Opposition Brief — Ali Awad Mahmoud Irsan, Petitioner v. Texas

Supreme Court briefDec 22, 2025

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No. 25-5665

_______________________________________________________________________

In the Supreme Court of the United States

__________

ALI AWAD MAHMOUD IRSAN,

Petitioner,

THE STATE OF TEXAS,

Respondent.

__________

On Petition for a Writ of Certiorari to the

Texas Court of Criminal Appeals

__________

RESPONDENT’S BRIEF IN OPPOSITION

__________

SEAN TEARE

Harris County District Attorney

ALAN KEITH CURRY*

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

curry_alan@dao.hctx.net

(713) 274-5826

*Counsel of Record

Counsel for Respondent

(CAPITAL CASE)

QUESTIONS PRESENTED

The Petitioner has presented the following questions to this Court:

1. Does the knowing judicial enforcement of defense counsel’s explicitly

race-based agreement to exclude a Black woman from the venire

violate the Equal Protection Clause?

2. Does a prosecutor’s knowing acquiescence in defense counsel’s racially

motivated efforts to exclude Black women from jury service violate

the Equal Protection Clause?

3. Do the Equal Protection rights of prospective jurors and the integrity of

the courts require a remedy when the “officials responsible for the

selection of [a jury] panel” fail in their “constitutional duty to follow

a procedure . . . which would not ‘operate to discriminate in the

selection of jurors on racial grounds’”?

The Respondent offers the following threshold questions:

1. Was the Texas Court of Criminal Appeals required to review a

purported violation of the Equal Protection Clause when that claim

was raised for the first time on appeal?

2. Because of the absence of any objection at trial, has the record been

sufficiently developed to address the purported violation of the Equal

Protection Clause?

TABLE OF CONTENTS

Page

RESPONDENT’S BRIEF IN OPPOSITION ................................................................. i

QUESTIONS PRESENTED ........................................................................................... i

TABLE OF CONTENTS................................................................................................ ii

INDEX OF AUTHORITIES ......................................................................................... iii

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

The Excusal of Numerous Prospective Jurors ................................................... 1

The Excusal of the Particular Prospective Juror............................................... 3

The Direct Appeal ............................................................................................... 7

Argument............................................................................................................. 8

The Texas Court of Criminal Appeals correctly held that the petitioner

procedurally defaulted his Equal Protection claim. .......................................... 8

The decision of the Fifth Circuit Court of Appeals in Mata v. Johnson

does not provide a basis for requiring the Texas Court of Criminal

Appeals to hold that a trial judge or a trial prosecutor must have

intervened to question the isolated statement of a criminal defendant’s

trial attorney. .................................................................................................... 13

CONCLUSION ............................................................................................................ 17

INDEX OF AUTHORITIES

Cases

Adams v. Robinson,

520 U.S. 83 (1997) ...................................................................................................... 9

Arlington Heights v. Metropolitan Housing Development Corp.,

429 U.S. 252 (1977) .................................................................................................. 12

Batiste v. State,

888 S.W.2d 9 (Tex. Crim. App. 1994) .................................................................. 7, 11

Batson v. Kentucky,

476 U.S. 79 (1986) ............................................................................................ 7, 9, 12

Burks v. State,

583 S.W.2d 389 (Tex. Crim. App. 1989) .................................................................. 12

Bush v. Vera,

517 U.S. 952 (1996) .................................................................................................. 15

Campbell v. Louisiana,

523 U.S. 392 (1998) .................................................................................................... 9

Flowers v. Mississippi,

588 U.S. 284, 288 (2019) .......................................................................................... 15

Ford v. Georgia,

498 U.S. 411 (1991) .................................................................................................... 8

Georgia v. McCollum,

505 U.S. 42 (1992) .................................................................................................. 7, 8

Grado v. State,

445 S.W.3d 736 (Tex. Crim. App. 2014) .................................................................. 11

Hawkins v. State,

660 S.W.2d 65 (Tex. Crim. App. 1983) .................................................................... 12

Henry v. Mississippi,

379 U.S. 43 (1965) .................................................................................................... 10

Irsan v. State,

708 S.W.3d 584 (Tex. Crim. App. 2025) ................................................................ 7, 8

iii

Marin v. State,

851 S.W.2d 275 (Tex. Crim. App. 1993) .................................................................. 11

Mata v. Johnson,

99 F.3d 1261 (5th Cir. 1996),

vacated on other grounds, 105 F.3d 209 (5th Cir. 1997) ........................................ 14

