                                                                                         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

                                                                                    21
         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.


                                                                                     22
      Therefore, Appellant’s point of seven should be denied and Appellant’s

sentences affirmed.




                                                                               23
                              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




                                                                     24
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




                                                                                   25
