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

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
2

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
3See 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).
4Forbush 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).
3

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.

5Purkett 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).
6Adhering 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.
7United 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.
4