Dissenting Opinion Filed Date August 18, 2020




                                             S    In The
                                   Court of Appeals
                            Fifth District of Texas at Dallas
                                        No. 05-18-00665-CV

        UNITED RENTALS NORTH AMERICA, INC., Appellant
                           V.
  PAMELA EVANS, INDIVIDUALLY AND AS ADMINISTRATOR FOR
  THE ESTATE OF CLARK BRANDON DAVIS, AND DOMINIC JONES,
                         Appellees

                     On Appeal from the 191st Judicial District Court
                                  Dallas County, Texas
                          Trial Court Cause No. DC-15-04449

           DISSENTING OPINION FROM DENIAL OF EN BANC
                       RECONSIDERATION
                        Opinion by Justice Evans

          This case presents an important, res nova question about race-conscious

discriminatory state action in the trial of a civil lawsuit. The United States Supreme

Court’s decisions in Batson and Edmonson1 collectively confirm that constitutional

protections against de jure2 racial discrimination apply to all citizens to ensure their


    1
        Batson v. Kentucky, 476 U.S. 79 (1986); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).
    2
      Efforts to ensure compliance with the federal equal protection guarantee are often complicated by
challenges in identifying race or gender animus as the motivation underlying state action and determining
whether it might be justified under the circumstances. E.g., Richmond v. J.A. Croson Co., 488 U.S. 469,
493 (1989). The one point that is clear in this jurisprudence is that deliberate, or “de jure,” disparate
equal right to participate in our democratic processes, including service as a juror in

civil cases. This particular civil case appears to be the first in the United States

where a race- and gender-based goal—the substantial motivation—in selecting the

jury was plainly and openly stated, and 100% of the peremptory challenges were

perfectly consistent with that stated goal. My esteemed colleagues in the majority

nevertheless conclude that neither Batson nor the Constitution was violated.

Because I conclude otherwise, I dissent from our Court’s declination to reconsider

this case en banc and would reverse and remand it for a new trial.

                                                      I.
                                           SUMMARY FACTS

          This case regards a catastrophe that occurred when the tall load on a flat-bed

semi-truck struck a bridge resulting in a bridge beam’s falling on top of interstate

highway traffic, killing Clark Brandon Davis.3 Counsel for appellees Pamela Evans,

individually and as administrator for the estate of Clark Brandon Davis, and Dominic

Jones advised the trial court during the Batson hearing, “We know from our focus

groups that the African-American female is the most favorable juror for this case

for whatever reason.” No one should be surprised that all of Evans and Jones’s




treatment is highly problematic and often necessitates a remedy where so-called de facto, or disparate
impact of an ostensibly neutral policy is concerned. E.g., Parents Involved in Cmty Schs. v. Seattle Sch.
Dist. No. 1, 551 U.S. 701, 793-95 (2007) (Kennedy, J., concurring) (collecting examples).
    3
        The majority opinion fully describes the factual background.


                                                     –2–
peremptory strikes were consistent with that race- and gender-based goal for the

jury’s composition: 100% of Evans and Jones’s strikes were of non-black males.4

        Appellant United Rentals North America, Inc. challenged Evans and Jones’s

strikes complaining their admission in open court that race and gender animated their

goal for the composition of the jury combined with 100% strikes of males violated

Batson. I agree with United Rentals’ argument that Evans and Jones’s peremptory

strikes were motivated in substantial part by their discriminatory intent to obtain, as

near as possible, a black-female jury panel by excluding non-black males. I would

therefore reverse and remand for a new trial as the Supreme Court of Texas did in

Powers v. Palacios, 813 S.W.2d 489, 491 (Tex. 1991) (per curiam) (“We hold that

equal protection is denied when race is a factor in counsel’s exercise of a peremptory

challenge to a prospective juror.”).




    4
      One male was recorded as “Hispanic” with no reference to whether he was also white and the four
others who were struck were said to be “white.” While United Rentals frames the issue broadly as a
violation of Batson and its interpretation of the Equal Protection Clause, its arguments focused on gender
animus rather than race. Because I agree with United Rentals’ argument in that regard, I need not further
develop the question as it might relate separately to race. See State Office of Risk Mgmt. v. Martinez, 539
S.W.3d 266, 273 (Tex. 2017). For purposes of this opinion, I mention the racial component throughout this
opinion principally to demonstrate that Evans and Jones’s strikes perfectly conformed to their stated goal
of jury composition. I will note, however, that discriminatory strikes based on race are unconstitutional
regardless of the race of the prospective juror. See Price v. Short, 931 S.W.2d 677, 683 (Tex. App.—Dallas
1996, no writ) (concluding striking white jurors was Batson violation); see also United States v. Walker,
490 F.3d 1282, 1291–92 n.10 (11th Cir. 2007) (same and noting majority of state courts have held combined
race-gender claims also cognizable).
                                                   –3–
                                         II.
           OUTSOURCED DISCRIMINATION IS STILL DISCRIMINATION

      Eight years after deciding Batson, the Supreme Court applied its holding to

the exclusion of jurors based on gender in J.E.B. v. Alabama ex rel. T.B., 511 U.S.

127 (1994). But eleven years later (nineteen years after Batson), in his concurring

opinion in Miller-El, Justice Breyer lamented the persistence of race and gender in

peremptory strikes:

      I am not surprised to find studies and anecdotal reports suggesting that,
      despite Batson, the discriminatory use of peremptory challenges
      remains a problem. See, e.g., Baldus, Woodworth, Zuckerman,
      Weiner, & Broffitt, The Use of Peremptory Challenges in Capital
      Murder Trials: A Legal and Empirical Analysis, 3 U. Pa. J. Const. L. 3,
      52–53, 73, n. 197 (2001) (in 317 capital trials in Philadelphia between
      1981 and 1997, prosecutors struck 51% of black jurors and 26% of
      nonblack jurors; defense counsel struck 26% of black jurors and 54%
      of nonblack jurors; and race-based uses of prosecutorial peremptories
      declined by only 2% after Batson); Rose, The Peremptory Challenge
      Accused of Race or Gender Discrimination? Some Data from One
      County, 23 Law and Human Behavior 695, 698–699 (1999) (in one
      North Carolina county, 71% of excused black jurors were removed by
      the prosecution; 81% of excused white jurors were removed by the
      defense); Tucker, In Moore’s Trials, Excluded Jurors Fit Racial Pattern,
      Washington Post, Apr. 2, 2001, p. A1 (in D.C. murder case spanning
      four trials, prosecutors excused 41 blacks or other minorities and 6
      whites; defense counsel struck 29 whites and 13 black venire
      members); Mize, A Legal Discrimination; Juries Aren’t Supposed to be
      Picked on the Basis of Race and Sex, But It Happens All the Time,
      Washington Post, Oct. 8, 2000, p. B8 (authored by judge on the D.C.
      Superior Court); see also Melilli, Batson in Practice: What We Have
      Learned About Batson and Peremptory Challenges, 71 Notre Dame L.
      Rev. 447, 462–464 (1996) (finding Batson challenges’ success rates
      lower where peremptories were used to strike black, rather than white,
      potential jurors); Brand, The Supreme Court, Equal Protection and Jury
      Selection: Denying That Race Still Matters, 1994 Wis. L. Rev. 511,
      583–589 (examining judicial decisions and concluding that few Batson
                                        –4–
      challenges succeed); Note, Batson v. Kentucky and J.E.B. v. Alabama
      ex rel. T.B.: Is the Peremptory Challenge Still Preeminent? 36 Boston
      College L. Rev. 161, 189, and n. 303 (1994) (same); Montoya, The
      Future of the Post-Batson Peremptory Challenge: Voir Dire by
      Questionnaire and the “Blind” Peremptory, 29 U. Mich. J.L. Reform
      981, 1006, nn. 126–127, 1035 (1996) (reporting attorneys’ views on the
      difficulty of proving Batson claims).

