NO. PD-1174-15
IN THE TEXAS COURT OF CRIMINAL APPEALS
_____________________________________________________________
HENRY ANDRE WINZER,
Appellant
V.
THE STATE OF TEXAS,
Appellee
______________________________________________________________
FROM THE FIFTH DISTRICT COURT OF APPEALS
CAUSE NO. 05-14-01079-CR
ON APPEAL FROM THE 422ND JUDICIAL DISTRICT COURT
KAUFMAN COUNTY, TEXAS
CAUSE NO. 14-00334-422-F
THE HONORABLE MICHAEL B. CHITTY PRESIDING
____________________________________________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
______________________________________________________________
GARY UDASHEN
STATE BAR NO. 20369590
gau@sualaw.com
TIFFANY ALEX TALAMANTEZ
STATE BAR NO. 24079894
tiffany@sualaw.com
SORRELS, UDASHEN & ANTON
October 19, 2015 2311 CEDAR SPRINGS ROAD
SUITE 250
DALLAS, TEXAS 75201
(214) 468-8100 Office
(214) 468-8104 Fax
ATTORNEYS FOR APPELLANT
GROUND FOR REVIEW
The Court of Appeals erred in rejecting Winzer’s Batson objection based on
an erroneous belief that the Court of Criminal Appeals has disavowed its previous
holdings in Emerson and Whitsey.
−i−
IDENTITY OF PARTIES AND COUNSEL
For Appellant Henry Andre Winzer:
Gary Udashen
Katherine Reed
Trial Counsel
Sorrels, Udashen & Anton
2311 Cedar Springs Suite 250
Dallas, Texas 75201
Gary Udashen
Tiffany Talamantez
Appellate Counsel
Sorrels, Udashen & Anton
2311 Cedar Springs Suite 250
Dallas, Texas 75201
For Appellee the State of Texas:
Marc Moffit
Shelton Gibbs
Trial Counsel
Kaufman County District Attorney’s Office
100 Mulberry Street
Kaufman, Texas 75142
Sue Korioth
Appellate Counsel
Kaufman County District Attorney’s Office
100 Mulberry Street
Kaufman, Texas 75142
Trial Judge:
Judge Michael B. Chitty
422nd Judicial District Court of Kaufman County, Texas
−ii−
TABLE OF CONTENTS
Page
GROUND FOR REVIEW ........................................................................................i
IDENTITY OF PARTIES AND COUNSEL ......................................................... ii
TABLE OF CONTENTS ................................................................................... iii-iv
INDEX OF AUTHORITIES ............................................................................... v-vi
STATEMENT REGARDING ORAL ARGUMENT ............................................. 1
STATEMENT OF THE CASE ................................................................................ 2
STATEMENT OF THE PROCEDURAL HISTORY ......................................... 2-4
GROUND FOR REVIEW .......................................................................................4
The Court of Appeals erred in rejecting Winzer’s Batson objection
based on an erroneous belief that the Court of Criminal Appeals has
disavowed its previous holdings in Emerson and Whitsey.
ARGUMENT ....................................................................................................... 4-5
STANDARD OF REVIEW .....................................................................................4
APPLICABLE LAW ........................................................................................... 4-8
A. Juror Long ..................................................................................... 8-11
B. Grant v. State ............................................................................... 11-15
C. Juror Mitchell .............................................................................. 15-19
D. Juror Pickron ................................................................................. 19-21
CONCLUSION AND PRAYER ...........................................................................21
−iii−
CERTIFICATE OF SERVICE ..............................................................................22
CERTIFICATE OF COMPLIANCE .....................................................................23
APPENDIX ..........................................................................................................24
−iv−
INDEX OF AUTHORITIES
Cases Page
Batson v. Kentucky, 476 U.S. 79 (1986) ........................................................2, 3, 4, 5
Blackman v. State, 414 S.W.3d 757 (Tex. Crim. App. 2013)......................5, 6, 7, 18
Cooper v. State, 791 S.W.2d 80 (Tex. Crim. App. 1990) ......................................19
Emerson v. State, 851 S.W.2d 269 (Tex. Crim. App. 1993) 4, 8, 10, 13, 15, 17. 21
Grant v. State, 325 S.W.3d 655 (Tex. Crim. App. 2010) ............................ 10, 11-13
Johnson v. California, 545 U.S. 162 (2005) .............................................................. 6
Miller-El v. Dretke, 545 U.S. 231 (2005) ..............................................................18
Moeller v. Blanc, 276 S.W.3d 656 (Tex. App. – Dallas, 2008, pet. ref’d.) ............... 6
Musick v. State, 862 S.W.2d 794 (Tex. App. – El Paso, 1993) ............................... 9
Purkett v. Elem, 514 U.S. 765 (1995) ..................................................................6, 18
Shuffield v. State, 189 S.W.3d 782 (Tex. Crim. App. 2006) ..................................... 6
Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203 (2008)....................................... 5
United States v. Williamson, 533 F.3d 269 (5th Cir. 2008) ..................................... 5
