ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 March 21 P3:02 Lisa Matz CLERK

Transcription

1 5th Court of Appeals FILED: 03/23/ :49:35 Lisa Matz, Clerk ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 March 21 P3:02 Lisa Matz CLERK

2 NAMES OF PARTIES Pursuant to Tex. R. App. P. Rule 38.1, the following is a complete list of the parties and persons interested in the outcome of this cause: (A) John Paul Charo, the Appellant; (B) Mitchell R. Nolte, Counsel for Appellant on appeal; (C) Zan Moltz, Counsel for Appellant at Trial; (D) The State of Texas, by and through Greg Willis, Collin County Criminal District Attorney, and his Assistant District Attorneys. 2

3 TABLE OF CONTENTS TABLE OF CONTENTS... 3 LIST OF AUTHORITIES... 4 STATEMENT OF THE CASE... 6 ISSUE... 6 STATEMENT OF FACTS... 6 SUMMARY OF THE ARGUMENT... 8 ISSUE... 9 WHETHER THE TRIAL JUDGE ERRED IN SUSTAINING THE STATE'S BATSON CHALLENGE AND REINSTATING A PREVIOUSLY STRICKEN PANELIST ON THE JURY... 9 CERTIFICATE OF SERVICE

4 LIST OF AUTHORITIES Cases Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 1717, 90 L.Ed.2d 69 (1986)... 9 Ford v. State, 1 S.W.3d 691, 693 (Tex.Crim.App. 1999) Georgia v. McCollum, 505 U.S. 42, 44, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992)... 9 Guzman v. State, 85 SW3d 242, 244 (Tex. Crim. App. 2002) Johnson v. State, 68 S.W.3d 644,649 (Tex.Crim.App. 2002) Mil/er-E/ v Dretke, 545 U.S. 231, 240 (2005) Purkett v. Elem, 514 U.S. 765, , 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) Watkins v State, 245 S.W.3d 444,448 (Tex. Crim App. 2008), Statutes TEX.CODE CRIM. PROC. ANN. art (Vernon Supp. 2009)

5 NO CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS, TEXAS JOHN PAUL CHARO, APPELLANT vs. THE STATE OF TEXAS APPELLEE TO THE HONORABLE COURT OF APPEALS: Appellant, John Paul Charo, respectfully submits this brief pursuant to the provisions of the Texas Rules of Appellate Procedure in support of his request for reversal and a new trial. As required, reference is by the "Appellant" and the "State". 5

6 STATEMENT OF THE CASE On May 27, 2010, John Paul Charo, hereinafter referred to as Appellant, was charged by information with the offense of Criminal Mischief, a class A misdemeanor (CR 9). On March 8, 2011, Appellant was found guilty by a jury of this offense (CR 78}. The trial judge later sentenced him in conjunction with another pending case to the maximum term of community supervision with numerous conditions (CR 80; RR ). Notice of Appeal was timely filed on March 31, (CR 93). ISSUE WHETHER THE TRIAL JUDGE ERRED IN SUSTAINING THE STATE'S BATSON CHALLENGE AND SEATING A PREVIOUSLY STRICKEN PANELIST ON THE JURY. STATEMENT OF FACTS On March 21 5 t, 2010, a young man named Marcedes Ginn was talking with a friend at the Sonic restaurant on Eldorado Parkway in McKinney, Texas (RR }. He testified Appellant walked up on him, said "What's up now?" and wanting to fight him (RR }. Ginn and Appellant had previously worked together at Walgreens drugstore from which Appellant had been fired for a workplace dispute involving Ginn (RR 11-97, ). They also had a previous encounter in January 2010 which resulted in Appellant being charged with Terroristic Threat, 6

