The opinion
PD-1174-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/3/2015 5:39:12 PM
Accepted 11/5/2015 1:45:14 PM
ABEL ACOSTA
No. PD-1174-15 CLERK
The State requests argument
IN THE only if Appellant argues
COURT OF CRIMINAL APPEALS
OF TEXAS
______________________________
HENRY ANDRE WINZER
November 5, 2015 V.
STATE OF TEXAS
______________________________
On Appeal from the 422ND Judicial District Court,
Kaufman County, Texas, in Cause Number 14-00334-422-F and
from the Fifth District Court of Appeals at Dallas
in Cause Number 05-14-01079-CR
_______________________________
STATE’S RESPONSE TO APPELLANT’S PETITION FOR
DISCRETIONARY REVIEW
_______________________________
Counsel of Record:
ERLEIGH NORVILLE WILEY
KAUFMAN COUNTY CRIMINAL DISTRICT ATTORNEY
SUE KORIOTH
ASSISTANT DISTRICT ATTORNEY
SBN# 11681975
100 W. MULBERRY
KAUFMAN, TEXAS 75142
972 932-0260
ATTORNEYS FOR THE APPELLEE, fax 972 932-0357
THE STATE OF TEXAS suekorioth@aol.com
IDENTITY OF PARTIES AND COUNSEL:
Appellant: Henry Winzer
APPELLANT’S TRIAL COUNSEL: Gary Udashen, Katharine Reed
APPELLANT’S COUNSEL ON THIS APPEAL: Gary Udashen
APPELLEE: THE STATE OF TEXAS
APPELLEE’S TRIAL COUNSEL: Erleigh Norville Wiley, Kaufman County
Criminal District Attorney, and Assistant Criminal District Attorneys
Marc Moffitt and Shelton Gibbs
APPELLEE’S COUNSEL ON THIS APPEAL: Erleigh Norville Wiley, Kaufman
County Criminal District Attorney; Sue Korioth, Assistant Criminal District
Attorney
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . -ii-
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -iv-
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
STATE’S COUNTERPOINT
The trial court acted within its discretion in denying appellant’s
Batson motion, and appellant failed to carry his burden to prove that
the trial court’s ruling was clearly erroneous.
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
STATEMENT OF PERTINENT FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -2-
STATE’S COUNTERPOINT, restated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
RULE 9.4 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . -11-
-iii-
INDEX OF AUTHORITIES
CASES
Adair v. State,
336 S.W.3d 680 (Tex. App.- Houston [1st Dist.] 2010, pet. ref'd). . . . . . -8-
Blackman v. State,
414 S.W.3d 757 (Tex. Crim. App. 2013)... . . . . . . . . . . . . . . . . . . . . . . . -6-7-
RULES
Tex. R. App. P. 38.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-
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No. PD-1174-15
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
AT AUSTIN, TEXAS
______________________________
HENRY ANDRE WINZER
V.
STATE OF TEXAS
______________________________
TO THE HONORABLE JUDGES OF SAID COURT:
The State of Texas, appellee herein, respectfully submits this response to
appellant’s petition for discretionary review, and would show the Court:
STATEMENT OF THE CASE
Appellant Henry Andre Winzer pleaded not guilty to the indictment alleging
that “he did intentionally, knowingly, or recklessly cause bodily injury to Deputy
Keith Wheeler by biting Deputy Keith Wheeler, and the defendant did then and there
use or exhibit a deadly weapon, to-wit: the defendant’s teeth, during the commission
of said assault, and the defendant knew Deputy Keith Wheeler was a public servant
lawfully discharging an official duty, to wit: a deputy with the Kaufman County
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Sheriff’s Office detaining and arresting the defendant and Gabriel Winzer,” on or
about April 27, 2013. (CR: 8). He was convicted by a jury, and his punishment was
assessed by the trial court in accord with a sentencing agreement at confinement for
5 years in TDCJ. (RR3: 10).
STATE’S COUNTERPOINT
The trial court acted within its discretion in denying appellant’s
Batson motion, and appellant failed to carry his burden to prove that
the trial court’s ruling was clearly erroneous.
SUMMARY OF THE ARGUMENT
Appellant failed to present an adequate appellate record upon which an
appellate court can perform a thorough analysis. The State further contends that the
record before the Court fails to establish that the trial court’s ruling was clearly
erroneous.
