                                                                                   ACCEPTED
                                                                              05-14-01079-CR
                                                                    FIFTH COURT OF APPEALS
                                                                              DALLAS, TEXAS
                                                                        1/16/2015 11:17:19 AM
                                                                                   LISA MATZ
                                                                                       CLERK

                                                 Oral Argument Requested
                       No. 05-14-01079-CR
                                                         FILED IN
        IN THE FIFTH COURT OF APPEALS OF TEXAS  5th COURT OF APPEALS
                                                     DALLAS, TEXAS
_____________________________________________________________
                                                1/16/2015 11:17:19 AM
                                                         LISA MATZ
                   HENRY ANDRE WINZER,                     Clerk
                                 Appellant
                           V.

                    THE STATE OF TEXAS,
                                      Appellee
______________________________________________________________

 ON APPEAL FROM THE 422ND JUDICIAL DISTRICT COURT OF
    KAUFMAN COUNTY, TEXAS, CAUSE NO. 14-00334-422-F

______________________________________________________________

               APPELLANT’S BRIEF ON APPEAL
______________________________________________________________


                                   GARY UDASHEN
                                   STATE BAR NO. 20369590
                                   gau@sualaw.com

                                   SORRELS, UDASHEN & ANTON
                                   2311 CEDAR SPRINGS ROAD
                                   SUITE 250
                                   DALLAS, TEXAS 75201
                                   (214) 468-8100 Office
                                   (214) 468-8104 Fax


                                   COUNSEL FOR APPELLANT
                           Issue Presented

I.    The trial court erred in denying Winzer’s Batson challenge when the
      State used three of its ten peremptory strikes to remove the only three
      potential black jurors from the panel, thus ensuring that Winzer, a black
      man, was tried by an all white jury.


II.   The evidence is insufficient to find Winzer guilty of aggravated assault
      with a deadly weapon because the State failed to prove Winzer’s teeth
      were a deadly weapon.




                                  −i−
                 IDENTITY OF PARTIES AND COUNSEL


Defendant:                            Henry Andre Winzer

Defense Attorneys:                    Gary A. Udashen
                                      Katherine L. Reed
                                      Sorrels, Udashen & Anton
                                      2311 Cedar Springs Road, Suite 250
                                      Dallas, Texas 75201

Prosecutors:                          Marc Moffitt
                                      Shelton Gibbs
                                      Kaufman County District Attorneys
                                      100 Mulberry
                                      Kaufman, Texas 75142

Judge:                                B. Michael Chitty
                                      422nd Judicial District Court
                                      Kaufman County, Texas




                               −ii−
                                        TABLE OF CONTENTS

                                                                                                           Page

ISSUES PRESENTED ..............................................................................................i

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

TABLE OF CONTENTS ....................................................................................... iii

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

STATEMENT OF THE CASE ................................................................................ v

STATEMENT REGARDING ORAL ARGUMENT ............................................vi

STATEMENT OF THE FACTS ......................................................................... 1-5

SUMMARY OF THE ARGUMENTS ................................................................ 5-6

ARGUMENT AND AUTHORITIES ................................................................ 6-21

        ISSUE I: The trial court erred denying Winzer’s Batson challenge to
        the State’s use of its peremptory strikes to remove all potential black
        jurors.

        ISSUE II: The evidence is insufficient to find that Winzer’s teeth were
        a deadly weapon.

CONCLUSION ......................................................................................................21

CERTIFICATE OF SERVICE ..............................................................................22

CERTIFICATE OF COMPLIANCE .....................................................................23




                                                      −iii−
                                  INDEX OF AUTHORITIES


Cases                                                                                               Page

Batson v. Kentucky, 476 U.S. 79 (1986) .......................................................... Passim

Blackman v. State, 414 S.W.3d 757 (Tex. Crim. App. 2013)................7, 8, 9, 10, 17

Dowdle v. State, 11 S.W.3d 233 (Tex. Crim. App. 2000) .......................................21

Emerson v. State, 851 S.W.2d 269 (Tex. Crim. App. 1993) ...........................8, 9, 10

Ford v. State, 1 S.W.3d 691 (Tex. Crim. App. 1999)................................................ 7

Gale v. State, 998 S.W.2d, 221 (Tex. Crim. App. 1999) .........................................21

Gibson v. State, 144 S.W.3d 530 (Tex. Crim. App. 2004) ........................................ 9

Goods v. Shoukfeh, 943 S.W.2d 441 (Tex. 1997) ..................................................10

