 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Alexander v. State3/5/1996
, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989) (explaining that it remains the ultimate burden of the accused to persuade the trial judge by a preponderance of the evidence that the allegations of purposeful discrimination are true).
In reviewing this determination, the appellate court uses the "clearly erroneous" standard articulated in Federal Rule of Civil Procedure 52(a), under which the findings of the trial court should not be disturbed if they are supported by the record. Tennard, 802 S.W.2d at 680; Whitsey v. State, 796 S.W.2d 707, 726 (Tex. Crim. App. 1990) (opinion on reh'g).
In the present case, Alexander objects to the State's use of peremptory strikes against two minority venire members. The State responded at trial that the venire members were stricken because each had close relatives who had been convicted of a felony-one for attempted murder and one for aggravated robbery. Alexander then attempted to prove that this reason was pretextual by showing that the prosecution did not question these jurors on whether the fact that they had relatives who had been convicted of a felony would impact their jury service. The State then pointed out that the only white juror who was given this question was excused because he failed to show up for the afternoon session. The court accepted the State's reason as "racially neutral" and held that Alexander had not met his Batson burden of proof.
Alexander argues on appeal that the State should have questioned these jurors in depth concerning any biases before utilizing a peremptory strike on them. The State did, however, ask one of the two jurors if this relationship would affect her ability to serve on this case. Additionally, the State inquired as to the date of the offenses with regard to both venire members.
Texas courts have held that strikes of a prospective juror on the basis that he or she has a family member or close friend who had been arrested, charged, or convicted of a crime are race neutral. Murray v. State, 861 S.W.2d 47, 52 (Tex. App.-Texarkana 1993, pet. ref'd); Garcia v. State, 833 S.W.2d 564, 567 (Tex. App.-Dallas 1992), aff'd on other grounds, 868 S.W.2d 337 (Tex. Crim. App. 1993); Sims v. State, 768 S.W.2d 863, 865 (Tex. App.-Texarkana 1989), pet. dism'd per curiam, 792 S.W.2d 81 (Tex. Crim. App. 1990). This information can be obtained by the State from sources other than voir dire. There is no evidence in the record that the State used this legitimate reason as a pretext for discrimination. Because the trial court's ruling was not clearly erroneous, this point of error is overruled.
By his next point of error, Alexander contends that the trial court erred in denying his motion for mistrial after a juror communicated a question to the bailiff, which was then communicated to the prosecuting attorney.
The trial court's decision of whether to grant a motion for a mistrial is not to be disturbed on appeal absent a showing of abuse of discretion. Gilbert v. State, 840 S.W.2d 138, 141 (Tex. App.-Houston [1st Dist.] 1992, no pet.); Baker v. State, 797 S.W.2d 406, 408 (Tex. App.-Fort Worth 1990, pet. ref'd); Bratcher v. State, 771 S.W.2d 175, 188 (Tex. App.-San Antonio 1989, no pet.); Smith v. State, 638 S.W.2d 200, 202 (Tex. App.-Houston [1st Dist.] 1982, pet. ref'd, untimely filed); see also Beck v. State, 573 S.W.2d 786, 791 (Tex. Crim. App. [Panel Op.] 1978).
Alexander moved for a mistrial on the basis that a bailiff passed along to the prosecutor a question the bailiff received from a juror and that, in response to this question, the prosecutor recalled a witness. Alexander made an oral motion for a mistrial, stating the basis of his motion. Alexander attempted to call
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 Texas DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|