Opinion issued August 31, 2012




                                 In The

                           Court of Appeals
                                 For The

                       First District of Texas
                        ————————————
                           NO. 01-09-01096-CV
                         ———————————
                     RICHARD HAYNES, Appellant
                                   V.
           UNION PACIFIC RAILROAD COMPANY, Appellee

                                  AND

          UNION PACIFIC RAILROAD COMPANY, Appellant
                                   V.
                      RICHARD HAYNES, Appellee



                 On Appeal from the 189th District Court
                          Harris County, Texas
                    Trial Court Case No. 2006-40557
                                    OPINION

      Appellant Richard Haynes sued his employer, appellee Union Pacific

Railroad Company, for injuries he sustained when a railcar struck his personal

vehicle as he was leaving the railroad yard. After a jury trial, Haynes was awarded

damages of $456,300 plus interest. Both parties appealed. Among other issues,

Haynes contends that the trial court erred by overruling his Batson challenge to

peremptory strikes exercised by Union Pacific during jury selection. We conclude

that the Batson challenge should have been sustained. Accordingly, we reverse

and remand for a new trial. Our disposition makes it unnecessary for us to address

Haynes’s other issues or Union Pacific’s cross-appeal.

                                   Background

      Richard Haynes worked as a car inspector at Union Pacific’s Strang Yard.

He was seriously injured when a rail car collided with his vehicle as he was leaving

at the end of his shift. Haynes suffered physical and psychological injuries, and he

sued Union Pacific for damages under the Federal Employers Liability Act

(FELA). See 45 U.S.C. §§ 51–60. His claims were tried to a jury.

      After voir dire, the parties exercised their peremptory strikes. See TEX. R.

CIV. P. 232, 233. Of the 24 potential jurors in the strike zone, six identified their

race on juror information cards as “black” or “African American.” Union Pacific

exercised all six of its strikes, four of which were used to eliminate black venire


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members from the jury. Haynes raised a Batson challenge, thereby alleging that

Union Pacific had relied on race as a factor informing the use of its peremptory

strikes, in violation of the Equal Protection Clause of the United States

Constitution. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).

      The trial court assumed that the use of four of six peremptory strikes to

block four of six potential black jurors constituted a prima facie case of racial

discrimination.    Union Pacific’s counsel was then given the opportunity to

articulate race-neutral justifications for the strikes, and Haynes’s counsel

responded with argument.       In overruling the Batson challenge, the trial court

commented, “I think that the railroad has stated an adequate basis, neutral basis for

the challenges that it exercised.”

                                      Analysis

I.    Batson procedure

      Over twenty-five years ago, the United States Supreme Court declared in

Batson that the racially motivated use of peremptory challenges in criminal cases

violates the Fourteenth Amendment’s guarantee of “equal protection of the laws.”

Id. at 85, 97–98, 106 S. Ct. at 1716, 1723–24. Five years later, this holding was

extended to civil trials in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 618–

28, 111 S. Ct. 2077, 2081–87 (1991). The resolution of a Batson challenge

involves a three-step process: (1) the party challenging the strike must establish a

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prima facie case of racial discrimination; whereupon (2) the burden shifts to the

striking party to present a race-neutral explanation; and (3) if the striking party

does so, the party challenging the strike must prove purposeful racial

discrimination. Miller–El v. Dretke (Miller-El II), 545 U.S. 231, 239, 125 S. Ct.

2317, 2324–25 (2005); Goode v. Shoukfeh, 943 S.W.2d 441, 445–46 (Tex. 1997).

      At the initial stage, the objecting party may rely on “all relevant

circumstances” to raise an inference of purposeful discrimination. Miller-El II,

545 U.S. at 240, 125 S. Ct. at 2325 (citing Batson, 476 U.S. at 96–97, 106 S. Ct.

1712). Once a prima facie case has been established, the party who exercised a

challenged strike must present a comprehensible, racially neutral reason for the

strike, but the reason need not be “persuasive, or even plausible,” so long as it is

not discriminatory. Purkett v. Elem, 514 U.S. 765, 767–768, 115 S. Ct. 1769,

1770–71 (1995) (per curiam). Nevertheless, the explanation for the strike must be

clear and reasonably specific. See Miller-El II, 545 U.S. at 239, 125 S. Ct. at 2324.