Hernandez v. New York, 500 U.S. 352 (1991).........................................................10

Johnson v. California, 545 U.S. 162 (2005) .............................................................. 7

Keeton v. State, 749 S.W.2d 861 (1988) ..............................................................8, 11

Miller-El v. Dretke, 545 U.S. 231 (2005) .................................................................. 9

Moeller v. Blanc, 276 S.W.3d 656 (Tex. App. – Dallas, 2008)................................. 7

Purkett v. Elem, 514 U.S. 765 (1995) ..............................................................7, 8, 17

Snyder v. Louisiana, 128 S. Ct. 1203 (2008) ........................................................... 9

United States v. Williamson, 553 F.3d 269 (5th Cir. 2008) .................................9, 10

Vargas v. State, 838 S.W.2d 552 (Tex. Crim. App. 1992) ........................................ 9

Whitsey v. State, 796 S.W.2d 707 (Tex. Crim. App. 1990) .....................8, 10, 11, 14

                                                   −iv−
Young v. State, 826 S.W.2d 141 (Tex. Crim. App. 1991) ......................................... 9


Codes and Rules

TEX CODE CRIM. PRO. Art. 35.261 ............................................................................. 5

TEX. PEN. CODE ANN. § 1.07 ..................................................................................21

TEX. PEN. CODE ANN. § 22.01 ..................................................................................3

TEX. PEN. CODE ANN. § 22. 02 (Vernon Supp. 2006) ......................................v, 3, 20

TEX. PEN. CODE ANN. § 233.01 (Vernon Supp. 2006) .............................................20


Constitutional Provisions

U.S. CONST. amend. XI ..............................................................................................5

U.S. CONST. amend. XIV ...........................................................................................5




                                                        −v−
                          STATEMENT OF THE CASE

      On June 27, 2013, an indictment was filed charging Winzer 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 against Winzer charging him 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, before The

Honorable Judge B. Michael Chitty. (RR2: 9, RR3: 2). The jury found Winzer guilty.

(RR5: 46). Following the verdict, pursuant to a plea agreement between Winzer and

the State, the court sentenced Winzer to five years imprisonment. (RR5: 51).

      Winzer timely filed notice of appeal on August 8, 2014, and timely filed a

motion for new trial on August 18, 2014. (CR: 88, 93). On September 29, 2014, the

trial court held a hearing on Winzer’s motion for new trial. (RR6: 1). Later that same

day, the court denied Winzer’s motion. (CR: 123).

                 STATEMENT REGARDING ORAL ARGUMENT

      Appellant requests oral argument in this case. The issues raised related to
Batson are complex and fact-intensive and oral argument will be helpful to the
Court’s understanding.    Additionally, the sufficiency of the evidence argument
raises new and important issues and oral argument will also be helpful to the Court
on that issue.



                                        −vi−
                             STATEMENT OF THE FACTS

The Arrest

        On April 27, 2013, law enforcement responded to multiple reports of a man

with a gun on a county road in Frog, Texas. (RR4: 91; 170). Several neighbors

reported a man behaving erratically, walking up and down the street, yelling at no

one, kicking mailboxes, and wielding what appeared to be a gun, boat oar, and

fishing pole at various times. (RR4: 20-21, 34-36, 42, 51-54, 74-76). Ultimately,

most of the neighbors recognized the man as Gabriel Winzer (“Gabriel”), the

appellant’s son. (RR4: 23, 43, 61). Gabriel was a college graduate and his neighbors

remembered him as a polite, successful, and well-behaved kid. (RR4: 26-27, 46, 83).

        Law enforcement responded to the scene and Corporal Matthew Hinds

testified that within minutes of his arrival a man matching the description of the

suspect fired a shot at him. (RR4: 91-92). Shortly thereafter, additional officers

arrive on the scene, and a confrontation erupted wherein Gabriel is shot multiple

times by several officers. (RR4: 97-98, 175). Gabriel retreats to his father’s home.

(RR4: 98, 175). Gabriel is next spotted laying or kneeling on the ground in his

father’s backyard while law enforcement is surrounding the home. (RR4: 98, 126-

27, 178). This is the first time officer’s come in contact with Winzer, Gabriel’s

father, who is in the backyard attending to his son. (RR4: 125, 179).

        Prior to entering the backyard, officers are giving Winzer and Gabriel various


Appellant’s Brief - Page 1
commands to come out, get down, show their hands, and “something about a gun.”

