Charles Frankie Nieto v. State ( 2010 )

Opinion issued December 16, 2010

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00226-CR

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CHARLES NIETO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 114th District Court

Smith County, Texas

Trial Court Case No. 4-95-95[1]

MEMORANDUM OPINION

          Appellant, Charles Nieto, appeals from a judgment convicting him of murder.  See Tex. Penal Code Ann. § 19.02 (Vernon 2003).  In three issues, he contends the trial court erred by denying his Batson[2] challenge, by admitting evidence showing that he took the murder weapon to a bootlegger’s house on the night of the offense, and by admitting evidence that he had been in jail shortly before the offense occurred.  We conclude the trial court abused its discretion by denying appellant’s Batson challenge because the State’s proffered reasons for a peremptory strike to exclude a black venireperson were pretexts for racial discrimination.  We reverse and remand to the trial court.

Background

          In January 1995, police responded to a 911 call informing them of a shooting in a public street.  Upon arriving at the scene, the police found glass, blood, and a firearm.  The police heard reports that a vehicle involved in the incident was located at Mother Frances Hospital.  Officers traveled to the hospital and located the vehicle.  The officers found a substantial amount of blood on the driver’s side of the vehicle, and the driver’s side window was missing.  The police also located blood on the driveway close to the hospital’s emergency room.

Dora Moralez, a passenger in the backseat of the car at the time of the shooting, was the person who placed the 911 call.  She informed police officers that appellant had shot his cousin, Gilbert Nieto, the driver of the car.  When questioned at the hospital, appellant told an officer that an unknown person had approached his car and shot Gilbert from the driver’s side of the vehicle.  Appellant later changed his story and told the officer that the person had shot through the passenger’s side window. 

The police officers arrested appellant, took him to the police department, and conducted a videotaped interview with him.  During the interview, appellant admitted shooting Gilbert but stated that he had pointed the pistol in front of Gilbert, not at him. However, testimony by the pathologist who performed the autopsy on Gilbert established that the muzzle of the gun was in contact with Gilbert’s skin when it was discharged. 

During questioning, Moralez said that earlier in the day, while she was in the car with appellant and Gilbert, appellant left the car and went to speak with a bootlegger.  Morales saw that appellant had a gun behind his back while he was speaking with the bootlegger.  She said that shortly afterwards, appellant shot Gilbert with the same gun. 

The Smith County grand jury indicted appellant for murder.  After jury selection, appellant’s trial counsel raised a Batson challenge to the State’s use of five of its peremptory strikes that removed all black venirepersons within the strike zone.  The strike zone is composed of those venirepersons who were not struck for cause and who could potentially sit on the jury if each side used all of its peremptory strikes and no two peremptory strikes overlapped.  After the State proffered what it purported were race-neutral reasons for each strike and appellant’s trial counsel presented counter arguments, the trial court denied the Batson challenge.

Appellant pleaded not guilty to the jury.  The jury found appellant guilty of murder and assessed his sentence at confinement in prison for life.

Batson Challenge

          In his first issue, appellant contends that the trial court erred in denying appellant’s Batson challenge because the State’s proffered reasons for exercising its strikes were pretexts for racial discrimination.

A.        Applicable Law Concerning Batson

The use of a peremptory strike on a potential juror based on his or her race violates the equal protection guarantee of the United States Constitution as well as article 35.261 of the Texas Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. art. 35.261(a) (Vernon 2006); Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717 (1986).  In the face of perceived purposeful discrimination, a defendant may request a Batson hearing.  See Tex. Code Crim. Proc. Ann. art. 35.261(a).  Throughout a Batson challenge, the burden of persuasion remains on the defendant.  See id.

A defendant’s Batson challenge to a peremptory strike is a three-step process. Purkett v. Elem, 514 U.S. 765, 767–68, 115 S. Ct. 1769, 1770–71 (1995); Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003).  First, the defendant must make a prima facie showing, based on the totality of relevant facts about the prosecutor’s conduct during the trial, that a peremptory challenge has been exercised on the basis of race.  Miller-El v. Dretke, 545 U.S. 231, 239, 125 S. Ct. 2317, 2324 (2005); Purkett, 514 U.S. at 767, 115 S. Ct. at 1770; Simpson, 119 S.W.3d at 268; see Tex. Code Crim. Proc. Ann. art. 35.261(a).  Second, if that showing has been made, the burden of production 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.  Miller-El, 545 U.S. at 239, 125 S. Ct. at 2324; see Tex. Code Crim. Proc. Ann. art. 35.261(a).  A reason is deemed race neutral if no discriminatory intent is inherent in the prosecutor’s explanation.  Purkett, 514 U.S. at 768, 115 S. Ct. at 1771; Thomas v. State, 209 S.W.3d 268, 270 (Tex. App.—Houston [1st Dist.] 2006, no pet.).  When the prosecutor responds by offering a race-neutral reason, the inquiry into whether the defendant has made a prima facie case becomes moot, and the defendant has an opportunity to rebut the State’s reason.  Simpson, 119 S.W.3d at 268; Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). 

