Eric Gomez v. City of Austin

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ERIC GOMEZ, §
No. 08-19-00250-CV
Appellant, §
Appeal from the
v. §
53rd District Court
CITY OF AUSTIN, §
of Travis County, Texas
Appellee. §
(TC# D-1-GN-16-002710)
OPINION
Appellant, Eric Gomez, appeals the trial court’s decision overruling his Batson 1 challenge
on a peremptory strike exercised by Appellee, City of Austin, at trial. 2 Appellant sued for
discrimination based on ethnicity and national origin after Appellee terminated his employment.
During voir dire, Appellant objected to Appellee’s use of a peremptory strike against one
of the only Hispanic prospective jurors in the strike zone. The trial court overruled Appellant’s
objection following the three-step Batson inquiry. Following trial, in a unanimous verdict, the jury
found no discrimination had occurred.
1
Batson v. Kentucky, 476 U.S. 79 (1986).
2
This case was transferred from the Third Court of Appeals pursuant to the Texas Supreme Court’s docket
equalization efforts. See TEX.GOV’T CODE ANN. § 73.001. We follow the precedent of the Third Court of Appeals to
the extent they might conflict with our own. See TEX.R.APP.P. 41.3.
In his sole issue, Appellant claims the trial court abused its discretion in overruling his
Batson challenge. We disagree.
FACTUAL BACKGROUND
Appellant sued Appellee for employment discrimination following his termination in
January of 2016. At trial, Appellee struck Venire Member 8 using a peremptory strike. Venire
Member 8, in her juror information sheet, identified herself as Hispanic-Asian and was raised in
Mexico. Appellant objected to Appellee’s use of a peremptory strike against Venire Member 8.
Appellant claimed that as one of very few Hispanic venire members and having given some
answers indicating she was more pro-defense than pro-plaintiff, Appellant believed Appellee
struck her because she was Hispanic and from Mexico.
Appellee’s counsel responded he was unaware of her country of origin and struck her
because she disagreed with a question posed by Appellant’s counsel regarding whether some
discrimination lawsuits are frivolous. He also stated Venire Member 8 responded she would not
require a greater standard of proof than preponderance of the evidence in proving discrimination,
Additionally, Appellee maintained she did not agree with the proposition it was hard to believe a
Hispanic supervisor would discriminate against a Hispanic employee.
Appellant countered Venire Member 8 had indicated she would require a higher burden of
proof to show mental anguish damages and would have difficulty awarding mental anguish
damages. He also pointed out, other venire panelists who answered the same as Venire Member 8
on several questions, but were not Hispanic, served on the jury.
The trial court denied Appellant’s Batson challenge and the strike against Venire Member
8 was upheld. Following the trial, the jury unanimously returned a verdict in favor of Appellee,
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answering the liability question on discrimination in the negative.
DISCUSSION
In his sole issue on appeal, Appellant contends the trial court abused its discretion when it
overruled his Batson challenge as to Venire Member 8. Appellant argues Appellee struck Venire
Member 8 based on her Mexican national origin and her race, which she labeled as “Asian-
Hispanic” on her information sheet. Appellee counters it provided a race-neutral explanation for
the peremptory strike and Appellant failed to meet his burden of showing intentional
discrimination.
Standard of Review
We review a trial court’s ruling on a Batson challenge for an abuse of discretion. Davis v.
Fisk Elec. Co., 268 S.W.3d 508, 515 (Tex. 2008). “A trial court abuses its discretion if its decision
‘is arbitrary, unreasonable, and without reference to guiding principles.’” Goode v. Shoukfeh, 943
S.W.2d 441, 446 (Tex. 1997)(citing Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666
(Tex. 1996)). As the reviewing court, “we may not substitute our judgment for that of the trial
court with respect to resolution of . . . matters committed to the trial court’s discretion.” Lucchese
Boot Co. v. Licon, 388 S.W.3d 365, 372 (Tex.App.—El Paso 2012, no pet.). The Texas Supreme
Court noted the abuse of discretion standard is “‘demanding but not insatiable,’” and although we
defer to the trial court’s discretion, we are not precluded from undertaking a review of alleged
Batson errors. Davis, 268 S.W.3d at 515-16 (citing Miller-El v. Dretke, 545 U.S. 231, 240
(2005)(“Miller-El II”)).
