Henry Andre Winzer v. State

AFFIRM; and Opinion Filed August 18, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-01079-CR
HENRY ANDRE WINZER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 14-00334-422-F
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Whitehill
Opinion by Justice Lang-Miers
Appellant Henry Andre Winzer was convicted by a jury of aggravated assault with a
deadly weapon against a peace officer. In accordance with an agreement between appellant and
the State as to punishment, the trial court sentenced appellant to five years in prison. On appeal,
appellant argues that the trial court erred by denying his Batson challenge. Because the issues
are settled, we issue this memorandum opinion. TEX. R. APP. P. 47.4. We affirm.
BACKGROUND
The police responded to multiple reports that appellant’s adult son was walking up and
down the street behaving erratically and possibly waving a gun. When the police arrived near
appellant’s house, his son fired a gun at them. Police returned fire and hit his son. His son
retreated to the back yard and the police followed him. There they found appellant trying to help
his son onto the porch. Both men resisted arrest and appellant bit one of the officers while they
were struggling to arrest him. Appellant’s son died at the scene from gunshot wounds.
This is an appeal from appellant’s conviction for aggravated assault with a deadly
weapon against a peace officer.
ISSUE ON APPEAL
In his sole issue on appeal, appellant argues that the trial court erred when it denied his
Batson challenge to the State’s strikes of “all three potential black jurors.” Appellant argues that
the State’s explanations for its strikes were a pretext for racial discrimination.
Applicable Law and Standard of Review
The Texas Code of Criminal Procedure prohibits the use of peremptory challenges to
exclude prospective jurors on the basis of race. TEX. CODE CRIM. PROC. ANN. art. 35.261 (West
2006). Additionally, striking a prospective juror on the basis of race violates the equal protection
guarantees of the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 85 (1986).
Resolution of a Batson challenge raised by a defendant is a three-step process:
First, the defendant must make a prima facie case that a venire member was
peremptorily excluded on the basis of race. Next, the prosecution must come
forward with race-neutral reasons for the peremptory strike. Finally, the
defendant has the opportunity to rebut the State's explanations. The burden of
persuasion remains with the defendant to prove purposeful discrimination. In
Purkett v. Elem, the United States Supreme Court explained that “unless a
discriminatory intent is inherent in the prosecutor's explanation, the reason offered
will be deemed race neutral.”
Shuffield v. State, 189 S.W.3d 782, 785 (Tex. Crim. App. 2006) (footnotes omitted); see
Blackman v. State, 414 S.W.3d 757, 764–65 (Tex. Crim. App. 2013) (articulating three steps and
noting opponent of strike has “burden of persuasion to establish by a preponderance of the
evidence that the strike was indeed the product of purposeful discrimination”). On appeal, we
examine a trial court’s conclusion that a racially neutral explanation is genuine, and not a pretext,
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with great deference, and reverse only when that conclusion is, in view of the voir dire record as
a whole, clearly erroneous. Blackman, 414 S.W.3d at 765.
Analysis
Appellant’s Batson challenge related to potential jurors Long, Mitchell, and Pickron. 1
After appellant’s counsel stated his Batson challenge, the State explained the reasons for its
strikes as follows:
If you’ll note that Long is a teacher. The State also struck Hacker, who is also a
teacher. We struck Ms. Kennedy, who is also a teacher. Ms. Trosper was a
teacher, but—well, she is a teacher, but she was stricken for cause. The rest of
them, your Honor, were those who had issues with the police. That would include
Ms. Pickron or Ms. Mitchell. I think [appellant also] struck Ms. Pickron. . . . So
we struck all teachers, and we struck everyone who had law enforcement issues.
And it just so happened that two were African American on the law enforcement
side, and one was a teacher on the African American side.
In response, appellant’s counsel (1) acknowledged that he also struck Pickron, (2) disputed that
Mitchell said she had problems with law enforcement, and (3) argued that striking Long because
she was a teacher is not a legitimate, race-neutral explanation.
The prosecutor again explained that the State struck all teachers, regardless of race:
Your Honor, just for record purposes, I want it to be noted Ms. Long, that’s duly
noted she was a teacher. We 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. In this case in particular the State went into it
knowing they did not want teachers or persons who were sympathetic because this
is a very sympathy oriented case.
With respect to Mitchell, the prosecutor explained that the State struck everyone who said
they thought the system was unfair or who said they had a bad experience with the police,
regardless of race, except for two jurors who had personal relationships with police officers:
As relates to Ms. Mitchell, I believe that the defense is stating that she did not
indicate that she thought that the system was unfair.
1
Appellant argues that the strike of a third potential juror, Pickron, demonstrates the State’s pattern of eliminating African-American jurors
and not that the strike itself violated Batson.
