Is The Texas Shuffle Subject to The Batson 3-Step?
Looking from counsel table at the jury venire recently numbered and seated, you observe a typical cross section of county residents, some with dour faces, but an interesting assortment nonetheless.
“May we approach the bench, your honor?” bellows your adversary.
Having been so permitted, your adversary now declares:
“Your honor, pursuant to Rule 223, of the Texas Rules of Civil Procedure, we demand a shuffle.”
If the panel in its current configuration seems acceptable to you, what can you do to avoid this fruit basket turnover? Reading the rule, it seems mandatory and worse yet, only one shuffle can be granted and your adversary just claimed it. Can you successfully oppose it?
The answer is maybe, and it is worth the effort. Judges hate shuffles. It wastes time and requires the bailiff to find an appropriate receptacle, (a shuffle without one will not do), drop the names in it, shuffle them around, draw each name out, place the names on a list and then re-seat them in the new order. Judges will gladly give you an opportunity to convince them that they can deny the request. There are three arguments to consider.
First, ask yourself: Does Rule 223 even apply to this county? Note the title of the rule is, “Jury List in Certain Counties”. It is designed for counties using “interchangeable juries”, where jurors are listed on a “general panel” and assigned for “service” to courts and then returned to the general panel after their service in such courts to be enrolled at the bottom of the general panel list in the order of their return, and eligible for reassignment. While this may be the procedure in smaller counties, it is not the norm in larger counties where potential jurors are dismissed and sent home if they are not empanelled on the jury.
Second, is the demand timely? The rule states that the demand for a shuffle must occur, “prior to voir dire examination by any party or attorney in the case”. But when does voir dire begin? Two cases from the Fort Worth Court of Appeals provide some guidance. In Carr v. Smith, the court held that voir dire had begun once counsel had reviewed jury questionnaires but before oral examination. Three years later the same court held that review of jury questionnaires did not trigger the beginning of voir dire. Rather, it was the promulgation of the admonitory instructions under Tex.R.Civ.P. 226a that did and the review of questionnaires by counsel prior to that time did not render the demand for a shuffle untimely.
Lastly, depending on the racial make up of the jury venire now assembled and seated, your argument is that the demand for a shuffle made by your adversary under these circumstances, evinces a discriminatory intent to deny participation in jury service on account of race and, therefore, implicates the protections set forth in Batson. As such, you now demand that you and your opponent dance the Batson two-step.
Since the demand for a shuffle must occur before counsel has the benefit of questioning the panel, such demands are primarily based on the appearance of the panel. It is true that counsel may be informed by the juror information available to counsel before questioning begins, but claims that there are too many neckties in the first 24 are likely pretextual and precisely the evil the Batson three-step is designed to root out.
The United States Supreme Court viewed with “suspicion” the prosecution’s use of the jury shuffle provided under the Texas criminal statute where 7 of the first 20 panel members seated were black. Although the shuffles were not challenged under Batson, the court seems to suggest that the same rationale might apply to their use had such a challenge been made: “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.
The use of the terms, “racially neutral reason” and “inference” sure sound a lot like Batson. And it seems much easier to articulate a racially neutral reason for the exercise of a peremptory strike after extensive voir dire examination than it does after merely taking in the appearance of the panel.
 Whiteside v. Watson 12 S.W.3d 614 (Tex. App.-Eastland 2000)
 Carr v. Smith 22 S.W.3d 128 (Tex. App.-Fort Worth 2000)
 BNSF Ry. Co. v Wipff 408 S.W.3d 662 (Tex.App.-Fort Worth 2013)
 Id. at pg. 667. The Court in BNSF noted that although the panel in Carr had been sworn under Rule 226, the case did not “specify” if the Rule 226a instructions had been given before the shuffle was demanded. In BNSF, there was also “no evidence” that the panel was ever sworn under Rule 226.
 Batson v. Kentucky 106 S.Ct. 1712 (1986)
 Tex. Code Crim. Proc. Ann. Art. 35.11
 Miller-El v. Dretke 125 S.Ct. 2317 (2005)
 Unlike Tex. R. Civ. P. 223, Art. 35.11 provides for multiple shuffles.
 Miller-El at 2333