In the third and final step, the trial court must decide whether the defendant carried the burden to establish purposeful discrimination.  Miller-El, 545 U.S. at 239, 125 S. Ct. at 2325; Purkett, 514 U.S. at 767, 115 S. Ct. at 1770–71; Simpson, 119 S.W.3d at 268.  The trial court’s inquiry addresses whether the neutral reasons provided by the prosecutor for the peremptory strike were contrived in order to conceal racially discriminatory intent.  Jasper, 61 S.W.3d at 421.  The third step of a Batson challenge involves an evaluation of the prosecutor’s credibility, and the best evidence of discriminatory intent often will be the demeanor of the attorney who exercises the peremptory challenge.  Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct. 1203, 1208 (2008).  If the State’s proffered race-neutral reason for a peremptory strike invokes a potential juror’s demeanor (e.g., nervousness, inattention), the trial court must evaluate whether the struck juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.  Id.

B.        Standard of Review

A reviewing court examines jury selection from a cold record.  Satterwhite v. State, 858 S.W.2d 412, 415 (Tex. Crim. App. 1993).  In other words, it is the trial court that has the opportunity to view each venireperson’s demeanor and to evaluate his or her credibility and, ultimately, is in the better position to pass on the strikes for cause presented.  Id. (citing Smith v. State, 676 S.W.2d 379, 387 (Tex. Crim. App. 1984)).  Consequently, we cannot reverse a trial court’s ruling on a Batson challenge unless it is clearly erroneous.  See Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004).  To hold that a trial court clearly erred, we must have a “definite and firm conviction that a mistake has been committed.”  Goldberg v. State, 95 S.W.3d 345, 385 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).  We may not substitute our opinion for the trial court’s factual assessment of the neutrality of the prosecutor’s explanation for exercising strikes, and we focus on the genuineness, rather than the reasonableness, of the prosecutor’s asserted nonracial motive.  Gibson, 144 S.W.3d at 534 & n.5 (citing Purkett, 514 U.S. at 769, 115 S. Ct. at 1771–72).  We give great deference to the trial court’s determination, and we view the evidence in the light most favorable to the trial court’s ruling.  Gibson, 144 S.W.3d at 534 & n.6); Jasper, 61 S.W.3d at 422.  In reviewing the record for clear error, an appellate court should consider the entire record of voir dire, and it need not limit itself to arguments or considerations that the parties specifically called to the trial court’s attention so long as the reviewing court’s reasoning is manifestly grounded in the appellate record.  Watkins v. State, 245 S.W.3d 444, 448 (Tex. Crim. App. 2008).

C.      Analysis

During the morning session of jury selection, the trial court administered oaths, instructed, and conducted its own voir dire of the jury panel.  The State’s lead prosecutor, District Attorney Jack Skeen, Jr., was unable to attend.  Instead, David Dobbs, chief felony prosecutor for Smith County, attended the morning session to take notes of his observation of the jury panel.  Dobbs left after the morning session.  He was not present for the State’s or appellant’s voir dire, and he did not participate in the trial.  The afternoon session of jury selection was conducted by Skeen.

A venire of sixty people was summoned for jury selection.  After voir dire, the trial court granted six strikes for cause. Five black venirepersons remained within the strike zone.  The State and appellant each submitted ten peremptory strikes.  The State used five of its peremptory strikes to exclude all black venire persons from the jury.  The State did not strike the only other minority venireperson, a Hispanic man, within the strike zone.  Therefore, the State excluded one-hundred percent of the blacks and eighty-three percent of the minorities in the strike zone.  A jury of twelve, consisting of eleven white persons and one Hispanic man, was then seated.  Appellant is Hispanic.