Applicable Law
Generally, parties in civil actions are each allowed to exercise six peremptory strikes to
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strike potential jurors from the panel without any reason or explanation. TEX.R.CIV.P. 232, 233.
However, using peremptory strikes to remove potential jurors based on their race is
unconstitutional. See Batson, 476 U.S. at 89. “Race,” in this context, “encompasses notions of
ancestral line and ethnicity.” Wamget v. State, 67 S.W.3d 851, 857 (Tex.Crim.App. 2001); see also
Salazar v. State, 795 S.W.2d 187, 193 (Tex.Crim.App. 1990)(Hispanic ethnicity constitutes “race”
for purposes of showing cognizable racial group for Batson challenge).
Batson challenges are reviewed and resolved by a three-step inquiry. Batson, 476 U.S. at
97; Davis, 268 S.W.3d at 514 n.4. The first step requires the challenging party to establish a prima
facie case of racial discrimination. Batson, 476 U.S. at 97; Davis, 268 S.W.3d at 514 n.4. In making
its prima facie case, the challenging party may look at “the totality of the relevant facts” and draw
an inference showing discriminatory purpose. Batson, 476 U.S. at 93-94. To satisfy its initial
burden, the challenging party “must show that relevant circumstances raise an inference that the
[striking party] made a race-based strike.” Jones v. State, 531 S.W.3d 309, 318 (Tex.App.—
Houston [14th Dist.] 2017, pet. ref’d).
If the challenging party makes its prima facie showing, the second step shifts the burden to
the striking party to produce a race-neutral explanation for the strike(s). Batson, 476 U.S. at 98;
Davis, 268 S.W.3d at 514 n.4. The reason must be stated as articulately as possible “and stand or
fall on the plausibility of the reasons [the attorney] gives.” Miller-El II, 545 U.S. at 252. However,
the race-neutral explanation is merely a burden of production. Murphy v. Arcos, 615 S.W.3d 676,
686 (Tex.App.—Dallas 2020, pet. filed)(citing Peetz v. State, 180 S.W.3d 755, 758-59
(Tex.App.—Houston [14th Dist.] 2005, no pet.)). “This means that the reason offered need not be
‘persuasive or even plausible,’ so long as it is clear, reasonably specific, and ‘based on something
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other than the juror’s race.’” Murphy, 615 S.W.3d at 686 (citing Purkett v. Elem, 514 U.S. 765,
768 (1995) and Goode, 943 S.W.2d at 445)). The trial court must only determine whether the
explanation provided is facially valid. Purkett, 514 U.S. at 768.
If the striking party provides a race-neutral explanation, the final step requires the
challenging party to prove “purposeful racial discrimination” in light of “‘all relevant
circumstances[.]’” Davis, 268 S.W.3d at 514 n.4; Miller-El II, 545 U.S. at 232. Only at the third
step does the “persuasiveness of the justification for the challenge become[] relevant.” Davis, 268
S.W.3d at 514 n.4. “[A]t this stage . . . implausible justifications for striking potential jurors ‘may
(and probably will) be found [by the trial court] to be pretexts for purposeful discrimination.’” Id.(citing Goode 943 S.W.2d at 445-46). However, “‘the ultimate burden of persuasion regarding
racial motivation rests with, and never shifts from, the opponent of the [peremptory] strike.’” Id.(citing Goode, 943 S.W.2d at 445-46).
