FindLaw Texas Supreme Court Case and Opinions. (2023)

Bruce A. Pauley, Michael S. Box, William A. Newman, Dallas, for Claimant. Jim Hund, Lubbock, R. Brent Cooper, Dallas, for the defendant.

In this case, we reviewed the determination that peremptory objections were not based on race and considered whether two venire members should have been dismissed for cause. The lower court rejected the Claimant's objections to the Respondent's peremptory objections and also declined to plead the case of two MPs. The appeals court upheld the lower court's decision not to accept anything. 915 S.W.2d 666.   We uphold the judgment of the court of appeals.

EU

James Emerson Good died of complications following knee replacement surgery performed at Methodist Hospital in Lubbock. Orlin Goode, as independent executor of the estate of James Goode, filed a malpractice suit against Mohammad F. Shoukfeh, a cardiologist who treated James Goode for a pulmonary embolism several days after the operation. The case was heard by a jury, which did not find Shoukfeh negligent. The lower court passed the verdict and Goode appealed. The appeals court upheld it.

Goode's complaints about the center of appeal in jury selection. After the destruction of the potential jury, Soukfe peremptorily challenged six members. Goode, an African-American, has opposed four of these challenges as inadmissibly racially motivated under Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). Judges challenged included three African Americans (juror 7, 26, and 28) and one Hispanic (juror 9). During voir dire, Goode also alleged that Shoukfeh hit the 9th juror, a woman, for "gender-based reasons". However, Goode did not bring a gender discrimination claim to this Court.

The trial court conducted a hearing on Edmonson's defense of Goode, which Goode's attorney began by stating that:  (1) the four contested jurors were members of a racial minority; (2) no sufficient neutral racial reason justified these challenges; and (3) Goode would provide evidence of his claims if the court so desired. The court rejected this offer of evidence and instead invited Soukfe's lawyer to respond.

Responding to the court's request, Soukfe's lawyer explained the strike by the four jurors in question. Juror 7 knew and had worked with James Goode's widow or one of his children. Juror 26 was a former nurse at Methodist Hospital, and Shoukfeh's attorney expressed concern about "his reasons for leaving and working there". The objection to 28's testimony was that he made an “indisputable statement. that she had trouble judging” and also that she did not disclose her previous jury service on her jury information card. Finally, Juror 9 was a single mother of four who listed her occupation as "housewife", who Shoukfeh's attorney believed was unemployed, and Shoukfeh's attorney stated that he was concerned that her jury service would "affect her ability to to take care of four children." Shoukfeh's attorney also argued that Juror 9 would be "more of a plaintiff juror" because she appeared to be on welfare.

Following these explanations, Goode requested an opportunity to review opposing counsel's voir dire notes and argued that these notes should be admitted as evidence. Goode then asked for an opportunity to call witnesses, and eventually called Jim Hund and Bill Moss, Shoukfeh's lawyers. Hood and Moss' cross-examination focused on their respective voir dire notes. When asked if those scores reflected any confidence in the breed to eliminate the four jurors, Hund invoked the product of labor privilege. Moss answered "no" in response to the same question. However, Hund and Moss asserted the privilege of the work product by refusing to divulge their notes to Goode. The lower court upheld the privilege claims and declined to conduct a review of the notes behind closed doors. The court then dismissed Goode's Edmonson objections. Goode claims that after Shoukfeh's peremptory challenges, there were no more African Americans or Hispanics on the board, although the record shows that two people with Hispanic names remained.

Goode claims that Shoukfeh failed to offer a racially neutral explanation for his peremptory objections and that the court erred in denying access to the attorney's notes, which may have provided specific evidence that the peremptory objections were made with racially discriminatory intent.

II

ONE

Goode's challenges to the Shoukfeh strikes come under the United States Constitution as interpreted in the decisions of the United States Supreme Court and this Court. In Batman v. Kentucky, 476 US 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that a criminal defendant is denied equal protection under the United States Constitution if a prosecutor uses peremptory challenges to exclude members of a jury based solely on race to them , is the same as the accused.

The United States Supreme Court has extended Batson's reach to other situations, most notably civil litigation. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 618-28, 111 S.Ct. 2077, 2081-87, 114 L.Ed.2d 660 (1991). The Court ruled in Edmonson that the disqualification of civil jurors on the basis of race violates the disqualified juror's equal rights of protection. Edmonson, 500 USA at 616, 111 S.Ct. in 2080-81. Other Batson extensions include J.E.B. v. Alabama, 511 USA 127, 130-31, 114 S.Ct. 1419, 1422-23, 128 L.Ed.2d 89 (1994) (prohibiting peremptory objections based on sex). Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 2359, 120 L.Ed.2d 33 (1992) (prohibiting the criminal from exercising peremptory objections in a racially discriminatory manner). and Powers v. Ohio, 499 U.S. 400, 406-09, 111 S.Ct. 1364, 1368-70, 113 L.Ed.2d 411 (1991) (prohibiting racially motivated peremptory challenges even when excluded jurors are of a different race than the defendant). As in Edmonson, these decisions reflect the Supreme Court's recognition of the equal protection rights of terminated jurors and litigants. See, for example, J.E.B., 511 U.S. at 140-41, 114 S.Ct. in 1427-28.

