in Re: Anthony E. Gill

6-96-028-CV Long Trusts v. Dowd In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-02-00123-CV ______________________________ IN RE: ANTHONY E. GILL Original Mandamus Proceeding Before Morriss, C.J., Grant and Ross, JJ. Opinion by Justice Ross O P I N I O N Anthony E. Gill has filed a petition for a writ of mandamus in which he asks this Court to order the 23rd Judicial District Court of Brazoria County to proceed in accordance with our mandate in an appeal decided by this Court. In our opinion and mandate in the underlying appeal, Cause Number 06-01-00107-CV, we issued a judgment affirming the dismissal of Gill's claims against Ross Products Division, Abbott Laboratories, but reversing the dismissal of his claims against Boyd Distribution Center. We remanded the claims against Boyd to the trial court for a fact-finding hearing. Our mandate was issued May 9, 2002. Gill complains that no action has been taken in accordance with our mandate and asks us to order the trial court to enforce our judgment. (1) Because the underlying inmate litigation was dismissed before service of process on the named defendants, such service on Boyd Distribution Center was necessary before proceeding with the fact-finding hearing. We requested a response from the trial court to Gill's petition for writ of mandamus. In that response, the trial court notes that citation was issued and served, but finds that such service was defective because it was mailed to Boyd Distribution Center without properly identifying that entity as an individual, corporation, partnership, or unincorporated association. Because of this failure, the trial court concluded that, "The Defendant is not yet before the Court," and abated the case "until such time as [Gill] properly identifies the Defendant as an individual, corporation, partnership, or other legal entity, and provides the name and address of lawful agent for service." In his petition for writ of mandamus, Gill specifically asks this Court to order the trial court to serve the named defendant so the fact-finding hearing can take place. The trial court confirmed in its response, and provided information to this Court showing, that service of process on Boyd has already been accomplished by delivery by the United States Postal Service to an "agent." Gill's request to order such service is moot. Nonetheless, as noted above, the trial court has abated the lawsuit. Depending on the nature of the entity served, the citation issued may not ultimately be sufficient to support a judgment. For example, Tex. Bus. Corp. Act Ann. art. 2.11 (Vernon 1980 & Supp. 2002) requires that citation on a corporation be made on the president, any vice president, or the registered agent. See 3 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice § 11:28 (2d ed. 2000); see also Tex. Civ. Prac. & Rem. Code Ann. § 17.021, et seq. (Vernon 1997 & Supp. 2002). The question, however, is not whether Gill can ultimately prevail in his lawsuit, but whether the trial court can, at this juncture of the proceedings, abate the case sua sponte and demand the plaintiff determine the true nature of the defendant before allowing the lawsuit to proceed. There is no authority for doing so. Any shortcoming in Gill's petition or service of process may ultimately result in an inability to recover, but that does not justify abating the case until the plaintiff determines the true nature of his or her defendant. A party may not be able to determine the actual nature of a particular defendant-corporation, partnership, or other legal entity-until discovery has proceeded. The action taken by the trial court in abating the lawsuit was improper. Accordingly, the trial court is directed to rescind its order of abatement and allow the lawsuit to proceed in accordance with this Court's judgment and mandate in Cause Number 06-01-00107-CV. The writ of mandamus will issue only if the court fails to take action in accordance with this opinion. Donald R. Ross Justice Date Submitted: August 12, 2002 Date Decided: August 13, 2002 Do Not Publish 1. Gill also asked this Court to order the trial court to allow the filing of his amended petition. Gill did not need the permission of the trial court to amend his own petition, and it has been filed. That issue is therefore moot. he State's use of its peremptory strikes against various veniremembers. We disagree and affirm the judgment of the trial court. Batson Standard of Review In Batson, the United States Supreme Court held that the State's purposeful use of peremptory challenges in a racially discriminatory manner violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Article 35.261 of the Texas Code of Criminal Procedure also specifically prohibits peremptory challenges based on race. Tex. Code Crim. Proc. Ann. art. 