Opinion issued October 6, 2016




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-15-01056-CR
                           ———————————
                  GREGORY JAMES SHELTON, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                    On Appeal from the 23rd District Court
                          Brazoria County, Texas
                         Trial Court Case No. 71889


                         MEMORANDUM OPINION

      Appellant, Gregory James Shelton, was charged by indictment with the

offense of murder.1 Appellant pled not guilty. The jury found him guilty and

assessed punishment at life imprisonment. In two issues, Appellant argues that the


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      TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011).
trial court committed reversible error by denying his Batson challenge and that he

received ineffective assistance of counsel.

      We affirm.

                                     Background

      Appellant was charged with the murder of Edward Rivera. The trial court

appointed Cary Faden as Appellant’s trial counsel. Faden requested and obtained a

psychiatric examination of Appellant. Dr. David Axelrad and Dr. Kit Harrison

examined Appellant.

      Dr. Axelrad prepared a report. In his report, he determined that Appellant had

a history of a bipolar disorder. He also determined, however, that the disorder was

“in partial remission,” would not impair his ability to control himself during the trial,

and only “mildly impaired his ability to control his behavior.”            Dr. Axelrad

determined that Appellant also had “a prior history of Posttraumatic Stress Disorder,

but he does not exhibit any evidence of a Posttraumatic Stress Disorder based upon

[his] mental status evaluation.” In short, the doctor determined that Appellant “did

not appear to have an active form of his psychiatric disorder at the time of the

commission of the offense in this matter.”

      Dr. Harrison prepared an outline of his findings. That outline indicated that

Appellant had a history of bipolar disorder. It contained no indications of his current

mental health other than to say Appellant had “Treatable Disorders.”



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      Appellant subsequently retained Kenneth Cager as his trial counsel. As part

of wrapping up his representation, Faden turned over the information he received

about Appellant’s psychiatric evaluations to Cager.

      After voir dire, the State used a peremptory strike to exclude the only

remaining African American from the jury, identified by the parties as “Juror No.

4.” Appellant is also African American. Appellant raised a Batson challenge to the

exclusion of the potential juror, arguing there was no reason to strike him other than

his race.

      The State raised two grounds for striking the potential juror. First, the State

asserted that he wore a t-shirt with a motorcycle on it, “consistent with biker-type

wear.” The prosecutor told the trial court, “[W]e’ve had in the past with other

individuals who are associated with motorcycles and bikers and that type of thing,

is they seem to be free-spirited individuals and following the law is sometimes not

always in their first nature.”

      Second, during voir dire, the potential juror said in response to questions about

the Appellant’s right not to testify that if he (the potential juror) were the defendant,

he would want to testify. The potential juror acknowledged that this was just his

opinion and that he would not hold it against Appellant for not testifying.

Nevertheless, the prosecutor said this indicated that, despite his assurances to the




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contrary, Juror No. 4 might consider Appellant’s decision not to testify as evidence

against him. The trial court denied the Batson challenge.

        After the trial, Appellant retained new counsel, who filed a motion for new

trial. As part of the motion, Appellant argued that Cager committed ineffective

assistance of counsel for failing to introduce evidence of his bipolar disorder during

the punishment phase of the trial. Appellant introduced the report and outline

prepared by the doctors. He also introduced voluminous medical records which

indicated, among other things, a bipolar disorder diagnosis of Appellant in 2010 and

2011.

        Cager testified at the hearing. Cager stated that he did not call Dr. Axelrad or

Dr. Harrison as part of his trial strategy. He decided Appellant’s mental health was

not significant enough to raise during punishment based on conversations with

Appellant about his mental health and based on his own experience as an attorney.

                                   Batson Challenge

        In his first issue on appeal, Appellant argues that the court erred in denying

his Batson challenge because the State used a peremptory challenge to eliminate the

only remaining African American in the jury pool.

A.      Standard of Review

        The Equal Protection Clause guarantees a defendant that the State will not

exclude members from the jury venire on accounts of race, or on the false assumption



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that members of his race as a group are not qualified to serve as jurors. Batson v.

Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717 (1986) (internal citations omitted).

A defendant’s challenge to a peremptory strike under Batson is a three-step process.

