ACCEPTED
04-13-00530-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
1/5/2015 12:08:32 PM
KEITH HOTTLE
CLERK
IN THE
COURT OF APPEALS FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
FOR THE 1/5/2015 12:08:32 PM
KEITH E. HOTTLE
FOURTH SUPREME JUDICIAL DISTRICT Clerk
OF TEXAS
SAN ANTONIO, TEXAS
* * * * *
______________________
No.04-13-00530-CR
_______________________
OSCAR DAVID PARDO
Appellant
VS.
STATE OF TEXAS
Appellee
_______________________________________
Appealed from the 379TH District Court
of Bexar County, Texas
Trial Court Cause No. 2011-CR-5260
________________________
MOTION FOR REHEARING BY APPELLANT
_______________________
ORAL ARGUMENT REQUESTED BARRY P. HITCHINGS
645 South Presa
San Antonio, Texas 78210
(210) 224-1433
(210) 224-4840 (telecopier)
State Bar No. 09723600
ATTORNEY FOR APPELLANT
INDEX OF AUTHORITIES
TEXAS CASES Page(s)
Brown v. State, 913 S.W.2d 581 (Tex. Crim. App.
1996) . . . . . . . . . . . . . . . . . . . . 21-22
Cannady v. State, 11 S.W. 3d 205 (Tex. Crim. App.
2000). . . . . . . . . . . . . . . . . . . . . 20
Esquivel v. State, 595 S.W. 2d 516 (Tex. Crim. App.
1980). . . . . . . . . . . . . . . . . . . . . 16
Feldman v. State, 71 S.W.3d 738 (Tex. Crim. App.
2002 . . . . . . . . . . . . . . . . . . . . . 19
Gonzales v. State, 353 S.W.3d 826 (Tex. Crim. App.
2011 . . . . . . . . . . . . . . . . . . . . 19-20
Hendrickson v. State, 500 S.W. 2d 491 (Tex. Crim.
App.1973) . . . . . . . . . . . . . . . . . . . 16
Jones v. State, 928 S.W.2d 386 (Tex. Crim. App.
1998) . . . . . . . . . . . . . . . . . . . . . 21
Martinez v. State, 621 S.W. 2d 797 (Tex. Crim. App.
1981) . . . . . . . . . . . . . . 13, 15-18, 22-23
Moore v. State, 542 S.W. 2d 664 (Tex. Crim. App.
1976) . . . . . . . . . . . . . . . . . . . . . 16
Payton v. State, 572 S.W.2d 677 (Tex. Crim. App.
1978) . . . . . . . . . . . . . . . . . . . . . 17
Pearce v. State, 513 S.W.2d 539 (Tex. Crim. App.
1974) . . . . . . . . . . . . . . . . . . . . . 16
Sanne v. State, 609 S.W. 2d 762 (Tex. Crim. App.
1980) . . . . . . . . . . . . . . . . . . . . . 16
Valore v. State, 545 S.W. 2d 477 (Tex. Crim. App.
1977) . . . . . . . . . . . . . . . . . . . . . 16
TEXAS STATUTES AND CODES
TEX. CRIM. PROC. CODE ANN. Art 35.16 (b) 3 (Vernon
2013) . . . . . . . . . . . . . . . . . 18, 20, 22
ii
APPELLANT’S MOTION FOR REHEARING POINT OF ERROR NO. 1
THE COURT OF APPEALS ERRED IN HOLDING
THAT THE TRIAL COURT DID NOT ABUSE ITS
DISCRETION IN GRANTING THE STATE’S
CHALLENGE FOR CAUSE AND DISMISSING
VENIRE MEMBER 17 WHEN VENIRE MEMBER 17
DID NOT STATE THAT: (1) HE COULD NOT
FOLLOW THE LAW BECAUSE HE COULD NOT SIT
IN JUDGMENT OF ANOTHER PERSON AND (2) HE
(ABSOLUTELY) WOULD AND COULD NOT FOLLOW
THE LAW AND APPLY THE LAW TO THE FACTS
Statement of the Facts
In its December 17, 2014 Memorandum Opinion and
Judgment, the Court of Appeals ruled that the trial court
“did not abuse its discretion in granting the State’s
challenge for cause and dismissing venire member number
17" (i.e. Kevin Post) since venire member number 17
“expressed prejudice, ‘in essence’, against all phases of
the applicable law.” Opinion at pages 6-7. However, a
detailed review of the facts as shown in the reporter’s
record shows that such was not the case. A chronological
recital of the reporter’s record in voir dire as it
relates to venire member number 17 (Kevin Post) is set
forth below:
1
MS. RUMMEL: . . . . Okay. Ultimately you’re
going to be given the charge of the Court,
the law, and you’re going to be asked, did
the defendant commit the crime, and you have
to return a verdict of guilty or not guilty.
