564
Per Curiam
(1965), ought to be reexamined. 11 Record 356. The trial court denied petitioner's motion, and denied it again after two more black venire members were excluded.
The all-white jury returned a verdict of guilty and after a sentencing hearing returned affirmative answers to the two special questions posed by the court. See Jurek v. Texas, 428 U. S. 262, 267-269 (1976) ( joint opinion of Stewart, Powell, and Stevens, JJ.). As required under such circumstances, see ibid., the trial court sentenced petitioner to death. Petitioner appealed to the Court of Criminal Appeals of Texas, filing his brief on December 19, 1985. This is the cause now before us. He cited 24 errors in the guilt and punishment phases of the trial court proceedings. The only one of concern now is the prosecutor's use of peremptory challenges based on race.
Petitioner contended in the Court of Criminal Appeals that the prosecution's race based use of challenges violated his "rights to due process of law and to an impartial jury fairly drawn from a representative cross section of the community." Brief for Appellant in No. 69337, p. 11. He found these rights in "the Sixth and Fourteenth Amendments to the United States Constitution," as well as provisions of the Texas Constitution. Ibid. He asserted he was renewing the objections pressed at trial. Ibid. He acknowledged that under Swain v. Alabama, the use of peremptory challenges to discriminate in a single case would not be an equal protection violation but noted that in Batson v. Kentucky, cert. granted, 471 U. S. 1052 (1985), we would reconsider the question under the Sixth Amendment. When his brief was filed, we had heard oral argument in Batson but had not announced our decision. Petitioner urged that even if Batson did not alter the requirement of alleging an overall scheme of discrimination, the Court of Criminal Appeals should prohibit peremptory challenges based on race as a matter of state law.
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