ACCEPTED
06-14-0041-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
2/2/2015 12:13:32 PM
DEBBIE AUTREY
CLERK
IN THE COURT OF APPEALS FOR THE
SIXTH DISTRICT OF TEXAS AT TEXARKANA
FILED IN
6th COURT OF APPEALS
JAMEY JUSTIN SMITH, § TEXARKANA, TEXAS
APPELLANT § 2/3/2015 12:13:32 PM
§ DEBBIE AUTREY
v. § Nos. Clerk
06-14-00041-CR
§ 06-14-00042-CR
§
THE STATE OF TEXAS, §
APPELLEE §
___________________________________________________
STATE’S BRIEF
___________________________________________________
FROM THE 196TH DISTRICT COURT
HUNT COUNTY, TEXAS
TRIAL CAUSE NUMBERS 28,911 & 28,912
THE HONORABLE STEPHEN R. TITTLE, JR., JUDGE PRESIDING
NOBLE DAN WALKER, JR.
District Attorney
Hunt County, Texas
KELI M. AIKEN
First Assistant District Attorney
P. O. Box 441
4th Floor Hunt County Courthouse
Greenville, TX 75403
IF COURT GRANTS kaiken@huntcounty.net
APPELLANT’S REQUEST FOR (903) 408-4180
ORAL ARGUMENT THEN FAX (903) 408-4296
ORAL ARGUMENT REQUESTED State Bar No. 24043442
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i
INDEX OF AUTHORITIES..................................................................................... ii
SUMMARY OF THE STATE’S ARGUMENTS .................................................2–4
STATE'S RESPONSE TO POINTS OF ERROR ONE THROUGH SIX ..........5–18
The trial court properly found that Appellant exercised his peremptory
challenges based on discriminatory intent to keep females from
serving on the jury.
STATE’S RESPONSE TO POINT OF ERROR SEVEN ................................ 18–22
Neither the parties, nor the trial court viewed the documents marked
as Appeal Defense Exhibit 2; therefore, Appellant’s counsel could not
have made any argument based off those documents and did not
commit ineffective assistance of counsel
PRAYER AND CERTIFICATES .................................................................. 23–254
i
INDEX OF AUTHORITIES
Federal Cases
Batson v. Kentucky, 476 U.S. 79 (1986). ...................................................................5
J.E.B. v. Alabama, 511 U.S. 27 (1994). .....................................................................5
Kimmelan v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed. 305 (1986). ........17
Synder v. La., 552 U.S. 472 (2008)............................................................................5
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, (1984) .................... 17–18
State Cases
Batiste v. State, 888 S.W.2d 9 (Tex. Crim. App. 1994). ...........................................5
Blott v. State, 588 S.W.2d 588 (Tex. Crim. App. 1979). ...........................................5
Davis v. State, 313 S.W.3d 317 (Tex. Crim. App. 2010). .........................................5
Gibson v. State, 144 S.W.3d 530 (Tex. Crim. App. 2004). ...................................5–6
Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App.1986). ..................................17
Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998).....................................17
Johnson v. State, 959 S.W.2d 230 (Tex. App.—Dallas 1997). ...............................17
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). ....................................17
ii
IN THE COURT OF APPEALS FOR THE
SIXTH DISTRICT OF TEXAS AT TEXARKANA
JAMEY JUSTIN SMITH, §
APPELLANT §
§
v. § Nos. 06-14-00041-CR
§ 06-14-00042-CR
§
THE STATE OF TEXAS, §
APPELLEE §
___________________________________________________
STATE’S BRIEF
___________________________________________________
TO THE HONORABLE COURT OF APPEALS:
NOW COMES the State of Texas, Appellee, in this appeal from Cause Nos.
28,911 & 28,912 in the 196th Judicial District Court in and for Hunt County, Texas,
Honorable Stephen R. Tittle, Jr., Presiding, now before the Sixth District Court of
Appeals, and respectfully submits this its brief to the Court in support of the
judgment of sentence in the court below.