Purkett v. Elem, 514 U.S. 765, 767–68, 115 S. Ct. 1769, 1170–71 (1995). First, the

defendant must present prima facie evidence that the strike was made on an

impermissible basis such as race or sex. Id. at 767, 115 S. Ct. at 1170. Once a prima

facie case has been presented, the burden of production shifts to the proponent of the

strike to come forward with a race neutral explanation, meaning a “clear and

reasonably specific explanation of his legitimate reasons for exercising the

challenge.” Miller-El v. Dretke, 545 U.S. 231, 239, 125 S. Ct. 2317, 2324–25

(2005). If a race neutral explanation has been offered, then it is the trial court’s duty

to determine if the defendant has established purposeful discrimination. Purkett 514

U.S. at 767, 115 S. Ct. at 1770–71. Throughout the challenge, the burden of

persuasion remains with the defendant. Moore v. State, 265 S.W.3d 73, 78 (Tex.

App.—Houston [1st Dist.] 2008, no pet.).

      Jury selection is reviewed from a cold record. Satterwhite v. State, 858

S.W.2d 412, 415 (Tex. Crim. App. 1993). The court of appeals must look at the

genuineness of the prosecution’s asserted race-neutral explanation, not at its

reasonableness. Gibson v. State, 144 S.W.3d 530, 533–34 (Tex. Crim. App. 2004).

We apply a “clearly erroneous” standard of appellate review of a trial court’s ruling



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in a Batson claim. Id. at 534. To hold the trial court’s decision was clearly

erroneous, the appellate court must be left with a definite and firm conviction that a

mistake has been committed. Goldberg v. State, 95 S.W.3d 345, 385 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref’d).

B.    Analysis

      Shelton’s issue arises from the State eliminating juror number four, who was

the only African American left in the potential jury pool after all challenges for cause

had been raised and settled. The State raised two grounds for striking the potential

juror. First, the State asserted that the potential juror’s clothes indicated some

association with a motorcycle group. The prosecutor told the trial court that his

experience had led him to believe motorcycle groups were more “free spirited” and

less inclined to follow the law. Second, during voir dire, the prosecutor mentioned

the potential juror’s statements that, if he were on trial, he would want to testify.

The prosecutor said this indicated that, despite his assurances to the contrary, he

might consider Appellant’s decision not to testify as evidence against him.

      A neutral explanation in the context of our analysis here means an explanation

based on something other than the race of the juror. See Hernandez v. New York,

500 U.S. 352, 360, 111 S. Ct. 1859, 1866 (1991). Unless a discriminatory intent is

inherent in the prosecutor’s explanation, the reason offered will be deemed race

neutral. Id. The State’s offered explanation for excluding Juror No. 4 did not focus



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on his race, but on whether he could be an impartial juror and follow the law. There

is nothing in the record on voir dire that leaves us with a definite and firm conviction

that a mistake had been made by the trial court’s decision to overrule Appellant’s

Batson challenge. See Purkett, 514 U.S. at 769, 115 S. Ct. at 1171 (holding striking

juror for having “long, unkempt hair, a mustache, and a beard is race neutral”);

Umoja v. State, 965 S.W.2d 3, 9–10 (Tex. App.—Ft. Worth 1997 no pet.) (holding

that juror struck for answer that showed juror was more favorable to rehabilitation

than punishment is facially race-neutral and does not show discriminatory intent or

clear error).

       Appellant’s response to the State’s explanation was that the potential juror

had rehabilitated himself and could not have been struck for cause. He also argued

that he was “pretty sure the jury pool that we have now, quite a few of them have

bikes.” Being “pretty sure” that other jurors owned motorcycles did not establish

purposeful discrimination. Likewise, arguing that the juror could not have been

struck for cause does not invalidate a concern about the juror’s willingness to follow

the law. See Moore, 265 S.W.3d at 78 (holding, throughout Batson challenge,

burden of persuasion remains with defendant).

       We overrule Appellant’s first issue.




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                         Ineffective Assistance of Counsel

       In his second issue on appeal, Shelton argues that he received ineffective

assistance of counsel at the punishment phase of trial because his trial counsel did

not introduce medical records that suggested that Appellant had a history of mental

illness.

