Dominguez v. State Farm Ins. Co.

• Decision Date: 03 August 1995
• Docket Number: No. 08-93-00233-CV,08-93-00233-CV
• Parties: Maria DOMINGUEZ, Appellant, v. STATE FARM INSURANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 713

905 S.W.2d 713

Maria DOMINGUEZ, Appellant, v. STATE FARM INSURANCE COMPANY, Appellee.

No. 08-93-00233-CV.

Court of Appeals of Texas El Paso.

Aug. 3, 1995.

Opinion Overruling Rehearing Sept. 7, 1995.

Phillip Godwin, Odessa, Larry Zinn, San Antonio, for appellant.

James M. Rush, Denis Dennis, MacMahon, Tidwell, Hansen, Atkins & Peacock, P.C., Odessa, for appellee.

Before BARAJAS, C.J., and LARSEN and CHEW, JJ.

OPINION

LARSEN, Justice.

Maria Dominguez appeals a judgment against State Farm Insurance Company for $8,794.52 under an uninsured motorist policy. She was injured in an automobile accident on June 20, 1991, when an uninsured motorist ran a stop sign and collided with the car in which she was a passenger. Following a jury trial, the court entered judgment on the verdict which Dominguez urges was inadequate in several respects. She also appeals the trial court's denial of her Batson challenge to the jury selection process. Finding Batson error, we reverse and remand for new trial.

FACTS

Maria Dominguez is a forty-four year old Hispanic woman. After the automobile collision which is the subject of this suit, she was taken to Medical Center Hospital in Odessa, Texas. The emergency room records show that Dominguez complained of back pain, was given a pain shot and prescription for pain medication, and discharged. Between the time of the accident and trial, Dominguez received additional medical treatment. She sued State Farm for payment under the applicable uninsured motorist coverage. Before the jury was seated at trial, Dominguez challenged two peremptory strikes made by State Farm to the jury venire, alleging Batson error. The trial court overruled the Batson challenge, and the case was tried and verdict entered.

BATSON CHALLENGE

In her first point of error, Dominguez urges that the trial court erred in overruling her challenge to State Farm's exercise of peremptory challenges to minority members of the jury array. We agree.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that in criminal proceedings, the prosecution could not strike potential jurors on the basis of race. This theory has been expanded to prohibit strikes by the defense in a criminal trial, Georgia v. McCollum, 505 U.S. 42, ----, 112 S.Ct. 2348, 2359, 120 L.Ed.2d 33 (1992), strikes by any party in a civil trial, Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), and strikes based on ethnicity or gender as well as race. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (ethnicity); J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, ----, 114 S.Ct. 1419, 1430, 128 L.Ed.2d 89 (1994) (gender). ¹ Although Batson forbade racially-motivated strikes only against members belonging to the same protected group as defendant, it is no longer necessary that the objecting party be a member of the same group as the challenged veniremembers, or indeed of any protected group. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). This is so because the use of peremptory challenges to discriminate against potential jurors violates the excluded juror's right to equal protection if the strike is used against an otherwise qualified juror solely because that juror is a member of a cognizable race, ethnic group, or gender. Id. at 406, 111 S.Ct. at 1368, 113 L.Ed.2d at 422. The non-striking party possesses third party standing to assert the excluded juror's constitutional rights. Id. at 414-415, 111 S.Ct. at 1372-1373, 113 L.Ed.2d at 427, 428; In the Interest of A.D.E., 880 S.W.2d 241, 243 (Tex.App.--Corpus Christi 1994, no writ); Powers v. Palacios, 813 S.W.2d 489 (Tex.1991).

In advancing a Batson challenge, the complaining party must first present sufficient evidence to establish a prima facie case of discrimination: this consists of evidence creating a rebuttable presumption of discrimination, usually by showing a suspect pattern of strikes against members of a protected class. Texas Tech University Health Sciences Center v. Apodaca, 876 S.W.2d 402, 405 (Tex.App.--El Paso 1994, writ denied); In the Interest of A.D.E., 880 S.W.2d at 243. A prima facie case is established upon showing the minimum evidence necessary to support a rational inference that the allegation of discrimination is true. Texas Tech, 876 S.W.2d at 407. Upon making a prima facie showing, the movant is entitled to an adversary hearing, at which the judge serves as fact finder, and the usual rules of evidence apply. Id. at 408. At the Batson hearing, the burden shifts to the striking party to rebut the presumption of discrimination by producing a racially-neutral explanation for each peremptory challenge to a veniremember belonging to a protected class. Id. Such explanation, while not necessarily rising to the level of a challenge for cause, must articulate a neutral explanation reasonably related to the issues being tried. Id.; Williams v. State, 804 S.W.2d 95, 103 (Tex.Crim.App.1991). After the striking party has given racially-neutral reasons for its peremptory challenges, the complaining party may then offer evidence showing that the explanations are sham or pretext for discrimination. Texas Tech, 876 S.W.2d at 408.

