Florence, Thomas Wayne

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Donna Kay M~Kinney
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District
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Clerk-· • Bexar County · ·
April 8, 2QJ 5
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Thomas Florence,
Thank you for your letter in regards to your writ application: Your writ application has
been forwarded to Galveston, as you do not have any pending cases here in Bexar County. Please
contact Galveston District Clerk's Office for any questions or concerns you may have about your
writ application.
Donna Kay MfKinney
Clerk ofthe District Courts
Bexar County, Texas
MONICA RIVER
DEPUTY DISTRICT CLERK
PAUL ELIZONDO TOWER* 101 W. NUEVA STE. 217 *SAN ANTONIO, TEXAS 78205-3002 * (210) 335-3141
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Challenges > Burdens of Proof
Criminal Law & Procedure > Juries & Jurors > Challenges to Jury Venire > Equal Protection
Challenges > Equal Protection Rule
Criminal Law & Procedure > Juries & Jurors > Challenges to Jury Venire >Equal Protection
WAEL A. KASSEM, Appellant v. THE STATE OF TExAS, Appellee Ch~llenges > Tests
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
263 S.W.3d 377; 2008 Tex. App. LEXIS 3298 Using a peremptory challenge to strike a potential juror because of race violates the Equal Protection
NO. 01·07-00463-CR Clause of the U.S. Constitution. as well as Tex. Code Crim. Proc. Ann. art. 35.261 (2006). i{the face of
:liMay18l\2008:f0piiiioii1~s!!H!.' Juries & Jurors > Challenges to Jury Venire >Equal Protection
Houston. TX. Challenges > Burdens of Proof
For APPELLEE: Marshall Shelsy, Office of Court Management. Criminal Law & Procedure > Juries & Jurors > Challenges to Jury Venire >Equal Protection
Houston. TX. Challenges > Tests
``-~f{~ii,!l~s~orisi``JfJ.~:~ti~eS_;Taft,4t$.ey~l'~and Alcala.
..... ~ In the context of a Batson challenge, if the defendant makes a prima facie case. the burden of production
CASE SUMMARY shifts to the State to present a race-neutral reason for its challenged strike, a reason that is a clear and
reasonably specific explanation of the legitimate reasons for exercising its strike. Tex. Code Crim. Proc.
Ann. art. 35.261 (a) (2006). When the prosecutor responds with a race-neutral explanation. the defendant
PROCEDURAL POSTURE: Defendant was convicted in a municipal court of failure to obey a traffic may rebut the State's explanation. In the third and final step. the trial court must decide whether the
control device. The County Criminal Court at Law No. 12. Harris County (Texas) affirmed. Defendant defendant carried the burden to establish purposeful discrimination. The trial court's inquiry addresses
appealed.A municipal court erred by denying defendant's Batson motion under Tex. Code Crim. Proc. whether the prosecutor contrived the neutral reasons provided for the peremptory challenge in order to
Ann. art. 35.261 because defendant's assertion, which was confirmed by the record, that the State used conceal racially discriminatory intent. Throughout the challenge, the burden of persuasion remains with the I
all of its strikes on jurors of a single race was sufficient to meet his prima facie burden. defendant. who may continue to rebut the prosecuto~s explanations before the trial court decides the
Batson challenge. Art. 35.261 (a). A defendant is entitled to a new trial if even a single juror is wrongfully
OVERVIEW: Defendant argued, inter alia, that the municipal court erred by denying his Batson motion excluded from serving.
because "the State used 100 percent of its peremptory strikes toward African-Americans that comprise
Criminal Law & Procedure > Juries & Jurors > Challenges to Jury Venire > Equal Protection
approximately a third or maybe 40 percent of the panel." The court of appeals agreed. On appeal, the
Challenges > Procedures
county criminal court at law properly determined that the municipal court erred by stating that Batson
applied only when the defendant was of the same race as the jurors who were struck. However. the When a prima facie showing has been made under Batson. the law requires that the trial court conduct a
county criminal court at law erroneously determined that defendant failed to meet his prima facie burden hearing and make the determinations prescribed by Batson.
under Batson. Defendant's assertion. which was confirmed by the record, that the State used all of its
strikes on ;~:r~rs c! a !:ir:g!e race vwros sufficient to meet his prima facie burden. Additionally, the county Criminal Law & Procedure > Postconviction Proceedings > Motions for New Trial
criminal court at law erred by holding that the issue of the sufficiency of the evidence was waived. Criminal Law & Procedure > Appeals > Reviewability > Preservation for Review> Requirements
See Tex. Gov't Code Ann.§ 30.00014(a).
