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IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

NANCY MCKENNA, § APPEAL FROM THE 87TH APPELLANT

V. § JUDICIAL DISTRICT COURT OF
W & W SERVICES, INC., APPELLEE § A NDERSON COUNTY, TEXAS

OPINION Nancy McKenna appeals from a take nothing judgment in her suit for gender discrimination against W & W Services, Inc. In her sole issue, McKenna claims that the trial court erred in denying
h er Batson challenge

. We affirm.

B ACKGROUND McKenna applied for a job as a truck driver with W & W Services

. W & W Services did not
hire McKenna , and McKenna believed that her gender was a motivating factor in that decision

. Thus, McKenna filed suit against W & W Services for gender discrimination.
At t he trial of the case , W & W Services used its six peremptory cha llenges to strike six
females from the venire . McKenna believed that gender was a factor in this decision as well, and
raised a Batson 1 challenge

. The trial court conducted a hearing at which McKenna’s attorney asked the attorney for W & W Services to s tate the reasons for each of the six strikes. Counsel complied, and McKenna presented nothing further in support of her allegation that W & W Services struck the

1 Batson v. Kentucky , 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)

.2

potential jurors because of their gender. The trial court then took judicial notice that 1) seventeen females and seven males were with in the ― strike zone ‖ for the jury , 2) McKenna struck three females
and three males, 3) W & W Services struck six females and no males, and 4) the ultimate makeup of the jury was eight females and four males . Ulti mately, t he trial court found the strikes to be gender neutral, and denied McKenna’s Batson challenge

. The case proceeded to trial , and the jury found that gender w as not a motivating factor in
W & W Services’ decision not to hire McKenna. The trial court rendered judgment in accordance with the jury’s verdict . This appeal followed.

B ATSON C HALLENGE In h er sole issue, McKenna contends that the trial court erred in denying h er Batson challenge. Specifically, McKenna alleges that W & W Services engaged in purposeful discrimination when it used its peremptory challenges to strike six females from the venire. Applicable Law The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
forbids a party fr om challenging potential jurors on the basis of their gender

. J.E.B. v. Alabama ex
rel. T.B. , 511 U.S. 127, 129, 114 S. Ct. 1419, 1421, 128 L. Ed. 2d 89 (1994); Fritz v. State , 946 S.W.2d 844, 847 (Tex. Crim. App. 1997) ; see also U.S. C ONST

. XIV , § 1, cl. 4 ( ―No State shall .

. . deny to any person within its jurisdiction the equal protection of the laws.‖) ; Davis v. Fisk Elec

. Co. , 268 S.W.3d 508, 510 (Tex. 2008) (acknowledging that gender based peremptory challenges are unconstitutional)

. The discriminatory use of peremptory challenges denies a party the equal protection of the laws guaranteed by the U.S. Constitution. See Batson v . Kentucky , 476 U.S. 79, 85, 106 S. Ct. 1712, 1716, 90 L. Ed. 2d 69 (1986)

. 2 Moreover, the discrimin atory use of peremptory challenges denies equal protection of the laws to the potential jurors. See Powers v. Ohio , 499 U.S. 400, 409

– 11, 111 S. Ct. 1364, 1370

– 71, 113 L. Ed. 2d 411 (1991). A ny party has standing to complain of such a violation , even if the party is not a member of the group allegedly affected by the improper strike. Id

. , 499 U.S. at 415

– 16, 111 S. Ct. at 1373

– 74.

2 Although Batson involved a race based peremptory strike, courts analyze all a llegedly discriminatory strikes according to the steps laid out in Batson

. See Guzman v. State , 85 S.W.3d 242, 245

- 46 (Tex. Crim. App. 2002).3

A trial court follows a three step process to evaluate a claim that a party has exercised a peremptor y strike based on gender

. S ee S nyder v. Louisiana
, 552 U.S. 472,

__ , 128 S. Ct. 1203, 1207, 170 L. Ed. 2d 175 (2008)

. First, the party challenging the strike must m ake a prima facie showing that the other party has used a peremptory challenge to remove a potential juror on the basis
of gender

. S ee id

. ; Purkett v. Elem , 514 U.S. 765, 767, 115 S. Ct. 1769, 17 70, 131 L. Ed. 2d 834 (1995) ; Goode v. Shoukfeh , 943 S.W.2d 441, 445 (Tex. 1997)