Following Edmonson, this Court held in Powers v. Palacios, 813 S.W.2d 489, 490-91 (Tex.1991), that the use of a peremptory rebuttal to exclude a juror on the basis of race violates the excluded juror's equal rights of protection. See also American Chrome & Chems., Inc. v. Benavides, 907 S.W.2d 516, 517 (Tex.1995) (stating that this Court follows Edmonson, but rejecting language in the appeals court opinion that stated "we and the Texas Supreme Court have gone a step further than some jurisdictions" ).

US Supreme Court decisions have outlined the substantive parameters that govern a Batson/Edmonson challenge. In two criminal cases, Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 1865-66, 114 L.Ed.2d 395 (1991), and Purkett v. Elem, 514 USA 764-65, 115 S.Ct. 1769, 1770-71, 131 L.Ed.2d 834 (1995), the Supreme Court explained the three-step process used to resolve a Batson objection to a peremptory challenge. In the first step of the process, the opponent of the peremptory challenge must establish a prima facie case of racial discrimination. There is no dispute here that Goode failed to make a prima facie case, and therefore we need not address this issue. In any case, once a party offers a racially neutral explanation for the peremptory objection and the lower court decides the final issue of intentional discrimination, the prima facie case is moot. See Hernandez, 500 U.S. at 359, 111 S.Ct. in 1866.

During the second stage of the process, the onus shifts to the striking party to present a racially neutral explanation. Purkett, 514 USA at 767, 115 S.Ct. in 1770; Hernandez, 500 U.S. at 358-59, 111 S.Ct. in 1865-66. The US Supreme Court clarified in Purkett the role of the appellate court in this phase of the inquiry. The appellate court does not consider in the second step whether the explanation is convincing or even reasonable. The issue for the trial court and appellate court at this juncture is the face validity of the explanation. Purkett, 514 USA at 768, 115 S.Ct. in 1771.   In assessing whether the offered explanation is race-neutral, a court must determine whether the peremptory objection violates the Equal Protection Clause as a matter of law, assuming the grounds of the peremptory objection are true. Hernandez, 500 U.S. at 359, 111 S.Ct. in 1866.   A neutral explanation means that the challenge was based on something other than the race of the jurors. ID card. at 360, 111 S.Ct. in 1866-67. Unless there is an inherent discriminatory intent in the explanation, the reason given will be considered race-neutral for purposes of the second-stage analysis. ID card. Therefore, the inquiry is not terminated at the second stage, even if the party objecting to the peremptory challenge offers a "stupid or superstitious" explanation, provided that that explanation is race-neutral. Purkett, 514 USA at 768, 115 S.Ct. in 1771.   Only in the third step does the persuasiveness of the justification for the challenge become relevant. In the third step of the process, the lower court must determine whether the party contesting the strike has proved intentional racial discrimination, and the court may or may not believe the explanation given by the party making the peremptory challenge. ID card. It is at this stage that baseless justifications for striking potential jurors "may (and probably will) be seen [by the court] as a pretext for intentional discrimination". ID card. However, the Supreme Court emphasized that "the ultimate burden of persuasion regarding racial motivation rests with the opponent of the [peremptory] strike and is never transferred from him". ID card.

The US Supreme Court decisions also make it clear that, in the third step of the process, the question of whether the racially neutral explanation should be accepted is purely a matter of fact for the lower court. Hernandez, 500 U.S. at 364, 367, 111 S.Ct. in 1868-69, 1870.   In the federal system, the standard for appellate review of a Batson/Edmonson challenge is whether the decision was "clearly erroneous." ID card. at 369, 111 S.Ct. in 1871.   According to this standard, the conclusion of a trial court will not be disturbed unless the appellate court “remains in the firm and firm belief that an error has been committed”. in 1871 (citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). The Texas Court of Criminal Appeals also adopted the clearly erroneous review standard for Batson questions. See Whitsey v. State, 796 S.W.2d 707, 720-26 (Tex.Crim.App.1989).

Our Texas civil case law has employed a pejorative but more familiar standard of "abuse of discretion" in reviewing many of the decisions made by a lower court. A lower court abuses its discretion if its decision "is arbitrary, unreasonable and without reference to guiding principles". Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.1996). As to matters of fact, the abuse of discretion standard is similar, though not identical, to the federal standard of "clearly erroneous." "When there are two permissible views of the evidence, the judge's choice of fact between them cannot be clearly erroneous." Hernandez, 500 U.S. at 369, 111 S.Ct. in 1871 (citing Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985)); see Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (holding that a court of review cannot substitute its judgment for that of the trial court in resolving questions of fact at the discretion of the trial court). In reviewing an Edmonson defense, we will adhere to the abuse of discretion review standard by which judicial decisions of this nature have historically been adjudicated in civil cases in Texas.

However, a reviewing court will not be bound by a finding of non-discrimination under the abuse of discretion standard or the clearly erroneous standard if the justification offered for striking a potential juror is "simply too incredible to accept." Hernandez, 500 U.S. at 369, 111 S.Ct. in 1871.   For example, in Norris v. Alabama, 294 USA 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935), it was indisputable that no African American had ever served on a grand or small jury in the district "in memory of witnesses who had lived there all their lives". Hernandez, 500 U.S. at 369, 111 S.Ct. in 1871 (citing Norris, 294 U.S. at 591, 55 S.Ct. at 581). Consequently, the Supreme Court reversed the lower court's non-discrimination decision.