1
SUMMARY OF THE STATE’S ARGUMENTS
The trial court properly found that Appellant purposefully discriminated
against six female venire members in this case when he used his peremptory strikes
based on gender. The State presented a prima facie showing that Appellant used
eight peremptory strikes to prevent female venire members from serving on the
jury. Appellant presented his reasons for exercising peremptory strikes and the
trial court found the excuses were a pretext to strike women from the prospective
jury. After reviewing the voir dire, jury cards/questionnaires, arguments by both
sides and the court’s record, the trial court found that Appellant purposefully
discriminated against six venire members and reinstated them to the panel. As
Appellant used his peremptory strikes to intentionally discriminate against
prospective jurors on the basis of gender, the trial court correctly upheld the State’s
Batson challenge and reinstated those panel members.
Neither the trial court nor the parties viewed the documents marked as
Appeal Defense Exhibit 2 from the Supplemental Reporter’s Record. In fact those
documents were not in the reporter’s record at trial. As Appellant’s trial counsel
never saw the document where venire member 35 wrote that her sister was a prior
sexual assault victim, he did not use that statement as a basis for exercising his
peremptory strikes and did not repeat it as a gender neutral reason. The
“questionnaires” that the trial court and parties used in making strikes and during
2
the Batson argument are now Trial Defense Exhibit 1 after the supplemental
hearing and order issued by Judge Leonard in October 2014.
At trial both parties equally gave up the right to review the items marked as
Appeal Defense Exhibit 2. The items were not provided to either attorney prior to
exercising peremptory strikes and once the oversight was discovered both parties
agreed not to even read the documents. As both the State and Defense equally
gave up any opportunity to review the documents and search for any information
that might have benefited the parties or contributed to their use of strikes in this
case, there was no error. Furthermore, trial counsel made an informed strategic
decision to not use or review the documents in Appeal Defense Exhibit 2.
Appellant’s trial counsel provided the reasons he used his peremptory strike
against venire member 35. The reasons were: 1) that she served on prior criminal
juries and reached a verdict; 2) she was from Quinlan and 3) that he thought the
prosecutor knew her. RR3/89, lines 6–16. Appellant’s counsel saw the venire
member during jury selection and heard her answers to the questions proposed by
the trial court and the parties. He knew she agreed to act as a fair and impartial
juror in the case and she did not state at any time that her sister’s prior experience
would affect her ability to follow the law and be a fair and impartial juror in this
case. There is nothing in the record to show Appellant’s trial counsel’s
performance was deficient nor that the outcome of the trial would have been any
3
different; therefore, Appellant cannot show that he received ineffective assistance
of counsel in this case.
As this was a punishment trial, the State requests that the Court affirm both
of Appellant’s sentences.
4
STATE’S RESPONSE TO POINTS OF ERROR ONE THROUGH SIX
The trial court properly found that Appellant exercised his
peremptory challenges based on discriminatory intent to keep
females from serving on the jury.
Argument and Authorities
The use of peremptory challenges is limited by the Equal Protection Clause
of the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 89 (1986). No
one may use a exercise a peremptory strike solely on the basis of a venire
member’s gender. J.E.B. v. Alabama, 511 U.S. 27, 142–143 (1994); Batiste v.
State, 888 S.W.2d 9, 11–12 (Tex. Crim. App. 1994). Both parties are subject to a
Batson challenge. Georgia v. McCollum, 505 U.S. 42, 55–60 (1992).
Based upon Batson, there is a three step process courts should use to
determine if a peremptory strike was based on gender: 1) the challenging party
must make a prima facie showing that the peremptory strike was exercised based
upon gender; 2) the proponent has the opportunity to present a gender neutral
reason for striking the venire member; and 3) the trial court determines if the
challenging party has shown “purposeful discrimination.” Snyder v. La, 552 U.S.