OUTCOME: The judgment was reversed and the case was remanded for further proceedings.
Criminal Law & Procedure > Appeals > Standards of Review > Abuse of Discretion > General
Overview
LexisNexis Headnotes
Criminal Law & Procedure > Juries & Jurors > Challenges to Jury Venire > Equal Protection
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accused has committed an offense against the law of the state. Tex. Code Crim. Proc. Ann. art. State used 100 percent [of its periimptory strikes] toward African-Americans that comprise
45.019(a)(4) (2006). An appellate court reviews the decision to grant a motion to quash under an abuse of approximately a third or maybe 40 percent of the panel." The court responded that it was denying
discretion standard. A trial court abuses its discretion if it acts without reference to guiding rules and appellant's motion because "[the struck jurors have] to be the same race as the defendant." Appellant
principles, or acts arbitrarily or unreasonably. A motion to quash should be granted only when the requested that "the State argue why Batson applies or not." The State agreed to briefly· state its
language concerning the defendant's conduct is so vague or indefinite a·s to deny him effective notice of reasons. Before the State began lo offer its reasons for the strikes, the court stated, "''m··going to
the acts he allegedly committed. " allow it anyway. Go ahead." The State offered reasons for striking two of the three jurors, but it gave
no explanation for the third struck.juror. The trial court did. not modify)ts earlier ruiir;g
on-appellant's
Criminal Law 1!: Procedure > Criminal Offenses > Vehicular Crimes > Traffic Control Device Batson motion after.the State arti<:ulated.its reasons. stating on-ly, "l'm.going to'rem:.a.rid release the
Violation~ > Elsments .+.:· remainder of the jurors and call th.e bailiff t~ the jury _assembly roo(ll,: The jury was.-.~!en seated ...
See Tex. Transp~ Code Ann.§ 544.004(a). The record confirms that the State exercised all three of its perem'ptory cliallenges'agair1st three of the
.\ six African-American jurors on th~ panel, striking jurors 4, _5, and .1.2, Two Afri~an Amen cans served
on the jury, and another African American. a corrections officer who indicated that he.had a low
When a complaint tracks the. statutory language proscribing conduct, il\s sufficient to charge a criminal opinion of defense' attorneys, •·ias,
struck by the defense. · ' - • · · , ·· · · ..
offense. ·
Mer the jury found appellant guilty, he filed a motion for new trial, asserting five grounds. The
municipal court did not rule on the motion, which was overruled by operation of law. '
Opinion
Batson Challenge '':· .· •.
Opinion by: Elsa Alcala In his second point of error, appellant contends the trial court erred by denying his Baison challenge
because th'e State used all three.of its peremptory challenges to strike three African' Americans from
Opinion the venire. In its brief, the State contends that appellant has not made a prima facie case because the
stricken potential jurors were noi'lhe same race as appellant.
A. Applicable Law imcie·r Batson
{263 S.W.3d 380} Appellant, Wael Kassem, appeals a conviction for failure to obey a traffic control
Using a peremptory challenge to-strike a potential juror because of race violates the Equal Protection
device. See TEX. TRANS. CODE ANN.§ 544.004 (Vernon 1999). Kassem pleaded not guilty in the
Clause of the U.S. Constitution, as well as artiCle 35.261 of the Texas Code of Criminal Procedure.
municipal court. The jury found him guilty and assessed his punishment at a $ 200 fine. Appellant filed
{263 S.W.3d 382} See Batson v.:Kentucky, 476 U.S. 79, 86. 106 S. Ct. 1712, 1717,90 L. Ed:·2d 69
a motion for new trial and appealed to the County Criminal Court at Law, which affirmed his
(1986); TEX. CODE GRIM. PROC. ANN. art. 35.261 (Vernon 2006). ln.the face of perceived
conviction. See TEX. GOV'T Co"DE ANN.§ 30.00014(a) (Vernon Supp. 2007). Appellant now appeals
purposeful discrimination, the defe.ndant may request a Batson hearing: See TEX, CODE GRIM.