These are the parameters within which we analyze Goode's claims that Shoukfeh offered no racially neutral explanation for his peremptory objections and that the appeals court applied the wrong standard in reviewing the lower court's decision.

and

The question of whether Goode has established a prima facie case of racial profiling is not disputed. Thus, our review begins with the second step of the Batson/Edmonson analysis. We must determine whether, assuming that the reasons given by Shoukfeh for striking the contested jurors were true, peremptory objections violate the Equal Protection Clause as a matter of law. Hernandez, 500 U.S. at 359, 111 S.Ct. in 1866.   We conclude that not. Sukfe's explanations were race-neutral.

Shoukfeh's defense attorney stated that he targeted Juror 7 because he knew a member of the Goode family and that he targeted Juror 26 because he was a former employee of Methodist Hospital. Defense counsel argued that he targeted Juror 28 because she said she was incapable of judging and because she made inaccuracies on her juror information card. Finally, Shoukfeh's defense attorney alleged that he hit juror #9 because she was a single, unemployed, mother of four, apparently on welfare, which he believed would make a "bad juror defense". Each of these grounds is race-neutral and cannot legally be considered to have violated the Equal Protection Clause.

to do

Moving on to the third step of Edmonson's analysis, we address Goode's claim that the appeals court did not follow the Batson/Edmonson analytical framework. Goode argues that the appeals court went beyond the first step of the process only to unduly confuse the second and third steps and summarily conclude that Shoukfeh's peremptory objections were appropriate because the explanations provided by Shoukfeh's attorney were apparently neutral. Goode argues that the appeals court failed to determine whether the explanations were credible or just a pretext.

The US Supreme Court has made it clear that the credibility of explanations offered for peremptory objections is a matter of fact for the lower court to decide. See Hernandez, 500 U.S. at 364, 111 S.Ct. in 1868-69 (quoting Batson, 476 U.S. at 98 No. 21, 106 S.Ct. at 1724 No. 21). This factual determination will be disturbed by this Court only after the conclusion that the lower court has abused its discretion.

Goode lists the factors he relies on to demonstrate that Shoukfeh's reasons were pretextual. First, Goode argues that Shoukfeh's pattern of forced attacks establishes an intent to purge the racial minority group. Soukfe used six force attacks. Three of them were used to remove African Americans (juror 7, 26 and 28), two were used to remove Anglos (juror 13 and 22), and one was used to remove a Hispanic (juror 9). The rest of the panel had no African Americans.

Goode then argues that racial profiling is established because Shoukfeh did not target English jurors who had similar characteristics to the minority jurors he targeted. Shoukfeh hit Juror 26, an African-American woman, allegedly a former nurse at Methodist Hospital, but missed Juror 4 and 11, Anglos who knew one of Shoukfeh's associates, or Juror 18, an Anglo who, like Juror Juror 26, was formerly a registered nurse at Methodist Hospital. Shoukfeh responds that this is irrelevant for two reasons. First, he hit Juror 13, an English professor of medicine. Second, Shoukfeh's attorney argues that, unlike Juror 18, Juror 26's relationship with Methodist Hospital was problematic because the reasons for his termination involved him.

Similarly, Goode claims that Shoukfeh hit Juror 7, an African American, because Juror 7 knew a member of the Goode family, but missed Juror 12, an Englishman who went to school with one of James Goode's sons. Soukfe replies that this discrepancy makes no sense because he hit the 22nd juror, an Englishman who studied with Orlin Goode.

Finally, Goode argues that Shoukfeh's failure to question three members of racial minorities before hitting them (Jurors 9, 26, and 28) suggests that the reasons given by Shoukfeh for issuing these peremptory challenges were pretextual. Goode argues that the lack of questioning is particularly concerning in relation to Jury No. 9 because the record shows that the factors Shoukfeh identified for his challenge are ambiguous or imprecise. Shoukfeh's stated reasons for attacking Juror 9 were that she was a single, unemployed, mother of four, apparently on welfare, who would probably not make a good juror defense. Sukfe plays down the significance of her failure to challenge these minority jurors because he also failed to question Juror 13, one of the Englishmen who vehemently challenged him.

The lower court resolved these factual disputes and chose to hold that Sukfe's lawyer raised the peremptory objections for the reasons indicated. The record before us does not show that the lower court's decision was an abuse of discretion. Neither this court nor the appellate court can challenge that decision. When, as here, a party offers a neutral explanation, a reviewing court cannot reexamine the evidence and reach a different conclusion from that of the trial court unless, as in Norris, the explanation offered is too incredible to be believed. accredited.

No

The lower court refused to allow Goode to inspect the voir dire notes of Shoukfeh's lawyers or to conduct a review of the notes behind closed doors. Goode attributes this to a reversible error. Our Court has not previously considered this issue.