. A prima facie case may be
establish ed b y relying solely on evidenc e concerning the other party ’s exercise of peremptory challenges. See Batson , 476 U.S. at 9 6 , 106 S. Ct. at 172 3

. However, it must also be show n that
these facts and a ny other relevant circumstances raise an inference that the other party used that pract ice to exclude the potential juror on the basis of gender

. See i d

. Second, if the prima facie showing has been made , the party who challenged the potential juror must come forward with a gender neutral explanation. S ee S nyder
, 552 U.S. at __, 128 S. Ct. at 1207; Batson , 476 U.S. at 97

- 98, 106 S. Ct. at 1723

- 24. A neutral explanation means that the challenge was based on something other than the juror’s gender. See Hernandez v. New York , 500 U.S. 352, 360, 111 S. Ct. 1859, 1866

- 67, 114 L. Ed. 2d 395 (1991); Goode , 943 S.W.2d at 445. The appellate court does not consider at the second step whether the explanation is persuasive or even plausible. See Goode , 943 S.W.2d at 445 . The issue for the trial court at this juncture is the facial validity of th e explanation. See Id

. In evaluating whether the explanation offered is gender neutral, a court must determine whether the peremptory challenge violates the Equal Protection Clause as a matter of law, assuming the reasons for the peremptory challenge are true. See Hernandez , 500 U.S. at 359, 111 S. Ct. at 1866; Goode , 943 S.W.2d at 445. Unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed gender neutral for purposes of the analysis at step

two. See Hernandez
, 500 U.S. at 360, 111 S. Ct. at 1866

– 67; Goode , 943 S.W.2d at 445

. It is o nly upon reaching the third step that the persuasiveness of the justification for the challenge become s relevant. See Goode , 943 S.W.2d at 445. At the third step, the trial court m ust determine if the party challenging the strike has proven purposeful discrimination , and the trial court may believe or not believe the explanation offered by the party who exercised the peremptory challenge. See Id

. at 445

– 46. As part of that third s tep, the party challenging the strike must be afforded the opportunity to rebut the explanation for the strike

. See Davis , 268 S.W.3d at 51 4

– 1 5. Thus, the party challenging the strike must attack the other4

p a r ty’s gender neutral reasons as being contrive d or pretextual to conceal discriminatory intent. See Jasper v. State , 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). 3 The credibility of the other p a r ty ’s reasons for disparate striking of potential jurors can be measured by ―the [other party’s] demeanor;
b y how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.‖ See Miller

– El v. Cockrell , 537 U.S. 322, 339, 123 S. Ct. 1029, 1040, 154 L. Ed. 2d 931 (2003) (― Miller

– El I” )

. See ― [A] ll relevant circumstances‖ must be analyzed. Davis , 268 S.W.3d at 511 (quoting Miller

– El v. Dretke , 545 U.S. 231, 240, 125 S. Ct. 2317, 2325, 162 L. Ed. 2d 196 (2005)). However, the ultimate burden of persuasion remains with the party challenging the strike. See Goode
, 943 S.W. 2 d at 446. Once a party has offered a gender neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the part y had made a prima facie showing becomes moot. See Hernandez , 500 U.S. at 359, 111 S. Ct. at 1866 (quoting United
States Postal Serv . Bd. o

f Governo r

s v. Aikens , 460 U.S. 711, 715, 103 S. Ct. 1478, 1482, 75 L. Ed. 2d 403 (1983) ) ; Goode , 943 S.W.2d at 445

. In civil cases, we review a trial court’s Batson ruling for abuse of discretion. Davis , 268
S.W.3d at 515

. 4 A trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to guiding principles. Goode , 943 S.W.2d at 446. The abuse of discretion standard is demanding and requires that deference be given t o the trial court , but it is not an
i nsurmountable standard. See Davis , 268 S.W.3d at 515. W e must be cognizant that ―appellate review of alleged Batson errors i s not a hollow act.‖ Id

. at 516 (quoting Snyder
, 552 U.S. at __, 1 28
S. Ct. at 120 7 )

. Analysis At trial, McKenna objected that W & W Services had struck six female members of the
venire. Specifically, McKenna objected that W & W Services struck jurors n umber 4, 14, 15, 22, 23,
and 27 , and described this as ―prima [facie] gender discrimination.‖ One of the attorneys for
W & W Services was then sworn. In response to questions from McKenna’s attorney , counsel

3 Because Texas criminal jurisprudence on Batson procedures is much more developed than the civil jurisprudenc e, we examine Texas criminal jurisprudence for guidance in applying Batson and its progeny to civil matters. See Goode v. Shoukfeh , 643 S.W.2d 441, 450 (Tex. 1997) (recognizing that courts of appeals reviewing Batson challenges in civil matters have often looked to Texas criminal jurisprudence for guidance).

