Metters v. State
695 S.W.2d 88
Tex. App.
1985
Check Treatment

*1 neys’ fees in this points ease. The of error

are overruled. is affirmed. METTERS,

Charles Leon Texas, Appellee.

The STATE of

No. 01-84-0285-CR.

Court of (1st Dist.).

Houston

July Pink, Houston, appellant.

Walter J. *2 basis, and Holmes, Jr., County motion for new trial on the same B. Harris Dist. John for court overruled the motion Hudson, County the trial Atty., Harvey Harris Houston, new trial. Atty., appellee. Asst. Dist. allegations of the use of Mere WARREN, LEVY, DUGGAN and Before qualified to strike

JJ. jury from a venire is not sufficient blacks prohibited systematic exclusion to establish OPINION petit jury. Ev in selection blacks (Tex.Crim. State, 622 S.W.2d 866 ans v. WARREN, Justice. State, App.1981); 663 S.W.2d Cano aggravated juryA convicted pet.); no see also (Tex.App. — Austin robbery; the trial court found the enhance- allegation and assessed his to be true (1965). Appellant ar 13 L.Ed.2d 759 years punishment at 18 confinement. We should gues that affirm. reinterpreted to allow a crimi overruled error, In his first prima to make a facie case of nal defendant erred in overrul- that the trial court unconstitutional discrimination the state panel. ing jury his motion to strike the by showing in its strikes sworn, defense jury After the had been every struck of a member following counsel dictated the motion into However, as minority group on the venire. the record: are bound to an intermediate time, Honor, At this Your comes now the follow the rules enunciated the Court of Metiers, by Chester Appeals. Criminal Tex.Code Crim.P.Ann. record, through attorney Walter (Vernon Ap Supp.1985). Pink, respectfully object and would to pellant’s first of error is overruled. as it is situated at this time. In his second judge like to We would alleges that the trial court erred overrul- unconstitutionally, sys- that the state has ing objection to the use of the enhance- tematically excluded all blacks from the originally alleged ment offense. The state jury panel. eight There were some from it paragraphs, two enhancement aban- array. any my I did not use paragraph at doned the first enhancement blacks, strikes for as such. The state objected Appellant time of trial. to eight has used of its ten strikes for paragraph of the second enhancement use improperly attempt it to and is an as follows: minority. eliminate the Honor, time, the defendant At this Your The defendant is black and we like would quash the respectfully would ask first to to reflect that the state used paragraph in that the defendant peremptory challenges. We by jury.... sign did not a waiver of trial jury panel ask that this be struck and quash to We ask the motion because panel brought another forth. by jury in sign of trial failed particular required case as prosecutor responded to this motion as ask that would be We would follows: quashed.... whatsoever, There is no evidence scintilla that there even one of evidence evidence at the the state offered into When any any exclusion hearing appellant’s “pen pack- punishment race, object group and I would offense, based enhancement et” for the saying it in those terms on the to counsel again objected: record, object at this time and would objection to Again, renew our we would reflecting the record that. indictment. the one count that is objection that there was to strike We renew our The trial court denied the motion jury trial in that one. made a no jury panel. Appellant later appellant’s objec- The trial court overruled guilt-innocence stage Appellant tion. offered no trial, evidence were sentence quash of his motion enhance- plea entered the same after a paragraph. guilty. Turner v. (Tex.Crim.App.1972). prior of- both from the enhance in the fenses included exhibit in the instant following offense contains the recita *3 case, judgment the and en- sentence were tion: same pleas guilty, tered on the after of person writing, The in in and prove and failed to that was court, open having in of waived by represented punish- not counsel at the (such by jury being trial with the waiver hearing in either Appellant’s case. approval consent and court of the and third of error is overruled. now entered of in the minutes of being the and such with the The of the is af- trial court approval and consent of the District At- firmed. torney writing papers in the and filed in Tex.R.Crim.App. Publish. P. 207. cause), arraignment of this and waived LEVY, Justice, concurring. indictment, reading formal of the and in court, pleaded charge the open guilty to concurring by with the result reached in contained the indictment. majority, compelled feel out presumed recitations in a The are injustice in the law as it now stands. they to reflect events of the trial as 202, 85 Swain 380 U.S. actually occurred, and a defendant who al- 824, (1965), 13 S.Ct. L.Ed.2d 759 has estab judgment erroneously that leges a shows a necessary proof racially lished the moti present must evidence to vated strikes to extraordi claim. 683 Breazeale v. narily demanding possibly and insurmount 446, (Tex.Crim.App.1985) (op. 451 able, extent many legal that scholars reh’g). Appellant’s this assert that established standard error overruled. petuates both exclusion of In his third (and perhaps eth other identifiable that the in trial court admit- erred groups) judicial process nic from the and ting into evidence pen packet containing a trials, severely impartial inhibits fair and judgments sentences in a 1958 arson offending Equal thereby Protection and a conviction 1959 theft conviction Due Process Clauses the Constitution County. Appellant objected of Dallas See, States. the United Thiel v. Southern the introduction of these on the documents Co., 217, 984, 328 U.S. S.Ct. Pacific by that he represented basis was not coun- (1946); Texas, 311 U.S. L.Ed. 1181 Smith v. sentencing hearings sel at either 164, 128, (1940); 85 L.Ed. 84 case. Jury Reducing System: New Methods for judgments Both reflect that 1975) (National Jury pp. Prejudice Project represented guilt-in- by was counsel at 6, Although prohibitions 10-11. However, stage of each trial. nei- nocence Equal go than Protection Clause no further representation by sentence reflects ther discrimination, the “invidious” Williamson punish- counsel waiver of counsel at 483, Oklahoma, Optical Lee stage at either trial. The order re- (1955), 99 L.Ed. S.Ct. voking probation charges for the arson re- that superior our courts have said that that represented flects was reached, yet point has not been or at hearing. offered in has not proof that the each case that, in appear It would A burden of been sufficient. defendant has the proof have the conflict between this Clause and presenting that he did not coun procedural right strike sentencing hearing judg a sel at where represented by peremptorily, recites that he the constitu members statistical or has not met his burden relegated to a bar guarantee has tional been proof re- now. that issue. position proof least for other subordinate —at its is indeed quired argument that Appellant’s impossi- theoretically demanding, not reinterpret- progeny should be overruled or agree reluctantly I must therefore ble. defendant to to allow a criminal ed order ground of error must appellant’s first prima facie case of unconstitutional make a be overruled. perempto- by the State discrimination showing ry Tex.R.Crim.App. P. 207. Publish. strikes — case, struck, single every member of in a panel minority group on the venire —is prosecu- justification. Where without of the venire who

