                                                                                 PD-1174-15
                                                              COURT OF CRIMINAL APPEALS
                                                                               AUSTIN, TEXAS
                                                              Transmitted 11/3/2015 5:39:12 PM
                                                                Accepted 11/5/2015 1:45:14 PM
                                                                                ABEL ACOSTA
                               No. PD-1174-15                                           CLERK
                                                  The State requests argument
                                  IN THE              only if Appellant argues

                       COURT OF CRIMINAL APPEALS

                                 OF TEXAS
                       ______________________________

                          HENRY ANDRE WINZER

November 5, 2015                     V.

                              STATE OF TEXAS
                       ______________________________

               On Appeal from the 422ND Judicial District Court,
         Kaufman County, Texas, in Cause Number 14-00334-422-F and
               from the Fifth District Court of Appeals at Dallas
                       in Cause Number 05-14-01079-CR
                     _______________________________

          STATE’S RESPONSE TO APPELLANT’S PETITION FOR
                      DISCRETIONARY REVIEW
                   _______________________________

 Counsel of Record:
                                         ERLEIGH NORVILLE WILEY
                      KAUFMAN COUNTY CRIMINAL DISTRICT ATTORNEY

                                                           SUE KORIOTH
                                          ASSISTANT DISTRICT ATTORNEY
                                                           SBN# 11681975
                                                       100 W. MULBERRY
                                                 KAUFMAN, TEXAS 75142
                                                              972 932-0260
 ATTORNEYS FOR THE APPELLEE,                              fax 972 932-0357
 THE STATE OF TEXAS                                    suekorioth@aol.com
                 IDENTITY OF PARTIES AND COUNSEL:

                          Appellant: Henry Winzer

     APPELLANT’S TRIAL COUNSEL: Gary Udashen, Katharine Reed

        APPELLANT’S COUNSEL ON THIS APPEAL: Gary Udashen



                    APPELLEE: THE STATE OF TEXAS

  APPELLEE’S TRIAL COUNSEL: Erleigh Norville Wiley, Kaufman County
     Criminal District Attorney, and Assistant Criminal District Attorneys
                       Marc Moffitt and Shelton Gibbs

APPELLEE’S COUNSEL ON THIS APPEAL: Erleigh Norville Wiley, Kaufman
  County Criminal District Attorney; Sue Korioth, Assistant Criminal District
                                  Attorney




                                     -ii-
                                       TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . -ii-

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -iv-

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-

STATE’S COUNTERPOINT
    The trial court acted within its discretion in denying appellant’s
    Batson motion, and appellant failed to carry his burden to prove that
    the trial court’s ruling was clearly erroneous.

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-

STATEMENT OF PERTINENT FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-

STATE’S COUNTERPOINT, restated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-

RULE 9.4 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . -11-




                                                      -iii-
                                      INDEX OF AUTHORITIES
CASES

Adair v. State,
      336 S.W.3d 680 (Tex. App.- Houston [1st Dist.] 2010, pet. ref'd). . . . . . -8-

Blackman v. State,
     414 S.W.3d 757 (Tex. Crim. App. 2013)... . . . . . . . . . . . . . . . . . . . . . . . -6-7-


RULES

Tex. R. App. P. 38.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-




                                                        -iv-
                                 No. PD-1174-15

                                     IN THE

                       COURT OF CRIMINAL APPEALS

                                    OF TEXAS

                            AT AUSTIN, TEXAS
                      ______________________________

                           HENRY ANDRE WINZER

                                        V.

                             STATE OF TEXAS
                      ______________________________

TO THE HONORABLE JUDGES OF SAID COURT:

      The State of Texas, appellee herein, respectfully submits this response to

appellant’s petition for discretionary review, and would show the Court:

                          STATEMENT OF THE CASE

      Appellant Henry Andre Winzer pleaded not guilty to the indictment alleging

that “he did intentionally, knowingly, or recklessly cause bodily injury to Deputy

Keith Wheeler by biting Deputy Keith Wheeler, and the defendant did then and there

use or exhibit a deadly weapon, to-wit: the defendant’s teeth, during the commission

of said assault, and the defendant knew Deputy Keith Wheeler was a public servant

lawfully discharging an official duty, to wit: a deputy with the Kaufman County



                                        -1-
Sheriff’s Office detaining and arresting the defendant and Gabriel Winzer,” on or

about April 27, 2013. (CR: 8). He was convicted by a jury, and his punishment was

assessed by the trial court in accord with a sentencing agreement at confinement for

5 years in TDCJ. (RR3: 10).