to this Court. In three issues, appellant contends (1) the municipal court erred by denying appellant's
PROC. ANN. art. 35.261 (a). Because Batson protects the juror's right to be free-from discrimination
Batson motion, (2) the municipal court erred by denying his motion to quash the complaint. and (3) the
as well as the defendant's, the defendant need not be the same race as the jurors struck by the State.
evidence is legally and factually insufficient to support the verdict. We.conclude that the County
Powers v. Ohio, 499 U.S. 400. 416, 111 S. Ct. 1364, 1373-74, 113 L. Ed. 2d 411 (1991); Unscomb v.
Criminal Court at Law erred (1) by holding that appellant did not make a prima facie case under
State, 829 S.W.2d 164, 165 n.6 (Tex. Crim. App. 1992).
Batson v. Kentucky, 1 i263 S.W.3d 381} and (2) by holding that appellant's legal and factual
sufficiency challenges were waived. We reverse and remand to the County Criminal Court at Law. A defendant's Batson challenge to a·peremptory strike is a three-step process. Purkett v. E/em, 514
U.S. 765.767,115 S. Ct. 1769, 1770-71,131 LEd. 2d 834 (1995); Simpson v. State, 119 S.W.3d
Factuai.Background
262, 268 (Tex. Grim. App. 2003). The defendant must first make a prima facie case of racial
In May 2005, appellant was driving in the westbound lane on Broad Street in Houston. Texas, where discrimination, based on the totality of relevant facts about the prosecutor's conduct during the trial.
he made a left turn onto the access road of the Gu~ Freeway. At the intersection, there was a sign Mil/er-E/ v. Dretke, 545 U.S. 231:239, 125 S. Ct. 2317, 2324, 162 LEd. 2d 196 (2005); Purkett, 514
that said "Left Turn on Green Arrow Only." Officer Cinco of the Houston Police Department saw U.S. at 767, 115 S. Ct. at 1770; Simpson, 1.19 S.W.3d at 268; see TE)<. CODE GRIM. PROC. ANN.
appellant make the turn when the green arrow was not lit. Although tie could not see directly whether art. 35.261. · · · · · ·.- :> ..
appellant had a green arrow, Officer Cinco stated that he knew the green arrow was not lit. Officer
A prima facie case is what raises the issue, not what eventually disposes of it. In determining,
Cinco could see that the light of the eastbound lane was green. which necessarily meant that the
therefore, whether a prima facie case is reflected on the record, courts are not to resolve the ·
green arrow was no longer lit when appellant made the turn. Cinco also stated that he check act the
question of deliberate racial discrimination on its merits .. :. They are simply to-decide whether
light the same afternoon and it was in proper working order. Appellant was issued a ticket and
the issue has been raised.Unscomb, 829 S.W.2d at 167. The defendant's burden of establishing
appeared in municipal court, where he pleaded not guilty.
a prima facie case of discrimination is not onerous. /d. (quoting Tex. Dep't of Cmty. Affairs v.
A pool of 14 jurors was summoned for jury selection. Of the 14·jurors. six were African-American. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1094, 67.L. Ed. 2d 207 (1981).
With its peremptory strikes. the State struck three of the six African-American jurors, thus using 100%
If the defendant makes a prima facie case, the burden of production shifts to the State to present a
of its strikes on African-American jurors. Appellant made a motion under Batson, stating that "the
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race-neutral reason for its challenged strike, a reason that is "a clear and reasonably specific Law for proceedings consistent with this opinion.