A.     Standard of Review

       The Sixth Amendment to the United States Constitution guarantees the right

to reasonably effective assistance of counsel in criminal prosecutions. See U.S.

CONST. amend. VI. To show ineffective assistance of counsel, a defendant must

demonstrate both (1) that his counsel’s performance fell below an objective standard

of reasonableness and (2) that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068

(1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Failure to

make the required showing of either deficient performance or sufficient prejudice

defeats the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex.

Crim. App. 2009); Andrews, 159 S.W.3d at 101.

       An appellant bears the burden of proving by a preponderance of the evidence

that his counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999). Any allegation of ineffectiveness must be firmly founded in the record,



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and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at

814. We presume that a counsel’s conduct falls within the wide range of reasonable

professional assistance, and we will find a counsel’s performance deficient only if

the conduct is so outrageous that no competent attorney would have engaged in it.

Andrews, 159 S.W.3d at 101.

      “In making an assessment of effective assistance of counsel, an appellate court

must review the totality of the representation and the circumstances of each case

without the benefit of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.

App. 2011). Demonstrating ineffective assistance of counsel on direct appeal is “a

difficult hurdle to overcome.”     Id. In order to establish it, “the record must

demonstrate that counsel’s performance fell below an objective standard of

reasonableness as a matter of law, and that no reasonable trial strategy could justify

trial counsel’s acts or omissions, regardless of his or her subjective reasoning.” Id.

      After proving error, the appellant must affirmatively prove prejudice from the

deficient performance of his attorney. Hernandez v. State, 988 S.W.2d 770, 772

(Tex. Crim. App. 1999); Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.—

Texarkana 2000, pet. ref’d). The appellant must prove that his attorney’s errors,

judged by the totality of the representation and not by isolated instances of error,

denied him a fair trial. Burruss, 20 S.W.3d at 186. It is not enough for the appellant

to show that the errors had some conceivable effect on the outcome of the



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proceedings. Id. He must show that there is a reasonable probability that, but for

his attorney’s errors, the jury would have had a reasonable doubt about his guilt or

that the extent of his punishment would have been less. See id.; see also Bone v.

State, 77 S.W.3d 828, 836–37 (Tex. Crim. App. 2002).

B.    Analysis

      Appellant claims that he was denied effective assistance of counsel when his

retained trial counsel failed to present psychological evaluations at the punishment

phase of trial as a mitigating factor in punishment. Appellant argues that his

diagnoses of bipolar disorder and posttraumatic stress disorder could have been used

as mitigating evidence during the punishment, but he does not explain exactly how

the evidence would have been mitigating. His medical records indicated that

Appellant had been diagnosed with bipolar disorder in 2010 and 2011, but do not

describe its severity or effect on Appellant. Dr. Axelrad determined in his report

that Appellant’s bipolar disorder was “in partial remission” and that Appellant “did

not appear to have an active form of his psychiatric disorder at the time of the

commission of the offense in this matter.” Dr. Harrison’s outline indicated that

Appellant had a history of bipolar disorder but contained no further information

other than to say Appellant had “Treatable Disorders.”

      The only evidence of posttraumatic stress disorder came from Dr. Axelrad’s

report. In it, he recognized Appellant had a prior history with the disorder. Dr.



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Axelrad concluded, however, that Appellant “does not exhibit any evidence of a

Posttraumatic Stress Disorder based upon [his] mental status evaluation.”

      Cager testified that he did not call Dr. Axelrad or Dr. Harrison as part of his

trial strategy. He decided Appellant’s mental health was not significant enough to

raise during punishment based on conversations with Appellant about his mental

health and based on his own experience as an attorney. “It is trial counsel’s

prerogative, as a matter of trial strategy, to decide what witnesses to call.” Weisinger

v. State, 775 S.W.2d 424, 427 (Tex. App.—Houston [14th Dist.] 1989, pet. ref’d).

Appellant has failed to establish that evidence of his medical history was so

necessary as mitigation evidence as to deny his counsel any discretion in choosing

whether to present it.

      We overrule Appellant’s second issue.

                                     Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Chief Justice Radack and Justices Higley and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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