7 during which Appellant allegedly yelled to Ginn "I'll fucking kill you nigger" while trying to run him offthe road (RR 11-99}. 1 There are differing versions of the next series of events. Ginn said he was scared of Appellant so he ran to his car, locked himself inside and tried to back out of the drive-in parking spot to get away (RR ,102}. Appellant started yelling at Ginn through the window and proceeded to punch the driver's side rear view mirror of Ginn's Crown Victoria and broke it with his fist (RR ). Ginn kept backing out, scraping the front bumper of Appellant's Hummer, before getting away and calling the police (RR }. Both Appellant and his girlfriend, Lillian Caldwell, testified for the defense that they were driving through the Sonic when they saw a car backing up right at them (RR 111-6, 19). Caldwell said she got out telling the driver of car to stop but he didn't, instead striking the front bumper of Appellant's Hummer and even striking her body. /d. Appellant admitted hitting Ginn's car with his fist, but claimed it was to prevent damage to property and in defense of another (RR , 30}. The jury apparently believed Ginn's version of events and found Appellant guilty of Criminal Mischief. While the underlying facts are not at issue in this appeal, they are necessary for understanding the volatile and racially charged nature of this case. Specifically, these facts serve to illustrate the importance of the sole issue; whether it was error for the trial court to sustain a Batson challenge by the State, reversing Appellant's preemptory strike, and reinstated a particular black male panelist, who later turned out to be the foreman of the jury which 1 Appellant was later convicted of that charge and it is a companion appeal in CR. 7

8 convicted Appellant (RR 11-77, 82; CR 78). To avoid repetition, the facts regarding the Batson challenge and rulings will be further described and analyzed in the body of the brief itself. SUMMARY OF THE ARGUMENT Appellant believes the trial court clearly erred by sustaining the State's Batson challenge. The Court misapplied the law regarding the three-part Batson process and failed to consider the necessary formative factors before arbitrarily concluding that Appellant had engaged in purposeful racial discrimination. The Court then exacerbated this error and further harmed Appellant by reinstating a previously stricken juror who turned out to be the foreman. 8

9 WHETHER THE TRIAL JUDGE ERRED IN SUSTAINING THE STATE'S BATSON CHALLENGE AND REINSTATING A PREVIOUSLY STRICKEN PANELIST ON THE JURY. A. Applicable law and Standard of Review The use of a peremptory challenge to strike a potential juror because of race violates the equal protection guarantee of the United States Constitution and Article of the Texas Code of Criminal Procedure. Batson v. Kentucky, 476 U.S. 79, 86, 106 S.Ct. 1712, 1717, 90 L.Ed.2d 69 (1986). TEX.CODE CRIM. PROC. ANN. art (Vernon Supp. 2009). The Fourteenth Amendment guarantees persons the right to equal protection under the law, including freedom from racial discrimination in jury selection. Georgia v. McCollum, 505 U.S. 42, 44, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (citing Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880) (explaining that the Court has, since 1880, maintained that racial discrimination by the State in jury selection offends the Equal Protection Clause). In the face of perceived purposeful discrimination, a party may request a Batson hearing. TEX.CODE CRIM. PROC. ANN. art The right does not merely encompass a defendant's right to have a jury selected without regard to race, but also protects prospective jurors' rights to serve on a jury without regard to their race. Georgia v McCullom, 505 at 48. Because the right attaches to excluded jurors, the State may raise a Batson challenge on the jurors' behalf.!d. Once a party raises a Batson challenge, the court must engage in a three-step process. First, the party opposing the peremptory strikes must make a prima facie showing of racial 9