Walker v. State, 859 S.W.2d 566 (Tex. App. – Waco 1993, pet. ref’d) .................. 9
Whitsey v. State, 796 S.W.2d 707 (Tex. Crim. App. 1990) ...........4, 9, 10, 11, 13, 19
Williams v. State, 804 S.W.2d 95 (Tex. Crim. App. 1991) ....................................... 5
Winzer v. State, No. 05-14-01079-CR, 2015 WL 4931418
(Tex. App. – Dallas, August 18, 2015) ................................................................3, 11
−v−
Codes and Rules
TEX. CODE. CRIM. PRO. ANN. art. 35.261 ...........................................................3, 5, 6
TEX. PEN. CODE § 22.02(a)(2) ....................................................................................2
TEX. PEN. CODE § 22.01(b)(1) ...................................................................................2
TEX. R. APP. P. 66.3(c) ...............................................................................................5
Constitutional Provisions
U.S. CONST. amend. XI ..............................................................................................3
U.S. CONST. amend. XIV ...........................................................................................3
Miscellaneous
Gilad Edelman, Why is it so Easy for Prosecutors to Strike Black Jurors?, The
New Yorker, June 5, 2015 .......................................................................................14
Melissa Longamore, Study Reveals Illegal Racial Discrimination in Jury Selection,
Marquette University Law School Faculty Blog,
http://law.marquette.edu/facultyblog/2010/07/20/study-reveals-illegal-racial-
discrimination-in-jury-selection/..............................................................................14
−vi−
STATEMENT REGARDING ORAL ARGUMENT
Winzer believes that oral argument will be helpful to this Court to resolve the
issue raised because it is both fact intensive and raises an important question of law.
The question of whether Batson v. Kentucky will be taken seriously in Texas is
directly raised by this case and oral argument will help to reach a just resolution of
this question.
Appellant’s Petition for Discretionary Review - Page 1
STATEMENT OF THE CASE
This case involved a group of white and Hispanic police officers who shot and
killed Winzer’s son. As a result, Winzer, who was emotional and distraught,
wound up in a struggle with these officers. Winzer, who is African American, was
ultimately tried by an all white jury. The reason he was tried by an all white jury
is that there were only three black jury veniremembers within the strike zone and the
state used three of its ten peremptory strikes to strike these three potential jurors.
STATEMENT OF THE PROCEDURAL HISTORY
On June 27, 2013, Winzer was charged by indictment with assault on a public
servant. (CR: 125); See TEX. PEN. CODE § 22.01(b)(1). On February 21, 2014, a
second indictment was filed charging Winzer with aggravated assault with a deadly
weapon against a public servant. (CR: 8); see TEX. PEN. CODE § 22.02(a)(2). The
state proceeded on the second indictment, Winzer pleaded not guilty, and a jury trial
was held July 28, 2014 through July 30, 2014. (RR2: 9, RR3: 2).
On July 28, 2014, jury selection began. There were three African-American
venire members on the jury panel. The State struck all three. At the conclusion of
voir dire, after learning that the State has used three of their ten preemptory strikes
to strike all of the potential African-American jurors, defense counsel made a Batson
objection. (RR3: 208-09); Batson v. Kentucky, 476 U.S. 79, 89, 106 (1986).
The court held a Batson hearing. (RR3: 208-13). As to venire member Long,
the State said she was struck because she was a teacher and teachers are “more
sympathetic, generally speaking.” (RR3: 209, 211). As to venire member Mitchell,
Appellant’s Petition for Discretionary Review - Page 2
the State claimed she was struck because she “had issues with the police” and that
they struck everyone who had issues with law enforcement. (RR3: 209, 211-12).
Based on these explanations, the trial court overruled Winzer’s Batson challenge and
he proceed to trial with an all white jury. (RR3: 213)
On July 30, 2014, the jury found Winzer guilty of aggravated assault on a
public servant. (RR5: 46). Following the verdict, pursuant to a plea agreement
between Winzer and the State, the trial court sentenced Winzer to five years
imprisonment in the Texas Department of Corrections. (RR5: 51). Winzer timely
filed notice of appeal and a motion for new trial. (CR: 88, 93). In his motion for new
trial, Winzer argued that the state violated Batson, as well as the Texas Code of
Criminal Procedure, and the equal protection and due process clauses of the United
States Constitution by exercising its preemptory strikes based on race. (CR: 93); see
Batson, 476 U.S. at 89; TEX. CODE CRIM. PRO. Art. 35.261; U.S. CONST. amend. XI,
XIV. On September 29, 2014, the trial court held a hearing on Winzer’s motion for
new trial and the State re-urged the explanations provided during trial regarding the
use of their preemptory strikes. (RR6: 1, 6-11). Later that same day, the court denied
Winzer’s motion without specific findings. (CR: 123).
