A.D.E., In Interest of

• Decision Date: 07 July 1994
• Docket Number: No. 13-93-586-CV,13-93-586-CV
• Parties: In the Interest of A.D.E., a Child.
• Court: Texas Court of Appeals

Page 241

880 S.W.2d 241

In the Interest of A.D.E., a Child.

No. 13-93-586-CV.

Court of Appeals of Texas Corpus Christi.

July 7, 1994.

Elaine S. Michael, League City, Diane D. Clark, Texas City, for appellant.

Michael J. Guarino, Crim. Dist. Atty., Denise V. Wilkerson, Asst. Crim. Dist. Atty., Galveston, for appellee.

Before DORSEY, FEDERICO HINOJOSA and YANEZ, JJ.

OPINION

YANEZ, Justice.

Loretta and Anthony Earls appeal from an order terminating their parent-child relationships with their child, A.D.E. Following a jury verdict, the trial court ordered their parent-child relationships terminated and appointed the Texas Department of Protective and Regulatory Services as managing conservator. We affirm.

The day A.D.E. was born, the State, through Galveston County Children's Protective Services (Galveston C.P.S.), filed a suit for the protection of a child in an emergency and an original petition in suit affecting the parent-child relationship. Emergency relief was granted the next day whereby the court appointed the State, Galveston C.P.S., as temporary managing conservator of the child. Galveston C.P.S. took possession of A.D.E. the same day. Two weeks later, the court held a hearing and issued temporary orders that the State continue as A.D.E.'s managing conservator. The temporary orders do not name a possessory conservator, nor is there any mention of visitation rights for either parent. After three six-month review hearings, the State filed a petition to terminate the parent-child relationships between Loretta and Anthony Earls and their child A.D.E.

At the termination trial, the jury found that Anthony Earls' parental rights should be terminated on the grounds that he had failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition and that termination was in the child's best interest. The jury found that Loretta Earls' parental rights should be terminated because, prior to her marriage to Anthony Earls, she had been adjudicated criminally responsible for the death or serious injury of another of her children and that termination was in the best interest of this child.

On appeal, Loretta brings one point raising a Batson error by the trial court. By two points of error, Anthony contends that there is insufficient evidence to support the finding that he failed to financially support his child and that he was "denied due process to notice and the right to be heard thereby denying him his constitutional right to his child."

Loretta's Batson Challenge

Loretta contends that the trial court erred in overruling her objections that the State exercised its peremptory challenges to remove all African-American veniremembers.

Veniremembers twelve and nineteen were the only African-Americans on the jury panel. The State, utilizing its peremptory challenges, struck both. Before the jury was sworn in by the court, appellant made a Batson challenge asserting that the African-American panelists had been struck because of racial bias. The trial court made no findings of fact or conclusions of law. Appellant asserts that there was a strong inference that these women were struck because of their race.

The use of peremptory challenges to discriminate against potential jurors in a civil case because of race is a violation of the excluded juror's right to equal protection, a right which may be asserted by the party not exercising the peremptory strikes. See Powers v. Palacios, 813 S.W.2d 489 (Tex.1991) (citing Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) & Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). The Texas Code of Criminal Procedure was amended to incorporate the Batson holding. See Tex.Code Crim.Proc.Ann. art. 35.261 (Vernon 1989). As there has not yet been an amendment to the Texas Rules of Civil Procedure regarding peremptory strikes based upon race, we look to the criminal jurisprudence of the State for guidance. Lott v. City of Fort Worth, 840 S.W.2d 146, 149 (Tex.App.--Fort Worth 1992, no writ).

At a Batson hearing, the complaining party must present evidence that gives rise to a rebuttable presumption of racial discrimination by the striking party in the exercise of their peremptory challenges. Id. at 150. If the complaining party carries that burden, then the burden shifts to the striking party to rebut the presumption by a racially neutral explanation for each peremptory challenge exercised against a minority venireperson. Id. While the striking party's explanation need not rise to the level justifying the exercise of a challenge for cause, the party must articulate a neutral explanation related to the particular case to be tried. Williams v. State, 804 S.W.2d 95, 103 (Tex.Crim.App.1991); Woods v. State, 801 S.W.2d 932, 934 (Tex.App.--Austin 1990, pet. ref'd). A neutral explanation is one based upon something other than the race of the juror. "The issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Chambers v. State, 866 S.W.2d 9, 24 n. 16 (Tex.Crim.App.1993) (citing Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991)).

