CAROLYN JACKSON, INDIVIDUALLY AND ON BEHALF OF JEFFREY E. JACKSON, DECEASED, NATOSHA CELESTINE, AND TERRANCE JACKSON, Appellants
DANIEL GARBER STROUD, M.D., Appellee
Appeal from the 270th District Court Harris County, Texas
Trial Court Case No. 2012-17486
consists of Justices Jennings, Bland, and Brown.
an appeal from a take-nothing judgment entered after a jury
trial in a medical malpractice case. Carolyn Jackson sued
Daniel Garber Stroud, M.D., over the death of her husband,
which occurred shortly after Stroud performed surgery on him.
During voir dire, Stroud, who is Caucasian, used three of his
peremptory strikes to remove all black panelists from the
panel of potential jurors. Jackson, who is African-American,
made a Batson challenge, which the trial court
argues that the trial court's ruling was an abuse of
discretion because Stroud's race-neutral reasons for
striking the black panelists were pretextual. We hold that
the record shows that Stroud's reason for striking at
least one of the panelists was pretextual. Therefore, we
reverse the trial court's judgment and remand for a new
surgeon Daniel Stroud performed bypass surgery on Jeffrey
Jackson. Jeffrey died from complications related to the
surgery, and his wife, Carolyn Jackson, sued Stroud for
voir dire, one of four black panelists was struck for cause.
At the conclusion of voir dire, Stroud used peremptory
strikes to remove the three remaining black panelists.
Jackson made a Batson challenge,  which the trial
court overruled. No black panelist was empaneled on the jury.
jury returned a defense verdict, and the trial court signed a
take-nothing judgment. Jackson appeals.
first issue, Jackson contends that the trial court abused its
discretion in overruling her Batson challenge. After
the trial court dismissed panelists for cause or hardship,
Stroud used peremptory strikes to strike the three remaining
black panelists-P. Howe, W. Parham, and K. Falls. Jackson
made a Batson challenge, arguing that the strikes
were racially motivated. Stroud proffered reasons for each
strike, and the trial court overruled Jackson's
objection. Jackson argues that the trial court's ruling
was an abuse of discretion because Stroud's purported
reasons for striking the black panelists were pretexts for
unlawful racial discrimination. Stroud responds that the
trial court properly overruled Jackson's objection
because she failed to prove purposeful discrimination.
Applicable law and standard of review
the Texas Rules of Civil Procedure, each party in a case
tried in district court is entitled to six peremptory
strikes, which are used to "strike" potential
jurors without offering any reason or explanation.
Tex.R.Civ.P. 232, 233. While no reason for the strike is
required, a peremptory strike may not be based on a number of
considerations forbidden by the Constitution, including a
potential juror's race. Edmonson v. Leesville
Concrete Co., 500 U.S. 614, 618 (1991); Batson v.
Kentucky, 476 U.S. 79, 89 (1986).
racially motivated use of a peremptory strike violates the
Equal Protection Clause of the United States Constitution.
See Batson, 476 U.S. at 89; see also U.S.
Const. amend. XIV, § 1. The exclusion of even one
potential juror on the basis of race invalidates the entire
jury selection process and requires a new trial. Davis v.
Fisk Elec. Co., 268 S.W.3d 508, 521 (Tex. 2008);
Haynes v. Union Pac. R.R. Co., 395 S.W.3d 192, 197
(Tex. App.-Houston [1st Dist.] 2012, pet. denied).
after the seminal Supreme Court decision, an objection that a
peremptory strike was based on race is called a
Batson challenge. The resolution of a
Batson challenge involves a three-step process.
Batson, 476 U.S. at 97; Davis, 268 S.W.3d
at 514 n.4.
first step, the party challenging the peremptory strike must
establish a prima facie case of racial discrimination.
Snyder v. Louisiana, 552 U.S. 472, 476 (2008);
Davis, 268 S.W.3d at 514 n.4; Haynes, 395
S.W.3d at 196. To establish a prima facie case, the
challenging party may rely on all relevant facts, including
any statistical disparity between the percentage of black and
nonblack panelists who were struck by the other party.
Miller-El v. Dretke, 545 U.S. 231, 239-41 (2005);
Haynes, 395 S.W.3d at 196.
second step, if the challenging party meets her burden, the
burden shifts to the striking party to offer a race-neutral
explanation for the strikes. Snyder, 552 U.S. at
476-77; Haynes, 395 S.W.3d at 196. At the second
step, the race-neutral explanation is a burden of production
only. See Peetz v. State, 180 S.W.3d 755, 758-59
(Tex. App.-Houston [14th Dist.] 2005, no pet.). To satisfy
his burden at the second step, the striking party must offer
"clear and reasonably specific" reasons for his
strikes. Haynes, 395 S.W.3d at 196. The reasons
cannot be vague. Moeller v. Blanc, 276 S.W.3d 656,
662 (Tex. App.-Dallas 2008, pet. denied). A vague reason is
essentially no reason at all. Id. However, the
reasons need not be "persuasive or even plausible"
so long as they are clear, reasonably specific, and
"based on something other than the juror's
race." Goode v. Shoukfeh, 943 S.W.2d 441, 445
determining whether the striking party has offered a
race-neutral explanation, the trial court does not consider
any disparate treatment of panelists or other evidence
tending to show that the explanation is pretextual; these
matters are considered as part of the third step of a
Batson challenge. See Snyder, 552 U.S. at
478, 485 (comparing struck juror with other jurors to
determine whether strike was pretextual in third step of
Batson inquiry); Jones v. State, 431 S.W.3d
149, 155 (Tex. App.-Houston [14th Dist.] 2013, pet.
ref'd) (considering disparate treatment of panelists as
part of third step); McKenna v. W & W Servs.,
Inc., 301 S.W.3d 336, 341 (Tex. App.-Tyler 2009, pet.
denied) (noting that "only upon reaching the third
step" does the "persuasiveness ...