Petition for Writ of Certiorari — Salinas v. Texas

No._B427 01 wn 20 1995

ee oe aie a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

CARLOS 0. SALINAS,

Petitioner,

vs.

THE STATE OF TEXAS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

to the

Texas Court of Appeals

Por the Thirteenth District

JOSEPH A. CONNORS III

Texas Bar No. 04705400

212 W. Nolana Loop

McAllen, Texas 78504-5838

(210) 687-8217

(210) 687-8230 FAX

ATTORNEY FOR PETITIONER

June 20, 1995

ISSUE PRESENTED

Because the prosecutors did not come

forward with any explanation for the State's

peremptory strikes of veniremen Flores and

Torres, the State denied equal protection rights

guaranteed under the Fourteenth Amendment to the

U.S. Constitution. Those fundamental rights

were again denied by the trial and appeals

courts below, after both courts found the

unrebutted facts established a prima facie case

of purposeful discrimination. Nevertheless, the

Texas Court of Appeals affirmed Petitioner's

convictions of guilt.

TD2: SALINAS. PET i

LIST _OF ALL PARTIES BELOW

The original parties before the Texas Court

of Appeals for the Thirteenth District were the

State of Texas and Petitioner Carlos Ochoa

Salinas.

T PF RE ED CASES

AND PROCEEDINGS

This case has not previously come before

this Court. Petitioner's undersigned counsel is

not aware of any other related case pending

before this Court.

DENTITY OF DEFENSE COUNSEL BELOW

Petitioner Carlos Ochoa Salinas was

represented at trial and on appeal by criminal

defense attorney Joseph A. Connors III of

McAllen, Texas.

TD2: SALINAS. PET ii

TABLE OF CONTENTS

(SSUE PRESENTED a * * ° J a e - ° & o e

LIST OF ALL PARTIES BELOW. ......,

STATEMENT OF RELATED CASES

AND PROCEEDINGS e ° o + s eo e eo * *

IDENTITY OF DEFENSE COUNSEL BELOW °

TABLE OF CONTENTS eel Boke geo ge 6 ee %

LIST OF AUTHORITIES Cie hie eee eg a

OPINION BELOW 62 6 te ee: 6 Ege

PUREE 6s nee awk ece so

RELEVANT CONSTITUTIONAL PROVISIONS ..

REASON FOR GRANTING REVIEW ......

STATEMENT OF THE CASE eee. ee: et es

WO 5 es a ees

RAP eS ke ee

LIST OP AUTHORITIES

Cases

Alvarado v. U.S., 497 U.S. 543,

110 S.Ct. 2995, 111 L.Ed.2d 439

(1990) \° a ° o * 2 © . ro . P © a . e . . 12

Batson v. Kentucky, 476 U.S. 79,

106 S. Ct. 1712,

90 L.Ed.2d 69 (1986) ae Se woes 2-7, 9-12, 14

Brown v. North Carolina, 479 U.S. 940,

107 &.Ct. 423, 424,

93 L.Ed.2d 373 (1986) ... gtk koa we oe ke

Castafieda v. Partida, 430 U.S. 482,

97 §.Ct. 1272, 1280,

91 L.Ed.2d 498 (1977) .... : pe igt ea ee

Delo v. Lashley, 113 S.ct. 1222 anes) osee 9

Director, OWCP v. Greenwich Colleries,

114 S.Ct. 2251 (1994) ..... Pe EE

Georgia v. McCollum, 505 T.85 .

112 S.Ct. 2348,

120 L.Ed.2d 33 (1992) ... o eae ee ee

Hernandez v. New York, 500 wo...

