Valadez v. State, 39746

• Decision Date: 19 October 1966
• Docket Number: No. 39746,39746
• Citation: Valadez v. State, 408 S.W.2d 109 (Tex. Crim. App. 1966)
• Parties: Rudy VALADEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 109

408 S.W.2d 109

Rudy VALADEZ, Appellant, v.The STATE of Texas, Appellee.

No. 39746.

Court of Criminal Appeals of Texas.

Oct. 19, 1966.

Rehearing Denied Nov. 23, 1966.

Gib Callaway, Frederick G. Harmon, Brownwood, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

BELCHER, Commissioner.

The conviction is for murder; the punishment, thirty years.

On a former appeal this cause was reversed for an error in the charge.It is reported in Tex.Cr.App., 385 S.W.2d 239.

The facts here are substantially the same as those related in the reported opinion.The evidence adduced on the instant trial has been examined and considered and is sufficient to support the conviction.

Appellant contends that the trial court erred in overruling his motion to quash the indictment on the ground that Latin Americans had been excluded from the grand jury.

Proof was offered that the appellant is a Latin American, that he was arrested immediately after the deceased was killed, and also other proof was introduced in support of the motion.

The indictment was returned into the District Court of Brown County on August 27, 1963, alleging the offense to have been committed on or about July 12, 1963.The first trial of this cause in November, 1963, in Brown County, resulted in a hung jury.The judge, on his own motion, then transferred said cause to Coleman County, another county in the same judicial district.The appellant was found guilty on the second trial in April, 1964, and his punishment was assessed at twenty-five years.This conviction was reversed on appeal on December 2, 1964.(385 S.W.2d 239).The third trial resulted in a verdict of guilty on November 10, 1965, with the punishment assessed at thirty years and this cause is now before us for review.

After the verdict in the instant case on November 10, 1965, the appellant on December 9, 1965, for the first time filed a motion to quash the indictment on the ground that Latin Americans had been excluded from the grand jury.On January 5, 1966, the motion to quash was heard and overruled.

Art. 358 C.C.P.(NowArt. 19.27 C.C.P.) provided as follows:

'Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror.In no other way shall objections to the qualifications and legality of the grand jury be heard.Any person confined in jail in the county shall upon his request be brought into court to make such challenge.'

A motion to set aside an indictment should be made at the first opportunity.Tyson v. State, 146 Tex.Cr.R. 128, 171 S.W.2d 496.

In Armentrout v. State, 138 Tex.Cr.R. 539, 135 S.W.2d 479, a motion to quash an indictment on the ground that the grand jury was illegally constituted was made, and the court held that where one has been arrested and charged and has an opportunity to challenge the array he must do so.

In considering a similar contention in Michel v. State of Louisiana, 350 U.S. 91, 76 S.Ct. 158, 100 L.Ed. 83(1965), the United States Supreme Court refused to consider the petitioners' contention that the grand jury which indicted them was improperly constituted.The court's judgment was based on the fact that Louisiana law required all objections to the manner of selection or the composition of the grand jury be made before entering upon the trial of the case, and objections not made within this time period were waived.No objection was made by the petitioners to the composition of the grand jury within the time allowed by Louisiana law.The United States Supreme Court said:

'It is beyond question that under the Due Process Clause of the Fourteenth Amendment Louisiana may attach reasonable time limitations to the assertion of federal constitutional rights.More particularly, the State may require prompt assertion of the right to challenge discriminatory practices in the make-up of a grand jury.(350 U.S. at 97, 76 S.Ct. at 162.)'No procedural...