562
OCTOBER TERM, 1991
Per Curiam
on petition for writ of certiorari to the court of criminal appeals of texas
No. 91-6751. Decided April 6, 1992
Before jury selection began in petitioner Trevino's capital murder trial, he filed a "Motion to Prohibit the State from Using Peremptory Challenges to Strike Members of a Cognizable Group," stating that the prosecution and the State of Texas had historically and habitually used such challenges to strike black people and other minorities. After the State exercised its peremptory challenges to strike the only black members of the venire, the court denied his motion, and he was convicted by an all-white jury and sentenced to death. While Trevino's case was pending on appeal, this Court decided, in Batson v. Kentucky, 476 U. S. 79, that equal protection is violated where the prosecution uses race based peremptory challenges to exclude members of a defendant's racial group from a jury. The Texas Court of Criminal Appeals affirmed the conviction and sentence, finding, inter alia, that Trevino's arguments did not amount to reliance on the Equal Protection Clause.
Held: Trevino is entitled to review under the rule announced in Batson. He presented his equal protection claim to the trial court when he relied on a claim of a historical pattern of discriminatory use of peremptory challenges, and preserved that claim on appeal when he included in his argument caption an express reference to the Fourteenth Amendment, presenting for review the very issue he had raised in the trial court. Moreover, the State did not argue that Trevino failed to make an equal protection claim, but rather disputed the legal basis for his claim. To hold that he had forfeited his equal protection claim by failing to state it with sufficient precision would require applying a stricter standard than applied in Batson itself. Since Trevino's case is in this Court on direct review, he is entitled to the Batson rule.
Certiorari granted; 815 S. W. 2d 592, reversed and remanded.
Per Curiam.
I
The State of Texas charged petitioner Joe Mario Trevino for the murder and rape of Blanche Miller, a capital offense. On February 1, 1984, before jury selection, petitioner filed a "Motion to Prohibit the State from Using Peremptory Chal-
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