Modden v. State,

721 S.W.2d 859 (Tex. Crim. App. 1986) .................................................................. 12

Rosales v. State,

841 S.W.2d 368 (Tex. Crim. App. 1992),

cert. denied, 510 U.S. 949 (1993) ............................................................................. 12

Snyder v. Louisiana,

552 U.S. 472 (2008) .................................................................................................. 13

Terrance v. Florida,

188 U.S. 519 (1903) .................................................................................................. 12

United States v. Ausbie,

782 Fed. Appx. 525 (9th Cir. 2019) ......................................................................... 14

United States v. Martinez-Salazar,

528 U.S. 304 (2000) .................................................................................................. 15

Wainwright v. Sykes,

433 U.S. 72 (1977) ................................................................................................ 9, 10

Whitus v. Georgia,

385 U.S. 545 (1967) .................................................................................................. 12

Williams v. State,

301 S.W.3d 675 (Tex. Crim. App. 2009),

cert. denied, 560 U.S. 966 (2010) ............................................................................. 11

Statutes

TEX. CODE CRIM. PROC. art. 35.05 ................................................................................. 2

TEX. CODE CRIM. PROC. art. 35.17(2) ............................................................................. 1

Rules

TEX. R. APP. P. 33.1(a) .................................................................................................. 10

RESPONDENT’S BRIEF IN OPPOSITION

__________

Pursuant to United States Supreme Court Rule 15, the respondent, the State

of Texas, hereby submits this brief in opposition to the petition for a writ of

certiorari.

STATEMENT OF THE CASE

The Excusal of Numerous Prospective Jurors

In death penalty cases, Texas uses a procedure during jury selection in which

prospective jurors are provided with written questionnaires, and based upon the

prospective

jurors’

answers

those

questionnaires,

the

parties

make

determinations regarding whether the prospective jurors should be individually

questioned regarding their ability to follow the law and any bias against the law or

the parties that they might have. The procedure for jury selection in death penalty

cases in Texas is for the trial judge to first explain the law to a group of prospective

jurors and then for the parties to individually question the prospective jurors:

In a capital felony case in which the State seeks the death penalty, the

court shall propound to the entire panel of prospective jurors questions

concerning the principles, as applicable to the case on trial, of

reasonable doubt, burden of proof, return of indictment by grand jury,

presumption of innocence, and opinion. Then, on demand of the State

or defendant, either is entitled to examine each juror on voir dire

individually and apart from the entire panel, and may further question

the juror on the principles propounded by the court.

TEX. CODE CRIM. PROC. art. 35.17(2).

However, prior to that general explanation of the law by the trial judge, and

prior to individual questioning by the parties, both parties may consent to the

excusal of a prospective juror without the need for any questioning. See TEX. CODE

CRIM. PROC. art. 35.05 (“One summoned upon a special venire may by consent of

both parties be excused from attendance by the court at any time before he is

impaneled.”). As it was in this case, this summary excusal is usually based upon

the prospective jurors’ answers to the questionnaires.

In this case, as in most death penalty cases in Harris County, a huge number

of prospective jurors were excused by agreement, and the vast majority of them

were excused without discussion or any questioning:

May 4, 2018

77 prospective jurors

(R.R. 14-80, 90, 103-07,

119, 129, 196-202, 20405, 208).

May 18, 2018

20 prospective jurors

(R.R. 15-4).

May 21, 2018

3 prospective jurors

(R.R. 16-39, 43, 78).

May 22, 2018

42 prospective jurors

(R.R. 17-14, 21, 23, 40-43,

57, 110, 133).

May 23, 2018

20 prospective jurors

(R.R. 18-175, 235, 281).

May 24, 2018

2 prospective jurors

(R.R. 19-5, 154).

May 29, 2018

89 prospective jurors

(R.R. 21-19, 39-44, 8990).

May 30, 2018

54 prospective jurors

(R.R. 22-3-4, 34, 39, 4347, 52, 62).

May 31, 2018

66 prospective jurors

(R.R. 23-3, 36, 38, 40, 4345, 153, 192, 194, 196).

June 1, 2018

13 prospective jurors

(R.R. 24-3, 109).

June 4, 2018

66 prospective jurors

(R.R. 25-15, 17, 28, 30,

64, 97, 99-104, 107-08,

123, 173, 263).

June 5, 2018

47 prospective jurors

(R.R. 26-180, 200-06, 20910, 212-14).