(RR4: 99, 131). Winzer is attempting to help his son on to the porch and responds to

police telling them, “Gabe needs help,” “I don’t trust the police,” and “I don’t know

what’s going on.” (RR4: 132). Additionally, Winzer responds to police commands

by tossing a gun out saying, “something to the extent of there’s your gun.” (RR4:

132-33). However, it turns out that this “gun” was a plastic toy that looked like a

real gun. (RR4: 134). This is Winzer’s first interaction with law enforcement that

day.

        Next, officers enter the backyard and several officers accost Winzer and

Gabriel; both men resist arrest and two separate scuffles break out. (RR4: 138-41,

209-12). Corporal Hinds was dealing with Gabriel and testified that, although

Gabriel had been shot, he was fighting, punching, and swinging at officers. (RR4:

143). Deputy Wheeler was one of three officers/troopers attempting to restrain

Winzer while Hinds and others dealt with Gabriel. (RR4: 210-11). At some point

during the struggle, Gabriel is tased twice and “about ten seconds after the second

taser deployment, he stopped moving and died on the scene from gunshot wounds.”

(RR4: 153-54, 224).

        Simultaneously, Winzer continues to struggle with officers. Deputy Wheeler

testified that while he was attempting to place Winzer’s arms in handcuffs, he felt

Winzer bite his arm and he immediately drew his arm away. (RR4: 181, 218). The

bite did not break Wheeler’s skin, he was able to place Winzer’s right arm behind

Appellant’s Brief - Page 2
his back, and another trooper on the scene then tased Winzer. (RR4: 183-84). At this

point, law enforcement is able to restrain Winzer. (RR4: 185).

        After Winzer is detained and Gabriel is deceased, paramedics arrive on the

scene while law enforcement, including the Texas Rangers, begin their investigation.

(RR4: 231-32). Two officers involved in attempting to restrain Gabriel prior to his

death, report and are treated for injuries to their hands at the scene. (RR4: 232). Both

officers are sent to the hospital for follow up treatment. Id. No officer involved in

restraining Winzer, including Deputy Wheeler, reports any injury on the scene.

(RR4: 232-33). Nor was any injury related to Wheeler reported in the initial report

to the Kaufman County Sheriff’s Office. (RR4: 233-34). Nor was there any

testimony regarding medical treatment for any bite wounds.

The Trial

        On June 27, 2013, an indictment was filed charging Winzer with assault on a

public servant related to this incident. (CR: 125); see TEX. PEN. CODE § 22.01(b)(1).

On February 21, 2014, a second indictment was filed against Winzer charging him

with aggravated assault with a deadly weapon against a public servant alleging teeth

as the deadly weapon. (CR: 8); see TEX. PEN. CODE § 22.02(a)(2). The State

proceeded to trial on the second indictment and on June 28, 2014, the trial

commenced with jury selection. (RR3:2).

        At the conclusion of voir dire, Winzer made a timely Batson objection on the

basis that the State used three of their ten peremptory strikes to remove the only

Appellant’s Brief - Page 3
potential black jurors from the jury.1 (RR3: 208-10). One potential black juror,

juror Pickron (“Pickron”), was struck by both the defense and the State. (RR3: 210).

The trial court asked that the State provide an explanation for its use of the

peremptory strikes, which removed all blacks from Winzer’s jury. (RR3: 209).

        The State offered that juror Long (“Long”) was struck because she was a

teacher and juror Mitchell (“Mitchell”) and Pickron were struck because they “had

issues with the police.” (RR3: 209). In addition, the State argued that teachers,

including white teachers, were struck because, “they’re more sympathetic, generally

speaking.” (RR3: 211). Furthermore, with regard to Mitchell the State added that she

stated she felt the system was unfair, the State claimed they struck every person who

said they had a bad experience with the police. (RR3: 211-12). The trial court

overruled Winzer’s Batson challenge finding that the State provided race neutral

reasons for making their strikes. (RR3: 213).

        The next day, Winzer proceeded to trial with an all white jury over his

renewed Batson objection. (RR4: 4-5). Winzer was ultimately convicted of

aggravated assault with a deadly weapon against a public servant and sentenced to 5

years imprisonment. (RR5: 46, 51). On August 18, 2014, Winzer filed a motion for

new trial arguing 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



1 Winzer is an African-American.

Appellant’s Brief - Page 4
States and Texas Constitutions by exercising its peremptory strikes based on race.

