Hernandez v. State

• Decision Date: 18 June 1952
• Docket Number: No. 25816,25816
• Citation: 251 S.W.2d 531,160 Tex.Crim. 72
• Parties: HERNANDEZ v. STATE.
• Court: Texas Court of Criminal Appeals

Page 531

251 S.W.2d 531

160 Tex.Crim. 72

HERNANDEZ v. STATE.

No. 25816.

Court of Criminal Appeals of Texas.

June 18, 1952.

Rehearing Denied Oct. 22, 1952.

Carlos C. Cadena, Gus C. Garcia, San Antonio, for appellant.

George P. Blackburn, State's Atty., Austin, for the State.

DAVIDSON, Commissioner.

Murder is the offense, with punishment assessed at life imprisonment in the penitentiary.

Appellant is a Mexican, or Latin American. He claims that he was discriminated against upon the trial of this case because members of the Mexican nationality were deliberately, systematically, and wilfully excluded from the grand jury that found and returned the indictment in this case and from the petit jury panel from which was selected the petit jury that tried the case. He sought, for said reasons, to quash the indictment and petit jury panel, claiming he had thereby been deprived of equal protection.

The action of the court in overruling the two motions presents the sole question for review.

In support of his contention, appellant relies upon the so-called rule of exclusion as announced by the Supreme Court of the United States--that is, that the long and continued failure to call members of the Negro race for jury service, where it is shown that members of that race were available and qualified for jury service, grand or petit, constitutes a violation of due process and equal protection against members of that race.

The rule appears to have been first announced in Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074, and since then followed. See Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559; Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; and Ross v. Texas, 341 U.S. 918, 71 S.Ct. 742, 95 L.Ed. 1352.

Appellant would have the above rule to extend to and apply to members of different nationalities--particularly to Mexicans.

Much testimony was introduced by which appellant sought to show the systematic exclusion of Mexicans from jury service and that there were members of that nationality qualified and available for such service in Jackson County. The facts proven, however, were of no greater probative force than those stipulated by the state and the appellant, which we quote as follows:

'The State will stipulate that for the last twenty-five years there is no record of any person with a Mexican or Latin American name having served on a jury commission, grand jury or petit jury in Jackson County.'

'It is stipulated by counsel for the State and counsel for the defendant that there are some male persons of Mexican or Latin American descent in Jackson County who, by virtue of being citizens, householders, or freeholders, and having all other legal prerequisites to jury service, are eligible to serve as members of a jury commission, grand jury and/or petit jury.'

With reference to the petit jury, we quote the following:

'It is stipulated by counsel for the State and counsel for defendant that there is no person of Mexican or other Latin American descent or blood on the list of talesmen.'

These stipulations of necessity included the ability to read and speak the English language.

It was shown that Jackson County had a population of approximately 18,000, 15% of which--a witness estimated as a 'wild guess'--were Mexicans. The same witness also testified as a 'rough estimate' that 6 or 7% of that 15% were freeholders upon the tax rolls of the county. It was shown, also, that the population of Jackson County, was composed also of Bohemians, Germans, Anglo-Americans, and Negroes. The relative percentages of these, however, were not estimated.

It may be said, therefore, that the facts relied upon by the appellant ot bring this case within the rule of systematic exclusion are that at the time the grand jury was selected and at the time of the trial of this case there were 'some male persons of Mexican or Latin American descent in Jackson County' who possessed the qualifications requisite to service as grand or petit jurors, and that no Mexican had been called for jury service in that county for a period of twenty-five years.

There is an absence of any testimony here suggesting express or factual discrimination against appellant or other Mexicans in the selection, organization, or empaneling of the grand or petit jury in this case. To sustain his claim of discrimination, appellant relies only upon an application of the rule of exclusion mentioned.

In so far as this court is concerned, the question here presented was determined adversely to appellant's contention in the case of Sanchez v. State, 147 Tex.Cr.R. 436, 181 S.W.2d 87, 90, where we said:

'In the absence of a holding by the Supreme Court of the United States that nationality and race bear the same relation, within the meaning of the constitutional provision (Fourteenth Amendment) mentioned, we shall continue to hold that the statute law of this State furnishes the guide for the selection of juries in this State, and that, in the absence of proof showing express discrimination by administrators of the law, a jury so selected in accordance therewith is valid.' (Parentheses supplied.)

Within our knowledge, no decision of the Supreme Court of the United States has been rendered which would change the conclusion just expressed.

The validity of laws of this state providing for the selection of grand or petit jurors, arts. 333-350, C.C.P., Vernon's Ann.C.C.P. arts. 333-350, has never been seriously challenged. Indeed, the Supreme Court of the United States, in Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 165, 85 L.Ed. 84, recognized the validity thereof when it said:

'Here, the Texas statutory scheme is not in itself unfair; it is capable of being carried out with no racial discrimination whatsoever.'

It was with this statement in mind that we said, in effect, that, in the absence of express discrimination, a jury, grand or petit, drawn in accordance with the statute law of this state was valid.

Appellant challenges the correctness of our conclusion and charges that by such holding we have extended special benefits to members of the Negro race which are denied to Mexicans, thereby violating equal protection to them. Such contention calls, of necessity, for a construction of the equal protection clause of the Fourteenth Amendment to the Federal Constitution with reference to the selection of juries in state court trials and the decisions of the Supreme Court of the United States relative thereto.

The Fourteenth Amendment to the Federal Constitution in relation to equal protection ¹ was adopted to secure to members of the Negro race, then recently emancipated, the full enjoyment of their freedom. Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 579; Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149; Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567; Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664; In re Slaughter-House cases, 16 Wall. 36, 21 L.Ed. 394.

While the Supreme Court of the United States had before it the question of race discrimination under the Fourteenth Amendment in the Slaughter-House cases, it appears that it was not until the case of Strauder v. West Virginia that the court had occasion to determine that race discrimination in jury organization was prohibited by the Fourteenth Amendment. In the latter case a statute of West Virginia limited jury service to white male persons. This statute was held as discriminatory against members of the Negro race and, therefore, violative of equal protection.

Following the Strauder case, the question of race discrimination in the selection of juries was before the court upon several occasions.

In Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 689, 44 L.Ed. 839, the rule was stated as follows:

'Whenever by any action of a State, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment of the Constitution of the United States. ...