Cuesta v. State

• Decision Date: 28 December 1988
• Docket Number: No. 07-87-0314-CR,07-87-0314-CR
• Citation: 763 S.W.2d 547
• Parties: Andres CUESTA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 547

763 S.W.2d 547

Andres CUESTA, Appellant, v. The STATE of Texas, Appellee.

No. 07-87-0314-CR.

Court of Appeals of Texas,

Amarillo.

Dec. 28, 1988.

Kent Birdsong, Amarillo, for appellant.

James A. Farren, Asst. Dist. Atty., Amarillo, for appellee.

Before REYNOLDS, C.J., and BOYD and PIRTLE, JJ.

PIRTLE, Justice.

Appellant Andres Cuesta appeals from his conviction for sexual assault, second degree, and the jury-assessed punishment of twenty years confinement in the Texas Department of Corrections and a fine of $10,000. By eight points of error, appellant contends that his conviction should be reversed because (1) he was tried under an indictment that was amended pursuant to an unconstitutional statutory provision; (2) he was tried under an indictment that was not the indictment of the grand jury; (3) the State engaged in purposeful discrimination through the use of its peremptory strikes; (4) his due process rights were violated by suppression of the existence of a photo line-up; (5) his due process rights were violated when the State lost or destroyed exculpatory evidence; (6) the prosecutor engaged in improper jury argument relating to the age of latent fingerprints which were introduced at trial (a point subsequently waived by appellant); (7) the prosecutor engaged in improper jury argument concerning the appellant's accent; and (8) appellant was not provided prior notice of the amendment of his indictment. Because we conclude that appellant has not presented any reversible error, we affirm.

On June 16, 1987, the victim was awakened at approximately 2:00 a.m. when an intruder entered her room and forced her to leave her home. The victim testified that a man she identified as appellant told her that he had a gun and he did not want to use it. The victim further testified that appellant then sexually assaulted her. Appellant was connected to the offense by fingerprints and by the victim's identification.

Appellant was indicted by the Potter County grand jury on July 9, 1987, on a charge of sexual assault. Upon the State's motion, the indictment was amended on October 8, 1987, in two respects: (1) the words "sexual organ" were substituted for the word "vagina," and (2) the phrase "and [the victim] believed that said defendant had the present ability to execute said threats" was added. On November 16, 1987, the case proceeded to trial and on November 19, 1987, the jury returned a verdict of guilty.

By his first two points of error, appellant challenges the constitutionality of Articles 28.10 and 28.11 of the Texas Code of Criminal Procedure, ¹ asserting that his conviction should be reversed because he was tried under an indictment that was amended pursuant to those articles. Although appellant did not raise the present challenges in the trial court, questions involving the constitutionality of a statute upon which a defendant's conviction is based should be addressed by this Court, even though such issues are being raised for the first time on appeal. Rabb v. State, 730 S.W.2d 751, 752 (Tex.Crim.App.1987). Accordingly, we will address appellant's constitutional challenges.

In point of error number one, appellant asserts that Articles 28.10 and 28.11 are unconstitutional because they violate the separation of powers provision of Article II, Section 1 of the Texas Constitution. Appellant reasons that, because the articles at issue allow a matter of form or substance in an indictment to be amended at any time before trial, the Legislature has unconstitutionally encroached upon the exclusive power of the judiciary, acting by and through the grand jury, to make the findings necessary to return an indictment.

Article 28.10, as amended, provides as follows:

(a) After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.

(b) A matter of form or substance in an indictment or information may also be amended after the trial on the merits commences if the defendant does not object.

(c) An indictment or information may not be amended over the defendant's objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced.

