Moeller v. Blanc

• Decision Date: 30 December 2008
• Docket Number: No. 05-06-00063-CV.,05-06-00063-CV.
• Citation: 276 S.W.3d 656
• Parties: David MOELLER, Appellant, v. Michael BLANC, M.D. and Columbia Hospital at Medical City Dallas Subsidiary, L.P. d/b/a Medical City Dallas Hospital, Appellees.
• Court: Texas Court of Appeals

276 S.W.3d 656

David MOELLER, Appellant, v. Michael BLANC, M.D. and Columbia Hospital at Medical City Dallas Subsidiary, L.P. d/b/a Medical City Dallas Hospital, Appellees.

No. 05-06-00063-CV.

Court of Appeals of Texas, Dallas.

December 30, 2008.

Rehearing Overruled February 18, 2009.

Frederick H. Shiver, Russell & Shiver, L.L.P., Dallas, TX, Peter M. Kelly, Houston, TX, for Appellant.

Michelle E. Robberson, David E. Olesky, Cooper & Scully, P.C., Ty Bailey, Michael A. Yanof, Stinnett, Thiebaud & Remington, L.L.P., Dallas, TX, for Appellees.

Before Justices WHITTINGTON, WRIGHT, and FITZGERALD.

OPINION

Opinion by Justice FITZGERALD.

This is a medical-malpractice case. On appeal, David Moeller contends that the trial court erred by overruling his objection to the racially discriminatory use of a peremptory challenge during jury selection. We agree. We reverse and remand for a new trial.

I. BACKGROUND

Facts

Moeller presented at Medical City Dallas Hospital to undergo an arteriogram and an angioplasty on his left leg. Dr. Michael Blanc performed the procedures. Complications necessitated a second surgery, which resulted in the amputation of Moeller's left leg above the knee.

Procedural history

Moeller sued several defendants, but by the time of trial the only remaining defendants were Blanc and Columbia Hospital at Medical City Dallas Subsidiary, L.P. d/b/a Medical City Dallas Hospital ("Medical City").

The trial lasted nine days. In answer to a broad-form question, the jury refused to find that the negligence of either defendant proximately caused the occurrence in question. Accordingly, the jury answered no other questions in the charge. The trial court signed a take-nothing judgment in favor of appellees.

II. ISSUE

In Moeller's first issue, he contends that the trial court erred by overruling his objection that Blanc used a peremptory strike to exclude Juror No. 28, an African-American venire member, from the jury on account of her race.¹

III. STANDING

In Batson v. Kentucky, the United States Supreme Court held that a prosecutor's use of peremptory strikes to exclude jurors solely because they are of the same race as a criminal defendant violates the Equal Protection Clause of the Fourteenth Amendment. 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The Court later extended Batson to civil cases by holding that the race-based exclusion of a juror in a civil case violates the equal-protection rights of the excluded juror. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). The exclusion of even one juror for prohibited reasons invalidates the entire jury-selection process, so a trial court's erroneous denial of a Batson challenge always requires a new trial. Dominguez v. State Farm Ins. Co., 905 S.W.2d 713, 717 (Tex.App.-El Paso 1995, writ dism'd by agr.); see also Snyder v. Louisiana, ___ U.S. ____, 128 S.Ct. 1203, 1208, 170 L.Ed.2d 175 (2008).

Medical City asserts that Moeller lacks standing to assert an equal-protection challenge because Moeller is Caucasian and the excluded juror was African-American. We conclude, however, that a civil litigant has standing to assert an equal-protection challenge to a racially discriminatory peremptory strike regardless of whether the litigant and the venire member share the same race. Batson held, as a matter of equal protection, that a criminal defendant may object to the discriminatory use of peremptory challenges against jurors of his or her own race. 476 U.S. at 96, 106 S.Ct. 1712. As Medical City points out, some courts held in the immediate post-Batson era that a criminal defendant who was not of the same race as the peremptorily struck jurors could not bring an equal-protection complaint, but could raise only a due-process complaint on the ground that the strikes had arbitrarily deprived him or her of a jury composed of a fair cross-section of the community. See, e.g., Crawford v. State, 770 S.W.2d 51, 54 (Tex.App.-Texarkana 1989, no pet.). But this view was discredited by the Supreme Court's 1991 decision in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). In Powers, the Court held that a criminal defendant may object to race-based peremptory exclusions of jurors who do not share his or her race based on the equal-protection rights of the excluded jurors. Id. at 402, 415, 111 S.Ct. 1364. And when the Court extended Batson to civil cases two months after deciding Powers, the Court again relied on the equal-protection rights of the challenged jurors (through the "equal protection component of the Fifth Amendment's Due Process Clause"), and not on the equal-protection or due-process rights of the litigant. Edmonson, 500 U.S. at 616, 111 S.Ct. 2077.