June 6, 2018

114 prospective jurors

(R.R. 27-13, 15, 18, 22-23,

36-38, 49, 77, 79, 81-82,

84-85, 87-88, 118, 120,

123-25, 127, 143-44, 151).

June 7, 2018

13 prospective jurors

(R.R. 28-3, 21, 24, 34, 71,

80, 82, 198).

June 11, 2018

57 prospective jurors

(R.R. 30-61, 69, 73, 83-85,

96, 101, 308).

June 12, 2018

3 prospective jurors

(R.R. 31-5, 123, 214).

June 19, 2018

2 prospective jurors

(R.R. 32-16).

May 4, 2018 to

June 19, 2018

688 prospective jurors (R.R. 14 to 32).1

The Excusal of the Particular Prospective Juror

The issue presented in this Petition for a Writ of Certiorari deals with one of

the hundreds of prospective jurors who were excused by agreement, and she was

ultimately excused by agreement on June 6, 2018 (R.R. 27-142-43). On June 4,

2018, two days before this prospective juror had originally been scheduled for

individual questioning, (R.R. 25-66-68), the prospective juror informed the trial

court that her employer would pay her for being away from work for two weeks, but

The number of those excused by agreement was much higher than that implied in the

Petition for a Writ of Certiorari (petition at 18).

apparently nothing beyond that (R.R. 25-105). She stated that she would have to

“run some numbers” in order to see whether being away from work for several

weeks would be a financial hardship for her (R.R. 25-105). On that particular day,

the trial judge informed the prospective jurors that the trial would last at least five

to six weeks (R.R. 25-68, 106-07).2

On the day that the prospective juror was originally scheduled to be

individually questioned, she apparently did not show up and was not answering her

telephone (R.R. 27-140).

The trial judge eventually was able to reach the

prospective juror on the telephone near the end of the day, and the trial judge had a

conversation with the prospective juror off the record (R.R. 27-142). After that offthe-record conversation, the trial judge went back on the record and announced that

both sides had agreed to excuse the prospective juror (R.R. 27-142-43).

The trial judge did not end her telephone conversation with the prospective

juror, and the prospective juror expressed interest in being on the jury, while at the

same time acknowledging the real uncertainty as to whether she could actually

serve on a death penalty jury for several weeks:

THE COURT: Okay. Thank you for being willing to come

downtown. You don’t have to come.

VENIREPERSON: Okay.

THE COURT: We don’t want to put you through a financial

burden. But thank you for being willing to serve. It means a lot to us.

VENIREPERSON: Okay. I mean, actually, I was really

interested in doing it.

The trial actually lasted longer than that, lasting over seven weeks, going from June 25,

2018 (R.R. 1-59) to August 14, 2018 (R.R. 1-76).

THE COURT: That’s what I thought. But I can’t quite get a

straight answer out of you if it’s going to be a financial hardship or not.

It’s time we have an answer.

VENIREPERSON: Well, I mean, I just wanted – the agency said

they would contact me back and let me know if they could put me on

for weekends. If I wasn’t needed on the weekend –

THE COURT: Are y’all hearing that?

VENIREPERSON: – I need income coming in.

THE COURT: Excuse me. Ma’am, just a moment. Did y’all

hear that? She really wants to be on the jury, she’s trying to get

temporary work on the weekends so that she can serve. Are y’all still

okay with excusing her?

MS. PRIMM [prosecutor]: Yes, ma’am.

MR. TANNER [defense counsel]: And I am – after reviewing her

questionnaire again, we’ll agree if the State wants to agree.

MS. PRIMM: Yes, we want to agree.

THE COURT: Everyone agrees. I think after looking at your

questionnaire, they think you probably won’t be on the jury anyway.

So that way, it will save you a trip down here.

VENIREPERSON: Okay. Well, thank you.

(R.R. 27-143-44). After both parties continued to agree to excuse the prospective

juror without any further questioning, the trial judge ended the telephone

conversation with the prospective juror (R.R. 27-144-45).

The petitioner’s trial attorney then stated the following:

MR. TANNER: Also for the record, Judge, she is a black female.

THE COURT: I don’t think so. Was she?

MR. TANNER: She’s a black female. And knowing what the

evidence could – could come out in evidence is a possible – is a reason –

another reason I take into consideration in our decision to agree to her.

THE COURT: Are some of the victims black females?

MR. TANNER: No, ma’am. There are other issues.

THE COURT: Other issues? Okay. Well, I don’t know what

those are, but if it’s important to you, I imagine there’s a good reason.

