Hernandez v. State
Citation | 563 S.W.2d 947 |
Decision Date | 12 April 1978 |
Docket Number | No. 52802,52802 |
Parties | Fidel Lozano HERNANDEZ, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Sam C. Bashara, San Antonio, for appellant.
Ted Butler, Dist. Atty., Gordon V. Armstrong, Lawrence J. Souza and Susan D. Reed, Asst. Dist. Attys., San Antonio, for the State.
OPINION ON APPELLANT'S SECOND MOTION FOR REHEARING
In a per curiam opinion dated April 27, 1977, we affirmed the judgment of the trial court. We granted appellant's motion for leave to file motion for rehearing and in an opinion dated December 7, 1977, we reaffirmed our original holding. Our previous opinions are withdrawn and the following substituted in lieu thereof.
This is an appeal from a conviction for the offense of delivery of heroin. Punishment was enhanced pursuant to V.T.C.A., Penal Code, Sec. 12.42(d), and assessed at life.
The record reflects that on February 22, 1975, the appellant sold and delivered to Louis Ramon Martinez, an undercover officer of the San Antonio Police Department, a half gram of heroin. In light of our disposition herein, a further recitation of the facts is not necessary.
In his fourth and fifth grounds of error, appellant contends that the trial court erred in failing to excuse venireman Jean Abel and in failing to grant him an additional peremptory challenge. Appellant cites and primarily relies upon Wolfe v. State, 147 Tex.Cr.R. 62, 178 S.W.2d 274. After careful reflection, we find the decision in Wolfe well reasoned and reaffirm our holding therein.
The record reflects that appellant was forced to use one of his peremptory challenges on venireman Jean Abel after his challenge for cause was overruled. After exhausting all of his peremptory challenges, appellant filed a motion requesting an additional peremptory challenge which motion was denied. Appellant notified the court that had he been granted an additional challenge, he would have struck venireman Gary Carroll as being an unacceptable juror. These facts place appellant squarely within the rule laid down in Wolfe v. State, supra, at Page 281:
After Wolfe, this Court unfortunately used the word "objectionable" with two different meanings: an "objectionable" juror meaning one challengeable for cause, Burns v. State, 556 S.W.2d 270; Stephenson v. State, 494 S.W.2d 900, and "objectionable" meaning unacceptable by reason of politics, religion, environment, association, or simple appearance; in other words, an arbitrary dislike for a particular juror. Wolfe v. State, supra, and cases cited therein.
In the instant case, venireman Carroll was "objectionable" from the standpoint that appellant simply did not want him on the jury. Carroll was not subject to some legal objection which would excuse him; nevertheless, appellant desired to challenge this venireman peremptorily but was denied this opportunity by having been forced to use a peremptory challenge on venireman Abel. Therefore, if it can be shown that venireman Abel was challengeable for cause and that the overruling of such challenge deprived appellant of a peremptory challenge he would have used to strike venireman Carroll, this case must be reversed. Wolfe v. State, supra; Salazar v. State, 149 Tex.Cr.App. 260, 193 S.W.2d 211; Bayless v. State, 166 Tex.Cr.R. 479, 316 S.W.2d 743; Sifford v. State, Tex.Cr.App., 505 S.W.2d 866.
The relevant portion of venireman Abel's testimony is as follows:
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