I respectfully dissent. The majority opinion affirms the court of appeals on the basis that appellant "failed in his burden of persuasion to establish race discrimination based on ethnicity." Ante, at ___ (slip op. at 14). In doing so, the majority decides an issue that is in no way related to the ground for review that was granted by this court.

On appeal, appellant contended, inter alia, that the state's decision to use a peremptory challenge to strike venire member No. 38 was in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed.2d 69 (1986). The state stated that it struck this venire member because she was unemployed, born in Liberia, and spoke more during appellant's voir dire examination. After holding that unemployment was a valid, race-neutral reason, and not a pretext for discrimination, the court of appeals went on to consider appellant's claim that a strike based on the venire member's national origin was prohibited by Batson. Wamget v. State, No. 14-96-001188-CR (Tex. App.--Houston [14^th Dist.] August 31, 1999) (not designated for publication), 1999 Tex. App. LEXIS 6540, at *11. When such a claim is made, the objecting party must first make a prima facie showing that the other party has used a peremptory challenge to remove a member of the venire on account of race. Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1770, 131 L. Ed.2d 834 (1995)). Once such a showing has been made, the burden of production shifts to the other party to come forward with a race-neutral explanation. Id. If a race-neutral explanation is proffered, then the trial court must then decide whether the objecting party has proven purposeful discrimination. Id. at 767, 115 S. Ct. at 1770-1.

The court of appeals found that under our decision in Hill v. State, 827 S.W.2d 860, 866 (Tex. Crim. App.) (plurality opinion), cert. denied, 506 U.S. 905, 113 S. Ct. 297, 121 L. Ed.2d 221 (1992), race may be a factor co-existing with a non-racial reason, but that it may not be the reason for the strike. Id. at *11-*12. The court thus held that "because there was no evidence in the record that race was the reason for the State's strike," it could not say that the trial court's decision to overrule appellant's Batson challenge regarding venire member No. 38 was clearly erroneous. Id. at *12. We granted appellant's petition for discretionary review to determine 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."

Thus, the question presented by appellant's ground for review is whether a Batson violation occurred when race is given as one of the reasons for a peremptory strike, but not the only reason. Prior to Hill, several intermediate court decisions adhered to the so-called "taint" approach, i.e., if race is a factor in a peremptory strike, then a Batson violation has been proven. See Moore v. State, 811 S.W.2d 197, 200 (Tex. App.--Houston [1^st Dist.] 1991, pet. ref'd); McKinney v. State, 761 S.W.2d 549 (Tex. App.--Corpus Christi 1988, no pet.); Speaker v. State, 740 S.W.2d 486 (Tex. App.-Houston [1^st Dist.] 1987, no pet.). Hill itself provides little, if any, precedential value. Judge Maloney's "lead" opinion adhered to the so-called "dual motivation" approach i.e., that race may be a factor coexisting with a non-racial reason for a strike, but that it may not be the reason for the strike. Hill, 827 S.W.2d at 866-9 (plurality opinion). However, just three other members of the court joined that opinion. Judge Baird's concurring opinion, also joined by three other judges, adopted the "taint" approach. Hill, 827 S.W.2d at 870-5 (Baird, J., joined by Clinton, Overstreet, and Benavides, JJ., concurring). Judge Miller concurred only in the result, without an opinion.

The split of this court in Hill reflects the split on this issue found around the country. A number of federal courts have adopted the "dual motivation" approach: if the party exercising the peremptory challenge acknowledges that a discriminatory reason was a factor, along with other legitimate factors, for excluding a juror, then the party challenging the use of the peremptory challenges has made a prima facie showing of discrimination, and the opposing party has the burden of showing that the legitimate reasons given are not pretextual, i.e., that even without the improper motivation, it would still have struck the juror. See, e.g.,United States v. Tokars, 95 F.3d 1520, 1531-34 (11^th Cir. 1996), cert. denied, 520 U.S. 1132, 117 S. Ct. 1282, 137 L. Ed.2d 357 & 520 U.S. 1151, 117 S. Ct. 1328, 137 L. Ed.2d 489 (1997); Wallace v. Morrison, 87 F.3d 1271, 1273-5 (11^th Cir. 1996), cert. denied, 519 U.S. 1044, 117 S. Ct. 616, 136 L. Ed.2d 540 (1996); United States v. Darden, 70 F.3d 1507, 1531-2 (8^th Cir. 1995), cert. denied, 517 U.S. 1149, 116 S. Ct. 1449, 134 L. Ed.2d 569 (1996), & 518 U.S. 1026, 116 S. Ct. 2567, 135 L.Ed.2d 1084 (1996); Holder v. Welborn, 60 F.3d 383, 389-90 (7^th Cir. 1995); Jones v. Plaster, 57 F.3d 417, 420-22 (4^th Cir. 1995); Howard v. Senkowski, 986 F.2d 24, 30 (2^nd Cir. 1993); United States v. Alcantar, 897 F.2d 436, 440 (9^th Cir. 1990).

