                          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