The Texas Supreme Court in Davis considered the five factors outlined by the United States
Supreme Court in its decision Miller-El II to examine “‘all relevant circumstances.’” Davis, 268
S.W.3d at 511-512 (citing Miller-El II, 545 U.S. at 240). They first analyzed the statistical data of
the prosecution’s use of peremptory strikes; in other words, what percentage of eligible African-
American venire persons that were struck peremptorily. Id. at 512 (citing Miller-El II, 545 U.S. at
241). The second factor involved a comparative juror analysis, in which the Supreme Court
conducted a comparison of the Black venire panelists who were excised by peremptory strikes
compared to the White panelists that served on the jury. Id. The third factor was the striking-party’s
decision to use the jury shuffle, which the United States Supreme Court held could “‘indicate
decisions probably based on race.’” Id. (citing Miller-El II, 545 U.S. at 253). Fourth, the Supreme
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Court considered the number and quality of voir dire questions posed to Black versus Non-Black
panel members. Davis, 268 S.W.3d at 513-14 (citing Miller-El II, 545 U.S. at 255). Finally, the
court examined the striking-party’s history, if any, of striking minority venire persons from juries.
Id. at 514 (citing Miller-El II, 545 U.S. at 263).
Analysis
In this case, Appellant objected to Appellee striking Venire Member 8, stating “[T]here
was only one person within the strike zone who is Hispanic descent or had Mexico as their origin[,]
that is . . . juror No. 8. . . . So the only reason that we can think that defense would have struck the
only person of Mexican origin from the jury, given all the information we have on her, is because
of their place of origin, Mexico[.]” 3 Appellant argued Venire Member 8’s pro-defense voir dire
responses should have made her favorable to Appellee, but instead was peremptorily struck by
Appellee. Finally, he pointed out other venire members who responded in similarly to Venire
Member 8 were not struck by Appellee. We find Appellant’s objection and his reasons for making
it raise an inference of racial discrimination, satisfying the first step of a Batson objection.
Appellee responded Venire Member 8 was struck because she did not agree the pendulum
had swung too far in the opposite direction, resulting in frivolous claims of discrimination.
Appellee’s counsel stated, “[VM8] was also a panelist who did not respond that she would have
any sort of problem with a preponderance of the evidence standard implied here.” He also argued
3
The Court of Criminal Appeals, citing Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987), distinguished
between discrimination based “solely on the country where one was born, which would not be viewed as race
discrimination, and discrimination based on one’s ancestral line or ethnicity, which would constitute race
discrimination[.]” Wamget, 67 S.W.3d at 858. Had Appellant invoked solely Venire Member 8’s country of origin as
the reason for the strike, we are not convinced he would have satisfied his initial burden in step one of the Batson
challenge process. See Wamget, 67 S.W.3d at 859 (“[T]he country of one’s birth, standing alone, is race-neutral. While
it may be an indication of ethnicity, more would be needed.”). Here, because Appellant invoked not only her country
of origin but her Hispanic ethnicity as well, he adequately established her ethnicity for purposes of Batson. Id. at 857-
58.
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she disagreed with the idea it was hard to believe one member of an ethnic group would
discriminate against another member of the same ethnic group. Each of these responses favor
plaintiff-Appellant and worked against defendant-Appellee. We find this explanation satisfies the
burden placed on Appellee to produce a race-neutral explanation for exercising a peremptory strike
against Venire Member 8.
The third step of the Batson process arguably requires the most scrutiny to ascertain the
plausibility of the race-neutral reasons provided by the strike proponent and determine, by totality
of the circumstances, whether purposeful discrimination occurred. As the Texas Supreme Court
did in Davis, we review the five Miller-El II factors in examining the totality of relevant
circumstances. Davis, 268 S.W.3d at 514 n.4; Miller-El II, 545 U.S. at 232. Both Davis and Miller-
El II involved discrimination based on a venire person being Black. Since Appellant identified
Venire Member 8’s Hispanic ethnicity as the basis of Appellee’s reason for using a peremptory
strike against her, our analysis focuses on Appellee’s treatment of Hispanic venire persons
compared to non-Hispanic venire persons.
