Kitchens, William Travis

A jury convicted Kitchens of murder for shooting Hipolito Desoto following a two-and-a-half-minute-long argument with Desoto in Kitchens’s auto-repair shop. The two men were strangers to one another, and Desoto, who arrived on a Harley, was 100 pounds heavier than Kitchens but unarmed. Kitchens claimed that, during his argument with Desoto, Desoto threatened to return later to his shop and “beat [his] ass.” Kitchens responded in kind and, according to Kitchens,  Desoto yelled that he was “going to f*** you up right now,” prompting Kitchens to pull out a pistol and shoot Desoto multiple times. At his first trial, the jury rejected Kitchens’s self-defense claim, but the case was remanded for a punishment retrial, when the jury was instructed on sudden passion. The defense theory on retrial was that Kitchens was filled with terror due to Desoto’s appearance and mannerisms. They elicited testimony that Desoto looked “a little rough,” and not like one of the shop’s normal customers, who owned high-end cars. During the defense’s punishment argument, counsel argued that Kitchens was afraid of Desoto, whom he described as “menacing” and an “outlaw biker.” Later, during the State’s closing argument, the prosecutor said:

I do want to talk to you about something that, for whatever reason, we haven’t talked about. And in the five-and-a-half years since this happened, we’ve used code words to signify it. But no one has actually explicitly said it. Let’s talk about the code words [the defense] used: “He’s overweight.” He’s 280 pounds. He was a biker. And he suddenly turned into an “outlaw biker,” during closing arguments. That he rode a “Harley Davidson motorcycle with his handle bars that were up here.” That he had “facial hair.” That he was “scary.” They’re all just saying he was scary because of what? He was scary because he was a Hispanic guy. That’s what they’re not saying.

The defense objected that the State was accusing Kitchens, without any evidence, of shooting Desoto out of racial prejudice, which injected race into the case in violation of the Fourteenth Amendment. The prosecutor responded that the victim’s race (which was evident in photographs and video) was not a “shock” to anyone and that race “could have played a part” in the defendant’s alleged fear. The trial court overruled the objection, and the prosecutor concluded, “Don’t let the defendant’s own prejudices become your own.”

On appeal, Kitchens again challenged the prosecutor’s argument. The court of appeals rejected his improper argument claim, observing that Kitchens’s own evidence and defensive theory put his impressions of Desoto’s appearance at the center of the punishment hearing and that Desoto’s race was an obvious part of his appearance. It held that it was a reasonable inference from this evidence to argue that Kitchens acted out of bias or prejudice formed during his limited interaction with Desoto. It contrasted other cases where prosecutors had unlawfully highlighted a witness’s race to inflame the racial prejudices of the jury against the defendant, noting that the prosecutor here was responding to the defensive theory and evidence.

Kitchens contends that the State’s argument accusing him of racial prejudice was without a factual basis. He argues that evidence that Desoto was Hispanic does not justify an accusation that the shooting was motivated by racial prejudice. He asserts there was nothing in the evidence that suggested he was afraid of Desoto because Desoto was Hispanic. Kitchens disputes the court of appeals’s holding that the State’s argument was responsive to his own arguments, which he says were limited to what the witnesses testified about: the victim’s intimidating size and threatening manner of speech. He contends the State only made the argument to bias the jury against him, essentially arguing that any sudden passion he had was attributable to racial prejudice. He contends this unlawfully injects race into the case, citing Supreme Court precedent forbidding racially biased prosecutorial arguments. He asserts that it is unprecedented that a prosecutor would “[e]quat[e] a physical description of a person with an argument involving race” and analogizes his case to others invoking racial prejudice, which is prohibited because it can result in the jury sentencing a defendant based on that prejudice instead of the law and facts.