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Judge, I’d like the Court to know and the record to reflect that she was
called up to the bench for that exact purpose. She stated that she felt like the
system was unfair. Not only did we use a peremptory strike on her, but we also
used one on Holloman [sic] who said that the system could not be fair, even
though he came—approached, said that he felt like he could be fair. We also used
one on Goble, who said she felt like the criminal justice system could not be fair.
She came to the bench, said she felt like she could be fair; but we still struck her. I
could continue with the entire list.
Every person that said that they had a bad experience with a police officer,
we struck them, with the exception of two persons. And that would be Mr. Carr
[sic], because when he came up he indicated not only could he be fair, but he had
police officers that were currently his friends. Ms. Haney or Mr. Haney noted
that same thing, that not only could he be fair, but that was 15 years prior, and that
he had one of his best friends that was in his wedding was a peace officer. So the
State felt comfortable with keeping those two persons.
Appellant’s counsel did not question the prosecutor or introduce evidence to rebut the
State’s explanations but stated that, as a result of the State’s strikes, there would be no African-
American jurors. Appellant’s counsel asked the trial court to “disallow the strike of 20 [Long]
and 25 [Mitchell].” 2
Venire Member Long
Appellant argues that the State’s explanation that it struck Long because she was a
teacher was pretextual. Appellant contends that the only communication with Long during voir
dire was when she responded “yes” when asked if she could consider the full range of
punishment. He argues that her answer to that question “belies the idea that she [was] somehow
particularly sensitive.” He contends that, under Keeton v. State, 749 S.W.2d 861, 868 (Tex.
Crim. App. 1988), Whitsey v. State, 796 S.W.2d 707, 713–15 (Tex. Crim. App. 1989), and
Emerson v. State, 851 S.W.2d 269, 273 (Tex. Crim. App. 1993), the State’s race-neutral
explanation—that she was a teacher and the State viewed teachers as more sympathetic and, as a
2
Although appellant’s counsel filed a motion to supplement the appellate record to include the juror information sheets and information on
peremptory strikes, in oral argument, appellant’s counsel stated that “the juror information cards in Kaufman [County] give us no information”
and conceded that he did not think that there would be any information in the juror information sheets that would be helpful in the disposition of
this case.
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result, struck all teachers—was impermissible and pretextual because the group trait “was not
shown to apply to Long specifically.” Appellant argues that Keeton, Whitsey, and Emerson
require the State to question venire member Long individually to determine whether the alleged
group bias—the sympathetic nature of teachers—applied to her.
The State contends that its explanation for striking venire member Long was race neutral,
and that appellant did not rebut the prosecutor’s explanation that Long was struck along with all
other teachers from the panel. 3 We agree.
The State’s reason that it excluded all teachers from the venire panel is race neutral. See
Williams v. State, 939 S.W.2d 703, 706 (Tex. App.—Eastland 1997, no pet.); see also Rhoades v.
State, 934 S.W.2d 113, 124 (Tex. Crim. App. 1996) (race-neutral reasons included that
prospective juror “was an elementary school teacher and might identify too closely with
evidence of appellant’s difficult childhood”). Appellant did not offer any evidence in rebuttal to
the State’s race-neutral reason for striking Long. Instead, appellant’s only response was: “I don’t
think striking a juror because they’re a teacher is a legitimate, race neutral explanation; and I
would contend that that’s a pretext for a strike for a juror based upon racial reasons.”
The court of criminal appeals in Grant v. State, 325 S.W.3d 655, 659 (Tex. Crim. App.
2010), described Keeton, Whitsey, and Emerson, cases relied on by appellant, as cases issued
shortly after Batson was decided that “suggested a number of factors that could be considered in
the third step of a Batson challenge.” But in reversing the court of appeals’s decision and
concluding the trial court did not clearly err in denying the Batson challenge, the Grant court
stated that the court of appeals “should have given deference to the trial court’s evaluation of the
prosecutor’s credibility and should not have given dispositive weight to the lack-of-questioning
3
Given our disposition of appellant’s issue, it is not necessary for us to address the State’s argument that appellant did not present an
adequate record to this Court.
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factor.” Id.at 661; see Nieto v. State, 365 S.W.3d 673, 678 (Tex. Crim. App. 2012); Vargas v.
State, 838 S.W.2d 552, 554 (Tex. Crim. App. 1992) (concluding that the prosecutor’s stated
reasons for strikes “are not rendered racially impermissible simply because he did not”
individually “question[] all of the stricken venirepersons”); Walker v. State, 859 S.W.2d 566, 568
(Tex. App.—Waco 1993, pet. ref’d) (concluding prosecutor’s non-discriminatory reasons for
strike were not impermissible simply because he did not individually question the stricken venire
members).
