Davis vs. Fisk Electric Co., No. 06-0162 (Tex. Sep. 26, 2008)(Majority Opinion by Chief Jefferson)
(jury selection in wrongful termination of employment suit, race-based strikes of jury panel members, pretextual
non-racial reasons for peremptory strike; Batson challenge overruled in error)

After examining the totality of the circumstances, we conclude that race explains Fisk’s
strikes of Daigle and Pickett better than any other reason, and the trial court abused its
discretion in failing to sustain Davis’s Batson challenge. [...] We reverse in part [...] the
court of appeals’ judgment and remand the case to the trial court for a new trial.

from Harris County; 14th district (
14-04-00790-CV, 187 SW3d 570, 01-12-06)
The Court reverses in part the court of appeals' judgment and remands the case to the trial court.
Chief Justice  Wallace B. Jefferson delivered the opinion of the Court, joined by Justice Hecht, Justice O'Neill, Justice
Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett.
Justice Brister delivered a concurring opinion, in which Justice Medina joined as to Part III.

Staff Attorney Summary for PFR No. 06-0162
Donald Davis v. Fisk Electric Co., et al. | Links to Briefs
from Harris County and the 14th District Court of Appeals, Houston
For petitioner: Renuka Jain, Houston
For respondents: J. Cary Gray, Houston

In this wrongful-termination case alleging the firing was racially motivated, the principal issues are (1) whether the trial court
erred by overruling so-called Batson challenges to peremptory strikes against five of six potential jurors who were black and (2)
whether any difference exists between striking black potential jurors for race, which Batson prohibits, and striking them for
acknowledging they had been victims of discrimination or because they reacted in voir dire to a racial epithet likely to be in trial
testimony. For four of the five strikes, counsel offered as proof unsworn statements about nonverbal occurrences in the
courtroom. The trial court overruled Davis’s objections to the strikes. The court of appeals affirmed, holding in part that the
questions about discrimination and the racial epithet were asked of all potential jurors and that Davis did not dispute Fisk’s
characterizations of nonverbal occurrences in the courtroom but only noted that no record evidence supported them

Blog links for this case:
Race-Based Peremptory Strikes in Civil Cases (Order List for  September 26, 2008) (Don Cruse Blog)
Batson challenge should have been sustained, Supremes rule (Jefferson Court Blog)

Opinion below: Davis v. Fisk Electric Co. (Tex.App.- Houston [14th Dist.] Jan 12, 2006, pet. granted)(Yates)
(employment, wrongful termination suit, race, jury selection)
AFFIRMED: Opinion by
Justice Brock Yates
Before Chief Justice Hedges, Justices Brock Yates and Anderson
14-04-00790-CV Donald Davis v. Fisk Electrick Company, Fisk Technologies & Fisk Management Inc.
Appeal from 269th District Court of Harris County
Trial Court
Judge: John Thomas Wooldridge
Attorneys:  Renuka Vinchurkar Jain | Kyle Wayne Sanders   J. Cary Gray

Davis v. Fisk Electric Co., 268 S.W.3d 508 (Tex. 2008)

Argued April 10, 2007

Chief Justice Jefferson delivered the opinion of the Court, joined by Justice Hecht, Justice O’Neill,
Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett.

Justice Brister delivered a concurring opinion, in which Justice Medina joined as to Part III.          

Our rules generally permit each party in a civil action to exercise six peremptory strikes, which are
challenges “made to a juror without assigning any reason therefor.” Tex. R. Civ. P. 232, 233. But
peremptories exercised for an improper reason, like race or gender, are unconstitutional. In this case,
the African American petitioner asserted that he was terminated based on his race. The respondents
used peremptory challenges at trial to exclude five of six African Americans from the venire but
contend that their reasons for doing so had nothing to do with the potential jurors’ race. The stated
reasons, however, when viewed in conjunction with the 83% removal rate and a comparative juror
analysis, defy neutral explanation. Because we conclude that at least two of the strikes were based on
race, we reverse in part the court of appeals’ judgment and remand the case for a new trial.


Factual Background

Donald Davis, an African American, worked for Fisk Electric Company as an assistant project
manager. In February 2001, Fisk was awarded the contract to install cables at Goodson Middle
School, in the Cypress Fairbanks School District. After problems arose on the Goodson project, Fisk
terminated Davis. Davis asserts that his termination was based on his race, as evidenced in part by
his supervisor’s alleged use of the “n-word” when planning Davis’s termination.

Davis sued Fisk,[1] claiming violations of 42 U.S.C. § 1981 and the Texas Labor Code. Fisk denied
liability. The case was called for trial, and at the conclusion of voir dire, Fisk peremptorily struck six
venire members, five of whom were African American and all of whom were minorities. Davis
objected, citing
Batson v. Kentucky, 476 U.S. 79 (1986),[2] and the trial court, after a hearing,
overruled the objection.

The jury returned a defense verdict, the trial court signed a take-nothing judgment, and the court of
appeals affirmed. 187 S.W.3d 570, 577. We granted Davis’s petition for review to apply the United
States Supreme Court’s most recent guidance on peremptory challenges that are allegedly race-
based. 50 Tex. Sup. Ct. J. 446 (Feb. 23, 2007).


Batson Challenge

Davis raises a single complaint: that Fisk struck prospective jurors based on race, in violation of
Batson. We last wrote on Batson challenges in Goode v. Shoukfeh, 943 S.W.2d 441 (Tex. 1997), and
in the intervening years, the landscape has evolved. Significantly, after the trial in this case, the
Supreme Court decided
Miller-El v. Dretke, 545 U.S. 231 (2005) (“Miller-El II”), a case in which the
Court concluded that a habeas petitioner was entitled to relief because prosecutors in his criminal
trial peremptorily struck potential jurors based on race. Although Miller-El II is a criminal case, it
involves many of the same factors at issue here, and we examine it in some detail.

The case began with Miller-El’s 1986 capital murder trial in a Texas trial court. During jury selection,
prosecutors used peremptory strikes to remove ten African Americans from the venire. Miller-El
objected that the strikes were improperly based on race, given the Dallas County District Attorney’s
Office’s historic practice of excluding blacks from criminal juries. The trial court concluded that, under
Swain v. Alabama, which was then the governing standard for complaints of racially based jury
selection, there had been no “systematic exclusion of blacks as a matter of policy” by that office and
thus no entitlement to a new jury. Miller-El II, 545 U.S. at 236 (quoting Swain v. Alabama, 380 U.S. 202
(1965)). Miller-El was convicted and sentenced to death. Id.