472, 477 (2008). Davis v. State, 313 S.W.3d, 325 (Tex. Crim. App. 2010).
A trial court’s ruling on the issue of discriminatory intent must be sustained
unless it is clearly erroneous. Snyder v. La, 552 U.S. at 477; Davis v. State, 313
S.W.3d at 325. Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). A
5
trial court’s decision regarding discriminatory intent is “pivotal” because the best
evidence to determine discriminatory intent is often the demeanor of the venire
members and/or the proposing counsel. Id. The trial court is best situated to
observe the demeanor of the parties and venire members and decide if the gender
neutral reasons provided are valid or simply a pretext for purposeful
discrimination. Id.
A. The State presented its prima facie showing that Appellant
used eight peremptory strikes to prevent female venire members
from serving on the jury.
The State explained to the trial court that starting with the first juror
remaining in the panel, it was clear from the peremptory strikes exercised by
Appellant that he purposefully struck women over the age of forty in order to
prevent them from serving on the jury panel. RR3/90/lines 7-21. The State further
explained that it was watching for purposeful discrimination because the Appellant
had previously struck women in a prior jury selection for this case that resulted in a
mistrial (without prejudice) the week before. Id. 28,911/CR1/60–75.
28,912/CR1/63–78. See also Supplemental Clerk’s Record in both cases. As a
result that panel consisted of nine men and four women including the alternate
juror. Id. Finally, neither the status of the cases nor the issues had changed from
January 27th to February 3rd so there was no reason to believe Appellant would
6
have any reason to use a different strategy to pick the second jury. 28,911/CR1/6–
9 and 28,912/CR1/6–8.
B. Appellant’s gender neutral reason for striking six of the female
jurors were a pretext in order to keep women off the jury.
The trial court gave Appellant’s counsel an opportunity to present gender
neutral reasons as to why Appellant exercised a peremptory strike against each
challenged venire member. At first, trial counsel explained that the peremptory
strikes were not utilized based on gender but because of how the jurors responded
to Appellant’s counsel’s questions or their inattentiveness. RR3/86, lines 10–14.
Trial counsel then offered neutral reasons for striking each individual venire
member.
1. Appellant’s proffered neutral reasons for striking
Venire Member 5 were pretextual in that he did
not strike all members who worked in the health
care profession.
Appellant first stated that he used a peremptory against venire member 5
because she worked in the health care and rehabilitation field. RR3/87, lines 2–5.
Appellant claimed that with a sexual assault nurse examiner (SANE) testifying at
trial he felt it prudent to strike all venire members who worked in this field. Id;
RR3/93, lines 3–5. The State responded that venire member 5 was a fifty-two year
old female and that her employment in the rehabilitation and health care field
would likely benefit Appellant in the punishment phase of the trial where he tried
7
to explain the basis for his behavior and present defenses, reasons or mitigation in
hopes of a lesser sentence. RR3/92, lines 5–16. Furthermore, venire member 5
currently works at Walmart and is no longer employed in the health care field.
RR3/92, lines 21–23.
The trial court also had the testimony of the venire members from February
3, 2014 to consider. Venire member 27 stated on the record that she actually knew
the witness SANE Linda Bell who was testifying. RR3/57–58. Certainly that
would have been more relevant than another panel member who worked in a
similar field. However, Appellant’s trial counsel did not use his peremptory strike
against venire member 27 based on her knowledge or relationship with SANE
Linda Bell. RR3/97, lines 5–7.
As proof that Appellant’s claim of striking venire member 5 because of her
employment in the health care field is pretextual the trial court had before it the
jury cards/questionnaires from the February 3, 2014 panel. 28,911/CR1/63–78.
28,912/CR1/93–98. See also Supplemental Clerk’s Record in both cases. Venire
member 49 was a registered nurse and Appellant did not use a peremptory strike
against her yet she was within the strike zone. Id. Furthermore, venire member 56
was a counselor in the health care profession and in the strike zone, yet Appellant
did not strike her. Id. Finally, venire member 58 was a surgical technician within
the strike zone and Appellant did not strike her. Id.