On appeal, Winzer argued that the trial court clearly erred in denying his
Batson challenges. Winzer v. State, No. 05-14-01079-CR, 2015 WL 4931418 (Tex.
App. – Dallas, August 18, 2015). The Court of Appeals affirmed Winzer’s
conviction finding that the State provided adequate race-neutral explanations for
Appellant’s Petition for Discretionary Review - Page 3
striking both venire member Long and Mitchell. Id. With regard to venire member
Long, the Court of Appeals concluded that the State’s reason “did not become
impermissible because the State did not individually question Long.” No motion for
rehearing was filed.
GROUND FOR REVIEW
The Court of Appeals erred in rejecting Winzer’s Batson objection
based on an erroneous belief that the Court of Criminal Appeals
has disavowed its previous holdings in Emerson and Whitsey.
ARGUMENT
This case demonstrates that, while progress has been made in the question of
racial discrimination in jury selection, the practices that led to the issuance of Batson
v. Kentucky1 remain a part of our criminal justice system.
By affirming the trial court’s denial of Winzer’s Batson challenge, the Court
of Appeals has divested Batson of its intended effect by affirming the use of
pretextual explanations for peremptory strikes. The Court of Appeals apparently
believes that this Court’s earlier holdings in Emerson v. State, 851 S.W.2d 269, 273
(Tex. Crim. App. 1993) and Whitsey v. State, 796 S.W.2d 707 (Tex. Crim. App.
1990) have been overruled or disavowed by this Court. Therefore, the Court of
Appeals affirmed the State’s use of peremptory strikes in a manner previously held
invalid by this Court. The Court of Appeals ruling is clearly incorrect if Emerson
1 Batson v. Kentucky, 476 U.S. 79 (1986).
Appellant’s Petition for Discretionary Review - Page 4
and Whitsey are still good law. Thus, this Court should grant review to clarify
whether the holdings in Emerson and Whitsey remain good law. TEX. R. APP. P.
66.3(c). If so, the State’s exercise of their peremptory strikes violated Winzer’s
rights under Batson and the Texas Code of Criminal Procedure and this Court should
reverse and remand Winzer’s case for a new trial. TEX. CODE. CRIM. PRO. ANN. art.
35.261. If the Court of Appeals is correct, and this court’s strong response to
Batson in its cases from the 1990’s are no longer operative, this should be clearly
stated by the Court of Criminal Appeals.
STANDARD OF REVIEW
On appeal, the resolution of a Batson issue is reviewed for clear error.
Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991). This Court should
consider the voir dire record as a whole. Blackman v. State, 414 S.W.3d 757, 764-
65 (Tex. Crim. App. 2013). While, great deference is afforded to a trial court’s
determination that a racially neutral explanation is genuine and not pretext, “the
Supreme Court has made plain that appellate review of alleged Batson errors is not
a hollow act.” Id; United States v. Williamson, 533 F.3d 269, 274 (5th Cir. 2008)
(applying clear error standard of review to a district court’s Batson ruling) (citing
Snyder v. Louisiana, 552 U.S. 472, 128 S.Ct. 1203, 1207 (2008)).
APPLICABLE LAW
“The Equal Protection Clause forbids the prosecutor challenging potential
jurors solely on account of their race.” Batson, 476 U.S. at 89. Likewise, the Texas
Appellant’s Petition for Discretionary Review - Page 5
Code of Criminal Procedure prohibits the use of preemptory challenges to exclude
prospective jurors on the basis of race. TEX. CODE. CRIM. PRO. ANN. art. 35.261
(West 2006). “The exclusion of even one juror for prohibited reasons invalidates the
entire-jury selection process, so a trial court’s erroneous denial of a Batson challenge
always requires a new trial.” Moeller v. Blanc, 276 S.W.3d 656, 659 (Tex. App. –
Dallas, 2008, pet. ref’d.).
When a Batson challenge is raised, a three-step process is employed to resolve
the objection. See Blackman v. State, 414 S.W.3d 757, 764 (Tex. Crim. App. 2013).
First, the party challenging the use of preemptory strikes must establish a prima facie
case of racial discrimination. Shuffield v. State, 189 S.W.3d 782, 785 (Tex. Crim.