When the Texas Supreme Court first applied Edmonson, it too referred to the "equal protection rights of the [peremptorily] challenged juror." Powers v. Palacios, 813 S.W.2d 489, 490 (Tex.1991) (per curiam); see also Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997) (referring to the Equal Protection Clause in a civil case involving allegedly discriminatory peremptory strikes). Because the objection is based on the equal-protection rights of the excluded juror, Powers v. Ohio fully applies, and there is no requirement that an objecting civil litigant share the race of the excluded juror in order to have standing to make an equal-protection challenge. See Great Plains Equip., Inc. v. Koch Gathering Sys., Inc., 45 F.3d 962, 964 (5th Cir. 1995); Dominguez, 905 S.W.2d at 715; Tex. Tech Univ. Health Sciences Ctr. v. Apodaca, 876 S.W.2d 402, 407 n. 1 (Tex. App.-El Paso 1994, writ denied). We conclude that Moeller has standing to make an equal-protection challenge to Blanc's exercise of peremptory strikes.

IV. BATSON CHALLENGES

The Supreme Court has prescribed a three-step procedure for resolving Batson challenges. At the first step of the process, the opponent of the peremptory strike must establish a prima facie case of racial discrimination. If that showing is made, at the second step the burden shifts to the striking party to come forward with a race-neutral explanation for the challenged strike. If the striking party carries its burden, the trial court must then decide at the third step of the process whether the party challenging the strike has carried its burden of proving "purposeful racial discrimination." Batson, 476 U.S. at 89, 106 S.Ct. 1712; see also Snyder, 128 S.Ct. at 1208; Miller-El v. Dretke, 545 U.S. 231, 239, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) ("Miller-El II"); Davis v. Fisk Elec. Co., 268 S.W.3d 508, 514 n. 4 (Tex. 2008); Goode, 943 S.W.2d at 445-46.

V. PRIMA FACIE CASE

At the first step of the analysis, Moeller bore the burden of demonstrating a prima facie case of racial discrimination. But "[o]nce a party offers a race neutral explanation for the peremptory challenge and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of a prima facie case is moot." Goode, 943 S.W.2d at 445. Blanc's counsel offered explanations for the peremptory strikes and the trial court ruled on them, so we proceed directly to the second step of the analysis.

VI. RACE-NEUTRAL EXPLANATION

At the second step, Blanc bore the burden of providing a race-neutral explanation for his use of peremptory strikes. Moeller contends that Blanc did not carry this burden as to Juror No. 28.

Standard of review

The standard of review applicable to Batson rulings is abuse of discretion. Davis, 268 S.W.3d at 515-16. A trial court "abuses its discretion if its decision is arbitrary, unreasonable, and without reference to guiding principles." Goode, 943 S.W.2d at 446. With respect to factual matters, a trial court abuses its discretion if, on the evidence, it reasonably could have reached only one decision and failed to do so. Moroch v. Collins, 174 S.W.3d 849, 864 (Tex.App.-Dallas 2005, pet. denied). At the second step of the analysis, however, there is no fact-finding to be done. The trial court simply accepts the explanation for the strike at face value and determines whether it is a reasonably specific race-neutral reason. Accordingly, the second step presents a legal question, and we do not defer to the trial court on questions of law. See Perry Homes v. Cull, 258 S.W.3d 580, 598 (Tex.2008) (even under the abuse of discretion standard, appellate courts "do not defer to the trial court on questions of law"), petition for cert. filed, 77 U.S.L.W. 3359 (U.S. Nov. 26, 2008) (No. 08-707). We note that other jurisdictions have held that de novo review is appropriate at step two of the analysis because it presents a question of law. See, e.g., Valdez v. People, 966 P.2d 587, 590 (Colo.1998); People v. Knight, 473 Mich. 324, 701 N.W.2d 715, 726-27 (2005). Thus, we apply what is in effect a de novo standard of review at the second step of the Batson analysis.

Race-neutral reasons

In Batson, the Court acknowledged that the proffered race-neutral reason "need not rise to the level justifying exercise of a challenge for cause," 476 U.S. at 97, 106 S.Ct. 1712, but also insisted that the attorney making the peremptory challenges "must give a clear and reasonably specific explanation of his legitimate reasons for exercising the challenges," id. at 98 n. 20, 106 S.Ct. 1712 (internal quotations omitted). General denials of discriminatory intent and assertions of good faith are not sufficient. Id. at 98, 106 S.Ct. 1712. Finally, the Court indicated that the neutral explanation must be "related to the particular case to be tried." Id.

In Hernandez v. New Yorkplurality emphasized that the step-two inquiry is limited to the "facial validity" of the attorney's explanation, and it stated that "[u]nless a discriminatory intent is inherent in the [attorney's] explanation, the reason offered will be deemed race neutral." 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality op.). The Court held that a...