IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. 926-00

 

CHARLIE WAMGET, Appellant


v.



THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY


PER CURIUM. MEYERS, J., filed a concurring opinion. JOHNSON, J., filed a dissenting opinion.

OPINION





Appellant was convicted of murder and sentenced to sixteen years imprisonment. On appeal he claimed the trial court abused its discretion in overruling a Batson challenge. The Court of Appeals affirmed. Wamget v. State, No. 14-96-01188-CR slip op. (Tex. App.-Houston [14th Dist.] Aug. 31, 1999)(not published). We granted appellant's petition for discretionary review to decide whether the Court of Appeals erred in holding that race may be a factor co-existing with a non-racial reason as long as race is not the only reason for the strike. (1) We begin by addressing the question of whether it was established that "race" was even a factor underlying the peremptory strike, apart from the further question of its coupling with a non-racial reason. See n.10, infra.

During voir dire examination, the State used a peremptory challenge against Venireperson No. 38. Appellant objected to the strike as being impermissibly race-based under Batson v. Kentucky, 476 U.S. 79 (1986). The prosecutor gave the following reasons for the exercise of the peremptory challenge against Venireperson No. 38:

No. 38 also spoke up much more during [defense counsel's] voir dire. Also she was born in - according to her jury card, born in Liberia. Let me double-check that. Under the circumstances that gave me some concern. She also is not employed at this time and that gave me some concern.



Appellant argued that the prosecutor's reference to Liberia was an improper reason for exercising a strike under Batson. (2) The trial court overruled the challenge.

On direct appeal, appellant claimed the trial court "committed reversible error by overruling appellant's article 35.261 objection." Appellant argued that reliance on a venireperson's nationality "is so absolutely unconstitutionally offensive as to override any other purportedly race-neutral excuse." He further argued that "whenever a party exercised a peremptory challenge against a venireperson even partially because of his or her race or national origin, such peremptory challenge is unconstitutional." The State argued that appellant's claim should be rejected because the State's strike was not racially motivated. (3) The Court of Appeals rejected appellant's claim concerning the venireperson's national origin:

The Court of Criminal Appeals has held that race may be a factor co-existing with a non-racial reason; however, race may not be the reason for the strike. See Hill, 827 S.W.2d at 866. Because there is no evidence in the record that race was the reason for the State's strike, we cannot hold that the trial court's decision to overrule appellant's Batson challenge regarding Juror 38 was clearly erroneous.



Wamget, No. 14-96-1188 slip op. at 7.

Appellant urges this Court to hold that when the reasons given for a peremptory strike implicate a congenital classification such as national origin, the taint arising from the invalid reason cannot be removed by combination with reasons that do not implicate congenital or suspect classifications. The State maintains that "race" was not a given reason for the strike against Venireperson No. 38 and that the Court of Appeals did not hold that race was a reason for the strike in this case. Essentially, the State says the fact that Prospective Juror No. 38 was born in Liberia is a race-neutral reason for the prosecutor's use of a peremptory strike. For this reason, the State argues, the Court of Appeals properly held that "there is no evidence in the record that race was the reason for the State's strike." Only if we hold that the country of one's birth is not a race-neutral reason for exercising a peremptory strike, do we reach the question of whether its combination with two race-neutral reasons is violative of Batson. (4)

I.