App. 2006). Next, the proponent of the strike must offer a race-neutral explanation
for the strike. Id. The first two steps of a Batson hearing are merely evidentiary and
the proponent of the strike need only offer an explanation that is racially neutral on
its face. Johnson v. California, 545 U.S. 162, 171 (2005); see also Purkett v. Elem,
514 U.S. 765, 767 (1995). In the third step of the Batson process, the court must then
consider the plausibility of the explanation provided and decide whether the
opponent of the strike has satisfied his burden of persuasion “to establish by a
preponderance of the evidence that the strike was indeed the product of purposeful
discrimination.” Blackman, 414 S.W.3d at 764; see also Purkett, 514 U.S. at 768 (“It
is not until the third step that the persuasiveness of the justification [for the
preemptory strike] becomes relevant”).
Appellant’s Petition for Discretionary Review - Page 6
Therefore, whether a race-neutral explanation was merely pretextual is a
question of fact for the court to consider in the third step of the Batson process.
Blackman, 414 S.W.3d at 764. This Court has explained,
“After a prosecutor gives nondiscriminatory reasons for striking
prospective minority jurors from the venire, the trial judge must
determine whether these facially neutral explanations are contrived to
avoid admitted acts of discrimination. This must be done because a
prosecutor, although not intentionally discriminating, may try to find
reasons other than race to challenge a black juror, when race may be his
primary factor in deciding to strike the juror. The trial judge as
supervisor of the voir dire is in a position to readily perceive
discrepancies during the jury selection process. Evaluation of the
prosecutor’s state of mind based on demeanor and credibility lies
peculiarly within the province of the trial court. The trial judge may not,
however, merely accept the specific reasons given by the prosecutor at
face value. . .
In Keeton, we presented a non-exclusive list of factors which
tend to show that the reasons or explanations given by the prosecutor
are merely sham or pretext. Presence of these factors also weighs
against the legitimacy of a race-neutral explanation for the use of
peremptory strikes. Additionally, this type of evidence tends to show
that the State’s reasons for using peremptory strikes are not actually
supported by the record or are impermissible pretext. Such evidence
may include, an explanation based on a group bias whether the group
trait is not shown to apply to the challenged juror specifically.”
Emerson v. State, 851 S.W.2d 269, 273 (Tex. Crim. App. 1993).
(internal citations omitted); see also Whitsey v. State, 796 S.W.2d 707
(Tex. Crim. App. 1989) (finding the prosecutor’s race-neutral
explanation, that venire member was a teacher and he believed teachers
to be more liberal, impermissible where such a group trait was not
shown to apply to the challenged juror).
The non-exhaustive list of factors to be considered in determining whether a
prosecutor’s reason for using peremptory strikes are impermissible pretext includes:
1. The reason given for the peremptory challenge is not related to the facts of the
Appellant’s Petition for Discretionary Review - Page 7
case;
2. There was a lack of questioning to the challenged juror or a lack of meaningful
questions;
3. Disparate treatment – persons with the same or similar characteristics as the
challenged juror were not struck;
4. Disparate examination of members of the venire
5. An explanation based on a group bias where the group trait is not shown to
apply to the challenged juror specifically. Id.
The trial court erroneously accepted the State’s clearly pretextual “race-
neutral” explanation for striking venire members Long, Mitchell, and Pickron
denying Winzer’s Batson objection, without making any specific findings on the
record – at trial or in the court’s denial of Winzer’s motion for a new trial on the
same grounds. The trial court’s denial of Winzer’s Batson challenge was clearly
erroneous under applicable case law. Furthermore, the court of appeals evidenced a
belief that holdings from “cases decided shortly after Batson” – Emerson and
Whitsey – have been overruled.
A. Juror Long
Here, with respect to venire member Long the State used, as an impermissible
pretext, the fact that Long is a teacher and teachers are allegedly more sympathetic
when there is nothing in the record to support the conclusion that the group trait
applied to Long. See Emerson, 851 S.W.2d at 274 (occupation based explanation for
Appellant’s Petition for Discretionary Review - Page 8
peremptory strike was not legitimate where the State applied a group bias without
determining whether it applied to venire member specifically); see also Whitsey, 796
S.W.2d at 714-16 (finding the prosecutor’s race-neutral explanation, that venire
member was a teacher and he believed teachers to be more liberal, impermissible
where such a group trait was not shown to apply to the challenged juror); Musick v.
State, 862 S.W.2d 794, 802 (Tex. App. – El Paso, 1993) (it is not legitimate to apply
an occupation-based, group bias to a prospective juror without inquiring whether the
bias applies specifically to the venireperson and the trial court erred by accepting the
purported rationales); Walker v. State, 859 S.W.2d 566, 570 (Tex. App. – Waco
1993, pet. ref’d) (noting that in Emerson the court held that a group bias not shown
to apply to the stricken venire member was “insufficient as a matter of law to rebut
appellant’s prima facie showing of racial discrimination in the jury selection
process”) (Vance, J., dissenting).