111 S.Ct. 1859, 1886,

114 L.Ed.2d 395 RSEES ooo eke 6, 33

Holland v. Illinois, 493 U.S. 474,

McDonnell Douglas Corp. v. Green,

411 U.S. 792, 93 Ss. ct. 1817,

36 L.Ed.2d 668 (1973) .. We es ele ee

Mead v. State, 819 S.W.2d 869

(Tex.Cr.App. 1991) . * * * a ” . e . * 12

TD2 : SALINAS . PET iv

Se ee ee se ee ———s

TS ee = we Bi Pr et sdiiie

4 ae

"

Powers v. Ohin, 499 U.S. 400,

111 &.Ct. 1364, 113 L.Ed.2d 411

0 REE ee a ee eee © ney

Salinas v. State, 888 S.W.2d 93

(Tex.App.=-Corpus Christi 1994),

pet. ref'd, _§_S.W.2d __

Orie cur emi, 2900) .6 es we es ee dy 9, 10

Texas Dept. of Community Affairs

v. Burdine, 450 U.S. 248,

101 S. Ct. 1089, 1093-94,

G7 termeiae a0? SA908) 6 tl lw ee et tte

Statutes

PU Babs SARTO oe a he ees eee yg eA

Article 35.261, Texas Code of Criminal

Procedu re 2 * 7 a 7 * * s * m + o # - 4

Texts

Charles E. Torcia, Wharton's Criminal

Evidence, page 29 (1985) ........ 8

Texas Rules of Evidence Manual,

eee ee as ck 4 ee ww OK

Constutution

Fourteenth Amendment of the United

States Constitution ....... 2, 4, 13

Rules

Supreme Court Rule 10.1(c) ......e«. 2

Supreme Court Rule 13.1.....

TD2 : SALINAS . PET Vv

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OEE. SET RSI ERIE SSE

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Sak $I nah FE a

PER aA fa ahaotas in A Sy De GO ae it alae

OPINION BELOW

The opinion of the court of appeals

(Pet.App. 1-28) is reported. Salinas v. State,

888 S.W.2d 93 (Tex.App.—Corpus Christi 1994),

pet. ref'd, S.W.2d (Tex.Cr.App. 1995).

JURISDICTION

The Texas Court of Appeals for the

thirteenth judicial district entered its

judgments and opinion on October 13, 1994. That

Court of Appeals overruled Petitioner's timely

filed petitions for rehearing on November 17,

1994. On December 14, 1994, the Petitioner

timely mailed for filing his petitions for

discretionary review. The Texas Court of

Criminal Appeals refused Petitioner's petitions

for discretionary review on March 22, 1995.

Within the 90 day period following March 22,

1995, Petitioner timely mailed this petition for

writ of certiorari for filing by the Clerk of

this Court. Supreme Court Rule 13.1. The

jurisdiction of this Court is invoked under 28

U.S.C. 1257(3).

TD2: SALINAS. PET 1

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RELEVANT CONSTITUTIONAL PROVISIONS

Section 1 of the Fourteenth Amendment of

the United States Constitution provides:

Any persons born or naturalized in the

United States, and subject to’ the

jurisdiction thereof, are citizens of the

United States and of the State wherein

they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any State

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction

the equal protection of the laws.

REASON FOR GRANTING REVIEW

The Texas Court of Appeals has decided a

federal question in a way that conflicts with

Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.

1712, 90 L.Ed.2d 69 (1986). See Supreme Court

Rule 10.1(c).

Petitioner's conviction should be

Overturned because the State failed to sustain

its burden of production, and therefore failed

to rebut Petitioner's prima facie case of

discrimination in use of the State's peremptory

challenges during jury selection. Batson, 476

TD2: SALINAS . PET 2

U.S. at 100, 106 S.Ct. at 1725. There the Court

said:

: If the trial court decides the facts

establish, prima facie, purposeful

} discrimination and the prosecutor does not

; come forward with a neutral explanation

for his action, our precedents require

' that petitioner's conviction be reversed.

E.g., Whitus v. Georgia, 385 U.S., at 549-

| 550, 87 S§.Ct., at 646-47; Hernandez v.