Miller-El v. Dretke, 545 U.S. 231, 268–69 (2005) (Breyer, J., concurring). Justice

Breyer went on to describe that selection of jurors by race and gender was being

taught to lawyers and used by jury consultants—human and software—contrary to

Batson:

      [T]he use of race- and gender-based stereotypes in the jury-selection
      process seems better organized and more systematized than ever
      before. . . . For example, one jury-selection guide counsels attorneys to
      perform a “demographic analysis” that assigns numerical points to
      characteristics such as age, occupation, and marital status—in addition
      to race as well as gender. . . . Thus, in a hypothetical dispute between
      a white landlord and an African–American tenant, the authors suggest
      awarding two points to an African–American venire member while
      subtracting one point from her white counterpart. . . .

      For example, a bar journal article counsels lawyers to “rate” potential
      jurors “demographically (age, gender, marital status, etc.) and mark
      who would be under stereotypical circumstances [their] natural enemies
      and allies.” . . .

      For example, materials from a legal convention, while noting that
      “nationality” is less important than “once was thought,” and
      emphasizing that “the answers a prospective juror gives to questions
      are much more valuable,” still point out that “[s]tereotypically” those
      of “Italian, French, and Spanish” origin “are thought to be pro-plaintiff
      as well as other minorities, such as Mexican and Jewish[;] [p]ersons of
      German, Scandinavian, Swedish, Finnish, Dutch, Nordic, British,
      Scottish, Oriental, and Russian origin are thought to be better for the
      defense”; African–Americans “have always been considered good for
      the plaintiff,” and “[m]ore politically conservative minorities will be
      more likely to lean toward defendants.” . . .
                                        –5–
      For example, a trial consulting firm advertises a new jury-selection
      technology: “Whether you are trying a civil case or a criminal case,
      SmartJURY™ has likely determined the exact demographics (age,
      race, gender, education, occupation, marital status, number of children,
      religion, and income) of the type of jurors you should select and the
      type you should strike.” . . .

Id. at 270–71 (internal citations omitted). Justice Breyer’s last two examples

predicted precisely what occurred here: the result of outsourced focus groups

informed trial counsel to obtain black females for the jury. And counsel did so by

using 100% of his peremptory strikes on non-black males.

      Batson requires state action based on race or gender. In civil cases, what

makes private parties’ peremptory strikes state action is that the government

administers the court system generally, and jury selection specifically, and delegates

to private litigants the power of government to exclude jurors through peremptory

strikes. See Edmonson, 500 U.S. at 622. So when a private party in a civil case

declares it seeks black females for the jury and 100% of its strikes exclude non-black

males, it is the same as the government’s declaring it seeks jurors based on race and

gender and excluding other jurors based on their disfavored race and gender: doing

so violates the excluded prospective jurors’ equal protection rights. Id. at 628. And

the result of violating Batson is heinous:

      Race discrimination within the courtroom raises serious questions as to
      the fairness of the proceedings conducted there. Racial bias mars the
      integrity of the judicial system and prevents the idea of democratic
      government from becoming a reality.



                                         –6–
Id. So the importance of Batson is the fairness of the proceedings, the integrity of

the judicial system, and participation in our democratic processes.

                                          III.
    BATSON’S GOAL: FULL PARTICIPATION IN OUR DEMOCRATIC PROCESSES

      Our system of trial by jury is an integral part of our democratic processes so

it requires no discrimination in the selection of jurors.

      The American tradition of trial by jury, considered in connection with
      either criminal or civil proceedings, necessarily contemplates an
      impartial jury drawn from a cross-section of the community. . . . This
      does not mean, of course, that every jury must contain representatives
      of all the economic, social, religious, racial, political and geographical
      groups of the community; frequently such complete representation
      would be impossible. But it does mean that prospective jurors shall be
      selected by court officials without systematic and intentional
      exclusion of any of these groups. Recognition must be given to the fact
      that those eligible for jury service are to be found in every stratum of
      society. Jury competence is an individual rather than a group or class
      matter. That fact lies at the very heart of the jury system. To disregard
      it is to open the door to class distinctions and discriminations which are
      abhorrent to the democratic ideals of trial by jury.

Thiel v. S. Pac. Co., 328 U.S. 217, 220 (1946) (citations omitted) (emphasis added).

When the Supreme Court articulated its reasons for applying Batson to the exclusion

of jurors based on gender, the Court expressly prohibited the exclusion of males and

explained one purpose of Batson was to have full participation in our democratic

processes:

      Discrimination in jury selection, whether based on race or on gender,
      causes harm to the litigants, the community, and the individual jurors
      who are wrongfully excluded from participation in the judicial process.
      The litigants are harmed by the risk that the prejudice that motivated
      the discriminatory selection of the jury will infect the entire
                                          –7–
      proceedings. See Edmonson, 500 U.S., at 628, 111 S. Ct., at 2087
      (discrimination in the courtroom “raises serious questions as to the
      fairness of the proceedings conducted there”). The community is
      harmed by the State’s participation in the perpetuation of invidious
      group stereotypes and the inevitable loss of confidence in our judicial
      system that state-sanctioned discrimination in the courtroom engenders.

      When state actors exercise peremptory challenges in reliance on gender
      stereotypes, they ratify and reinforce prejudicial views of the relative
      abilities of men and women. Because these stereotypes have wreaked
      injustice in so many other spheres of our country’s public life, active
      discrimination by litigants on the basis of gender during jury selection
      “invites cynicism respecting the jury’s neutrality and its obligation to
      adhere to the law.” Powers v. Ohio, 499 U.S., at 412, 111 S. Ct., at
      1371.

      ....

      Contrary to respondent’s suggestion, this right extends to both men and
      women. See Mississippi Univ. for Women v. Hogan, 458 U.S., at 723,
      102 S. Ct., at 3335 (that a state practice “discriminates against males
      rather than against females does not exempt it from scrutiny or reduce
      the standard of review”); cf. Brief for Respondent 9 (arguing that men
      deserve no protection from gender discrimination in jury selection
      because they are not victims of historical discrimination).

      ....

      When persons are excluded from participation in our democratic
      processes solely because of race or gender, this promise of equality
      dims, and the integrity of our judicial system is jeopardized.