It is more than settled that exclusion from jury service because of ethnicity or nationality violates the Equal Protection Clause. See Hernandez v. Texas, 347 U.S. 475, 477-78 (1954)(in case involving exclusion of venirepersons of Mexican descent, Court rejected State's argument that only two classes, "white and Negro," were within contemplation of Fourteenth Amendment and stated that "exclusion of otherwise eligible persons from jury service solely because of their ancestry or national origin is discrimination prohibited by the Fourteenth Amendment"); United States v. Chalan, 812 F.2d 1302, 1314 (10th Cir. 1987)(recognizing striking of American Indians on account of race would violate Batson and Equal Protection Clause), cert. denied, 488 U.S. 983 (1988); State v. Rigual, No. SC 16026 slip op. at 15 (Conn. May 8, 2001)("[d]iscrimination on the basis of ancestry or national origin violates the Equal Protection clause of the federal constitution [and] [c]onsequently, Batson, which was decided on the basis of the Equal Protection clause, must be applied to protect venirepersons from being excused from juries because of their ancestry or national origin"); State v. Alen, 616 So.2d 452 (Fla. 1993)(recognizing Hispanics as a protected class under Equal Protection Clause, and exclusion of Hispanic venireperson for reason that was not race-neutral violated Batson); State v. Rambersed, 649 N.Y.S.2d 640, 642 (N.Y. Sup. Ct. 1996)(Italian-Americans are cognizable group under Batson and Equal Protection Clause); see also Hernandez v. New York, 500 U.S. 352, 355 (1991)(recognizing that exclusion of Latinos from jury based on ethnic origin would violate Equal Protection Clause); see also United States v. Martinez-Salazar, 528 U.S. 304, 315 (2000)(stating that "under the Equal Protection Clause, a defendant may not exercise a peremptory challenge to remove a potential juror solely on the basis of the juror's gender, ethnic origin, or race"); Castenada v. Partida, 430 U.S. 482 (1977)(holding Mexican Americans cognizable racial group for purposes of Equal Protection analysis under Swain v. Alabama).

Indeed, ethnicity and nationality are probably more precisely what is meant by the term "race" for purposes of the Equal Protection Clause. In Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987), the United States Supreme Court equated race discrimination with discrimination based on ethnic origin, holding them essentially interchangable for purposes of an action under 42 U.S.C. 1981. (5) Respondent in that case, a United States citizen born in Iraq, was denied tenure by Saint Francis College. Respondent sued the college under 42 U.S.C. 1981, alleging discrimination based on national origin, religion and/or race. The Supreme Court granted certiorari to decide whether "a person of Arabian ancestry was protected from racial discrimination under 1981." Id. at 607.

Section 1981 had previously been construed by the Court as prohibiting "racial discrimination" in the making of contracts. The issue in Saint Francis College was whether the respondent had alleged racial discrimination within the meaning of 1981. To answer this question, the Court examined the understanding of "race" in the 19th century by looking to dictionaries and encyclopedias from that period:

In the middle years of the 19th century, dictionaries commonly referred to race as a "continued series of descendants from a parent who is called the stock," N. Webster, An American Dictionary of the English Language 666 (New York 1830) (emphasis in original), "the lineage of a family," 2 N. Webster, A Dictionary of the English Language 411 (New Haven 1841), or "descendants of a common ancestor," J. Donald, Chambers' Etymological Dictionary of the English Language 415 (London 1871). The 1887 edition of Webster's expanded the definition somewhat: "The descendants of a common ancestor; a family, tribe, people or nation, believed or presumed to belong to the same stock." N. Webster, Dictionary of the English Language 589 (W. Wheeler ed. 1887). It was not until the 20th century that dictionaries began referring to the Caucasian, Mongolian, and Negro races . . .. Even so, modern dictionaries still include among the definitions of race, "a family, tribe, people, or nation belonging to the same stock." Webster's Third New International Dictionary 1870 (1971); Webster's Ninth New Collegiate Dictionary 969 (1986).



Encyclopedias of the 19th century also described race in terms of ethnic groups . . . Encyclopedia Americana in 1858, for example, referred to various races such as Finns, vol. 5, p. 123, gypsies, 6 id., at 123, Basques, 1 id., at 602, and Hebrews, 6 id., at 209.



Saint Francis College, 481 U.S. at 610-11. Other examples of "races" given in various editions of 19th century encyclopedias included Swedes, Norwegians, Germans, Greeks, Finns, Italians, Spanish, Mongolians, Russians, Jews, and Hungarians. Id. The Court further pointed out that the congressional debates of the time were "replete with references to the Scandinavian races . . . the Chinese, . . . Latin, . . . Spanish, . . . and Anglo-Saxon races, . . . Jews, . . . Mexicans, . . . blacks, . . . and Mongolians . . ., Gypsies . . . [and] the Germans." Id. at 612. Based on the above evidence of society's view of "race" at the time, the Supreme Court concluded that Congress intended to prohibit discrimination due to a person's ancestry or ethnic characteristics under 1981. The Court stated that "such discrimination is racial discrimination that Congress intended 1981 to prohibit, whether or not it would be classified as racial in terms of modern scientific theory." Id. at 613.