“A neutral explanation means that the challenge was based on something other

than the juror’s race.” Goode, 943 S.W.2d at 445 (citing Hernandez v. New York,

500 U.S. 352, 360, 111 S. Ct. 1859, 1866–67 (1991)). “[O]nce a party offers a

race-neutral explanation for the peremptory challenge and the trial court has ruled

on the ultimate question of intentional discrimination, the preliminary issue of a

prima facie case is moot.” Goode, 943 S.W.2d at 445.

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       At the conclusion of the Batson procedure, “the trial court must determine if

the party challenging the strike has proven purposeful racial discrimination, and

the trial court may believe or not believe the explanation offered by the party who

exercised the peremptory challenge.” Davis v. Fisk Elec. Co., 268 S.W.3d 508,

515 n.4 (Tex. 2008); see also Purkett, 514 U.S. at 768, 115 S. Ct. at 1771. The

persuasiveness of the justification for the peremptory strike is critical.         E.g.,

Purkett, 514 U.S. at 768, 115 S. Ct. at 1771; Baker v. Sensitive Care—Lexington

Place Health Care, Inc., 981 S.W.2d 753, 756 (Tex. App.—Houston [1st Dist.]

1998, no pet.). “At that stage, implausible or fantastic justifications may (and

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

U.S. at 768, 115 S. Ct. at 1771. However, “the ultimate burden of persuasion

regarding racial motivation rests with, and never shifts from, the opponent of the

strike.”   Id.   Throughout the Batson process, including any appeal, the party

exercising the strike must rely on the explanation originally proffered in response

to the prima facie case. As explained by the Supreme Court:

       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.

Miller-El II, 545 U.S. at 252, 125 S. Ct. at 2332.

       We review a trial court’s ruling on a Batson challenge for abuse of

discretion. Davis, 268 S.W.3d at 515. A trial court abuses its discretion if its

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decision is arbitrary, unreasonable, and without reference to guiding principles.

See, e.g., Goode, 943 S.W.2d at 446.          Our review considers “all relevant

circumstances” to determine whether race was a factor in the exercise of a

peremptory challenge. Davis, 268 S.W.3d at 511, 516. If it was, then the jury

selection process violated the Equal Protection Clause. See id. at 524 (citing

Powers v. Palacios, 813 S.W.2d 489, 491 (Tex. 1991)). The improper exclusion of

even one juror offends the Constitution, requiring reversal and remand for a new

trial. See Snyder v. Louisiana, 552 U.S. 472, 478, 128 S. Ct. 1203, 1208 (2008).

II.   Statistical disparity

      Union Pacific used four of its six peremptory strikes to eliminate four of six

potential black venire members (67%) from the jury. In Davis v. Fisk Electric Co.,

268 S.W.3d 508 (Tex. 2008), the Supreme Court of Texas observed that

“happenstance” was unlikely to produce the disparity of a party striking 83% of

potential African American jurors (five of six) compared to 5.5% of the eligible

nonblack prospective jurors. See Davis, 268 S.W.3d at 516 (citing Miller-El v.

Cokrell (Miller-El I), 537 U.S. 322, 342, 123 S. Ct. 1029, 1042 (2003)). Although

the disparity in this case was not as wide as that in Davis or in Miller-El (in which

91% of eligible black venire members were excluded, see Miller-El II, 545 U.S. at

240, 125 S. Ct. at 2325), we nevertheless note, as part of our review of the “totality

of the circumstances,” that the statistical disparity of Union Pacific striking 67% of

                                          6
the potential black jurors while striking only 11% of the eligible nonblack venire

members was similarly unlikely to be produced by happenstance. See Davis, 268

S.W.3d at 516.

III.   Comparative juror analysis

       More compelling than the raw statistics in this case is a close analysis of

Union Pacific’s justifications given for what was characterized by counsel as its

“hardest strike.” Juror No. 3 was a 60-year-old man who identified his race as

“black” on his juror information card. The information card also indicated that he

completed two years of college and had worked for one year and five months as a

“part inspector” for a manufacturing company.          He was married, had adult

children, and lived in an apartment. Juror No. 3 was not specifically questioned by

either side during voir dire, and the record does not reflect that he responded to any

questions addressed to the venire panel generally. During the hearing on Haynes’s

Batson challenge, Union Pacific’s counsel gave the following explanation for

striking Juror No. 3:

             He did have a two-year college. He is the only one with any
       education that I struck. And I had so much to pick from. He lived in
       an apartment. He had only been at his job a short time, one year and
       five months, even though he was 60 years old. And I—the read I got
       out of him, he seemed awfully warm toward [Haynes’s counsel]
       Mr. Cohen and seemed to adopt a lot of the things Cohen was saying.
       And there was that sense, as well as the fact he lives in an apartment,
       which is sometimes one thing I look at, because I don’t want to say
       has and has nots, but relative to the other jurors, he didn’t have as
       much education and had a[n] address and a short time at his job.
                                          7
In summary, we discern from this explanation four racially neutral reasons

articulated by Union Pacific for striking Juror No. 3: (1) lack of education;

(2) living in an apartment; (3) duration of his employment; and (4) non-verbal

conduct.