10 discrimination and thus carries a burden of production. Ford v. State, 1 S.W.3d 691, 693 (Tex.Crim.App. 1999). Second, the burden shifts to the party who exercised the peremptory strikes to give a facially-neutral explanation. /d. Finally, the court must determine whether or not the challenging party has made out a case of purposeful discrimination. ld. The burden of persuasion always rests on the party challenging the use of the peremptory strikes. /d. (citing Purkett v. Elem, 514 U.S. 765, , (1995). However, the court must evaluate the reasons proffered for the strikes in light of what it observes during voir dire and during the Batson hearing. Johnson v. State, 68 S.W.3d 644, 649 (Tex.Crim.App. 2002). The trial court's ruling in the third step should be sustained on appeal unless it is clearly erroneous. Snyder v Louisana, 555 US 472, 477 (2008). The United States Supreme Court has recognized several non-exclusive factors to consider in determining whether a party has met its burden to show purposeful discrimination. Watkins v State, 245 S.W.3d 444, 448 (Tex. Crim App. 2008), citing Mil/er-E/ v Dretke, 545 U.S. 231, 240 (2005). Specifically, a reviewing court should consider the collective and cumulative impact of the following non-exclusive factors: a) whether the proponent of the peremptory challenge exercised its challenges to eliminate a far greater proportion of jurors of the same race of the juror in question; b) whether the reasons offered for striking the juror in question "appeared to apply equally well" to other jurors of a different race who were not struck; c) whether the proponent of the peremptory challenge utilized its option to shuffle the jury panels in a manner that supported an inference of race discrimination; 10

11 d) whether the proponent of the peremptory challenge directed questions expressly designed to elicit grounds for peremptory challenges disproportionately, in a manner that suggested an intent to single out jurors of an identified race for elimination; and e) whether the proponent of the peremptory challenge had followed a formal policy to exclude jurors of an identified race. Recognizing that minds are actually hard to read, and the inherent difficulties and risks trial judges take when assessing discrimination on such slight knowledge, the Court of Criminal Appeals has reasoned that when the motives behind a challenged strike appear "mixed"- both permissible (race and gender neutral) and impermissible (based on race or gender}- then the strike does not violate the juror's right to equal protection of law if the striking party shows he would have struck the juror based solely on the neutral reason. Guzman v. State, 85 SW3d 242, 244 (Tex. Crim. App. 2002}. B. Application of Law to the Facts A careful examination ofthe facts in this case show the trial court misapplied the three part Batson challenge process, failed to consider the necessary determining factors, and thus incorrectly determined the Defendant's peremptory strike was race based. This error was then compounded by seating the previously stricken juror on the jury, where he turned out to be the foreman in a racially charged case. After both sides had concluded voir dire, they were given time to fashion their three strikes during a recess, during which they turned their strike list into the court (RR , 77). After 11

12 tabulating the strikes, the court then announces the jurors as numbered 1 through 6. The State then raised a Batson challenge to Appellant's strike of panelist number 7, an African- American male named Mr. Washington, claiming he was struck on basis of his race. The court immediately began questioning Appellant's attorney who related his reason for striking Washington was twofold; namely, "His opinion of the police was a five" and "He wasn't from Texas" (RR ll-77f. The court begins inquiring about other strikes used on panelists who were a "five" and who were not from Texas, then satisfied with Appellant's answers as race-neutral, informs the State that the"... burden's now back on you to prove that- show that it was for some other reason other than race." (RR 11-78). The State identified two other jurors (Mr. Monsees and Mrs. Johnson) who were not from Texas and who were not stuck by Appellant (RR 11-79). The court then turned back to Appellant and asked for his response. Appellant replied Mr. Monsees was a 3 on his opinion of police and that he just liked Mrs. Johnson (RR 11-79). Referring to Mrs. Johnson, the court replied "That's not going to be sufficient." Appellant then gave an additional reason for not striking Mrs. Johnson as he believed she would not be foreman material but rather a follower on the jury, and added that he thought her to be of mixed race anyway (RR 11-80}. He then defended his non-strike of a Mr. Cooper as based on Cooper's previous assault charge, although the non-strike of Cooper was never mentioned or challenged by the State. 2 During voir dire, the State's attorney had questioned the panelists regarding their opinion on police officers, and asked them to rate police officers on a scale of 1-5, with 5 being the highest. Washington was not identified by name during this panel questioning, but both sides seem to agree that he had answered a 5. 12

