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excerpted from: Diana L. Hoermann, Why the Injection of Race in Saldano V. State Constitutes Fundamental Error, 4 Scholar: St. Mary's Law Review on Minority Issues 261-305, 261-272 (Spring 2002)(295 Footnotes)

Now, of course, all of these reasons that they give are excuses, pure and simple; they are not truthful statements; at the root it is simply race prejudice, and the prejudices of superiority which we find everywherein the world . . . . There is no excuse for this. No person can place it upon a scientific basis; it is a question of feeling. Clarence Darrow

An enlightened society knows that race should not determine the quality of justice a person receives. Certainly, an enlightened criminal justice system would not allow race to determine a person's fate. However, the Texas criminal justice system, sanctioned by its highest appellate court for criminal matters, allows a person's race to be considered as a factor in determining whether that person should receive the death penalty.

On September 15, 1999, the Texas Court of Criminal Appeals issued an unpublished opinion in the case of Victor Hugo Saldano v. The State of Texas. In Saldano, the court upheld the imposition of the death penalty where the jury heard testimony from an expert witness who stated that a person's race is a factor that should be considered by a jury in deciding whether a person will be sentenced to death. To some people, the Saldano case represents just another death penalty sentence affirmed by Texas' highest criminal appellate court. To others, it represents a disturbing step backward to a time when the color of a person's skin could determine his or her fate.

Saldano exemplifies a disturbing trend in Texas jurisprudence. The case, which the Court of Criminal Appeals chose not to publish, did not generate any media attention and managed to fly under the radar until June 2000. It was then that the United States Supreme Court reversed the case after Texas Attorney General John Cornyn took the extraordinary step of confessing error as the State's legalrepresentative. However, on remand from the Supreme Court, the Texas Court of Criminal Appeals again affirmed Mr. Saldano's death sentence. Most perplexing is how, in today's society, the case managed to go unnoticed for as long as it did and, moreover, that a case of this nature would even be upheld by the State's highest criminal appeals court in light of the issues and historical precedent involved.

This article will examine the history of the use of a person's race in the legal system, particularly in criminal cases, and detail how the Texas Court of Criminal Appeals' decision in Saldano I and II represents a radical departure from historical precedent concerning the prohibition the use of race in determining a person's fate.

II. Saldano v. State

Victor Hugo Saldano, a citizen of Argentina, was charged with capital murder in Texas and the State sought the death penalty. Mr. Saldano was accused of kidnapping Paul King from a grocery store parking lot. The evidence showed that Mr. Saldano and an accomplice took Mr. King to a secluded country road where Mr. Saldano forced Mr. King into the woods and shot him five times. The evidence also showed that Mr. Saldano stole Mr. King's watch and wallet. After hearing the evidence, a jury in Collin County, Texas convicted Mr. Saldano of capital murder in July 1996.

A punishment hearing was held to determine if Mr. Saldano should receive the death penalty. At this hearing, the jury was asked to decide, beyond a reasonable doubt, "whether there is a probability that [Mr. Saldano] would commit criminal acts of violence that would constitute a continuing threat to society." The State's evidence, admitted at the hearing to support the issue of future dangerousness, elevated matters to a new level in Texas. The State called Dr. Walter Quijano, a licensed clinical psychologist, to testify as to Mr. Saldano's "future dangerousness." Dr. Quijano testified to twenty-four factors that he felt would merit a death sentence. Inappropriately, one of the twenty-four factors Dr. Quijano referred to was Mr. Saldano's race. Specifically, Dr. Quijano testified that various studies indicate that the number of African Americans and Hispanics in Texas prisons is disproportionate to their percentage in the general population. He further testified that because Mr. Saldano is a Spanish speaker, he is classified as "Hispanic" for the purposes of these studies. A fortiori, Mr. Saldano's race could be considered a factor weighing in favor of a finding of future dangerousness since there are a disproportionate percentage of Hispanics in prison compared to the general population. Mr. Saldano's defense attorney failed to object to the admission of Dr. Quijano's testimony. The jury found that Mr. Saldano would be a future danger to society, and he was sentenced to death.

Mr. Saldano appealed his conviction and death sentence, arguing, inter alia, that it was impermissible for the State to allow the jury to consider race in determining whether the death penalty should be imposed. On September 15, 1999, the Court of Criminal Appeals issued an unpublished opinion on the case. The majority opinion devoted a mere three paragraphs to the use of race in determining future dangerousness and held that the failure of Mr. Saldano's defense attorney to object to the testimony of Dr. Quijano failed to preserve the error for review. The majority rejected Mr. Saldano's request to consider the interjection of race into the case as fundamental error under Rule 103(d) of the Texas Rules of Criminal Evidence.