You’ll be asked to sit in judgment of
another, and whether it be a personal
belief, a moral belief, a just I’d-rather-
not-belief, whatever it may be, is there
anybody that absolutely will not sit in
judgment of another. Okay. Number 17 [Kevin
Post]
And usually I do a caveat with this one
too. Not that you’d rather not sit in
judgment, but just cannot do it, will not do
it. Is 17 the only one?
VENIREPERSON: No.
MS. RUMMEL: 1, 3. Okay. Before everybody
raises their hands again, not would you
rather not do it, but you absolutely will
not return a verdict. You will not follow
the law. You will not apply the law to the
facts and you will not return a verdict.
Okay. Again, if you absolutely cannot do it,
please raise your hand. It could be the same
numbers. I’m just explaining it. Okay.
Number 1, 3, 5.
VENIREPERSON: I have a question.
MS. RUMMEL: Okay. I’ll go over it again. 1
[Ms. Diana Martinez], 3 [Mr. Francis
Tejeda], 5 [Mr. Brendan Cockman], 6 [Ms.
Anita Gonzales], 17 [Mr. Kevin Post].
Anybody else over here?
THE REPORTER: He said, I’m not sure I
understood the question.
2
VENIREPERSON: My thing is, I can make a
judgment, but under these kind of
circumstances - -
MS. RUMMEL: That was a whole separate
question.
VENIREPERSON: Okay. Thank you.
MS. RUMMEL: Yes. And we are taking notes
down - -
MR. MACH: May he be allowed - - Your Honor
- - excuse me, counsel. Can he be allowed to
finish his answer? He was a few words into
it and she just cut him off and started on
something else.
THE COURT: Well, they’re conversing. This
whole process is hopefully one where the
jury and the attorneys can engage each
other, so you’re welcome to follow up when
it’s your turn and ask whatever you desire.
MR. MACH: All right. Thank you, sir.
MS. RUMMEL: And I apologize I was cutting
you off. You said you had an issue on this
type of case.
VENIREPERSON: Right. I just wanted to be
sure.
MS. RUMMEL: Sure. And I certainly understand
that. This is just notwithstanding the type
of case, there are some people that just
won’t judge for whatever reason. They just
will not do it, cannot do it, and they will
not ever sign a verdict form, okay?”. . . .
(RR. Vol 2, pp. 61-62)(Emphasis Added)
3
MR. MACH: All right. Mr. Post [Venireperson
Number 17]
VENIREPERSON: Yes, sir. . . .
MR. MACH: Okay. Did you raise your hand to
anything?
VENIREPERSON: Yeah. I don’t feel comfortable
in sitting in judgment of anyone else.
MR. MACH: Without getting too specific, is
that a religious conviction or a moral?
VENIREPERSON: I don’t believe in a God, so
no.
MR. MACH: Well, strike religious out of it
then. You just don’t think - -
VENIREPERSON: It’s mine to take and I don’t
feel comfortable with it.
MR. MACH: Okay. Did you raise your hand to
anything else - -
VENIREPERSON: Nope.
MR. MACH: - - we talked about?
VENIREPERSON: Nope.
MR. MACH: All right. Thank you, sir.
(RR. Vol 2, pp. 116-117)(Emphasis Added).
At the conclusion of the voir dire the trial court
judge then commented:
4
THE COURT: All right. The jury panel has
been excused. Just for the record, the
parties have indicated that they agree to
strike numbers 1 [Ms. Diana Martinez], 5
[Mr. Brendan Cockman], 7 [Ms. Yolanda
Kathryn Stanton], 14 [Ms. Amanda Marie
Sanchez], 30 [Ms. Suzanne Deborah Martel]
and 49 [Ms. Daryl Ann Denman]. Is that
correct?
