De La Garza v. State

• Decision Date: 23 March 1983
• Docket Number: No. 04-81-00334-CR,04-81-00334-CR
• Citation: 650 S.W.2d 870
• Parties: Raul DE LA GARZA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 870

650 S.W.2d 870

Raul DE LA GARZA, Appellant, v. The STATE of Texas, Appellee.

No. 04-81-00334-CR.

Court of Appeals of Texas,

San Antonio.

March 23, 1983.

Rehearing Denied April 15, 1983.

Juan Martinez Gonzales, Beeville, for appellant.

Stella Saxon, Asst. Dist. Atty., Karnes City, for appellee.

Before ESQUIVEL, BUTTS and DIAL, JJ.

OPINION

BUTTS, Justice.

This is an appeal from a conviction for attempted capital murder. The jury found appellant guilty and assessed punishment at sixteen (16) years confinement in the Texas Department of Corrections. We affirm the judgment.

Officer Daniel Esparza of the Kenedy Police Department answered a disturbance call on September 6, 1980. Arriving at the location about 4:00 a.m., he stated he saw several people in the bar ditch and street outside a mobile home. He testified that some of them, including the appellant, were intoxicated. A dice game was in progress inside the mobile home. When he was unable to disperse the group, he returned to his patrol car to call for assistance. He testified appellant was drunk and that he attempted to place him under arrest. As the officer held appellant's arm, appellant "took his right hand and hit me up beside the head, up beside the face.... [W]e was wrestling." Esparza struck appellant with his flashlight, and appellant took the flashlight from him. Two other men at the scene rushed over and knocked the officer to the ground. Someone took his gun; Esparza was severely beaten with the gun and flashlight. Hospitalization was required for treatment of wounds on his head and hand; surgery was performed as the result of a broken bone in his hand.

Appellant brings twenty grounds of error. He first argues that the trial court had no authority to select the county to which the case was removed on appellant's motion for change of venue. Tex.Code Crim.Pro.Ann. art. 31.03 (Vernon Supp.1982). The trial court granted the appellant's motion to remove the case from Karnes County. The judge said, "I will change venue to any county in this district which the defendant wants..." No particular county was selected at that hearing although many were mentioned. Appellant argues that venue should have been placed in La Salle County. At the hearing on the change of venue, which the State did not contest, it was the trial judge who first mentioned La Salle County. Appellant did not press for that particular county, and the issue ended with the open question of a location in the judicial district. On a later date appellant's attorney received a letter informing him venue would be in Wilson County.

Appellant complains that the trial court changed venue on its own motion. Tex.Code Crim.Pro.Ann. art. 31.01 (Vernon 1966). We do not agree. Also appellant assumes that a defendant has the constitutional right to choose the particular county to which his case is removed by the court. This right is not to be found in the venue statutes. Appellant was not entitled to select the county for trial. Cherry v. State, 488 S.W.2d 744, 750 (Tex.Cr.App.1973). The action of removing the case to another county in the judicial district resulted from appellant's motion for change of venue. We hold the trial court's action was controlled by the provisions of article 31.03 and article 31.01 was not invoked.

In this connection we add that if appellant had grounds, as enunciated in article 31.03, to complain of venue in Wilson County, his remedy at that time was to file his motion for change of venue from Wilson County to another. Cherry v. State, supra, at 749-750. See n. 2. The ground of error is overruled.

Appellant moved the trial court to quash the indictment against him, asserting the grand jury which indicted him in 1980 was improperly impaneled. Additionally he claims there has been substantial underrepresentation of Mexican-Americans on grand juries in Karnes County for the past twenty years.

The method of selection of grand juries was amended in Texas in 1979, Tex.Code Crim.Pro.Ann. art. 19.01(a), (b) (Vernon Supp.1982). It is agreed by the parties that article 19.01(b), supra, was the method of selection of grand jurors in this case. This is the jury wheel method. Article 19.01(b) provides;

In lieu of the selection of prospective jurors by means of a jury commission, the district judge may direct that 20 to 50 prospective grand jurors be selected and summoned, with return on summons, in the same manner as for the selection and summons as panels for the trial of civil cases in the district court. The judge shall try the qualifications for and excuses from service as a grand juror and impanel the completed grand jury in the same manner as provided for grand jurors selected by a jury commission.