Article 28.11 provides: "All amendments of an indictment or information shall be made with the leave of the court and under its direction." We conclude that appellant's separation of powers argument is without merit. The Legislature has done nothing more than follow its constitutional mandate by enacting Articles 28.10 and 28.11. Article V, Section 12(b) of the Texas Constitution specifically provides that the practice and procedures relating to the amendment of indictments shall be "as provided by law." The legislative branch, by enacting these provisions, has merely adopted a procedure by which one tribunal of the judicial branch, the trial court, may amend an indictment originally returned by another tribunal of the judicial branch, the grand jury. Accordingly, point of error number one is overruled.

By his second point of error, appellant asserts that Articles 28.10 and 28.11 are unconstitutional because they conflict with the provisions of Article I, Section 10 and Article V, Section 12(b) of the Texas Constitution. Article I, Section 10 provides that: "No person shall be held to answer for a criminal offense unless under an indictment by a grand jury." Appellant reasons that his constitutional right to indictment by grand jury was violated when the State amended the indictment with the approval and under the direction of the trial court. He concludes that he was indicted by the State and by the trial court, not by the grand jury.

Appellant further argues that matters of substance, as distinguished from matters of form, may not be amended and that the amendment in question was violative of his constitutional rights because it involved an amendment as to substance. In order to address appellant's contention, we need not determine whether the amendment was one of form or substance, as such distinctions were eliminated by the amendments to Article 28.10. ² We conclude that, effective December 1, 1985, indictments may be constitutionally amended as to matters of form or substance. Appellant was originally indicted by the grand jury as required by Article I, Section 10 of the Texas Constitution. The grand jury's indictment was amended as contemplated by Article V, Section 12(b). Point of error number two is overruled.

In his third point of error, appellant contends that the trial court erred in denying his motion to dismiss the jury, alleging that the prosecutor engaged in purposeful discrimination through the use of its peremptory strikes against members of appellant's race, in violation of appellant's constitutional rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Appellant contends that the prosecution selectively exercised peremptory challenges against three prospective black jurors, thereby preventing any blacks from serving on the panel. Because appellant failed to establish purposeful discrimination, point of error number three is overruled.

In order to fully appreciate this Court's ruling, it is necessary to briefly review Batson, its genesis and its progeny. We begin with the legal principle that the prosecution may not purposefully exclude members of a defendant's race from jury service solely because of their race. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). In Batson, the Supreme Court reaffirmed this principle, and then went on to conclude that the quantum of proof required by Swain effectively immunized the prosecution's use of peremptory strikes from constitutional scrunity. To rectify this problem, the Supreme Court set out a lesser burden of proof through which a defendant could establish a prima facie case of purposeful discrimination. Under Batson, a defendant may establish a prima facie case of purposeful discrimination in the selection of the petit jury by showing that (1) he is a member of a cognizable racial group, (2) the prosecution exercised peremptory challenges to remove members of the defendant's race from the venire, and (3) these facts and any other relevant circumstances raise an inference that the prosecution used peremptory challenges to exclude members of the venire from the petit jury because of their race. Batson, 476 U.S. at 95-98, 106 S.Ct. at 1722-23, 90 L.Ed.2d at 87-88.

The Supreme Court went on to state that "[o]nce the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors," and "[the] explanation [must be] related to the particular case to the tried." Batson, 476 U.S. at 98, 106 S.Ct. at 1723, 90 L.Ed.2d at 88. Since Batson, a number of Texas cases have delineated standards by which the adequacy of race-neutral explanations should be judged. ³

If the protections afforded by Batson are to be given any substantive meaning, the prosecution must give clear and reasonably specific explanations of its legitimate reasons for exercising the challenges. Batson, 476 U.S. at 96-99 n. 20, 106 S.Ct. at 1723-24 n. 20, 90 L.Ed.2d at 88-89, n. 20. The trial judge must attempt to ascertain the subjective intent of the prosecutor, accepting adversarial intuition, while rejecting racial motivation. Given accusations of purposeful discrimination, and race-neutral explanations for the exercise of peremptory challenges, the trial court has the duty to determine whether the defendant has established purposeful discrimination. Batson, 476 U.S. at 96-99, 106 S.Ct. at 1723-24, 90...