J.E.B., 511 U.S. at 140, 141, 146. So, our review of Evans and Jones’s state action

of using 100% of their peremptory strikes to exclude non-black males is important

because they excluded those non-black males from participation in the democratic

processes, dimmed the promise of equality, and jeopardized the integrity of our



                                        –8–
judicial system. And, “[w]e must consider this record in the light of these important

principles.” Smith v. Texas, 311 U.S. 128, 130 (1940).5

                                                        IV.
   THE GOAL OF BATSON’S ANALYSIS IS TO UNCOVER ILLICIT DISCRIMINATION

          The three steps of the Batson analysis are the Supreme Court’s prescribed

methodology for courts to peel back the layers of stated reasons for peremptory

strikes in order to ascertain whether even a single peremptory strike was “motivated

in substantial part by discriminatory intent.” Flowers v. Mississippi, 139 S. Ct. 2228,

2248 (2019) (“[T]he peremptory strike of at least one of the black prospective jurors

(Carolyn Wright) was motivated in substantial part by discriminatory intent. As this

Court has stated, the Constitution forbids striking even a single prospective juror for

a discriminatory purpose.”). Those three steps, as enhanced by Miller-El, are as

follows. First, the party challenging the peremptory strike must establish a prima

facie case of racial discrimination. Batson, 476 U.S. at 97. To establish a prima

facie case, the challenging party may rely on “the totality of the relevant facts” giving

rise to an inference of discriminatory purpose. Id. at 93–94. Once a prima facie case


    5
        The fuller statement by the Supreme Court is,
          It is part of the established tradition in the use of juries as instruments of public justice that
          the jury be a body truly representative of the community. For racial discrimination to result
          in the exclusion from jury service of otherwise qualified groups not only violates our
          Constitution and the laws enacted under it but is at war with our basic concepts of a
          democratic society and a representative government. We must consider this record in the
          light of these important principles. The fact that the written words of a state’s laws hold
          out a promise that no such discrimination will be practiced is not enough. The Fourteenth
          Amendment requires that equal protection to all must be given—not merely promised.
Smith, 311 U.S. at 130 (footnote omitted).
                                                        –9–
has been established, at the second step the burden shifts to the striking party to come

forward with a race-neutral explanation for the strikes. Id. at 98. The race-neutral

explanation is a burden of production only, so the reason offered need not be

“persuasive or even plausible,” so long as it is clear, reasonably specific, and “based

on something other than the juror’s race.” Purkett v. Elem, 514 U.S. 765, 768 (1995).

Thus, at this second step, the trial court’s sole task is to determine whether the

explanation is facially valid.     Id.   If the striking party offers a race-neutral

explanation, at the third step the challenging party must prove at least a single

peremptory strike was “motivated in substantial part by discriminatory intent.”

Flowers, 139 S. Ct. at 2248; see also Batson, 476 U.S. at 98. At this step, the

persuasiveness of the justification for the peremptory strike is the critical issue, and

“implausible or fantastic justifications may (and probably will) be found to be

pretexts for purposeful discrimination.” Purkett, 514 U.S. at 768.

      Making its pretext determination, the trial court must consider “all relevant

circumstances.” Batson, 476 U.S. at 96–97. In Miller-El, the Supreme Court

analyzed certain factors it recognized as especially probative, including (i) whether

a statistical disparity exists between the percentage of black and non-black potential

jurors who were struck, (ii) whether the striking party questioned the black potential

jurors before striking them, and (iii) whether the record supports or contradicts the

striking party’s explanation for its strikes. 545 U.S. at 239. We must make a

“searching inquiry into the basis of the challenged strikes” so that Batson does not
                                         –10–
become a “mere exercise in thinking up any rational basis” for a peremptory strike.

Id. at 252.

      We review a trial court’s Batson ruling 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 it acts arbitrarily, unreasonably, or without reference to any guiding rules or legal

principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997).

                                            V.
                        BATSON ANALYSIS OF THIS RECORD

      United Rentals argues that Evans and Jones’s stated goal of black female

jurors combined with using 100% of their peremptory strikes on non-black men was

a sufficient showing of violation of Batson that all explanations were pretextual.

United Rentals argued to the trial court:

      [H]e [prospective juror 1] is a male, much like everyone else they
      struck, and so I think what that comes down to is, and I’m going to use
      the words of Mr. Langdoc when he said they did a mock jury and they
      found that African-American women was – what -- were the -- where
      they’re demographic that they wanted.

      ....

      And they are now using their strikes to get rid of every potential poor
      juror from a demographic perspective and not the answers. Now,
      they’re going to use the answers that they attempt to justify, Your
      Honor. But, frankly, it is all pretextual.

United Rentals’ argument is that Evans and Jones’s peremptory strikes were

motivated in substantial part by discriminatory intent demonstrated by (1) Evans and

Jones’s stated goal—their substantial motivation—of a race- and gender- based jury,
                                         –11–
and (2) their state action of using 100% of their peremptory strikes to exclude non-

black males consistent with their plan.

      The Supreme Court framed the Batson steps in terms of examining the record

for “an inference of discriminatory purpose.” Batson, 476 U.S. at 93–94 (emphasis

added). Batson’s three-step process thus reflects the reality, applied across equal

protection and anti-discrimination jurisprudence that it will be the “rare case in

which direct evidence of discrimination [is] available.” Rutherford v. Harris Cty,

197 F.3d 173, 184 n.11 (5th Cir. 1999) (emphasis added); see also U.S. Postal Serv.

Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983) (“There will seldom be

‘eyewitness' testimony as to the employer's mental processes.”). A stated race- and

gender-based goal is direct evidence of the discriminatory intent: counsel informed

the trial court of the plan—the substantial motivation—and executed the plan. That

evidence may well stand for itself and obviate any need of further analysis. E.g.,

Rutherford, 197 F.3d at 184 n.11, (“Had this been the rare case in which direct

evidence . . . was available Rutherford had the option of relying instead on such

proof.”). In all events, I will proceed to the Batson multi-step analysis.

   A. Prima Facie Case, Race Neutral Reasons, and Statistics

      In the first Batson step, United Rentals was obligated to raise evidence

supporting an inference of discrimination. It did so by asserting Evans and Jones

were motivated by a race- and gender-goal and consistent with that goal exercised

100% of their strikes on non-black males. In addition, the prima facie requirement

                                          –12–
became moot once Evans and Jones offered race-neutral explanations for the

peremptory strikes and the trial court ruled on the Batson challenges. See Shoukfeh,

943 S.W.2d at 445.

      In the second Batson step, Evans and Jones were required to offer race-neutral

reasons which can be “implausible or fantastic justifications.” Purkett, 514 U.S. at

768. Evans and Jones’s stated race and gender goal directly fails Purkett, but their

other stated reasons, detailed below, pass muster under Purkett.

      In the third Batson step, the court should consider statistical data. Miller-El,

545 U.S. at 240-41. Because 100% of Evans and Jones’s peremptory strikes were

directed to non-black males, I address it before other considerations regarding each

struck male. Evans and Jones’s 100% strike rate executed the motivation provided

by their focus groups, “We know from our focus groups that the African-American

female is the most favorable juror for this case for whatever reason.” In addition,

the majority opinion points out Evans and Jones struck 42% of the men in the strike

zone. The inference on this record is had they had more strikes, they would have

struck more males. So, the statistical analysis weighs in favor of United Rentals’

Batson challenge—100% of Evans and Jones’s strikes were used to exclude the same

gender.