However, the issue was addressed by the Texas Court of Appeals. Our sister court found the production of the prosecutor's jury briefing notes to be "necessary and proper" when the prosecutor refreshes his memory about exercising peremptory pleadings by reviewing these notes prior to Batson's hearing. Salazar v. State, 795 S.W.2d 187, 193 (Tex.Crim.App.1990); see United States v. Garrison, 849 F.2d 103, 107 (4th Cir.) (holding that when a lower court decides to review a prosecutor's notes, it should normally conduct an adversarial rather than an after-the-fact process), certified . denied, 488 U.S. 996, 109 S.Ct. 566, 102 L.Ed.2d 591 (1988). The Court of Criminal Appeals recently reiterated this rule in Pondexter v. State, 942 S.W.2d 577, 579 (Tex.Crim.App.1996) ("Appellant is entitled to the notes only if they were actually used by the prosecutor to jog his memory."). The Pondexter decision also noted that the grades were fair game, although the prosecutor was never sworn in as a witness. The fact that the prosecutor gave unsworn testimony about the motives for his peremptory strikes was enough to trigger access to the memos. ID card. at 581-82; see Guilder v. State, 794 S.W.2d 765, 767-68 (Tex.App.-Dallas 1990, at pet.) (holding that neither Batson nor Rule 614 of the Texas Rules of Criminal Evidence require disclosure of prosecutor's notes).

Courts in other jurisdictions have not required the prosecutor to release voir dire notes to a Batson/Edmonson candidate. Foster v. State, 258 Ga. 736, 374 S.E.2d 188, 192 (1988), cert. denied, 490 U.S. 1085, 109 S.Ct. 2110, 104 L.Ed.2d 671 (1989); People V. Mack, 128 Ill.2d 231, 131 Ill.Dec. 551, 559, 538 N.E.2d 1107, 1115 (1989); state v. Antwine, 743 S.W.2d 51, 67 (Mo.1987) (en banc), partly unoccupied for other reasons n. Antwine v. Delo, 54 F.3d 1357 (8th Cir.1995), cert. denied, 516 U.S. 1067, 116 S.Ct. 753, 133 L.Ed.2d 700 (1996).

Under our rules of civil procedure and evidence, an attorney's work product is not subject to discovery unless the privilege is waived or the work product falls under one of the five exceptions listed in Civil Evidence Rule 503 (d) from Texas. See Tex.R. Civ. page 166b(3)(a).1None of the exceptions to Rule 503(d) apply here, but Goode argues that Shoukfeh waived the privilege because Shoukfeh's attorneys made affidavits and sworn testimony about their reasons for exercising the subpoenas in question.

Providing an explanation for peremptory rebuttals does not, of itself, waive the work product privilege that applies to the notes taken by the attorney during the voir dire. If we accept such reasoning, a significant part of a lawyer's work product could be uncovered as the case unfolds and the lawyer's mental impressions and strategies become clear. Nor does the power of a lower court to review privileged documents behind closed doors affect the analysis. Generally, a lower court conducts a closed-door review to determine whether a document is truly privileged. If not privileged, it can be turned into evidence for the investigator to consider. If the document is privileged, it is not subject to discovery and cannot be considered by the discoverer, even when the discoverer goes to court. The notes taken by the lawyer during the trial are privileged work products. There is no need for an on-camera review to determine the applicability of this perk. The product of the attorney's work cannot be considered by the data finder unless the privilege has been waived or one of the exceptions in Rule 503(d) applies.

We believe that the approach taken by the Texas Court of Criminal Appeals in Salazar and Pondexter is correct and consistent with our rules of evidence. The Court of Criminal Appeals based its decision on Rule 611 of the Texas Criminal Evidence Rules, which states that when

witness uses a memory jogging brief to testify, whether during the deposition or before the deposition, the opposing party has the right to request the production of the deed at the hearing, examine it, cross-examine the witness and present evidence from the parties related to the deposition of the witness.

Tex.R.Crim. Evid. 611.   A similar rule applies to civil trials under Rule 612 of the Texas Rules of Civil Evidence.2The only significant difference between the two rules is that the civil rule distinguishes between writings used to renew a witness's testimony at the deposition and those used to renew before the deposition. If a witness uses the writing during the opposing party's testimony, he must have access to it, but if the writing is used before the witness's testimony, the court has the power to order that the writing be released to the opposing party. Tex.R. Civ. Evid. 612.

We assert that an Edmonson plaintiff has the right to review opposing counsel's voir dire notes when counsel relies on those notes while giving sworn or unsworn testimony at the Edmonson hearing. In the absence of that trust, voir dire notes are privileged work products and the applicant cannot review them. In this case, Goode does not allege that Shoukfeh's lawyers relied on his notes during Edmonson's hearing, but only claims that the notes contain evidence of the lawyers' alleged racial decisions. Therefore, the notes are privileged and the lower court correctly ruled that Goode could not review them.

III

The appeals court expressed some concern that neither this Court nor the US Supreme Court has offered guidance on the procedures to be followed in resolving Edmonson's challenges to peremptory strikes.

Although the issue has been the subject of judicial discourse in the criminal field, none of the aforementioned Supreme Courts considered the procedures used in a civil proceeding. Indeed, this lack of guidance has led at least one legal scholar to wish that “some of these appellate courts . The judges who are going to look at all these [things], should come here and put up with it."

915 S.W.2d in 669 (change in original). We are generally reluctant to deal with issues that do not concern us directly. In this case, however, we are convinced that some guidance for future cases is appropriate.

Procedures for resolving Edmonson's challenges must adequately protect Constitutional rights under the Equal Protection Clause. However, these procedures should interrupt the trial of the case as little as possible. We are sensitive to concerns that the Edmonson hearings become “another complication. to an increasingly Byzantine justice system that devotes more and more energy to sideshows and less and less to the substance of the case." Edmonson, 500 USA at 645, 111 S.Ct. in 2096 (Scalia, J., dissenter) .

The US Supreme Court declined to "articulate specific procedures to be followed in the event of a timely objection by the defendant to the prosecutor's objections". Batson, 476 USA at 99, 106 S.Ct. in 1724-25; see also Powers v. Ohio, 499 USA at 416, 111 S.Ct. in 1374 ("It remains for the courts of first instance to develop rules, without unduly interrupting the process of jury selection, to allow legitimate and valid objections to the use of peremptory contestations as a mask for racial prejudice."). Instead, the Supreme Court continued to allow lower courts to fight the Batson/Edmonson proceedings. See Edmonson, 500 U.S. in 631, 111 S.Ct. in 2089 (“The same approach [as Batson ] applies in the civil context, and we leave it to the lower courts to develop evidentiary rules to enforce our decision.”).

The state and federal courts that were left with the responsibility for shaping the Batson/Edmonson procedures created a very uneven set of procedures across the country. As the appeals court noted below, the resulting "lack" of consistent procedural guidance is the "difficulty" of the Edmonson rule. 915 S.W.2d at 669.

Texas criminal case law regarding the Batson proceedings is much more developed than civil case law. In 1987, the Legislature included a provision in the Texas Code of Criminal Procedure that incorporated Batson.3Since no similar changes were made to the Texas Rules of Civil Procedure, appellate courts generally consult the state's criminal case law for guidance on applying Batson and her progeny to civil cases. See In re A.D.E., 880 S.W.2d 241, 243 (Tex.App.-Corpus Christi 1994, no writ); Texas Tech Univ. Health Sciences Ctr. v. Apodaca, 876 S.W.2d 402, 406 (Tex.App.-El Paso 1994, writ denied). Lott v. City of Fort Worth, 840 S.W.2d 146, 149 (Tex.App.-Fort Worth 1992, no warrant).

The more general procedural issue concerns the general nature and content of a Batson/Edmonson hearing. The appeals court in that case concluded that such a hearing is an "adversarial and evidentiary hearing" in which "the procedural and evidential rules normally applicable to general civil cases apply with equal force". 915 S.W.2d at 669.   Similarly, other Texas appellate courts have repeatedly held that a Batson/Edmonson hearing must be adversarial. See Texas Tech Univ. Health Sciences Ctr., 876 S.W.2d at 407 no. 3? Lott, 840 S.W.2d at 149-50; shields v. State, 820 S.W.2d 831, 832 (Tex.App.-Waco 1991, no pet.); Williams v. State, 767 S.W.2d 872, 874 (Tex.App.-Dallas 1989, pet. ref'd). Other jurisdictions also require a full adversarial hearing. See, for example, United States v. Garrison, 849 F.2d 103, 106 (4th Cir.) (“[The] important rights guaranteed by Batson deserve the full protection of adversarial proceedings, unless compelling reasons requiring secrecy are shown.”), cert. denied, 488 U.S. 996, 109 S.Ct. 566, 102 L.Ed.2d 591 (1988).

On the other hand, courts in other jurisdictions have held that a full adversarial hearing is not necessary. See People v. Mack, 128 Ill.2d 231, 131 Ill.Dec. 551, 559, 538 N.E.2d 1107, 1115 (1989) (“[A] Batson hearing does not require trial-style procedures, such as the introduction of testimony and cross-examination of adverse witnesses.”). People V. Hameed, 88 N.Y.2d 232, 644 N.Y.S.2d 466, 666 N.E.2d 1339, 1342-43 (1996). The Maryland Court of Appeals, for example, held that "[t]he most times it is sufficient simply to summon the prosecutor to explain the grounds of the challenge and give the defendant an opportunity to rebut the explanation." gray v. State, 317 Md. 250, 562 A.2d 1278, 1282 (1989). Using a slightly different approach, Mississippi only requires the lower court to make a substantive factual determination of the substance of the state's reasons for exercising its peremptory challenges. Hatten v. State, 628 So.2d 294, 298 (Miss.1993).

Still other jurisdictions have specifically approved the use of ex parte, in camera proceedings, rather than an adversarial hearing. See United States v. Davis, 809 F.2d 1194, 1201-02 (6th Cir.), cert. Denied, 483 USA 1007, 107 S.Ct. 3234, 97 L.Ed.2d 740 (1987). However, most jurisdictions that allow such procedures discourage their use without special circumstances. United States v. Thompson, 827 F.2d 1254, 1258-59 (9th Cir.1987) (stating that judges should exercise discretion in conducting Batson hearings, but that, in the absence of "convincing justifications, ex parte proceedings are anathema to the our justice system”). United States V. Tucker, 836 F.2d 334, 340 (7th Cir.1988), cert. denied, 490 U.S. 1105, 109 S.Ct. 3154, 104 L.Ed.2d 1018 (1989). ("[While] we believe it is up to the judge to decide which procedure is most appropriate for a particular case, we believe the judge will use an adversarial procedure whenever possible.").