        In some circumstances, a proffered explanation for a peremptory strike could

be merely pretext for purposeful discrimination. A reason for striking a black

venire member may be considered to be pretextual if it applies equally well to an

otherwise-similar venire member who is not black and is permitted to serve on the

jury.   Miller-El II, 545 U.S. at 241, 125 S. Ct. at 2325. In making such a

comparison, struck venire members need not be compared only “to jurors who are

identical in all respects (save race): ‘A per se rule that a defendant cannot win a

Batson claim unless there is an exactly identical white juror would leave Batson

inoperable; potential jurors are not products of a set of cookie cutters.’” Davis,

268 S.W.3d at 512 (quoting Miller-El II, 545 U.S. at 247 n.6, 125 S. Ct. 2329). In

addition, striking a potential juror based on a group bias, when there is no evidence

that the group bias applies to that particular person, can also suggest pretext. Id. at

522 (citing Whitsey v. State, 796 S.W.2d 707, 716 (Tex. Crim. App. 1989)).

   A. Lack of education

        Union Pacific’s counsel made repeated references during the Batson hearing

to the potential jurors’ level of education, and he stated that “[e]ducation was very
                                          8
important to me in this case.” Counsel noted “with respect to the panel as a whole”

that he considered it “a very good panel and very highly educated.” He stated

repeatedly that “nine jurors” had four-year college degrees or postgraduate

degrees, although a review of the juror information cards reveals that in fact only

eight of the jurors had that level of education. Three people selected for the jury,

Jurors Nos. 28, 32, and 38, all indicated that their “highest level of education

completed” was a high-school diploma. On their juror information cards, each of

these jurors indicated their race as “white” or “Caucasian.” Another member of

the panel, Juror No. 10, was the only black member selected for the jury, and like

Juror No. 3, he indicated “2 yr college” as his highest level of education

completed.

      Although Union Pacific’s counsel asserted that education was a primary

factor guiding his exercise of peremptory strikes, he asked no questions during voir

dire that directly pertained to education. The failure to ask questions about the

reason given for a strike suggests pretext. See, e.g., Miller-El II, 545 U.S. at 246,

125 S. Ct. 2328. Moreover, to the extent that “[e]ducation was very important” to

Union Pacific’s counsel in the selection of the jury, rather than providing a racially

neutral explanation for the strike used against Juror No. 3, that consideration

instead raises unanswered questions about why Juror No. 3 was struck rather than




                                          9
any of the three white members of the venire panel who became jurors despite

having less education than Juror No. 3.

   B. Living in an apartment

      Union Pacific’s counsel stated that he “sometimes” considers the fact that a

potential juror lives in an apartment, and he noted that Juror No. 3 “lived in an

apartment.” The lawyer asked no questions about apartment dwelling during voir

dire, and the only further explanation he provided during the Batson hearing for

this factor in his decision to strike Juror No. 3 was his comment, “I don’t want to

say has and has nots.”

      The juror information card does reflect that the home address for Juror No. 3

was an apartment. However, the juror information cards for Jurors Nos. 5 and 11,

both self-identified “Caucasians” who were selected for the jury, reflected that

each of them also lived in apartments. The lawyer provided no further explanation

in the Batson hearing to distinguish Juror No. 3 from the white apartment dwellers

who were not struck from the jury.

      Union Pacific argues on appeal that Juror No. 3 was not otherwise similar to

the white jurors who lived in apartments because Jurors Nos. 5 and 11 had stable,

professional careers. But nothing in the record establishes that Juror No. 3’s career

was not stable. Without asking him a single question, Union Pacific’s attorney

apparently classified Juror No. 3 as a “has not” because he lived in an apartment

                                          10
and worked as a parts inspector. Even to the extent this could have been an

accurate, though unconfirmed, assumption about the socio-economic status of

Juror No. 3, no questions were asked of him to confirm that he shared whatever

undesirable perspective counsel associated with living in an apartment or otherwise

being a “has not.” See Davis, 268 S.W.3d at 522 (pretext suggested by group bias

when the group trait is not shown to apply specifically to the challenged juror).