While his appeal was pending, the Supreme Court decided Batson, “which replaced Swain’s
threshold requirement to prove systemic discrimination under a Fourteenth Amendment jury claim,
with the rule that discrimination by the prosecutor in selecting the defendant’s jury sufficed to establish
the constitutional violation.” Id. The Court of Criminal Appeals remanded the case to the trial court to
determine whether Miller-El could prove a Batson violation. Miller-El v. State, 748 S.W.2d 459 (Tex.
Crim. App. 1988) (en banc).

The trial court reviewed the voir dire record, and one of the prosecutors provided his rationale for
previously unexplained strikes. The trial court deemed the explanations “completely credible [and]
sufficient” and found there was “no purposeful discrimination.” Miller-El II, 545 U.S. at 236. The Court
of Criminal Appeals affirmed, stating that the voir dire record provided “ample support” for the
prosecutor’s race-neutral explanations. Miller-El v. State, No. 69,677 (Tex. Crim. App. Sept 16, 1993)
(per curiam), p. 2.

Miller-El then sought habeas relief under 28 U.S.C. § 2254, again raising his Batson claim. Miller-El II,
545 U.S. at 237. The federal district court denied relief, and the Fifth Circuit refused to certify
appealability. Miller-El v. Johnson, 261 F.3d 445 (5th Cir. 2001). The Supreme Court granted
certiorari to consider whether Miller-El was entitled to review of his Batson claim and, determining that
“the merits of the Batson claim were, at the least, debatable by jurists of reason,” held that Miller-El
was entitled to a certificate of appealability. Miller-El II, 545 U.S. at 237 (citing Miller-El v. Cockrell,
537 U.S. 322 (2003) (“Miller-El I”)). After granting that certificate, the Fifth Circuit rejected Miller-El’s
Batson claim. Miller-El v. Dretke, 361 F.3d 849 (5th Cir. 2004). The Supreme Court again granted
certiorari, Miller-El v. Dretke, 542 U.S. 936 (2004), and again reversed, Miller-El II, 545 U.S. at 237,
this time on the merits of Miller-El’s Batson challenge.

Noting that a Batson challenge requires an examination of “‘all relevant circumstances,’” the Court
examined five factors in determining that jury selection in Miller-El’s criminal trial violated the Equal
Protection Clause. Miller-El II, 545 U.S. at 240 (quoting Batson, 476 U.S. at 96-97). The first involved
an analysis of the statistical data pertaining to the prosecution’s peremptory strikes. The Court noted
that prosecutors used peremptory strikes to exclude 91% of the eligible African-American venire
members—a percentage too great to attribute merely to “[h]appenstance.” Id. at 241.

The Court then conducted a comparative juror analysis, noting that “[m]ore powerful than these bare
statistics, however, are side-by-side comparisons of some black venire panelists who were struck
and white panelists who were allowed to serve.” Id. The Court explained that “[i]f a prosecutor’s
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.” Id. In conducting this analysis, the Court rejected the notion that struck venire
members must be compared only to jurors who are identical in all respects (save race): “A per se rule
that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave
Batson inoperable; potential jurors are not products of a set of cookie cutters.” Id. at 247 n.6. The
Court focused on the prosecution’s questioning of two black venire members—Billy Jean Fields and
Joe Warren—and compared their answers to those given by whites. With regard to Fields, the Court
determined that:

nonblack jurors whose remarks on rehabilitation could well have signaled a limit on their willingness to
impose a death sentence were not questioned further and drew no objection, but the prosecution
expressed apprehension about a black juror’s belief in the possibility of reformation even though he
repeatedly stated his approval of the death penalty and testified that he could impose it according to
state legal standards even when the alternative sentence of life imprisonment would give a defendant
(like everyone else in the world) the opportunity to reform. Id. at 245.

As for Warren, the Court noted that the State’s proffered reason—that Warren’s voir dire answers
were inconsistent—seemed plausible, but “its plausibility [was] severely undercut by the prosecution’s
failure to object to other panel members who expressed views much like Warren’s.” Id. at 248. After
comparing his answers to panel members who expressed similar conclusions, the Court decided that
race was significant in determining who was challenged and who was not. Id. at 252. The Court also
rejected the court of appeals’ independent conclusion that Warren expressed general ambivalence
about the death penalty, because the prosecutor’s stated reasons for striking Warren did not allude to
any such ambivalence. Id. at 250. The Court then noted:

[T]he rule in Batson provides an opportunity to the prosecutor to give the reason for striking the juror,
and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing
on it. It is true that peremptories are often the subjects of instinct, and it can sometimes be hard to say
what the reason is. But when illegitimate grounds like race are in issue, a prosecutor simply has got to
state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson
challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does
not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can
imagine a reason that might not have been shown up as false. The Court of Appeals’s and the dissent’
s substitution of a reason for eliminating Warren does nothing to satisfy the prosecutors’ burden of
stating a racially neutral explanation for their own actions. Id. at 251-52 (citations omitted) (emphasis

A third factor the Court considered was the prosecution’s use of the jury shuffle, a practice unique to
Texas,[3] and one that the Court held could “indicate decisions probably based on race.” Id. at 253.
The Miller-El jury was shuffled some eight times, at the request of both the prosecution (three times)
and the defense (five times). Miller-El II, 545 U.S. at 255 n.14. The Court noted that “‘the prosecution’s
decision to seek a jury shuffle when a predominant number of African-Americans were seated in the
front of the panel, along with its decision to delay a formal objection to the defense’s shuffle until after
the racial composition was revealed, raise a suspicion that the State sought to exclude African-
Americans from the jury.’” Id. at 254 (quoting Miller-El I, 537 U.S. at 346). This was amplified by
testimony that the Dallas County District Attorney’s Office had previously admitted to using the shuffle
to manipulate the racial makeup of juries. Id. The Court concluded:

The State notes in its brief that there might be racially neutral reasons for shuffling the jury, and we
suppose there might be. But no racially neutral reason has ever been offered in this case, and nothing
stops the suspicion of discriminatory intent from rising to an inference. Id. at 254-55 (citation omitted).

A fourth factor the Court relied on was the “contrasting voir dire questions posed respectively to black
and nonblack panel members.” Id. at 255. Prosecutors gave black panel members a vivid, graphic
account of the death penalty before asking about the member’s feelings on the subject, while it gave
nonblacks a “bland description.” Id. While the State conceded that disparate questioning occurred, it
asserted that the disparity was based on panel members’ differing views of the death penalty—those
who expressed ambivalence received the “graphic script,” while those who did not received the
watered-down version. Id. at 256-57.

