Muniz v. Beto, No. 28617.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: GEWIN, GOLDBERG and SIMPSON, Circuit
• Citation: 434 F.2d 697
• Parties: Samuel E. MUNIZ, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.
• Docket Number: No. 28617.
• Decision Date: 05 November 1970

434 F.2d 697 (1970)

Samuel E. MUNIZ, Petitioner-Appellant,
v.
Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.

No. 28617.

United States Court of Appeals, Fifth Circuit.

November 5, 1970.

Joseph A. Calamia, John L. Fashing, El Paso, Tex., for petitioner-appellant.

Crawford C. Martin, Atty. Gen., of Tex., Allo B. Crow, Jr., Asst. Atty. Gen., Austin, Tex., Barton Boling, Dist. Atty., El Paso, Tex., Gilbert J. Pena, Asst. Atty. Gen., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Before GEWIN, GOLDBERG and SIMPSON, Circuit Judges.

434 F.2d 698

GOLDBERG, Circuit Judge:

We deal here with a constitutional right of no meager or paltry dimension. Basic to our decision in this case is the hallowed concept that the right to a grand jury chosen without discrimination is not a mere constitutional frill or furbelow.

This appeal is prosecuted by Samuel E. Muniz from the denial of his petition for a writ of habeas corpus in the United States District Court for the Western District of Texas. Muniz is a United States citizen of Mexican extraction who is presently incarcerated in a Texas prison pursuant to a conviction in a Texas state court. A major thrust of his present appeal is his contention that Mexican-Americans were underrepresented in the selection of grand jurors in the state court in which he was convicted. Agreeing with Muniz that he has met his burden of showing such discrimination, we reverse the district court's denial of relief.

The procedural history of this case is somewhat involved. Our story begins in 1942 in El Paso County, Texas, where appellant was indicted by a grand jury and subsequently convicted by a petit jury of the offense of rape by force. He was sentenced to a term of 20 years. His conviction was affirmed on direct appeal by the Texas Court of Criminal Appeals. Muniz v. State, 1943, 145 Tex. Cr.R. 565, 170 S.W.2d 767. On several occasions appellant was released from confinement on parole, but in each instance he violated the conditions of his parole and was returned to prison to serve the balance of his sentence. It is undisputed that he is presently in the custody of the Texas Department of Corrections pursuant to his 1942 conviction.

In 1967 appellant filed a pro se petition for a writ of habeas corpus in the state court in which he had been convicted and sentenced. Counsel was appointed to represent him in the state habeas corpus proceeding, and the same counsel has continued to represent appellant — with commendable diligence — in every subsequent proceeding. With the assistance of his appointed counsel appellant filed an amended petition in the state court in January of 1968.

In his amended petition appellant raised two principal issues, neither of which had been considered by the Texas Court of Criminal Appeals on direct appeal. First, he assailed the constitutional validity of his conviction on the ground that Mexican-Americans "were, because of their race or national origin, systematically excluded from service as jury commissioners, grand jurors and petit jurors in the County in which applicant was convicted although there was a substantial segment of the population of the same ancestry as petitioner in such county and community who were qualified to serve." Second, he contended that the State, through its prosecuting attorney, denied him a fair trial by making improper arguments to the jury and by introducing improper evidence.

After holding a plenary hearing the state court concluded that appellant was not entitled to habeas corpus relief and entered findings of fact and conclusions of law to that effect. The court's findings and conclusions are reprinted as Appendix I to this opinion. In addition, apparently at appellant's request, the state court entered "additional findings of fact." These supplemental findings, which did not change the result reached by the court, are reprinted as Appendix II to this opinion. The trial court's findings and conclusions were then transmitted to the Texas Court of Criminal Appeals in accordance with Article 11.07 of the Vernon's Ann.Texas Code of Criminal Procedure, and the Court of Criminal Appeals denied habeas corpus relief without written order on April 8, 1968. Appellant thereafter sought review in the United States Supreme Court, but his efforts were unsuccessful.¹

434 F.2d 699

Having lost on the merits in the state courts and having failed to secure review in the Supreme Court, appellant next sought relief in the federal district court. In January of 1969 he filed a petition for a writ of habeas corpus in the court below, urging anew the contentions which he had asserted unsuccessfully in the state courts. Appellant did not seek an evidentiary hearing in the district court, for he acknowledged that the state court had received all the evidence necessary for disposition of his petition. He merely disagreed with the state court's interpretation of the evidence adduced in the state proceeding and with the state court's application of the law.

