Goode v. Shoukfeh

GONZALEZ, Justice,

concurring.

Although I concur in the judgment, I object to the Court’s refusal to adopt the “clearly erroneous” standard of reviewing a Batson/Edmonson challenge. I would follow the lead of the federal courts and the Texas. Court of Criminal Appeals and adopt this standard, rather than the “abuse of discretion” standard the Court applies today. In addition, I write separately to express relief that, contrary to the prediction I made in City of Beaumont v. Bouillion, 896 S.W.2d 143, 150 (Tex.1995) (Gonzalez, J., concurring), peremptory challenges are not dead, but are alive and well in Texas.

In Bouillion , I noted a shift in the focus of our peremptory challenge jurisprudence from a litigant’s right to receive a fair and impartial trial to a prospective juror’s right to be free from discrimination. Bouillion, 896 S.W.2d at 151 (Gonzalez, J., concurring). Before today, this shift had extended to the verge of ridiculousness. The definition of “cognizable group” — analyzed as part of the first phase of evaluating a Batson/Edmonson objection — had become so expansive in some courts that a litigant could object to almost any peremptory strike on the ground that the excluded venire member had characteristics not shared by other members of the panel. Id. at 154 .

As the Court acknowledges, in federal courts, in Texas criminal appeals, and heretofore in Texas civil appeals, the standard of review of a Batson/Edmonson challenge has been whether the ruling was “clearly erroneous.” See 943 S.W.2d 446 ; see also Vargas v. State, 838 S.W.2d 552, 553-54 (Tex.Crim.App.1992); DeBlanc v. State, 799 S.W.2d 701, 713 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259 , 111 S.Ct. 2912 , 115 L.Ed.2d 1075 (1991); Cain v. Pruett, 938 S.W.2d 152, 161 (Tex.App.—Dallas 1996, n.w.h.); Molina v. Pigott, 929 S.W.2d 538, 545 (Tex.App.—Corpus Christi 1996, n.w.h.); In re A.D.E., 880 S.W.2d 241, 243 (Tex.App.—Corpus Christi 1994, no writ); Texas Tech Univ. Health *454 Sciences Center v. Apodaca, 876 S.W.2d 402, 408 (Tex.App.—El Paso 1994, writ denied); Lott v. City of Fort Worth, 840 S.W.2d 146, 150 (Tex.App.—Fort Worth 1992, no writ). Given that the courts of appeals are accustomed to applying the clearly erroneous standard in civil matters, I see no compelling reason to deviate from it now.

In addition, it is debatable which standard is more deferential to the trial court, and whether any real difference exists between the two standards. The definition of abuse of discretion is well established and admittedly gives great deference to the trial court. See Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.1996); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985). As we recently explained, for the trial court to abuse its discretion, there must have been only one reasonable decision, and the trial court must have gone against this decision. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). The Walker articulation of the abuse of discretion standard is indistinguishable from the clearly erroneous standard as quoted by this Court. See 943 S.W.2d 446 . In the case before us, the result would be the same under either standard. For the sake of consistency in our courts of appeals, however, I would adopt the clearly erroneous standard.

Aside from this objection, I agree with the Court’s analysis. Reviewing the case before us, we conclude that Shoukfeh’s explanation that he struck juror nine “because she was an unmarried, unemployed, mother of four, apparently on welfare, whom he believed would be a ‘bad defense juror’” is facially race-neutral. 943 S.W.2d 447 . This explanation does not violate the Equal Protection Clause as a matter of law because there is no demand that the explanation be persuasive or even plausible. The issue is the facial validity of the explanation. Purkett v. Elem, 514 U.S. 765, 769-70 , 115 S.Ct. 1769, 1770-71 , 131 L.Ed.2d 834 (1995).

The showing of a prima facie case by the opponent of the strike effectively creates a rebuttable presumption that the prospective juror’s equal protection rights have been violated. This presumption only shifts the burden of coming forward with the evidence; it does not shift the burden of persuasion. Id. at 768 , 115 S.Ct. at 1771 . Any facially neutral explanation for the strike is sufficient to rebut the presumption that the strike is racially motivated; however, the burden of persuasion is always on the party opposing the strike. Id.

Because the party making the strike does not have the burden of persuasion, the plausibility of the justification is not considered. Plausibility is only relevant in determining the weight of the burden that the opponent of the strike must overcome in his offer of proof. An implausible justification, though neutral, would most likely be found pretextual in the face of solid evidence of discrimination. Id. It therefore follows that even a weak justification, if plausible, will be upheld if the opponent of the strike does not meet his burden of proof. Justifications that have been used to uphold strikes include body language, inattentiveness, physical characteristics, demeanor, dress, and youth. See Elaine A. Carlson, Batson, J.E.B., and Beyond: The Paradoxical Quest for Reasoned Peremptory Strikes in the Jury Selection Process, 46 Baylor L.Rev. 947, 998 (1994).

Because the ultimate burden of showing a discriminatory purpose still falls on the party opposing the strike, peremptory strikes retain their distinct status. Peremptory strikes still may be differentiated from challenges for cause because the party opposing a challenge for cause has the burden of showing the legitimacy of the justification, whereas with peremptory strikes, the opponent of the strike has the burden. Attorneys may once again strike prospective jurors who happen to be of a cognizable class (race, ethnicity, or gender) on the basis of an unquantifiable feeling, such as a hunch or instinct, as long as the party exercising the strike comes forward with a race-neutral explanation. Today’s decision, by clearly placing the burden on the opponent of the strike, breathes much-needed life into peremptory challenges in Texas.