8
As further proof that Appellant’s excuse for striking venire member 5
because of her employment in the health care field is pretextual the trial court had
the jury cards/questionnaires from the venire panel in this case on January 27,
2014. 28,911/CR1/60–75. 28,912/CR1/63–78; Trial Defense Exhibit 1 1; See also
Supplemental Clerk’s Record in both cases. Juror 5 on that panel (venire member
18) was a registered nurse and not only did Appellant not strike her but she was
seated on the jury panel. Id. Also Juror 9 (venire member 32) was a registered
nurse yet Appellant did not strike him and he was seated on the jury panel. Id.
Juror 11 (venire member 35) was also retired from the Department of Health and
Human Services but Appellant did not strike him and he was seated on the jury
panel. Id. The additional members of the venire panel were in the strike zone and
employed in the health care profession but not struck by Appellant: 1) venire
member 5 and 2) venire member 11 – a social worker who handled hospice care.
Id.
Next, Appellant claimed that Venire Member 5’s eye contact and head
shaking in response to Appellant’ counsel’s voir dire was a reason he struck her
from the panel. RR3/87, lines 2–5. The trial court was present during jury
selection and witnessed the responses and demeanor of venire member 5 and by his
1
Trial Defense Exhibit 1 are the jury cards/questionnaires offered at trial. These were
corrected as part of the Supplemental Reporter’s Record dated October 2014 and Judge
Leonard’s corresponding order.
9
ruling of purposeful discrimination found this reason to be a pretext. See infra
Section C.
2. Appellant’s proffered neutral reasons for striking
Venire Member 8 were pretextual in that he did
not strike all members who worked in the health
care profession nor did he strike all members with
family in law enforcement.
Appellant stated that he exercised a peremptory strike against venire
member 8 because she had a cousin who worked for Greenville Police Department.
RR3/87, line 14. The State established that venire member 8 was a thirty-seven
year old female and this case did not involve any Greenville Police Department
officers and argued that this reason was a pretext to strike the venire member
because of her gender. RR3/94, lines 1–2.
As proof that Appellant’s claim of striking venire member 8 because her
cousin works in law enforcement is pretextual- the trial court had before it the jury
cards/questionnaires from the February 3, 2014 panel. 28,911/CR1/63–78.
28,912/CR1/93–98. See also Supplemental Clerk’s Record in both cases. The
following venire members served on the jury yet Appellant did not exercise
peremptory strikes against them and each had family who worked in law
enforcement: 1) venire member 6; 2) venire member 19; and 3) venire member 33.
Id. The following members of the venire panel were within strike zone and either
had family in law enforcement or worked in law enforcement themselves yet
10
Appellant did not strike them: 1) venire member 53; 2) venire member 54; 3)
venire member 55; 4) venire member 56; and 5) venire member 57. Id.
As further proof that Appellant’s excuse for striking venire member 5
because her cousin works in law enforcement is pretextual- the trial court had the
jury cards/questionnaires from the venire panel in this case on January 27, 2014.
28,911/CR1/60–75. 28,912/CR1/63–78; Trial Defense Exhibit 1. See also
Supplemental Clerk’s Record in both cases. Both venire members 3 and 7 served
on the jury panel and each had family members in law enforcement but were not
struck by Appellant. Id. Venire member 46 was within the strike zone, had a
brother who worked as a police officer, and was not struck by Appellant. Id.
Next Appellant claimed he struck venire member 8 because she was a
member of the health care profession and “she’s in the health field with dialysis.”.
RR3/87, line 14. The State established that venire member 8 was a thirty-seven
year old woman who worked as a registered nurse handling dialysis and end of life
care. RR3/83, lines 13–22. This trial did not involve any discussions of end of life
measures nor of dialysis and the State argued that this peremptory strike was used
in a discriminatory way to prevent venire member 8 from serving on the jury
because of her gender. Id.