On appeal, the trial court's decision on the issue of discriminatory intent is given great deference and we will not disturb it unless it is clearly erroneous. The trial court's decision is clearly erroneous only if, after our consideration of the evidence before the trial court at the time of the Batson ruling, we are left with the "definite and firm conviction that a mistake has been committed." Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App.1992). We look to both civil and criminal law for guidance in our review of a Batson challenge. Texas Tech, 876 S.W.2d at 405; Lott v. City of Fort Worth, 840 S.W.2d 146, 152 (Tex.App.--Fort Worth 1992, no writ).

In this case, plaintiff Dominguez challenged defendant's use of peremptory strikes as racially motivated:

Comes now the Plaintiff prior to the jury being selected and we would object to the Defendant's objections as to--we would object to the Defendant's strikes in selecting a jury concerning number nine, David Madrid and number twenty-seven, Joe Alfredo Rubio. And during Voir Dire there were no questions propounded to David Madrid by the Defendant's attorney, nor were there any questions propounded to Alfredo Rubio.

The Plaintiff herein being Maria Dominguez, a Hispanic, the Plaintiff objects to the strikes of the Defendant as aforementioned as they are--as being racially motivated.

The court's response to this objection was "All right. Well, let me swear you in," addressed to State Farm's counsel. State Farm's counsel did not object that Dominguez had failed to make her prima facie case. He instead allowed himself to be sworn and responded without objection to questions about his reasons for striking the two veniremembers. Where a challenged party does not obtain the trial court's ruling on whether the prima facie case has been met, that issue is waived and may not be raised on appeal. Chambers v. State, 866 S.W.2d 9, 23 (Tex.Crim.App.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1871, 128 L.Ed.2d 491 (1994); Wyle v. State, 836 S.W.2d 796, 797 (Tex.App.--El Paso 1992, no pet.). In this case, by holding a hearing, the trial court impliedly found a prima facie case of discrimination had been met and we will not review that finding. Wyle, 836 S.W.2d at 797. ² We therefore turn to State Farm's counsel's reasons for striking the two veniremembers, which must be based on something other than ethnicity and must be facially valid.

As to the first juror strike, David Madrid, counsel's testimony was:

He is a twenty year old, unemployed. And while he was in Phillip Godwin's Voir Dire, he looked bored, wasn't paying attention. Those are the notes that I have taken on this gentleman.

Regarding the second questioned strike, of Alfredo Rubio, defense counsel's sole reason was:

The only reason I have for cutting him was that he appeared to be responding well to some of Phillip's questioning regarding the insurance coverage.

The court then asked of defense counsel: "Well, did you strike either of these gentlemen because they were Hispanic?" Counsel responded, "No." That was the entirety of the Batson hearing. Plaintiff's counsel did not cross-examine opposing counsel, nor offer any evidence attempting to show that the asserted neutral reasons were pretext. The trial court, impliedly finding no Batson violation, seated the jury with the strikes as originally made.

The party exercising a peremptory strike, challenged under Batson, must give a "clear and reasonably specific" explanation of "legitimate reasons" for the strike. Lott, 840 S.W.2d at 152. We find that defense counsel's explanation of the peremptory challenge to David Madrid was racially neutral and facially valid; both youth and employment status are proper considerations in making peremptory challenges. Jack v. State, 867 S.W.2d 942, 947 (Tex.App.--Beaumont 1993, no pet.); Barnes v. State, 855 S.W.2d 173, 174 (Tex.App.--Houston [14th Dist.] 1993, pet ref'd). (We do note, however, that striking a veniremember because he seemed bored by opposing counsel is unusual.) Although Dominguez's counsel raised some evidence of disparate treatment on motion for new trial (that several non-Hispanic panel members were not struck by State Farm despite their youth or lack of employment) that evidence came too late. We must judge whether the trial court's decision was clearly erroneous based upon the evidence presented at the time of the Batson hearing. Hill v. State, 827 S.W.2d 860, 870 (Tex.Crim.App.1992). Evidence adduced after the jury is seated will not support reversal of a Batson ruling. We therefore conclude that the trial court correctly upheld the peremptory challenge to veniremember David Madrid.

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