4 In criminal cases, Texas appellate courts apply a ―clearly erroneous‖ standard. See Guzman v. State , 855

explained the reasons for each of the six pe remptory challenges.
C ounsel t estified that juror number 4 works for ― ACCESS, ‖ and , based on his past experience, those employees are extremely liberal. McKenna claims that ― ACCESS ‖ was never defined during the voir dire examination . We note, however , that a potential juror, in response to a question by McKenna’s counsel, stated that ― ACCESS ‖ is an acronym for ― Anderson

- Cherokee County Enrichment Service, ‖ a mental health clinic run by Anderson and Cherokee Counties . A juror’s occupation or professio n is a facially gender neutral reason. See Davis , 268 S.W.3d at 521 ; see also Tompkins v. State , 774 S.W.2d 195, 205 (Tex. Crim. App. 1987)

. Counsel stated further that juror number 14 exhibited a difficult attitude. Specifically,
counsel testified that j uror number 14 was listening to music, and when another member of the
venire asked her to turn it down, she refused. Although the trial court failed to make an explicit finding that juror number 14 behaved in this manner, the court explicitly found tha t W & W Services’ reason for striking juror number 14 was gender neutral. Further, sufficiently specific ―demeanor‖ explanations are facially gender neutral reasons. See Davis , 268 S.W.3d at 519. Counsel’s explanation of the behavior upon which the pere mptory challenge was based is sufficiently specific. See id

. To explain his strike of juror number 15, counsel stated that the juror and one of the other attorneys had known each other for many years. Because of a personal matter between the two that

ar ose out of their prior relationship, counsel did not want her on the jury. Counsel assured the trial court that the personal matter ―ha [d] nothing whatsoever to do with this case or with her being a woman.‖ This reason is facially gender neutral.
Counse l testified that juror number 22 was sitting next to a lady who did not want to be at jury duty because she was sleepy . He testified further that juror number 22 also stated she did not
want to be there. C ounsel testified that he struck juror number 22 b ecause he feared she would be inattentive during the trial. T he trial court failed to make an explicit finding that juror number 22
said she did not want to be there . However, the trial court explicitly found that W & W Services’ reason for striking juro r number 22 was gender neutral. Inattentiveness is a facially gender neutral reason for exercising a peremptory strike. See Dorsey v. State , 940 S.W.2d 169, 175 (Tex. App.

— Dallas 1996, pet

. ref’d ). Further, sufficiently specific ―demeanor‖ explanations are also facially

S.W.3d 242, 254 (Tex. Crim. App. 2002).6

gender neutral reasons. See Davis , 268 S.W.3d at 519. And W & W Services identified the conduct
of j uror number 22 with sufficient specificity. Counsel testified that juror number 23 stated that she was a social worker. He explained that he struck juror number 23 because W & W Services objected to a social worker, regardless of gender

. A juror’s occupation is a facially gender neutral reason. See id

. at 521. Finally, counsel stated that the husband of juror number 27 was on a prior jury of one of
W & W Services’ attorneys and was the ―one in the jury room that almost hung the jury.‖ Counsel
was concerned that his wife would be a similar jur or , and deci ded to exercise a peremptory strike to eliminate her from the venire. This reaso n is facially gender neutral.
All of the reasons for the strikes proffered by W & W Services’ attorney are facially gender
neutral . Therefore, when the reasons are assumed to be true, it cannot be said as a matter of law that
there has been a violation o f the Equal Protection Clause. See Hernandez , 500 U.S. at 359, 111 S. Ct. at 1866; Goode , 943 S.W.2d at 445. Consequently, the trial court proceeded to the third step of the analysis. Following the testimony of W & W Services’ attorney, the trial court gave McKenna an opportunity to develop a record to demonstrate that the reasons given for the peremptory strikes were pretextual. Instead, McKenna simply reiterated that W & W Services struck six females , and stated
that ―we think that’s not something th at would normally occur if it hadn’t been for the fact that the
woman and

– the plaintiff is a woman.‖ An expression of disbelief is not enough to show that a peremptory challenge is pretextual to conceal discriminatory intent. Mandujano v. State , 966
S. W.2d 816, 821 (Tex. App.

