstrate prejudice by showing either a "reasonable probability of a different outcome but for counsel's failure to object" or "that counsel's failure to object rendered the trial fundamentally unfair."
Id. at 1913. Allowing the defendant to demonstrate prejudice by showing "fundamental unfairness" may make the Supreme Court's standard consistent with our statement in Johnson about the limited prejudice inquiry applicable to structural errors. See supra at n.32.
In passing, the Supreme Court suggested that a Batson violation was a structural error, but the Court did not express an opinion as to how prejudice for it, or other structural errors, should be evaluated when raised in an ineffective-assistance claim. Nevertheless, it seems obvious from our statements in Batiste that a Batson error would not always result in unfairness to the defendant, that it often involves interests apart from the defendant (such as preventing unfair discrimination against the jurors themselves), and that it may be structural in part due to the difficulty of conducting a harm analysis. Because Batson error does not always unfairly prejudice a defendant, we should continue to adhere to our holding in Batiste that the prejudice prong of Strickland applies when a Batson error is raised as part of an ineffective-assistance claim. Weaver might suggest a modification of Batiste to allow prejudice to be satisfied upon a showing that the jurors that were excluded were the same race as the defendant, because it might be said in such a case that the defendant has suffered the effects of racial discrimination. But such a modification would not help Applicant, a white person complaining about the exclusion of black individuals. The Supreme Court's decision in McCoy , in combination with Weaver , might also suggest a modification to allow prejudice to be satisfied upon a showing that counsel thwarted an expressed desire by the defendant not to discriminate against black jurors. But that modification would also not help Applicant because he did not contemporaneously express disagreement with such discrimination. Because Applicant was not discriminated against and did not contemporaneously express disagreement with discriminating against jurors, he has no basis under Weaver for presuming or showing harm.
137 S. Ct. at 1911-12 ("This Court, in addition, has granted automatic relief to defendants who prevailed on claims alleging race or gender discrimination in the selection of the petit jury, though the Court has yet to label those errors structural in express terms. The errors in those cases necessitated automatic reversal after they were preserved and then raised on direct appeal. And this opinion does not address whether the result should be any different if the errors were raised instead in an ineffective-assistance claim on collateral review.") (citations omitted).
I note that Applicant's habeas application does not cite or discuss Batiste or Weaver .
See supra at n.22 and accompanying text (citing and discussing Turner and McCoy ).
The concurring opinion suggests that violating the rights of jurors to participate in a trial on the basis of race constitutes the pervasive undermining of the systemic requirements of a fair and open judicial process. But the Weaver Court indicated that "fundamental fairness" in the ineffective-assistance-of-counsel context should be judged from "the defendant's standpoint." 137 S. Ct. at 1910. Jurors do not have a right to effective assistance of counsel; only defendants do.
E. Buck and Pena-Rodriguez
In Buck , the defendant's own expert witness testified that the defendant was statistically more likely to be violent because he was black. This evidence was introduced by his attorney. The Court concluded that the defendant's attorney performed deficiently in introducing this testimony—especially in light of the jury's duty to determine whether the defendant was a future danger to society. The Court also found that the defendant had demonstrated prejudice because the evidence appealed to a powerful racial stereotype of violent black men, because it was a characteristic of the defendant that would never change, and because it was the one piece of evidence that showed dangerousness both inside and outside of prison while the remaining evidence showed the defendant to be dangerous in romantic relationships that would not exist in prison. The Court also found that the source of the evidence—an expert appointed by the Court and proffered by the defense—enhanced the prejudicial effect.
Id.
Id. at 775.
Id. at 776.
Id. at 777.
Buck involved the introduction against a black defendant of evidence that being black was more likely to make him dangerous. The Supreme Court found prejudice under the traditional Strickland prejudice framework. Buck does not stand for the proposition that a white defendant can obtain relief by showing discrimination against other individuals (prospective jurors) who were black. It also does not stand for the proposition that the existence of racial discrimination somewhere in the case exempts the defendant from having to show that he was harmed.
In Pena-Rodriguez , the defense discovered after trial that a "juror had expressed anti-Hispanic bias toward the defendant and the defendant's alibi witness. In a motion-for-new-trial hearing, the defense introduced affidavits attesting to this fact, but the trial court held that it could not consider the affidavits because Rule of Evidence 606(b) prohibited juror testimony about jury deliberations. The Supreme Court held that, "where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee." The Supreme Court cautioned that "[n]ot every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry." Rather, the statements at issue must "exhibit[ ] overt racial bias that cast serious doubt on the fairness and impartiality of the jury's deliberations and resulting verdict." Such a statement "must tend to show that racial animus was a significant motivating factor in the juror's vote to convict."
Id. at 862.
Id. at 869.
Id.
Id.
Id.
Pena-Rodriguez also does not stand for the proposition that the presence of racial bias in the case obviates the need to assess whether the defendant was harmed. The defendant was a Hispanic individual who was judged by a juror who exhibited animus toward Hispanics. As in Buck , the defendant was not only a member of the group being discriminated against but there was a showing that his case before the jury was impacted by the discrimination. But in the present case, Applicant was not a member of the discriminated-against group and there has been no showing that his case was impacted in any way by the discrimination.
The concurring opinion cites Ramos v. Louisiana , ––– U.S. ––––, 140 S. Ct. 1390, 1393–94, 206 L.Ed.2d 583 (2020), for noting the roots of racism as part of its justification for overruling precedent allowing for non-unanimous jury verdicts. To the extent racist reasons behind the laws in two states allowing a less-than-unanimous verdict had an impact on the Court's decision to recognize a right to a unanimous verdict, it is nevertheless true that a defendant who is convicted on a less than unanimous verdict is affected by a rule that allows a less-than-unanimous verdict. The same cannot automatically be said for a defendant convicted after jurors are improperly struck on the basis of race because the defendant could (and likely would) still have been tried by properly qualified jurors. Cf. Jones v. State , 982 S.W.2d 386, 392-94 (Tex. Crim. App. 1998) (improper exclusion of juror for cause harmless if the defendant otherwise had a lawfully constituted jury).
F. Conclusion
In summary, applicant claims that new facts and new law justify reconsidering his initial application, but some of the law is not new, and the facts and law that are new do not refute the habeas court's conclusion that Applicant failed to show prejudice. And Applicant's failure to show prejudice is fatal to his claim. I respectfully dissent.