East Texas Appeals Lawyer & Attorney : Jeff Rambin Law Firm : Civil and Criminal Appeals : 12th Court of Appeals, Tyler, Texas

A while back, I posted on a Batson case in the criminal context.  Today, the Supreme Court of Texas handed down a Batson decision in the civil context -- a case of alleged racial discrimination in the workplace.

Today, the Supreme Court of Texas held that the employer's attorney struck two potential jurors on account of their race.  Wow.  The jury that was seated didn't buy the employee's claims of racial discrimination.  They entered a verdict for the employer.  Today, though, the Supreme Court of Texas set aside that verdict, and sent the case back for a new trial.  The majority opinion was written by Chief Justice Jefferson.

The last time the Supreme Court of Texas looked at Batson issues was more than ten years ago. since then the Supreme Court of the United States of America has examined the issue.  See the NY Times article on the case here.

Batson is a three step process.  First, there's a charge that a potential juror was excluded on account of race.  Second comes an assertion of race neutral reason for the exclusion.  Third is an examination of whether that race neutral reason is merely a hollow pretext.  With today's decision, step three just got a whole lot more interesting, and important.

The concurring opinion says that Batson isn't enough.  In their view, Batson is only a partial remedy for the abuses that come from giving parties the ability to exclude potential jurors. The full remedy? Do away with preemptory challenges.

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Bailey v. State (Unpublished Memo): Evocative, provocative, loaded with death.  A reproach, but not a relic.  Yet sometimes, a source of justice.  Bailey is an African-American.  There were no African-Americans on his jury.  The Tyler court affirms his conviction of aggravated assault with a deadly weapon.

Bailey appeals on Batson grounds.  In 1986 the Supreme Court of the United States shifted the burden in jury selection.  Before Batson, defendants who felt that the prosecutor struck a prospective juror over race had to come up with proof that the prosecutor had an improper motive.  A daunting task as long as the prosecutor kept tight lips on the matter.  But the Batson decision changed that.  All a defendant need do is allege that a prospective juror was excluded based on race, and the burden then falls on the prosecutor to come forward with a race-neutral basis for the exclusion.  The move-counter-move doesn't end there.  The defendant can offer proof that the prosecutor's supposed legitimate basis is nothing but a pretext.

The Tyler court finds that the prosecutor's reasons were not a pretext.  The prosecutor used four of his ten strikes on four African Americans.  When Bailey lodged a Batson challenge, the prosecutor said that he struck the four because they were young, favored rehabilitation over punishment, or knew the defense attorney.  Bailey then pointed out that whites meeting those criteria had not been struck.  The prosecutor testified those prospective juror's ties to law enforcement outweighed their youth and rehabilitation leanings.  The trial court believed the prosecutor, and the Tyler court believed the trial court.

Bailey isn't exactly Tom Robinson.  Bailey admitted that he was the shooter, but said that he was't shooting at anyone -- he was just shooting in the air.  To prove a point to a man in the front yard, and in front of a house full of children.  "But," says the Tyler court, "shooting in a person's direction is not required to commit an aggravated assault."  Normally, that would end things. 

The prosecutor, however, unnecessarily alleged that Bailey shot at the man in the front yard.  Even so, the Tyler court doesn't get into the question of whether the prosecution must prove allegations that go beyond the statutory elements of the crime.  Let's assume they did have to prove it.  There was plenty of evidence that Bailey was lying -- that he was shooting at someone.  Thus there is evidence to support the conviction.

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Johnson v. State (Unpublished Memo): Robbery conviction affirmed.  Prospective juror's brother worked at the store that was robbed (a Brookshire Bros. grocery store in Lufkin), but the brother was not involved in the Johnson incident.  The record was silent on whether the prospective juror was personally acquainted with his brother's co-workers.  The prospective juror at first indicated that he'd definitely favor his brother if his brother testified (he didn't) and might favor his brother's co-workers.  Then the prospective juror backed off, saying: "No, I don't think I would.  I'd try not to."  The trial court refused to disqualify this prospective juror, and he was seated.  Given the prospective juror's ambivalent answers, the Tyler court defers to the trial court's discretion to judge the prospective juror's demeanor and tone of voice.

Johnson had stolen a sausage.  He hid it in his pants.  I know, I know, some of you are wondering why I didn't have a witticism about this in the title.  Well, Justice Bass took the high road, and so will I.  Here's why: this was not a joke.

Store personnel confronted Johnson in the parking lot.  Johnson stopped, answered their questions, and gave back the sausage.  When asked if he had anything else, Johnson answered: "I got a .38."  The store manager sent everyone else back inside to call the police.  Johnson stayed around.  When the police came, they didn't find a weapon on Johnson.  They did, however, find a crack pipe.

On appeal, Johnson says that there was no reason to turn this petty theft into a robbery charge.  Johnson says that, since he didn't really have a gun,  the store personnel had no real reason to fear him.  Justice Bass disagreed.  In an eloquent turn of phrase, he stated: "An escaping thief's announcement that he has a pistol is enough to inspire fear in the boldest citizen."

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