Factor One: Statistical Data of Appellee’s Use of Peremptory Strikes
In considering the first factor, the Texas Supreme Court analyzed statistical data of the
prosecution’s use of peremptory strikes against eligible African-American venire persons. Davis,
268 S.W.3d at 512 (citing Miller-El II, 545 U.S. at 241). Turning to the case at hand, we undertake
the same analysis for the Hispanics on the venire panel.
Of the entire fifty-six-person venire panel, five potential jurors identified themselves as
Hispanic, including Venire Member 8 who identified herself as Hispanic-Asian. Of those five,
three were within the zone of eligible jurors, meaning their location within the venire panel offered
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a reasonable likelihood they would be either chosen or struck for jury placement. Of these three,
Appellee struck only Venire Member 8. Appellant struck one of the remaining two, and the third
was placed on the jury. Accordingly, Appellee struck one-third of the eligible Hispanic panel
members. At first blush and in isolation, this fact might be significant. However, Appellant struck
the other third of eligible Hispanic venire persons, and the remaining third served on the jury.
Considering Hispanic persons composed approximately nine percent of the panel, it might also
appear significant that almost double that figure—sixteen and two-thirds percent—were struck
using Appellee’s peremptory strikes. The fact remains, Appellant used only one strike out of six
against a Hispanic venire person. Contrast the figures here with the analysis in Davis. There,
Appellee struck eighty-three percent—five out of six—of the African American members of the
venire out of twenty-four potential jury members who remained after strikes for cause or by
agreement. Davis, 268 S.W.3d at 516.
Factor Two: Comparative Juror Analysis
The second factor is a comparative juror analysis. The Davis Supreme Court, for the
second factor, compared Black venire panelists who were struck in contrast to White panelists that
served on the jury. Id. Specifically, where the strike-proponent offered a reason for striking a
minority panel member which did not also apply to strike a non-minority panel member, it tended
to prove purposeful discrimination. Id. at 512.
Here, the original reason offered by Appellee for striking Venire Member 8 was her initial
disagreement with the sentiment some currently filed discrimination lawsuits are frivolous. As
Appellant points out, she then changed her answer to agree with the statement after receiving
clarification on what the question potential jurors were being asked. Appellee urges this Court to
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focus on Venire Member 8’s initial hesitancy to agree with the statement, and her lack of clarity
on the issue at the outset. Of the remaining eligible panel members who were not already struck
for cause or by agreement, six other venire members, all non-Hispanic, also did not agree with the
statement but went on to serve on the jury.
Additionally, Appellee stated it struck Venire Member 8 because she “did not respond that
she would have any sort of problem with a preponderance of the evidence standard implied here.”
Appellee is referring to a question posed to the entire panel by Appellant regarding their burden of
proof. According to Appellee, Appellant’s framing of the question sought to identify potential
jurors who would require a higher burden of proof to show discrimination. In Appellee’s view,
Venire Member 8’s answer favors the plaintiff’s case. Venire Member 8 was not among the five
venire members who indicated they would require a higher burden of proof from Appellant on his
discrimination claim. However, eleven other potential jurors who also did not raise their card in
agreement with counsel’s statement did not have a peremptory strike used against them and served
on the jury. Of these eleven, all but one was non-Hispanic.
Finally, Appellee claims it struck Venire Member 8 for not agreeing it was “hard to
believe,” albeit not impossible, that one Hispanic person would discriminate against another
Hispanic person. In other words, Venire Member 8 believed one Hispanic person could
discriminate against another. Appellee’s view is Venire Member 8’s answer favors the plaintiff’s
case. When counsel asked the venire panel this question, almost half the members on the panel
raised their cards. Of those who did not, like Venire Member 8, six potential jurors—all non-
Hispanic—served on the jury.
In summary, Venire Member 8 gave two answers seeming to approve of Appellant’s
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position. On its face, this appears to support Appellee’s reason to want her struck from the pool of
potential jurors. However, for each answer given, half a dozen or more other venire members
answered in kind and Appellee did not use a peremptory strike against them. In fact, Venire
Members 2, 3, 32, and 46 answered identically as Venire Member 8 on all three questions and
were not struck. All four of these potential jurors were non-Hispanic.