   B. Third Batson Step regarding Prospective Juror 1—Mr. Ruiz

      Eight prospective jurors were involved in the insurance industry, among

whom was prospective juror 1, Mr. Ruiz.          Evans and Jones explained their

                                        –13–
peremptory strike of prospective juror 1 as based on (1) “he works for the insurance

industry,” (2) “[h]e is an attorney,” and (3) “he came in afterwards and said that he

would have -- he wanted to warn us that he would try to judge the case by the

evidence but he would hold it against lawyers if he felt like the lawyers behaved

badly.”       United Rentals argues Evans and Jones’s peremptory challenge of

prospective juror 1 while passing over prospective juror 116 demonstrates Evans and

Jones’s race- and gender-based criteria for their strikes. As to prospective juror 1’s

stated concern about lawyers possibly behaving badly, United Rentals points out the

trial court stated, “And counsel, I don’t think that’s any different when I said every

juror takes into consideration credibility, demeanor of attorneys. So I don’t have a

problem with him.”            But when the trial court challenged United Rentals that

prospective juror 1 was both involved in the insurance industry and a lawyer, United

Rentals made the statement quoted above at the beginning of this section V which

clearly indicates United Rentals did not challenge Evans and Jones’s strike of

prospective juror 1 beyond their basic argument that Evans and Jones’s struck all

non-black males consistent with their objective to obtain black females on the jury.

   C. Third Batson Step regarding Prospective Juror 8—Mr. Ellis

         Evans and Jones explained their peremptory strike of prospective juror 8 twice

to the trial court:



   6
       Prospective juror 11 was a black female who worked for United Healthcare handling claims.
                                                  –14–
      Number 8 worked for TxDOT. TxDOT is a key piece of this case and
      that there’s the allegation and discussion about whether TxDOT
      approved the changes that we allege are the basis of the nexus for two
      of the parties. He stated that, quote, accidents happen and when
      accidents happen it doesn’t have to mean someone is at fault.

      . . . .Number 8, he stated -- our quote was that he said, based upon what
      was said yesterday, I already believe that some of the defendants are
      not responsible. Indeed No. 8 was someone that we put on our for cause
      list because we believe that was something that for cause we did not
      intentionally move for cause when we brought them in because we
      didn’t think that was going to get to that point. He also said accidents
      happen. And just because an accident happened doesn’t mean someone
      has to be responsible.

      Prospective juror 8 was sixty-five years old and his work history some forty-

five years earlier included having been a summer intern at TxDOT. Secondly, what

he said was:

      I think just based on what was said yesterday, I would want to hear all
      the evidence, because I think there are parties of this that are probably
      not responsible . . . and even they, like I said, accidents, even at
      construction sites happen. Even if they knew that there was a
      possibility of an accident, they may have had no responsibility or - - or
      guilt in that - - in that happening.

So, he responded to the information about the lawsuit provided to that point in voir

dire that he needed to “hear all the evidence” and that parties may not be responsible

for accidents which can happen without parties having responsibility. He correctly

stated that the liability of the parties had to be proven with evidence; that liability

was not automatic.




                                         –15–
   D. Third Batson Step regarding Prospective Juror 19—Mr. Judd

       Evans and Jones stated they struck prospective juror 19 because he had

successfully recovered $400,000 from a lawsuit after being struck by a semi-truck.

They framed their concern as prospective juror 19 might put all the blame on the

truck driver or not award the tens of millions of dollars Evans and Jones sought to

recover. Lastly, Evans and Jones urged “he strongly agreed that most people who

file commer -- personal injury lawsuits are looking for money they don’t deserve.”

       Regarding his prior lawsuit, prospective juror 19 answered question 11 on the

questionnaire about any motor vehicle accident, lawsuit, and recovery stating, “YES

— SELF — SEMI TRUCK STRUCK MY CAR — HAD MINOR INJURIES —

SUED FOR PAIN & SUFFERING.” In answer to questions 19 and 20 about mental

anguish and punitive damages for personal injuries, he answered, “IF DAMAGES

ARE PROVED, THERE SHOULD BE SOME TYPE OF AWARD.” And other

than counsel’s statement during the Batson hearing that prospective juror 19

recovered $400,000, nothing could be located in the record to support that statement

and Evans and Jones do not mention it or support it in their brief.

       United Rentals argues Evans and Jones skipped over prospective juror 7, a

black female who indicated she had been struck by a truck.7 She answered question



   7
      United Rentals also argues a Hispanic male prospective juror lower in the strike zone answered he
“was rear ended by 18-wheeler from behind while stopped on freeway” but was not struck. United Rentals
further argues two black female prospective jurors provided car accident information one of whom had a
near-miss of a truck wheel that came off.
                                                –16–
15 on the questionnaire regarding “an unfavorable experience or incident with an

18-wheeler,” by checking “☑ Yes” and explaining (upper and lower case all the

same size in original), “TRUCK DRIVER STRUCK ME AND DID NOT STOP I

dont [sic] THINK he SAW me as I was in a SMAll CAR.” Evans and Jones’s only

response is the record does not indicate she was injured or sued. But that contradicts

their stated reason that their concern was about jurors who might hold the truck

driver responsible because of a prior accident with a truck.

      Regarding Evans and Jones’s reason that prospective juror 19 “strongly

agreed that most people who file . . . personal injury lawsuits are looking for money

they don’t deserve,” what was actually asked of the panel was two questions

combined followed by one answer:

      [Counsel]: Some scaled questions, and here’s what that means. You’re
      going to answer this question strongly agree, agree, disagree or strongly
      disagree. Four choices. And I’ll ask those of you who strongly agree
      first.

      Most people who filed personal injury lawsuits are trying to get money
      they don’t deserve. Who strongly agrees with that? There should be
      limits to the amount of money that someone can recover in a personal
      injury lawsuit. Who strongly agrees with that? Number 2, No. 5, No.
      15, 16, 18, 19, 21, 12, 24, 44, 46, 47, 48, 50, 51, 56 and 69.

(Emphasis added.) So, the last question before the panel was whether prospective

jurors thought there should be limits to the amount of money that can be recovered.

That is not Evans and Jones’s expressed reason so it does not support Evans and

Jones’s stated reason for their strike. And neither counsel nor courts are permitted

                                        –17–
to add or think up reasons afterwards to justify a strike under Batson; the only

reasons to justify a strike are the ones stated in explanation of the strike during the

Batson hearing. See Miller-El, 545 U.S. at 252 (“A Batson challenge does not call

for a mere exercise in thinking up any rational basis. If the stated reason does not

hold up, its pretextual significance does not fade because a trial judge, or an appeals

court, can imagine a reason that might not have been shown up as false.”).

      It is understandable from Evans and Jones’s perspective why they passed over

striking prospective juror 7, Ms. Sanford, and instead struck prospective juror 19,

because prospective juror 7 was the demographic they sought for their jury and

prospective juror 19 was the disfavored demographic.

   E. Third Batson Step regarding Prospective Juror 24—Mr. Peters

      Evans and Jones’s stated these reasons to the trial court for striking

prospective juror 24:

      [W]e moved for cause on 24 and brought him in today and stated those
      reasons that were gender neutral reasons. He said that he would need a
      higher burden of proof yesterday. Today he walked back from that with
      the Court. His wife was hit by a trucker, and for the same reason as
      juror No. 19, we were concerned that he would assign all the blame to
      the trucker who was a non-trial defendant in this case. . . . Oh, and 24
      also had raised his hand and said because the truck driver took the Fifth,
      I would assume that he was hiding something.

      Starting with the burden of proof, Evans and Jones asked whether jurors

would require more than the preponderance of evidence in awarding significant

damages. Counsel sometimes used the standard metaphor of 51% for preponderance

of the evidence. Several prospective jurors said they would require more, some even
                                         –18–
quantified they would need 90% to award large damages. Counsel then asked the

first two rows if they “[j]ust would need something closer to 90, 95 percent?”