35.261 (Vernon 1989). A Batson review involves a three-step analysis. Williams v. State, 937 S.W.2d 479, 485 (Tex. Crim. App. 1996). The first step requires the complaining party to make a prima facie case of racial discrimination. Id. (citing Purkett v. Elem, 514 U.S. 765, 767–69 (1995)). A prima facie case of discrimination may be made by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Batson, 476 U.S. at 93–96. After the complaining party establishes a prima facie case, the second step requires the party that has exercised the strike to come forward with a race-neutral reason for the strike. Williams, 937 S.W.2d at 485. This second step does not demand an explanation that is persuasive or even plausible. Purkett, 514 U.S. at 767–68. If the proponent of the strike can produce a race-neutral reason, then in the third and final step, the trial court must decide whether the opponent of the strike has proved purposeful racial discrimination. Id. at 768; Ford v. State, 1 S.W.3d 691 (Tex. Crim. App. 1999). Further, once the State proffers race-neutral explanations for its peremptory strikes, the burden is on the defendant to convince the trial court that the State's reasons were not race neutral. Ford, 1 S.W.3d at 693 (citing Camacho v. State, 864 S.W.2d 524, 529 (Tex. Crim. App. 1993); Tompkins v. State, 774 S.W.2d 195 (Tex. Crim. App. 1987)). In reviewing a Batson challenge, we review the record in the light most favorable to the trial court's rulings and determine if the court's action was clearly erroneous. Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991). A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court is left with the definite and firm conviction that the trial court committed a mistake. Whitsey v. State, 796 S.W.2d 707, 721 (Tex. Crim. App. 1989) (op. on reh'g). The trial court is the fact-finder at a Batson hearing, and it is that court's responsibility to weigh the evidence and determine the credibility of the witnesses. Tompkins, 774 S.W.2d at 202 n.6A. We therefore accord great deference to the trial court's rulings. Robinson v. State, 851 S.W.2d 216, 226 (Tex. Crim. App. 1991). If the exercise of even one peremptory challenge was racially motivated, however, the entire jury selection process is invalidated and a new trial is warranted. Keeton v. State, 724 S.W.2d 58, 65 n.5 (Tex. Crim. App. 1987); see Roberts v. State, 963 S.W.2d 894, 899–900 (Tex. App.—Texarkana 1998, no pet.). Procedural History At trial, following voir dire and before the jury was sworn, James first made his Batson challenge. During this brief hearing, the parties stipulated that James is an African-American. The trial court held a short hearing on James' objection and denied relief. During the appellate process, the State moved to abate the appeal alleging the record in the Batson hearing did not reflect the race-neutral explanations for the State's peremptory challenge as to veniremembers 3 and 24. We remanded the case for the trial court to conduct a Batson hearing and enter findings of fact and conclusions of law regarding the race of veniremembers 3 and 24, and the State's reasons for exercising peremptory challenges as to them. See Hutchison v. State, 42 S.W.3d 336 (Tex. App.—Texarkana 2001), aff'd, 86 S.W.3d 636 (Tex. Crim. App. 2002). The trial court has now conducted such hearing and has entered findings of fact and conclusions of law and determined that the State did not engage in purposeful discrimination based on race in its exercise of its peremptory challenges. The trial court found veniremembers 1, 3, 10, 14, 15, 24, and 35 were African-Americans within the range of eligibility for selection to the jury. The State used four of its peremptory challenges against veniremembers 3, 10, 15, and 24; James peremptorily struck veniremember 1. Original Batson Hearing At the original Batson hearing, the State explained its reasoning for striking veniremembers 10 and 15. The State explained that number 10 was struck because he wore sunglasses during the voir dire examination. In explaining this strike, the State mentioned that it had also struck number 26, who was Caucasian, for the same reason. The State gave as the reason for striking veniremember number 15 that the State wanted an older jury to judge a case involving young persons "in a shooting over a drug transaction." Again, the State explained that number 34, who was not identified as an African-American, was also struck for the same reason. Later, the State claimed to have struck all veniremembers under the age of thirty. Additional Batson Hearing on Remand This Court abated the appeal, and the trial court held a Batson hearing regarding veniremembers 3 and 24. The trial court found that veniremembers 3 and 24 are African-American. The State exercised peremptory challenges against