Price v. Short

• Decision Date: 30 August 1996
• Docket Number: No. 05-95-00555-CV,05-95-00555-CV
• Citation: 931 S.W.2d 677
• Parties: John Wiley PRICE, Appellant, v. Timmy Don SHORT, Appellee.
• Court: Texas Court of Appeals

Page 677

931 S.W.2d 677

John Wiley PRICE, Appellant, v. Timmy Don SHORT, Appellee.

No. 05-95-00555-CV.

Court of Appeals of Texas Dallas.

Aug. 30, 1996.

Cheryl B. Wattley, Dallas, for appellant.

Robert C. Hinton, Jr., McKinley, Hinton & Ringer, L.L.P., Dallas, for appellee.

Before LAGARDE, MORRIS and WHITTINGTON, JJ.

OPINION

LAGARDE, Justice.

John Wiley Price appeals the judgment on a jury's verdict rendering him individually liable to Timmy Don Short for $113,838.01. In the first five of six points of error, appellant contends that the trial court erred in: (a) denying in part appellant's Edmonson ¹ motion; (b) granting in part appellee's Edmonson motion; (c) denying appellant's motion for leave to file amended pleading; and (d) refusing appellant's requested jury instructions on battery and self-defense. In his sixth point of error, appellant contends that the evidence is insufficient to support the jury's award of damages. We overrule the points and affirm the trial court's judgment.

FACTUAL BACKGROUND

On August 2, 1991, appellee was part of a film crew that was working outside the Dallas County Administration Building, formerly the Texas School Book Depository Building, on the film "Ruby." A piece of styrofoam extended into the street in front of the building. Appellant, who is a Dallas County Commissioner, was driving down that street when he had to stop suddenly to avoid hitting the styrofoam. Appellant parked his van and approached the film crew shouting profanity about the styrofoam. Appellant and appellee became embroiled in a physical altercation during which appellant placed appellee in a headlock. Appellee's ankle was pressed against the curb. During the struggle, appellant applied so much pressure to appellee's leg that the ankle broke.

JURY SELECTION

In his first point of error, appellant contends that the trial court erred in overruling his objections to three of appellee's peremptory strikes because the strikes were exercised in a racially discriminatory manner. In Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), the Supreme Court held that the reasoning of Batson v. Kentucky and its progeny in criminal cases prohibiting the exercise of peremptory strikes for racial purposes applies in civil cases. Edmonson, 500 U.S. at 631, 111 S.Ct. at 2088-89; see Powers v. Palacios, 813 S.W.2d 489, 491 (Tex.1991); see generally Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam); Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

To invoke the protection of Edmonson, a party must raise an inference of purposeful discrimination, and the trial court must determine that a prima facie case of discrimination exists by virtue of the striking party's use of its peremptory strikes. A party establishes a prima facie case of discrimination by showing facts and any relevant circumstances that raise an inference that the striking party used peremptory strikes to exclude veniremembers on account of their race. See Powers, 499 U.S. at 409, 111 S.Ct. at 1369-70; Batson, 476 U.S. at 96, 106 S.Ct. at 1722-23; Mead v. State, 819 S.W.2d 869, 870 (Tex.Crim.App.1991); Keeton v. State, 724 S.W.2d 58, 65 (Tex.Crim.App.1987). When a party establishes a prima facie case, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation. Purkett, 514 U.S. at ----, 115 S.Ct. at 1770; Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Keeton, 724 S.W.2d at 65. The explanation must be race neutral; it need not be persuasive or even plausible. Purkett, 514 U.S. at ----, 115 S.Ct. at 1771. If a race-neutral explanation is tendered, the complaining party may offer evidence showing that the explanation is a sham or pretext for discrimination. The trial court must then decide whether the opponent of the strike has proved racial discrimination. Purkett, 514 U.S. at ---- - ----, 115 S.Ct. at 1770-71.

On appeal, the trial court's decision on the issue of discriminatory intent is given great deference because a determination of the issue of purposeful discrimination depends on assessing the credibility and the content of the striking party's explanation and all other relevant facts and circumstances. Alexander v. State, 866 S.W.2d 1, 8 (Tex.Crim.App.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1869, 128 L.Ed.2d 490 (1994). The reviewing court will not disturb the trial court's decision unless it is clearly erroneous. Hernandez v. New York, 500 U.S. 352, 369, 111 S.Ct. 1859, 1871-72, 114 L.Ed.2d 395 (1991); Whitsey v. State, 796 S.W.2d 707, 727 (Tex.Crim.App.1989) (op. on reh'g). In other words, a reviewing court must not reverse a trial court's Edmonson decision unless the reviewing court is left with a firm conviction that a mistake has been committed. Harris v. State, 827 S.W.2d 949, 955 (Tex.Crim.App.), cert. denied, 506 U.S. 942, 113 S.Ct. 381, 121 L.Ed.2d 292 (1992); Whitsey, 796 S.W.2d at 721. If the trial court determines that the prosecution used peremptory strikes in a racially discriminatory manner, the court may dismiss the array and summon a new one, TEX.CODE CRIM. PROC. ANN. art. 35.261 (Vernon 1989), or it "may fashion a remedy in its discretion consistent with Batson and its progeny." State ex rel. Curry v. Bowman, 885 S.W.2d 421, 425 (Tex.Crim.App.1993) (trial court has discretion to place wrongfully struck veniremembers on jury panel instead of dismissing venire), cert. denied, 513 U.S. 866, 115 S.Ct. 184, 130 L.Ed.2d 118 (1994).