Based on the record, however, the Court concluded that black venire members were more likely to
receive the graphic script regardless of their expressions of ambivalence, and the State’s explanation
failed for four of the eight black panel members who received that script. Id. at 258. Additionally, four
out of five nonblacks who were given the graphic script were not those who had expressed
ambivalence but were instead unambiguously in favor of, or vehemently opposed to, the death
penalty. Id. at 259. The Court also noted that the State disparately used manipulative questioning
regarding minimum punishments. Id. at 261. The State conceded that practice but argued that it was
premised on opposition to or ambivalence regarding the death penalty, rather than race. Id. at 261-
62. The Court disagreed, noting that “only 27% of nonblacks questioned on the subject who
expressed these views were subjected to the trick question, as against 100% of black members.
Once again, the implication of race in the prosecutors’ choice of questioning cannot be explained
away.” Id. at 263.

Finally, the Court considered the Dallas County District Attorney’s Office’s history of “systematically
excluding blacks from juries.” Id. Specifically, the defense presented evidence that the DA’s office had
adopted a formal policy to exclude minorities from jury service, and that policy was summarized in a
“‘manual entitled ‘Jury Selection in a Criminal Case’ [sometimes known as the Sparling Manual]’” that
was distributed to prosecutors. Id. (quoting Miller-El I, 537 U.S. at 335). Although the manual was
written in 1968, the evidence showed it was available to at least one of Miller-El’s prosecutors. Id. The
Court also observed that prosecutors had noted the race of each prospective juror on their juror
cards. Id.

Considering the totality of the circumstances, the Court held:

It blinks reality to deny that the State struck Fields and Warren, included in [the] 91% [of black venire
members who were struck], because they were black. The strikes correlate with no fact as well as
they correlate with race, and they occurred during a selection infected by shuffling and disparate
questioning that race explains better than any race-neutral reason advanced by the State. The State’s
pretextual positions confirm Miller-El’s claim, and the prosecutors’ own notes proclaim that the
Sparling Manual’s emphasis on race was on their minds when they considered every potential juror.
Id. at 266. Holding that the state court’s conclusion about the prosecutors’ strikes of those two jurors
was wrong “to a clear and convincing degree,” the Court reversed the court of appeals’ judgment and
remanded the case for entry of judgment for Miller-El, “together with orders of appropriate relief.” Id.


Batson Procedure

With this context in mind, we turn to the Batson challenge at issue in this case, but first address a
procedural matter. Davis presented his Batson objection at the conclusion of voir dire, after both
sides exercised their peremptory challenges. Fisk then defended its strikes, beginning with Juror No.
5, Michael Pickett. The trial court immediately overruled the Batson objection upon hearing Fisk’s
explanation. Davis’s counsel asked to address Fisk’s reasons, “to preserve the record here.” The trial
court answered: “You’ve raised the objection. That burden shifts. The burden has shifted. I overruled
the objection. No. 9. Let’s move on. If you want to put something on the record at the conclusion of
this, we can do so. No. 9?” A similar procedure was followed for Fisk’s justification for each of the
remaining strikes.

By overruling the objection before permitting Davis to rebut Fisk’s explanations, the trial court
overlooked part of Batson’s third step.[4] See Goode, 943 S.W.2d at 445-46. We do not doubt the
trial court’s full engagement in the voir dire and Batson proceedings, but it nonetheless should have
permitted Davis’s counsel to rebut Fisk’s explanations, rather than ruling before she had the
opportunity to do so. Id. at 452 (“Because the party challenging the peremptory strikes has the
ultimate burden of persuasion, we conclude that the trial court should provide the party challenging the
strikes . . . a reasonable opportunity to rebut the race-neutral explanations.”) (citation omitted). Davis
complains of the trial court’s evading the third step, and the court of appeals held that Davis waived
the objection by not raising it in the trial court. 187 S.W.3d at 581. To the contrary, Davis’s counsel
specifically asked the trial court to address Fisk’s explanations for the strikes. The trial court refused
her request but said that she could “put something on the record at the conclusion of this.” We
conclude that Davis’s request was sufficient to advise the trial court of the complaint, and Davis did
not waive the objection.

Nonetheless, the error in failing to follow proper procedure was harmless in this case. The trial court
permitted Davis to make a bill after the Batson hearing, and Davis’s counsel addressed Fisk’s strikes
and the explanations given. After listening to this argument, the trial court again overruled the Batson
objection, “find[ing] that the Defense has articulated reasons, at least for their decisions on particular
jurors on a nonrace basis for striking them.”


Standard of Review

In contrast to the federal system, which employs a “clearly erroneous” standard of review, we review a
trial court’s Batson ruling for abuse of discretion. Goode, 943 S.W.2d at 446 (noting that “[a] trial court
abuses its discretion if its decision ‘is arbitrary, unreasonable, and without reference to guiding
principles’” and observing that standard is “similar, although not identical to,” federal “clearly
erroneous” standard); cf. Hernandez v. New York, 500 U.S. 352, 369 (1991) (holding that a trial court's
finding will not be disturbed unless the appellate court is “‘left with a definite and firm conviction that a
mistake has been committed’”) (quoting United States v. United States Gypsum Co., 333 U.S. 364,
395 (1948)); Young v. State, 826 S.W.2d 141, 144 (Tex. Crim. App. 1991) (noting that “[a] reviewing
court should reverse [trial court’s] findings only when they are not supported by sufficient evidence or,
as we often say, for an ‘abuse of discretion’”). In Miller-El II, a habeas proceeding governed by the
standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996, the Supreme
Court noted that it would “presume the Texas court's factual findings to be sound unless Miller-El rebut
[ted] the ‘presumption of correctness by clear and convincing evidence.’” Miller-El II, 545 U.S. at 240
(citing 28 U.S.C. § 2254(e)(1)). Like our abuse of discretion standard, see Goode, 943 S.W.2d at
447, the standard applied in Miller-El II was “demanding but not insatiable,” and “‘[d]eference does not
by definition preclude relief.’” Miller-El II, 545 U.S. at 240 (quoting Miller-El v. Cockrell, 537 U.S. at
340); see also United States v. Williamson, 533 F.3d 269, 274 (5th Cir. 2008) (noting that, although
“‘[t]he trial court has a pivotal role in evaluating Batson claims,’ . . . we are also cognizant that the
Supreme Court has made plain that appellate review of alleged Batson errors is not a hollow act”)
(quoting Snyder v. Louisiana, 552 U.S. ___, ___, (2008)). We now turn to an analysis of “all relevant




Statistical Disparity

Here, as in Miller-El, the statistics are “remarkable.” Miller-El II, 545 U.S. at 240 (noting that
prosecutors used peremptory strikes to exclude 91% of eligible black venire members). Jurors were
chosen from the first twenty-eight members of the venire. At the conclusion of the parties’ questioning,
four panelists were struck for cause or by agreement, and the parties then submitted their peremptory
challenges. Fisk struck five of the six African Americans (83%) but only one (5.5%) of the eligible
nonblack prospective jurors,[5] and “[h]appenstance is unlikely to produce this disparity.”[6] Miller-El I,
537 U.S. at 342.