tor strikes all members recognizable ethnic

are allow, if not logic certainly *4 to arise that such

require, presumption systematic exclusion of

striking amounts to basis, if hoc even ad IRIZARRY, Raymond prosecutor, to the thereby shift the burden action timely objection, justify

upon jury pan- grounds or have the on non-racial PANTEX FEDERAL AMARILLO Zant, 720 F.2d quashed. el See Willis v. UNION, Appellee. CREDIT (11th Cir.1983). good Reliance on No. 07-84-0143-CV. partici- entrusted with faith of a for the jurors in the selection of pating Court justice is not in administration of criminal Amarillo. discriminatory pow- itself an investiture of process. Representing to due er offensive Aug. living principle, process” it does a “due as catalog permanent is not confined within given may at a time be deemed what the essentials fundamental

limits or per-

rights. The today established is so easy assumption that it

that it leads to protection of life and fundamental necessary ingredi-

liberty and therefore a process of But we should

ent of due neces- the familiar with the

not confuse is,

sary. perhaps, “Due Process” law, con- concept of our the least

frozen history, absorptive of and the most

fined progressive standards of a

powerful social

society. however,

As an intermediate precedent to follow the rules and

are bound Supreme by the United States

enunciated of Criminal and the Texas Court Court

Appeals. Tex.Code Crim.P.Ann. (Vernon Supp.1985). Those courts proving that the test for

have established solely for ra- were struck reasons, appellant in the case

cial