(CR: 93); see Batson v. Kentucky, 476 U.S. 79 (1986); TEX CODE CRIM. PRO. Art.

35.261; U.S. CONST. amend. XI, XIV. At a hearing on the motion for new trial, the

State re-urged the explanations provided at trial concerning their peremptory strikes

of the only three potential black jurors in this case and argued that there was no

disparate treatment of black jurors. (RR6: 6-11). The trial court denied Winzer’s

motion for a new trial without specific findings. (CR: 123).

                             SUMMARY OF THE ARGUMENT

ISSUE I:         The trial court erred by denying Winzer’s Batson challenge. At trial,

the State provided two explanations for its peremptory strikes of all three potential

black jurors. (RR3: 209). First, one black juror struck was a teacher and the State’s

explanation for the strike was that teachers are more sympathetic, generally

speaking. (RR3: 209-211). The juror was not questioned specifically regarding

sensitivity and in fact denied being a sensitive person in response to a general panel

inquiry by the State. (RR3: 85). Therefore, this explanation is an impermissible

pretext for discrimination based on a group bias that was never shown to apply to

the challenged juror. Second, the two remaining black jurors were struck because

they, “had issues with the police,” or thought the system in general was unfair. Id.

The record in this case does not support the State’s explanation. Rather, the record

as a whole reveals the fallacy of the State’s “neutral” explanations as well as a true

discriminatory intent. As such, the judge’s denial of Winzer’s Batson objections at

Appellant’s Brief - Page 5
trial and in a motion for new trial are clearly erroneous. Winzer should be granted a

new trial.

ISSUE II:        Winzer was convicted of aggravated assault with a deadly weapon.

(CR: 86). The State alleged that Winzer’s teeth were a deadly weapon. However, the

State failed to provide any evidence that the teeth, in the manner of their use or

intended use, were capable of causing death or serious bodily injury. The State

elicited testimony from Deputy Wheeler teeth bites in general could disfigure a

person, spread an infectious disease, or hit a vein. (RR4: 183). However, there was

no evidence that the manner in which Winzer specifically used his teeth or intended

to use his teeth was capable of causing serious bodily injury or death. Given that

Winzer did not even use enough force with his teeth to break the officer’s skin that

would also not appear to be a reasonable inference from the evidence. Therefore, the

evidence was legally and factually insufficient to support the deadly weapon finding.

                             ARGUMENTS AND AUTHORITIES

                                       ISSUE I

        The trial court erred in denying Winzer’s Batson challenge when the

State used three of its ten peremptory strikes to remove the only three potential

black jurors from the panel, thus ensuring that Winzer, a black man, was tried

by an all white jury.

Applicable Law

        In Batson v. Kentucky, the United States Supreme Court held that using

Appellant’s Brief - Page 6
peremptory strikes to exclude jurors solely based on race violates the equal

protection clause of the fourteenth amendment to the United States Constitution.

Batson, 476 U.S. at 79, 89, 106 (1986) (“[p]urposeful racial discrimination in

selection of the venire violates a defendant’s right to equal protection because it

denies him the protection that a trial by jury is intended to secure.”) “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).

        When a Batson challenge is raised, the trial court should employ a three-step

process to resolve the objection. See Blackman v. State, 414 S.W.3d 757, 764 (Tex.

Crim. App. 2013). First, the party opposing the peremptory strikes must establish a

prima facie case of racial discrimination; second, the proponent of the strike must

offer a race-neutral explanation; third, the court must decide whether the opponent

of the strike has established racial discrimination by a preponderance of the

evidence. Id (citing Purkett v. Elem, 514 U.S. 765, 767 (1995); Ford v. State, 1

S.W.3d 691, 693 (Tex. Crim. App. 1999)). The first two steps of a Batson hearing

are merely evidentiary. Johnson v. California, 545 U.S. 162, 171 (2005); see also

Purkett, 514 U.S. at 767-68 (at the second step, the proponent of the strike need only

offer an explanation that is racially neutral on its face). “It is not until the third step

that the persuasiveness of the justification [for the peremptory strike] becomes

relevant – the step in which the trial court determines whether the opponent of the

Appellant’s Brief - Page 7
strike has carried his burden of proving purposeful discrimination.” Purkett, 514

U.S. at 768; see also Blackman, 414 S.W.3d at 764.

