Hernandez v. State, No. 25816

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation251 S.W.2d 531,160 Tex.Crim. 72
Decision Date18 June 1952
PartiesHERNANDEZ v. STATE.
Docket NumberNo. 25816

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.

[160 Tex.Crim. 73]

Page 532

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.[160 Tex.Crim. 74] 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.

Page 533

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[160 Tex.Crim. 75] 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...

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5 practice notes
  • Areas v. Fed. Highway Admin., Civil Action No. SA–08–CA–154–FB.
    • United States
    • U.S. District Court — Western District of Texas
    • April 22, 2011
    ...10, 2011). 4. Gustavo “Gus” C. Garcia worked with fellow San Antonio attorney Carlos Cadena in the landmark case of Hernandez v. Texas, 160 Tex.Crim. 72, 251 S.W.2d 531 (Tex.Crim.App.1952), rev'd, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). successfully arguing before the United States......
  • Muniz v. Beto, No. 28617.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 5, 1970
    ...Tex.Cr.App. 260, 193 S.W.2d 211; Sanchez v. State, 1951, 156 Tex.Cr.R. 243, 243 S.W.2d 700; Hernandez v. State, 1952, 160 Tex.Cr.R. 72, 251 S.W.2d 531. In the 1951 Sanchez case, supra, the Texas court was most emphatic in rejecting a Mexican-American defendant's "The case is submitted on th......
  • Anderson v. State, 2 Div. 16
    • United States
    • Alabama Court of Appeals
    • November 10, 1959
    ...future trials. * * *' Hernandez v. State of Texas, 1954, 347 U.S. 475, 74 S.Ct. 667, 671, 98 L.Ed. 866, reversing 160 Tex.Cr.R. 72, 251 S.W.2d 531. A motion to quash the indictment and the jury panel because of the systematic exclusion of persons of Mexican descent from (a) jury commissione......
  • Hernandez v. State of Texas, No. 406
    • United States
    • United States Supreme Court
    • May 3, 1954
    ...Texas. He was convicted and sentenced to life imprisonment. The Texas Court of Criminal Appeals affirmed the judgment of the trial court. 251 S.W.2d 531. Prior to the trial, the petitioner, by his counsel, offered timely motions to quash the indictment and the jury panel. He alleged that pe......
  • Request a trial to view additional results
5 cases
  • Areas v. Fed. Highway Admin., Civil Action No. SA–08–CA–154–FB.
    • United States
    • U.S. District Court — Western District of Texas
    • April 22, 2011
    ...10, 2011). 4. Gustavo “Gus” C. Garcia worked with fellow San Antonio attorney Carlos Cadena in the landmark case of Hernandez v. Texas, 160 Tex.Crim. 72, 251 S.W.2d 531 (Tex.Crim.App.1952), rev'd, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). successfully arguing before the United States......
  • Muniz v. Beto, No. 28617.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 5, 1970
    ...Tex.Cr.App. 260, 193 S.W.2d 211; Sanchez v. State, 1951, 156 Tex.Cr.R. 243, 243 S.W.2d 700; Hernandez v. State, 1952, 160 Tex.Cr.R. 72, 251 S.W.2d 531. In the 1951 Sanchez case, supra, the Texas court was most emphatic in rejecting a Mexican-American defendant's "The case is submitted on th......
  • Anderson v. State, 2 Div. 16
    • United States
    • Alabama Court of Appeals
    • November 10, 1959
    ...future trials. * * *' Hernandez v. State of Texas, 1954, 347 U.S. 475, 74 S.Ct. 667, 671, 98 L.Ed. 866, reversing 160 Tex.Cr.R. 72, 251 S.W.2d 531. A motion to quash the indictment and the jury panel because of the systematic exclusion of persons of Mexican descent from (a) jury commissione......
  • Hernandez v. State of Texas, No. 406
    • United States
    • United States Supreme Court
    • May 3, 1954
    ...Texas. He was convicted and sentenced to life imprisonment. The Texas Court of Criminal Appeals affirmed the judgment of the trial court. 251 S.W.2d 531. Prior to the trial, the petitioner, by his counsel, offered timely motions to quash the indictment and the jury panel. He alleged that pe......
  • Request a trial to view additional results

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