Comparative Juror Analysis

Beyond the raw statistics, a comparative juror analysis is similarly troubling. Fisk struck Juror No. 12,
Patrick Daigle, and provided the following explanation:

Of all the jurors, juror No. 12, who initially I thought would be good a good [sic] juror for us, reacted that
corporations should be punished with the use of punitive damages. He was the most clear on that
subject. In addition, I attempted to draw out of him a discussion from him about his involvement in this
management-employee committee thing at Continental, something that would make me think he
recognized that many of the discrimination claims that they deal with — I know he said he didn’t have
any personal involvement with race discrimination cases; but he seemed to be too ready to believe
that Continental has discriminatory employment practices; which, you know, I could be totally wrong
about this, Your Honor; but my belief is that I tend to have a high degree of skepticism about that,
about Continental and the fact that he didn’t have that same skepticism caused me to believe they we
should exercise a challenge on him.

The trial court then immediately overruled Davis’s Batson objection to the strike.

Davis’s counsel conducted the only questioning on punitive damages, and, as is evident from the
colloquy,[7] Daigle never verbally responded to the questions about punitive damages. Fisk
nonetheless asserted in the trial court that Daigle nonverbally “reacted that corporations should be
punished with the use of punitive damages.” Fisk did not elaborate on the type of nonverbal conduct
that Daigle manifested, other than to say Daigle was “most clear” on the subject. Davis’s counsel
objected that “the nonverbal cues that Defense Counsel has cited throughout are not supported by the
record” and also noted that Fisk never attempted to question Daigle about any alleged “nonverbal

Last term, the Supreme Court decided a Batson case involving nonverbal conduct. In Snyder v.
Louisiana, the Court held that the prosecution improperly struck a potential juror. Snyder, 552 U.S. at
___. The prosecution gave two reasons for its strike, one of which was that Brooks, the potential juror,
looked “very nervous” throughout the questioning. Id. at ___. The Court noted that the “record [did] not
show that the trial judge actually made a determination concerning Mr. Brooks' demeanor.” Id. at ___.
Absent such a finding, the Court concluded that it could not “presume that the trial judge credited the
prosecutor's assertion that Mr. Brooks was nervous.” Id. Thus, while “deference [to the trial court] is
especially appropriate where a trial judge has made a finding that an attorney credibly relied on
demeanor in exercising a strike,” id. at ___, here there was no such finding, and we cannot presume
the trial court credited Fisk’s explanation.

Additionally, the lack of further detail about Daigle’s purported reaction, Fisk’s failure to question
Daigle about it, and the failure to strike a white juror who expressed verbally what Daigle purportedly
did nonverbally, give us pause.

Peremptory strikes may legitimately be based on nonverbal conduct, but permitting strikes based on
an assertion that nefarious conduct “happened,” without identifying its nature and without any
additional record support, would strip Batson of meaning. Opposing counsel must have an opportunity
to rebut the accusation, the trial court must be enabled to decide whether the charge accurately
describes what happened during voir dire, and the appellate court must have a record on which to
base its analysis. Verification of the occurrence may come from the bench if the court observed it; it
may be proved by the juror’s acknowledgement; or, it may be otherwise borne out by the record as,
for example, by the detailed explanations of counsel. We do not think Snyder excludes sources of
verification other than an explicit trial court finding. See, e.g., People v. Davis, 78 Cal. Rptr.3d 809,
817 (Cal. Ct. App. 2008) (Snyder did not require reversal based on demeanor-related strike even
though trial court did not make an explicit finding as to demeanor, as juror’s “demeanor [was] shown
on the record from her lateness and inability to follow the court's instructions” and thus “[n]o further
finding was needed”). The point, instead, is that the communication be proved and reflected in an
appellate record, and counsel must, therefore, identify that conduct with some specificity.

Nonverbal conduct or demeanor, often elusive and always subject to interpretation, may well mask a
race-based strike. For that reason, trial courts must carefully examine such rationales. Our sister court
which, as we have noted, has a much more developed Batson jurisprudence than we do, see Goode,
943 S.W.2d at 450,[9] has held that a prosecutor’s statements that he didn’t like a venireman’s
“attitude, his demeanor” were pretextual when his verbal answers failed to show hostility, and the
prosecutor “never mentioned any specific body language, or any other non-verbal actions which led
him to believe the venireman was biased against his case.”[10] Hill v. State, 827 S.W.2d 860, 869-70
(Tex. Crim. App. 1992) (noting that “the record speaks for itself”); accord Brown v. Kelly, 973 F.2d
116, 121 (2d Cir. 1992) (noting that demeanor-related reasons may be legitimate basis for
peremptory challenge “if they are sufficiently specific to provide a basis upon which to evaluate their
legitimacy”); Mack v. Anderson, 861 N.E.2d 280, 297 (Ill. App. Ct. 2006) (noting that “conduct and
demeanor must be given close scrutiny because such perceptions may easily be used as a pretext
for discrimination” and, because attorney “did not make a record by providing a clear and reasonably
specific explanation of what he perceived to be” the struck juror’s “disinterest,” the record failed to
support the race neutral explanation given); Zakour v. UT Med. Group, Inc., 215 S.W.3d 763, 774-75
(Tenn. 2007) (holding that “to avoid a Batson violation, it is important that counsel specifically state the
particular body language that forms the basis for the peremptory challenge”; lawyer’s identification of
body language must be “sufficiently specific to provide a basis upon which to evaluate [its]
legitimacy,” and “body mechanics” was not detailed enough to survive Batson objection) (citation
omitted); see also Blades v. Miller, 261 F. App’x 314, 315-16 (2d Cir. 2008) (affirming trial court’s
acceptance of specific body language, including crossed arms, as a race-neutral explanation, as well
as trial court’s rejection of strike based on “body language in a formulaic, non-specific way”), cert.
denied, ___ U.S. ___ (2008). Batson requires a “clear and reasonably specific explanation” of the
legitimate reasons for a strike, Batson, 476 U.S. at 98 n.20 (quoting Tex. Dep’t of Community Affairs
v. Burdine, 450 U.S. 248, 258 (1981)), and merely stating that a juror nonverbally “reacted” is