numbers 3 and 24 in addition to the two African-American veniremembers discussed above. At the second Batson hearing, the State testified it struck number 3 because of her personal knowledge of James. Number 24 was struck because he did not have a high school education, as was another non-African-American venire member. Batson Analysis James and the veniremembers under discussion are African-American, so James met the Williams requirement of showing a prima facie case for an allegation of racial discrimination. See Williams, 937 S.W.2d at 485. The State presented its race-neutral explanations for the strikes used on African-American veniremembers. The trial court found such explanations racially neutral. Now we must review the trial court's finding that James failed to prove purposeful discrimination by the State. James relies on Keeton v. State, 749 S.W.2d 861, 868 (Tex. Crim. App. 1988), for support of his argument that the State's race-neutral explanations were merely pretexts to hide the State's racially-motivated ulterior motive, to wit: to remove African-Americans from James' jury. In Keeton, the court stated that the State's race-neutral explanation "need not rise to the level of a challenge for cause." Id. The court then provided, as illustration, ways the State could overcome a presumption: "The state challenged non-black jurors with the same or similar characteristics as the black jurors who were struck." Id. The State gave as its race-neutral explanation for striking veniremember 10 that he wore sunglasses during the voir dire examination. This explanation has been considered as race neutral. See Alexander v. State, 866 S.W.2d 1, 8 (Tex. Crim. App. 1993). Additionally, no disparate treatment is shown because the State also struck a non-African-American, number 26, for the same reason. Veniremember 15 was struck because of his age. The State explained it wanted an older jury to judge a case involving young persons and a drug transaction. Age may be a legitimate neutral reason for a peremptory challenge. See Brown v. State, 960 S.W.2d 265, 269 (Tex. App.—Corpus Christi 1997, no pet.) (citing Silva v. State, 800 S.W.2d 912, 914–15 (Tex. App.—San Antonio 1990, no pet.); Moss v. State, 790 S.W.2d 731, 732 (Tex. App.—Houston [14th Dist.] 1990, no pet.)) (age is an accepted criterion for peremptory challenges and does not violate Batson); Chivers v. State, 796 S.W.2d 539, 542–43 (Tex. App.—Dallas 1990, pet. ref'd). However, an explanation as to why age is important should be presented and closely examined. See Chivers, 796 S.W.2d at 543. Here, the State explained why it considered the age of the jurors to be important. It also pointed out that it likewise struck veniremember 34, a non-African-American, for the same reason. In his brief, James claims the State did not strike veniremember 4, whose date of birth was March 28, 1974. James' trial was held in October 2004, at which time veniremember number 4 was thirty years of age. The State consistently struck all veniremembers under the age of thirty, regardless of race. James also complains the State's claim of wanting an "older jury" is belied by the State's striking of veniremembers persons in their late 40s and early 50s. However, James did not question whether there were other reasons for the State to have struck these individuals. See Satterwhite v. State, 858 S.W.2d 412 (Tex. Crim. App. 1993) (appellant failed to carry burden of showing racial discrimination where he did not cross-examine responding party and presented no evidence suggesting that racially-neutral explanations were pretext for discrimination); see also Spencer v. Murray, 5 F.3d 758, 764 (4th Cir. 1993) (petitioner "offered nothing to the trial court to show" prosecutor's "stated reasons were pretextual or showed any evidence of discriminatory motive"). The State explained it struck veniremember 3 because she was personally familiar with James, which is a race-neutral explanation. Personal acquaintance with a defendant is a traditional basis for exercising a peremptory challenge. The State explained it struck veniremember 24 because he had no high school education. The State further explained it also struck veniremember 18 for the same reason. The juror information card for veniremember 18 revealed that he had not completed high school. The rationale given was that the case involved a shooting and medical records would be introduced (presumably, the State was concerned about the jurors being able to read and understand the medical records). Such an explanation is race neutral. Failing to find the trial court's rulings on James' Batson challenge were clearly erroneous, we overrule James' point of error and affirm the judgment. Jack Carter Justice Date Submitted: August 1, 2005 Date Decided: November 8, 2005 Do Not Publish