MS. RUMMEL: Uh-huh.
THE COURT: For the record, is that a yes?
MS. RUMMEL: Yes, That is correct from the
State. And 14 and 49 are already - -
MR. MACH: That’s correct. That’s correct.
MS. RUMMEL: - - excused.
THE COURT: Okay. Now, Mr. Mach, were there
any that you wanted to bring up?
MR. MACH: I had marked in addition - - the
Court may have marked 8, 19 48 twice. That
can’t be. 42.
THE COURT: Okay. All right. Let’s bring up
Number 8, Serna.
MR. MACH: Which ones do you want?
MS. RUMMEL: I said 8 [Rogelio Flores Serna],
17 [Kevin Post] and 25 [Gerardo Silva].
There was no other - - there was no others
in the first then that you wanted to bring
up?
MR. MACH: Does the Court have others that we
had - - didn’t mention?
5
THE COURT: Well, kind of up to y’all.
MR. MACH: I’d like to bring up the Court’s
list.
THE COURT: I got a few, but it’s kind of up
to y’all. If y’all are okay with - -
MR. MACH: No.
THE COURT: Let’s bring him up to the mike.
Let’s bring him up to the mike.
All right, sir. You are Number 8 [Rogelio
Flores Serna]; is that correct? Is that
right, sir?
VENIREPERSON: Sir, how are you?
THE COURT: Good, good. We asked you back
because one or more or both sides may have
more questions for you, all right?
VENIREPERSON: Okay.
(RR. Vol 2, pp. 146-147)(Emphasis Added)(Names and
numbers of venirepersons found in Supplemental Clerk’s
Record pp, 3-6). At the conclusion of the voir dire, in
response to the trial court judge’s query of “were there
any that you wanted to ‘bring up’ for additional
questioning, the Appellant’s attorney (Mr. Mach) and the
State’s attorney (Ms. Rummel) identified venire members
8, 17, 19, 25 and 42 as persons they wanted to further
6
question before the bench.(RR. Vol. 2, p. 147). The
State’s attorney (Ms. Rummel) and the Appellant’s
attorney (Mr. Mach) then proceeded to question
venireperson number 8 (Rogelio Flores Serna) before the
trial court judge and outside of the presence of the
other venirepersons. (RR. Vol. 2, pp. 148-153). After
granting the State’s challenge for cause against
venireperson number 8 (Mr. Serna), the following exchange
took place:
MS. RUMMEL: The State requested to bring up
Number 17 [Mr. Kevin Post].
THE COURT: All right. So Number 17, the
State’s going to challenge him?
MS. RUMMEL: Uh-huh.
THE COURT: All right. He mentioned in
several different instances he would not be
fair and he is the individual that said that
he could not sit in judgment of another one;
is that correct?
MS. RUMMEL: Yes. And then I followed - - I
believe that I said, Will you follow the law
and can you render a verdict, and he said,
No, I can’t do it. Won’t follow the law,
Judge.
MR. MACH: Let’s give him a chance.
THE COURT: All right. I’m going to grant the
7
State’s challenge for Number 17.
MR. MACH: Well, Your Honor, I respectfully
request a chance to rehabilitate him.
THE COURT: Yes, sir. You had an opportunity
to question him during voir dire and you did
talk to him in voir dire and I’ll deny that.
(RR. Vol. 2, pp. 153-154)(Emphasis Added)
As noted in Appellant’s Brief, Appellant’s trial
attorney objected to the exclusion of Venireperson Number
17 (Kevin Post) by the trial court, requested additional
preemptory strikes, objected to venireperson numbers 31
and 33 being included with the jury and moved for a
mistrial which was all denied by the trial court.
(Appellant’s Brief pp. 19-22).
After reviewing the reporter’s record (as cited
above) the Court of Appeals concluded that:
“the essence” of the statements made by
venire member number 17 was that he could
not follow the law because he could not sit
in the judgment of another person. When
asked whether he would follow the law and
apply the law to the facts, venire member
number 17 expressed that he absolutely could
not do it. Thus, venire member number 17
expressed prejudice, “in essence”, against
all phases of the applicable law. Because
bias or prejudice against any law upon which
the State intends to rely is a proper ground
8
for a challenge for cause under the Code, we
hold the trial court did not abuse its
discretion in granting the State’s challenge
for cause and dismissing venire member
number 17. See Gonzales, 353 S.W.3d at 831.