Fisk’s failure to question Daigle about his purported reaction also suggests that Daigle’s reaction had
little to do with Fisk’s strike. Miller-El II, 545 U.S. at 246 (noting that the prosecution’s failure to
question prospective juror about reason given for strike suggested pretext; prosecutor “probably
would have [questioned him] if the family history had actually mattered”) (citing Ex parte Travis, 776
So.2d 874, 881 (Ala. 2000) (“[T]he State’s failure to engage in any meaningful voir dire examination
on a subject the State alleges it is concerned about is evidence suggesting that the explanation is a
sham and a pretext for discrimination.”)); Alex v. Rayne Concrete Serv., 951 So.2d 138, 154 (La.
2007) (noting that “the lack of questioning or mere cursory questioning before excluding a juror
peremptorily is evidence” of pretext). Moreover, Fisk did not strike Vinzant, a white juror who stated
that he would not have a problem awarding punitive damages. See Miller-El II, 545 U.S. at 248
(holding that evidence of pretext exists if a reason applies equally to other panel members, who were
not minorities and not struck). These factors suggest that the stated reason—Daigle’s “reaction” to
punitive damages—was pretextual.

Thus, we turn to the remaining reason offered for striking Daigle: that he seemed too eager to believe
that his employer, Continental Airlines, discriminated against employees and that he did not express
sufficient skepticism about discrimination claims. Daigle, a seventeen-year employee of Continental,
listed his occupation as “customer service manager” and explained his job as follows:

Daigle:                It’s called aide-of-counsel. It’s just like having a union without the union. We’re the
representative between management and the person. But every time we hear a case we don’t hear it
from our office. We have to judge the case from someone else’s office. So like in this case, I don’t
know either party, which is what we do over there; so it doesn’t give us a bias about somebody that
we work with. We have to judge their performance and have that bias about, “Well, I know this
individual. Can I judge fairly?” We deal with different offices. We have three offices, Tampa, Salt Lake,
and Houston. So they’ll send us a case from another office versus here at home.

Fisk counsel:     And by separating it out so that you don’t know the people, that way they’re limiting
the bias that somebody might have from knowing the party?

Daigle:                Yes.

Fisk counsel:     Then you know exactly what we’re doing with this voir dire process?

Daigle:                Yes.

Fisk counsel:     Do you deal with the cases sometimes where an employee says they’re being
discriminated against because of race?

Daigle:               We deal with all of it.   

Fisk counsel:     Race?

Daigle:                Race discrimination, everything.

Fisk counsel:     And are there times when employees have said, “Something happened to me
because of race” at Continental where the panel you were on agreed with that?

Daigle:                That we agreed on it?

Fisk counsel:     Right.

Daigle:                I’ve never been on a case of race myself.

Fisk counsel:     You’ve never been on a case of race yourself?

Daigle:                No.

Fisk counsel:     But what you do in these cases though is listen to both sides and try to determine
whether there is a basis in fact for the belief that an adverse job determination was discriminatory.

Daigle:                Yes, well, have to decide whether management was right or the employee was right.

Fisk counsel:     Okay.

Daigle:                Either management right [sic] on their decision or the employee has a right to come

Fisk counsel:     And I do understand correctly what you’re telling us is there’s nothing about either that
or your feelings with regard to a prior employment situation that makes you feel inclined to start this
case, giving the Plaintiff a little bit of a head start?

Daigle:                No.

The court of appeals held that Fisk’s explanation for striking Daigle sufficed, because even though
Daigle stated he could be fair, “counsel is not required to take all voir dire answers at face value.” 187
S.W.3d at 585. While that is true, there is nothing in the voir dire record to support counsel’s
explanation that Daigle believed Continental discriminated against employees—indeed, Daigle, a
longtime employee, stated that leaving his old job for Continental was “a better move for [him],” and
the only thing he said about race discrimination cases was that he had never been involved with one.
At best, the record shows that Daigle was neutral about employment discrimination issues, providing
no support for Fisk’s asserted reason for striking him. Even if Fisk were concerned about Daigle’s
description of his aide-of-counsel position as “like having a union without the union” (a concern that
was never expressed at trial), it does not explain why Fisk failed to strike (or even question) juror 27, a
white woman, about her membership in a union.

On appeal, Fisk cites Daigle’s voir dire responses about past personal experiences with
discrimination as a basis for the strike.[11] This reason—never advanced in the trial court—may not
now be used to justify the strike. See, e.g., Miller-El II, 545 U.S. at 252 (noting that, “when illegitimate
grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and
stand or fall on the plausibility of the reasons he gives”); see also id. (noting that reason given during
Batson hearing but after State’s initial reasons were shown to be incorrect “reeks of afterthought” and
showed “pretextual timing”). On balance, we conclude that Fisk’s reasons for striking Daigle “cannot
reasonably be accepted.” Miller-El II, 545 U.S. at 247 (citing Miller-El I, 537 U.S. at 339 (noting that
the credibility of reasons given can be measured by "how reasonable, or how improbable, the
explanations are; and by whether the proffered rationale has some basis in accepted trial strategy")).

Although the improper exclusion of even one juror is unconstitutional, Snyder, 552 U.S. at ___, we
also find troubling Fisk’s strike of Michael Pickett, juror no. 5. Fisk explained its reasons for striking
Pickett as follows:

Before I ever came to court today, I had a problem with Juror No. 5 because he is a musician. And the
fact that that is his only employment causes me to believe that he would not be a very good Defense
juror in any case and certainly in this case where the issue is people getting laid off over job
performance and things of that nature. Also when Juror 29 made a — I don’t remember whether it was
a solicited or unsolicited comment about having friends of African-American race, he was one of the
jurors who noticeably laughed at that; and it was clear from his reaction he did not believe that. And
there were two or three other people who were challenged on that same basis. He also is one of the
people who appeared to us to have the strongest reaction to this whole “N” word issue. And whether
or not his feelings about the company, if there is testimony that one of the people in the company used
the “N” word — you want me to keep going?