Once the striking party has given its racially neutral explanations, the complaining party can offer evidence showing these explanations are merely a sham or pretext for discrimination. Woods, 801 S.W.2d at 935. The complaining party has the ultimate burden to persuade the trial judge that the reasons offered by the State for the peremptory challenge were merely pretextual and a cover for a racially motivated challenge. Camacho v. State, 864 S.W.2d 524, 528 (Tex.Crim.App.1993) (citing Hill v. State, 827 S.W.2d 860, 870 (Tex.Crim.App.1992)). At the conclusion of the Batson hearing, the trial court must determine if the party has established purposeful discrimination. Young v. State, 826 S.W.2d 141, 145 (Tex.Crim.App.1991), reversed on remand, 848 S.W.2d 203 (Tex.App.--Dallas 1992), pet. ref'd, 856 S.W.2d 175 (Tex.Crim.App.1993).

When appealing a Batson ruling, appellant may not raise matters on appeal that were not raised before the trial court. Young, 826 S.W.2d at 146. Appellant may argue what is in evidence from the voir dire proceeding and what was introduced as evidence at the Batson hearing and explain why she should prevail on her Batson claim. Id. The State is likewise allowed to argue before the appellate court the facts developed in the record to support its neutral explanation given in response to appellant's prima facie case or to controvert the rebuttal evidence offered by appellant in the Batson hearing or the comparisons raised on appeal to show that its explanations were racially neutral. Id.

The trial court's decision on the ultimate question of discriminatory intent is to be accorded great deference on appeal, and we will not disturb the ruling unless it is "clearly erroneous." Id.; Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Crim.App.1990) (on rehearing). If supported by the record, including voir dire, the prosecutor's explanation of his use of a peremptory challenge, the rebuttal by appellant, and impeaching evidence, the decision of the trial court will not be clearly erroneous. Camacho, 864 S.W.2d at 528. We look to the record to see if we are left with the "definite and firm conviction that a mistake has been committed." Hill, 827 S.W.2d at 865.

This Particular Batson Hearing

Loretta complained by a timely Batson objection that all of the African-Americans on the panel were struck by the State. This gave rise to a rebuttable presumption of racial discrimination.

The State then offered its race neutral explanation at the Batson hearing, stating that it struck veniremember nineteen because she was a neighbor of Loretta's attorney. The State's attorney believed that it would be very difficult for veniremember nineteen to face Loretta's attorney at home if she were on the jury and voted against her. The State's attorney continued its explanation stating that if veniremember nineteen had not lived in the same apartment complex as Loretta's attorney, he would not have struck her. At the Batson hearing, appellant's attorney offered no evidence to rebut the State's explanation and stated that she understood why the State struck juror nineteen.

The statement of facts from the voir dire proceedings reflects that veniremember nineteen was a neighbor of Loretta's attorney in that they lived in the same apartment complex. Loretta failed to show that the State's explanation was merely pretextual and racially motivated. Reviewing the evidence in the light most favorable to the ruling, we conclude that the trial court's overruling of appellant's objection to the State's peremptory strike against veniremember nineteen was not clearly erroneous.

Regarding veniremember twelve, the following occurred:

[Appellant's Attorney]: Your Honor, at this time on behalf of Loretta Earls, I would like to make a Batson challenge that all Afro-American panelists on the panel have been struck and that the D.A. has made those strikes, if they were made by him, because of a racial bias.

[Prosecutor]: May I get my list, Judge? I wrote down my reasons.

Court: Okay.

[Prosecutor]: Okay, Judge, what are their numbers?

[Appellant's Attorney]: # 12 and # 19.

[Prosecutor]: Judge, I think I need to put on my reasons for striking # 12....

Court: Go ahead.

[Prosecutor]: # 12, ... because she is a grandmotherly type. Other than that, I liked her a lot. If she was younger, I would have kept her....

[Appellant's Attorney]: In answer to the striking of # 12, the grandmotherly type, [# 8] is 69 years old and is a grandmotherly type.

. . . . .

[Prosecutor]: Let me get my other list. Hang on just a minute.

. . . . .

[Prosecutor]: Once again, Judge, I have no notes by [# 8]...