Prospective juror 24 was among those who raised their hands. When informed the

trial court would instruct him he had to use 51%, he answered, “Like everybody else,

I’m pretty black and white. . . . These are the rules. I can’t – I’m not a big gray area

type of person. . . . I could follow it. I probably would not be comfortable.” Evans

and Jones pivoted to the two rows behind him and pejoratively characterized his

answer as, “If you force me to do it maybe I’ll do it”—essentially that he had

rehabilitated himself without questioning from defense counsel.

      As for his wife’s car accident, prospective juror 24 answered questions on the

questionnaire as follows. In answer to question 11 about accidents, suits and

recoveries, he wrote, “My wife — rear ended at stop light, spine injuries including

herniated discs which she still deals with today so not fully recovered. She sued and

won but not enough to cover her medical bills that continue to this day.” In answer

to question 16 about monetary recovery for personal injury lawsuits, he answered,

“If warranted they should be compensated. My wife’s personal injury lawsuit didn’t

supply enough money to deal with her pain/medical bills.” In answer to question 19

about recovery for mental anguish, he answered, “Mental Anguish is real — funds

should be included.” In answer to question 20 about exemplary damages he

answered, “If the defendant did something [illegible word crossed out] leading to

injury, they should be responsible for damages.” In voir dire, he further stated:
                                         –19–
      [Counsel for HNTB]: Your wife had a personal injury incident. Was
      there some concern about whether she was adequately compensated for
      that?

      [Prospective juror 24]: No. Just -- it was a rush, I guess, case, so the
      [to] speak. The guy caused the accident, didn’t want to be accountable
      for it. Her representing attorneys wanted to get it over with and move
      on to next one so, you know, candidly I’m skeptical of everybody in
      this courtroom right now.

      THE COURT: Good answer -- no.

      [Prospective juror 24]: I don’t think that anybody had her best interest
      at heart and now 20 years later she can barely pick up our kids because
      she’s still dealing with spine issues. And that’s not part of what
      happened 20 years ago, but it is what it is.

      Evans and Jones’s explanation for their peremptory strike began by stating

they moved to strike prospective juror 24 for cause regarding the burden of proof.

But the trial court pushed back that her notes did not reflect that. United Rentals’

response to the first two reasons given was, “[T]here were women and a Hispanic

male who were directly involved in automobile accidents and shared the same initial

skepticism as Mr. Peters regarding their ability to award millions of dollars in

damages based on a preponderance-of-the-evidence standard but were not struck.”

Evans and Jones do not challenge this assertion.

      Evans and Jones also explained that prospective juror 24’s answer to their

Fifth Amendment question was a basis for their strike. There were a series of

attempts to inject into the trial the possibility that the truck driver was in the United

States illegally which drew objections from defendants that the trial court sustained

and instructed the venire panel they would hear no evidence about. Immediately
                                          –20–
following, Evans and Jones embarked on questions about the driver asserting the

Fifth Amendment:

      [Counsel for Evans and Jones]: In this case we believe that the evidence
      will be that the gentleman driving the truck didn’t speak English. We
      don’t know whether or not he could even read signs in English if there
      were signs that warned him about the bridge. We know that he’s had
      over a dozen citations before for things like having an improper load,
      speeding, not checking things, and we know when he’s asked questions
      in the case, because his lawyer says don’t answer any questions, plead
      the Fifth, I take the Fifth.

      We know that every organization that investigated the accident;
      TxDOT, DPS, NTSB says it’s his fault. Regardless of what evidence
      you hear in the case, knowing that there’s an individual who has
      multiple citations before and the allegations in the case from other side
      are, look, this is his fault, he shouldn’t have had that tall of a load. Some
      people would say, I could never hold anyone responsible no matter the
      evidence except for that truck driver. Anyone feel like that?

      [Counsel for D Primoris Construction]: I object, Your Honor. I believe
      that’s a commitment question.

      THE COURT: Okay. I’ll let you rephrase, [counsel for Evans and
      Jones].

      [Counsel for Evans and Jones]: Yeah. Anyone feel like regardless of
      the evidence and regardless of the case, if there is a truck driver and
      he’s had a lot of citations for doing stuff the wrong way, they could
      never find someone else also responsible for an injury but would always
      blame the truck driver; anyone feel like that?

      [Counsel for D Primoris Construction]: I object, Your Honor. That’s
      another commitment question.

      THE COURT: Okay, counsel. [counsel for Evans and Jones], you need
      to rephrase.

      [Counsel for Evans and Jones]: Sure.


                                          –21–
       THE COURT: Okay. You are asking for a commitment question. I
       know where you're trying to go but you’re asking a commitment
       question.

       [Counsel for Evans and Jones]: So let’s do this baby stuff. If someone
       takes the Fifth Amendment in a case and says I plead the Fifth and I’m
       not answering any questions, I will not do it, the lawyer says you are
       instructed not to answer any question, regardless of the evidence in the
       case and regardless of the instructions, would you be more likely to
       believe that that person was at fault than any defendant who did not
       take the Fifth Amendment?

       [Counsel for D Primoris Construction]:                 I object. That’s another
       commitment question --

       THE COURT: Okay. I disagree. I'll allow that one. [Counsel for Evans
       and Jones] ?

       [Counsel for Evans and Jones]: Okay. So I’ll try to say the same one
       again. It’s written down so I should be able to get it. If someone takes
       the Fifth Amendment in the case and says I refuse to answer the
       questions, I take the Fifth, regardless of the evidence and regardless of
       the Court’s instructions, who of you are more likely or would believe
       that the person who took the Fifth was more likely to be at fault than
       any parties who did not take the Fifth?

       [Counsel for D Primoris Construction8]: And I object respectfully,
       Judge. This is another commitment question.

       THE COURT: I think you need to ask a broader question about their
       feelings about people who plead the Fifth and then go there.

       [Counsel for Evans and Jones]: Sure. . . . Anyone in the courtroom.
       Someone takes the Fifth versus someone who doesn't take the Fifth,
       does anyone have -- start off and say, look, regardless of what evidence
       comes in, I’d have a tough time with the fact that one person just refused
       to answer questions?


   8
      The reporter’s record indicates counsel for Evans and Jones asserted this objection to their own
question. It is an obvious typographical error, and counsel for D Primoris Construction asserted this
objection.
                                                –22–
The first unidentified juror to answer stated that would result in withholding

information that then cannot be weighed in the decision because “[you] have one

party giving me data or information than you have another.”          Another juror

answered, “I would think people are hiding something, I mean, his guilt.” Then

Evans and Jones asked prospective juror 24,

      [Counsel for Evans and Jones]: And so regardless of what the evidence
      was, if you had one party that took the Fifth and one party that didn’t,
      would you be more likely to say I can only blame the party that pleads
      the Fifth because they’re not telling me stuff?

      [Counsel for D Primoris Construction]: I object. That’s a commitment
      question.

      THE COURT: Okay. [Counsel for Evans and Jones], you need to ask a
      broader question.

      [Counsel for Evans and Jones]: Okay. 24.

      [Prospective juror 24]: Speaking broadly --

      [Counsel for Evans and Jones]: Yeah.

      [Prospective juror 24]: Generally, if somebody says they’re pleading
      the Fifth, I automatically assume they’re trying to hide something.

      [Counsel for Evans and Jones]: Yeah. No matter what the evidence is
      in the case, you just assume they’re trying to hide something.

      [Prospective juror 24]: Yes.