Factor Three: Use of the Jury Shuffle
The third factor was the striking-party’s decision to use the jury shuffle, which the United
States Supreme Court held could “‘indicate decisions probably based on race.’” Davis, 268 S.W.3d
at 513 (citing Miller-El II, 545 U.S. at 253). Here, only Appellant requested a jury shuffle.
Accordingly, we find this factor does not suggest purposeful discrimination on Appellee’s part.
Factor Four: Quantity and Quality of Questions Posed to Minority Panel Members
Fourth, the Supreme Court considered the number and quality of voir dire questions posed
to Black versus Non-Black panel members. Davis, 268 S.W.3d at 513-14 (citing Miller-El II, 545
U.S. at 255). Here, the Hispanic venire panel members were Venire Members 8, 23, 34, 50, and
56. Other than Venire Member 8, only Venire Members 23 and 34 were within the strike zone.
The record does not indicate, nor does Appellant allege, that Appellee targeted Hispanic members
of the jury panel with questioning or asked disparate questions to Non-Hispanic venire members
compared to Hispanic venire members.
Counsel for Appellee asked a single question to Venire Member 8, which he posed to
several Non-Hispanic venire members ahead of her. He asked if Appellant failed to satisfy his
burden of proof showing discrimination, whether venire members would still award him money
because they liked him as a person. He asked the venire members to respond on a scale of one to
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ten, with a “one” if they disagreed with an award of damages under such circumstances or a “ten”
if they agreed to an award of damages if Appellant did not satisfy his burden on liability. Venire
Member 8 indicated she was a “one,” meaning she would not agree to award damages if Appellant
failed to meet his burden of proof on discrimination. During this questioning, Appellee’s questions
to the venire members, the record reflects nothing indicates disparate treatment of questioning
Hispanic panel members.
Factor four does not tend to show purposeful discrimination by Appellee.
Factor Five: History of Striking Minority Venire Persons
Finally, the court examined the striking-party’s history, if any, of striking minority venire
persons from juries. Davis, 268 S.W.3d at 514 (citing Miller-El II, 545 U.S. at 263). Appellant did
not provide any evidence of Appellee having any such history. Accordingly, the fifth factor does
not indicate Appellee’s purposeful discrimination in striking Venire Member 8.
Totality of the Relevant Circumstances
Considering the comparative analysis of the other potential jurors’ answers, it is notable
that four other venire members, none were Hispanic, answered identically to Venire Member 8
and Appellee did not employ peremptory strikes against them. However, of the five Miller-El II
factors, this is the only factor which could be viewed as discriminatory. However, when considered
in totality with the remaining factors, as we are bound to do, we are not convinced to the necessary
degree the comparative analysis alone sufficiently proves intentional discrimination by Appellee.
We thus do not believe the trial court abused its discretion when it overruled Appellant’s Batson
challenge to Appellee’s peremptory strike on Venire Member 8. It appears to us the trial court
exercised proper discretion, guided by the law outlined in Batson, Miller-El II, Davis, and their
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progeny and ruled reasonably based on their principles. While a different trial judge may have
ruled differently based on the same assessment, it is improper for us, as the reviewing court, to
substitute our opinion for the trial court’s where it did not act arbitrarily, unreasonably, or without
reference to guiding principles. See Lucchese Boot Co., 388 S.W.3d at 372. Accordingly, we
uphold the ruling by the trial court overruling Appellant’s Batson challenge.
Appellant’s sole issue is overruled.
CONCLUSION
We conclude, based on the record of the Miller-El II factors, the trial court did not abuse
its discretion in overruling Appellant’s Batson challenge as to Venire Member 8.
Having overruled Appellant’s sole issue on appeal, we affirm the trial court’s judgment.
May 26, 2021
YVONNE T. RODRIGUEZ, Chief Justice
Before Rodriguez, C.J., Palafox, and Alley, JJ.
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