Court of Appeals Opinion at pp. 6-7. However, the
conclusion of the Court of Appeals that venire member
number 17 stated that: (1) he could not follow the law
because he could not sit in the judgment of another
person; and (2) he (absolutely) would not follow the law
and apply the law to the facts is contrary to the
statements made by venire member 17 [Mr. Post] in the
reporter’s record.
The alleged statements attributed to venire member 17
that he (1) could not follow the law, (2) could not sit
in the judgment of another person, and (3) he absolutely
could not follow the law and apply the law to the facts
were not statements made by venire member number 17, but
were in fact statements and arguments made by the
prosecutor Lorina Rummel which she attributed to venire
member number 17. (RR. Vol. 2, pp. 61-62). Venire member
17's only “mistake” was to raise his hand because he had
9
a question.” (RR. Vol. 2, pp. 61-62). The Court Reporter
stopped the prosecutor to inform the prosecutor that –
“He said, I’m not sure I understood the question.” (RR.
Vol. 2, p. 62). The venire member responded by stating:
VENIREPERSON: My thing is, I can make a
judgment, but under these kind of
circumstances - -
when he was interrupted by the prosecutor before he could
finish his statement. (RR. Vol 2, p. 62). When
Appellant’s trial attorney complained to the trial judge
that “she just cut him off” the trial judge informed
Appellant’s trial attorney that “you’re welcome to follow
up when it’s your turn and ask whatever you desire.” (RR.
Vol 2, pp. 61-63). When Appellant’s trial attorney
questioned venire member 17 (Mr. Post), if he had raised
his hand to anything, Mr. Post responded by stating:
VENIREPERSON: Yeah. I don’t feel comfortable
in sitting in judgment of anyone else. . . .
and I don’t feel comfortable with it.
(RR. Vol. 2, p.117)(Emphasis Added). When the Appellant’s
trial attorney asked venire member 17 if he had raised his
hand to anything else, venire member 17 responded –
10
“Nope.” (RR. Vol 2, p. 117).
After the State requested to bring venire member 17
[Kevin Post] before the bench for questioning on a
challenge for cause (and apparently without venire member
17 being before the bench) the trial court judge showed
confusion as to the statements actually made by Mr. Post
when the trial judge stated:
THE COURT: All right. He mentioned in
several instances he would not be fair and
he is the individual that said he could not
sit in judgment of another one; is that
correct?
MS. RUMMEL: Yes. And then I followed - - I
believe that I said, Will you follow the law
and can you render a verdict, and he said,
No, I can’t do it. Won’t follow the law.
Judge.
(RR. Vol 2, p. 153)(Emphasis Added). However, the
statements of the trial court judge and the prosecutor
attributed to Kevin Post (venire member number 17) are
not supported by the reporter’s record and are, in fact,
contrary to the reporter’s record. Such statements are
solely the prosecutor’s argument, not the statements of
venire member number 17. Venire member 17 (Kevin Post’s)
11
only “statements” were: (1) “I have a question”; (2) “My
thing is, I can make a judgment, but under these kind of
circumstances - -”; (3) “Right. I just wanted to be
sure”; (4) ”Yeah, I don’t feel comfortable in sitting in
judgment of anyone else”; (4) “It’s mine to take and I
don’t feel comfortable with it”; and (5) “Nope” (when
asked by Appellant’s trial attorney if he had raised his
hand to anything else.” (RR. Vol. 2, pp. 61-62, 116-117).
Five (5) venire members raised their hands in
response to the prosecutor’s question of “is there
anybody that absolutely will not sit in judgment of
another?” (RR. Vol 2, p. 61). The five (5) venire
members were numbers: 1 [Ms. Diana Martinez who was an
agreed strike]; 3 [Mr. Francis Tejeda - struck for cause
when he admitted he couldn’t be fair]; 5 [Mr. Brendan
Cockman who was an agreed strike]; 6 [Ms. Anita Gonzales
- struck for cause when she said “I cannot be fair”]; and
17 [Mr. Kevin Post]. (Supplemental Clerk’s Record pp, 3-
6; RR. Vol 2, pp. 91, 94-96, 146-147). Of the five (5)
venire members the only disagreement between the State
and the Appellant concerned venire member 17 (Kevin
12
Post).