        Therefore, whether a race-neutral explanation was merely pretextual rather

than genuine is a question of fact for the trial court in the third step of the Batson

hearing. Id. “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 admitting acts of

discrimination.” Emerson v. State, 851 S.W.2d 269, 273 (Tex. Crim. App. 1993). In

Emerson, the Court of Criminal Appeals went on to explain:

                 “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. Keeton v.
                 State, 749 S.W.2d at 868. Presence of these factors also
                 weighs against the legitimacy of a race-neutral explanation
                 for the use of peremptory strikes. Id. Additionally, this
                 type of evidence also 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 where
                 the group trait is not shown to apply to the challenged juror
                 specifically.’ Id.; quoting Ex parte Branch, 526 So.2d 609,
                 at 624 (Ala. 1987); Whitsey v. State, 769 S.W.2d at 714-
                 15.” Id.

Standard of Review

        A trial court’s resolution of a Batson issue is reviewed for clear error. Whitsey

v. State, 796 S.W.2d 707 (Tex. Crim. App. 1990). “In applying this standard, a

determination is made whether the trial judge’s decision is supported by the record

Appellant’s Brief - Page 8
so that it is not clearly erroneous.” Emerson, 851 S.W.2d at 273. “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.” Blackman, 414 S.W.3d at 765 (citing Young v. State, 826

S.W.2d 141, 146 (Tex. Crim. App. 1991); Vargas v. State, 838 S.W.2d 552, 556

(Tex. Crim. App. 1992). While a trial court’s Batson rulings are treated deferentially,

“the Supreme Court has made plain that appellate review of alleged Batson errors is

not a hollow act.” United States v. Williamson, 553 F.3d 269, 274 (5th Cir. 2008)

(applying clear error review to district court’s Batson rulings) (citing Snyder v.

Louisiana, 128 S. Ct. 1203, 1207 (2008) (quoting Miller-El v. Dretke, 545 U.S. 231,

277 (2005)). “But a reviewing court should examine a trial court’s conclusion that a

racially neutral explanation is genuine, not a pretext, with great deference, reversing

only when that conclusion is, in view of the record as a whole, clearly erroneous.”

Blackman v. State, 414 S.W.3d at 765 (citing Gibson v. State, 144 S.W.3d 530, 534

(Tex. Crim. App. 2004)).

        In this case, after both sides made their peremptory strikes, Winzer made a

Batson objection challenging the government’s use of three of its ten peremptory

strikes to effectively remove the only potential black jurors in this case from the jury.

(RR3: 208-12). Although one black juror was struck by both the State and the

defense, Winzer argued the State’s use of its peremptory strikes was prima facie

Appellant’s Brief - Page 9
evidence of discrimination. (RR3: 209-10). The State then offered its “race-neutral”

explanations for those strikes, which Winzer objected to as pretextual and not truly

race-neutral. Id. The only issue before this court is whether the trial court’s finding

that the race-neutral explanations were genuine, and not pretextual is clearly

erroneous. See Blackman, 414 S.W.3d at 764; see also Goods v. Shoukfeh, 943

S.W.2d 441, 445 (Tex. 1997) (“once a party offers a race-neutral explanation for the

peremptory challenges and the trial court has ruled on the ultimate question of

intentional discrimination the preliminary issue of a prima facie case is moot) (citing

Hernandez v. New York, 500 U.S. 352, 359 (1991); see also Williams, 533 F.3d at

274 (5th Cir. 2008).

Juror Long

        The trial court’s denial of Winzer’s Batson challenge related to the exclusion

of Long by the State’s peremptory strike is clearly erroneous because the State’s

“race-neutral” explanation based on group bias is unsupported by the record and thus

pretextual pursuant to applicable case law.

        The State explained that it used a peremptory strike on Long, one of three

black potential jurors, solely because she is a teacher. (RR3: 209). The State further

explained, “[W]e struck three white teachers as well. Teachers have long been an

issue for the district attorney’s office in Kaufman. They’re more sympathetic,

generally speaking.” (RR3: 211). An examination of the record reveals that the only

communication with Long in voir dire was during a discussion about the range of

Appellant’s Brief - Page 10
punishment, when the State asked each juror individually if they could consider the

entire range 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 topic during voir dire. (RR3: 29-208). Likewise, the State did not ask the Long

any questions regarding her sympathetic nature. Id. The State did ask the panel as a

whole about sympathy and feeling sorry for a person saying, “[A]nybody just know

himself, very sensitive to those kinds of things. Anybody?” (RR3: 85). Long did not

identify herself as having a sensitive heart. Id. Furthermore, her ability to consider

the entire range of punishment, probation to 99 years, which is the only information

elicited from Long, belies the idea that she is somehow particularly sensitive.