The Supreme Court's analysis concerning races in Saint Francis College has been applied in the Equal Protection/Batson context. See United States v. Biaggi, 673 F. Supp. 96, 101 (E.D.N.Y. 1988), aff'd, 853 F.2d 89 (2nd Cir.), cert. denied, 489 U.S. 1052 (1989); Rambersed, 649 N.Y.S.2d at 644. Some courts have determined that the legislative history of post-civil war legislation, including the enabling legislation of the Equal Protection Clause of the Fourteenth Amendment, supports the view that the Fourteenth Amendment "was intended to protect a variety of groups not now labeled 'races.'" (6) Biaggi, 673 F. Supp. at 102; see also Rambersed, 649 N.Y.S.2d at 644 ("[i]n light of the dialectic historical realities, it can assuredly be concluded that for Equal Protection jurisprudence Batson supports an expansive construction of the meaning of 'cognizable racial group' that is inclusive of a variety of ethnic and ancestral groups subject to intentional discrimination"); Chew v. State, 527 A.2d 332, 348 (Md. Ct. Spec. App. 1987)(Fourteenth Amendment and Civil Rights Act of 1866 were written by same senators and representatives in same congressional session), vacated, 562 A.2d 1270 (Md. 1989). As explained by one court with particularity:

A cursory review of the relevant sociological and anthropological literature reinforces, rather than undermines, the often invisible link between race and national origin, emphasizing such factors as geographic distribution and culture in race formation. . . .



Turning to the legislative history of America's first Civil Rights Act, that of 1866, which was enacted to further the protections of the Thirteenth Amendment (1865), finds it replete with references to a broad scope encompassing "all persons" . . .. "[T]he statutory structure and legislative history persuade ... that the 39th Congress was intent upon establishing ... a broader principle then would have been necessary simply to meet the particular and immediate plight of the newly freed Negro slaves."



Likewise, the legislative history of the Fourteenth Amendment (1868) illustrates beyond doubt that the amendment was designed to insure that the 1866 Act's principles enjoyed constitutional validity.



Following ratification of the Fifteenth Amendment (1870), Congress passed the Enforcement Act of 1870, essentially reenacting the 1866 statute and making clear its ambit extended to nationality groups.



The legislative history of major 19th century civil rights enactments "embrace[s], at the least, membership in a group that is ethnically ... distinctive . . ..



Rambersed, 649 N.Y.S.2d at 644 (citations omitted). The lower court's opinion in Saint Francis



College demonstrated the historical connection between the Fourteenth Amendment and 1981:



Section 1981 was originally enacted as part of Section 1 of the Civil Rights act of 1866, authorized by Section 2 of the thirteenth amendment to the United States Constitution. Because of doubts over Congress' authority to pass the Civil Rights Act of 1866, it was subsequently reenacted following the adoption of the fourteenth amendment as Section 18 of the Civil Rights Act of 1870. . . . Accordingly, Section 1981 has some ties to the fourteenth as well as to the thirteenth amendments.



Al-Khazraji v. Saint Francis College, 784 F.2d 505, 515 (3rd Cir. 1986), aff'd, 481 U.S. 604 (1987); see also Chew, 527 A.2d at 349 (what Supreme Court concluded with respect to intent of framers of Civil Rights Act of 1866 would apply with equal force to intent of framers of Equal Protection Clause, who were same people dealing with same problem during same congressional session).