STATEMENT OF PERTINENT FACTS
Appellant complains of the State’s peremptory strikes of venire members Long,
Mitchell, and Pickron. No juror cards or questionnaires are included in this record;
no strike lists are included in the record. To the extent analysis of the complaint is
possible without those items, it is necessarily limited to the reporter’s record of voir
dire. It is unclear in the record which juror numbers belonged to which veniremen,
except for a few.
Near the commencement of voir dire, the prosecutor asked the venire, "How
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many of you all people believe that a prosecutor's job is to get convictions no matter
what?" Ms. Mitchell nodded in agreement. (RR3: 34).
The prosecutor instructed the venire regarding the various elements of the
offense; venire member Clark, No. 12, agreed that bodily injury includes something
that causes pain. (RR3: 45-47). Ms. Mitchell apparently made some gesture or
expression, because the prosecutor next asked, "what about you, Ms. Mitchell, what
do you think? You have some issues with it?" She asked the prosecutor, "could you
repeat it again?" He asked again, the definition of bodily injury, if the State proves
that it caused pain, but there's no physical injury, just in general, do you have any
problem with pain being used as a definition of bodily injury?" Ms. Mitchell
responded, "uh-ugh." (RR3: 48).
Panelists Brooks (34), McMahan (28), and Lennon (44) indicated that they had
a problem including mere pain in the definition of bodily injury. (RR3: 48-49). Mr.
Cox (21) then asked whether pain from a firm handshake would qualify as bodily
injury in that definition. (RR3: 50-51). An unidentified panelist then raised his/her
hand and asked, "so bodily injury is not based on the severity of the pain or injury?"
The prosecutor explained that it could include any degree of pain. Ms. Pickron then
raised her hand, and the prosecutor asked her, "how do you feel about that?" Pickron
explained "well, based on what it says, I'd have to go with what it actually says,
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which means physical pain." (RR3: 51). Ms. Ross then acknowledged that "physical
pain could be subjective, so. . . ." (RR3: 52). The prosecutor then explained that a
witness would have to testify to feeling pain in order to prove pain as bodily injury;
another unidentified venire member attempted to raise a question about pre-existing
injuries, but the prosecutor cut that line of discussion off and moved to another area.
(RR3: 52).
The prosecutor questioned the panel regarding whether they believe people
must obey police officers. Panelist 11 responded that she respected the law. An
unidentified panelist responded that she would stop for an officer even if she believed
he was wrong but would want to argue. The entire panel agreed that a civilian does
not have a right to struggle with an officer or assault him. (RR3: 62-63).
The prosecutor polled the panel regarding their ability to consider probation.
(RR3: 64-72). He asked whether any panelists had bad prior experiences with police.
Ms. Hill, Mr. Carr, Mr. Lile, Mr. Clark (12), and panelist 15 raised their hands.
(RR3: 74-75). He then asked again, and panelists 29, 28, Ms. Warren, and Ms. Lowe
indicated that they had bad experiences with officers; Ms. Lowe indicated that she
would call it "maybe" a bad experience. (RR3: 75-77). Ms. Mitchell, Ms. Pickron,
and Mr. Ballard all denied bad prior experiences. Mr. Doan, Mr. Brooks, Ms Martin,
Ms. Peace, Ms. Kennedy, and Mr. Matzka denied prior negative experiences, as did
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Ms. Mays, Mr. Clem, Panelists 39 and 38, Mr. Petty, Ms Polk, Ms. Petty, Ms. Little,
Mr. Canady, and Ms. Moore. (RR3: 76-79). Panelist 37, Mr. Ware, Mr. Lennon, Ms.
Ross, and Mr. White indicated prior bad experiences. (RR3: 78-80).
The prosecutor questioned the panel about whether they "feel like the criminal
justice system is unfair to minorities, blacks, hispanics? Do you feel like the criminal
justice system is unfair, it doesn't treat minorities fairly?" The prosecutor asked whole
rows this question, with little response. Holloway (2) responded that it was
‘sometimes" unfair. (RR3: 81-82). Panel member 29 raised his/her hand and stated
that "it can be." Ms. Mitchell was asked whether she agreed, and she responded,
"uh-ugh." Ms. Pickron, when specifically asked, "moved head up and down." (RR3:
82). Mr. Ballard asked for clarification and then responded "no." (RR3: 82). The
prosecutor continued row by row, asking Mr. Lennon (44) and Ms. Peace (33) for
their opinions. An unidentified venireperson raised his/her hand. (RR3: 83). An
unidentified panel member responded that he/she had such a sympathetic heart that
he/she might not be able to disregard sympathy for a defendant. (RR3: 85).