: Texas, 347 U.S., at 482, 74 S.Ct., at 672-

673; Patton v. Mississippi, 332 U.S., at

469, 68 S.Ct., at 187. (Footnote omitted)

STATEMENT OF THE CASE

This Court has jurisdiction to review the

judgments below on a writ of certiorari.

| On September 29, 1992, the trial court

denied Petitioner's motion to dismiss the array

after the trial court conducted a Batson

evidentiary hearing (Pet.App. 33-77), after

Petitioner made a prima facie showing of the

prosecutors’ peremptorily striking many

Hispanics (Pet.App. 8, 37-43, 47).

On October 7, 1994, the jury found

Petitioner Carlos Salinas guilty on count 1 of

murder and on count 3 of attempted murder in

Cause number CR-1044-90-A. The jury assessed

TD2: SALINAS. PET 3

punishment at confinement in prison for forty-

five years and twenty-five years respectively.

On October 13, 1994, the 13th Texas Court

of Appeals affirmed the judgments of conviction

and reversed the judgments as to the punishment

and remanded the causes to the trial court

(Pet.App. 1-28).

During appeal to the Texas Court of

Appeals, Petitioner raised seven points of

error. Only those contending racially biased

jury selection are relevant here. In his points

of error nos. 5Al1, 5A2, 6Al and 6A2, Petitioner

complained the trial court reversibly erred (a)

in not presuming race under the Batson case and

the U.S. Constitution's Fourteenth Amendment's

equal protection clause, as the basis of the

State's strike on prospective jurors Eligio

Flores and Daniel Torres, Jr., as to whom the

State gave no explanation for its peremptory

Strikes and/or (b) in denying Petitioner's

motion to dismiss the array and to call a new

array under Article 35.261, Texas Code of

TD2: SALINAS. PET 4

TS

Criminal Procedure, for the State's racial

excluding from the jury prospective jurors

Eligio Flores and Daniel Torres, Jr., as to each

of whom the State gave no explanation for its

peremptory strike.

Rejecting Petitioner's contentions and

reliance on Batson, the Texas Court of Appeals

held that the prosecution's failure to provide

explanations as to two venire-members did not

amount to error. The Texas Court of Appeals

said (footnote omitted) (Pet.App. 15-16):

Our holding here is simply that despite

the State's failure to explain its removal

of veniremembers Flores and Torres, the

trial court's conclusion that the State's

use of its strikes was not race-based is

Supportable by other circumstances, i.e.,

the overwhelming number of Hispanics on

the venire and the petit jury. In

addition, the prosecutors gave race-

neutral explanations for the strikes which

appellant questioned.

We recognize that the prosecutors did

not comply with Wright's procedural

requirements. In most cases such failure

would constitute reversible error. Our

holding is peculiar to the facts of this

case. While it would have been better

practice for the State to have explained

all of its strikes, we find no reversible

error in this case. Appellant's fifth and

sixth points of error are overruled.

5

TD2: SALINAS . PET

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ARGUMENT

The trial court and the Texas Court of

Appeals both reversibly erred in holding

that the State had no burden herein to

rebut Petitioner's prima facie Batson

showing of discrimination in the State's

unexplained use of two peremptory strikes.

Under Batson v. Kentucky, 476 U.S. 98

(1986), once the opponent of a peremptory

challenge has made out a prima facie case of

racial discrimination, the burden of production

shifts to the proponent of the strike to come

forward with a race-neutral explanation for the

strike. If no explanation is offered by the

State, the defendant's conviction must be

reversed. Id., 476 U.S. at 100. However, if a

race-neutral explanation is tendered, the trial

court must then decide whether the opponent of

the strike has proved purposeful discrimination.

Hernandez v. New York, 500 U.S. 352, 358-359

(1991)

(plurality opinion) § id., at 375

(O'Connor, J., concurring in judgment).

The "burden of proof" within the

Batson doctrine is three-fold in that it is a

TD2: SALINAS . PET

Te a er a) en

shifting burden. Initially, the burden of proof

lies with the opponent of the peremptory strike.

Batson, supra, 476 U.S. at 98. In all cases

alleging racial discrimination the complainant

must first establish a prima facie case of

racial discrimination. Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248, 252-253, 101

S. Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981)

[plaintiff's establishment of prima _ facie

discrimination raises a presumption of unlawful

discrimination].