We note that Fisk never questioned Pickett about his job but instead relied on Pickett’s juror
information card, which stated that Pickett was a musician employed by Pleasant Hill Baptist Church.
Miller-El II, 545 U.S. at 244. Moreover, while facially race-neutral, this reason becomes less so when
Pickett is compared to other jurors who were not struck. Juror No. 2 was unemployed; Juror No. 26
had been terminated and then sued his employer to enforce an employment contract; Juror No. 4's
husband had been laid off repeatedly from construction jobs, and she stated that in the last two years
he had experienced “really bad” problems in finding new employment; Juror No. 10 had been
terminated. It is difficult to imagine that Pickett, who was employed and who did not respond
affirmatively when Fisk inquired whether anyone had been terminated or when Fisk asked the panel
whether, if they were involved in industries in which there were layoffs, they could not be fair and
impartial, was less desirable than these jurors because of his musical career. Instead, it seems that
the strike was “based on a group bias where the group trait is not shown to apply to the challenged
juror specifically,” Whitsey v. State, 796 S.W.2d 707, 716 (Tex. Crim. App. 1989) (holding that
prosecutor’s strike of black female juror because she was a teacher and teachers were “liberal,” when
nothing in the record bore out that characterization, was “insufficient as a matter of law”), and
suggests pretext.

Another proffered reason for striking Pickett was that he reacted strongly when asked about the “n-
word.” The anticipated trial evidence included testimony that Davis’s supervisor had referred to him
using “the n-word.” Davis’s counsel mentioned this during voir dire, and Fisk’s attorney conducted
follow-up questioning on the matter. Fisk explained its strikes of three African-American jurors
(Pickett, Euline Edmund, and Mary Harts) in part based on their verbal and nonverbal responses to
the n-word questioning. Counsel stated that Pickett was “one of the people who appeared to us to
have the strongest reaction to this whole ‘N’ word issue”; Edmund “[o]f all of the people on the panel, .
. . appeared to us to have the strongest feelings on the subject of the ‘N’ word”; and Harts was “also
one of the jurors who had the strongest reactions to the subject use of the ‘N’ word.”

But an examination of the voir dire on the n-word issue shows that Pickett, Edmund, and Harts were
no more offended by the n-word than Martha Ann Stehling, Clara Reynaga, and John David Vinzant,
three nonblack venire members who were not struck and who were seated on the jury.[12] While
Edmund stated that she had “a real hard time with” Davis’s supervisor’s use of the n-word, Reynaga
immediately agreed, stating “I also feel the same way, and we all know that words are preceded by
thoughts. So even before he said it, those thoughts were there.” The remainder of Fisk’s questioning
on the n-word follows:

Fisk counsel:     Okay. Anybody else who feels that way? Juror No. 5?

Pickett:               Well, I have to qualify that. Depending on what the evidence was, just because he
said that didn’t necessarily mean that was the reason he was terminated; but the fact that he said that
is a real big problem.

Fisk counsel:     But the fact is you don’t like it, right? If he said it, you don’t like it?

Pickett:               It’s not whether or not I like him or not.

Fisk counsel:     No, I’m not talking about him, it. You don’t like it, that he said it, right? Is that what you’
re saying?

Pickett:               Correct.

Fisk counsel:     But you would say that that’s a different question from how the decision was made
and why the Plaintiff was discharged, and you would listen to that evidence?

Pickett:               If the evidence pointed to that, it is possible to make that kind of a decision.

Fisk counsel:     And Juror No. 3., Ms. Reynaga, do you agree with that?

Reynaga:          Yes.

Fisk counsel:     Anybody else who feels like they couldn’t, based on what they’ve heard so far, listen
to the Court’s instructions, follow the Court’s instructions? Juror No. 26, you were raising your card

Vinzant:            I mean, I agree. I can listen and follow the Court’s instructions, but the way you’ve been
saying it, that the company has a problem with people using that word, to me that’s a cultural
management company problem. I don’t know that people’s roles — and I’m sure that will come out in
evidence. But if it’s a systemic cultural problem with the company, am I going to be predisposed one
way or the other? I am.

Fisk counsel:     If you find out that that is a cultural systemic problem in the company and that there
are a bunch of people besides Mr. Blanton who are alleged to have said that and you hear that
evidence, that’s going to be important evidence to you, is what you’re saying?

Vinzant:              Extremely important.

Fisk counsel:     Number one, y’all know I’m not and neither is counsel for the Plaintiff, giving you the
evidence in this case. You’ll hear the evidence from the witness stand. Everybody understands that,
right? And then, number two, I think it’s significant at this point for me to say that Mr. Blanton doesn’t
work for this company anymore. He’s going to testify. But I want to get it back on track here a second,
okay, because I said this a minute ago: I don’t think whether — now, listen to me here. I’m going to
remind you of this: In closing arguments I’ll say this again. I don’t think whether Mr. Blanton is a raving
racist or not — and I don’t think he is — but if he is, I don’t think it has anything to do with the
discharge decision in this case. And that’s because I think when you hear all of the evidence — in
fact, things I’m not sure Ms. Jain even knows right now — you’ll realize when you hear how the
decision was made and now just how, who made the decision, then you’re going to realize we’re in a
smoke screen here. Okay. Juror No. 25?

Stehling:            I think you’ve already prejudiced — you’re making us question the credibility of your
witness already.

Fisk counsel:     You’re talking about Mr. Blanton?

Stehling:            Yes.

Fisk counsel:     Well, that’s a fair comment. Why do you feel that way?

Stehling:             Because you’ve already presented this information about what’s happened. It’s

Fisk counsel:     It was inappropriate to say that he said the “N” word?

Stehling:             Well, we’re going to have to keep hearing about someone using the “N” word.

Fisk counsel:     Well, actually what I believe the testimony was was that after the discharge decision
was made Mr. Blanton was having a conversation with someone where he said basically, “We’re
going to do this. We’re going to have to be careful how we do it because he’s an ‘N’ person.” Now,
that’s based on testimony that was given.

Stehling:            I don’t think you made a good impression of the credibility of your witness.

Fisk struck the three African-American venire members who participated in this colloquy but not their
white and Hispanic counterparts, who responded at least as strongly to the n-word issue. Fisk’s
stated reasons for the strikes included the venire members’ reactions to the n-word issue. “The fact
that [a given] reason also applied to these other panel members, most of them white, none of them
struck, is evidence of pretext.”[13] Miller-El II, 545 U.S. at 248; see also United States v. Huey, 76 F.
3d 638, 641-42 (5th Cir. 1996) (holding that defendant’s assumption that minority jurors would be
biased after hearing racial slurs on tape recordings was “nothing more than an assumption of
partiality based on race and a form of racial stereotyping, both of which have been repeatedly
condemned”; excluding minority venire members on that basis violated Batson). Pickett’s “strong
reaction” in the form of his verbal responses to Fisk’s questions was no stronger than some of his
nonblack counterparts, and Fisk’s strike on this basis suggests pretext.