Argument and Authorities
The Court of Appeals’ December 17, 2014 Memorandum
Opinion and Judgment ignores the Texas Court of Criminal
Appeals opinion in Martinez v. State, 621 S.W.2d 797
(Tex. Crim. App. 1981) which was argued by Appellant in
his Appellant’s Brief and Reply Brief of Appellant. As
previously set forth in Appellant’s two briefs, in the
Texas Court of Criminal Appeals en banc opinion in
Martinez, the venire member Mr. Clifford, following
general and individual voir dire, was called to the bench
to answer specific questions. While answering questions
by the trial court judge, venire member Clifford stated
“I don’t think I am qualified to sit in judgment of
another human being” and “I think the responsibility is
more awsome [sic] than I want to accept to judge another
human being” when the trial court judge interrupted the
prosecutor and stated “I am going to excuse him” over the
objections of the Appellant’s attorney. Id. at 798.
In comparing venire member Clifford (in Martinez)
with venire member Post in Appellant’s case, there are
13
striking similarities and differences. Venire member
Clifford was questioned at the bench following general
and individual voir dire. Despite the State’s request to
bring venire member Kevin Post before the bench to
question him, the trial court judge granted the State’s
challenge for cause (to venire member Post) over the
objection of Appellant’s trial attorney without either
side having an opportunity to question venire member Post
before the bench (despite such a request by the State).
As noted previously, the trial court judge showed
confusion as to the statements actually made by venire
member Post when the trial court judge commented that
“[h]e mentioned in several instances that he could not be
fair and he is the individual that said he could not sit
in judgment of another. . . .” (RR. Vol. 2, p. 153). The
trial court judge granted the State’s challenge for cause
based upon the prosecutor’s erroneous claims attributed
to venire member Post that – “I believe that I said, Will
you follow the law and can you render a verdict, and he
said, No, I can’t do it. Won’t follow the law, Judge.”
(RR. Vol. 2, pp. 153-154). However, the record fails to
14
show such statements by venire member Post. When
Appellant’s trial attorney stated - “Let’s give him a
chance” the trial court judge responded by stating – “I’m
going to grant the State’s challenge for Number 17.” (RR.
Vol. 2, p. 154).
Venire member Clifford in Martinez expressed the same
reservations as venire member Post when venire member
Clifford told the trial court judge that “I don’t think
I am qualified to sit in judgment of another human being”
and “I think the responsibility is more awsome [sic] than
I want to accept to judge another human being. . . .”
Martinez at 798. Both venire members Clifford (in
Martinez) and Post (in Appellant’s case) expressed “a
disinclination to accept responsibility” in judging
another person. Venire member Clifford was “struck” for
cause by the trial court in Martinez for expressing such
a disinclination. After the State requested that venire
member approach the bench for questioning, venire member
Post was “struck” for cause by the trial court before
either the State or the Appellant questioned venire
member Post before the bench. The trial court judge
15
granted the State’s challenge for cause to venire member
Post in Appellant Pardo’s case based upon the same
reservations and disinclination expressed by venire
member Clifford in the Martinez case.
As pointed out in the Appellant’s Brief and the Reply
Brief, the Texas Court of Criminal Appeals in Martinez in
quoting from Esquivel v. State, 595 S.W.2d 516, 524 (Tex.
Crim. App. 1980) noted that the Esquivel court reiterated
the well settled rule that:
[a] trial judge should not on its own motion
excuse a prospective juror for cause unless
he is absolutely disqualified from serving
on a jury. This rule is also stated in Sanne
v. State, 609 S.W.2d 762, 770 (Tex.Crim.App.
1980), Valore v. State, 545 S.W.2d 477
(Tex.Crim.App. 1977), Moore v. State, 542
S.W.2d 664 (Tex.Crim.App. 1976), Pearce v.
State, 513 S.W.2d 539 (Tex.Crim.App. 1974)
and Hendrickson v. State, 500 S.W.2d 491
(Tex.Crim.App. 1973).
Id. at 797-798. (Emphasis Texas Court of Criminal
Appeals). The Texas Court of Criminal Appeals in Martinez
in reversing the judgment of the trial court emphasized
that under the Texas Code of Criminal Procedure – “A
disinclination to accept responsibility is not listed as
a reason for the trial judge sua sponte to excuse a
16
venire person” and “[t]he trial court judge clearly
erred.” Id. at 799.