Accordingly, we agree that the notion of "race" ought to be as broadly understood for purposes of Batson and the Equal Protection Clause as it is has been interpreted by the Supreme Court in the context of other post-civil war legislation such as Section 1981. See Saint Francis College, 481 U.S. at 613; see also Salazar v. State, 795 S.W.2d 187, 193 (Tex. Crim. App. 1990)(referring to Hispanics as "race" for purposes of establishing cognizable racial group under Batson). We hold that "race," for purposes of Batson, encompasses notions of ancestral line and ethnicity. And discrimination based on such considerations is racial discrimination under Batson.

But this broad understanding of race carries with it a burden on the party making the Batson claim, to establish the ethnicity of the person in question and show he is a member of a cognizable racial group. (7) See United States v. Campione, 942 F.2d 429, 433 (7th Cir. 1991)("spelling of person's surname is insufficient - standing alone - to show that he or she belongs to a particular ethnic group"). This is a prerequisite to making a prima facie case, and, in any case, is part of the burden of persuasion in showing purposeful discrimination. (8) The further question presented in the instant case is whether the country of one's birth place is a sufficient grounds on which to establish a person's ethnicity for purposes of making a Batson claim based on ethnicity.

II.

The Supreme Court has emphasized that a person's ethnicity or ancestry does not equate with the country where he was born. In the second to last sentence of its opinion in Saint Francis College, the Court stated: "If respondent on remand can prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or his religion, he will have made out a case under 1981." Saint Francis College, 481 U.S. at 613 (emphasis added). Thus, the Court distinguished between discrimination based solely on the country where one was born, which would not be viewed as race discrimination, and discrimination based on one's ancestral line or ethnicity, which would constitute race discrimination. In a concurring opinion, Justice Brennan pointed out that "the line between discrimination based on 'ancestry or ethnic characteristics' . . . and discrimination based on 'place or nation of . . . origin,' . . . is not a bright one":

It is true that one's ancestry - the ethnic group from which an individual and his or her ancestors are descended - is not necessarily the same as one's national origin - the country "where a person was born, or, more broadly, the country from which his or her ancestors came." Often, however, the two are identical as a factual matter: one was born in the nation whose primary stock is one's own ethnic group. Moreover, national origin claims have been treated as ancestry or ethnicity claims in some circumstances. For example, in the Title VII context, the terms overlap as a legal matter. See 29 CFR 1606.1 (1986) (emphasis added) (national origin discrimination "includ[es], but is not limited to, the denial of equal employment opportunity because of an individual's, or his or her ancestor's, place or origin; or because an individual has the physical, cultural, or linguistic characteristics of a national origin group") Espinoza, supra, at 89 (the deletion of the word ancestry from the finial version of 703 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(e), "was not intended as a material change, . . . suggesting that the terms 'national origin' and 'ancestry' were considered synonymous"). I therefore read the Court's opinion to state only that discrimination based on birthplace alone is insufficient to state a claim under 1981.



Saint Francis College, 481 U.S. at 614 (Brennan, J., concurring) (emphasis in original).

Justice Brennan was exactly right in pointing out that ethnicity and national origin or, more specifically, the country where one was born, are often not necessarily the same. See Alen, 616 So.2d at 455 ("[N]ational origin is an important, but not a decisive, factor in determining a person's ethnicity"). This is increasingly true in today's rapidly expanding global society. A person of any ethnic background and/or color may be born in any country of the world without necessarily inheriting that country's predominate ethnicity. Ethnicity is based more on ancestral lineage than the country where one was born, which may or may not be the country of one's ancestors. Thus, the country of one's birth, standing alone, is race-neutral. While it may be an indication of ethnicity, more would be needed. We hold that the party alleging discrimination based on nationality or ethnicity under Batson will not adequately establish the venireperson's ethnicity and cognizable racial group by showing only the country of their birth, and such party will likewise fail to meet its burden of persuasion of race discrimination by showing that the peremptory strike was based only on the country of the venireperson's birth. See Purkett v. Elem, 514 U.S. 765, 767-68 (1995)("ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike"); Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999)(". . .Texas jurisprudence holds that once the State proffers race-neutral explanations for its peremptory strikes, the burden is on the defendant to convince the trial court that the prosecution's reasons were not race-neutral. Thus, the burden of production shifts from the defendant in step one to the State in step two, but the burden of persuasion never shifts from the defendant").

