A sentencing jury may not consider a defendant's race when deciding whether to impose the death penalty. During the punishment phase of the appellant's capital murder trial, evidence admitted made a correlation between future dangerousness and the incarceration rates of Hispanics. Because the only relevant inference to be drawn from such evidence is an improper one, I would reverse the appellant's death sentence. Therefore, I dissent.

The majority begins by discussing the Attorney General's authority to represent the State and to confess error in proceedings before the United States Supreme Court. ⁽¹⁾ I think we need not address these issues. Dr. Quijano's testimony during the punishment phase of the appellant's trial drew a correlation between the appellant's race and incarceration rates. I would hold that the admission of this evidence was fundamental error, which should be reviewed even in the absence of a trial objection.

The only relevant inference to be drawn by the jury from the evidence at issue was an impermissible one. Hispanics are dangerous because they are over represented in the prison population. The appellant is Hispanic. Therefore, the jury could have concluded, the appellant constitutes a future danger.

The analogy of a skunk in the jury box is instructive. Racial prejudice can sneak into the jury box while making the jury's verdict on punishment seem legitimate.

By design, the decision that a capital sentencing jury makes is a "highly subjective, 'unique, individualized judgment regarding the punishment that a particular person deserves.'" Caldwell v. Mississippi, 472 U.S. 320, 340 n.7 (1985) (quoting Zant v. Stephens, 462 U.S. 862, 900 (1983) (Rehnquist, J., concurring)). This range of discretion creates "a unique opportunity for racial prejudice to operate but remain undetected." Turner v. Murray, 476 U.S. 28, 35 (1986) (White, J., joined by Blackmun, Stevens, and O'Connor, J.J.). We need to guard jealously the sentencing phase of a capital trial to keep prejudice from ruining the process.

It is our job to be sure that racial prejudice is not, in any way, a component of the jury's decision to impose the death penalty. Texas Rule of Evidence 103(d) provides a vehicle by which we can review fundamental error. In Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993), we explained that, in our system, three kinds of rules exist: "(1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request." Id. at 279. If the right to a capital sentencing proceeding without the taint of racial prejudice is not a right that requires, at least, an affirmative waiver, it ought to be.

That the State did not emphasize this unfairly prejudicial evidence in its closing arguments does not affect the analysis. A skunk whether hurled or merely tossed into the jury box still fouls the air.

That there may have been ample evidence supporting a finding of future dangerousness and that there were factors other than race included in Dr. Quijano's testimony are of no moment. If a skunk is allowed into the jury box, nothing will remove its stench.

I cannot condone a decision to impose the death penalty when I am uncertain whether racial prejudice was a component of that decision. I dissent.

Delivered: March 13, 2002.

Publish.

1. It may be unnecessary to address these issues in light of our decision in Mitchell v. State, No. 1485-00 (Tex. Crim. App. Jan. 30, 2002). In Mitchell, we did not address the merits of a point the State had conceded in an earlier proceeding. We explained:

The State argues that the court of appeals erred by holding that the appellant's trial counsel was deficient because the record does not show that his action was not a tactical decision. The State is foreclosed from raising that argument at this stage of the process. In its petition for discretionary review of the first decision of the Court of Appeals, the State conceded counsel's performance was deficient. . . . It is too late for the State to reverse its decision on the deficiency-of-performance part of the Strickland standard.

Id., slip op. at 3-4. Having relied on the Attorney General to respond on its behalf before the Supreme Court, the State should not be heard now to complain of the Attorney General's confession of error. The same complaint from a criminal defendant whose lawyer conceded error in a prior proceeding, certainly, would not be heard by this Court.

When this case was before us on direct appeal, we reviewed the error under then Texas Rule of Criminal Evidence 103(d) after noting that the appellant did not object to the admission of the evidence at trial. Saldano v. State, No. 72,556 slip op. at 10 (Tex. Crim. App. Sept. 15, 1999) (not designated for publication) ("The appellant urges this Court to consider his complaint under Rule of Criminal Evidence 103(d) as fundamental error. we cannot say that the admission of Dr. Quijano's testimony of which the appellant complains was fundamental error."). The Attorney General conceded error in response to the appellant's petition for certiorari to the United States Supreme Court.