        Therefore, under Emerson, Keeton, and Whitsey this court should find that the

State’s race-neutral explanation regarding their strike of Long is prextual and

impermissible because its based on a group trait, i.e. that teacher’s are sensitive, that

was not shown to apply to Long specifically. See Emerson, 851 S.W.2d at 273 (court

found that evidence of a group bais not shown to apply to the challenged juror shows

that the State’s peremptory strikes are not actually supported by the record or are

impermissible pretext); Whitsey v. State, 769 S.W.2d at 714-15. Likewise, the court

in Keeton provided an example of pretext directly on point, “[F]or instance, an

assumption that teachers as a class are too liberal without any specific questions

having been directed to the panel or individual juror showing the potentially liberal

nature of the challenged juror.” Keeton, 749 S.W.2d at 868. Futhermore, in Whitsey,

Appellant’s Brief - Page 11
when a prosecutor stated he struck a teacher because teachers tend to be liberal but

he failed to ask the juror any questions to determine whether that was in fact true in

her case, the Court of Criminal Appeals found that because the group bias was not

found to apply to the challenged juror, the State’s explanation was “facially

contrived to avoid admitting acts of discrimination.” See Whitsey, 796 S.W.2d at

716. Nothing in the record distinguishes Long from these cases.

        Finally, contrary to the State’s contention, the fact that the State also used

peremptory strikes to challenge non-minority teachers on the panel does not cure the

harm in this case. First, peremptory strikes on the basis of a group trait, which is not

shown to apply to the particular juror challenged, can be considered pretextual

regardless of the race of the juror. Certainly in this case, where a group bias that has

not been shown to apply to Long specifically and is used to remove one of three

black venire men resulting in an all-white jury, it serves as strong evidence of a

discriminatory intent. Furthermore, a review of the entire record strengthens the

conclusion that the State used its peremptory strikes in a discriminatory fashion. For

example, during closing argument the prosecutor argues, to an all white jury,

                 “And not only that, when his son is injured, instead of
                 pulling his son in the house, the ambulance is there, he
                 should have pulled his son out. The police told him your
                 son needs medical attention. Let us in. Give yourself up.
                 But for 15 minutes his son does not get medical attention,
                 why? Because he’s oppressed. Because he is a victim. He
                 has been victimized, and his son is a victim; and all of us
                 are pawns in this game, including me, an African
                 American prosecutor who is unfairly prosecuting this man.

Appellant’s Brief - Page 12
                 I don’t appreciate being a pawn because that’s not fair to
                 me, and it’s not fair to you.” (RR5: 15)

        This portion of the State’s closing argument exposes the State’s blatant racial

motivations, which tainted Winzer’s trial from voir dire to closing argument. See

Blackman, 414 S.W.3d at 765. The State is attempting to convey to an all white jury

that its inconceivable that Winzer could be the victim of any wrong doing by law

enforcement or the State because a black prosecutor is prosecuting him. (RR5: 15).

This Court should note that prior to this outburst no testimony, argument, or

statement otherwise had been put before the jury regarding race in this case.

        Therefore, the record clearly establishes the prosecutor striking Long because

she is a teacher and teachers are generally sympathetic is pretextual, contrived and

impermissible. Furthermore, the State did not offer nor does the record provide any

additional justification for striking Long. In fact, the only information elicited from

Long during voir dire was favorable to the State i.e. that she could consider the entire

range of punishment. The trial court denied Winzer’s Batson objection without

making any specific findings on the record, either at trial or in the denial of his

motion for new trial on the same grounds, a review of the record establishes the

denial was clearly erroneous. On this basis alone, Winzer should be granted a new

trial because his constitutional rights under the equal protection clause was denied

under Batson.



Appellant’s Brief - Page 13
Juror Mitchell

        The trial court’s conclusion that “the State has stated a race neutral reason for

making their strikes,” is clearly erroneous upon a review of the record. First, in

response to Winzer’s Batson objection on Mitchell the State provided that Mitchell

was struck, along with other minority and non-minority venire men, because she

“had issues with the police” or “law enforcement issues.” (RR3: 209). However, a

review of the voir dire record shows that is unsupported. During the State’s voir dire,

the prosecutor asks 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)

        To which Mitchell responds “no.” (RR3: 77). Therefore, the record does not

support the State’s contention that Mitchell reported having problems with police or

law enforcement. 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); see also Whitsey,

769 S.W.2d at 714-15. At the Batson hearing, defense counsel informs the court that

Mitchell, in fact, did not report having a problem with law enforcement. (RR3: 210).