Appellant’s trial counsel presented a Batson challenge contending that the State used its peremptory strikes in a racially discriminatory manner.  The trial court found that appellant had made a prima facie case of racial discrimination based on the number of excluded minorities, thus satisfying the initial step of the Batson challenge.  See Tex. Code Crim. Proc. Ann. art. 35.261, Miller-El, 545 U.S. at 239, 125 S. Ct. at 2324; Purkett, 514 U.S. at 767, 115 S. Ct. at 1770; Simpson, 119 S.W.3d at 268.  The burden of production then shifted to the State to present race-neutral reasons for the peremptory strikes.  Miller-El, 545 U.S. at 239, 125 S. Ct. at 2324; see also Tex. Code Crim. Proc. Ann. art. 35.261(a).  Testifying in narrative form, Skeen proffered reasons for each of the State’s challenged peremptory strikes.  Appellant’s counsel cross-examined Skeen and offered arguments in support of appellant’s Batson challenge, but he offered no other evidence.

1.       State’s Reasons for Striking Venireperson Mauldin[3]

Venireperson Mauldin is a black man that the State peremptorily struck.  At the Batson hearing, Skeen testified that he had recently prosecuted a high profile organized-crime drug case, which involved the trafficking of large amounts of crack cocaine into Smith County.  The major defendants in that case were Johnny and Jesse Mauldin.  Skeen supposed that they might be related from the fact that Mauldin and the prior defendants shared the same last name.  Although he was not certain of a relationship between Mauldin and the prior defendants, Skeen explained to the trial court that he could not “take the chance” that a relationship existed.  Striking a venireperson whose relative has been convicted of or prosecuted for a crime is a valid, race-neutral reason for a peremptory strike.  See, e.g., Ladd v. State, 3 S.W.3d 547, 563 (Tex. Crim. App. 1999) (venireperson struck because, inter alia, niece was facing drug prosecution); Chambers v. State, 866 S.W.2d 9, 24 (Tex. Crim. App. 1993) (venireperson struck because, inter alia, her brother was convicted felon who had been prosecuted by same prosecutor who was prosecuting defendant).

Skeen also testified that prosecutor Dobbs, who attended the morning session of jury selection in lieu of Skeen, had documented in his notes that he observed Mauldin glaring at him.  Skeen inferred from this observation that Mauldin harbored animosity towards the State.  That a prospective juror is defense-oriented, such as where he harbors animosity towards the prosecution, is a valid, race-neutral reason for a peremptory strike.  See Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002).

Therefore, the trial court properly found that the State satisfied its burden of production with respect to proffering a race-neutral reason for striking venireperson Mauldin.  See Keeton v. State, 749 S.W.2d 861, 870 (Tex. Crim. App. 1988); Ealoms v. State, 983 S.W.2d 853, 856 (Tex. App.—Waco 1998, pet ref’d).

2.       Reasons for Striking Venireperson Mauldin Were Pretextual

Appellant contended that the State’s reasons for striking Mauldin were pretext for racial discrimination.

                   a.       Family Relationship

Appellant explained that the State’s first proffered reason for striking venireperson Mauldin, that he might be related to prior criminal defendants Johnny and Jesse Mauldin, was based solely upon the fact that they share the same last name.  Appellant further explained that the State’s supposition of a familial relationship was based upon speculation, not evidence.  We find that it was unreasonable to suppose that Mauldin was related to the prior criminal defendants merely because he had the same last name.  Moreover, as Skeen admitted on cross-examination, Mauldin did not respond during the State’s voir dire when the State asked the venire, as a group, whether they had any family members who had ever been charged or convicted of a crime.  By not responding, Mauldin implicitly denied having a familial relationship to any criminal defendants, including Johnny and Jesse Mauldin.  Skeen did not explain why he did not accept Mauldin’s implicit denial. As appellant adduced on cross-examination, Skeen was aware, before he conducted voir dire, that Mauldin had the same last name as the prior defendants.  Yet, he did not individually question Mauldin as to whether he was in fact related to the prior criminal defendants, and, if so, whether those relationships would affect his ability to fairly and impartially assess the merits of the case.  See Chambers, 866 S.W.2d at 24–25 (lack of questioning may expose weakness of State’s explanation).  Skeen did not explain why he did not explore these issues with Mauldin if he was concerned about the possibility of the familial relationship.