Mr. Saldano appealed the Court of Criminal Appeals' decision to the United States Supreme Court, asking the Supreme Court to consider whether race is a permissible basis upon which the State can seek the death penalty. In a remarkable response to Mr. Saldano's request, the Attorney General for the State of Texas, John Cornyn, confessed error on behalf of the State. The Attorney General stated in his response:

Despite the fact that sufficient proper evidence was submitted to the jury to justify the finding of Saldano's future dangerousness, the infusion of race as a factor for the jury to weigh in making its determination violated his constitutional right to be sentenced without regard to the color of his skin.

On June 5, 2000, the United States Supreme Court issued its opinion vacating the judgment of the Court of Criminal Appeals of Texas, and remanded it "for further consideration in light of the confession of error by the Solicitor General of Texas." The Court of Criminal Appeals then set Mr. Saldano's case for rehearing and permitted supplemental briefing regarding the issue of race and future dangerousness. Oral argument was held on February 28, 2001. Race and future dangerousness as well as the Attorney General's authority to represent Texas in criminal cases before the United States Supreme Court were at issue.

On March 13, 2002, the Court of Criminal Appeals issued its opinion in Saldano II. The court first addressed the authority of the Texas Attorney General to confess error before the Supreme Court. The court noted that Texas statutory law requires a district attorney to request assistance from the Attorney General's office before the Attorney General is empowered to represent the State before the Supreme Court in certiorari proceedings. The court held that the district attorney's acquiescence in allowing the Attorney General to respond on behalf of the State to Mr. Saldano's petition for writ of certiorari was an implied request for assistance, and, therefore, the Attorney General was permitted to confess error in Mr. Saldano's case before the Supreme Court.

However, the court held the Attorney General's confession of error did not require the court to "blindly" overrule Specifically, the court stated that the issue to which the Attorney General confessed error was not one which had been presented to or decided by the Texas courts previously, because, as the court held in Saldano, no objection was made to Dr. Quijano's testimony at trial, and, therefore, no issue was preserved for appellate review.

The court then attempted to justify their determination that, absent an objection, the interjection of race in determining the defendant's future dangerousness was not the type of error which warranted reversal of the case. The court opined that the complained of error was merely an evidentiary matter requiring an objection to preserve it for appellate review. The court also stated that most errors of constitutional dimension require an objection to be preserved for appellate review. Further, the court opined that even if the State had offered Dr. Quijano's testimony solely for the purpose of appealing to racial prejudices, Mr. Saldano's defense attorney was still required to object to the admission of this evidence in order to preserve the error for appellate review.

In an attempt to further bolster its holding that the admission of race-based evidence did not warrant reversal of Mr. Saldano's death sentence, the court stated that the defense attorney's failure to object to the introduction of Dr. Quijano's testimony did not constitute ineffective assistance of counsel. On this basis, and despite the confession of error by the Attorney General, the court effectively declined to reach the merits of deciding the propriety of the introduction of race as a factor to be considered by the jury in determining a defendant's future dangerousness. Consequently, the court affirmed the imposition of Mr. Saldano's death sentence, with only two judges dissenting.

Justice Johnson filed a dissenting opinion addressing the failure of the majority to review the merits of the claimed error. She stated that the race or ethnicity of a defendant is an impermissible basis upon which a determination of guilt or punishment may be assessed. Further, she recognized that it is impossible to measure the effect on the jury when the factor of race is introduced at trial. She stated she would remand for a new sentence because a defendant has a right to be punished for "what he did, not who he is."

Justice Price also filed a dissenting opinion stating the introduction of Dr. Quijano's testimony was fundamental error. He emphasized that punishment decisions in death penalty cases are uniquely susceptible to the infusion of racial prejudice due to the subjective and individualized nature of capital sentencing proceedings. Justice Price argued that a defendant has a right to be sentenced free from any racial prejudice and that a defendant does not waive his right to complain of a racially-infused sentencing proceeding because of a failure to object at trial. Justice Price stated he could not join with the majority in this case because he was uncertain if racial prejudice was a factor in the jury's decision to impose the death sentence.

Chief Justice Keller chided the dissenters, in a concurring opinion to the majority, for their lack of legal analysis in support of their opinions. She stated that the dissenters are doing a "disservice to counsel for appellant, who put forward and ably argued a proposed legal basis for granting relief." She further argued that the majority opinion explains why Saldano's arguments must fail and that the dissenters had offered no legal reasons as to the incorrectness of the majority's holding.

The majority opinion, however, does not provide the analysis Justice Keller suggests. The opinion wholly fails to mention, much less analyze, why the error complained of cannot be reviewed under Texas Rule of Evidence 103(d), which allows courts to review unobjected to errors affecting a defendant's substantial rights. Nor does the majority opinion provide any real analysis as to why it should not be an absolute requirement that capital proceedings be free from any racial taint. As can be seen by the cases presented below, the Court of Criminal Appeals appears to have simply refused to recognize the fundamental nature of the error committed in the trial and punishment of Mr. Saldano