                            STATE’S COUNTERPOINT
         The trial court acted within its discretion in denying appellant’s
       Batson motion, and appellant failed to carry his burden to prove that
                   the trial court’s ruling was clearly erroneous.

                        SUMMARY OF THE ARGUMENT

      Appellant failed to present an adequate appellate record upon which an

appellate court can perform a thorough analysis. The State further contends that the

record before the Court fails to establish that the trial court’s ruling was clearly

erroneous.

                      STATEMENT OF PERTINENT FACTS

      Appellant complains of the State’s peremptory strikes of venire members Long,

Mitchell, and Pickron. No juror cards or questionnaires are included in this record;

no strike lists are included in the record. To the extent analysis of the complaint is

possible without those items, it is necessarily limited to the reporter’s record of voir

dire. It is unclear in the record which juror numbers belonged to which veniremen,

except for a few.

      Near the commencement of voir dire, the prosecutor asked the venire, "How

                                          -2-
many of you all people believe that a prosecutor's job is to get convictions no matter

what?" Ms. Mitchell nodded in agreement. (RR3: 34).

      The prosecutor instructed the venire regarding the various elements of the

offense; venire member Clark, No. 12, agreed that bodily injury includes something

that causes pain. (RR3: 45-47). Ms. Mitchell apparently made some gesture or

expression, because the prosecutor next asked, "what about you, Ms. Mitchell, what

do you think? You have some issues with it?" She asked the prosecutor, "could you

repeat it again?" He asked again, the definition of bodily injury, if the State proves

that it caused pain, but there's no physical injury, just in general, do you have any

problem with pain being used as a definition of bodily injury?" Ms. Mitchell

responded, "uh-ugh." (RR3: 48).

      Panelists Brooks (34), McMahan (28), and Lennon (44) indicated that they had

a problem including mere pain in the definition of bodily injury. (RR3: 48-49). Mr.

Cox (21) then asked whether pain from a firm handshake would qualify as bodily

injury in that definition. (RR3: 50-51). An unidentified panelist then raised his/her

hand and asked, "so bodily injury is not based on the severity of the pain or injury?"

The prosecutor explained that it could include any degree of pain. Ms. Pickron then

raised her hand, and the prosecutor asked her, "how do you feel about that?" Pickron

explained "well, based on what it says, I'd have to go with what it actually says,



                                         -3-
which means physical pain." (RR3: 51). Ms. Ross then acknowledged that "physical

pain could be subjective, so. . . ." (RR3: 52). The prosecutor then explained that a

witness would have to testify to feeling pain in order to prove pain as bodily injury;

another unidentified venire member attempted to raise a question about pre-existing

injuries, but the prosecutor cut that line of discussion off and moved to another area.

(RR3: 52).

      The prosecutor questioned the panel regarding whether they believe people

must obey police officers. Panelist 11 responded that she respected the law. An

unidentified panelist responded that she would stop for an officer even if she believed

he was wrong but would want to argue. The entire panel agreed that a civilian does

not have a right to struggle with an officer or assault him. (RR3: 62-63).

      The prosecutor polled the panel regarding their ability to consider probation.

(RR3: 64-72). He asked whether any panelists had bad prior experiences with police.

Ms. Hill, Mr. Carr, Mr. Lile, Mr. Clark (12), and panelist 15 raised their hands.

(RR3: 74-75). He then asked again, and panelists 29, 28, Ms. Warren, and Ms. Lowe

indicated that they had bad experiences with officers; Ms. Lowe indicated that she

would call it "maybe" a bad experience. (RR3: 75-77). Ms. Mitchell, Ms. Pickron,

and Mr. Ballard all denied bad prior experiences. Mr. Doan, Mr. Brooks, Ms Martin,

Ms. Peace, Ms. Kennedy, and Mr. Matzka denied prior negative experiences, as did



                                          -4-
Ms. Mays, Mr. Clem, Panelists 39 and 38, Mr. Petty, Ms Polk, Ms. Petty, Ms. Little,

Mr. Canady, and Ms. Moore. (RR3: 76-79). Panelist 37, Mr. Ware, Mr. Lennon, Ms.

Ross, and Mr. White indicated prior bad experiences. (RR3: 78-80).

      The prosecutor questioned the panel about whether they "feel like the criminal

justice system is unfair to minorities, blacks, hispanics? Do you feel like the criminal

justice system is unfair, it doesn't treat minorities fairly?" The prosecutor asked whole

rows this question, with little response. Holloway (2) responded that it was

‘sometimes" unfair. (RR3: 81-82). Panel member 29 raised his/her hand and stated

that "it can be." Ms. Mitchell was asked whether she agreed, and she responded,

"uh-ugh." Ms. Pickron, when specifically asked, "moved head up and down." (RR3:

82). Mr. Ballard asked for clarification and then responded "no." (RR3: 82). The

prosecutor continued row by row, asking Mr. Lennon (44) and Ms. Peace (33) for

their opinions. An unidentified venireperson raised his/her hand. (RR3: 83). An

unidentified panel member responded that he/she had such a sympathetic heart that

he/she might not be able to disregard sympathy for a defendant. (RR3: 85).