A review of the record establishes that the State did not ask any questions of
Long to determine whether the purported group trait – being sympathetic – applied
to her and the record, in fact, supports the opposite conclusion. 2 The only
communication with Long during voir dire occurred during a discussion about the
range of punishment, when the State asked each juror individually if they could
2 The Court of Appeals also noted that Winzer chose not to cross-examine the prosecutor
concerning the reason for his strikes. Of course, once the prosecutor stated his reasons it was
apparent that his reasons were violative of Batson and cross examination was unnecessary.
Appellant’s Petition for Discretionary Review - Page 9
consider the entire range of punishment and Long responded, “Yes.” (RR3: 68).
Neither the State nor the defense asked Long any specific questions nor did she offer
any additional information on any other topic during voir dire. (RR3: 29-208). The
State did not ask Long any questions regarding her sympathetic nature. Id. While a
lack-of-questioning by itself is not dispositive, it is a factor to be considered under
Emerson and Whitsey, both of which found that a group bias is an impermissible
pretext unless it is shown to apply to the stricken juror. See Grant v. State, 325
S.W.3d 655, 659 (Tex. Crim. App. 2010); see Emerson, 851 S.W.2d at 274; see also
Whitsey, 796 S.W.2d at 714-16.
Furthermore, the limited record available with regard to Long would
undermine the State’s alleged explanation that she may be sympathetic. For
example, the State questioned the panel as a whole about sympathy asking,
“[H]ow many of you all believe you have a very sensitive heart, you
may have a problem applying the law to the facts? If you’ll feel so
sympathetic under a circumstance that you would not be able to follow
the law even if you feel sorry for a person? Anybody just knows
himself, very sensitive to those kinds of things.” (RR3: 85).
Long did not identify herself as having a sensitive heart. (RR3: 85).
Furthermore, during the defense’s voir dire, Long affirmed her ability to consider
the entire range of punishment, probation to 99 years, which belies the idea that she
is somehow particularly sensitive. (RR3: 119).
In Whitsey, this court held,
“[T]he prosecutor’s reasoning for striking one black female who
Appellant’s Petition for Discretionary Review - Page 10
was a teacher was based on a group bias not shown to apply to the
challenged juror. The prosecutor opined that this prospective juror was
liberal because of her occupation. The prosecutor also stated that he
struck another black female because he believed she was liberal
because of her husband’s occupation as a nurse’s assistant. The
prosecutor, however, did not ask any questions of either juror which he
peremptorily challenged; not did these jurors respond to any questions
by defense counsel. The record of voir dire is devoid of any testimony
[sic] which indicates that these two black prospective jurors were
“liberal” because of their occupations. This reason appears to be a class
example of an explanation based on a group bias where the group trait
is not shown to apply to the challenged juror specifically.” Whitsey, 796
S.W.2d at 716.
Likewise, in this case, the prosecutor allegedly struck Long because she was
a teacher and he believed teachers to be sympathetic. (RR3: 209). However, there is
nothing in the record to support the conclusion that Long is sympathetic. Rather, this
is a “classic example of an explanation based on a group bias where the group trait
is not shown to apply to the challenged juror specifically.” Whitsey, 796 S.W.2d at
716.
B. Grant v. State
In affirming the trial court’s denial of Winzer’s Batson challenge to Long, the
Court of Appeals erroneously relied on Grant v. State, where this Court held that a
lack-of-questioning is not dispositive, to implicitly find that a pretext based on a
group trait not shown to apply to the stricken juror is permissible. Grant, 325 S.W.3d
at 661. The Court of Appeals ignored precedent set by this Court in Emerson and
Whitsey. See Winzer v. State, No. 05-14-01079-CR, 2015 WL 4931418 (Tex. App.
– Dallas, August 18, 2015); see also Grant v. State, 325 S.W.3d 655, 659 (Tex. Crim.
Appellant’s Petition for Discretionary Review - Page 11
App. 2010). The State argued and the Court of Appeals accepted that the application
of a group bias is valid even in the absence of additional questioning, relying on the
Court’s holding in Grant. However, Emerson, and Whitsey, although decided shortly
after Batson, are still good law to this day and hold the opposite.
The Grant case, relied upon by the Court of Appeals, is not applicable to this
case because it did not concern the application of a group bias and is factually
distinguishable. In Grant, following a Batson challenge, the State explained that it
struck a prospective juror because he indicated that his wife worked for the same
company as the defendant’s girlfriend. Grant, 325 S.W.3d at 657. On appeal, the
defendant complained that the State failed to conduct any further inquiry of the
stricken venire member to see if any relationship between his wife and the
defendant’s girlfriend actually existed. Id. Reversing the Court of Appeals, this
Court found that the Court of Appeals “should not have given dispositive weight to
the lack-of-questioning factor [found in Keeton and Whitsey].” Id at 660-61.
