stating that "once the objecting party makes a prima facie case of purposeful discrimination, the responding party may come forward with two or more independent explanations for its peremptory challenge(s). If at least one of those explanations is neutral, the trial court will have to determine whether the responding party would have exercised the peremptory challenge(s) anyway solely because of the neutral reason(s)"
How later courts described this case
- stating that "once the objecting party makes a prima facie case of purposeful discrimination, the responding party may come forward with two or more independent explanations for its peremptory challenge(s). If at least one of those explanations is neutral, the trial court will have to determine whether the responding party would have exercised the peremptory challenge(s) anyway solely because of the neutral reason(s)"
- recognizing the applicability"of J.E.B. in Texas
- discriminatory intent inherent in reason for peremptory challenge that males under the age of thirty would identify with opponent
- erroneous use of peremptory strike on basis of gender not subject to harm analysis
Written by the judges who cited it.
The opinion
MEYERS, Judge,
concurring.
Despite the Supreme Court’s declaration in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 , 114 S.Ct. 1419 , 128 L.Ed.2d 89 (1994) that gender-based peremptory strikes are unconstitutional, the Court of Appeals mistakenly characterized the explanation given by the prosecutor in response to the appellant’s prima facie case as being “gender neutral”. But a peremptory strike cannot be called gender neutral when, as here, gender is an inextricable component of the only reason given in response to the strike. For this reason, I agree with the majority opinion that the trial court erred in its ruling.
No doubt, the Supreme Court’s mandate in J.E.B. reaches only those peremptory strikes based on gender. The United States Constitution thus does not bar those peremptory strikes “based on a juror characteristic other than gender,” so long as the “proffered ex *848 planation [is] not pretextual.” 511 U.S. at 145, 114 S.Ct. at 1430 . Of course, once the objecting party makes a prima facie case of purposeful discrimination, the responding party may come forward with two or more independent explanations for its peremptory challenge(s). If at least one of these explanations is neutral, the trial court will have to determine whether the responding party would have exercised the peremptory challenge(s) anyway solely because of the neutral reason(s). See Hill v. State, 827 S.W.2d 860, 869 (Tex.Crim.App.1992). In this case, however, the prosecutor tendered only one explanation for his peremptory strikes of both venire-persons Hernandez and Straube. Gender and age served, equally, as a basis for these strikes. The State’s explanation that both venire members were struck because they were “males ... under the age of thirty” indicates that neither factor was a matter of mere happenstance. In other words, the State would not have struck Hernandez and Straube but for their gender.
Hill v. State, 827 S.W.2d 860 (Tex.Crim.App.1992) is instructive in this regard. In Hill , the defendant objected, under the Equal Protection Clause, to the State’s peremptory challenge of an African-American male. The prosecutor responded that he challenged the potential juror for two independent reasons:
“[a] I felt like he would identify with the defendant. He’s black, he’s male, and [b] I didn’t like the way he responded to my questions ... his attitude, his demeanor.” 1
With respect to the prosecutor’s “identity” theory, a plurality of this Court held that a racially discriminatory intent was inherent in the prosecutor’s explanation: “[T]he alleged identity between the veniremen and [the defendant], based only on the shared sex and shared race of the venireman and [the defendant], does not escape Batson’s prohibition against making the assumption that because the defendant and the veniremen are of the same race they would identify with each other.” Id. at 869 . In fact, four concurring judges of this Court expressed an even stronger view. They would have held simply that “equal protection is denied whenever race is a factor in the exercise of a peremptory challenge.” Id. at 875 .
A similar situation was addressed in Jones v. Ryan, 987 F.2d 960 (3rd Cir.1993). In that case, the defendant objected, under the Equal Protection Clause, to the prosecutor’s peremptory challenge of an African-American female. The prosecutor responded that he challenged the potential juror because she was “the same approximate age and race [as] the [male] defendant” and that he did so “to avoid any potential ... attraction ... between the juror and the defendant.” The Third Circuit noted that “[s]imilarly situated white women apparently were not within the scope of the prosecutor’s potential attraction theory,” id. at 974 , and held that a racially discriminatory intent “was inherent in the explanation given by the prosecutor,” id.
As in Hill and Jones , the prosecutor in this case proffered an unconstitutional explanation for the peremptory challenges of Hernandez and Straube. To hold otherwise would undermine the letter and spirit of J.E.B. With these comments I join the opinion of the Court.
. At the time of the Hill opinion, peremptory challenges based on gender had not yet been held unconstitutional.