explanation of [the] legitimate reasons" for exercising its strike. Mifter-EI, 545 U.S. at 239, 125 S. Ct. at
2324; see TEX. CODE GRIM. PROC. ANN. art. 35.261 (a). When~the prosecutor responds with a .Sufficiency of the Evidence
race-neutral explanation, the defendant may rebut the State's expianation. Simpson, 119 S.W.3d at In his third issue, appellant challenges the legal and factual sufficiency of the evidence. The County
268; Jasperv, State. 61 S.W.3d 413,421 (Tex. Grim. App. 2001).: Criminal Court at Law held that appellant waived this issue because it was not included in appellant's
In the third and final step, the trial court must decide whether the defendant carried tlie burden to motion for new trial, as is required for appellate review from a municipal court of record. TEX. GOV'T
establish'purposeful discrimination. Mil/er-E/, 545 U.S: at 239. 125 S. Ct. at 2325; PurlSimpson, 119 S.W.3d at 268. The. trial court's inquiry' addresses whether the defendant's motion for ne:·: trial."): .•··-
prosecutor cor:irived the neutr·al reasons provided for the peremp't6ry challenge in order to conceal {263 S.W.3d 384} However, the issue is presented in appellant's motion for new triaUn appellant;$
racially discrimi,,atory intent. Jasper, 61 S.W.3d at 421. ,.,. motion for new trial, section five has the heading "The evidence is insufficient to sustain the conviction
Throughout the challenge, the burden of persuasion remains with the defendant, who may continue to and the verdict is against the weight of the evidence." Under that heading, appellant asserts that there
rebut the prosecuio~s explanations before the trial court decides the Batson challenge. TEX. CODE was a material variance between the complaint and the evidence of what the sign said, that Officer
s:
GRIM. PROC. ANN. art. 35.261(a); Purl 514 U.S. at 768, 115 Ct. 'at 1771; Simpson, 119 Cinco could not see the traffic light in question. and that there was no evidence that the offense
occurred in the State of Texas. Furthermore, in his motion. appellant asks that the municipal court
S.W.3d at 268; see Thomas v. State, 209 S.W.3d 268,270 (Tex. App.--Houston [1st Dist.] 2006, no
pet.). A defendant is entitled to a new trial if even a single juror is wrongfully excluded from serving. "enter a judgment of acquittal or alternatively order a new trial. or any other relief that the Court deems
Whitsey v. State, 796 S.W.2d 707, 716 (Tex. Grim. App. 1989) (plt;rality opinion). just." This discussion is sufficient to preserve the issue for review. See Doctor v. Pardue, 186 S.W.3d
4, 16 (Tex. App.--Houston [1st Dist.] 2005, pet. denied) (noting that substance of motion is determined
~- Batson Hearing from caption, introduction. body of motion, and prayer for relief).
In response to the State's exercise of its strikes, appellant objected that the State's {263 S. W .3d 383} We hold ihat the County Criminal Court at Law erred by holding this issue is waived. We reverse and
use of its strikes against the three African Americans was racially motivated, and made an oral Batson remand to the County Criminal Court at Law so it may address the legal and factual sufficiency of the
motion to the trial court. The municipal court ruled that appellant was not entitled to the Batson hearing State's evidence.
because he was of a different race than the struck jurors. However, the State offered reasons for its
Motion to Quash
striking jurors number 4 and 5, but it gave no explanation for juror number 12. z'
On appeal, the County Criminal Court at Law properly determined that the trial court erred by stating In his first issue, appellant asserts that the trial court erred in denying his motion to quash. When
that Batson applies only when the defendant is of the same race as the jurors who were struck: appellant made his motion in th_e, trial court. he made it on two grounds: '(1):;-\fieicharginQ\i~tru.n:e11!·
However, we conclude the County Criminal Court at Law erroneo.usly determined that appellant failed did not sufficiently articulate what conduct was prohibited and (?l;tli'e:eiimplairil drd no! contarn a
to meet his prima facie burden under Batson. See Powers, 499 u:s.
