Dent v. State, 47058

• Decision Date: 23 January 1974
• Docket Number: No. 47058,47058
• Citation: 504 S.W.2d 455
• Parties: Elmer Lee DENT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 455

504 S.W.2d 455

Elmer Lee DENT, Appellant, v. The STATE of Texas, Appellee.

No. 47058.

Court of Criminal Appeals of Texas.

Jan. 23, 1974.

Rehearing Denied Feb. 13, 1974.

Dale Dowell, Beaumont, for appellant.

Tom Hanna, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State's Atty., Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

Appellant was convicted of the offense of robbery by firearms; punishment was assessed by the jury at twenty years confinement.

The sufficiency of the evidence is not challenged.

Appellant's first three grounds of error concern his original and second motions to quash the general panel of jurors, which motions were overruled by the trial court.

In his first ground of error appellant contends he was denied due process of law when his motions were overruled without a hearing having been allowed. In his brief appellant concedes that the trial court upon denial of his motions stated he would be allowed a hearing after the trial to present evidence on his motions. From what appears in the record, no request for such hearing was made, and this court cannot speculate upon what the evidence at any such hearing would or would not have shown. Appellant presents no cogent argument on how a delay in such hearing would violate his rights. Although Article 35.07, Vernon's Ann.C.C.P., provides:

'Each party may challenge the array only on the ground that the officer summoning the jury has wilfully summoned jurors with a view to securing a conviction or an acquittal. All such challenges must be in writing setting forth distinctly the grounds of such challenge. When made by the defendant, it must be supported by his affidavit or the affidavit of any credible person. When such challenge is made, the judge shall hear evidence and decide without delay whether or not the challenge shall be sustained.',

Appellant's motions to quash made no such challenge. We conclude no error is shown by the trial court's failure to conduct a hearing prior to trial where appellant declined to pursue the court's suggestion that the record on the points in his motion could be developed following the trial.

Appellant's first ground of error is overruled.

In his second ground of error, appellant contends the trial court erred in overruling his motions to quash because the general panel 'was not selected in accordance with the laws of the State of Texas pertaining thereto.'

In addition to the ground discussed under appellant's third ground of error below, appellant, in his motion to quash, alleged (1) that the panel was not drawn in accordance with the statutes, (2) that process was not issued to compel attendance of persons summoned who failed to appear, (3) that many persons were excused by unauthorized persons, and (4) that others were excused without any lawful excuse. There is no evidence in the record to support appellant's first and third grounds alleged. With respect to the second ground, Article 35.01, V.A.C.C.P., concerning attachment of absent prospective jurors, has been held directory and not mandatory. Stephenson v. State, Tex.Cr.App., 494 S.W.2d 900, 906; Brown v. State, Tex.Cr.App., 475 S.W.2d 938. Appellant having failed to allege and show injury, no reversible error is shown.

Only appellant's claim that members of the panel were excused without lawful excuse finds any support in the record. Article 2120, Vernon's Ann.Civ.St., provides:

'The Court may hear any reasonable sworn excuse of a juror, and may release him entirely or until some other day of the term; provided, however, the Court shall not excuse any juror for economic reasons unless all parties of record are present and approve such excuse.'

From the record it does not appear that members of the panel requesting to be excused from service were sworn. Further, it does appear that several were excused for economic reasons. The rule governing this matter is correctly stated in appellant's brief, using the language from 1 Branch's, 2nd Ed., Sec. 543, quoted with approval in Fontenot v. State, Tex.Cr.App., 379 S.W.2d 334, to wit:

'Any infringement of the jury law will require a reversal without reference to whether injury to the defendant is shown. When the statute prescribes the method of procedure And compliance therewith is promptly and timely demanded, the trial court is not authorized to permit infringements of the jury law.' (Emphasis added.)

The record reflects that counsel for appellant and for the state were present during the proceedings wherein excuses of members of the panel were heard and ruled upon, and that no objection was raised during such proceedings that...