# Petition for Writ of Certiorari — Salinas v. Texas

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 823

## Text

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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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

ee ee

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

EE

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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

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