Both appellant and appellee filed Edmonson motions in this case. Appellant, who is black, complained of appellee's using all six peremptory strikes on black veniremembers. Appellee, who is white, complained of appellant's using all six peremptory strikes on white veniremembers. After hearing each side's explanation for its respective six peremptory strikes, the trial court sustained appellant's Edmonson motion on four of appellee's peremptory strikes and sustained appellee's Edmonson motion on two of appellant's peremptory strikes. The trial court ordered four of the six improperly struck veniremembers placed on the jury. ²

Appellee's Peremptory Strikes

In his first point of error, appellant contends that the trial court erred in overruling his Edmonson motion as to two of the veniremembers. Appellee's reason for striking veniremember five, Cassandra Boston, was as follows:

Now, [she] sat there for 45 minutes and sneered at at [sic] me, and I don't think it was bad gas. I don't think she cared for our side.

She appeared very much to care for the defendant's side. It didn't appear to me that it would be prudent under the circumstances regardless of what the color of her skin was to leave her on this jury if I expected to win. Therefore I chose to exercise our second peremptory challenge on No. 5.

Appellee's reason for striking veniremember eighteen, Oretha Peppers, was as follows:

Now, I had visual contact with Ms. Peppers on several occasions, and I saw that she had visual contact with either Mr. Price or somebody over there at the defense table. It appeared to me right away that I wasn't going to get anywhere with that juror.

I have a little note here that says that she's mean. She appeared to me to be extremely mean to my side, so I decided on that ground to exercise a peremptory challenge.

After appellee explained his peremptory strikes, the trial court offered him the chance to make his own Edmonson motion against appellant, which appellee did. The trial court then asked appellant to respond to appellee's Edmonson motion before responding to appellee's explanations to appellant's Edmonson motion. Neither appellant nor appellee offered evidence or argument to rebut each other's explanations. The trial court then ruled on both Edmonson motions.

Appellee's peremptory strikes of Boston and Peppers were based on their nonverbal conduct. When a peremptory strike is based on a veniremember's nonverbal conduct, the party must describe that conduct or an inference of discrimination will arise. See Hill v. State, 827 S.W.2d 860, 870 (Tex.Crim.App.), cert. denied, 506 U.S. 905, 113 S.Ct. 297, 121 L.Ed.2d 221 (1992); Dominguez v. State Farm Ins. Co., 905 S.W.2d 713, 717 (Tex.App.--El Paso 1995, writ dism'd by agr.). Appellee described the veniremembers' specific conduct that was the basis of his strikes: Boston's sneering and Peppers's looking "extremely mean." These reasons are facially race neutral. Appellant has not shown that the trial court's determination was clearly erroneous. Accordingly, we overrule appellant's first point of error.

Appellee's Prima Facie Case

In his second point of error, appellant asserts that the trial court erred in requiring appellant to explain his peremptory strikes because appellee did not make a prima facie case. Appellant exercised all of his peremptory strikes against white veniremembers. Appellant asserts for the first time on appeal that Batson and its progeny do not apply to the striking of white or "majority" veniremembers. Because appellant did not object on this ground at trial, any error is waived. See TEX.R.APP. P. 52(a); J.R.W. v. State, 879 S.W.2d 254, 258 (Tex.App.--Dallas 1994, no writ) (equal-protection argument waived by failure to assert at trial); Commonwealth Lloyd's Ins. Co. v. Thomas, 825 S.W.2d 135, 147 (Tex.App.--Dallas 1992) ("A party may not enlarge a ground of error on appeal to include an objection not asserted at trial."), vacated on other grounds, 843 S.W.2d 486 (Tex.1993). Furthermore, because appellant explained the reasons for the peremptory strikes, the issue of appellee's establishment of a prima facie case is moot. See Malone v. State, 919 S.W.2d 410, 412 (Tex.Crim.App.1996) (plurality opinion); Reich-Bacot v. State, 789 S.W.2d 401, 403 (Tex.App.--Dallas 1990), pet. dism'd per curiam, 815 S.W.2d 582 (Tex.Crim.App.1991)...