Perez v. State
| Decision Date | 16 July 1998 |
| Docket Number | No. 13-97-095-CR,13-97-095-CR |
| Citation | 973 S.W.2d 759 |
| Parties | Orlando Javier PEREZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Larry Warner, Brownsville, for Appellant.
Yolanda De Leon, District Attorney, Brownsville, for State.
Before DORSEY, FEDERICO G. HINOJOSA, Jr., and RODRIGUEZ, JJ.
As a result of his involvement in a drive-by shooting, a jury convicted Appellant, Orlando Javier Perez, of aggravated assault with a firearm 1 and assessed his punishment at fifteen years imprisonment. We reverse and remand for a new trial.
At the hearing on his motion for new trial, Perez and the State entered into a stipulation of evidence that a juror, Jesus Garcia, had a final conviction for felony driving while intoxicated and that Garcia's status as a convicted felon was not ascertained until twenty minutes after the verdict was rendered. 2 The trial court, while acknowledging the constitutional implications of Garcia's service as a juror, was persuaded by the State that article 44.46 of the Texas Code of Criminal Procedure required Perez to show significant harm resulting from Garcia's jury service. No evidence of significant harm being presented, the court overruled Perez's motion for new trial.
In his second point of error, Perez contends article 44.46 is incompatible with the Texas Constitution because, inter alia, it undermines the right to trial by a qualified jury. The question squarely presented by Perez in this point of error is whether the provisions of article 44.46 conflict with the Texas constitutional prohibition against jury service by convicted felons. 3
The State contends Perez has not preserved error on this point because his argument on appeal, that article 44.46 is unconstitutional, was not the same argument urged in his motion for new trial, that Garcia's status entitles Perez to a new trial. We disagree. At the hearing on Perez's motion, the State raised the application of article 44.46. Thereafter, Perez's counsel and the trial court engaged in a lengthy discussion concerning whether Perez had a trial before twelve "good and lawful" jurors. The court then stated:
The court is--While you may well be right, Mr. Warner, it's long been the policy of this court that when there appears to be a statute, even if it's arguably questionable in light of your eloquent argument there, the court doesn't think it's the appropriate place for the trial court to overrule or find unconstitutional or whatever a statute of the Texas legislature, and believe[s] the appellate courts are the more appropriate place for that issue.
Perez's counsel responded:
We're entitled to a jury trial of twelve people based on the Constitution of the United States, and Texas implemented that and said the right to a trial by jury--Article 1 of the state constitution, Section 10, says the right of a trial by jury shall remain inviolate and the legislature shall pass appropriate statutes to effect this constitutional provision.
We conclude Perez adequately preserved this point for our consideration. The State's contention is overruled.
The standard of review for addressing the constitutionality of a statute was enunciated by the court of criminal appeals in Santikos v. State, 836 S.W.2d 631 (Tex.Crim.App.1992):
Since a statute may be valid as applied to one set of facts and invalid as applied to another, "it is incumbent upon the [appellant] to show that in its operation the statute is unconstitutional as to him in his situation; that it may be unconstitutional as to others is not sufficient." Parent v. State, 621 S.W.2d 796, 797 (Tex.Crim.App.1981). See Briggs v. State, 740 S.W.2d 803, 806 (Tex.Crim.App.1987).
A person who has been convicted or stands legally accused of theft or any felony, or who is insane, is absolutely disqualified from jury service and may not serve as a juror even if both parties consent. TEX.CODE CRIM. PROC. ANN. arts. 35.16(a)(2), (3), (4); 35.19 (Vernon Supp.1998). In 1990, the court of criminal appeals held that service by an absolutely disqualified juror entitled a defendant to a new trial even though the disqualification was first urged in a motion for new trial. Thomas v. State, 796 S.W.2d 196, 199 (Tex.Crim.App.1990). The court held that service by an absolutely disqualified juror was an error that could not be waived and that required a new trial without a showing of harm. Id. at 198-99.
In 1993, in an apparent response to Thomas, the legislature enacted article 44.46 of the code of criminal procedure. This statute provides:
A conviction in a criminal case may be reversed on appeal on the ground that a juror in the case was absolutely disqualified from service under Article 35.19 of this code only if:
(1) the defendant raises the disqualification before the verdict is entered; or
(2) the disqualification was not discovered or brought to the attention of the trial court until after the verdict was entered and the defendant makes a showing of significant harm by the service of the disqualified juror.
TEX.CODE CRIM. PROC. ANN. art. 44.46 (Vernon Supp.1998).