Mitchell testified that she knew the prosecutor, Mr. Gibbs, because she had
done a one-day internship in the office when she was considering training to be a
probation officer. (RR3: 88-89).
In defense voir dire, various venire members identified State's witnesses and
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officers they knew. (RR3: 89-95). Defense counsel asked again about whether the
justice system was not fair to minorities. Mitchell and Pickron affirmed that they
believed the system is unfair. (RR3: 122-23). Holloway explained that he believed
the process did not "play out" fairly sometimes. (RR3: 123). Goble stated that "at
times" the system can be unfair. (RR3: 123). Doan stated that he had "seen some
cases" that were unfair. (RR3: 124). Defense counsel spoke to the venire about
memory and that people sometimes incorrectly recall events; Mitchell agreed that
"people get things wrong." (RR3: 125-27).
STATE’S COUNTERPOINT, restated
The trial court acted within its discretion in denying appellant’s Batson motion,
and appellant failed to carry his burden to prove that
the trial court’s ruling was clearly erroneous.
Under Batson, a defendant may be entitled to “a new array” if he
can demonstrate, by a preponderance of the evidence, that the prosecutor
indulged in purposeful discrimination against a member of a
constitutionally protected class in exercising his peremptory challenges
during jury selection. As the process has been described by the Supreme
Court:
. . . once the opponent of a peremptory challenge has made out a
prima facie case of racial discrimination (step one), the burden of
production shifts to the proponent of the strike to come forward
with a race-neutral explanation (step two). If a race-neutral
explanation is tendered, the trial court must then decide (step
three) whether the opponent of the strike has proved purposeful
racial discrimination.
At the second step of this process, the proponent of the strike need
only tender an explanation that is racially neutral on its face. The
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ultimate plausibility of that explanation is then considered under the
third step of the analysis, in which the trial court determines whether the
opponent of the strike has satisfied his burden of persuasion to establish
by a preponderance of the evidence that the strike was indeed the
product of purposeful discrimination. Whether the opponent satisfies
his burden of persuasion to show that the proponent's facially race-
neutral explanation for his strike is pretextual, not genuine, is a question
of fact for the trial court to resolve in the first instance.
A reviewing court should not overturn the trial court's resolution
of the Batson issue unless it determines that the trial court's ruling was
clearly erroneous. In assaying the record for clear error, the reviewing
court should consider the entire record of voir dire; it need not limit
itself to arguments or considerations that the parties specifically called
to the trial court's attention so long as those arguments or considerations
are manifestly grounded in the appellate record. [footnotes omitted].
Blackman v. State, 414 S.W.3d 757, 764-65 (Tex. Crim. App. 2013).
Appellant did not contest the legitimacy of the prosecutor’s explanation for
Long, nor did defense counsel point out anything in this record which would rebut
his explanation. The record does not reflect any questions to Long, but it is not
possible to conduct an independent comparative analysis, because appellant failed to
request that the questionnaires and strike lists be included in this record. In addition,
at various points unidentified venire members responded to voir dire questions, and
it is not possible to tell from this record whether Long gave other responses which
would have caused the prosecutor concern. (See, e.g., RR3: 51, 52, 62-63, 83, 85).
The State contends that the explanation given was race-neutral and that appellant
waived further review of the strike of Long by failing to present an adequate record
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on appeal. Tex. R. App. P. 38.1(i); see Adair v. State, 336 S.W.3d 680, 687 (Tex.
App.- Houston [1st Dist.] 2010, pet. ref'd).
In regard to Mitchell and Pickron, the prosecutor explained that he struck them
because they had “law-enforcement issues.” (RR3: 209). The record amply supports
the prosecutor’s concern about each.
