JOE MIDDLETON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 403rd Judicial District Court
Travis County, Texas
Trial Court No. 5040117

Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Chief Justice Morriss

O P I N I O N

[Beginning of opinion edited for space reasons.]

(6) The State Adequately Responded to Middleton's Batson Challenge

Middleton also raises a Batson challenge. See Batson, 476 U.S. 79. He contends the trial court erred in overruling his objections to the State's use of its peremptory challenges. We overrule this point of error.

...

Middleton noted that veniremembers nine and thirty-one were the only two black members of the venire panel. He suggested that the State's only basis for striking those members was their race. The State responded that it struck those members because they were employed by the University of Texas. The State stated that it always struck persons employed by the University of Texas. The State remarked, "It's been my experience that they are very anti-prosecution, that they tend to want to forgive people from any kind of criminal activity, that they are weak on finding people guilty, and even if they find them guilty, they tend to be very liberal on the issue of punishment." The State also noted that it struck two additional veniremembers, neither African-American, because they also worked for the University of Texas. The trial court overruled Middleton's objection.

Where the State indicates that it has struck a prospective juror based on that person's type of employment and that the State has had poor success with that type of worker, the reason is a race-neutral explanation for exercising a peremptory strike. Barnes v. State, 855 S.W.2d 173, 174 (Tex. App.�Houston [14th Dist.] 1993, pet. ref'd) (citing Tompkins v. State, 774 S.W.2d 195, 205 (Tex. Crim. App. 1987)).

Middleton contends it is unreasonable and absurd for the State to allege that, in Austin, Texas, it routinely strikes veniremembers who work for the University of Texas. But, Middleton has not alleged or shown that there were other members on the panel who worked for the University which the State did not strike. See Miller-El v. Dretke, ___ U.S. ___, 125 S.Ct. 2317, 2325 (2005). Nor has Middleton alleged that the State routinely fails to strike veniremembers who work for the University.

We hold that the State proffered a race-neutral explanation for striking the two black veniremembers and that the trial court was not clearly erroneous in accepting that explanation. Accordingly, we overrule this point of error.

Having denied all points of error, we affirm the judgment.

Josh R. Morriss, III
Chief Justice

Date Submitted: December 21, 2005
Date Decided: January 25, 2006

Publish

Well, I don't practice law in Austin, but I frequently strike all teachers off my panels, having been bitten on several occasions by teachers in trials before. As long as he is striking all UT employees within the strike zone, what does that matter?

Isn't that the beauty of peremptory strikes? You get to use your gut to clear out the nuts?

I never had a blanket rule to strike all UT staff, or all lawyers, etc., but this begs a good question: is there any category of panelist that you customarily strike?

My only blanket rule is that I try as hard as I can to get rid of anyone under about 25, especially if they're single. Nobody else seems to be taboo -- had lots of really good jurors who were teacher, engineers, even preachers (I once had an Episcopal reverend who was an alternate but ended up the foreman of a death penalty case - they gave it but prayed afterwards).

I always strike lawyers. It doesn't matter what kind of law they practice, they seem to judge how you tried your case instead of what the law and the facts are.