Concluding that the State’s first proffered reason is suspicious, as it was based only on an unfounded supposition, we consider whether the prosecutor did not strike other similarly-situated venireperson within the strike zone.  See Synder, 552 U.S. at 483, 128 S. Ct. at 1211 (finding prosecutor’s proffered reason for peremptory strike of minority venireperson “suspicious,” Court looked to prosecutor’s acceptance of similarly-situated white jurors). However, conducting a retrospective comparison of potential jurors based on a cold appellate record may be misleading when alleged similarities were not raised at trial; accordingly, we must be mindful that an exploration of the alleged similarities at the time of trial might have shown that the potential jurors in question were not readily comparable. See id.  In this case, however, the shared characteristic, familial relationships to criminal defendants, was thoroughly explored during the State’s voir dire.  See id. Although the States stated that it struck Mauldin because of suspected familial relationships to criminal defendants, the State did not strike the following venirepersons who were within the strike zone: venireperson four, who admitted he had a brother who was charged with theft two years earlier; venireperson twenty-four, who admitted he had a stepfather who was charged with a DWI in Smith County; venireperson twenty-seven, who admitted he had a son who was convicted of burglary of a building in Smith County; venireperson thirty-one, who admitted she had a daughter charged with DWI in Louisiana; and venireperson thirty-three, who admitted he had a son charged with criminal mischief around 1980.  Five venirepersons confirmed that they had an immediate family relationship with someone charged or convicted of a crime, but the State did not strike these potential jurors.  Instead, the State struck the black venireperson who merely shared the same last name as two former criminal defendants.

“In cases reversed because of the State’s failure to establish the legitimacy of its explanations through voir dire questions, at least one of two other factors has existed 1) the legitimacy of the State’s apprehension was not obvious and 2) there was other evidence of disparate treatment.”  See Chambers, 866 S.W.2d at 24–25 (footnote omitted).  Here, we conclude that the legitimacy of the State’s apprehension was not obvious, in that Mauldin implicitly denied being related to the two criminal defendants with whom he happened to share the same last name.  See id.  We also conclude that there was other evidence of disparate treatment, because the State did not strike similarly situated non-minority venirepersons.  See id.

          b.      Glare

Appellant further explained that the State’s second proffered reason for striking venireperson Mauldin, that Mauldin glared at prosecutor Dobbs and thus might harbor animosity towards the prosecution, was based solely on Dobbs’s notes. Dobbs was not involved in the trial after the morning session of jury selection, and he did not personally explain his assessment of Mauldin.  On cross-examination, Skeen admitted that neither of the two assistant district attorneys who took notes during Skeen’s voir dire observed Mauldin glaring at Skeen, who had prosecuted the Mauldin cases.  As appellant argued at the Batson hearing, Skeen failed to specifically question Mauldin as to whether he harbored animosity against anybody in the District Attorney’s office, and, if so, whether that animosity would affect his ability to fairly and impartially assess the merits of the case.  See Chambers, 866 S.W.2d at 24–25. We conclude that the legitimacy of the State’s apprehension was not obvious in that Mauldin allegedly glared at prosecutor Dobbs, who merely sat and listened while the judge conducted her voir dire, but did not glare at prosecutor Skeen, the attorney who actually prosecuted Mauldin’s supposed relatives and conducted the State’s voir dire in this case.  See id.

In light of the State striking one-hundred percent of black venirepersons seated in the strike zone, we conclude that the trial court clearly erred in finding that the State’s proffered reasons were not a pretext for racial discrimination.[4]  See Jasper, 61 S.W.3d at 421.  We sustain appellant’s first issue and, accordingly, we do not reach appellant’s other issues.

Conclusion

          We reverse the judgment of the trial court and remand the case to the trial court.

                                                                   Elsa Alcala

                                                                   Justice

Panel consists of Justices Jennings, Alcala, and Sharp.

Do not publish.  Tex. R. App. P. 47.2(b).

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[1]           Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.  See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005). On February 4, 2009, the Texas Court of Criminal Appeals granted appellant the opportunity to file an out-of-time appeal.

[2]           Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717 (1986).

[3]           Because we find that the trial court committed clear error in overruling appellant’s Batson challenge with respect to venireperson Mauldin, we have no need to consider appellant’s claims regarding the other struck black venirepersons.  See Snyder v. Louisiana, 552 U.S. 472, 478, 128 S. Ct. 1203, 1208 (2008).

[4]           We also note that the trial court did not make an explicit determination that Mauldin in fact stared at Dobbs. Accordingly, we cannot presume that the trial court based its determination on that ground.  See Snyder v. Louisiana, 552 U.S. 472, 479, 128 S. Ct. 1203, 1209 (2008).  In Synder, the prosecutor asserted that he observed the struck venireperson acting nervously as one of two reasons for its exercise of the challenged peremptory strike.  Id.  However, the record did not show that the trial judge actually made a determination concerning the venireperson’s demeanor.  Id. Given that the prosecution proffered two reasons for exercising the challenged strike, the Supreme Court held that it could not presume that the trial court credited the prosecutor’s assertion that the venireperson was nervous.  Id.  Here, as in Synder, the State proffered two reasons, only one of which involved demeanor, for exercising its strikes on venireperson Mauldin.