Valadez v. State, 39746
| Citation | 408 S.W.2d 109 |
| Decision Date | 19 October 1966 |
| Docket Number | No. 39746,39746 |
| Parties | Rudy VALADEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Gib Callaway, Frederick G. Harmon, Brownwood, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
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. (Now Art. 19.27 C.C.P.) provided as follows:
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...
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Dumont v. Estelle
...would challenge the composition of the grand jury, for any reason, must do so at his earliest opportunity. See, e. g., Valadez v. State, Tex.Crim.App.1966, 408 S.W.2d 109; Armentrout v. State, 1940, 138 Tex.Cr.R. 238, 135 S.W.2d 479. Although the accused has both the right and the duty to c......
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U.S. v. Chambers
...been systematically excluded from grand jury), cert. denied, 442 U.S. 924, 99 S.Ct. 2850, 61 L.Ed.2d 291 (1979); Valadez v. State, 408 S.W.2d 109, 111 (Tex.Crim.App.1966) (same); Ex parte Covin, 161 Tex.Crim. 320, 277 S.W.2d 109 (App.1955) (waiver of claim that three members of grand jury h......
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Partida v. Castaneda
...it was held that a state's court-fashioned procedural waiver rule should be given the same effect as Rule 12(b)(2). In Valadez v. State, 408 S.W.2d 109 (Tex.Cr.App.1966), the Texas Court of Criminal Appeals held that if the defendant did not timely assert his objection to the grand jury, he......
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Rodriguez v. State
...in Muniz wrote: "This statute has been interpreted to mean that the array must be challenged at the first opportunity, Valadez v. State, Tex.Cr.App., 408 S.W.2d 109, which ordinarily means when the grand jury is impaneled. Challenge at this early date is sometimes impossible as when the off......