We conclude that the State’s non-discriminatory reason did not become impermissible
because the State did not individually question Long. And we also conclude that the trial court
did not err in denying appellant’s Batson challenge concerning Long. See, e.g., Chamberlain v.
State, 998 S.W.2d 230, 236 (Tex. Crim. App. 1999); Satterwhite v. State, 858 S.W.2d 412, 424
(Tex. Crim. App. 1993) (holding appellant failed to carry his burden of showing racial
discrimination because appellant did not cross-examine the prosecutor or offer any evidence to
rebut prosecutor’s race-neutral explanations); see also Crew v. State, No. 05-08-00959-CR, 2009
WL 2712386, at *4 (Tex. App.—Dallas Aug. 31, 2009, pet. ref’d) (mem. op., not designated for
publication) (“Once the State provided its race-neutral explanation for the strike, appellant made
no further argument against the explanation such as questioning the prosecutor or offering his
own evidence of impermissible motive. Thus, on the record before us we cannot say the trial
court’s decision to overrule appellant’s Batson challenge was clearly erroneous.”) (internal
citation omitted); Daniels v. State, No. 05-06-01363-CR, 2008 WL 444467, at *5 (Tex. App.—
Dallas Feb. 20, 2008, pet. ref’d) (mem. op., not designated for publication) (concluding trial
court’s ruling denying Batson challenge was not clearly erroneous because, “[b]y failing to
challenge any of the State’s race-neutral reasons for striking the jurors, appellant did not meet his
burden of showing the State’s explanations were pretextual”).
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Venire Member Mitchell
During voir dire, Mitchell responded to the question of whether she felt “like the criminal
justice system is unfair to minorities” with “Uh-ugh” and later stated “Yes” when asked if she
thought that the system was unfair. Mitchell stated “[n]o” when asked if she or a friend had a
bad experience with a police officer. When questioned individually, Mitchell confirmed that she
thought “our system might not always be fair” but, in answer to the court, stated that she could
“put that aside in this case” and be fair and impartial. She also stated that she saw instances of
unfairness on television.
During the Batson hearing, the prosecutor stated that he struck Mitchell because she “had
issues with the police” and she stated that the justice system was unfair. He said that the State
struck all venire members who had law enforcement issues, with the exception of two jurors who
had personal relationships with police officers. Defense counsel contended that he did not
believe Mitchell “said she had any problems with law enforcement.” He noted that, during the
general voir dire, Mitchell stated the “system can be unfair at times” but then, in her individual
questioning, she “made it perfectly clear” that “she was not saying the system is always unfair”
but acknowledged that the system is not fair and correct in every case. Defense counsel said that
the State was not accurately stating what Mitchell said and asked the court to disallow the State’s
strike of Mitchell.
On appeal, appellant argues that the State’s reason, that Mitchell had “issues with the
police” or “law enforcement issues[,]” is not supported by the record. And appellant argues that
striking Mitchell because she stated that the legal system was unfair “cannot be said to be race
neutral in light of the record” because her answers during individual questioning reflected that
she did not believe that the system was unfair, or at least not any more unfair than the court
acknowledged. And appellant contends that he “notified the trial court at the Batson hearing that
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the State was misrepresenting Mitchell’s testimony.” The State argues that the record “amply
supports” the prosecutor’s concern that Mitchell had “law[ ]enforcement issues” and that defense
counsel did not rebut the State’s statement that the prosecutor struck every venire member “who
expressed the same negativity about the justice system or police who was not adequately
rehabilitated[.]”
The State’s reason that it excluded Mitchell from the jury panel is race neutral. See
Pondexter v. State, 942 S.W.2d 577, 581 (Tex. Crim. App. 1996) (explanation that venire
member believed criminal justice is fair “sometimes” was a race-neutral reason). As we noted,
Mitchell stated during voir dire that she thought the justice system was unfair. Although
Mitchell indicated during her individual questioning that she thought that she could be fair, the
prosecutor could have reasonably concluded that her earlier statement that the system was unfair
could result in a bias against returning a conviction. See Spears v. State, 902 S.W.2d 512, 517–
19, 522 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (concluding that trial court did not
clearly err in determining prosecutor’s strikes were not racially motivated when prosecutor could
reasonably conclude that a venire member “had indicated an unwillingness to convict and had
then changed her answer” during individual questioning and that another venire member would
be reluctant to find someone guilty “[a]lthough she indicated upon further questioning she
thought she could be fair to the State”); Green v. State, 839 S.W.2d 935, 939 (Tex. App.—Waco
1992, pet. ref’d); see also Vargas v. State, No. 05-96-01589-CR, 1999 WL 436848, at *5 (Tex.