However, this Court also declined to adopt “the State’s more extreme
proposition that basing reversal exclusively on a lack of questioning is wrong.” Id at
660 (internal quotations omitted). Rather, this Court correctly found that,
“[C]ategorically requiring more than the lack-of-questioning factor would be
incompatible with Keeton’s and Whitsey’s characterization of the factors as
nonexclusive illustrations of the types of evidence that can be considered – just as it
would be inconsistent to allow the lack-of-questioning factor to be dispositive.” Id.
Appellant’s Petition for Discretionary Review - Page 12
The Court of Appeals in this case incorrectly considered the holding in Grant
as an implicit overruling of earlier holdings in Emerson and Whitsey, which found
that a prosecutor’s use of a group bias as an explanation for striking a potential juror
is illegitimate when that group trait was not shown to apply the potential juror. See
Emerson, 851 S.W.2d at 274 (occupation based explanation for peremptory strike
was not legitimate where the State applied a group bias without determining whether
it applied to venire member specifically); see also Whitsey, 796 S.W.2d at 714-16
(finding the prosecutor’s race-neutral explanation, that venire member was a teacher
and he believed teachers to be more liberal, impermissible where such a group trait
was not shown to apply to the challenged juror). In these cases, as with Winzer’s
Batson challenge to venire member Long, it is not the lack of questioning that is
dispositive. Rather the lack of questioning is evidence, considered in connection
with the illegitimate group bias explanation, which demonstrates an impermissible
pretext. The Court of Appeals effectively ignored the group bias issue, presumably
believing it to no longer stand as good law because “it was decided shortly after
Batson.”
If the Court of Appeals decision in this case is allowed to stand it effectively
eviscerates earlier holdings in Emerson and Whitsey by erasing the group bias factor
from consideration. The Court of Appeals entirely ignored this facet of Winzer’s
Batson challenge to Long, which implicates this Court’s holdings in Emerson and
Whitsey. Although these cases were “issued shortly after Batson” they continue to
Appellant’s Petition for Discretionary Review - Page 13
represent good law that is necessary to ensure equal protection under the law. The
State and Court of Appeals would have this Court treat Batson as out-of-date or
unnecessary, but this case demonstrates the very real need for the continuing
protection intended by Batson and its progeny.
The improper use of race in jury selection continues to be a very real problem
in our judicial system. See Gilad Edelman, Why is it so Easy for Prosecutors to Strike
Black Jurors?, The New Yorker, June 5, 2015. For example, a 2010 study conducted
by the Equal Justice Initiative documented discrimination in jury selection in each
of the eight states profiled for the study. Id. According to this study, “what trial
judges accept as adequate race-neutral explanations is one of the core problems.”
Melissa Longamore, Study Reveals Illegal Racial Discrimination in Jury Selection,
Marquette University Law School Faculty Blog,
http://law.marquette.edu/facultyblog/2010/07/20/study-reveals-illegal-racial-
discrimination-in-jury-selection/. This Court too, anticipated the potential for
prosecutors to evade the true intent of Batson, noting:
“We do not believe, however, that Batson is satisfied by neutral
explanations which are not more than facially legitimate, reasonably
specific and clear. Were facially neutral explanations sufficient without
more, Batson would be meaningless. It would take little effort for
prosecutors who are of such a mind to adopt rote “neutral
explanations” which bear facial legitimacy but conceal a
discriminatory motive. We do not believe the Supreme Court intended
a charade when it announced Batson.” Keeton v. State, 749 S.W.2d
861, 865 (Tex. Crim. App. 1988).
Here, the record establishes that the prosecutor’s explanations for striking
Appellant’s Petition for Discretionary Review - Page 14
every African-American venire member, while facially neutral, are wholly
unsupported by the record.
C. Juror Mitchell
With regard to venire member Mitchell, the State allegedly struck her because
she had “issues with law enforcement.” (RR3: 209). However, the trial court’s
acceptance of that explanation is clearly erroneous because it is unsupported by the
record, which demonstrates that the State treated white venire members disparately
with regard to negative law enforcement sentiments. See Emerson, 851 S.W.2d at
274 (finding a prosecutor’s reasons pretextual and insufficient as a matter of law
where the record reflects that the prosecutor did not strike white venire members
with the same or similar characteristics relied upon in striking minority venire
members). The State’s unsupported strike of Mitchell and Pickron is further
evidence of the true discriminatory intent of the State in striking every potential
African-American juror in this case.
