Opinion
No. 01-90-00993-CR.
August 26, 1993.
Appeal from the 177th District Court, Harris County, Wendell Odom, J.
James C. McBride, Houston, for appellant.
John B. Holmes, Timothy G. Taft, Houston, for appellee.
Before MIRABAL, HEDGES and OLIVER-PARROTT, JJ.
OPINION
This is an appeal from a conviction for two counts of forgery. A jury found appellant, Foster Morris, guilty and, after finding two enhancement paragraphs true, assessed punishment at 20-years confinement for each count.
In the trial court, appellant objected to the State using its peremptory challenges to remove members of the black race from the jury panel. Appellant was black. No Batson hearing was conducted. Thereafter, appellant filed a motion for a Batson hearing on appeal. This Court determined that appellant established a prima facie showing of purposeful discrimination by the State's use of its peremptory challenges. We issued an order directing the trial court to conduct a Batson hearing, make appropriate findings and recommendations, and prepare a record of the proceedings. On March 10, 1992, the trial court held a Batson hearing. During the hearing, the State refused to give any neutral explanations for the use of its peremptory challenges; instead, the State reurged the argument that there was no prima facie showing of discrimination at the original trial.
It should be noted that the delay in issuing this opinion was due to the failure of the parties to forward a copy of the record from the Batson hearing to this Court.
On August 19, 1992, however, the State filed a supplemental brief "confessing error" in regard to appellant's Batson challenge point of error. In its supplemental brief, the State cites Linscomb v. State, 829 S.W.2d 164, 166-67 (Tex.Crim.App. 1992), as controlling. We agree. In Linscomb, the Court of Criminal Appeals found that the United States Constitution is offended by so much as a single strike exercised on the basis of race. Id. at 166. Linscomb allows a prima facie case to be made based solely on "an unexpectedly high rate of challenges against a particular group." Additionally, the court specifically rejected the idea that if members of a recognizable minority are part of the jury, there could not be any discrimination. Id. at 167. The court developed a formula to determine the number of peremptory challenges normally expected: we are to divide the number of venirepersons of the race in question by the first 32 eligible venire persons and apply the resulting percentage to the available strikes of a prosecutor. Id. at 165.
In this case, the record reflects that the State exercised nine of its 10 peremptory challenges and used four to strike black persons from the venire. The defense exercised one peremptory strike to remove one black person from the venire. This left two black persons serving on the jury. Therefore, applying the Linscomb formula, the seven black venirepersons would be divided by the 32 eligible venirepersons, the percentage of the State's strikes expected to be exercised upon blacks would be 22% (rounded down to an even number), or 2 peremptory challenges. Thus, the four peremptory strikes the State exercised without any race neutral explanation on black venirepersons exceeds the Linscomb formula limit of two.
In light of Linscomb and the State's position at the Batson hearing, we reverse the trial court's judgment, and remand the cause for a new trial.