III.

Appellant claims the State's striking of Venireperson No. 38 on the ground that she was "born in Liberia" demonstrates discrimination based on her nationality. Appellant points to no other evidence in support of his argument that the State's strike was based on race, and appellant did not query the State further at trial regarding its stated reason. Given that appellant's argument was based solely on the country of the venireperson's birth and nothing more, he has failed in his burden of persuasion to establish race discrimination based on ethnicity. (9) We hold the Court of Appeals did not err in concluding that there was "no evidence in the record that race was the reason for the State's strike" and holding the trial court's overruling of appellant's Batson challenge against Venireperson No. 38 was not clearly erroneous. (10)

The judgment of the Court of Appeals is affirmed.

Delivered September 12, 2001

Publish

1. We also granted review of appellant's second and third points of error, but upon further consideration have decided that those grounds were improvidently granted.

2. Appellant argued against the State's proffered race-neutral reasons as follows:



That's a ruse with respect to No. 38, because if you go back through - I am asking the Court to take judicial notice and I am offering into evidence a copy of the juror information form. . . . With that in mind then, I would point out to the Court there are several jurors that are not employed. . . . With respect to the Liberia situation . . . In respect to Liberia, I didn't ask no questions, didn't ask the juror be brought forward to question her about the nationality issue. In fact, it's not only a ruse, it would be improper to have struck someone based on nationality, particularly aware of the individual that was, that there was no question asked as to whether that person was a citizen or whatever. It would either be a violation of Peter v. State (sic) and all of the other long line of cases that allow a person who have divergent original nationalities who subsequently become citizens to serve on juries. And so with that in mind I am asserting that the reasons that have been proffered by the State are shams and pretext . . ..

3. The State maintained that there might be a proper reason to strike someone because of where they were born or where they are from:



A prospective juror who is from New York may be struck because he or she is used to seeing violence. The violence that has taken place in Liberia in recent years dwarfs that seen in New York. [Venireperson No. 38] was not struck because she was a Liberian but rather because she was "born in Liberia," and thus may have been more used to seeing violence.

4. Objecting at trial to the State's use of a peremptory strike against Venireperson No. 38 and the use of peremptory strikes against a number of other potential jurors, appellant stated that the strikes "violate Article 35.26(1) of the Texas Code of Criminal Procedure as well as in the alternative it violates Batson versus Kentucky, the federal perception, Equal Protection under the law, the 14th Amendment of the United States Constitution, impermissible selection of jurors based upon race." On direct appeal, appellant claimed the trial court "committed reversible error by overruling appellant's article 35.261 objection." Appellant relied on language from the Texas Constitution in support of his argument that nationality is not a permissible reason for the strike. Tex. Cont. art. I, sec. 3a ("Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin"). Appellant did not rely on the federal constitution or Batson in support of his claim before the Court of Appeals. Nonetheless, the Court of Appeals analyzed the issue under Batson and appellant does not take issue with this aspect of its opinion. Because we are reviewing the decision of the Court of Appeals, we are limited to addressing the question under Batson.

5. Section 1981 provides:



All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to the punishment, pains, penalties, taxes, licenses, and exactions of very kind, and to no other.



Although 1981 does not refer to the term "race," the Supreme Court has construed it to prohibit all "racial discrimination" in the making of private and public contracts. Runyon v. McCrary, 427 U.S. 160, 166 (1976).