Evans and Jones then asked the entire panel who agreed with prospective juror 24’s

answer to which ten prospective jurors raised their hands. The first one stated when

asked what he meant, “I think they’re hiding something . . . . No matter what the

evidence is. If they won’t defend themselves or tell their side of the story I think
                                       –23–
they’re hiding something.” When further questioning continued, counsel for D

Primoris Construction objected, there was a discussion, and counsel for Evans and

Jones stated he withdrew his question and moved to a different topic.9

        Evans and Jones asked and obtained answers to the literal effect of asserting

the Fifth Amendment: something that might be known is not revealed. The first

juror to answer pointed out the result would be obtaining “data” from witnesses who

did answer questions and not from anyone who asserted the Fifth Amendment,

which may cause a difference in evidence between parties and that might affect the

decision. That is true. And all the prospective jurors afterwards stated the first part

of that answer, such as prospective juror 24’s answer, “Generally, if somebody says

they’re pleading the Fifth, I automatically assume they’re trying to hide something.”

That is a fact: asserting the Fifth Amendment hides whatever information is known

to that person. It is the equivalent of stating a certain prospective juror has a

mustache. Evans and Jones’s use of the intelligent answer of prospective juror 24

who understood asserting the Fifth Amendment hides the information as an

explanation for their strike is disingenuous.

    F. Third Batson Step regarding Prospective Juror 28—Mr. Swift

        United Rentals completes its argument that all of Evans and Jones’s strikes

were motivated by the race and gender statement is demonstrated by their


    9
     United Rentals cites this entire transcript and argues this line of questioning was withdrawn. The last
question was, but United Rentals does not explain how the withdrawal of the last question resulted in the
withdrawal of those previous questions and answers to which an objection was not asserted nor sustained.
                                                   –24–
peremptory challenge of prospective juror number 28. Because Evans and Jones

represented to the trial court that “he didn’t kind of directly answer, and on his

questionnaire he wrote, depends as to everything,” a more thorough review of the

record is necessary.

             Details in Record regarding Prospective Juror 28

       The trial court allowed “at least two days of voir dire. So – maybe three.” So

counsel had ample time to question the prospective jurors.           The trial court

appropriately prohibited counsel from explaining the facts of the case during their

voir dire beyond the basic accident facts and what relationship the parties had to the

accident and the lawsuit.

       Prospective juror 28 was one of the non-black males whom Evans and Jones

exercised the state action delegated to them by peremptorily striking him. But the

only question Evans and Jones’s counsel asked prospective juror 28 during voir dire

was,

       [Counsel]: 28? Where’s 28? Your thoughts.

       [Prospective juror 28]: I can’t make a decision because we don’t have,
       you know, we don’t have more information.

Leading up to that question, Evans and Jones’s counsel had asked other prospective

jurors wide ranging questions about responsibility, liability, and damages. In his

preceding questions, counsel neared the conclusion of his voir dire by asking the

panel the usual wind-up question, “Anything that I should ask you where you say,

look, in a case like this, if he’d only asked me these things he would have learned
                                        –25–
these strong feelings I have about whatever?” Several prospective jurors responded

with statements on various topics. So, Evans and Jones’s question, “Where’s 28?

Your thoughts,” inquired about anything prospective juror 28 wanted to comment

about the prior jurors’ answers or counsel’s questions.                     Prospective juror 28

essentially answered that he would need to hear evidence before making a decision.

        HNTB’s counsel asked prospective juror 28 a few questions. Counsel was

ending his voir dire examination and asked,

        [Counsel]: I’ll just ask you one other because I don’t want to exclude
        myself. What question, if any, come to -- about HNTB that you’d want
        answers; is there anything that comes to mind? Yes, sir.

        ....

        PROSPECTIVE JUROR:10 What are the relationships between all the
        companies. [sic]

        [Counsel]: Okay. Good question. Mr. Swift, I’ve got to ask you.
        You’re an author.

        [Prospective juror 28]: I am.

        [Counsel]: Can you tell me what type of things that you write?

        [Prospective juror 28]: I actually write under three pens. Under my
        middle name and last name, I write thrillers.

        [Counsel]: Okay.




   10
      The reporter’s record does not indicate this answer was stated by prospective juror 28. Counsel’s
next question possibly indicates this was stated by prospective juror 28.
                                                –26–
       Mr. Swift, prospective juror 28, completed his questionnaire as follows

(identity questions omitted; handwritten check marks in boxes; handwritten answers

in italics):

       2. What is your current employment status? (check all that apply)

       ☑ Self-Employed [other options not checked]

       3. What is the name of your current employer; what is your job title;
       and what do you do at work (if not currently employed, please provide
       this information for your most recent employer)

       Author

       4. Have you, or [your] spouse/significant other, ever owned a business,
       or served as company president, senior manager, or CEO? If YES,
       please explain the nature of the business.

       Yes. Publishing Small—My Books

       5. What is the highest level of education you have completed?

       ☑ Some college [other options not checked]

       6. Do you, or your spouse/significant other, have special training or
       knowledge in any of the following areas?

       [none checked]: ☐ Trucking industry ☐ Equipment rental business
       ☐ Claims handling ☐ Construction ☐ Civil engineering ☐ Law/legal
       ☐ Accounting ☐ Human Resources Please explain:

       7. What is your marital status?

       ☑ Married [other options not checked]

       If your spouse or partner is employed, what is the name of his/her
       employer and what does he/she do at work?

       Chase Bank

                                         –27–
    8. Have you or someone close to you, ever sued an individual or entity
    or been sued by another individual or entity? If YES, please explain

    No

    9. Have you ever served as a juror before? ☑ Yes ☐ No

                                                    Did the jury
                                                                   Were you the
                                                      reach a
Civil/Criminal Charges/Allegations       Year                      foreperson?
                                                      verdict?
                                                                   (Yes or No)
                                                    (Yes or No)
  Criminal       Drug Possession         2011           Yes            No
   Civil          Injury, Motor          2013           Yes            No
                     Accident

    10. Are you a licensed driver? If yes, please indicate the class (e.g.,
    Class C, DCL, motorcycle, etc.) and approximately how many years
    you have had a license: Driver’s license classification(s):

    Class C

    11. Have you, or anyone close to you, ever been involved in a motor
    vehicle accident that involved injury? If YES, please explain who, what
    happened, the types of injuries, whether that person(s) recovered, and
    whether that person filed a lawsuit:

    No

    12. Has anyone close to you ever died as a result of an accident of any
    type? If YES, please explain who, what happened, and whether a
    lawsuit was filed.

    No

    13. Have you, or anyone close to you, ever been accused of causing a
    serious injury to someone else?    ☐ Yes      ☑ No If YES, please
    explain who, what happened, the types of injuries, whether that
    person(s) recovered, and whether that person filed a lawsuit:

    No.


                                     –28–
14. Have you ever been involved in a dispute where you believed a
company or government agency failed to maintain certain safety
standards that lead to injury or death? ☐ Yes ☑ No If yes, what
was the dispute and how was it resolved?

15. Have you, or anyone close to you, ever had an unfavorable
experience or incident with an 18-wheeler? ☐ Yes ☐ No If YES,
please explain:

No.

16. What are your opinions or feelings about personal injury lawsuits
asking for money? Have you, a family member, or close friend ever
had an unfavorable experience involving a personal injury lawsuit?

Depends on the circumstances.    No.