at 416; 111 S. Ct. at 1373-74; proper seal of the municipal court from which it issued. The court denied the motion with respect to
the first ground but withheld her ruling on the second ground. Appellant did not request a later ruling
Unscomb, 829 S.W.2d at 167. Appellant stated in his Batson motion that "the State used 100 percent
[of its peremptory strikes] toward African-Americans that comprise approximately a third or maybe 40 on the second ground, and the trial court never ruled on the second ground. By iailing to present this
percent of the panel." Appellant's assertion, which is confirmed by ihe record, that the State used all of Court with evidence of an adverse ruling on the second ground, appellant has waived any error arising
from the trial court's refusal to grant the motion on that ground. See Skillern v. State, 890 S.W.2d 849,
its strikes on jurors of a single race is sufficient to meet his prima facie burden. See Unscomb, 829
S.W.2d at 167 ("[A]n unexpectedly high rate of challenges against a particular group is, as an · 858-59 (Tex. App.--Austin 1994, pet. refd). Therefore. we address o'nly whether the charging
empirical matter, some evidence of an intent to exclude persons on account of membership in that instrument sufficiently articulated the prohibited conduct.
group ...."). We hold that the County Criminal Court at Law erred by determining that appellant failed
to make a prima facie case.
When a prima facie showing ha• been made under Batson, as here, the law requires that the trial
court conduct a hearing and make the determinations prescribed by Batson. Hutchinson· v. State, 86
S.W.3d 636, 639 (Tex. Grim. App. 2002). The proper procedure under these circumstances is for the
intern~.::2!~te ·couit, ...vtik.i·l liere is the County Criminal Court at Law. to abate the cause in order for the .~;;;:;9~il>~iii§,;i{Go(itii,~?``ft.16;~y-i:.i>O. _...,, ~.,, .,.-"_-,_,_..... ,_-·,.,·--··.::---· ·-·":-~,,·
municipal court to conduct a full Batson hearing and to enter findings of fact and conclusions of law or e~"J!ifl72ou~r~[``SJ~,iS``t``~,i(!t``c.!Sh~ttnoqtf§~e``tO!Qui&inQtfUieS~a·Kct:priOCjP.L~Qf@``sr­
to make a determination that such a hearing would not be practicable. in which case the County arbiJ.ra.t~Y;.wJ!l)J~;!l'.!'``l~flgir``t1,1?JCJ..2.ct.atJ!l.3._ A motion to quash should be granted only
Criminal Court at Law should remand for a new trial. /d.; Rousseau ·v. State, 824 S.W.2d 579, 585 when'ttie'language·concernrng tne defendant's conduct rs so vague or rndefinrte as to deny hrm
(Tex. Grim. App. 1992); see also Snyderv. Louisiana, 128 S. Ct 1203, 1212, 170 L. Ed. 2d 175 (2008) effective·notice of the acts he allegedly committed. DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Grim.
App. 1988).
(reversing due to Batson error when there was no "realistic possibility that this subtle question .
could be profitably explored on remand at this late date"). rhe:complainGit:issue recites the following:
We sustain appellant's second issue, and we reverse and .remand to the County Criminal Court at ~lh,t!!e•na:me~iina•bi the>iiUthoritY:'Ot,tlie's)atef(:j!,lif~!'.'ii 1. the undersigned affiant, do solemnly
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swear thatithave' o ,reason·,to'belieiTe~ancf'i!O'belie\/e that [Defendant] on or about the 5th day
of May. 2005, and before rna ing and filing this C2!!!,P a1nl, within the incorporated limits of the city
of Houston, county of Harris, and state of Texas7 did lil'en
and {263 S.W.3d 385} there unlawfully
while operating a vehicle upon Broad Street, a public street, at its intersection with another public
street to-wit: Gulf Freeway West Service Road, did ·fail to obey il certain otf:tial traffic control
Gl -t 1 -0{) 933 S.W.2d 120, 127 (Tex. Grim. App. 1996). ,we:llolatthat the -
ON :cs s~ l)r:) ~ ~bvt~mb
municipal court did not abuse its discretion by denying appellant's motion to quash because the
-~
language of \t!e'·romghjjgttracks the language of the statute. See Edmond, 933 S.W.2d at 127.
We overrule appellant's first issue.
'k?y HA:.W G.~rJ ~v-l-ST ~
Conclusion
We reverse and remand to the County Criminal Court at Law for further proceedings consistent with
this opinion.
\Mk~'~rr
Elsa Alcala
*'
Justice
P..<:~!lel;consists;ofJJustice_s Tafi.J~.and Alcala.
C±'"t( I 476 U.S. 79. 106 S. Ct. 1712,90 LEd. 2d 69 (1986).
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