"A presumption is not evidence in itself,

however, a presumption operates to relieve the

party in whose favor it works from going forward

in argument or evidence. It also serves

therefore the purposes of a prima facie case."

Delo v. Lashley, 113 S.Ct. 1222, 1228 (1993).

"All other presumptions are rebuttable by

contravening evidence. However, unless and

until contravening evidence is presented, a

presumption gives rise to a mandatory deduction,

i.e. the presumed fact must be assumed from

TD2: SALINAS. PET 7

proof of the basic fact." (Footnote omitted)

Charles E. Torcia, Wharton's Criminal Evidence,

page 29 (1985); Texas Rules of Evidence Manual,

Article III, (1991).

This presumption is rebuttable as _ the

"burden of production" then shifts to the

defendant to come forward with an explanation.

McDonnell Douglas Corp. v. Green, 411 U.S. 792,

93 S. Ct. 1817, 36 L.Ed.2d 668 (1973) [defendant

may rebut this presumption by introducing

evidence of legitimate and nondiscriminatory

reasons for their actions]; Director, OWCP v.

Greenwich Colleries, 114 §.Ct. 2251, 2259 (1994)

[once the licensee establishes a prima facie

case, the burden shifts to the government to

rebut it). "This rule of shifting persuasion is

compatible with a rule placing the burden of

persuasion on the applicant, because when the

party with the burden of persuasion establishes

a prima facie case supported by credible and

credited evidence, it must either be rebutted or

accepted as true." Id., 114 S.Ct. at 2259.

TD2: SALINAS . PET 8

Silence, or the refusal or failure to offer

a rebuttal did not amount either to raising an

issue or to carrying the burden of production

against a prima facie case.

Petitioner's convictions should be

overturned because the State failed to sustain

its burden of production, and therefore failed

to rebut Petitioner's prima facie case of

discrimination in jury selection. Batson, 476

B.Be Os. 4560; °3606 OC. eG 01725: (*8f ...: the

prosecutor does not come forward with a neutral

explanation for his action, our precedents

require petitioner's conviction be reversed"].

The Texas Court of Appeals attempted to

sidestep the State prosecutors’ failure to offer

an explanation with the fact that the first

eighteen eligible panel members were Hispanic,

and that twenty-four of the first twenty-five

eligible members were also Hispanic (Pet.App.

14-16). Salinas v. State, supra, 888 S.W.2d at

99 (Tex.App.—Corpus Christi 1994) [the

Overwhelming number of Hispanics on the venire

TD2: SALINAS . PET 9

stig

and the petit jury]. In spite of Batson, the

Texas Court of Appeals also emphasized the fact

that the State's attorneys and the trial judge

i who ruled on the complaint were Hispanic

(Pet.App. 14). Salinas, supra, 888 S.W.2d at

98.

The Texas Court of Appeals was unduly

influenced by the ethnicity of the community in

which the trial court was located. Both courts

below disregarded the controlling law in this

case: Batson requires the proponent of the

strike to come forward with an explanation to

rebut the opponent's prima facie showing of

discriminatory intent.

The Texas Court of Appeals, in effect,

overruled Batson by finding no error allowing

the State to refuse to offer any evidence for

Striking veniremen Torres and Flores. In

failing to sustain its burden of production, the

State conceded or accepted Petitioner's prima

facie showing of discriminatory intent.

TD2: SALINAS . PET 10

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Not only did the Texas Court of Appeals err

in misapplying Batson and its progeny, that

Court of Appeals also erred in finding no

federal Constitutional equal protection

violation.

In Batson challenges as in all equal

protection claims, the defendant must show that

the prosecutor deliberately used the State's

peremptory challenges for the purpose of

excluding a minority person from the jury.

Hernandez v. New York, 500 U.S. » B28. See.

1859, 1886, 114 L.Ed.2d 395 (1991).