At the conclusion of voir dire, after the State announced its peremptory strikes,
Winzer made a Batson objection based on the state’s use of three of their ten
peremptory strikes to strike all three African-American venire members. (RR3: 208-
09). With regard to Mitchell, the prosecutor explained that he struck her because she
“had issues with the police.” (RR3: 209). That explanation is unsupported by the
record. During the State’s voir dire, the prosecutor asked the panel,
“[h]ow many of you all have had an issue with a peace officer? Like
Appellant’s Petition for Discretionary Review - Page 15
you feel like a family member or yourself have been mistreated in any
way by a peace officer. You feel like the criminal justice system didn’t
treat your friend, son, husband, yourself fairly related to your case or a
close friend’s case.” (RR3: 74).
Mitchell responded “no.” (RR3: 77). At the Batson hearing, Winzer informed
the trial court that Mitchell, in fact, did not report any issues with law enforcement
as the prosecutor stated. (RR3: 210).
The State then responded that Mitchell was actually struck because she
believed that the system was unfair. (RR3: 210-211). During the State’s voir dire,
the prosecutor asked the panel, “[D]o any of you all feel like the criminal justice
system is unfair to minorities, blacks, Hispanics?” (RR3: 81). Mitchell responded,
“uh-ugh.” (RR3: 82). Based on this, the State elected to bring Mitchell in for
individual questioning following voir dire. (RR3: 174-75). The following exchanged
occurred:
“THE COURT: You are one of several jurors who said that you thought
our system might not always be fair, is that correct?
VENIREPERSON: Yes.
THE COURT: Let me just tell you that our system is not always fair. I
think we would all agree on that.
VENIREPERSON: Right.
THE COURT: The fact that sometimes the train does go off track, can
you put that aside in this case?
VENIREPERSON: Mm-hmm.
THE COURT: Consider only the evidence that you hear and see?
Appellant’s Petition for Discretionary Review - Page 16
VENIREPERSON: That’s right.
THE COURT: Follow my instructions, be fair and impartial. Can you
do those things?
VENIREPERSON: Yes, sir.
THE COURT: Mr. Gibbs.
MR. GIBBS: So the fact you stated that the system was unfair, you
won’t factor that into this case at all?
VENIREPERSON: No.
MR. GIBBS: You feel like – have there been situations or personal
experiences that make you believe that the system is not fair?
VENIREPERSON: Well, just not this system particularly. Stuff you see
on TV. Just like that guy that killed four people, then the lady shot the
gun.
MR. GIBBS: I haven’t heard about that. Can you explain?
VENIREPERSON: About the guy that killed the four people in the car
wreck, and he got probation. Then the lady shot the gun, she got 50
years, just stuff like that.
MR. GIBBS: Right. Is there something specific about the system that
you feel is unfair?
VENIREPERSON: Oh, no. (RR3: 174-75).
This exchange establishes that Mitchell did not believe that the system was
unfair and thus, the record does not support the prosecutor’s explanation for the
strike. See Emerson, 851 S.W.2d at 273 (on appellate review the inquiry is whether
the trial judge’s decision is supported by the record). It is not sufficient that the State
Appellant’s Petition for Discretionary Review - Page 17
simply provide a facially race-neutral explanation for strikes challenged under
Batson; rather the race-neutral explanation must be genuine and supported by the
record. See Purkett, 514 U.S. at 768; see also Blackman, 414 S.W.3d at 764.
The court may not simply accept a prosecutor’s reasons for challenged strikes
at face value. See Keeton, 749 S.W.2d at 868. In determining whether a prosecutor’s
stated reasons are genuine or pretext, the court may also consider the disparate
treatment of similar venire members not stricken. Here, the state stuck 100% of the
African-American venire members. (RR3: 210). The prosecutor explained that he
struck venire member Mitchell because either she “had law enforcement issues” or
because she believed that the system was unfair, which is unsupported by the record.
(RR3: 209-11).
Furthermore, two white venire members, Carr and Lowe, who ended up sitting
on the jury, both stated that they had negative experiences with law enforcement.
(RR3: 75, 76, 174, 177); See Miller-El v. Dretke, 545 U.S. 231, 241 (2005) (“If 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”). Although
he did not wind up on the jury, the State did not strike another white venire member,
Mr. Haney, who reported a bad experience with law enforcement. (RR3: 187, 210).
The prosecutor reasoned and the Court of Appeals accepted that Lowe and
Carr were not similarly situated to Mitchell because they “had objectively more
Appellant’s Petition for Discretionary Review - Page 18
benign interactions with police which they adequately explained.” But again this
ignores the fact that Mitchell did not report any negative experience with law
enforcement. (RR3: 74, 77). In summary, the State’s purported reasoning for striking
Mitchell – and not striking potential white jurors Haney, Lowe and Carr – are not
supported by the record. While, a trial court’s determination that a purported reason
is genuine and not pretext is viewed with “great deference,” it is not impenetrable
where the record as a whole shows it to be clearly erroneous. See Whitsey, 796
S.W.2d at 716 (finding that explanations for peremptory strikes against black
venirepersons not supported by the record are insufficient and cannot be afforded
such deference).