However, a number of state courts have rejected this approach, and have taken the "taint" view that a discriminatory reason, even if given in combination with other, legitimate, reasons, taints the entire jury proceedings, and so requires a reversal. See, e.g., State v. Lucas, 18 P.3d 160, 163 (Ariz. App. Div. 1 2001); Payton v. Kearse, 495 S.E.2d 205, 209-10 (S.C. 1998); State v. Haigler, 515 S.E.2d 88, 92 (S.C. 1999); McCray v. State, 738 So.2d 911, 914 (Ala. Crim. App. 1998), Rector v. State, 444 S.E.2d 862, 863-5 (Ga. App. 1994). At least one court of military review has adopted this approach. United States v. Greene, 36 M.J. 274, 282 (CMA 1993). The Texas Supreme Court also appears to have adopted this approach. See Powers v. Palacios, 813 S.W.2d 489, 490-1 & n.1 (Tex. 1991).

The majority opinion in the instant case does not answer the ground granted for review: does the "taint" view or the "dual motivation" view prevail in Texas criminal jurisprudence? ⁽¹⁾ Thus, the issue decided by the majority today is not encompassed within the granted ground for review and so is not properly before us. Moreover, this case does not present the question of "whether the country of one's birth place is sufficient grounds on which to establish a person's ethnicity for making a Batson claim based on ethnicity." Ante, at ___ (slip op. at 11). Because the court of appeals' decision in no way encompasses this issue, we have no jurisdiction to make such a determination. See Garcia v. State, 15 S.W.3d 533, 536-37 n.5 (Tex. Crim. App.2000) (jurisdiction of Court of Criminal Appeals is limited to review of decisions by the courts of appeals); see also Tex. Code Crim. Proc. art. 4.04, § 2; Tex. R. App. P. 66.1. The court's concern regarding the distinction between race/ethnicity and place of birth may well be reason to dismiss this petition as improvidently granted or to remand for consideration of that issue, but it provides no reason to affirm the court of appeals.

Nevertheless, because the court holds as it does, I feel it necessary to examine its determination that race/ethnicity and place of birth do not substantially overlap in the instant case (and in many other cases of alleged racial bias). While it is true, as a general proposition, that race/ethnicity may be distinguished from place of birth, for the majority of the countries of the world, place of birth is a strong indicator of ethnicity. Given Liberia's location (West Africa), history (a republic founded in1821 by freed American slaves), and its original goal (to repatriate former slaves to the home of their ancestors), there is certainly a great deal of overlap between race/ethnicity and place of birth here. Furthermore, if place of birth and ethnicity do overlap here and venire member No. 38 is of African descent, that fact was very probably obvious to all parties. The majority's refusal to recognize this probable overlap makes its decision all the more troublesome.

I dissent.

Johnson, J.

Date Delivered: September 12, 2001

Publish

1. It instead "address[es] the question of whether it was established that 'race' was even a factor underlying the peremptory strike," and decides that appellant did not meet his burden of persuasion required under the first step of Batson and Purkett, i.e., he did not make a prima facie case of ethnicity. Ante, at ___ & ___ (slip op. at 2 & 14). Clearly, the court of appeals found otherwise, since it cited Hill for the proposition that "race may be a factor co-existing with a non-racial reason," and overruled appellant's point of error on that basis. Wamget, 1999 Tex. App. LEXIS 6540, at * 11-12. ⁽²⁾

2. The majority's attempt to bolster its holding through the court of appeals' quote that "there is no evidence in the record that race was the reason for the strike" (ante, at ___ (slip op. at 13)) distorts that sentence by taking it out of context. Given the cite to Hill in the court of appeals' opinion, as well as its previous determination that the other reasons offered by the state for excluding veniremember no. 38 were race-neutral and non-pretextual, the court of appeals was certainly saying that "there is no evidence in the record that race was the reason for the strike." However, the majority's use of this quotation suggests that the court of appeals was saying that "there is no evidence in the record that race was the reason for the strike." ' ' " " ' - " "