Finally, many jurisdictions simply leave it to the lower courts to determine the appropriate procedures for a given set of circumstances. See United States v. Clemons, 941 F.2d 321, 323-24 (5th Cir.1991); Gray, 562 A.2d in 1281-84. The choice of procedure of the lower court is then subject to review for abuse of discretion. Gray, 562 A.2d in 1284.

Consideration of an Edmonson challenge is inherently adversarial. Furthermore, the Court has often found that ex parte, closed-door procedures are not favoured. See, for example, Remington Arms Co. v. Canales, 837 S.W.2d 624, 626 (Tex.1992). Therefore, the process should at least be conducted in open court. Unsworn statements from the board may be offered to explain why peremptory challenges were exercised. Juror Information Cards may form part of the record either by inclusion in the transcript or by formal offering as evidence. To the extent that any party wishes to introduce other information or matters into the record, the rules of evidence and procedure apply.

The more difficult questions are the extent to which the party disputing Edmonson can refute the explanations offered and whether they are entitled to cross-examination. Some jurisdictions have held that the plaintiff has the right to refute the reasons stated by the adversary or otherwise demonstrate that those reasons are pretense or pretext. See United States v. Roan Eagle, 867 F.2d 436, 441 (8th Cir.), cert. denied, 490 U.S. 1028, 109 S.Ct. 1764, 104 L.Ed.2d 199 (1989); K.S. v. Carr, 618 So.2d 707, 710 (Ala.1993); Stanley v. State, 313 Md. 50, 542 A.2d 1267, 1272 (1988); Thorson v. State, 653 So.2d 876, 896 (Miss.1994); Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896, 904 (Tenn.1996); Buck v. Commonwealth, 247 Va. 449, 443 S.E.2d 414, 415 (1994). Often these jurisdictions note that placing the ultimate burden of persuasion on the plaintiff in a Batson/Edmonson hearing dictates that the plaintiff has the final say. See, for example, Gilchrist v. State, 340 Md. 606, 667 A.2d 876, 886 (1995). However, other jurisdictions, recognizing that Batson himself does not mention this right, have refused to recognize it. Tucker, 836 F.2d at 340; Davis, 809 F.2d at 1202.

The Texas Court of Criminal Appeals held that the engine has a right to object. Salazar v. State, 795 S.W.2d 187, 192 (Tex.Crim.App.1990) ("[The] burden of showing intentional discrimination shifts to the defendant to challenge or refute the neutral explanation or show that it is only a pretext.") The courts of appeals also applied this rule in Edmonson's civil context. Dominguez v. State Farm Inn. Co., 905 S.W.2d 713, 716 (Tex.App.-El Paso 1995, writ dism'd by agr.) (“After the striking party has given racially neutral reasons for its peremptory objections, the complaining party may then offer evidence showing that the explanations are false or a pretext for discrimination.'') In ADE, 880 S.W.2d at 243.

As the party contesting peremptory strikes carries the final burden of persuasion, Purkett, 514 U.S. in 769, 115 S.Ct. in 1771; Batson, 476 USA at 94 n. 18, 106 S.Ct. in 1721 n. 18, we conclude that the trial court must afford the party contesting Edmonson's strikes a reasonable opportunity to refute the race-neutral explanations.

Whether counsel should have the right to cross-examine opposing counsel to establish that counsel's racially neutral explanations are pretextual is another hotly debated issue. Some jurisdictions leave the determination of the right to questioning to the discretion of the court. See Hameed, 644 N.Y.S.2d 466, 666 N.E.2d at 1342-43. Others deny the right on the grounds that "the disruption of trial that may result if an attorney in a case is called as a witness outweighs any benefit that might be gained by his testimony". state v. Jackson, 322 N.C. 251, 368 S.E.2d 838, 842 (1988), cert. denied, 490 U.S. 1110, 109 S.Ct. 3165, 104 L.Ed.2d 1027 (1989). However, in Salazar v. State, the Texas Court of Criminal Appeals held that “[the prosecutor’s] cross-examination is necessary at a Batson hearing because, once the State has fulfilled its burden of presenting neutral explanations for the peremptory attacks, the burden of showing discrimination purposefully returns to the defendant to contest or refute the neutral explanation or to show that it is just a pretext”. 795 S.W.2d at 192 (footnote omitted).

As with the opportunity to rebut, we conclude that the trial court must offer the opposing party under Edmonson a reasonable opportunity to conduct a cross-examination.

In short, we recognize the importance of protecting equal rights of protection, but we also subscribe to the Supreme Court's observations in the Batson and Descendants case that procedures for the Edmonson hearings must avoid "undue interruption" of the courts. Powers v. Ohio, 499 U.S. at 416, 111 S.Ct. in 1374.

