Gutierrez v. State

• Decision Date: 31 July 1997
• Docket Number: No. 04-95-00528-CR,04-95-00528-CR
• Citation: Gutierrez v. State, 954 S.W.2d 86 (Tex. App. 1997)
• Parties: Marcos GUTIERREZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 86

954 S.W.2d 86

Marcos GUTIERREZ, Appellant, v. The STATE of Texas, Appellee.

No. 04-95-00528-CR.

Court of Appeals of Texas San Antonio.

July 31, 1997.

Rehearing Overruled Sept. 9, 1997.

Fernando Cortes, San Antonio, for Appellant.

W.C. Kirkendall, District Attorney, Frank Follis, Assistant District Attorney, Seguin, for Appellee.

Before HARDBERGER, C.J., and RICKHOFF and DUNCAN, JJ.

OPINION

RICKHOFF, Justice.

Marcos Gutierrez was convicted of first-degree murder and sentenced to life in prison. In two points of error Gutierrez complains that his right to equal protection was violated by the Guadalupe County grand juror selection process, and that the trial court erred in not granting his motion to transfer venue. We decline to apply a more stringent mathematical standard than one endorsed by the Supreme Court decades ago and to find systematic exclusion of Spanish-surnamed Americans of Mexican descent from Guadalupe County's grand juries. However, because we find the trial court erred in not considering the merits of Gutierrez' motion to transfer, we reverse and remand.

EQUAL PROTECTION

In his first point of error, Gutierrez claims that the trial court erred in overruling his motion to quash the indictment because the class of Spanish-surnamed Americans of Mexican descent ¹, of which Gutierrez is a member, was systematically excluded from grand jury service in Guadalupe County.

In 1994, Gutierrez was indicted by a Guadalupe County grand jury, which was empaneled by what is called the "key-man" system. This system required jury commissioners, appointed by a district judge, to select and make a list of prospective jurors. Gutierrez claimed this system denied him equal protection of the law, and that the court committed reversible error in overruling his motion to quash the indictment because he presented an unrebutted, prima facie case of an equal protection violation. We disagree.

1. Establishing the Prima Facie Case

Nearly two decades ago, in Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), the United States Supreme Court set forth the elements of a prima facie case of discrimination in the selection of grand jurors. Under Castaneda, the defendant must show that the selection system employed resulted in substantial underrepresentation of his race by establishing:

(1) the group is a recognizable, distinct class that has been singled out for different treatment under the laws;

(2) the degree to which the group was underrepresented by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors over a significant period of time; and

(3) the selection process is either susceptible to abuse or is not racially neutral.

Castaneda, 430 U.S. at 494 [97 S.Ct. at 1280]. "Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case." Id. at 495 . When the state declines to rebut such a showing, they do so at their peril.

Gutierrez, however, has failed to make out a prima facie case of discriminatory purpose. Although he meets the first and third prongs of the Castaneda test, he has failed to demonstrate, under the second prong, that Spanish-surnamed Americans of Mexican descent have been underrepresented on Guadalupe County grand juries by a legally significant amount over a significant period of time.

The first element set out in Castaneda is here satisfied because Spanish-surnamed Americans of Mexican descent are recognized as a clearly identifiable class with a history of being subjected to discriminatory treatment. Hernandez v. Texas, 347 U.S. 475, 478-80, 74 S.Ct. 667, 670-71, 98 L.Ed. 866 (1954). The third element is met as well because, while the key-man system has been upheld as facially constitutional, Carter v. Jury Comm'n, 396 U.S. 320, 332-37, 90 S.Ct. 518, 524-28, 24 L.Ed.2d 549 (1970), the system is susceptible to abuse as applied. Hernandez, 347 U.S. at 479, 74 S.Ct. at 671. Many Texas jurisdictions have abandoned this system for that reason.

Gutierrez, however, cannot meet the second prong of the Castaneda test unless we apply an analysis more stringent than the Supreme Court has required. Because we believe Supreme Court action in this area was spurred by compelling historical circumstances, we will not author a more stringent standard.