Governing this selection system are those statutes pertaining to jury panel selection in civil trials. Tex.Rev.Civ.Stat.Ann. art. 2094 et seq. (Vernon Supp.1982). This eliminates the "key man" system and its possible appurtenant evils. See Partida v. Castaneda, 524 F.2d 481 (5th Cir.1975), aff'd 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977).

The method of selection used in the present case has been upheld. United States v. Arlt, 567 F.2d 1295, 1297 (5th Cir.), cert. den'd 436 U.S. 911, 98 S.Ct. 2250, 56 L.Ed.2d 412 (1978). The Court of Criminal Appeals upheld the jury wheel method of selecting Texas petit jury panels in criminal cases in Shelby v. State, 479 S.W.2d 31 (Tex.Cr.App.1972). Because article 19.01(b) utilizes the same method when grand jurors are selected, we find the Shelby reasoning applicable in this case and hold that no constitutional violation in the method of selection of grand jurors in this case has been shown.

Even when the voter registration list may not on its face represent a proportionate cross section of the community, the jury wheel method has been upheld. United States v. Goff, 509 F.2d 825, 827 (5th Cir.1975). Although only one Mexican-American and one black served as members of the grand jury which indicted appellant, there is nothing to indicate intentional discrimination. Further the record does not disclose how many Mexican-Americans may have been excused from service by the trial court.

Since the jury wheel method of selection has been employed in this case, the composition of the grand juries shown by appellant for the eighteen years previous to the subject grand jury has no relevance to the constitutionality of the controlling statute. Art. 19.01(b), supra. It appears from the evidence that the "key man" system used in Karnes County in earlier years did produce a disparity of representation on grand juries between Mexican-Americans and other recognizable groups. Had that same system been utilized in the present case, the figures introduced by appellant would have been relevant. Espinoza v. State, 604 S.W.2d 908, 909-910 (Tex.Cr.App.1980). We hold that the trial court correctly overruled the motion to quash the indictment for systematic exclusion of Mexican-Americans from the grand jury which indicted him and overrule the ground of error.

In his third ground of error appellant asserts the trial court erred by not appointing a medical expert to conduct a mental examination of him. Appellant's affidavit supporting the motion states that he was indigent and that he might be suffering from a personality or behavioral instability. The alleged offense occurred in September 1980 and appellant requested a mental examination in November 1980, which was denied. In his motion he indicated the insanity defense would be raised by him at trial. It is appellant's contention that he suffered from a sleep deprivation and a blow to the head at the time of the alleged offense.

In a related argument, his fifteenth ground of error, appellant charges the court erred by not submitting a defensive jury instruction on insanity. An instruction encompassing a defendant's defensive theory, such as insanity at the time of the offense, must be given if the evidence raises the defensive issue. Montgomery v. State, 588 S.W.2d 950, 953 (Tex.Cr.App.1979). Tex.Penal Code Ann. § 8.01 (Vernon 1974). In this case the evidence, including appellant's testimony, demonstrated that he had been drinking and that he was "acting out of control"; he also testified he was confused and hurt after the officer struck him on the head with his flashlight.

Tex.Code Crim.Pro.Ann. art. 46.03 (Vernon 1979) provides, in part:

Section 1. (a) The insanity defense provided in Section 8.01 of the Penal Code shall be submitted to the jury only if supported by competent evidence.

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In the present case the trauma of a blow to the head by the officer's flashlight may have rendered the appellant dazed, but there is no evidence to indicate that he either did not know that his conduct was wrong or that he was incapable of conforming his conduct to the requirements of the law. Section 8.01, supra. On the issue of insanity the defendant has both the burden to produce and the burden to persuade by a preponderance of the evidence. Once the defendant has accepted these burdens and adduced evidence, then sanity becomes an issue. Madrid v. State, 595 S.W.2d 106, 111 (Tex.Crim.App.1980), cert. den'd. 449 U.S. 848, 101 S.Ct. 134, 66 L.Ed.2d 58 (1980). Even if medical testimony had confirmed his contention that he was "sleep deprived," confused, intoxicated and "out of control," this would not be sufficient to justify a jury charge on the defense of insanity. Compare Hurd v. State, 513 S.W.2d 936 (Tex.Cr.App.1974) and Stanley v. State, 471 S.W.2d 72 (Tex.Cr.App.1971) on the matter of raising the issue of insanity as a defense. Given the dearth of evidence here, we hold the trial court correctly refused to submit the requested issue.

To support his motion for a mental examination of appellant by a court-appointed medical expert, appellant produced no evidence of mental illness indicating the need for the examination. Further, he specifically stated to the court that this was...