11
The State has previously shown that Appellant’s claim of striking venire
member 8 because of her employment in the health care field is pretextual. Supra
Section B(1).
3. Appellant’s proffered neutral reason for striking
Venire Member 15 was clearly pretextual when
given the chance to verify that she was the
individual he was speaking about, counsel chose
not to ask her any questions.
The reason Appellant claimed to exercise a peremptory strike against venire
member 15 was that: 1) she had a reputation for sheltering animals and would hang
anyone who abused animals; 2) Appellant’s counsel thought he or his wife might
have donated money to her in the past to help shelter animals; and 3) Appellant’s
counsel thought she might not make a very good juror. RR3/87–88. When the
State challenged that the venire member 15 was a sixty-nine year old female who
did not even know Appellant’s counsel based on her answers at voir dire,
Appellant qualified his response with the statement that trial counsel did not even
know if she was the same person he referred to. RR3/59–60 and 95, lines 20–21.
When given the opportunity to ask the venire member questions to establish if she
was this person, Appellant’s trial counsel declined. RR3/95, lines 20–21.
4. Appellant’s proffered neutral reasons for striking
Venire Member 35 were pretextual in that he did
not strike all members who lived in Quinlan nor
did he strike all members who had prior jury
service.
12
At first Appellant counsel stated that he struck venire member 35 because he
felt like the prosecutor knew her. RR3/89, lines 1–6. The State explained that they
did not know this venire member. RR3/89, lines 1–6. In fact, the attorney
representing the State identified all the panel members they knew and none of the
jurors who served in this case knew the State, the victim, Appellant or his counsel.
RR3/59–60; 28,911/CR1/78. 28,912/CR1/98. Furthermore, when asked by both
the trial court and counsel if any of the panel members knew anything about this
case, venire member 35 did not raise her hand or indicate in any way she knew any
information about this case. RR3/28–29 and 59–60.
Next Appellant explained that venire member 35 was struck because she
lived in Quinlan, the town where the offense occurred. RR3/89/lines 6–16. The
State argued that when the panel was addressed, this venire member did not state
that she knew the parties, victim, or any information about the case. RR3/28–29
and 59–60.
As proof that Appellant’s claim of striking venire member 35 because she
lived in Quinlan was pretextual- the trial court had before it the jury
cards/questionnaires from the February 3, 2014 panel. 28,911/CR1/63–78.
28,912/CR1/93–98. See also Supplemental Clerk’s Record in both cases. Id.
Venire member 19 lives in Quinlan and served on this jury without any strike or
13
objection by Appellant. Venire member 55 also lived in Quinlan and was not
struck by Appellant. Id.
As further proof that Appellant’s excuse for striking venire member 35
because she lives in Quinlan was pretextual- the trial court had the jury
cards/questionnaires from the venire panel in this case on January 27, 2014.
28,911/CR1/60–75. 28,912/CR1/63–78; See also Supplemental Clerk’s Record in
both cases. The following venire members lived in Quinlan and were seated as
jurors without being struck by Appellant: 1) venire member 6; 2) venire member
24; and 3) venire member 30. Id.
Appellant’s final reason for striking venire member 35 was that she had
served on criminal juries before and reached a verdict. RR3/89, lines 6–16. The
State established that venire member 35 was a sixty-six year old female and
asserted that Appellant used a strike against her to keep another female off the jury.
RR3/97, lines 9–25.
As proof that Appellant’s claim of striking venire member 35 because she
previously served on a jury was pretextual- the trial court had before it the jury
cards/questionnaires from the February 3, 2014 panel. 28,911/CR1/63–78.
28,912/CR1/93–98; Trial Defense Exhibit 1; See also Supplemental Clerk’s
Record in both cases. Venire member 6 served on the jury and had also served as
a prior juror in a civil case, yet Appellant did not use a strike on him. Id.