App.—Dallas June 30, 1999, pet. ref’d) (not designated for publication) (“That [venire member]
eventually stated she would not let her feelings interfere with her verdict does not mean the State
has to accept her wavering answers.”).
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Appellant also argues that the State did not strike two additional white jurors—Carr and
Lowe—who testified that they had negative personal encounters with law enforcement. 4 In
response, the State contends that jurors Carr and Lowe were not similarly situated to Mitchell
because they “had objectively more benign interactions with police which they adequately
explained” and neither stated “that they believed the system is unfair in general.”
Disparate treatment is a factor we consider to determine whether the State’s facially race-
neutral explanation is a pretext for discrimination. See Johnson v. State, 959 S.W.2d 284, 292
(Tex. App.—Dallas 1997, pet. ref’d). In this case, appellant contends that the State struck
minority prospective jurors who gave answers similar to nonminority prospective jurors the State
did not strike. “We cannot, however, automatically impute disparate treatment in every case in
which a reason for striking a minority venireperson also technically applies to a non-minority
venireperson whom the prosecutor found acceptable.” Leadon v. State, 332 S.W.3d 600, 612
(Tex. App.—Houston [1st Dist.] 2010, no pet.); see Cantu v. State, 842 S.W.2d 667, 689 (Tex.
Crim. App. 1992). It “is unlikely that two venirepersons on one panel will possess the same
objectionable attribute or character trait in precisely the same degree.” Cantu, 842 S.W.2d at
689. Such differences may properly cause the State to challenge one potential juror and not
another. Id.; Leadon, 332 S.W.3d at 612.
During voir dire, Carr indicated that she or a family member had been mistreated by a
peace officer, but she stated to defense counsel that the experience would not affect how she
viewed the case and that she could be fair. When questioned individually, Carr stated that the
negative experience involved a police raid of a relative’s home in connection with her nephew’s
drug conviction. Carr confirmed that she would be able to listen to and consider evidence from
4
Appellant refers to the State’s claimed “improper closing arguments related to race” to demonstrate “even more clear[ly]” that the State’s
justifications for the challenged strikes were not race neutral. But Blackman, 414 S.W.3d at 765, refers to review of the entire voir dire record,
not to closing arguments, on review of a Batson challenge.
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police “’cause [her] son was a sheriff’s deputy.” Defense counsel asked her, “So you have no
problem with the police?” And she answered, “No, sir.” When Lowe was asked if she had a bad
experience with police, she answered, “I’ll call it a maybe. I mean I wasn’t happy.” When asked
individually if she had a bad police experience, she responded, “Not really[,]” and explained that
two female police officers responding to a disturbance call had been “really rude” to her. She
stated that it would not affect the way she feels about police and that she had “no disrespect for
law enforcement whatsoever.”
We conclude that the trial court did not err in denying appellant’s Batson challenge
concerning Mitchell.
Venire Member Pickron
Both the prosecution and defense struck venire member Pickron. During oral argument,
appellant stated he did not “suggest” the double strike of Pickron “as a ground to reverse” but
contended that he pointed out the strike of Pickron as “the pattern to show the purposeful
discrimination, the purposeful intent to remove all of the black jurors.” He stated that “it is the
other two”—Long and Mitchell—that appellant believed “are the basis of the reversal.”
Based on our conclusion that the trial court’s ruling denying appellant’s Batson challenge
concerning Long and Mitchell was not clearly erroneous and the fact that both sides struck
Pickron and that appellant conceded that the strike of Pickron is not a ground to reverse, we
conclude that the State’s strike of Pickron was harmless and does not apply to a Batson claim.
See, e.g., Robinson v. State, No. 01-89-00589-CR, 1990 WL 177270, at *3 (Tex. App.—Houston
[1st Dist.] Nov. 15, 1990, pet. ref’d) (not designated for publication) (“Appellant’s use of his
own peremptory challenge to strike the same venireperson renders the State’s use of a
peremptory challenge harmless and inapplicable to a Batson claim.”).
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We conclude that the trial court’s ruling denying appellant’s Batson challenge was not
clearly erroneous. We resolve appellant’s sole issue against him.
CONCLUSION
We affirm the trial court’s judgment.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
141079F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
HENRY ANDRE WINZER, Appellant On Appeal from the 422nd Judicial District
Court, Kaufman County, Texas
No. 05-14-01079-CR V. Trial Court Cause No. 14-00334-422-F.
Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee Justices Francis and Whitehill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 18th day of August, 2015.
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