It is uncontroverted Perez did not raise Garcia's disqualification before the verdict was entered. Thus, pursuant to article 44.46(2), in order to obtain a reversal and new trial due to Garcia's presence on the jury, Perez was required to demonstrate Garcia's service caused him significant harm beyond the mere fact of conviction. See Hernandez v. State, 952 S.W.2d 59, 71 (Tex.App.--Austin 1997, pet. vacated).
The court of criminal appeals has yet to address the constitutionality of article 44.46, and only two courts of appeals have discussed its application in a criminal trial. Article 44.46 was held constitutional by the Austin Court of Appeals in Hernandez, 952 S.W.2d at 71-73. While the reasoning in Hernandez is sound, we decline to apply it here because the contested juror in that case was merely accused, not convicted, and the offense involved was misdemeanor theft, not a felony. The Hernandez court relied heavily on the fact that the disqualification of the juror rested on the application of statute rather than on constitutional implications. 4
We likewise find Hoffman v. State, 922 S.W.2d 663 (Tex.App.--Waco 1996, pet. ref'd) distinguishable. In that case, Hoffman was made aware of the juror's conviction for burglary prior to the entry of the verdict, yet chose not to raise the issue. Id. at 671. Hoffman only questioned the application of article 44.46(1), not article 44.46(2), thus the issue of significant harm was not discussed by the court.
We are cognizant that both article I, section 15 5 and article XVI, section 2 of the Texas Constitution empower the legislature to enact laws to protect the inviolate right of trial by jury. But this necessarily presumes that the laws so enacted will pass constitutional muster and effect the constitution's intent.
Article 44.46(2) does not effect the constitution's purpose to maintain the purity of the jury's composition of qualified persons. As written, article 44.46(2) allows juries to be empaneled with persons who have been "convicted of bribery, perjury, forgery or other high crimes," thereby destroying the jury's purity. Article 44.46(2) is particularly offensive in those cases, such as presented here, where a defendant is unaware, through no fault of his own, of a juror's status as a convicted felon. Indeed, in this case, it was the juror's affirmative misrepresentation regarding his status that allowed him to be seated on the jury.
We hold article 44.46 is incompatible with the Texas Constitution. Such statute flies in the face of article XVI, section 2, the purpose of which is to prohibit felons from serving on juries. As stated by the Fort Worth Court of Appeals in R.R.E. v. Glenn, 884 S.W.2d 189, 193 (Tex.App.--Fort Worth 1994, writ denied): "It cannot be said that such purity and efficiency [of the right to trial by jury] is maintained by permitting juries to be composed of thieves, robbers, murderers, kidnappers, perjurers, rapists, drug dealers and others convicted of felonies...." The R.R.E. court specifically noted the legislature's passage of article 44.46 and stated,
While we make no holding as to the validity of this article, the effect of our opinion is that a party, whether he be a party to a civil action or a defendant in a criminal action, has not been afforded his constitutional rights if the jury composition in his case includes a person who has been convicted of a felony and has not been pardoned by the Governor.
We agree with the reasoning of the Fort Worth Court of Appeals. Article 44.46 is unconstitutional as applied to Perez because, through its application, he failed to receive a fair and just trial before a jury composed of twelve qualified persons. Perez's second point of error is sustained.
Due to our disposition of appellant's second point of error, we need not consider his remaining points of error.
We REVERSE the judgment of the trial court and REMAND for a new trial.
I disagree with the panel's decision that article 44.46 of the code of criminal procedure, requiring harm be shown when it is discovered that a disqualified juror participated in the verdict, is contrary to article 16, section 2 of the Texas Constitution and thus invalid. The purport of the decision is that the constitution compels that any conviction be reversed, whether under collateral or direct attack, if a juror who is disqualified by felony conviction participated in the verdict. I can find no support for such a construction in the constitution, cases, or history of Texas. Accordingly, I dissent.
The acts of the legislature enjoy a presumption of constitutionality under the rules of statutory construction and if a statute can be interpreted in a way that does not conflict with ...
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Perez v. State
...with article XVI, section 2 of the Texas Constitution, and reversed and remanded for a new trial. See Perez v. State, 973 S.W.2d 759, 762, 762 (Tex. App.--Corpus Christi 1998), rev'd, 11 S.W.3d 218, 221 (Tex. Crim. App. 2000) (en banc). The court of criminal appeals granted the State's peti......
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Perez v. State
...(Emphasis added.) The court found that the purpose art. XVI, 2 "is to prohibit felons from serving on juries." Perez v. State, 973 S.W.2d 759, 762 (Tex. App.--Corpus Christi 1998). Therefore, it held that art. 44.46 was unconstitutional as applied to appellant because "through its applicati......