(R.R. 27-145). The matter was not brought up again. The matter was not raised in

the petitioner’s motion for new trial (C.R. 11-3127).

The record does not reflect the prior reason or reasons that the parties had

for initially excusing the prospective juror without individual questioning, although

it was certainly based upon her answers to her questionnaire. Before any of the

above-quoted discussions occurred, the parties had already agreed to excuse the

prospective juror without any questioning.

Based upon this record, it is also

possible that the excusal of the prospective juror without questioning was also

based upon the difficulty that the prospective juror had in committing to being

available for a death penalty case that was going to last several weeks. As the

prospective juror did not show up for individual questioning on the particular day

that her individual questioning was scheduled, the record does not reflect whether

the prospective juror would have been available for individual questioning or would

have been able to serve if the parties were forced to accept her as a juror. She had

articulated a financial hardship, and was only available for questioning by

telephone near the end of the day (R.R. 27-140).

The Direct Appeal

In his direct appeal before the Texas Court of Criminal Appeals, the

petitioner raised two claims relevant to this Petition for a Writ of Certiorari:



“The trial court’s acquiescence in defense counsel’s race-based exclusion of

prospective juror [# 467] violated the Equal Protection Clause.”



“The prosecution team’s acquiescence in defense counsel’s race-based

exclusion of prospective juror [# 467] violated the Equal Protection Clause.”

The petitioner pointedly did not raise a claim of ineffective assistance of counsel.3

In addressing the two issues raised by the defense, the Texas Court of

Criminal Appeals stated that it was not clear that Batson v. Kentucky and Georgia

v. McCollum—upon which the petitioner had relied—applied to this fact situation.

Irsan v. State, 708 S.W.3d 584, 600 (Tex. Crim. App. 2025) (citing Batson v.

Kentucky, 476 U.S. 79, 89 (1986); Georgia v. McCollum, 505 U.S. 42, 59 (1992)).

The Court of Criminal Appeals held that the petitioner’s claims were procedurally

defaulted because no objection had been raised at trial. Irsan, 708 S.W.3d at 600.

The Court drew an analogy to the review of a Batson objection to the exercise of

peremptory challenges:

“Batson error,” we have said, “is subject to principles of ordinary

procedural default.” Batiste v. State, 888 S.W.2d 9, 17 n.5 (Tex. Crim.

App. 1994). If a defendant does not object to what he believes to be

race-based peremptory strikes, he forfeits his opportunity for a hearing

in which the State can offer race-neutral explanations to any prima

facie case of purposeful discrimination. See id. It follows that a trial

court has no sua sponte duty to initiate the Batson protocol by

Throughout every stage of these proceedings—including before this Court—the petitioner

has not directly challenged the actions of his trial attorney, but has instead challenged the inaction

of the trial judge and the trial prosecutor.

demanding race-neutral explanations for the State’s peremptory

strikes.

Irsan, 708 S.W.3d at 600.

The Court of Criminal Appeals held that the petitioner had not

satisfactorily explained why, even though a trial court has no sua

sponte duty to demand race-neutral explanations from the State, it

nevertheless has (or should have) a sua sponte duty to demand raceneutral explanations from the defense. He suggests that such a duty

might arise when it becomes “apparent” that the defense is engaging in

racial discrimination. But under ordinary rules of procedural default,

the egregiousness of an alleged error does not transform a forfeitable

claim into one that is immune from procedural default. See Proenza v.

State, 541 S.W.3d 786, 796 (Tex. Crim. App. 2017) (“[A] proper

determination of a claim’s availability on appeal should not involve

peering behind the procedural-default curtain to look at the particular

circumstances of the claim within the case at hand.”) (internal

quotation marks omitted). Neither we nor the Supreme Court have

ever held that some Batson or McCollum violations are so egregious (or

“apparent”) that the trial court must, on its own initiative, intervene.

See McCollum, 505 U.S. at 59 (“if the State demonstrates a prima facie

case of racial discrimination by the defendants, the defendants must

articulate a racially neutral explanation for peremptory challenges.”)

(emphasis added).

Irsan, 708 S.W.3d at 600-01.

Argument

The Texas Court of Criminal Appeals correctly held that the petitioner

procedurally defaulted his Equal Protection claim.