4

Finally, Goode argues that the appeals court erred in asserting the lower court's denial of Goode's pleas to jurors 6 and 30 for cause. In Hallett v. Houston Northwest Medical Center, 689 S.W.2d 888 (Tex.1985), we set forth the procedure for asserting error in the denial of a claim for cause. A party denied such a challenge must inform the trial court, prior to exercising its peremptory objections, that the court's denial of its peremptory objections for cause would oblige the party to exhaust its peremptory objections and that, upon the exercise of such peremptory objections, jurors specifics remain on the panel. ID card. at 890.

Goode agreed with Hallett regarding Juror 30, but never named Juror 6. Thus, we agree with the appeals court that Goode waived his right to appeal the Trial Court's decision not to dismiss Juror 6 on grounds.

With regard to Juror 30, Goode argues that a fair examination of Juror 30 demonstrates that he was prejudiced and should have been dismissed for cause.4If a prospective juror is biased or biased for or against a party to a trial as a matter of law, the court must disqualify that person from service. Texas Gov. Code § 62.105(4); Swap Shop v. Fortune, 365 S.W.2d 151, 154 (Tex.1963). We define bias as `ʻan inclination to one side of an issue rather than the other, but to be excluded it must appear that the juror's state of mind leads to the natural conclusion that he [or she] will not or will not act with impartiality'. Compton v. Henrie, 364 S.W.2d 179, 182 (Tex.1963). Prejudice is defined as “prejudice and therefore includes bias”. ID card.

We cannot conclude that Juror 30 was biased or prejudiced as a matter of law. The lower court was “in a better position. to assess the jury's honesty and capacity for fairness and impartiality'. Swap Shop, 365 S.W.2d at 154.   Juror 30's preliminary rulings do not oblige us, as a matter of law, to disturb the lower court's conclusion. See id.; glen v. Abrams/Williams Bros., 836 S.W.2d 779, 782 (Tex.App.-Houston [14th Dist.] 1992, writ denied).

* * *

We confirm the judgment of the court of appeals.

While I agree with the decision, I disagree with the Court's refusal to adopt the "clearly erroneous" standard for reviewing a Batson/Edmonson challenge. I would follow the lead of the federal courts and the Texas Court of Criminal Appeals and adopt that standard rather than the "abuse of discretion" standard that the Court currently applies. Furthermore, I write separately to express relief that, contrary to the prediction I made in City of Beaumont v. Bouillion, 896 S.W.2d 143, 150 (Tex.1995) (Gonzalez, J., concurring), peremptory challenges are not dead, but they are alive and well in Texas.

In Bouillion, I observed a shift in the focus of our peremptory challenge jurisprudence, from the litigant's right to a fair and impartial trial to the prospective juror's right to be free from discrimination. Bouillon, 896 S.W.2d at 151 (Gonzalez, J., concurring). Prior to today, this twist bordered on the ridiculous. The definition of "known group" - reviewed as part of the first phase of evaluation of a Batson/Edmonson challenge - has become so broad in some courts that a litigant could object to almost any peremptory strike on the grounds that the member is disqualified. had characteristics not shared by other panel members. ID card. at 154.

As the Court recognizes, in federal courts, in Texas criminal appeals, and, to date, in Texas civil appeals, the standard of review for a Batson/Edmonson challenge has been whether the decision was "clearly erroneous." See 943 S.W.2d 446; also Vargas v. State, 838 S.W.2d 552, 553-54 (Tex.Crim.App.1992); DeBlanc v. State, 799 S.W.2d 701, 713 (Tex.Crim.App.1990), cert. Denied, 501 U.S. 1259, 111 S.Ct. 2912, 115 L.Ed.2d 1075 (1991); cain v. Pruett, 938 S.W.2d 152, 161 (Tex.App.-Dallas 1996, n.w.h.); Molina v. Pigott, 929 S.W.2d 538, 545 (Tex.App.-Corpus Christi 1996, n.w.h.); In re A.D.E., 880 S.W.2d 241, 243 (Tex.App.-Corpus Christi 1994, no writ); Texas Tech Univ. Center for Health Sciences v. Apodaca, 876 S.W.2d 402, 408 (Tex.App.-El Paso 1994, writ denied). Lott v. City of Fort Worth, 840 S.W.2d 146, 150 (Tex.App.-Fort Worth 1992, no warrant). Since appellate courts are accustomed to applying the clearly erroneous standard in civil cases, I see no compelling reason to depart from it now.

Furthermore, it is debatable which standard is more deferential to the lower court and whether there is any real difference between the two standards. The definition of abuse of discretion is well established and admittedly gives great weight to the lower court. See Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.1996); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985). As we explained recently, for the lower court to abuse its discretion there must have been only one reasonable decision and the lower court must have contested that decision. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). Walker's articulation of the standard of abuse of discretion is indistinguishable from the clearly erroneous standard declared by this Court. See 943 S.W.2d 446. In the case before us, the result would be the same under any standard. However, for the sake of consistency in our appellate courts, I would adopt the clearly erroneous standard.

Apart from this objection, I agree with the Court's analysis. Reviewing the case before us, we conclude that Shoukfeh's explanation that he hit nine jurors "because she was a single, unemployed, mother of four, apparently on welfare, whom he believed would make a ``bad juror defense ''" is neutral as it is for the face. . 943 S.W.2d 447. This explanation does not violate the Equal Protection Clause as a matter of law because the explanation need not be convincing or even reasonable. The issue is the apparent validity of the explanation. Purket v. Elem, 514 USA 765, 769-70, 115 S.Ct. 1769, 1770-71, 131 L.Ed.2d 834 (1995).