17. What opinions, if any, do you have regarding Texas Department of
Transportation (TxDOT), James Construction, HNTB Corporation,
United Rentals, or Lares Trucking? Have you ever had any unfavorable
experiences with any of these entities?

No opinions.

18. Have you, a family member, or close friend ever worked for Texas
Department of Transportation (TxDOT), James Construction, HNTB
Corporation, United Rentals, or Lares Trucking? ☐ Yes ☑ No If
YES, please explain.

19. Some of the damages that may be sought in this lawsuit include
awarding money for mental anguish. What are your opinions regarding
awarding money for mental anguish?

Depends on the circumstances.

20. In this lawsuit there may be a request for punitive damages.
Punitive damages are awarded to punish a defendants(s). What
opinions or beliefs, if any, do you have regarding punitive damage
awards?

Depends on the circumstances.

                                –29–
      21. This trial is expected to last three weeks. Is there any reason you
      cannot serve? ☐ Yes ☑ No If YES, please explain:

      /s/

             Analysis

      Here, Evans and Jones’s explanation for striking prospective juror 28 was:

      28 is the gentleman who’s a writer and writes thrillers. He’s served on
      two juries. We asked him about the juries. We asked him about a
      number of questions which he didn’t kind of directly answer, and on
      his questionnaire he wrote, depends as to everything. When we got to
      him we candidly said, look, we don’t have enough information and we
      can’t take a chance on him. Jane told me, John, I’m afraid this is
      someone who is going to want to write about this case, and there’s a
      chance he’s not going to write good things about it. So those are our
      gender neutral or they’re also doing, I guess, a protected class … neutral
      basis.

Evans and Jones’s stated reasons were prospective juror 28 was a writer, he served

on two juries, he answered the questionnaire, “depends as to everything,” and they

did not have enough information about him.

      In Miller-El, the second aspect of the searching inquiry is to consider whether

counsel questioned the jurors he struck about the stated reasons for striking them.

Id. And, third, we compare prospective juror 28 to other jurors. Evans and Jones’s

first stated reason was that prospective juror 28 was an author and they were

concerned he would write about this case. Evans and Jones did not ask prospective

juror 28 anything about his self-published writings: no questions about whether the

subject matters of his writings ever pertained to court cases, whether he had written

about the two trials in which he participated as a juror, or whether he might write

                                        –30–
about this trial. (HNTB asked only one question learning prospective juror 28 wrote

“thrillers”). It is so common for jurors to write about trials on social media platforms

that the supreme court has ordered trial courts to instruct all the jurors not to do so

before trial concludes: “Do not post information about the case on the Internet

before these court proceedings end and you are released from jury duty.” Jury

Instructions Prescribed by Order under Rule 226A, effective April 13, 2011

(emphasis added) (published with TEX. R. CIV. P. 226a). So the entire panel was

authorized by the supreme court’s instruction to write and post about the trial after

the trial. That makes all of the prospective jurors writers who self-publish their

thoughts. Evans and Jones’s counsel did not ask any juror about whether they posted

to social media about past trial experiences (others had served on juries), whether

they might do so about this case, or mention to the trial court any concern about them

doing so. The Texas Supreme Court decided relying on a juror questionnaire that a

juror’s occupation was a musician then striking that juror for that reason without

asking questions and without asking the other jurors relevant job-related questions

is pretextual. See Davis, 268 S.W.3d at 521–22 (“We note that Fisk never questioned

Pickett about his job but instead relied on Pickett’s juror information card, which

stated that Pickett was a musician employed by Pleasant Hill Baptist Church,” and

observing, “It is difficult to imagine that [the struck black panel member] . . . was

less desirable than these jurors because of his musical career.”) (citing Miller–El,

545 U.S. at 244). That squarely applies to prospective juror 28’s career as an author,
                                         –31–
as United Rentals argues. Evans and Jones’s stated reason for striking prospective

juror 28 because he was a writer is extremely suspect as pretextual, and the lack of

questioning weighs in favor of United Rentals’ Batson challenge.

      Evans and Jones’s next reason for striking prospective juror 28 was, “He’s

served on two juries.” Prospective juror 28 had answered in his questionnaire that

he had served as a juror on a drug possession criminal case and a civil motor vehicle

accident case, that he was not the presiding juror in either, and that the jury reached

a verdict in both. Evans and Jones did not ask him whether the verdict in the motor

vehicle accident case was for the plaintiff or defendant; if for the plaintiff, how much

was requested and how much the jury awarded; or anything about the trial and

deliberations such as whether he had a good or bad experience that he would bring

with him to service on this jury. Nor were any questions asked about the criminal

trial. In addition, Evans and Jones argued that one of United Rentals’ peremptory

strikes was pretextual because prior jury service was irrelevant:

      [P]rior service on a jury, even if it was the foreperson in an unrelated
      case is in our view not a clear and reasonably specific explanation
      showing a legitimate reason related to the facts of this case. And,
      accordingly, we object.

Evans and Jones are correct; prior jury service is unrelated and when combined with

their failure to ask questions about prospective juror 28’s past jury service this reason

is pretextual, weighing in favor of United Rentals’ Batson challenge.

      Evans and Jones’s last reason for striking prospective juror 28 was that,


                                          –32–
      We asked him about a number of questions which he didn’t kind of
      directly answer, and on his questionnaire he wrote, depends as to
      everything. When we got to him we candidly said, look, we don’t have
      enough information and we can’t take a chance on him.

Contrary to what they told the trial court, Evans and Jones orally asked prospective

juror 28 only, “28? Where’s 28? Your thoughts.”—a very nice, open-ended

question, about anything prospective juror 28 wanted to say. And what he said was

perceptively accurate, “I can’t make a decision because we don’t have, you know,

we don’t have more information.” So, prospective juror 28 answered that he wanted

evidence, “more information,” before he started forming opinions and impressions.

      And that oral answer is consistent with his questionnaire answers about which

Evans and Jones complained to the trial court, “on his questionnaire he wrote,

depends as to everything.” That’s simply not true. On his questionnaire, prospective

juror 28 answered 21 questions. Eleven answers (questions 1–7, 9, 10, and 21)

provided background information about himself and his spouse or significant other.

Seven questions (8, 11–15, and 18) asked for an explanation if a condition existed

(been sued, motor vehicle accident, death of someone close as a result of an accident,

accused of seriously injuring someone, dispute with a company or government, or

accident with an 18-wheeler).      Prospective juror 28 answered, “No,” to each

condition, so he had nothing to explain. One question (17) asked whether he had

any opinions about the defendants, he answered he had none. So that leaves three




                                        –33–
questions (16, 19, and 20) to which prospective juror 28 actually answered

“depends”:

         16. What are your opinions or feelings about personal injury lawsuits
         asking for money? Have you, a family member, or close friend ever
         had an unfavorable experience involving a personal injury lawsuit?

         Depends on the circumstances.              No.

         19. Some of the damages that may be sought in this lawsuit include
         awarding money for mental anguish. What are your opinions regarding
         awarding money for mental anguish?

         Depends on the circumstances.

         20. In this lawsuit there may be a request for punitive damages.
         Punitive damages are awarded to punish a defendants(s). What
         opinions or beliefs, if any, do you have regarding punitive damage
         awards?

         Depends on the circumstances.