      Mitchell testified that she knew the prosecutor, Mr. Gibbs, because she had

done a one-day internship in the office when she was considering training to be a

probation officer. (RR3: 88-89).

      In defense voir dire, various venire members identified State's witnesses and



                                           -5-
officers they knew. (RR3: 89-95). Defense counsel asked again about whether the

justice system was not fair to minorities. Mitchell and Pickron affirmed that they

believed the system is unfair. (RR3: 122-23). Holloway explained that he believed

the process did not "play out" fairly sometimes. (RR3: 123). Goble stated that "at

times" the system can be unfair. (RR3: 123). Doan stated that he had "seen some

cases" that were unfair. (RR3: 124). Defense counsel spoke to the venire about

memory and that people sometimes incorrectly recall events; Mitchell agreed that

"people get things wrong." (RR3: 125-27).

                      STATE’S COUNTERPOINT, restated
 The trial court acted within its discretion in denying appellant’s Batson motion,
               and appellant failed to carry his burden to prove that
                   the trial court’s ruling was clearly erroneous.

             Under Batson, a defendant may be entitled to “a new array” if he
      can demonstrate, by a preponderance of the evidence, that the prosecutor
      indulged in purposeful discrimination against a member of a
      constitutionally protected class in exercising his peremptory challenges
      during jury selection. As the process has been described by the Supreme
      Court:

            . . . once the opponent of a peremptory challenge has made out a
            prima facie case of racial discrimination (step one), the burden of
            production shifts to the proponent of the strike to come forward
            with a race-neutral explanation (step two). If a race-neutral
            explanation is tendered, the trial court must then decide (step
            three) whether the opponent of the strike has proved purposeful
            racial discrimination.

            At the second step of this process, the proponent of the strike need
      only tender an explanation that is racially neutral on its face. The

                                         -6-
      ultimate plausibility of that explanation is then considered under the
      third step of the analysis, in which the trial court determines 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. Whether the opponent satisfies
      his burden of persuasion to show that the proponent's facially race-
      neutral explanation for his strike is pretextual, not genuine, is a question
      of fact for the trial court to resolve in the first instance.

              A reviewing court should not overturn the trial court's resolution
      of the Batson issue unless it determines that the trial court's ruling was
      clearly erroneous. In assaying the record for clear error, the reviewing
      court should consider the entire record of voir dire; it need not limit
      itself to arguments or considerations that the parties specifically called
      to the trial court's attention so long as those arguments or considerations
      are manifestly grounded in the appellate record. [footnotes omitted].

Blackman v. State, 414 S.W.3d 757, 764-65 (Tex. Crim. App. 2013).

      Appellant did not contest the legitimacy of the prosecutor’s explanation for

Long, nor did defense counsel point out anything in this record which would rebut

his explanation. The record does not reflect any questions to Long, but it is not

possible to conduct an independent comparative analysis, because appellant failed to

request that the questionnaires and strike lists be included in this record. In addition,

at various points unidentified venire members responded to voir dire questions, and

it is not possible to tell from this record whether Long gave other responses which

would have caused the prosecutor concern. (See, e.g., RR3: 51, 52, 62-63, 83, 85).

The State contends that the explanation given was race-neutral and that appellant

waived further review of the strike of Long by failing to present an adequate record

                                           -7-
on appeal. Tex. R. App. P. 38.1(i); see Adair v. State, 336 S.W.3d 680, 687 (Tex.

App.- Houston [1st Dist.] 2010, pet. ref'd).

      In regard to Mitchell and Pickron, the prosecutor explained that he struck them

because they had “law-enforcement issues.” (RR3: 209). The record amply supports

the prosecutor’s concern about each.