A prima facie demonstration by the attacking opponent effectively creates a rebuttable presumption that the potential juror's equal rights of protection have been violated. This presumption merely shifts the burden of presenting the evidence. does not transfer the burden of persuasion. ID card. in 768, 115 S.Ct. in 1771.   Any apparently neutral explanation for the strike is enough to refute the presumption that the strike is racially motivated. However, the burden of persuasion always falls on the party opposing the strike. ID card.

As the striker does not have the burden of persuasion, the plausibility of the justification is not considered. Plausibility is relevant only to determining the weight of the burden that the striker's opponent must overcome in offering proof. An implausible justification, although neutral, could probably be considered a pretext in the face of strong indications of discrimination. ID card. Therefore, even a weak justification, if reasonable, will be accepted if the strike opponent fails to meet the burden of proof. Excuses that have been used to support strikes include body language, carelessness, physical characteristics, behavior, dress and youth. See Elaine A. Carlson, Batson, J.E.B., and Beyond:  The Paradoxical Quest for Reasoned Peremptory Strikes in the Jury Selection Process, 46 Baylor L.Rev. 947, 998 (1994).

Since the ultimate burden of showing a discriminatory purpose remains on the party opposing the strike, peremptory strikes retain their distinct status. Peremptory strikes are still distinguishable from just cause objections because the party opposing a just cause objection has the onus of showing the legitimacy of the justification, whereas with peremptory strikes, the opponent of the strike has the onus. Lawyers may again attack prospective jurors who are of a known class (race, ethnicity, or gender) based on an unquantifiable feeling such as hunch or instinct, provided the attacking party provides a racially neutral explanation. Today's decision, clearly placing the onus on the offense's opponent, brings to life the peremptory challenges Texas so desperately needs.

FOOTNOTES

1. This rule provides: 3. Exceptions. The following matters are protected from disclosure by privilege: a. Work product. An attorney's work product is subject to exceptions to Texas Rule of Civil Evidence 503(d), which governs both the work product and the attorney-client privilege. Tex.R. Civ. page 166b(3)(a).

2. Rule 612 states: If a witness uses writing to jog his memory to testify - (1) while testifying, or (2) before testifying, if the court in its judgment deems it necessary in the interests of justice, the opposing party is right to request the production of the written document at the hearing, examine it, cross-examine the witness and present parts of the witness' testimony as evidence. If the brief is alleged to contain matters outside the subject matter of the deposition, the court will examine the brief behind closed doors, delete any not-so-relevant portion, and order the remainder to be turned over to the entitled party. Any portion retained in the objection must be preserved and made available to the appellate court on appeal. If a warrant is not produced or served pursuant to an order under this rule, the court will issue whatever order justice requires. Tex.R. Civ. Evid. 612.

3. The statute provides: Art. 35,261. Prohibition of peremptory objections based on race(s) After the parties have submitted their lists to the registrar pursuant to section 35.26 of this code and before the court has constituted [sic] the jury, the defendant may ask the court that rejects the order and convenes a new matrix in the case. The Court grants the defendant's motion to dismiss the order if the court finds that the defendant is a member of an identifiable racial group, that the state's attorney has made peremptory objections to exclude persons from the jury on the basis of their race, and that the defendant has provided evidence of facts tending to show that the State's attorney's objections were motivated by race. If the defendant settles a prima facie case, the onus shifts to the attorney representing the state to provide a racially neutral explanation for the challenges. The burden of persuasion remains on the defendant to establish intentional discrimination. (b) If the court finds that the attorney representing the state has challenged potential jurors on the basis of race, the court will order a new trial. Tex.Code Crim . Paper. 35,261.

4. The relevant exchanges that were made are as follows: A: I think both sides are pretty equal. I must admit, however, that the other side, because as explained, . As for the whole explanation of the blood clot and what happened, I'm leaning a little more towards the doctor's side. Now, that-now when I say I'm leaning in, it's just because of what I've heard so far. It was just a little clearer in my mind. P:   [From what I understand you to say to me, you may have a little bias, or as we speak, a little bias right now, towards Dr. Shoukfeh, is it true? A: At the moment, yes. Q: [T]o what does that mean as we're sitting here now, that I'm starting a little bit behind and he's a little bit ahead, even if it's a little bit? A: The only reason I would say to start with is just for the sake of explanation. Not so much that I don't believe you and I don't believe him. It's just because I understood a little better. As time passes, perhaps I will understand your side in the same way. Now, when I say - when you say bias, it's not that big of a margin. Q: So it's just a small bias?A: Yes.Q: Instead of a large bias?A: Yes, if you have to put a size on it, yes. At that point, Shoukfeh's attorney tried to reinstate Juror 30. Q: [C]are you making your decision based solely on the evidence that comes from the witness stand? A: No, I mean - I'm sorry. Yes, I can make my decision based on the evidence that comes from the witness stand. The reason I said no is because no, I didn't just make up my mind on what you two said.

OWEN, Justice.