14
Appellant also did not strike venire member 50 who had served on both civil and
criminal juries. Id. Although Appellant did use a strike against venire member 15
(who was later re-instated to the jury) he did not strike her because she had
previously served on a criminal jury. Id.; RR3/87–88. Appellant also stuck venire
member 41 but did not use her prior service on a criminal jury as a reason for
striking her. RR3/89, lines 20–24.
As further proof that Appellant’s excuse for striking venire member 35
because she previously served on a jury was pretextual- the trial court had the jury
cards/questionnaires from the venire panel in this case on January 27, 2014.
28,911/CR1/60–75. 28,912/CR1/63–78. See also Supplemental Clerk’s Record in
both cases. The following panel members were not struck by Appellant and
served on the jury even though they had prior jury service: 1) venire member 6;
and 2) venire member 27. Furthermore, venire member 11 had prior jury service
and was not struck by Appellant.
5. Appellant’s proffered neutral reason for striking
Venire Member 41 was clearly pretextual because
counsel chose not to call the panel member and ask
if she even knew about the incident at Blockbuster.
The reason Appellant claimed to exercise a peremptory strike against venire
member 41 was that: 1) she looked familiar; and 2) Appellant’s counsel thought at
first that he might have had negative dealings with her at Blockbuster but then said
she may have just been in the store when the confrontation occurred. RR3/89,
15
lines 20–24 and 98, lines 16–21. When the State challenged that the venire
member 41 was a forty-one year old female who did not even know Appellant’s
counsel based on her answers at voir dire, Appellant qualified his response stating
that he did not know if she was the one who he confronted or if she was there at all
when this occurred. RR3/59–60 and 98, lines 16–21. Appellant’s counsel could
not say this panel member was directly involved in his encounter at Blockbuster
and when given the opportunity to ask the venire member questions to establish if
she was there, Appellant’s trial counsel declined. RR3/98, lines 22–24.
6. Appellant’s proffered neutral reason for striking
Venire Member 48 were pretextual in that he did
not strike all members who lived in Quinlan.
Appellant explained that venire member 48 was struck because she lived in
Quinlan, the town where the offense occurred. RR3/99, lines 9–12. The State
argued that: 1) venire member 48 was a forty-eight year old female; 2) when the
panel was addressed, this venire member did not state that she knew the parties,
victim, or any information about the case; and 3) venire member 19 was from
Quinlan and served on the jury without being struck by Appellant. RR3/28–29,
59–60, and 99, lines 2–16.
The State has previously shown that Appellant’s claim of striking venire
member 48 because she lives in Quinlan is pretextual. Supra Section B(4).
C. Based upon the evidence presented, arguments, the court’s
record, and voir dire, the trial court found that Appellant
16
purposefully discriminated against six of the female venire
members when he exercised peremptory strikes to keep them off
the jury because of their gender.
The trial court took judicial notice that the prior jury selected in this case
was comprised mainly of men. RR3/90, lines 22–25. In fact, the jury from the
week before consisted of nine men and four women (including the alternate).
28,911/CR1/60–75. 28,912/CR1/63–78. See also Supplemental Clerk’s Record in
both cases. Furthermore, the reasons provided by Appellant for striking female
jurors were obviously pretextual in that other jurors with the same criteria were not
struck by the defense. See supra Section B. Specifically, the excuse of striking
potential jurors because they were in the health care field had no merit because
three venire members from the February 3rd panel had the same criteria as did three
jurors and two venire members from the January 27th panel and none of them were
struck by Appellant. Id. 12
Appellant’s excuse of striking panel members because they had family
members in law enforcement had no credence when there were three jurors and
five other panel members in the February 3rd panel as well as two jurors and one
venire member in the January 27th panel who were in the same situation but were
not struck by Appellant. Id.