2. The Statistics

In an attempt to meet the second element of the Castaneda test, Gutierrez presented evidence at the hearing on the motion to quash the indictment showing that, pursuant to the 1993 Texas Estimated Population table made a part of the Texas Vital Statistics Annual Report for 1993, Spanish-surnamed individuals made up 31.35% of the total population of Guadalupe County. Gutierrez also produced lists of the individuals who were summoned and who served as grand jurors from 1987 to 1994, which established the following:

(1) only 21.25% of those summoned during this time period had Spanish surnames, a disparity of 10.1% between the proportion of the group in the total population in 1993 and the proportion that were summoned between 1987 and 1994; and

(2) only 18.84% of the grand jurors who served during this time period had Spanish surnames, a disparity of 12.5% between the proportion of the group in the total population in 1993 and the proportion that actually served from 1987 to 1994.

Gutierrez also showed that of the 12 members of the grand jury which indicted him, only two had Spanish surnames.

The United States Supreme Court has never promulgated precise mathematical standards to determine at what point a denial of equal protection by the "systematic" exclusion of an identifiable class from jury service occurs. Alexander v. Louisiana, 405 U.S. 625, 630, 92 S.Ct. 1221, 1225, 31 L.Ed.2d 536, 541 (1972). The Court has held only that when suspect systems such as the one employed in Guadalupe County are used, a sufficiently large disparity over a significant period of time supports a presumption of unconstitutional purposeful discrimination. Castaneda, 430 U.S. at 493-94, 97 S.Ct. at 1279-80. The disparities in this case, however, between the proportion of Spanish-surnamed persons in the total population in 1993 and the proportion of Spanish-surnamed individuals summoned to serve (10.1%) and who served as grand jurors (12.5%) between 1987 and 1994, are lower than the disparities found to be sufficient by both the United States Supreme Court and Texas courts considering this issue. ²

Our research has disclosed only one Supreme Court case--Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967)--finding a prima-facie showing of an Equal Protection violation at a level lower than 15 percent discrepancy. A review of the circumstances surrounding Jones illustrates why we believe Gutierrez does not present a sufficiently compelling argument to justify a more stringent standard to be applied to Guadalupe County.

3. The Georgia Grand Jury Cases

Jones was a two-page per curiam opinion in which the Supreme Court held that Georgia officials had misapplied its earlier holding in Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967).

Whitus was convicted of murder in 1960; at that time, no African-American had served on a jury in that county in any witness' memory. Whitus, 385 U.S. at 547-48, 87 S.Ct. at 644-45. His conviction reached the Supreme Court and was eventually reversed on that disparity; Whitus was tried and convicted again. Id. On appeal from that conviction, Whitus showed the grand jury and petit jury lists had been derived from taxpayer digests which were still segregated by race. Id. at 551, 87 S.Ct. at 647. He also showed there was still an 18.0% disparity between the grand jury venire and the number of African-Americans on the taxpayer rolls. Whitus, 385 U.S. at 548-49, 87 S.Ct. at 645-46. These circumstances, the Court held, were sufficient to make out a prima facie case of "purposeful discrimination." Id. at 551, 87 S.Ct. at 647.

Jones was decided nine months after Whitus. While the petitioner in Jones showed a 14.7 percent discrepancy, that case's statistical analysis is relegated to a footnote. Jones, 389 U.S. at 25, 88 S.Ct. at 5-6. The specific holding in Jones is that the state cannot rely on a presumption that public officials have properly discharged their duties to satisfy the burden of explaining "the disparity between Negroes on the tax digest and those on the venires." Jones, 389 U.S. at 25, 88 S.Ct. at 5 (quoting Whitus, 385 U.S. at 552, 87 S.Ct. at 647-48).

Jones and Whitus, read together, appear to be less about creating a statistical yardstick for future cases than about forcing recalcitrant Georgia officials to confront and eliminate the last vestiges of de jure discrimination in their state's criminal justice system. We find no evidence in this record of intentional or de jure discrimination against members of the class in this community. We therefore doubt Gutierrez' case is a convincing one for extending the Jones statistical standard into a later time and a different cultural context.

4. Underrepresentation over a significant period of time

There are evidentiary problems with Gutierrez' case as well. As we noted in the discussion above, while participation in the grand jury system was represented by statistics over a seven-year period, the disparity was measured against one figure--the 1993 population estimate showing the percentage of class members in the county. The State argued both at the hearing on the motion to quash the indictment and in this appeal that because Gutierrez presented only the 1993 report, he failed to establish a prima facie case of statistical underrepresentation over a significant period of time as he presented no evidence demonstrating the Hispanic-American population in the county from 1987 to 1992. We agree that Gutierrez is asking u...