6. Many courts use the terms "race" and "ethnicity" or "national origin" interchangeably for purposes of Batson, without discussing the meaning and scope of the term "race" under Batson and the equal protection clause. Hernandez, 500 U.S. at 355 (suggesting that if State used peremptory challenges to exclude Latinos from jury due to ethnic origin, it would violate Equal Protection Clause under Batson and referring throughout opinion to examining "race" neutrality of State's explanation in context of alleged discriminatory exclusion from jury of Latinos); United States v. Bedonie, 913 F.2d 782, 795 (10th Cir. 1990)(referring to members of Navajo Tribe as members of "recognizable racial group" under Batson), cert. denied, 501 U.S. 1253 (1991); Pemberthy v. Beyer, 19 F.3d 857, 870 (3rd Cir. 1993)(stating "We believe that Batson does not apply to peremptory challenges unless they are based on classifications, such as race or national origin, that are subject to 'strict' scrutiny under equal protection doctrine"), reversed, 19 F.3d 857, 870 (3rd Cir. 1993), cert. denied, 513 U.S. 969 (1994); United States v. Canoy, 38 F.3d 893 (7th Cir. 1994)(using terms "racial," "national origin" and "ethnic minorities" interchangeably in addressing Batson-based claim regarding exclusion of Asian venireperson); Rigual, No. SC16026 slip op. at 12 (holding Batson applicable to prohibit use of peremptory challenges on basis of ethnic origin or ancestry); Pemberthy, 800 F. Supp. at 156 n.13 ("[t]his court will follow the Batson and Equal Protection jurisprudence, which uses the terms 'race' and 'ethnicity' interchangeably").

7. One state supreme court has held that in order to show cognizability as to an ethnic group, the challenging party must show the group:



(1) is defined and limited by some clearly identifiable factor or factors; (2) possesses a common thread of attitudes, ideas or experiences; (3) shares a community of interests such that the group's interest cannot be adequately represented if the group is excluded from the jury selection process; and, (4) has experienced or is experiencing discriminatory treatment and is in need of protection from community prejudices.



Commonwealth v. Rico, 711 A.2d 990, 994 (Pa. 1998). Another court stressed the importance of the moving party to state on the record the relevant facts upon which it relies in identifying someone as a member of an allegedly cognizable racial group:



Visual observations, along with other criteria, such as surnames, language, etc., developed during voir dire, undoubtedly are utilized in connection with identifying members of cognizable racial or ethnic groups . . .. When, based on such observations and criteria, a party states, as a fact, his or her conclusion concerning the composition of the venire or that a particular venireperson is a member of a group, against whom the party alleges peremptory challenges are being discriminatorily used, and, the other side, being aware of the critical criteria and having had the opportunity to make similar observations, does not challenge that assertion, the fact will be deemed established.



. . . Setting out in the record, in detail, the bases for reaching the conclusion that a particular person is a member of a particular ethnic or racial group is critical. The statements of the moving party's conclusion should also enumerate the observations and assumptions upon which the conclusion is based. The more detailed the statement, the greater the incentive it provides the striking party to state any disagreement it may have. For example, if the moving party notes an accent and a general appearance, which indicates, to the moving party, that the venireperson is Hispanic, the other side, having the benefit of those details and having been apprised of the precise characteristics which prompted the conclusion, will be hard pressed not to note any differences it may have with the moving party without, in the process, conceding the issue.



Mejia v. State, 616 A.2d 356, 362-63 & n.8 (Md. 1992).

8. In making a prima facie case, it must be shown that the venire person in question is a member of a cognizable racial group. Batson, 476 U.S. at 96 (to establish prima facie case of purposeful discrimination, defendant first must show prospective juror is member of cognizable racial group).

9. Whether a prima facie case of discrimination was made here is of no moment, given that the trial court conducted a full Batson hearing, the State offered a "race neutral" reason for its strike, and the trial court ruled on the ultimate question of intentional discrimination. Hernandez v. New York, 500 U.S. 352, 359 (1991)("Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot").

10. We recognize that we do not reach the question upon which we granted review in this case - whether the Court of Appeals erroneously held that "race may be a factor co-existing with a non-racial reason; however, race may not be a reason for the strike." This is because appellant's ground for review is based upon an assumption which the State argues is incorrect - the assumption being that race was a factor for the State's strike, as evidenced by the prosecutor's reference to the venireperson's birthplace. The State's argument, directed at this core assumption underlying appellant's ground for review, had to be addressed first.