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 [14^th 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⁾

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 (10^th 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 19^th century by looking to dictionaries and encyclopedias from that period:

In the middle years of the 19^th 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 20^th 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 19^th 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 19^th 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 (2^nd 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 39^th 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 19^th 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 (3^rd 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 (7^th 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.

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").

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: