                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00066-CV

BENNIE F.L. WARD,
                                                         Appellant
v.

BAYLOR UNIVERSITY,
                                                         Appellee


                           From the 170th District Court
                             McLennan County, Texas
                            Trial Court No. 2007-4645-4


                           MEMORANDUM OPINION


       Bennie F.L. Ward, a former professor at Baylor University, appeals from a take-

nothing judgment from his claims of employment discrimination against Baylor

University. Ward complains that the trial court abused its discretion by denying his

Batson challenges to the jury and by refusing to require a witness to give salary

information of another professor at Baylor. Because we find no reversible error, we

affirm the judgment of the trial court.
Partial Reporter’s Record

       We only have a partial reporter’s record containing only the voir dire

proceedings, the testimony of one witness, Dr. O’Brien, and the surrounding objections

and arguments made to the trial court. The court reporter certified that these excerpts

were the only portions of the evidence that counsel orally requested to be included in

the reporter’s record. No written request was ever made. When a party appeals with a

partial reporter’s record but does not provide a list of points as provided in Texas Rule

of Appellate Procedure 34.6(c)(1), we presume the omitted portions are relevant and

support the trial court’s judgment. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex.

2002); Feldman v. Marks, 960 S.W.2d 613, 614 (Tex. 1996). Here, our record does not

contain a statement of the points or issues to be presented on appeal nor does Ward

contend that one has ever been made in his briefing to this Court.         We therefore

presume the omitted portions support the trial court’s judgment.

Batson challenges

       Ward complains that the trial court erred by not determining the appropriateness

of peremptory challenges made by Baylor University individually “in seriatim”

pursuant to an objection to the challenges based on Batson v. Kentucky, which articulated

the standard to be used to determine whether strikes were inappropriate based on race.

Batson v. Kentucky, 476 U.S. 79 (1986). There were originally six African-American

members on the jury panel, two of whom were successfully challenged for cause.


Ward v. Baylor University                                                          Page 2
Thereafter, Baylor struck all four of the remaining African-American panelists with its

peremptory challenges, to which Ward objected.

Standard of Review

       Batson determined that the use of racially motivated peremptory challenges to

exclude potential jurors in criminal cases violates due process of law.       Id.; see also

Brumfield v. Exxon Corp., 63 S.W.3d 912, 915 (Tex. App.—Houston [14th Dist.] 2002, pet.

denied). The Batson rule extends to civil trials. Edmonson v. Leesville Concrete Co., 500

U.S. 614, 618-28, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991).

       Resolution of a Batson challenge is a three-step process: (1) the party challenging

the use of a peremptory challenge to strike a potential juror must establish a prima facie

case of racial discrimination; (2) the party who exercised the strike must come forward

with a race-neutral explanation; and (3) if the striking party does so, the party

challenging the strike must prove purposeful racial discrimination. See Purkett v. Elem,

514 U.S. 765, 767, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995), Hernandez v. New York, 500

U.S. 352, 358-59, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991), Goode v. Shoukfeh, 943 S.W.2d

441, 445 (Tex. 1997). We review a trial court’s Batson ruling for abuse of discretion.

Davis v. Fisk Elec. Co., 268 S.W.3d 508, 515 (Tex. 2008).

       After Ward’s objection, Baylor gave its race neutral reasons for the exercise of

each of the four challenges. The first stricken panelist was an MHMR employee who

Baylor was concerned would relate to Ward as a victim. Baylor contended that the


Ward v. Baylor University                                                           Page 3
second stricken panelist was inattentive, did not follow the questioning by either side’s

attorneys, and had seen employees reprimanded unfairly at her place of employment

which was an issue in the trial regarding Ward. Baylor struck the third panelist because

she had quit her job prior to being reprimanded by her employer for what she felt was

an unjust purpose and because of a desire to strike those with a history of brief

employment or who were then-unemployed. Baylor pointed to another juror who it

struck due to brief employment who was white. The fourth stricken panelist assisted

union employees with filing employment complaints at her job with the VA.

       In response to Baylor’s stated reasons, the following exchange took place:

       Ward:           Your Honor, in one of the Texas Batson cases, a Court
                       observed that a defendant striking 83 percent of black
                       panelists and 5.5 percent of non-black panelists was
                       remarkable. Here we have a hundred percent of black
                       panelists and something closer to 15 or 20 percent of non-
                       black panelists.

                       The common denominator in the explanation for the striking
                       of those four jurors was that they stood up for their rights or
                       other people’s rights, which certainly the Court may regard
                       as potentially pretextual of the fact that they are in a
                       protected classification and may have more occasion to raise
                       those issues than others, and in the case of [the fourth juror],
                       in the union position she has.