Effectively, each of these answers stated prospective juror 28 could consider

awarding money for personal injuries but needed evidence before he could form

opinions: “Depends on the circumstances.” In fact and in law, it does depend on the

circumstances; it depends on the facts of each case and applicable law regarding

liability and damages. And in answer to question 16, prospective juror 28 answered

that neither he, “a family member, or close friend ever had an unfavorable experience

involving a personal injury lawsuit.” And United Rentals argues, “[N]umerous[11]



    11
      I do not dispute the majority opinion’s correction of United Rentals’ argument due to one juror having
been struck for cause.


                                                   –34–
panel members in the strike zone, such as Mr. Maldonado (a Hispanic),[12] Mr.

Robleto (a Hispanic), Ms. Hatter (a black woman), Ms. Sanford (a black woman),

Ms. Jackson (a black woman), Ms. Buentello (a Hispanic), and Ms. Owen (a

woman), provided similar answers to the same questions but were not struck by

Plaintiffs.” (Emphasis and footnotes added.) Evans and Jones’s failure to ask

questions about their “depends as to everything” reason is strongly suspect as

pretextual and weighs in favor of United Rentals’ Batson challenge.

         Not asking questions of jurors about the matters for which peremptory strikes

are used is important in the third step of the Batson analysis. Id. As summarized by

the Texas Supreme Court:

         Fisk’s failure to question Daigle about his purported reaction also
         suggests that Daigle’s reaction had little to do with Fisk’s strike.
         Miller–El II, 545 U.S. at 246, 125 S. Ct. 2317 (noting that the
         prosecution’s failure to question prospective juror about reason given
         for strike suggested pretext; prosecutor “probably would have
         [questioned him] if the family history had actually mattered”) (citing
         Ex parte Travis, 776 So. 2d 874, 881 (Ala. 2000) (“[T]he State’s failure
         to engage in any meaningful voir dire examination on a subject the State
         alleges it is concerned about is evidence suggesting that the explanation
         is a sham and a pretext for discrimination.”)); Alex v. Rayne Concrete
         Serv., 951 So. 2d 138, 154 (La. 2007) (noting that “the lack of
         questioning or mere cursory questioning before excluding a juror
         peremptorily is evidence” of pretext).




    12
       While the record is silent as to further description of the prospective Hispanic jurors, the U.S. Census,
a source of which we would be entitled to take judicial notice, estimates that more than 90% of those in
Dallas    County       identified       as     Hispanic      are     also    identified    as     white.    See
https://www.census.gov/quickfacts/fact/table/dallascountytexas/PST045219 (last visited Aug. 13, 2020).
                                                     –35–
Davis, 268 S.W.3d at 519. In essence, if the reason for the peremptory strike really

mattered, the party exercising the peremptory strike would have asked about it. Id.

Inversely, meaningful voir dire questioning about the reason for later striking a panel

member indicates lack of pretext. So, the fact that Evans and Jones did not ask

prospective juror 28 any questions about his self-published writings as distinguished

from the entire panel’s social media writings is most important in combination with

not asking about his previous jury service and his ‘need-some-evidence’ answers to

the questions about personal injury damages. This lack of questioning, even without

the stated goal of black female jury composition, indicates the reasons are pretextual.

Id.

      Finally, there were several misstatements made about the record to the trial

court. Evans and Jones stated, “We asked him about a number of questions which

he didn’t kind of directly answer,” which is not true. Evans and Jones asked the

most open question possible, “28? Where’s 28? Your thoughts.” In response,

prospective juror 28 perceptively answered, “I can’t make a decision because we

don’t have, you know, we don’t have more information.” If counsel did not think

that answered his question, he should have followed up. And Evans and Jones’s

contention that “on his questionnaire he wrote, depends as to everything” is simply

not true. Prospective juror 28 answered 3 out of 21 questions, “Depends on the

circumstances,” which were entirely appropriate answers to questions about personal

injury recovery of money—it does depend on the circumstances of the facts and the
                                         –36–
law. Again, if counsel was suspicious of that answer, he should have asked questions

to gain insight or further information. A “misstatement [of the record in explanation

of a peremptory strike] can be another clue showing discriminatory intent.” Flowers,

139 S. Ct. at 2250. And several misstatements can indicate discriminatory intent.

         To be sure, the back and forth of a Batson hearing can be hurried, and
         prosecutors can make mistakes when providing explanations. That is
         entirely understandable, and mistaken explanations should not be
         confused with racial discrimination. But when considered with other
         evidence of discrimination, a series of factually inaccurate explanations
         for striking black prospective jurors can be telling. So it is here.

Id. Here, Evans and Jones’s misstatements of the record, combined with their race-

and gender-based goal for jury selection, 100% of the peremptory strikes

implementing that discriminatory goal, and pretextual reasons about which they did

not ask questions all lead to the only possible conclusion: Evans and Jones intended

to strike non-black men from the jury in violation of Batson, Edmonson, and J.E.P.13




    13
       In a single citation at the conclusion of its Batson argument in its brief, United Rentals invokes the
Texas Constitution’s protection under article 1, section 3a: “Equality under the law shall not be denied or
abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.” TEX.
CONST. art. I, § 3a. In a footnote, United Rentals argues we are “not constrained by federal equal protection
jurisprudence.” While that provision was indeed meant to “supplement the federal guarantees of equal
treatment” and thus can logically provide only greater, not lesser protection, Bell v. Low Income Women of
Tex., 95 S.W.3d 253, 257 (Tex. 2002), United Rental presents us with no citation to authority or argument
to develop this contention. In view of my conclusion that the strikes in this case violated the federal
constitution, and thus, likewise, our own, I see no need of developing the external perimeters of the state
guarantee at this stage. See Dewberry v. State, 4 S.W.3d 735, 744 (Tex. Crim. App. 1999) (noting that
because appellant failed to distinguish his rights under the Texas Constitution from that of the federal
Constitution and combined his points based on the state and federal Constitutions into one argument, “we
only address whether appellant’s rights under the United States Constitution were violated”); see also
Wargocz v. Brewer, No. 02-17-00178-CV, 2018 WL 4924755, at *5 (Tex. App.—Fort Worth Oct. 11, 2018,
no pet.) (mem. op.) (applying Dewberry to civil case).
                                                   –37–
      In the third step, the persuasiveness of the justification for the peremptory

strike is the critical issue, and “implausible or fantastic justifications may (and

probably will) be found to be pretexts for purposeful discrimination.” Purkett, 514

U.S. at 768. Courts must consider “all relevant circumstances,” Batson, 476 U.S. at

96–97, and make a searching inquiry, because “without [a] searching inquiry into

the basis of the challenged strikes, Batson would become a ‘mere exercise in

thinking up any rational basis.” Miller-El, 545 U.S. at 252. Having done so, there

is nothing positive in the record for Evans and Jones in the third Batson analytical

step that overcomes the direct evidence that their peremptory strikes were

substantially motivated by their plan to obtain black female jurors. There is only

one conclusion that may be drawn from this record: the trial court abused its

discretion when it denied United Rentals’ Batson challenge and granted all of Evans

and Jones’s strikes.

                                       VII.
                                   CONCLUSION

      For the reasons stated above, the trial court abused its discretion when it

overruled United Rentals’ Batson challenge to Evans and Jones’s gender-based

peremptory strikes.




                                       –38–
      Because the majority of the Court declines to reconsider this

decision en banc and reverse and remand it, I respectfully dissent.




                                           /David Evans/
                                           DAVID EVANS
                                           JUSTICE



Whitehill and Schenck, J.J., join this dissenting opinion.


180665DF.P05




                                        –39–