This Court has consistently held that a state may impose a requirement that

a claim regarding a purported Equal Protection violation first be raised at trial. See

Ford v. Georgia, 498 U.S. 411, 422 (1991) (“The requirement that any Batson claim

be raised not only before trial, but in the period between the selection of the jurors

and the administration of their oaths, is a sensible rule.”). In Batson itself, this

Court “recognized that local practices would indicate the proper deadlines in the

contexts of the various procedures used to try criminal cases, and [this Court] left it

to the trial courts, with their wide ‘variety of jury selection practices,’ to implement

Batson in the first instance.” Ford, 498 U.S. at 423. (citing Batson, 476 U.S. at 99

n.24). Undoubtedly, then, a state court may adopt a general rule that a Batson

claim is untimely if it is raised for the first time on appeal, or after the jury is

sworn, or before its members are selected. Ford, 498 U.S. at 423.4

This Court has consistently held that, even regarding constitutional error, an

objection should be raised at trial regarding that claimed error, and such claims

should not be raised for the first time on appeal. Wainwright v. Sykes, 433 U.S. 72,

86 (1977) (with regard to a claim that a defendant’s confession was involuntary

under the United States Constitution, this Court “reaffirmed the view that the

Constitution

does

not

require

voluntariness

hearing

absent

some

contemporaneous challenge to the use of the confession.”).

“With very rare exceptions,” this Court “will not consider a petitioner’s

federal claim unless it was either addressed by or properly presented to the state

court that rendered the decision [this Court has] been asked to review.” Campbell

v. Louisiana, 523 U.S. 392, 403 (1998) (citing Adams v. Robinson, 520 U.S. 83, 86

(1997)). The failure to timely object amounts to an independent and adequate state

In Ford, this Court ultimately rejected the retroactive application of a procedural default

rule because an objection had in fact been made at that defendant’s trial. In this case, no objection

was made at any time at trial.

procedural ground that would prevent direct review by this Court. Wainwright, 433

U.S. at 86-87 (citing Henry v. Mississippi, 379 U.S. 43 (1965)).

As is the case throughout the United States, Texas imposes a requirement

upon its litigants that issues first be raised at trial before they can be addressed on

appeal. As a prerequisite to presenting a complaint for appellate review, the record

must show that:

(1) the complaint was made to the trial court by a timely

request, objection, or motion that:

(A) stated the grounds for the ruling that the complaining

party sought from the trial court with sufficient specificity to

make the trial court aware of the complaint, unless the specific

grounds were apparent from the context; and

(B) complied with the requirements of the Texas Rules of

Civil or Criminal Evidence or the Texas Rules of Civil or

Appellate Procedure; and

(2) the trial court:

(A) ruled on the request, objection, or motion, either

expressly or implicitly; or

(B) refused to rule on the request, objection, or motion,

and the complaining party objected to the refusal.

TEX. R. APP. P. 33.1(a). The responsibility of asserting forfeitable rights belongs to

the litigants, and not the trial judge. This is why such rights will be unavailable on

appeal if not urged at trial. An appellate court should not find error in a trial

judge’s

inaction

when

contemporaneous

action

neither

requested

nor

independently required of her. Proenza v. State, 541 S.W.3d 786, 797 (Tex. Crim.

App. 2017).

The Texas Court of Criminal Appeals has identified certain rights that can be

raised for the first time on appeal, noting that there are three categories of rights,

the first two of which can be raised for the first time on appeal:

1. Rights that are widely considered so fundamental to the proper functioning

of our adjudicatory process that they cannot be forfeited by inaction alone.

These are considered absolute or systemic rights.

2. Rights that are not forfeitable—they cannot be surrendered by mere inaction,

but are waivable if the waiver is affirmatively, plainly, freely, and

intelligently made.

The trial judge has an independent duty to implement

these rights absent any request unless there is an effective express waiver.

3. Rights are forfeitable and must be requested by the litigant. Many rights of

the criminal defendant, including some constitutional rights, are in this

category and can be forfeited by inaction.

Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014). See Marin v. State, 851

S.W.2d 275, 279-80 (Tex. Crim. App. 1993).

In this case, the petitioner has drawn an analogy to Batson jurisprudence,

but—consistent with the holding reached in this case—the Texas Court of Criminal

Appeals has uniformly held that a Batson claim is not excepted from the general

rules of procedural default. See Williams v. State, 301 S.W.3d 675, 688 (Tex. Crim.

App. 2009), cert. denied, 560 U.S. 966 (2010) (error not preserved on Batson issue

when defense counsel did not secure an express or implied ruling on his Batson

challenge regarding particular prospective juror).