Pittman v. State, 12-10-00328-CR
| Decision Date | 31 October 2012 |
| Docket Number | NO. 12-10-00328-CR,12-10-00328-CR |
| Parties | DENNIS BOYD PITTMAN, APPELLANT v. THE STATE OF TEXAS, APPELLEE |
| Court | Texas Court of Appeals |
APPEAL FROM THE 241ST
JUDICIAL DISTRICT COURT
SMITH COUNTY, TEXAS
Dennis Pittman appeals his conviction for engaging in organized criminal activity. In nine issues, Appellant argues that the grand jury selection procedures were unconstitutional, that the trial court erred in excluding testimony, that the trial court erred in allowing a witness to invoke her Fifth Amendment rights, and that the trial court erred in allowing the State to present evidence of an extraneous offense. We affirm.
In 2004, two individuals rented a building in Mineola, Texas and, for a short period of time, operated a club where people met to socialize and to have sexual relations. The establishment was called a "Swinger's Club," and the landlord evicted its operators after the nature of the club became known in the community. The State's evidence at trial1 showed that Appellant causedtwo young children to touch their sexual organs as part of an ongoing criminal enterprise at the club.
Appellant was charged by indictment with the felony offense of engaging in organized criminal activity, which was alleged to have occurred in the summer of 2004. Prior to trial, Appellant moved to quash the indictment, alleging that the method used to select grand jurors in Smith County is unconstitutional. The trial court overruled Appellant's motion. A trial was held, and Appellant pleaded not guilty. During the trial, there were numerous evidentiary rulings made by the trial court that are the subject of this appeal. In general, the trial court did not allow Appellant to present certain evidence that Appellant suggested would show the children's reports of sexual activities in the club were an invention sparked by the foster parents who had custody of some of the children, or the result of improper and unprofessional interviewing techniques, or some admixture of the two problems. Also, during the trial, the court allowed the State to offer evidence that Appellant had sexually assaulted another child. This evidence was allowed because, the trial court held, the defense attorney opened the door to this kind of evidence in his opening statement by asking, rhetorically, if Appellant had acted like a child molester would act when dealing with the state child protective services investigators.
The jury found Appellant guilty as charged. After a sentencing hearing, the jury assessed a sentence of imprisonment for life. This appeal followed.
In his first issue, Appellant argues that the method used to select grand jurors in Smith County deprived him of his constitutional right to equal protection.
Texas law provides for two methods of selecting grand jurors. The first method, called a "key man" system, allows a district court judge to appoint three to five "persons to perform the duties of jury commissioners." TEX. CODE CRIM. PROC. ANN. art. 19.01(a) (West 2005). Those commissioners select the grand jurors. See TEX. CODE CRIM. PROC. ANN. art. 19.06 (West Supp. 2012). In doing so, the commissioners "shall, to the extent possible, select grand jurors who the commissioners determine represent a broad cross-section of the population of the county, considering the factors of race, sex, and age." Id.
The other method of selecting jurors is to use the randomized procedure used to select jurors for civil cases. See TEX. CODE CRIM. PROC. ANN. art. 19.01(b).
Appellant's challenge to the grand jury was not timely. Texas law requires that a challenge to the array of jurors must be made before the "grand jury has been impaneled" and "[i]n no other way shall objections to the qualifications and legality of the grand jury be heard." TEX. CODE CRIM. PROC. ANN. art. 19.27 (West 2005). The court in Muniz v. State, 573 S.W.2d 792, 796 (Tex. Crim. App. 1978), allowed that a motion to quash could be filed before the trial commenced if a "challenge on impanelment is not possible." But the court made clear that the "not possible" hurdle was a high one. It cited as an example a case where the offense was committed after the grand jury was impaneled. Id. (citing Ex parte Covin, 161 Tex. Crim. 320, 322, 277 S.W.2d 109, 111 (Tex. Crim. App. 1955)).