The State then responds by saying that she was struck because she said the system

was unfair. (RR3: 210-211). In response to a question during the State’s voir dire

about whether panel members felt the system treated minorities unfairly, Mitchell

Appellant’s Brief - Page 14
had the following interaction with the State:

                 “MR. GIBBS: Do any of you all 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? Anybody on the front row?

                 ...

                 MR. GIBBS: Ms. Mitchell, no?

                 VENIREPERSON: Uh-ugh.” (RR3: 82)

        From that interaction it is not clear that Mitchell is in fact saying that the

system is unfair. However, the parties call Mitchell up for individual questioning

and have the following exchange:

                 “THE COURT: You are one of several jurors ho 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 goes off
                 track, can you put that aside in this case?

                 VENIREPERSON: Mm-hmm.

                 THE COURT: Consider only the evidence that you hear
                 and see?

                 VENIREPERSON: That’s right.


Appellant’s Brief - Page 15
                 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 the 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 with the court and the State establishes that, in fact, Mitchell

did not believe that this particular system was unfair. At the very least, she did not

express that the system was any more unfair than the court acknowledged everyone

is aware of. (RR3: 174). Therefore, the explanation that she was struck because she

believed the system was unfair cannot be said to be race neutral in light of the record.


Appellant’s Brief - Page 16
It is not sufficient that the State simply provide a race neutral explanation for strikes

challenged under Batson rather the race neutral explanation must be genuine and

born out through the record. See Purkett, 514 U.S. at 768; see also Blackman, 414

S.W.3d at 764. Also, this Court should note that Winzer notified the trial court at the

Batson hearing that the State was misrepresenting Mitchell’s testimony.

        Given the State’s improper closing arguments related to race it becomes even

more clear that the justifications given for the challenged jurors were not race

neutral. This is especially true considering that the State did not strike juror Carr, a

white panel member who ended up on the jury, when she actually did testify to

having a bad personal experience with the police. (RR3: 142). In addition, the State

did not strike juror Lowe, another white panel member who ended up sitting on the

jury, who actually did testify to having a negative personal experience with law

enforcement. (RR3: 177). The State’s explanation of Mitchell’s strike that, “every

person that said that they had a bad experience with a police officer, we struck them,

with the exception of two persons . . . Mr. Carr . . . Ms. Haney,” is simply untrue.

(RR3: 211-12). In fact, two persons, Carr and Lowe both white, who each testified

to a personal negative experience with police officers, sat on this jury. Yet the State

would have this Court believe that they struck Mitchell on this basis, even though

Mitchell did not report a negative personal experience with police officers.

Juror Pickron

        The trial court’s conclusion that “the State has stated a race neutral reason for

Appellant’s Brief - Page 17
making their strikes,” is clearly erroneous upon a review of the record. As with

Mitchell, the State claimed at the Batson hearing that Pickron was excluded either

because she had issues with the police or because she believed the system was unfair.

(RR3: 209-211). First, as with Mitchell, the record does not support the State’s first

contention that Pickron testified to having had issues with the police. The State

represented to the court at the Batson hearing, “The rest of them, your Honor, were

those who had issues with the police. That would include Ms. Pickron or Ms.

Mitchell.” (RR3: 209). In fact, the State had the following exchange with Pickron

during voir dire:

                 ““[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)

        To which Pickron responded, “No.” (RR3:77). The State faces the same

insurmountable facts with regard to their explanation for striking Pickron, which

along with their Long and Mitchell strikes ensured an all white jury for Winzer, a

black male. First, their explanation regarding problems with police officers is wholly

unsupported by the record. The fallacy of this explanation is further highlighted by

the fact that two white venire men, both of whom actually did report negative

personal experiences with the police, sat on the jury.