–Austin 1998, pet. ref’d). But in conducting our review, we must examine all relevant factors bearing upon the trial court’s decision. Davis , 268 S.W.3d at 511. At the outset, we note that W & W Services used all o f its strikes t o eliminate females from
the venire. This statistic is troubling when viewed in isolation. However, t he record shows that 17
of the 24 potential jurors within the strike zone , or 71%, were female. Of these 17 females, W & W
Services struck 6 , or 35%. O f the remaining 11 females, 8 were actually seated as jurors and comprised 67% of the jury. Because of the high number of females within the strike zone, we cannot

say , without more, that the disparity in W & W Services’ use of its peremptory strikes is a ttributable to something other than ― happenstance. ‖ Se e Miller

– El I , 5 37 U.S. at 342 , 12 3 S. Ct. at 1042 (concluding that disparity in use of strikes resulting i n exclusion of 91% of eligible African7

American venire members could not have occurred by ― hap penstance ‖ ) ; Davis , 268 S.W.3d at 516 (―happenstance‖ unlikely to produce disparity where defendant struck 83% of African Americans but only 5.5% of other eligible jurors). Furth ermore, W & W Services’ disproportionate use of peremptory challenges merely supports McKenna’s ultimate burden of persuasion. See Watkins v

. State , 245 S.W.3d 444, 452 (Tex. Crim. App. 2008). But i t does not alone establish that W & W Services’ explanation s of its strikes were pretextual

. See id

. Second, we note that neither Mc Kenna or W & W Services elicited detailed information about the jurors during voir dire

. Moreover , nei ther party introduced the potential jurors’ questionnaires , the jury list, or the strikes of either party into evidenc e or requested the inclusion of

any of these items in the appellate record. Consequently, we cannot conduct a comparative juror analysis. See Miller

– El v. Dretke
, 545 U.S. 231, 24 1 , 125 S. Ct. 2317, 2325, 162 L. Ed. 2d 196 (2005) ( Miller

– El II ) (― If the [] proffered reason for striking a black panelist applies just as well to
an otherwise

– similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson ’s third step.‖); Cantu v. State , 842 S.W.2d 667, 689 (Tex. Crim. App. 199 2) ( discussing disproportionate treatment in light of co mparative analysis of jurors )

. Thir d, nothing in the record indicates that W & W Services requested a jury shuffle, even though , as previously mentioned, the percentage of females in the jury strike z one was unusually high. Se e Watkins , 245 S.W.3d at 449 (citing [ Miller

– El II ] , 545 U.S. at 253

– 55, 125 S. Ct. at [ 23 33] ) (utilizing jury shuffle in manner supporting inference of race discrimination to be considered at third stage of Batson analysis). Fo urth , a review of W & W Services’ voir dire examination does
not show that it asked males and females contrasting questions on the same subject. See id

. (use of contrasting questions designed to single out African American venire members for el imi nation t o be considered at third stage of Batson analysis)

. Fifth , there is no evidence in the record that W & W Services had a history of systematically excluding females from juries. See Davis , 268 S.W.3d at 525 (citing [ Miller

– El II ] , 545 U.S. at [263] , 125 S. Ct. at [2338] ) (whether defendant had historically excluded African Americans from juries to be considered at third stage of Batson analysis). And finally , the reasons provided by
W & W Services for the strikes are facially gender neutral when measure d by ―how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in8

accepted trial strategy.‖ See Miller

– El I , 537 U.S. at 339 , 123 S. Ct. at 1040

. In summary, w e recognize that W & W Services failed t o question t he jurors on matters relating to W & W Services’ proffered reasons for the peremptory strikes. Nevertheless, based on

o ur review of the entire record, and giving the required deference to the trial court’s ruling, we
conclude that W & W provid ed facially gender neutral explanations for it s use of peremptory challenges, and that McKenna failed to carry her burden to show that the stated reasons were pretextual. Consequently, w e hold that the trial court’s decision to deny McKenna ’s Batson
chall enge was not an abuse of discretion

. Accordingly, w e overrule McKenna ’s sole issue.

D ISPOSITION Having overruled McKenna ’s sole issue, we affirm the judgment of the trial court.



### B RIAN 

### T. H OYLE 

### Justice

Opinion delivered Novem ber 12 , 2009. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)