Wamget v. State

• Decision Date: 12 September 2001
• Docket Number: No. 926-00.,926-00.
• Parties: Charlie WAMGET, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

67 S.W.3d 851

Charlie WAMGET, Appellant, v. The STATE of Texas.

No. 926-00.

Court of Criminal Appeals of Texas.

September 12, 2001.

[67 S.W.3d 852]

Charles Freeman, Houston, for Appellant.

Alan Curry, Asst. DA, Houston, Matthew Paul, State's Atty., Austin, for State.

OPINION

PER CURIAM.

Appellant was convicted of murder and sentenced to sixteen years imprisonment. On appeal he claimed the trial court abused its discretion in overruling a Batson challenge. The Court of Appeals affirmed. Wamget v. State, No. 14-96-01188-CR slip op., 1999 WL 672327 (Tex. App.-Houston [14th Dist.] Aug.31, 1999)(not published). We granted appellant's petition for discretionary review to decide whether the Court of Appeals erred in holding that race may be a factor co-existing with a non-racial reason as long as race is not the only reason for the strike.¹ We begin by addressing the question of whether it was established that "race" was even a factor underlying the peremptory strike, apart from the further question of its coupling with a non-racial reason. See n. 10, infra.

During voir dire examination, the State used a peremptory challenge against Venireperson No. 38. Appellant objected to the strike as being impermissibly race-based under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The prosecutor gave the following reasons for the exercise of the peremptory challenge against Venireperson No. 38:

No. 38 also spoke up much more during [defense counsel's] voir dire. Also she was born in—according to her jury card, born in Liberia. Let me double-check that.

Under the circumstances that gave me some concern. She also is not employed at this time and that gave me some concern.

Appellant argued that the prosecutor's reference to Liberia was an improper reason for exercising a strike under Batson.² The trial court overruled the challenge.

On direct appeal, appellant claimed the trial court "committed reversible error by overruling appellant's article 35.261 objection." Appellant argued that reliance on a venireperson's nationality "is so absolutely unconstitutionally offensive as to override any other purportedly race-neutral excuse." He further argued that "whenever a party exercised a peremptory challenge against a venireperson even partially because of his or her race or national origin, such peremptory challenge is unconstitutional." The State argued that appellant's claim should be rejected because the State's strike was not racially motivated.³ The Court of Appeals rejected appellant's claim concerning the venireperson's national origin:

The Court of Criminal Appeals has held that race may be a factor co-existing with a non-racial reason; however, race may not be the reason for the strike. See Hill [v. State], 827 S.W.2d [860] at 866 [Tex.Crim.App.1992]. Because there is no evidence in the record that race was the reason for the State's strike, we cannot hold that the trial court's decision to overrule appellant's Batson challenge regarding Juror 38 was clearly erroneous.

Wamget, No. 14-96-1188 slip op. at 7.

Appellant urges this Court to hold that when the reasons given for a peremptory strike implicate a congenital classification such as national origin, the taint arising from the invalid reason cannot be removed by combination with reasons that do not implicate congenital or suspect classifications. The State maintains that "race" was not a given reason for the strike against Venireperson No. 38 and that the Court of Appeals did not hold that race was a reason for the strike in this case. Essentially, the State says the fact that Prospective Juror No. 38 was born in Liberia is a race-neutral reason for the prosecutor's use of a peremptory strike. For this reason, the State argues, the Court of Appeals properly held that "there is no evidence in the record that race was the reason for the State's strike." Only if we hold that the country of one's birth is not a race-neutral reason for exercising a peremptory strike, do we reach the question of whether its combination with two race-neutral reasons is violative of Batson."⁴

I.