The final reason given for striking Pickett was that he laughed when Juror 29 said he had African
American friends. Davis disagrees that Pickett’s laughter was based on that statement but instead
asserts that it was in response to Juror 29's joke about a friend who was more successful than he.
Even assuming Fisk’s explanation was correct, Fisk also claimed to have challenged two or three
other venire members for the same reason. But, in fact, Fisk cited laughter as a basis for striking only
one other venire member, also African American. And Fisk never questioned Pickett about his
laughter, another indication that this reason may be pretextual, as more fully explained above. While
Pickett’s laughter appears at first blush to be a plausible, race-neutral reason for striking him, when
we examine the totality of the circumstances (including Fisk’s strike of Daigle),[14] we cannot agree
that Pickett’s race was irrelevant. Powers, 813 S.W.2d at 491 (holding that equal protection is denied
if “race is a factor” in a peremptory challenge).

In concluding that Fisk’s reasons for striking Pickett were non-pretextual, the court of appeals
erroneously relied on Pickett’s statements during voir dire that he had been the victim of racial
discrimination. 187 S.W.3d at 582-83. While Pickett did make such an assertion, Fisk did not cite
Pickett’s experience with discrimination as a basis for the strike. Thus, the court of appeals should not
have relied upon these statements as supporting Pickett’s strike. See Miller-El II, 545 U.S. at 252
(lawyer must “state his reasons as best he can and stand or fall on the plausibility of the reasons he
gives”; if stated reason does not hold up, it is immaterial that “an appeals court can imagine a reason
that might not have shown up as false”). In sum, none of Fisk’s reasons for striking Pickett can
“reasonably be accepted.” Miller-El II, 545 U.S. at 247.



Despite its laudable goal, Batson has been difficult to enforce. In Miller-El II, decided a year after this
case was tried, the Supreme Court noted that Batson’s “individualized focus came with a weakness
of its own owing to its very emphasis on the particular reasons a prosecutor might give.” Miller-El II,
545 U.S. at 239-40.

If any facially neutral reason sufficed to answer a Batson challenge, then Batson would not amount to
much more than Swain. Some stated reasons are false, and although some false reasons are shown
up within the four corners of a given case, sometimes a court may not be sure unless it looks beyond
the case at hand. Hence, Batson’s explanation that a defendant may rely on ‘all relevant
circumstances’ to raise an inference of purposeful discrimination. Id. at 240 (quoting Batson, 476 U.S.
at 96-97). Miller-El II’s “totality of the circumstances” analysis places a heavy burden on trial courts,
and we acknowledge that some of the factors that Court examined—most especially the comparative
juror analysis—are perhaps more easily reviewed on appeal, with the benefit of a transcript from
which such comparisons may most accurately be drawn. But without Miller-El II’s searching inquiry into
the basis of the challenged strikes, Batson would become a “mere exercise in thinking up any rational
basis.” Id. at 25.

Unlike Miller-El II, there is no evidence here of a historical pattern of excluding blacks from juries. But
Miller-El II made it clear that the five factors it considered were neither exhaustive nor mandatory;
courts must consider “all relevant circumstances” when reviewing Batson challenges. Miller-El II, 545
U.S. at 240 (quoting Batson, 476 U.S. at 96-97); see also Snyder, 552 U.S. at ___ (“In Miller-El v.
Dretke, the Court made it clear that in considering a Batson objection, or in reviewing a ruling claimed
to be Batson error, all of the circumstances . . . must be consulted.”). And here, the relevant
circumstances include many of those pertinent in Miller-El II, including a statistical disparity and
unequal treatment of comparable jurors.

We acknowledge that peremptory strikes, often based on instinct rather than reason, can be difficult
to justify. Miller-El II, 545 U.S. at 252. The trial lawyer’s failure to do so here does not suggest personal
racial animosity on his part. See, e.g., Antony Page, Batson’s Blind Spot: Unconscious Stereotyping
and the Peremptory Challenge, 85 B.U. L. Rev. 155, 160-61, 184 (2005) (noting that “research has
compellingly demonstrated the existence of unconscious race- and gender-based stereotyping”). A
zealous advocate will seek jurors favorably inclined to his client’s position, and race may even serve
as a rough proxy for partiality. See, e.g., Batson v. Kentucky, 476 U.S. 79, 139 (1986) (Rehnquist, J.,
dissenting) (noting that factors like race are often a “proxy” for potential juror bias). But whatever the
strategic advantages of that practice, the Constitution forbids it.

The concurrence suggests that we ascribe sinister motives to Fisk’s counsel. The question
presented, however, is not whether this particular advocate harbors ill will, but whether the record
explains, on neutral grounds, a statistically significant exclusion of black jurors. It is not enough, under
the Supreme Court precedent we examine here, that the lawyer be pure of heart. We assume that he
is. Our holding depends not on the personal sentiments of the advocate but on the state of the record.
Miller-El II and Snyder emphasize that Batson’s promise cannot be fulfilled if its requirements may be
satisfied merely by ticking off a race-neutral explanation from a checklist.

After examining the totality of the circumstances, we conclude that race explains Fisk’s strikes of
Daigle and Pickett better than any other reason, and the trial court abused its discretion in failing to
sustain Davis’s Batson challenge. Miller-El II, 545 U.S. at 266; Powers, 813 S.W.2d at 491. We
reverse in part[15] the court of appeals’ judgment and remand the case to the trial court for a new trial.
Tex. R. App. P. 60.2(d).

Wallace B. Jefferson
Chief Justice

OPINION DELIVERED:     September 26, 2008                                             

[1] Davis sued Fisk Electric Company, Fisk Technologies, and Fisk Management Inc. For simplicity, we refer to
respondents simply as “Fisk.”

[2] In Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 616 (1991), the Supreme Court extended
Batson’s prohibition on race-based strikes to civil cases. In Powers v. Palacios, 813 S.W.2d 489, 491 (Tex.
1991), we followed Edmonson and held that “equal protection is denied when race is a factor in counsel's
exercise of a peremptory challenge to a prospective juror.” For ease of reference, we will refer to the challenge
raised in this case as simply a Batson challenge.

[3] See Elaine A. Carlson, Batson, J.E.B., and Beyond: The Paradoxical Quest for Reasoned Peremptory
Strikes in the Jury Selection Process, 46 Baylor L. Rev. 947, 981 (1994).