Appellant’s excuse of striking panel members because they lived in Quinlan
also did not hold up when compared to the other panel members who lived in
17
Quinlan and were not struck by Appellant. Id. On the February 3rd panel there
was one juror and one venire member who lived in Quinlan and were not struck by
Appellant. Id. On the January 27th panel there were three jurors who lived in
Quinlan but were not struck by Appellant. Id.
Appellant’s excuse that he struck potential jurors because of prior jury
service had no merit when multiple other panel members had served on juries but
were not struck by Appellant. Id. From the February 3rd panel one juror and three
venire members had prior jury service. Id. Two of those venire members were
struck by the defense but for other reasons. Id. During the January 27th panel two
jurors and one venire member had prior jury service and were not struck by
Appellant. Id.
Based upon all the evidence, arguments, voir dire and court’s record, the
trial court found a “series of deliberate and intentional discrimination based on
these prospective jurors being female.” RR3/99, lines 17–20. The court then
denied Appellant’s discriminatory use of peremptory strikes against venire
members 5, 8, 15, 35, 41 and 48. RR3/99, lines 17–25. These venire members
were re-instated to the panel and venire members 5, 8, 15, and 35 made it on the
jury. 28,911/CR1/75; 28,912/CR1/78.
STATE’S RESPONSE TO POINT OF ERROR SEVEN
Neither the parties, nor the trial court viewed the documents
marked as Appeal Defense exhibit 2; therefore, Appellant’s
18
counsel could not have made any argument based off those
documents and did not commit ineffective assistance of counsel.
Argument and Authorities
In order to prevail on a claim that counsel was ineffective, appellant must
prove that: (1) his counsel’s representation was deficient; and (2) the deficient
performance was so serious that it prejudiced his defense. That is, appellant must
prove by a preponderance of the evidence that counsel’s representation fell below
the standard of prevailing professional norms and there is a reasonable probability
that, but for counsel’s deficiency, the result of the trial would have been different.
See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 674 (1984);
Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).
The review of counsel’s representation is highly deferential, and the Court
should indulge a strong presumption that counsel’s conduct falls within a wide
range of reasonable representation. Strickland, 466 U.S. at 689. The burden is on
the appellant to overcome that presumption by identifying the acts or omissions of
counsel that are, alleged to have constituted the ineffective assistance and to
affirmatively prove that they fall below the professional norm or reasonableness.
Jackson v. State, 973 S.W.2d 954 (Tex. Crim. App. 1998). Additionally, appellant
must prove that counsel’s errors, judged by the totality of the representation,
denied him a fair trial. Merely showing that they had some conceivable effect on
19
the proceedings is inadequate to prevail on a claim of ineffective assistance of
counsel. Strickland, 466 U.S. at 693.
In evaluating the first prong of the Strickland inquiry, appellant must rebut
the presumption that counsel’s representation was competent by proving that the
challenged assistance was not sound trial strategy; Kimmelan v. Morrison, 477
U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed. 305 (1986) (citing Strickland, 466 U.S. at
688-689); Johnson v. State, 959 S.W.2d 230, 236-237 (Tex.App.-Dallas 1997, no
pet.). The court must not second-guess through hindsight the strategy of counsel at
trial; nor should the fact that another attorney might have pursued a different
course of action support a finding of ineffectiveness. Blott v. State, 588 S.W.2d
588, 592 (Tex. Crim. App. 1979). The fact that another attorney, including
appellant’s counsel on appeal, might have pursued a different course of action does
not indicate that the trial attorney was ineffective. Id.
An ineffective assistance claim must be “firmly founded in the record,” and
“the record must affirmatively demonstrate” the meritorious nature of the claim.
Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). In this case,
Appellant can not cite to any properly marked portion of the trial record as proof of
deficient performance. The documents marked as Appeal Defense Exhibit 2 were
not viewed by the trial court or the parties in making a decision on strikes for this
case. SRR1 pp. 18–27. They were not used to support either the Batson claim, nor
20
the trial court’s findings, nor Appellant’s trial counsel’s use of peremptory strikes
or gender neutral reasons for striking potential jurors. Id.
