IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 1101-00

BENITO GUZMAN, Appellant

v.

THE STATE OF TEXAS

ON DISCRETIONARY REVIEW

FROM THE FIFTH COURT OF APPEALS

HARRIS COUNTY

When a party peremptorily challenges a juror for several reasons, one of which is unconstitutionally discriminatory, the Court says it will find no violation of the Equal Protection Clause if the party "demonstrate[s] that he would have exercised the peremptory strike even if the improper factor had not existed or contributed to the decision."⁽¹⁾ I do not agree that this "mixed motives" doctrine passes constitutional muster.

I.

I agree with Justice Marshall's dissent to the denial of certiorari in Wilkerson v. Texas, 493 U.S. 924 (1989), which is quoted in the Court's opinion.⁽²⁾ (It is interesting to note that the merits of our decision in Wilkerson⁽³⁾ never were reviewed by a federal court. After the Supreme Court declined to review our denial of habeas corpus relief, Wilkerson raised the issue in a federal habeas corpus proceeding. The United States courts held that he procedurally defaulted the claim by failing to make a Batson objection at his trial, which was held before the decision in Batson.)⁽⁴⁾

This case demonstrates that some lawyers will eliminate jurors for unconstitutional reasons. Today this Court makes it easier for them to do so. As the South Carolina Supreme Court said:

In our opinion, it is inappropriate to apply the dual motivation doctrine in the Batson context. Once a discriminatory reason has been uncovered -- either inherent or pretextual -- this reason taints the entire jury selection procedure. By adopting dual motivation, this Court would be approving a party's consideration of discriminatory factors so long as sufficient nondiscriminatory factors were also part of the decision to strike a juror and the discriminatory factor was not the substantial or motivating factor. However, any consideration of discriminatory factors in this decision is in direct contravention of the purpose of Batson which is to ensure peremptory strikes are executed in a nondiscriminatory manner.

Further, as applied, Batson is only effective against the most obvious examples of racial and gender prejudices. To excuse such obvious prejudice because the challenged party can also articulate nondiscriminatory reasons for the peremptory strike would erode what little protectionBatson provides against discrimination in jury selection. The challenged party should not have an opportunity to convince the judge that he would have struck the juror regardless of the discriminatory reason.⁽⁵⁾

II.

In 1990, the Illinois Supreme Court "reject[ed] any notion that Batson offers solace to prosecutors who explain challenges on 'race-plus' grounds. Our chief reason is simple: The 'race-plus' concept is largely illusory in the context of a Batson hearing."⁽⁶⁾

Today's decision rests on two "mixed motives" cases that the Supreme Court decided on January 11, 1977.⁽⁷⁾ It does not take into account the distinctive difference between those cases and a Batson case -- especially a Texas Batson case.

Each of the Supreme Court's cases involved a yes or no decision on a single question: Shall a village rezone property from single-family to multi-family?⁽⁸⁾ Shall a teacher be rehired?⁽⁹⁾ In such a context it might be possible to ask whether the same decision would have been made without the unconstitutional motive.

But in a Batson case in Texas the decision is not simply, shall Juror 17 be struck? The State did not, and could not, have ever considered whether it would have struck Juror 17 if he had been a woman. I respectfully say that neither the Court nor anyone else can say with any assurance that such a juror would have been struck.

What the Court is saying is that, in addition to his sex which the State improperly considered, Juror 17 had three undesirable characteristics that would support a decision to strike him. But whether Juror 17, regarded in isolation, was undesirable, was never the question for the State. The question, over and over, was whether he was more or less undesirable than another juror.

It must be remembered that in this trial, as in all non-death-penalty cases, the jury was selected by the "blind struck-jury" system. That is, after the voir dire examination, each party exercises its peremptory challenges by striking a certain number of names from the list of the jury panel, without knowing what names the opposing party is striking.⁽¹⁰⁾ The prosecutor took a list of 32 names and had the opportunity to strike the names of the 10 least desirable people.⁽¹¹⁾ The process of decision is to strike the name of the least desirable person, then the one who was not as undesirable as that one but who is less desirable than any other person, and so on. The factors under consideration are not merely Juror 17's characteristics. All the characteristics of all 32 jurors were in play: education, occupation, residence, age, experience with law enforcement and the criminal justice system, religion, dress, attitude, answers to voir dire questions, length of residence in the county, posture, facial expressions, and so on ad infinitum. The prosecutor's task was to decide whether Juror 17 was more or less desirable than each of the other jurors.

Let us say that Juror 22 was a divorced woman with a child who had been arrested for shoplifting, who had recently moved to the county from another state, who had a high-school education, who worked as a waitress, who did not attend church, and who laughed at the defense attorney's jokes. Let us assume that the State regarded as undesirable the criminal history of Juror 22's child, her religion, her short residence in the county, her level of education, and her laughter. We know from the prosecutor's statement that the State regarded as undesirable Juror 17's sex, marital status, parental status, and closed eyes. The question for the State was, which juror was less desirable? Who can say whether the comparison between Jurors 17 and 22 would have been the same if the State had not put Juror 17's sex into the balance?

Only two things can be said with reasonable certainty about this case: At some point the State found Juror 17 less desirable than another juror, and it admittedly made that evaluation by unconstitutionally considering Juror 17's sex. For a court to decide whether the State "demonstrate[d] that [it] would have exercised the peremptory strike even if the improper factor had not existed or contributed to the decision,"⁽¹²⁾ the court would have to find the undesirable characteristics of the 9 other jurors whom the State struck, and the characteristics of the juror whom the State would have struck if it had not struck Juror 17.

It may be impossible to say whether a party would have exercised a challenge against the same juror even if the party had not been relying in part on characteristics that offend the constitution.

I hold that the mixed-motive analysis is inconsistent with the law of equal protection in jury selection. The uncontroverted fact is that the appellant was convicted of capital murder by a jury from which the State admits it sought to exclude men. The unquestioned law is that the exclusion of men, because they are men, violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution. The law and the facts require a new trial. I respectfully dissent.

En banc.

Delivered May 22, 2002.

Publish.

1. Ante at 16.

2. See ante at 9 n.22.

3. Ex parte Wilkerson, No. 17,443-02 (Tex. Cr. App. May 15, 1989) (unpublished).

4. See Wilkerson v.Collins, 950 F.2d 1054 (5th Cir. 1992), cert. denied, 509 U.S. 921 (1993).

5. Payton v. Kearse, 329 S.C. 51, 60, 495 S.E.2d 205, 210 (1998) (citations and footnote omitted). Accord, State v. Shuler, 344 S.C. 604, 545 S.E.2d 805 (2001).

6. People v. Hope, 137 Ill.2d 430, 480 560 N.E.2d 849, 872 (1990), vacated and remanded, 501 U.S. 1269 (1991), prior decision adhered to, 147 Ill.2d 315, 589 N.E.2d 503 (1992).

7. See ante at 9 n.22 (citing Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), and Mt. Healthy School Dist. Bd. of Ed., 429 U.S. 274 (1977)).

8. Village of Arlington Heights, supra.

9. Mt. Healthy, supra.

10. See Tex. Code Crim. Proc. art. 35.25.

11. See Tex. Code Crim. Proc. art. 35.15(b) (10 peremptory challenges in a felony case with one defendant and in which the State does not seek the death penalty).

12. Ante at 16.