Fritz v. State

MANSFIELD, Judge,

dissenting.

I respectfully dissent to the majority’s holding that the State’s explanation for the peremptory challenges in question was not gender-neutral.

The Relevant Facts

Appellant, Joseph L. Fritz, was convicted of capital murder in the 226th District Court of Bexar County. During jury selection, the State peremptorily challenged seven of the fourteen males and three of the eighteen females on the venire. 1 Appellant timely objected to the peremptory challenges of the seven males on the ground they were gender-based and therefore in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitu *849 tion. Although the State responded that appellant had failed to make a prima facie case of purposeful gender discrimination, it proceeded nonetheless to offer explanations for the peremptory challenges of the seven males, explaining that it was doing so for “appellate review purposes.” With respect to five of the peremptory challenges, the State’s explanations were plainly gender-neutral, but with respect to the remaining two (those striking venire members Roland Hernandez and Erik Straube), the State’s explanation was that they were struck because they were “males ... under the age of thirty.” The State further explained that its policy in this case was to strike all males under the age of thirty because of the “bias or common ground” they might have with appellant, who was a 21-year-old male. The State mentioned nothing about striking females under the age of thirty.

After the State gave its explanations, the district court found that appellant had made a prima facie showing of purposeful gender discrimination. The district court also found, however, that the State’s explanations were gender-neutral and true. Consequently, it overruled appellant’s objection.

On direct appeal, appellant renewed his federal equal protection claim, arguing that the State’s peremptory challenges of venire members Hernandez and Straube because they were males under the age of thirty amounted to unconstitutional gender discrimination. The Fourth Court of Appeals rejected appellant’s argument, holding that the district court’s ruling on his equal protection claim was not clearly erroneous:

Appellant presented no evidence which would cast doubt upon the facially neutral explanations proffered by the prosecutor.... Because the findings of the trial judge are supported by the record, we do not find the findings to be “clearly erroneous.”

Fritz v. State, No. 04-94-00659-CR, 1995 WL 624569 (Tex.App.—San Antonio, Oct.25, 1995) (unpublished) (quotation marks in original). We granted appellant’s petition for discretionary review to determine whether the State’s explanation for its peremptory challenges of Hernandez and Straube was, as a matter of law, gender-neutral. See Tex. R.App. Proc. 200(c)(3).

In his brief to this Court, appellant argues that the State may not “us[e] the shared gender of [a] venireman and [a defendant] as a means of [presuming] an identity between them.” Appellant further argues that “the fact that the State [in this case] used gender as part of its explanation for [two of] its peremptory challenged] ... is indicative of purposeful discrimination.” In its reply brief, the State argues simply that the trial court’s overruling of appellant’s equal protection claim was not “clearly erroneous” because (a) “the explanations [for the peremptory challenges] put forth by the prosecution were gender-neutral on their face” and (b) appellant offered “no proof ... that the explanations were implausible or pretextual.”

The Relevant Law

The Equal Protection Clause provides that “[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws.” Under this clause, “whether the trial is civil or criminal, potential jurors, as well as litigants, have [a] right to jury selection procedures that are free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128 , 114 S.Ct. 1419, 1421 , 128 L.Ed.2d 89 (1994). Thus, the Equal Protection Clause prohibits purposeful discrimination in jury selection on the basis of race, Batson v. Kentucky, 476 U.S. 79, 85-86 , 106 S.Ct. 1712, 1716-1717 , 90 L.Ed.2d 69 (1986), or gender, J.E.B. v. Alabama ex rel. T.B., 511 U.S. at 145-146, 114 S.Ct. at 1430 , or on the assumption that an individual will be biased in a particular case for no reason other than her race, Batson v. Kentucky, 476 U.S. at 97-98 , 106 S.Ct. at 1723-1724 , or gender, J.E.B. v. Alabama ex rel. T.B., 511 U.S. at 145-146, 114 S.Ct. at 1430 . The Batson and J.E.B. opinions were “grounded on the need to address our Nation’s historical and uniquely painful and destructive patterns of race and sex discrimination.” Casarez v. State, 913 S.W.2d 468, 498 (Tex.Crim.App.1994) (Mansfield, J., concurring on reh’g).

Either party in a criminal trial has standing to object to the other party’s use of a peremptory challenge on the basis of race or *850 gender. Georgia v. McCollum, 505 U.S. 42, 55-56 , 112 S.Ct. 2348, 2357 , 120 L.Ed.2d 33 (1992). The objecting party must first make a prima facie showing that the other party has used a peremptory challenge to remove a potential juror on account of her race or gender. Purkett v. Elem, 514 U.S. 765, 767 , 115 S.Ct. 1769, 1770 , 131 L.Ed.2d 834 (1995). Once the objecting party has made out a prima facie case of purposeful discrimination (step one), the burden of production shifts to the other party to come forward with a neutral explanation (step two). Id. If a neutral explanation is tendered, the trial court must then decide (step three) whether the objecting party has proved purposeful discrimination. 2 Id. At the second step of this process, the issue is the facial neutrality of the offered explanation. Id. at 768 , 115 S.Ct. at 1771 . “Unless a discriminatory intent is inherent in the ... explanation, the reason offered will be deemed ... neutral.” Id. Whether the explanation offered is actually neutral is a question of law. Id.; United States v. Johnson, 941 F.2d 1102, 1108 (10th Cir.1991). Finally, if the inquiry properly proceeds to step three and the trial court rules on the ultimate question of purposeful discrimination, that decision is reviewable on appeal for clear error. Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Crim.App.1989).

Analysis

The question presented today is a “step two” question, i.e., whether the State’s explanation for its peremptory challenges of veni-re members Hernandez and Straube was gender-neutral. The State explained that it peremptorily challenged them because they fell into the relatively narrow category of males under the age of thirty, i.e., those persons who, it was reasonable to believe, might identify closely with the defendant. In other words, it was not the State’s policy to strike all males, which would have been forbidden under J.E.B., but rather only those in a small subset of the male gender. I believe that the State’s policy in this case, reasonable on its face, was permissible under J.E.B.

In J.E.B. the Supreme Court condemned the invidious, broad ranging discrimination that would result if a person were to be peremptorily struck merely because of his gender. The Supreme Court explained that such a strike would, among other things, send a message to all those who learn of it “that certain individuals, for no reason other than gender, are presumed unqualified by state actors to decide important questions upon which reasonable persons could disagree.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. at 141, 114 S.Ct. at 1428 . But that was not the message sent by the State’s strikes of Hernandez and Straube. The message sent was not that all males were unqualified to serve as jurors, but rather only that small subset under the age of thirty who, it was reasonable to believe, might identify closely with the defendant. The State was not indulging in the assumption, forbidden by J.E.B., that venire members Hernandez and Straube would be biased solely because of their gender.

The State, as representative of the people, has a strong interest in assuring that criminal juries are fair and impartial, and it must be free to use peremptory challenges to strike venire members whose attributes reasonably call into question their ability to be fair and impartial, as long as such peremptory challenges do not reinforce group stereotypes rooted in, and reflective of, historical prejudice. The State’s challenges in this case did not reinforce such stereotypes and were permissible.

I would hold that the State’s explanation for its peremptory challenges of venire members Hernandez and Straube was gender-neutral within the meaning of Supreme Court precedent. I would affirm the judgment of the court of appeals.

McCORMICK, P.J., joins.

. Because the State did not seek the death penally, it had ten peremptory challenges to exercise. See Tex.Code Crim. Proc. Art. 35.15(b).

. Once the responding parly has offered a neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of purposeful discrimination, the preliminary issue of whether the objecting party had made a prima facie showing becomes moot. Hernandez v. New York, 500 U.S. 352, 359 , 111 S.Ct. 1859, 1866 , 114 L.Ed.2d 395 (1991) (plurality opinion).