Appellant argues that it was not possible for him to challenge the grand jury prior to its being impaneled because, he asserts, he was indigent and without counsel when the grand jury was impaneled. Appellant did not formally prove either of these assertions, although he asks us to infer them to be true because he was found to be indigent and was appointed counsel shortly after an indictment was returned. Because Appellant has not shown that he could not challenge the array, the trial court was obligated not to consider his late challenge, and he has not preserved this issue for our consideration. See TEX. CODE CRIM. PROC. ANN. art. 19.27; Muniz, 573 S.W.2d at 796; Caraway v. State, 911 S.W.2d 400, 401-02 (Tex. App.-Texarkana 1995, no pet.).
However, Appellant would not prevail if we were to consider his constitutional argument. The Supreme Court has reviewed the Texas "key man" system on several occasions. In Smith v. Texas, 311 U.S. 128, 130-31, 61 S. Ct. 164, 165, 85 L. Ed. 84 (1940), the Court held that 2 While the Court found that thesystem was facially constitutional, and capable of being carried out in a way that did not violate equal protection, the Court held that the system was unconstitutional as applied in that case because a statistical analysis of the race of jurors who actually served belied a race neutral application of the statute. Id. at 131-32, 61 S. Ct. at 166.3
In Hill v. Texas, 316 U.S. 400, 404, 62 S. Ct. 1159, 1161, 86 L. Ed. 1559 (1942), the Court reached a similar conclusion, holding that the equal protection clause was violated by a grand jury selection scheme that excluded African Americans from serving. In 1977, the Court again recognized the "facial constitutionality of the key-man" system, while granting relief for an "as applied" equal protection violation. See Castaneda v. Partida, 430 U.S. 482, 497, 500-01, 97 S. Ct. 1272, 1281, 1283, 51 L. Ed. 2d 498 (1977); see also Ovalle v. State, 13 S.W.3d 774, 778 (Tex. Crim. App. 2000) (citing Partida, 430 U.S. at 497, 97 S. Ct. at 1281) ("The Supreme Court has held that the commissioner-based system, while facially constitutional, is susceptible to abuse.").
Appellant does not make an "as applied" claim in this case. Indeed, Appellant offered no evidence to show that the grand jurors were selected in a discriminatory fashion. Instead, Appellant argues, despite the Supreme Court's rulings to the contrary, that the "key man" system is facially unconstitutional. This is so, he argues, because the statute directs grand jury commissioners to consider race in selecting grand jurors. See TEX. CODE CRIM. PROC. ANN. art. 19.06 (). Appellant contends that this is a racial classification that requires strict scrutiny as to whether the policy serves a compelling governmental interest. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 333, 123 S. Ct. 2325, 2342, 156 L. Ed. 2d 304 (2003) () (internal quotation marks andcitation omitted). He also assumes, for purposes of argument, that ensuring a fair cross section of the county population is represented on the grand jury is a compelling governmental interest but argues that the key man system is not narrowly tailored to meet that interest.
No court has sustained a facial challenge to Article 19.06. Appellant argues that this is not important because the cases which hold that the "key man" provision is not unconstitutional address primarily the statute that existed before the race conscious language was added in 1979. There is a certain irony to Appellant's argument inasmuch as the reforms made in 1979 were presumably intended to address what the Supreme Court had recognized as deficiencies in the way the Texas "key man" system was implemented. See, e.g., Partida, 430 U.S. at 497, 97 S. Ct. at 1282 (); Eric M. Albritton, Race-Conscious Grand Jury Selection: the Equal Protection Clause and Strict Scrutiny, 31 Am. J. Crim. L. 175, 206-07 (2003) (). Nevertheless, we are not persuaded that the "key man" system cannot be used in a constitutional, that is to say nondiscriminatory, way. Based on the record in this case, we do not know how the grand jury commissioners acted to discharge their duty to comply with the statute, or more importantly, how grand jury commissioners act statewide to comply. The statute itself provides no assistance. It simply requires the commissioners to select grand jurors whom the commissioners determine represent a broad cross-section of the population of the county, considering the factors of race, sex, and age. This duty could be discharged, as the Court in Pa...
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