Enriquez v. State, 41061

• Decision Date: 14 February 1968
• Docket Number: No. 41061,41061
• Citation: 429 S.W.2d 141
• Parties: Juan Rudy ENRIQUEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 141

429 S.W.2d 141

Juan Rudy ENRIQUEZ, Appellant, v. The STATE of Texas, Appellee.

No. 41061.

Court of Criminal Appeals of Texas.

Feb. 14, 1968.

Rehearing Denied April 3, 1968.

Walter R. Long, Karnes City, Marvin Foster, Corpus Christi, for appellant.

J. Taylor Brite, Jourdanton, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is murder; the punishment, death.

Appellant's first ground of error, not supported by authority, is that the court erred in declining to consolidate this case with another murder case against this appellant, the indictment for which was pending in another county. We have concluded that there could be no possible merit in this contention since the court in the instant trial had no jurisdiction to try the murder case committed in the other county, because no exceptions to the general venue statute here exist.

Appellant's next ground of error is his claim that the trial court erred in failing to grant his combined motion to quash the venire and change the venue. We need not pass upon the question of whether or not Article 28.01, Sec. 1(7), Vernon's Ann.C.C.P. was complied with because it is apparent that the question of change of venue has become a question of constitutional dimension under the recent decisions of the Supreme Court of the United States in Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663; Estes v. State of Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543; and under the decision of our Fifth Circuit Court of Appeals in Pamplin et al. v. Mason, 364 F.2d 1. With this in mind we will discuss in detail the combined questions of change of venue and the impropriety of the sheriff's summoning of the prospective jurors in the light of Turner v. State of Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424.

At the outset we observe that at no place in this record was there introduced independent evidence as to newspaper, radio or television coverage of the instant case. The most that can be said is that a good number of the venire testified that they had read or heard something about this homicide at the time of its commission. What they had seen or heard is not shown. Two additional factors should be borne in mind. Neither the deceased nor the appellant was a resident of or known in Karnes County where this trial took place. The homicide merely occurred in said county. The second factor to be remembered is that the homicide occurred on April 25, 1966; the indictment was returned May 3, and the trial began after numerous pre-trial hearings and postponements on October 3. ¹

Though a number of veniremen were excused because they stated at one stage of their examination that they had an opinion as to appellant's guilt, a careful examination of the approximately 1500 pages relating to the jury selection reveals that the trial court in This case exercised extreme caution and excused many of the venire, who under usual and accepted practice would have been selected, because their opinions were uncertainly formed and the prospective jurors stated that they felt they could set aside any opinions they might have formed and try the case purely on the evidence adduced from the witness stand.

Appellant complains of the association between the sheriff and the veniremen picked by him at the court's instructions, citing Turner v. Louisiana, supra. There are two reasons why this association is not one within the meaning of Turner. First, the sheriff's testimony at the trial was not of the same critical import as the testimony of the deputy sheriff in Turner, supra. See Bowles v. State of Texas, 5 Cir., 366 F.2d 734, and Crawford v. Beto, 5 Cir., 385 F.2d 156. Secondly, the association complained of occurred at such a time so that appellant's voir dire examination of each venireman selected by the sheriff demonstrated that no prejudice permeated the jury who tried appellant.

By an additional motion appellant challenged the array in two respects. First, he contends that the trial court erred in not calling a special venire. During the pre-trial hearings the court repeatedly gave appellant's counsel his option to suggest how the jury should be formed, and counsel repeatedly declined to indicate to the court whether he wanted a special venire or not. He admittedly expressed no desire for a special venire, stating that he intended to object to any method of selection the court utilized. No error is shown. Article 34.01, Vernon's Ann.C.C.P.

Appellant also contends that racial discrimination was evidenced in the selection of the grand and petit jurors. No history of racial discrimination was shown. Those of us charged with the administration of criminal justice in this State learned our lesson fourteen years ago when the Supreme Court of the United States handed down its decision in Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866. ² The only records available for Karnes County show that since 1963, of the 732 petit jurors selected in said county, 72 have had Mexican American surnames; of the 112 grand jurors, there were 12 with Mexican American surnames, and of the 34 jury commissioners, six were identifiable as such. There were no statistics as to the percentage of Mexican Americans in said county, and each of the witnesses called stated that he or she did not know what percentage of the population of the county bore Mexican American surnames or were of Mexican American origin.

As to this case, one Mexican American served on the jury commission which selected the grand jury that indicted appellant, and which selected a portion of the panel from which were drawn the names of those who served as jurors at appellant's trial. At least 29 people whose names were patently Mexican American were among the combined lists from which appellant's jury was drawn. Twenty-four were excused by the court for the various reasons that they had (1) an opinion that appellant was guilty, (2) an opinion as to his guilt or innocence (3) an inability to understand the English language, (4) conscientious objections to the infliction of the death penalty, (5) failed to meet the statutory requirements of being a freeholder. To none of these excuses did appellant object. Four were peremptorily excused by the State and one by the appellant.

Another ground of error is based upon the opinion of our United States Court of Appeals for our Fifth Circuit in Rabinowitz v. United States, 366 F.2d 34. ³ Appellant contends that he has brought this case within the rule there announced. Appellant's counsel and Jury Commissioner Lillian Gabrysch exchanged the following question and answer concerning the type of people she selected for the petit jury:

'Q. (Appellant's counsel) You mean strong people, people that were intelligent and affirmative and aggressive.

A. (The witness) Yes sir, that knew what they are thinking about.'

Later in her examination the witness stated that she had been instructed by the court to select people of good moral character, and she tried to comply with such instructions. Appellant by this showing alone has failed...