Garcia v. Excel Corp.

                   United States Court of Appeals,

                            Fifth Circuit.

                            No. 96-10018.

                Sylvia GARCIA, Plaintiff-Appellant,

                                  v.

                   EXCEL CORP., Defendant-Appellee.

                            Jan. 6, 1997.

Appeal from the United States District Court for the Northern
District of Texas.

Before POLITZ, Chief Judge, and SMITH and DUHÉ, Circuit Judges.

     PER CURIAM:

     Raising a Batson1 challenge, Sylvia Garcia appeals a judgment

on an adverse verdict in her personal injury suit against her

employer.2   Concluding that Garcia's challenge was not made timely

in the district court and, in addition, lacks merit, we affirm.

     Garcia sued Excel Corporation for personal injuries allegedly

sustained during the course of her employment as she lifted a large

piece of meat from a conveyor belt.    During voir dire, counsel for

Excel used their three peremptory strikes to excuse an African-

American and two Hispanic women from the venire.      As seated, the



        1
      Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d
69 (1986).
    2
     Garcia's claim of a tortious injury resulting from negligence
in the workplace on the part of her employer was allowed to proceed
because Excel was a nonsubscriber under the Texas Workers'
Compensation System. See Tex. Labor Code § 406.033.

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jury was composed of one male and five females, one of whom was

Hispanic.   After the jury was seated and the balance of the venire

was discharged and had left the courtroom, counsel for Garcia

raised a Batson challenge, noting that Excel's counsel had used its

peremptory strikes on minority members of the venire.

     In support of her objection, Garcia asked the trial court to

take judicial notice of the manner in which Excel had exercised

peremptory excusals in prior similar cases.      This request was

denied, but the court asked counsel for Garcia to state the reasons

for the strikes.    Counsel advised that the three members of the

venire were excused because of their work histories or that of

their spouses.   Finding the proffered explanation to be plausible,

the district court rejected the Batson challenge and the case

proceeded to trial and verdict.

     The jury answered all liability questions in favor of Excel

and the court entered a take-nothing judgment.   Garcia moved for a

new trial based, in part, on her Batson challenge and requested

permission to engage in discovery aimed at uncovering an alleged

pattern of discriminatory peremptory strikes by Excel.   The motion

was denied;   this appeal timely followed.

      Our circuit's well-established precedents clearly guide our

path to today's disposition. We repeatedly have held that a Batson




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challenge must be made before the venire is dismissed.3           If

opposing counsel does not raise an untimeliness objection to any

Batson challenge made thereafter, the trial court should note that

untimeliness sua sponte and reject the challenge.

         In the instant case the Batson challenge was made after the

jury venire was dismissed and was thus untimely, but Excel's

counsel did not then object nor did the court, which addressed and

rejected the merits of the challenge.     On appeal Excel raises, for

the first time, its objection that the Batson challenge should have

been rejected as untimely filed.         That objection will not be

considered for two reasons:       (1) we will not consider on appeal

matters not first presented to the trial court;4     and (2) just as

a Batson challenge must be made timely or it will be rejected, an

objection to the timeliness of a Batson challenge must likewise be

made timely or it will be rejected.

             We affirm the rejection of the Batson challenge, first

because it was untimely made and should have been dismissed on that

basis, and second because we agree with the trial court that it


         3
      See United States v. Abou-Kassem, 78 F.3d 161 (5th Cir.),
cert. denied, --- U.S. ----, 117 S.Ct. 70, 136 L.Ed.2d 30 (1996);
United States v. Maseratti, 1 F.3d 330 (5th Cir.1993), cert.
denied, 510 U.S. 1129, 114 S.Ct. 1096, 127 L.Ed.2d 409 (1994);
United States v. Romero-Reyna, 867 F.2d 834 (5th Cir.1989), cert.
denied, 494 U.S. 1084, 110 S.Ct. 1818, 108 L.Ed.2d 948 (1990).
     4
      Forbush v. J.C. Penney Co., 98 F.3d 817 (5th Cir.1996); FM
Properties Operating Co. v. City of Austin, 93 F.3d 167 (5th
Cir.1996).

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lacks merit.      Excel proffered facially valid, race-neutral reasons

for exercising its peremptory challenges to the three members of

the venire.5      Garcia's action involved an alleged workplace injury

and   Excel     expressed   the   view   that   it   preferred   not   to   have

unemployed jurors or those with unemployed spouses.              It is not the

court's province to pass upon the wisdom of the strikes but,

rather, only upon whether they are facially valid. The trial court

determined that Garcia failed to carry her burden of proving

purposeful discrimination.6        We find no error.7

          The judgment appealed is AFFIRMED.




          5
      Purkett v. Elem, --- U.S. ----, 115 S.Ct. 1769, 131 L.Ed.2d
834 (1995) (per curiam) (holding that exercising a peremptory
strike on a juror for having long hair was facially valid).
      6
     Adhering to Purkett, supra, this court recognizes that Batson
challenges are divided into three steps of inquiry:        (1) the
opponent of the peremptory challenge must make out a prima facie
case of racial discrimination; (2) the proponent of the strike
must rebut the prima facie case with a race-neutral explanation for
the strike; and (3) the trial court must then decide whether the
opponent of the strike has proven purposeful discrimination. Id.
at ----, 115 S.Ct. at 1770-71.
      7
     United States v. Collins, 972 F.2d 1385 (5th Cir.1992), cert.
denied, 507 U.S. 1017, 113 S.Ct. 1812, 123 L.Ed.2d 444 (1993). On
appeal, Garcia urges this court to overrule our circuit and Supreme
Court precedent regarding the Batson procedure. We are bound to
our circuit precedents and would not presume to ignore Supreme
Court precedents or teachings.

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