Ms. Mitchell indicated that she agreed “that a prosecutor's job is to get
convictions no matter what?" (RR3: 34). She apparently “had issues” with the
concept that bodily injury includes pain, and when pressed for an opinion responded
with an ambiguous “uh-ugh.” (RR3: 48). When asked whether she agreed that "the
criminal justice system is unfair to minorities, blacks, hispanics? Do you feel like the
criminal justice system is unfair, it doesn't treat minorities fairly?", Mitchell again
responded with an ambiguous “uh-ugh.” (RR3: 82). Mitchell advised defense
counsel that she knew the prosecutor because she had been an intern for a day years
before. (RR3: 88-89). When questioned by defense counsel, Mitchell affirmed that
she believed the system is unfair. (RR3: 122-23). In response to defense counsel’s
voir dire about memory and whether witnesses make mistakes, Mitchell agreed that
"people get things wrong." (RR3: 125-27). After agreeing with defense counsel that
the “system” is unfair, Mitchell backed away from that position when questioned
individually by the court and the prosecutor. She offered as an example of unfairness
-8-
stories she had seen on television where she believed defendants had received
disproportionate sentences. Her exchanges with the prosecutor on this and the
question of whether she knew him could have been construed by the trial court as
argumentative. (RR3: 174-77). The prosecutor was justified in striking Mitchell on
the basis of these exchanges alone. Moreover, the prosecutor contended that he
struck every venire member who expressed the same negativity about the justice
system or police who was not adequately rehabilitated, and defense counsel did
nothing to rebut that assertion.
In regard to Pickron, she was also struck by the defense, which would waive
any statutory right appellant had to re-seat the venire member as well as any
complaint that the State prevented her service.
Appellant’s claims that venire members Carr and Lowe were similarly situated
is incorrect. Carr had a bad experience with police, but she assured defense counsel
that it would not affect her service. (RR3: 75, 95). Ms. Carr would evaluate delay
in reporting an injury as part of her credibility determination. (RR3: 111-13). She
agreed that memories can be faulty, (RR3: 127). The prosecutor advised that he
needed to talk to Carr further. (RR3: 134). When called in to testify, Carr explained
that the bad experience to which she alluded involved her nephew being arrested for
drugs in a raid which messed up Carr’s sister’s house, but where the nephew was
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guilty. It would not affect her ability to fairly render a decision, because her son was
a deputy sheriff. (RR3: 142-43).
Lowe, when asked if she had any bad experience with police, responded, “I’ll
call it a maybe. I wasn’t happy.” It was “not really” a bad experience; she had a bad
interaction with some female officers who responded to a disturbance call at her
house. (RR3: 177-78). Both Carr and Lowe had benign interactions with police
which they adequately explained. Neither believed the system is unfair in general.
In his motion for new trial, appellant again asserted the Batson issue and made
an unsupported assertion that – in regard to whether the “system” is unfair to
minorities – for “an African American juror to say anything other than that would be
naive and probably untruthful.” (CR: 95; RR6: 5). In response, the State noted for
the record that Mr. Gibbs, the prosecutor who selected this jury, is an African-
American, as is the elected District Attorney of Kaufman County, and that appellant’s
claim was itself an unfortunate stereotype based upon broad racial prejudices and pre-
conceptions. (RR6: 11-12). Appellant’s claim that all black venire members must
have the same opinions is nonsensical. Appellant has failed to demonstrate on the
incomplete record presented to this Court on appeal that the trial court’s decision on
the Batson motion was clearly erroneous.
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CONCLUSION
WHEREFORE, PREMISES CONSIDERED, there being legal and competent
evidence sufficient to justify the verdict and no error appearing in the record of this
case, the State requests that this Honorable Court will affirm the the judgment of the
Trial Court below.
Respectfully submitted, ___/s/ Sue Korioth ______
SUE KORIOTH,
ERLEIGH NORVILLE WILEY State Bar No. 11681975
CRIMINAL DISTRICT ATTORNEY ASST. CRIMINAL D.A.
KAUFMAN COUNTY, TEXAS DISTRICT ATTORNEY'S OFFICE
100 W. MULBERRY STREET
KAUFMAN, TEXAS 75142
ATTORNEYS FOR THE STATE (972) 932-4331 ext. 1264
FAX (972) 932-0357
suekorioth@aol.com
CERTIFICATE OF SERVICE
The undersigned does hereby certify that on the 3rd day of November 2015, a
copy of the foregoing will be served on Gary Udashen, attorney for appellant, by e-
service if available, or by placing U.S. Mail and by email to his email address.
___/s/ Sue Korioth ______
RULE 9.4 CERTIFICATE OF COMPLIANCE
Using the Wordperfect 7 word count utility, I have determined that this
document contains 2170 words, not including the "caption, identity of parties and
counsel, statement regarding oral argument, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of jurisdiction,
statement of procedural history, signature, proof of service, certification, certificate
of compliance, and appendix." TRAP 9.4(I).
/s/ Sue Korioth
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