On May 9, 1969, the district court held a hearing to entertain arguments of counsel. Counsel for appellant attacked the validity of certain of the state court's findings and conclusions, while the State contended that those findings and conclusions "should be sustained." At the conclusion of the hearing the district court requested that both parties submit proposed findings and conclusions for its consideration. The State's response to the Court's request was to submit a formal proposal that the district court adopt the state court's findings and conclusions. In making this proposal the State had reference to the state court's initial findings and conclusions (set out as Appendix I to this opinion) and not to the state court's supplemental findings (set out as Appendix II to this opinion).

On June 27, 1969, the district judge indicated his approval of the State's proposal by affixing his signature to a copy of the state court's initial findings of fact and conclusions of law. Three days later, on June 30, 1969, the district judge entered a formal order denying habeas corpus relief, which order incorporated by reference the state court's initial findings and conclusions. The district court's order is reprinted as Appendix II to this opinion. Still later, on July 8, 1969, the State submitted an additional proposed order, and on that same day — July 8, 1969 — the district judge affixed his signature thereto. This supplemental order captioned "Supplemental Findings and Conclusions as to Order Denying Petition for Habeas Corpus" is reprinted as Appendix IV to this opinion.

Muniz now appeals from the district court's denial of habeas corpus relief. In his brief to this court he lists 28 separate issues which he says are presented by his appeal, but we agree with the

434 F.2d 700

State that appellant's many contentions constitute only five basic questions

As we restate them, these five issues are the following:

(1) Were the Texas statutes which were in effect in 1942 with regard to the selection of grand jury commissioners and grand jurors unconstitutional on their face?

(2) Did the application of the Texas statutes result in total exclusion or substantial underrepresentation of Mexican-Americans in the selection of the grand jury commission, the grand jury, or the petit jury venire concerned with the indictment and trial of appellant?

(3) Did appellant waive any possible objection he may have had concerning the composition of the grand jury commission, the grand jury, or the petit jury venire?

(4) In the words of the State, `Should modern-day concepts of jury composition be given retroactive application in this case?"

(5) Was appellant in any way denied a fair trial because of the prosecuting attorney's action?

I.

Because our disposition of this case turns on other issues, we do not consider in any manner the initial issue — appellant's contention that Texas statutes with regard to the selection of grand jury commissioners and grand jurors are unconstitutional on their face.² We turn immediately to the second issue — appellant's contention that the application of the Texas statutory scheme in El Paso County in 1942 resulted in an unconstitutional underrepresentation of Mexican-Americans in the selection of grand jury commissioners, grand jurors, and the petit jury venire. In resisting this contention the State has not denied the right of a criminal defendant to be indicted and tried by juries whose members have been selected in a non-discriminatory manner. Instead, the State has argued that appellant failed to meet his burden of proving discrimination against Mexican-Americans in the present case. Both the state court and the federal district court agreed with the State's position, but we are compelled to disagree.

In attempting to meet his burden of proof in the present case, appellant relied on the "rule of exclusion" which originated in Norris v. Alabama, 1935, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074. Under this rule as it has been developed since Norris, a defendant can establish a prima facie case of discrimination by showing a disparity between (1) the percentage which his race constitutes of the group of persons from whom a jury list is drawn and (2) the percentage which his race constitutes of the jury list which is thereafter compiled. Once the defendant has established his prima facie case, the burden shifts to the State to offer a satisfactory explanation as to why the disparity exists. A graphic illustration of the application of this principle is provided by the opinion of the Supreme Court in Sims v. Georgia, 1967, 389 U.S. 404, 407-408, 88 S.Ct. 523, 525-526, 19 L.Ed.2d 634:

"Petitioner * * * contends that he was indicted and tried by juries from which members of his race had been unconstitutionally excluded. The facts

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