The correct documents are jury cards/questionnaires prepared by the Hunt
County District Clerk’s office and offered by Appellant’s trial counsel as Defense
Exhibit 1. There are no notations by venire member 35 that anyone in her family
was a victim of crime on the corrected Defense Exhibit 1; therefore, there is no
showing that Appellant’s trial counsel performed deficiently and no proof from the
record to support Appellant’s claim of ineffective assistance of counsel.
A. Both parties agreed not to review the documents in Appeal
Defense Exhibit 2 as they were not provided to the parties until
after both sides had already exercised peremptory strikes.
Trial counsel for both sides made the strategic decision not to review
the documents in Appeal Defense Exhibit 2. SRR1 p.27, lines 8–19. Both
parties agreed to forgo any potential information that may have benefited or
hindered either party from the documents in Appeal Defense Exhibit 2. Id.
As each party gave up the same right of access and information, trial counsel
made a strategic decision and chose not to make the items in Appeal Defense
Exhibit 2 part of the trial record because they were not reviewed by the
parties or the trial court and not used in the case at all. SRR1 pp.18–27.
B. Appellant’s trial counsel was not ineffective because he stated
the reasons he exercised a peremptory strike against venire
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member 35 and there is no showing that the outcome of the
case would have been different as venire member 35 stated that
she would be a fair and impartial juror in this case.
Appellant’s counsel gave the trial court his reasons for using a peremptory
strike against venire member 35. RR3/89, lines 1–16. The panel members were
directly asked numerous times by the trial court and attorneys if they could be fair
and impartial in this case and venire member 35 implied that she could serve as a
fair and impartial juror. RR3/23–29; 47–50, and 74–76. Furthermore, the trial
court specifically ask the panel members if any of them had an experience that
would prevent them from being fair and impartial in an aggravated sexual assault
case and venire member 35 did not raise her hand or speak out. RR3/25–26.
Finally, there is nothing in the voir dire or in her answers that shows venire
member 35 would hold her sister’s prior experience against Appellant. RR3/6–84.
Even when appellate counsel tried to get Mr. Fredrick Shelton, trial counsel, to
state that if he viewed the information in Appeal Defense Exhibit 2 regarding juror
35 would have made a difference at trial, Mr. Shelton indicated that he did not
know if the information would have made a difference and that trying to predict a
different outcome would be “speculation.” SRR1/p.22, lines 10–14. There is
nothing in the record to show that trial counsel was deficient in his performance.
Furthermore, there is nothing to show that the outcome of the trial would have
been different.
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Therefore, Appellant’s point of seven should be denied and Appellant’s
sentences affirmed.
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PRAYER
The State prays that the Court will affirm Appellant’s sentences.
Respectfully submitted,
NOBLE DAN WALKER, JR.
District Attorney
Hunt County, Texas
__/s/ Keli M. Aiken _____________
KELI M. AIKEN
Assistant District Attorney
P. O. Box 441
4th Floor, Hunt County Courthouse
Greenville, TX 75403
State Bar No. 240434482
(903) 408-4180
FAX (903) 408-4296
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CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT
In accordance with Texas Rules of Appellate Procedure 9.4 (e) and (i), the
undersigned attorney or record certifies that Appellants Brief contains 14-point
typeface of the body of the brief and contains 4,949 words, and was prepared on
Microsoft Word 2007.
__/s/ Keli M. Aiken _____________
KELI M. AIKEN
First Assistant District Attorney
P. O. Box 441
4th Floor Hunt County Courthouse
Greenville, TX 75403
(903) 408-4180
FAX (903) 408-4296
State Bar No. 24043442
CERTIFICATE OF SERVICE
A true copy of the State’s brief has been emailed to Nancy Kennedy,
Appellant’s attorney, today February 2, 2015, pursuant to local rules.
__/s/ Keli M. Aiken _____________
KELI M. AIKEN
First Assistant District Attorney
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