D. Juror Pickron
Finally, both the defense and the State struck juror Pickron. (RR3: 208).
However, the State’s reasoning for striking Pickron is not supported by the record,
which shows disparate treatment of venire members. Most importantly, this strike
shows the State’s discriminatory intent and goal of having an all white jury. 3 See
Cooper v. State, 791 S.W.2d 80, 84 n.2 (Tex. Crim. App. 1990) (“We note, however,
that simply because the defense exercised a peremptory challenge against the same
veniremember does not wholly refute the inference of discriminatory use of other
peremptory challenges”).
3 Juror Pickron was a detention officer at the Dallas County Jail. This is the reason Winzer
struck this juror. The fact that the state also struck this juror clearly demonstrates the state’s
intent to ensure Winzer was tried by an all white jury.
Appellant’s Petition for Discretionary Review - Page 19
As with Mitchell, the prosecutor explained that he struck Pickron because she
“had issues with the police.” (RR3: 209). However, during voir dire, the State asked
the panel,
“[h]ow many of you all have had an issue with a peace officer?
Like you feel like a family member or yourself have been mistreated in
any way by a peace officer. You feel like the criminal justice system
didn’t treat your friend, son, husband, yourself fairly related to your
case or a close friend’s case.” (RR3: 74).
Pickron, like Mitchell, responded “no.” (RR3: 77). Pickron agreed that the
system can be unfair to minorities but confirmed that she would be fair and impartial.
(RR3: 82, 172). In fact, upon questioning from defense counsel Pickron stated, “Not
that I – it’s not that I think the system is unfair. I think it doesn’t play out at times.”
(RR3: 123). Yet the state did not strike three white venire members who actually did
report negative experiences with law enforcement. In fact, venire member Lowe,
who actually ended up sitting on the jury, reported “[M]y brothers had some run-ins
with the law, makes me uncomfortable around police officers really.” (RR3: 179).
Upon further questioning, from the prosecutor, regarding her distrust for law
enforcement when asked, “So if you had to listen to a police officer testify, would it
be difficult to maybe trust that police officer,” Lowe responded “Maybe a little bit,
yes.” (RR3: 179). She further stated that her distrust of law enforcement was
potentially a problem. (RR3: 180). It is hard to reconcile the State’s explanation for
striking Mitchell and Pickron, neither of whom reported problems with law
enforcement (as the State attempted to represent they did), with the fact that Lowe,
Appellant’s Petition for Discretionary Review - Page 20
a white venireman, sat on the jury. Therefore, as with Mitchell, the State’s
explanation with regard to striking Pickron is unsupported by the record. See
Emerson, 851 S.W.2d at 274 (finding explanations for challenged strike insufficient
as a matter of law where classification used by the State to eliminate a prospective
juror was not uniformly applied to the non-black veniremembers).
CONCLUSION AND PRAYER
WHEREFORE, PREMISES CONSIDERED, Mr. Winzer prays that this
Court grant this petition for discretionary review, reverse the Court of Appeals’
opinion and reverse the judgment of conviction and remand this cause for a new
trial.
Respectfully submitted,
/s/ Gary A. Udashen
GARY A. UDASHEN
Bar Card No. 20369590
gau@sualaw.com
TIFFANY ALEX TALAMANTEZ
STATE BAR NO. 24079894
tiffany@sualaw.com
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road
Suite 250
Dallas, Texas 75201
214-468-8100
214-468-8104 (fax)
Attorneys for Appellant
Appellant’s Petition for Discretionary Review - Page 21
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the foregoing
Appellant’s Petition for Discretionary Review electronically served to the Kaufman
County District Attorney’s Office and the State Prosecuting Attorney on October 19,
2015.
/s/ Gary A. Udashen
GARY A. UDASHEN
Appellant’s Petition for Discretionary Review - Page 22
CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4(I)(3), undersigned counsel certifies that this
brief complies with:
1. the type-volume limitation of TEX. R. APP. P. 9.4(I)(2)(D) because this
petition contains 4,408 words, excluding the parts of the brief exempted by
TEX. R. APP. P. 9.4(I)(1).
2. The typeface requirements of TEX. R. APP. P. 9.4(e) and the type style
requirements of TEX. R. APP. P. 9.4(e) because this brief has been prepared
in a proportionally spaced typeface using Microsoft Word 2011 in 14-point
Times New roman.
/s/ Gary A. Udashen
GARY A. UDASHEN
Appellant’s Petition for Discretionary Review - Page 23
APPENDIX
Appellant’s Petition for Discretionary Review - Page 24
Winzer, Henry Andre
Combined Opinion