13 The court then sustains the State's Batson challenge, removes Mr. Hagman (juror 12 from the panel) and places Mr. Washington on the jury (RR 11-81}. The court stated "I do not find that there is a prima fascia case made for eliminating Mr. Washington, given the fact that there were other jurors seated on the jury that matched the same circumstances in which he was alleged to have been stricken." (RR 11-81). Applying the Batson challenge law to the facts of this case, it appears that the trial court misunderstood or misapplied the three-part process as it failed to properly apply them to the challenge. First, there was no prima-facie showing of racial discrimination by the State, just an unsubstantiated assertion that Washington was struck because of his race. The State failed to show either a disproportionate number of strikes were made on African-Americans or any type of comparative analysis of the venire to show a disparate treatment of African-Americans were stuck. They just said one juror was struck because he was black. Secondly, even though the State had failed to make their prima facie case, the court then turned to Appellant to explain his actions. He then gave race-neutral reasons for his strikes; namely, that Mr. Washington was a 5 (showing his great support of police officers) and that he wasn't from Texas 3. The court seemingly accepts these answers as race-neutral because it then tells the State the burden is back on them (RR 11-78). The State comes up with two other panelists whom Appellant did not strike because they were not from Texas, upon which the court again turns back to Appellant to further justify his strikes, despite his having already 3 Holding it against someone that they are not from Texas is a time-honored tradition in this state and thankfully not yet a violation ofthe Amendment. For a more critical analysis of cultural exclusion and acceptance on the basis of statehood, please consult the following: That's Right, You're Not from Texas, by Lyle Lovett from the album 'The Road to Ensenada (1996). 13

14 accepted the reasons as race neutral. This is clearly not the process required by Batson and illustrates the misapplication of the law. Thirdly, the court makes its determination and finding of purposeful discrimination against Appellant without using any of the factors required by Miller -E/ and Watkins. There was no consideration of whether Appellant used his challenges to eliminate a greater proportion of jurors of the same race as Washington or whether his reasons appeared to apply equally well to other jurors who were not struck (except for the not being from Texas problem, which is neither an equal protection issue nor a protected class of citizen). Appellant had neither previously used a jury shuffle in a suspicious manner nor was there any inquiry made into whether Appellant had asked questions disproportionately in a manner designed to single out jurors on basis of race. And there was no finding or record that he had some sort of formal policy to exclude jurors on a racial basis. In sum, there was no consideration or inquiry into these Mil/er-E/ factors by the trial court and there is nothing noted in the record to reflect the court used them in any manner. Finally, since Appellant provided race-neutral reasons for the strike, the trial court should have allowed his strike because using a "mixed motive" approach is not impermissible under the 14th Amendment. Guzman, 85 SW3d at 244. If the use of such mixed strikes is allowed by the State, as it is repeatedly and consistently in cases such as Guzman and dozens of other cases throughout our jurisprudence, then Appellant's situation should be treated the same. Equitably speaking, if it's good enough cover for the government, it should be good enough cover for the Defendant. 14

15 Therefore, even considering the court's decision in the light most favorable to its ruling, its decision was clearly error because it made an arbitrary and unreasoned decision without properly applying the Batson three part process and without considering any of the Mille r-ei factors. The decision of the trial court in this case to sustain the State's Batson challenge was without rational basis and was clearly erroneous. CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant prays the verdict should be reversed, and remand the case for a new trial, or any other relief which justice should demand. Respectfully submitted, GIBBS NOLTE RO SON ROSE, PLLC VIRGINIA PARKWAY, SUITE 401 MCKINNEY TEXAS SBN TEL: FAX: mitch@mckinneylaw.com ATTORNEY FOR APPELLANT 15

16 CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Appellant's Brief has been served on the Appellate Division ofthe Collin County District Attorney's Office, 2100 Bloomdale Rd., Suite 324, McKinney Tx by hand delivery/ ~ 3/:2.-\ J I.L_ ~ Attorney for Appellant 16