        With regard to the State’s second neutral explanation that Pickron more

Appellant’s Brief - Page 18
generally believed the system was unfair, the trial court had the following exchange

with Pickron:

        “THE COURT: Good. During our voir dire you indicated that the system you
felt like was not always fair.
        VENIREPERSON: I think they’re not always.
        THE COURT: I don’t think there is any doubt that the system is not always
fair.
        VENIREPERSON: Yes, sir.
        THE COURT: Let me just ask you, would that view that you hold impact your
ability to sit as a juror on this case, consider only the evidence presented during the
course of the trial, follow my instructions, and be fair and impartial?
        VENIREPERSON: No, sir. I feel that I could be fair and impartial because I
would follow the instructions, and I would always hold count what was presented.
        THE COURT: Do you have any questions, Mr. Gibbs?
        MR. GIBBS: Not on this issue.” (RR3: 172-73)

        Pickron unequivocally Stated that she could be fair and impartial, the State

allegedly struck her because of her belief that the system is not always fair. The

prosecutor’s improper racial statements during closing argument compounds the

weakness of the State’s explanation and lays bare for this Court the State’s genuine

intentions. In addition, Pickron, the third and last potential black juror struck by the

State, was detention service officer at the Dallas Sheriff’s Office, which is an

undeniably favorable occupation for a State juror. In fact, the defense questioned

Pickron specifically about her career and elected to use a peremptory strike on her.

(CR: 94). Although, this juror was double struck by the defense and the State, the

facts discussed herein further illuminate the State’s discriminatory motives.

Conclusion

        The neutral explanations provided by the State regarding Mitchell and

Appellant’s Brief - Page 19
Pickron, seemingly accepted by the trial court although absent specific findings, are

clearly not supported by the record. In addition, the State’s neutral explanation for

striking Long, based on a group bias that the record does not establish applies to

Long, is clearly pretextual and prohibited under the case law. Thus, the trial court’s

denial of Winzer’s Batson objection at trial and in his motion for new trial is clearly

erroneous. This court’s review of the Batson issues, while highly deferential is not

“hollow” for cases such as this one. Wherein the record and the applicable case law

are wholly unsupportive of the trial court’s findings. Winzer was denied his

constitutional rights under the equal protection clause, which Batson is designed to

protect.

                                      ISSUE II

        The evidence is not legally sufficient to support Winzer’s conviction for

aggravated assault with a deadly weapon. Specifically, the State failed to prove

beyond a reasonable doubt that Winzer used or exhibited a deadly weapon as

charged in the indictment. (CR: 8).

Applicable Law

        A person commits the offense of aggravated assault if he intentionally,

knowingly, or recklessly causes bodily injury to another and either (1) causes serious

bodily injury to the person or (2) uses or exhibits a deadly weapon during the

commission of the assault. TEX. PEN. CODE ANN. §§ 233.01, 22. 02 (Vernon Supp.

2006). “Bodily injury” refers to physical pain, illness, or any impairment of physical

Appellant’s Brief - Page 20
condition. Id § 1.07(a)(46) (Vernon Supp. 2006). And “deadly weapon” is defined

as “anything that in the manner of its use or intended use is capable of causing death

or serious bodily injury.” Id § 1.07(a)(17)(B) (emphasis added).

Standard of Review

        In reviewing a claim of legal insufficiency with regard to a deadly weapon

finding, “we view the evidence in a light most favorable to the finding and determine

whether any rational trier of fact could have found beyond a reasonable doubt that

the defense used or exhibited a deadly weapon.” Gale v. State, 998 S.W.2d, 221, 225

(Tex. Crim. App. 1999); see also Dowdle v. State, 11 S.W.3d 233, 237-238 (Tex.

Crim. App. 2000).

                                   CONCLUSION

        For all these reasons, Winzer requests that this Court reverse his conviction m

render a judgment of acquittal and remand this case for a new trial.

                                               Respectfully submitted,

                                                    /s/ Gary Udashen
                                               GARY UDASHEN
                                               Bar Card No. 20369590
                                               gau@sualaw.com

                                               SORRELS, UDASHEN & ANTON
                                               2311 Cedar Springs Road
                                               Suite 250
                                               Dallas, Texas 75201
                                               214-468-8100
                                               214-468-8104 (fax)

                                               Attorney for Appellant

Appellant’s Brief - Page 21
                              CERTIFICATE OF SERVICE

        I, the undersigned, hereby certify that a true and correct copy of the foregoing
Appellant’s Brief was mailed to the Kaufman County District Attorney’s Office, 100
W. Mulberry, 2nd Floor, Kaufman, Texas 75142, on this 16th Day of January, 2014.

                                             /s/ Gary Udashen
                                         GARY UDASHEN




Appellant’s Brief - 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)(A) because this
        petition contains 5,286 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 Udashen
                                        Gary Udashen




Appellant’s Brief - Page 23