Nor were any questions asked of Jurors Nos. 5 and 11 to confirm that they did not

share the undesirable perspectives that counsel associated with living in an

apartment.

   C. Duration of employment

      A third racially neutral explanation provided to justify the strike of Juror

No. 3 was counsel’s observation that “[h]e had only been at his job a short time,

one year and five months, even though he was 60 years old.” However, like his

education level and status as an apartment dweller, Juror No. 3’s length of

employment also did not distinguish him from the nonblack members of the venire

panel who were not struck and thus were selected for the jury. Juror No. 7, a self-

identified “white” man who was selected for the jury, was 59 years old and had

been working for his employer “1 year.” Counsel provided no further explanation

of why he considered the length of Juror No. 3’s employment to be significant,

apart from also noting his age, such that Juror No. 3 could be distinguished from

                                        11
Juror No. 7 in this regard. See Miller-El II, 545 U.S. at 241, 125 S. Ct. at 2325

(pretext suggested by rationale that equally applies to otherwise-similar nonblack

juror).

   D. Nonverbal conduct

          Finally, Union Pacific’s counsel also relied on the nonverbal conduct of

Juror No. 3 to justify the decision to strike him from the jury. In his original

explanation, counsel stated that Juror No. 3 “seemed awfully warm” toward

opposing counsel and “seemed to adopt a lot of the things [he] was saying.”

Haynes’s counsel examined Union Pacific’s lawyer to further develop this

rationale for the strike:

          HAYNES’S ATTORNEY: [I]n exactly what way did juror No. 3
              demonstrate to you a coziness or friendliness toward me, as you
              related to the judge?

          UNION PACIFIC’S ATTORNEY: That was the slender gentleman
              wearing a suit, as I recall it. He, with his face, with his what I
              interpret as body language, openly paid attention to you. I
              didn’t think he was quite as attentive to me. I didn’t have a bad
              feel, but I didn’t have a good feeling. And he was my hardest
              strike, I will tell you that. I ruminated over it a while. His lack
              of education and living in an apartment is important.

          HAYNES’S ATTORNEY: I merely asked you what he demonstrated
              to you that you took as cozying up or being–

          UNION PACIFIC’S ATTORNEY: A smile that was not an open
              smile, but a pleasant smile and more of a closed expression
              looking at me.



                                            12
      Because reliance upon nonverbal conduct or demeanor may mask a racially

motivated strike, we must carefully examine this explanation. See Davis, 268

S.W.3d at 518. Merely stating that a venire member “reacted” is not sufficient to

overcome a Batson challenge. Id. “Peremptory strikes may legitimately be based

on nonverbal conduct, but permitting strikes based on an assertion that nefarious

conduct ‘happened,’ without identifying its nature and without any additional

record support, would strip Batson of meaning.”         Id.   “Verification of the

occurrence may come from the bench if the court observed it; it may be proved by

the juror’s acknowledgement; or, it may be otherwise borne out by the record as,

for example, by the detailed explanations of counsel.” Id. Although the trial

judge’s observations of non-verbal conduct are of great importance, no rule of law

mandates rejection of a demeanor-based explanation if the judge did not observe or

cannot recall the juror’s demeanor. Thaler v. Haynes, 130 S. Ct. 1171, 1174–75

(2010).

      In Snyder v. Louisiana, 552 U.S. 472, 128 S. Ct. 1203 (2008), the Supreme

Court held that a prosecutor improperly struck a venire person. Snyder, 552 U.S.

at 474, 128 S. Ct. at 1206. The prosecutor had offered two racially neutral reasons

for striking the potential juror. Id. One reason was the potential juror’s apparent

concern over missing school. Id. at 478, 128 S. Ct. at 1208. But this reason was

not supported by the record, which showed that a member of the trial court’s staff

                                        13
contacted the dean of the school and verified that it would be no problem for the

potential juror to miss a few days of class. Id. at 481, 128 S. Ct. at 1210. The

other reason the prosecutor offered was the potential juror’s nonverbal conduct and

demeanor. Id. at 478; 128 S. Ct. at 1208. The prosecutor stated simply, “[H]e

looked very nervous to me throughout the questioning.” Id. In rejecting that

reason, the Supreme Court stated:

              [D]eference is especially appropriate where a trial judge has
      made a finding that an attorney credibly relied on demeanor in
      exercising a strike. Here, however, the record does not show that the
      trial judge actually made a determination concerning Mr. Brooks’
      demeanor. The trial judge was given two explanations for the strike.
      Rather than making a specific finding on the record concerning
      Mr. Brooks’ demeanor, the trial judge simply allowed the challenge
      without explanation. It is possible that the judge did not have any
      impression one way or the other concerning Mr. Brooks’ demeanor.
      Mr. Brooks was not challenged until the day after he was questioned,
      and by that time dozens of other jurors had been questioned. Thus,
      the trial judge may not have recalled Mr. Brooks’ demeanor. Or, the
      trial judge may have found it unnecessary to consider Mr. Brooks’
      demeanor, instead basing his ruling completely on the second
      proffered justification for the strike. For these reasons, we cannot
      presume that the trial judge credited the prosecutor’s assertion that
      Mr. Brooks was nervous.

Id. at 479, 128 S. Ct. at 1209.

      In Davis, Fisk Electric Company struck a potential juror, based in part on

nonverbal conduct and demeanor. Davis, 268 S.W.3d. at 516. Counsel stated that

this potential juror nonverbally “reacted that corporations should be punished with

                                        14
the use of punitive damages.” Id. Although Fisk stated that this juror was “the

most clear” on this, the nonverbal conduct was not otherwise borne out by the

record, and the juror was not questioned about it. Id. at 518. The Supreme Court

of Texas noted that “Fisk’s failure to question [the venireman] about his purported

reaction also suggests that [his] reaction had little to do with Fisk’s strike.” Id. at

519 (citing Miller–El II, 545 U.S. at 246, 125 S. Ct. 2328). Concluding that the

record did not support any of Fisk’s other reasons for striking this venire member,

Fisk’s racially neutral reasons were held to be unacceptable. Id. at 521.

      In this case, Union Pacific stated that Juror No. 3 seemed more attentive to

opposing counsel than to him, based on Juror No. 3’s “pleasant smile” while

Haynes’s attorney spoke as compared with a “closed expression” when Union

Pacific’s attorney spoke. The difference between a pleasant smile and a more

closed expression is not necessarily indicative of anything. The nonverbal conduct

relied upon in this case did not indicate assent, such as by nodding the head, or

disagreement as by rolling one’s eyes.

      More importantly, counsel for Union Pacific did not question Juror No. 3

about his nonverbal conduct—or about anything at all—which suggests that the

reliance upon nonverbal conduct is a pretextual explanation for the strike. See

Davis, 268 S.W.3d at 519. Because Haynes’s counsel also did not question Juror




                                          15
No. 3, the assertion that Juror No. 3 “seemed to adopt a lot of the things [Haynes’s

lawyer] was saying” is not supported by the record.

      In addition, the record does not show that the trial court credited the

nonverbal conduct explanation in rejecting the Batson challenge. Although Union

Pacific’s lawyer described Juror No. 3’s “pleasant smile,” the trial court made no

express findings to confirm this account, and the record contains no other

indication of Juror No. 3’s demeanor. Instead, the factor specifically noted by the

trial court was that education was a primary factor in the four peremptory strikes

that Haynes challenged. Nonverbal conduct was rejected as a racially neutral

explanation for a peremptory strike in Snyder because the trial court did not

specifically credit it, and we do the same here. See Snyder, 552 U.S. at 479, 128 S.

Ct. at 1209.

                                    Conclusion

      In an appeal from a Batson challenge, the question presented to the appellate

court is “whether the record explains, on neutral grounds, a statistically significant

exclusion of black jurors.” Davis, 268 S.W.3d at 525. We acknowledge that a

careful comparative juror analysis is much more easily accomplished on appeal,

with the benefit of a transcript. See id. And just as in Davis, we have no reason to

doubt that the attorney responsible for the challenged peremptory strikes in this

case is anything less than “pure of heart,” and we assume that he is. Our review is

                                         16
focused on the quality of the record, and based upon Davis and the other well-

established legal precedents relied upon in this opinion, we conclude that the

record does not demonstrate a legally sufficient racially neutral explanation for the

exclusion of Juror No. 3.     Accordingly, we hold that the trial court erred by

denying the Batson challenge as to Juror No. 3. We sustain Haynes’s first issue in

part, reverse the judgment of the trial court, and remand for a new trial.




                                               Michael Massengale
                                               Justice

Panel consists of Justices Jennings, Bland, and Massengale.




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