       Trial court:    Thank you. Anything else?

       Ward:           I—no, Your Honor.

       Trial court:    Okay. I’ll grant the motion, order that Baylor re-exercise
                       their strikes. See if you can do that in the next ten minutes.


Ward v. Baylor University                                                                 Page 4
                       Thank you.

       Baylor:         So, Judge, just to make sure, am I not allowed to strike any
                       of those four?

       Trial court:    No, sir. I just—I just think—

       Baylor:         Judge—

       Trial court:    —I think that in a case where we’re having a racial
                       discrimination case, I think that it would be blatantly unfair
                       not to have a black person on the jury.

       Baylor:         Well, Judge, I mean, I—

       Trial court:    And I don’t think those people are all disqualified, and I’ll
                       leave it up to you to decide who’s not.

       Baylor:         Well, can—okay. So do I have to keep all—

       Trial court:    No, sir.

       Baylor:         I mean, honestly—

       Trial court:    No, sir.

       Baylor:         I mean, just so you know, and I understand you’ve already
                       ruled—

       Trial court:    Yes, sir.

       Baylor:         —I would have struck the same people with the same
                       characteristics whether they were—regardless of any color. I
                       mean I—

       Trial court:    I understand that, but with that case involved, we play a
                       little bit different game with the game—with the rules.

       Baylor:         Okay. I understand. All right. So—so what you’re telling
                       me is that I can strike—that I can continue to strike some but
Ward v. Baylor University                                                               Page 5
                       not all of these?

       Trial court:    Yes, sir.

       Baylor:         Okay. Thank you, Your Honor.

       Trial court:    And if you come back in, and he objects again, we’ll do it
                       again.

       (Recess)

       Trial court:    Y’all be seated. Okay. Here’s who we have on the jury: No.
                       1—

       Ward:           Your Honor?

       Trial court:    Yes, sir.

       Ward:           If I may, just from a timing standpoint, with respect to the—
                       did Your Honor get the change?

       Trial court:    I did.

       Ward:           I just—as an officer of the Court, I want to say two things.

                       One is defendants seem to take you purely literally by
                       having one of those jurors be picked. The—that juror, as my
                       notes reflect, was consistent with my earlier statement about
                       these people standing up for themselves or for others, said
                       that she, herself, felt discriminated against.

                       Also as—before you came into the courtroom and *Baylor’s
                       trial counsel] marched into the courtroom, he looked at me,
                       and he said, “That’s not right,” and then reported the
                       exchange—essentially the exchange of jurors to me and—

       Baylor:         And—

       Ward:           —and—and I understand that this is an emotional issue, and
                       the Court can judge the appropriateness of the response to
Ward v. Baylor University                                                              Page 6
                       the Court’s denial. I don’t know if the Court has dealt with
                       this situation before, but I would just make the observation
                       that Baylor took you literally and no more by picking one
                       and not two or three.

       Baylor:         And if *Ward’s trial counsel+ can report my conversation, he
                       ought to complete it. What I told him then was that he
                       knows that that’s not why I exercised those strikes, not in
                       those good words.

                       But, Judge, I do—before you seat the jury, I do need to make
                       an objection for the record.

                       Baylor, at this point, is being forced by the Court to exercise
                       a strike in a manner that it did not originally choose, and I
                       did articulate race-neutral reasons for the strikes that we—
                       that we executed. We are being forced to take on … that we,
                       otherwise would have used one of our peremptory
                       challenges to strike, and we believe that this is—we believe
                       that this is an error. Regardless of the sheer numbers, the
                       people that we struck originally were struck because of their
                       characteristics and not because of the fact that they were
                       black.

                       And so to the extent that—so to that extent, I need to object
                       to the Court requiring us to utilize our strikes in that
                       manner, requiring us to take on a juror on the panel that we
                       would have otherwise chosen to strike.

                       Thank you.

       Ward:           And plaintiff simply reiterates its grounds of pretext.

       Trial court:    Okay. Thank you.

                       I’ll deny defendant’s objection, over overrule it.

                       And are we ready to bring in the jury?

       (Attorneys nodding heads up and down.)
Ward v. Baylor University                                                                Page 7
       Ward complains that the trial court erred by not addressing each juror

individually “in seriatim” regarding the Batson complaint and that the trial court’s ruling

created an erroneous “race quota.” Baylor contends that Ward failed to preserve his

complaints for purposes of appeal.