The goal of Batson was not only to guard

the equal protection rights of individual

defendants from racial discrimination in the

selection of jurors, but also to secure the

rights of the prospective jurors and the

community at large from racial discrimination in

the selection of juries. Powers v. Ohio, 499

U.S. 400, 111 S.Ct. 1364, 1370-1374, 113 L.Ed.2d

411 (1991); Holland v. Illinois, 493 U.S. 474,

110 S.Ct. 803, 107 L.Ed.2d 905 (1990).

11

TD2: SALINAS . PET

A criminal defendant may object to the

State's racially discriminatory exclusions of

prospective jurors through the exercise of

peremptory challenges whether or not the

defendant and the excluded venireperson share

the same race. Powers, 499 U.S. at ee & F

S.Ct. at 1373; Mead v. State, 819 S.W.2d 869

(Tex.Cr.App. 1991). "Batson represents a special

rule of relevance, a statement about what this

Nation stands for, rather than a statement of

fact." Brown v. North Carolina, 479 U.S. 940,

941-942, 107 S.Ct. 423, 424, 93 L.Ed.2d 373

(1986) [O'Connor, J., concurring in opinion

denying certiorari.]. Batson is a commitment by

the courts to eradicate any vestige of racial

discrimination in the administration of justice.

Id.

Additionally, the Texas Court of Appeals

erred in weighing federal Constitutional rights.

Contrary to the ruling in Alvarado v. U.S., 497

U.S. 543, 110 S.Ct. 2995, 111 L.Ed.2d 439

(1990), the Texas Court of Appeals in effect

TD2: SALINAS . PET 12

held that since for Petitioner the Sixth

Amendment's requirement of a fair cross section

had been met, there was no need to consider

under the Fourteenth Amendment's equal

protection clause, Petitioner's claim that the

State had not met its burden of persuasion as

required in Batson v. Kentucky, 476 U.S. 79

(1986).

Petitioner showed himself to be a member of

an identifiable racial or ethnic group. ? owe

Mexican-Americans are a clearly identifiable

Class." Castafieda v. Partida, 430 U.S. 482,

496, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977)

[state did not rebut criminal defendant's prima

facie case showing discrimination against

Mexican-Americans in the grand jury selection in

Hidalgo County, Texas, so there was a fatal

denial of equal protection of the law in the

grand jury selection process in Partida's case].

Hidalgo County, Texas, is the situs for the

above Partida case as well as the county where

Petitioner Salinas was jury tried after

TD2: SALINAS . PET 13

unsuccessfully asserting each Hispanic and Anglo

venireperson's right to the equal opportunity to

serve on a jury free from being peremptorily

struck by the State's racially based

NS AN PLR ESET EE LORI EOE SB AH wat,

discriminatory motives. Powers v. Ohio, 499

U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411

Morita ea?

(1991); Georgia v. McCollum, 505 U.S. , 2a

S.Ct. 2348, 120 L.Ed.2d 33 (1992).

EAN ONAN eet once alsa

Petitioner's prima facie showing of the

State's discrimination shifted the burden of

persuasion onto the State to prove that the

prosecutors did not strike based upon race.

Batson, id., 476 U.S. at 1723-25. The State

failed to explain its motivation for striking

veniremen Eligio Flores and Daniel Torres, Jr.

Therefore, both Petitioner's convictions should

be overturned based on his Constitutional "right

to be tried by a jury whose members are selected

pursuant to nondiscriminatory criteria."

Batson, id., 476 U.S. at 85-85, 106 S.Ct. at

1717.

TD2: SALINAS . PET

CONCLUSION

For all of the forgoing reasons, Petitioner

respectfully urges this Court to grant this writ

of certiorari, and remand these cases to the

Texas Court of Appeals with instructions to

reverse Petitioner's judgments of conviction as

Constitutionally invalid.

DATED: June 20, 1995.

Respectfully submitted by,

Petitioner's Attorney,

’ myrno> WC

SEPH A. CONNORS, III

Counsel of Record

McAllen, Texas 78502-5838

(210) 687-8217

(210) 687-8230 FAX

sh he

TD2:SALINAS . PET 15