      Ms. Mitchell indicated that she agreed “that a prosecutor's job is to get

convictions no matter what?" (RR3: 34). She apparently “had issues” with the

concept that bodily injury includes pain, and when pressed for an opinion responded

with an ambiguous “uh-ugh.” (RR3: 48). When asked whether she agreed that "the

criminal justice system is unfair to minorities, blacks, hispanics? Do you feel like the

criminal justice system is unfair, it doesn't treat minorities fairly?", Mitchell again

responded with an ambiguous “uh-ugh.” (RR3: 82). Mitchell advised defense

counsel that she knew the prosecutor because she had been an intern for a day years

before. (RR3: 88-89). When questioned by defense counsel, Mitchell affirmed that

she believed the system is unfair. (RR3: 122-23). In response to defense counsel’s

voir dire about memory and whether witnesses make mistakes, Mitchell agreed that

"people get things wrong." (RR3: 125-27). After agreeing with defense counsel that

the “system” is unfair, Mitchell backed away from that position when questioned

individually by the court and the prosecutor. She offered as an example of unfairness



                                          -8-
stories she had seen on television where she believed defendants had received

disproportionate sentences. Her exchanges with the prosecutor on this and the

question of whether she knew him could have been construed by the trial court as

argumentative. (RR3: 174-77). The prosecutor was justified in striking Mitchell on

the basis of these exchanges alone. Moreover, the prosecutor contended that he

struck every venire member who expressed the same negativity about the justice

system or police who was not adequately rehabilitated, and defense counsel did

nothing to rebut that assertion.

      In regard to Pickron, she was also struck by the defense, which would waive

any statutory right appellant had to re-seat the venire member as well as any

complaint that the State prevented her service.

      Appellant’s claims that venire members Carr and Lowe were similarly situated

is incorrect. Carr had a bad experience with police, but she assured defense counsel

that it would not affect her service. (RR3: 75, 95). Ms. Carr would evaluate delay

in reporting an injury as part of her credibility determination. (RR3: 111-13). She

agreed that memories can be faulty, (RR3: 127). The prosecutor advised that he

needed to talk to Carr further. (RR3: 134). When called in to testify, Carr explained

that the bad experience to which she alluded involved her nephew being arrested for

drugs in a raid which messed up Carr’s sister’s house, but where the nephew was



                                         -9-
guilty. It would not affect her ability to fairly render a decision, because her son was

a deputy sheriff. (RR3: 142-43).

      Lowe, when asked if she had any bad experience with police, responded, “I’ll

call it a maybe. I wasn’t happy.” It was “not really” a bad experience; she had a bad

interaction with some female officers who responded to a disturbance call at her

house. (RR3: 177-78). Both Carr and Lowe had benign interactions with police

which they adequately explained. Neither believed the system is unfair in general.

      In his motion for new trial, appellant again asserted the Batson issue and made

an unsupported assertion that – in regard to whether the “system” is unfair to

minorities – for “an African American juror to say anything other than that would be

naive and probably untruthful.” (CR: 95; RR6: 5). In response, the State noted for

the record that Mr. Gibbs, the prosecutor who selected this jury, is an African-

American, as is the elected District Attorney of Kaufman County, and that appellant’s

claim was itself an unfortunate stereotype based upon broad racial prejudices and pre-

conceptions. (RR6: 11-12). Appellant’s claim that all black venire members must

have the same opinions is nonsensical. Appellant has failed to demonstrate on the

incomplete record presented to this Court on appeal that the trial court’s decision on

the Batson motion was clearly erroneous.




                                          -10-
                                   CONCLUSION

      WHEREFORE, PREMISES CONSIDERED, there being legal and competent

evidence sufficient to justify the verdict and no error appearing in the record of this

case, the State requests that this Honorable Court will affirm the the judgment of the

Trial Court below.

Respectfully submitted,                          ___/s/ Sue Korioth ______
                                                 SUE KORIOTH,
ERLEIGH NORVILLE WILEY                              State Bar No. 11681975
CRIMINAL DISTRICT ATTORNEY                       ASST. CRIMINAL D.A.
KAUFMAN COUNTY, TEXAS                            DISTRICT ATTORNEY'S OFFICE
                                                 100 W. MULBERRY STREET
                                                 KAUFMAN, TEXAS 75142
ATTORNEYS FOR THE STATE                          (972) 932-4331 ext. 1264
                                                 FAX (972) 932-0357
                                                 suekorioth@aol.com

                           CERTIFICATE OF SERVICE

      The undersigned does hereby certify that on the 3rd day of November 2015, a
copy of the foregoing will be served on Gary Udashen, attorney for appellant, by e-
service if available, or by placing U.S. Mail and by email to his email address.
                                              ___/s/ Sue Korioth ______


                  RULE 9.4 CERTIFICATE OF COMPLIANCE

      Using the Wordperfect 7 word count utility, I have determined that this
document contains 2170 words, not including the "caption, identity of parties and
counsel, statement regarding oral argument, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of jurisdiction,
statement of procedural history, signature, proof of service, certification, certificate
of compliance, and appendix." TRAP 9.4(I).
                                             /s/ Sue Korioth

                                          -11-