       In his original brief to this Court, Ward complains that the trial court erred after

Baylor had exercised its challenges the first time by not considering each of the

challenges individually in determining whether each strike was race-neutral; rather the

trial court erroneously created, in essence, a “race quota,” which was a violation of

Ward’s rights. In his reply brief, however, Ward complains that the trial court erred by

failing to require Baylor to explain its race-neutral reasons for the second set of strikes

after that objection was made. The trial court sustained the first objection, whether

erroneously or not. It was then necessary for Ward to object again to the trial court after

the second set of strikes, which he arguably did not do. Ward’s reply brief argues that

Ward is not complaining of any alleged errors from the first Batson hearing, but

complains of the trial court’s failure to conduct a proper Batson hearing after the second

set of strikes.

       We note that Ward did not ask the trial court to address the reasons given for

each juror individually at the first hearing and further declined the opportunity to

present evidence or to cross-examine Baylor’s trial counsel when given the opportunity

by the trial court at that time. Further, Ward did not address the individual race-
Ward v. Baylor University                                                            Page 8
neutral explanations offered by Baylor to justify its exercise of the strikes in the first

hearing, or complain in any other way to the trial court about how the trial court

conducted the inquiries in either hearing.

       In the second hearing, Ward did not object to the trial court’s failure to require a

second race-neutral explanation of the justifications for the strikes on the second

objection.   To the degree that Ward’s “observations” can be characterized as an

objection to the second set of strikes, it was also necessary to complain of the trial

court’s erroneous procedure at that time and to seek a ruling from the trial court on his

objections in order to preserve that issue for appeal. In order to preserve error for

purposes of appeal, the trial court must make a ruling on the objection made by a party.

See TEX. R. APP. P. 33.1(b).

       Ward contends that an objection was not necessary because Batson error is a

fundamental error and may be raised for the first time on appeal. However, even

constitutional complaints, including those of Batson violations, may be waived by

failing to object at trial. See Brumfield v. Exxon, 63 S.W.3d 912, 919 (Tex. App.—Houston

[14th Dist.] 2002, pet. denied); see also Williams v. State, 773 S.W.2d 525, 534-35 (Tex.

Crim. App. 1988).

       Ultimately, however, the burden is on the party challenging the strikes to prove

purposeful racial discrimination. Goode v. Shoukfeh, 943 S.W.2d 441, 445 (Tex. 1997).

Ward has not argued before the trial court or to this Court any specific reasons why the


Ward v. Baylor University                                                            Page 9
race-neutral reasons offered by Baylor prove purposeful racial discrimination. In the

first hearing, Ward declined the opportunity to present evidence or cross-examine

Baylor’s trial counsel. On appeal, Ward does not contend that the race-neutral reasons

expressed by Baylor were invalid, untrue, or not supported by the record. It is difficult

to tell from the state of the record as to exactly what the trial court determined

regarding Baylor’s race-neutral reasons because the objection was sustained yet the trial

court stated that it was not finding that all of the strikes were disqualified. Ward did

not object to this.

       Then, after the second set of strikes, the discussion between Baylor, Ward, and

the trial court indicate that the race-neutral reasons proffered by Baylor were

considered at that time and presumably accepted since the jury was empaneled based

on the second set of strikes. Once again, Ward did not seek to disprove those reasons.

Even if there had been no procedural default by Ward, the trial court did not abuse its

discretion regarding the peremptory challenges. We overrule issue one.

Exclusion of Evidence

       In his second issue, Ward complains that the trial court abused its discretion by

refusing to compel a witness to answer a question the witness refused to answer. Dr.

O’Brien, a trial witness, was asked the salary information of another professor at Baylor.

O’Brien stated that he would not answer unless the trial court required him to because

he believed it to be a violation of the law and of Baylor’s bylaws. Ward requested the


Ward v. Baylor University                                                          Page 10
trial court to order O’Brien to answer, at which time Baylor objected on the basis of

relevance because of Ward’s failure to establish that the other professor was “similarly

situated” to Ward at Baylor. See Ysleta ISD v. Movarrez, 177 S.W.3d 915, 917 (Tex. 2005).

The trial court sustained Baylor’s objection. Ward attempted to rephrase the question to

elicit whether or not Ward’s base salary was less than the other professor’s, which drew

the same objection from Baylor and was also sustained.          Because we only have

O’Brien’s testimony and no testimony from other witnesses, including Ward himself

due to the partial reporter’s record, we are required to presume that the other testimony

would support the trial court’s judgment. We overrule issue two.

Conclusion

       Having found no reversible error, we affirm the judgment of the trial court.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed February 22, 2012
[CV06]




Ward v. Baylor University                                                         Page 11