[4] As we have noted:

At the first step of the process, the opponent of the peremptory challenge must establish a prima facie case of
racial discrimination. . . . During the second step of the process, the burden shifts to the party who has
exercised the strike to come forward with a race-neutral explanation. . . . It is not until the third step that the
persuasiveness of the justification for the challenge becomes relevant. At the third step of the process, the trial
court must determine if the party challenging the strike has proven purposeful racial discrimination, and the
trial court may believe or not believe the explanation offered by the party who exercised the peremptory
challenge. It is at this stage that implausible justifications for striking potential jurors “may (and probably will) be
found [by the trial court] to be pretexts for purposeful discrimination.” Nevertheless, the Supreme Court has
emphasized that “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts
from, the opponent of the [peremptory] strike.” Goode, 943 S.W.2d at 445-46 (citations omitted).

[5] Fisk used its sixth strike to remove a venire member of Asian descent. Davis initially included this juror
within the Batson challenge but later abandoned the claim. We note, however, that Davis could have
challenged this juror’s exclusion as well, even though he and the venire member were not the same race.
Powers v. Ohio, 499 U.S. 400, 402 (1991) (holding that a defendant may object to race-based peremptory
challenges whether or not he and the excluded juror share the same race).

[6] The concurrence’s focus on Davis’s strikes misses the mark, as they do not answer whether Fisk’s strikes
were improperly based on race. Cf. Miller-El II, 545 U.S. at 255 n.14 (criticizing the Fifth Circuit for declining to
give much weight to the evidence of racially motivated jury shuffles because Miller-El had shuffled the jury five
times and prosecutors shuffled only twice: “Miller-El’s shuffles are flatly irrelevant to whether prosecutors’
shuffles revealed a desire to exclude blacks.”).

[7] The entire exchange consisted of the following:

Davis counsel:      Does anybody here feel that punitive damages do what they’re meant to do, punish the
person and stop the person from doing the same thing again? That’s what punitive damages are. Do people
think that in certain cases punitive damages should be awarded? Do you think that punitive damages is
something that always compensates a victim? You feel that? Let’s have you hold up your card, and I want
everybody who feels that punitive damages always compensates a victim. Juror No. 26 [Vinzant], 13 [Parker], 7

Donaldson:           I have to qualify that.

Prescott:                    I’ll qualify my answer.

Davis counsel:      I’d like your qualifications.

Donaldson:           It depends on the amount.

Davis counsel:      I can’t see. Can you hold it up, please? 47? My eyes are getting bad with old age. 44. All
right. Juror No. 35, what’s your qualification?

Donaldson:           I’m just saying that there is a dollar limit. I mean, we’re talking reasonable sums of money

Davis counsel:      Yes.

Donaldson:           That’s fine. If we’re talking about $80 million, okay, that’s absurd.

Davis counsel:      Would the reasonableness of the sum, would you agree with me, depends upon the facts?

Donaldson:           Yes.

Davis counsel:      And y’all understand that with every question I’m asking you the judge is going to give you
the instructions very specifically on every aspect of the question that I’ve asked in this case; and all you’ll have
to do is follow the law, right? Juror No. 26, will you have a problem with awarding punitive damages?

Vinzant: No, but I think the amount of punitive damages required to punish a company is often not the same as
should be awarded to the individual. It’s a different scale.

Davis counsel:      Juror No. 13, you’re opposed to punitive damages?

Parker:                            Yes.

Davis counsel:      Juror No. 26? I’ve already talked to you, sorry. 47? What was your opinion on the punitive
damage question? You said that they overcompensated—

Prescott:                    If it’s an absurd amount, it would be overcompensated.

Davis counsel:      And Juror No. 44, you said you would qualify your answer too, correct? And does the
qualification depend on the facts, depends on the amount?

Prescott:                    Yes.

[8] The concurrence’s statement that “no one denied at trial, or denies even today, that the struck jurors
reacted just as Fisk’s counsel said they did” unfairly narrows Davis’s objection that the nonverbal conduct was
“not supported by the record.”

[9] Some research suggests that over 94% of Batson complaints occur in criminal cases. See Kenneth J. Melilli,
Batson in Practice: What We Have Learned About Batson and Peremptory Challenges, 71 Notre Dame L. Rev.
447, 458 (1995).

[10] In a later case, the Court of Criminal Appeals found the following “demeanor” explanation to be sufficiently
specific to survive a Batson challenge:

Prosecutor:            Mr. Martinez, quite frankly, Judge, the notes I put down when I got through talking to him
was he has poor facial expressions. He's very inattentive, looks unhappy to be here, body language, posture
was such that just made him feel he was uncomfortable. The only way I can characterize it is he had a very
long, unhappy face, mouth down-turned at the corners, eyes downcast. And he was, quite frankly, that way not
only to the State, but when being addressed by Defense Counsel.

My feelings were is that [sic] he just wasn't -- didn't want to be here, wasn't happy to be here, and I just felt like
he was an unknown quantity rather than risk having an unhappy person on the jury or somebody that didn't
respond readily to questions that were asked, would be to strike him, Judge.

Yarborough v. State, 947 S.W.2d 892, 893, 896 (Tex. Crim. App. 1997).

[11] The court of appeals noted this “completely new” reason but did not reach the question of whether Fisk
could rely on that reason, as that court concluded that the reasons advanced at trial justified the strike. 187 S.
W.3d at 585 n.3.

[12] Indeed, it would be surprising if venire members did not react to what is, particularly in this day and age, a
universally offensive epithet.

[13] This is nowhere more obvious than in Fisk’s strike of Harts, based in part on Fisk’s claim that she was “one
of the jurors who had the strongest reactions to the subject of the use of the ‘N’ word.” In fact, Harts never
verbally responded to any of the questions regarding the n-word, including Fisk’s direct questions about
whether Blanton’s use of the n-word would impact the venire’s consideration of the evidence. To the extent
Fisk is relying on nonverbal conduct, merely stating that Harts had a strong “reaction” to the n-word is
insufficient, for the reasons outlined above.

[14] See Snyder, 552 U.S. at ___ (noting that “all of the circumstances that bear upon the issue of racial
animosity must be consulted,” and “if there [are] persisting doubts as to the outcome, a court would be
required to consider the strike of [one challenged juror] for the bearing it might have upon the strike of

[15] In the trial court, Davis unsuccessfully moved for sanctions against Fisk, and the court of appeals affirmed
the trial court’s order. Davis does not challenge that portion of the court of appeals’ judgment.