It is more than settled that exclusion from jury service because of ethnicity or nationality violates the Equal Protection Clause. See Hernandez v. Texas, 347 U.S. 475, 477-78, 74 S.Ct. 667, 98 L.Ed. 866 (1954)(in case involving exclusion of venirepersons of Mexican descent, Court rejected State's argument that only two classes, "white and Negro," were within contemplation of Fourteenth Amendment and stated that "exclusion of otherwise eligible persons from jury service solely because of their ancestry or national origin is discrimination prohibited by the Fourteenth Amendment"); United States v. Chalan, 812 F.2d 1302, 1314 (10th Cir.1987)(recognizing striking of American Indians on account of race would violate Batson and Equal Protection Clause), cert. denied, 488 U.S. 983, 109 S.Ct. 534, 102 L.Ed.2d 565 (1988); State v. Rigual, 256 Conn. 1, 771 A.2d 939, 945 (2001)("[d]iscrimination on the basis of ancestry or national origin violates the Equal Protection clause of the federal constitution [and][c]onsequently, Batson, which was decided on the basis of the Equal Protection clause, must be applied to protect venirepersons from being excused from juries because of their ancestry or national origin"); State v. Alen, 616 So.2d 452 (Fla.1993)(recognizing Hispanics as a protected class under Equal Protection Clause, and exclusion of Hispanic venireperson for reason that was not race-neutral violated Batson); State v. Rambersed, 170 Misc.2d 923, 649 N.Y.S.2d 640, 642 (N.Y.Sup.Ct.1996)(Italian-Americans are cognizable group under Batson and Equal Protection Clause); see also Hernandez v. New York, 500 U.S. 352, 355, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)(recognizing that exclusion of Latinos from jury based on ethnic origin would violate Equal Protection Clause); see also United States v. Martinez Salazar, 528 U.S. 304, 315, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000)(stating that "under the Equal Protection Clause, a defendant may not exercise a peremptory challenge to remove a potential juror solely on the basis of the juror's gender, ethnic origin, or race"); Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977)(holding Mexican Americans cognizable racial group for purposes of Equal Protection analysis under Swain v. Alabama).

Indeed, ethnicity and nationality are probably more precisely what is meant by the term "race" for purposes of the Equal Protection Clause. In Saint Francis College v. Al Khazraji, 481 U.S. 604, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987), the United States Supreme Court equated race discrimination with discrimination based on ethnic origin, holding them essentially interchangable for purposes of an action under 42 U.S.C. § 1981.⁵ Respondent in that case, a United States citizen born in Iraq, was denied tenure by Saint Francis College. Respondent sued the college under 42 U.S.C. § 1981, alleging discrimination based on national origin, religion and/or race. The Supreme Court granted certiorari to decide whether "a person of Arabian ancestry was protected from racial discrimination under § 1981." Id. at 607, 107 S.Ct. 2022.

Section 1981 had previously been construed by the Court as prohibiting "racial discrimination" in the making of contracts. The issue in Saint Francis College was whether the respondent had alleged racial discrimination within the meaning of § 1981. To answer this question, the Court examined the understanding of "race" in the 19th century by looking to dictionaries and encyclopedias from that period:

In the middle years of the 19th century, dictionaries commonly referred to race as a "continued series of descendants from a parent who is called the stock," N. Webster, An American Dictionary of the English Language 666 (New York 1830) (emphasis in original), "the lineage of a family," 2 N. Webster, A Dictionary of the English Language 411 (New Haven 1841), or "descendants of a common ancestor," J. Donald, Chambers' Etymological Dictionary of the English Language 415 (London 1871). The 1887 edition of Webster's expanded the definition somewhat: "The descendants of a common ancestor; a family, tribe, people or nation, believed or presumed to belong to the same stock." N. Webster, Dictionary of the English Language 589 (W. Wheeler ed. 1887). It was not until the 20th century that dictionaries began referring to the Caucasian, Mongolian, and Negro races.... Even so, modern dictionaries still include among the definitions of race, "a family, tribe, people, or nation belonging to the same stock." Webster's Third New International Dictionary 1870 (1971); Webster's Ninth New Collegiate Dictionary 969 (1986). Encyclopedias of the 19th century also described race in terms of ethnic groups... Encyclopedia Americana in 1858, for example, referred to various races such as Finns, vol. 5, p. 123, gypsies, 6 id., at 123, Basques, 1 id., at 602, and Hebrews, 6 id., at 209.

Saint Francis College, 481 U.S. at 610-11, 107 S.Ct. 2022. Other examples of "races" given in various editions of 19th century encyclopedias included Swedes, Norwegians Germans, Greeks, Finns, Italians, Spanish, Mongolians, Russians, Jews, and Hungarians. Id. The Court further pointed out that the congressional debates of the time were "replete with references to the Scandinavian races ... the Chinese, ... Latin, ... Spanish, ... and Anglo Saxon races, ... Jews, ... Mexicans, ... blacks, ... and Mongolians ..., Gypsies... [and] the Germans." Id. at 612, 107 S.Ct. 2022. Based on the above evidence of society's view of "race" at the time, the Supreme Court concluded that Congress intended to prohibit discrimination due to a person's ancestry or ethnic characteristics under § 1981. The Court stated that "such discrimination is racial discrimination that Congress intended § 1981 to prohibit, whether or not it would be classified as racial in terms of modern...