Opinion issued February 8, 2007
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-01124-CR
__________
YESY BLADIMIR JUAREZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Cause No. 40,132
MEMORANDUM OPINION
Appellant, Yesy Bladimir Juarez, pled guilty to the charge of aggravated robbery without a recommendation from the State. After a punishment hearing, the trial court sentenced appellant to 55 years in prison. In two points of error, appellant argues that the trial court erred in denying (1) his right to develop the issue of mental retardation and (2) his motion to quash/motion in arrest of judgment based on a systematic discrimination in the grand jury selection. We affirm.
Background
Around midnight on April 25, 2004, appellant, Robert Doya, and Doya's girlfriend drove to a convenience store to get some beer. Appellant testified that his two companions convinced him to rob the store, and Doya gave him a gun.
Justin Lamb, the cashier from the convenience store, testified that he refused to sell the two men beer because they did not have proper identification. (1) The men left and then returned. Appellant came around the counter, pointed the gun at Lamb, and demanded that he open the cash register. Appellant "pistol whipped" Lamb and kicked him until he opened the register. Doya told Lamb to give him the video surveillance tape. The men took the cash register and left. Lamb ran out the door after the two men left, and, as Lamb was attempting to flee, appellant shot him in the lower back.
Appellant pled guilty to aggravated robbery.
Mental Retardation
In point of error one, appellant contends that the trial court erred in denying his "right to fully develop his good faith claim of mental retardation."
Javier, appellant's 22-year-old brother, testified that doctors told his family early on that appellant was slow. Appellant was in special education classes since grade school. Javier explained that, about a year and one-half before the robbery, appellant started drinking too much and associating with the "wrong crowd." He testified that appellant was led easily by these friends, and they took advantage of him. Appellant's father, Ignacio, testified that appellant has always been slow and has always had trouble in school. The trial court noted after the punishment hearing that:
Mr. Lamb had clearly separated himself from [appellant] and was out of harms [sic] way, [appellant] elected to shoot him, shoot him in the back, a cowardly act if there ever was one.
The explanation is, I'm drinking and I'm on drugs (2) and I'm not responsible and I'm not smart. All too often I hear that excuse and it is an excuse. It may be an explanation also, but it is an excuse.
. . . .
[Appellant] clearly knew the consequences for the use of illegal narcotics. The only telling argument that would reduce the maximum sentence in this case was the mental status of the defendant, but the testing by professionals shows that he does not fall into the mental retardation range.
While he was not successful in school and was placed in special education, under the criteria set by the Supreme Court and the courts of this state, he is not mentally retarded.
Appellant was allowed to introduce evidence regarding his alleged mental retardation. His family members testified, and two experts evaluated him. Both experts found him to be competent, one found that he was not mentally retarded, and one found that, "if he was mentally retarded he would be mildly retarded."
We hold that the trial court did not prevent appellant from presenting evidence of mental retardation during the punishment hearing. Accordingly, we overrule point of error one.
Motion to Quash/Motion in Arrest of Judgment (3)
In point of error two, appellant contends that the trial court erred in refusing to grant his motion to quash/motion in arrest of judgment due to the composition of the grand jury. (4) Appellant contended before the trial court, as he does on appeal, that persons of Hispanic origin have been systematically excluded from grand juries in Fort Bend County in violation of the Equal Protection Clause of the Fourteenth Amendment. He relies heavily upon Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272 (1977).
Standard of Review
We review a challenge to a trial court's ruling on a motion to quash an indictment under the abuse-of-discretion standard. See Thomas v. State, 621 S.W.2d 158, 163 (Tex. Crim. App. 1981); Smith v. State, 176 S.W.3d 438, 439 (Tex. App.--Houston [1st Dist.] 2004, no pet.). We also review a trial court's ruling on a motion for new trial under an abuse-of-discretion standard. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).
Systematic Discrimination
In Partida, the Supreme Court held that an equal protection violation occurs when the government purposefully excludes certain identifiable groups from serving on a grand jury. A rebuttable presumption of purposeful discrimination arises if the defendant makes out a prima facie case, which consists of showing: (1) that a particular group constitutes "a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied"; (2) "the degree of underrepresentation by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time"; and (3) "a selection procedure that is susceptible of abuse or is not racially neutral." Ovalle v. State, 13 S.W.3d 774, 777 (Tex. Crim. App. 2000) (quoting Partida, 430 U.S. at 494-95, 97 S. Ct. at 1280). Once a prima facie case has been made, the burden shifts to the State to rebut that case.
Appellant filed a motion to quash the indictment and a motion in arrest of judgment that objected to the indictment for being "comprised of a systematically discriminatory grand jury panel." The motion to quash stated, in its entirety, that
The indictment itself is unconstitutional as it was returned by a Grand Jury which failed to represent a fair cross section of the community as required under the Texas Code of Criminal Procedure and the United States Constitution under Castanada v. Partida. The grand jury did not have a fair representation of Hispanics, blacks, or women on the panel, and Mr. Juarez is entitled to such a fair review under law.
There was no evidence attached to the motion. We hold that the trial court did not abuse its discretion in holding that appellant did not make a prima facie case of systematic discrimination in his motion to quash the indictment.
Post judgment, appellant filed a motion in arrest of judgment contending that the judgment "was rendered illegally in that there is a substantial defect in the indictment, to wit: the Fort Bend County grand jury selection system in place is discriminatory, violating the Equal Protection and Due Process Clauses, guaranteed by the Fourteenth Amendment of the Constitution." Attached to the motion was an affidavit from Nicolaos Somarakis, an undergraduate student from the University of Houston, who testified that he spoke with members of several grand juries. He concluded that, "based on the information from the Grand Jurors, there are many Grand Juries that do not reflect the diverse population of Fort Bend County." During his testimony at the motion for new trial hearing, the trial court sustained the State's hearsay objections regarding any conversations that Somarakis had with former members of the grand jury. The trial court also refused to allow introduction of census information obtained from an Internet cite. (5) Somarakis testified that he had "no idea" how many people were actually called to serve as grand jurors.
We agree with the Court of Criminal Appeals, which stated that "uncertainty . . . inheres in the use of Spanish surnames to determine Hispanic origin." Ovalle, 13 S.W.3d at 780. We hold that the trial court did not abuse its discretion when it found "the evidence presented is lacking to indicate any composition of the grand jury much less if there is discriminatory composition." We overrule point of error two.
Conclusion
We affirm the trial court's judgment.
George C. Hanks, Jr.
Justice
Panel consists of Justices Taft, Alcala, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).
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