After finding reversible error in Martinez, the Texas
Court of Criminal Appeals in its en banc opinion then
proceeded to decide whether the trial court’s error in
Martinez was harmful. The Texas Court of Criminal
Appeals in Martinez noted that:
[i]n Payton v. State, 572 S.W.2d 677, 680
(Tex.Crim.App. 1978) the Court set forth a
test devised to show harm for the erroneous
exclusion of a qualified juror:
‘Harm may be shown in the erroneous
exclusion of a qualified juror by showing
that the State exhausted its preemptory
challenges.’ See also, Pearce v. State,
supra.
Martinez at 799. (Emphasis Added). After examining the
trial court record showing the lists of preemptory
challenges, the Texas Court of Criminal Appeals in
Martinez noted that the record showed that the State had
exhausted its preemptory challenges. In its harm
analysis, the Texas Court of Criminal Appeals in Martinez
concluded that:
[t]he effect of the trial court’s action,
“from the perspective of the defendant,
17
[was] the same as if the State had been
given an extra preemptory challenge.” Payton
v. State, supra. As the appellant argued in
his brief, it is not proper “to exclude from
a jury those of the ‘reluctant’ mold in
favor of those of the ‘eager’ mold. Harm
now appearing, the ground must be sustained.
The judgment is reversed, and the cause
remanded.
Martinez at 799. (Emphasis Added).
Although Martinez represents a case in which the
trial court on its own motion “struck” a veniremember for
cause, Article 35.16 of the Texas Code of Criminal
Procedure (entitled “Reasons for Challenge for
Cause”)addresses challenges for cause made by either the
state or the defense. Specifically, Article 35.16 (b) 3
provides that:
[a] challenge for cause may be made by the
State for any of the following reasons: . .
. .
3. That he [a juror] has a bias or prejudice
against any phase of the law upon which the
State is entitled to rely for conviction or
punishment.
In Gonzales v. State, the Texas Court of Criminal Appeals
ruled that in applying such a standard to a venire
member:
18
[t]he test is whether the venireperson’s
“bias or prejudice would substantially
impair [his] ability to carry out his oath
and instructions in accordance with the
law.” citing Feldman v. State, 71 S.W.3d
738, 744 (Tex. Crim. App. 2002). To
establish that the challenge for cause is
proper, the proponent of the challenge must
show that the venireperson understood the
requirements of the law and could not
overcome his prejudice well enough to follow
the law. Feldman at 747. So before a
venireperson may be excused for cause on
this basis, the law must be explained to
him, and he must be asked whether he can
follow that law, regardless of his personal
views.
353 S.W.3d 826, 831-32. In Gonzales, venireperson Murdock
provided answers that she would not afford the Appellant
the right to remain silent and would shift the burden of
proof to the Appellant. Id. at 832. However, the Court of
Criminal Appeals concluded that venireperson Murdock’s
statements were based upon “a misunderstanding of the
law.” Id. However, when the trial court judge explained
the requirements of jury service to venireperson Murdock
and asked whether she could still follow the law and the
instructions of the Court and follow her oath,
veniremember Murdock responded — “Yes, I will do that.”
Id. at 836. On appeal, the Court of Criminal Appeals
19
overruled Appellant’s point of error denying Appellant’s
challenge for cause to venireperson Murdock. Id. at 837.
In Cannady v. State, the Texas Court of Criminal
Appeals overruled an Appellant’s two points of error in
which a trial court judge denied two challenges for cause
to veniremembers. 11 S.W.3d 205, 209-210 (2000). One
veniremember testified that the fact that Appellant was
already in prison would affect his ability to presume the
Appellant innocent. Id. at 209. The second veniremember
testified that as a correctional officer he had witnessed
a murder by a prisoner of another prisoner in his unit
and had expressed his dissatisfaction with the jury
acquitting the defendant. However, despite both
veniremembers occasional confusion on the issues, both
veniremembers testified that they could listen to the
facts and make a determination based solely on the facts
and the law. Id. at 210.
In Jones v. State, the Texas Court of Criminal
Appeals ruled that “before a veniremember can be properly
challenged under Article 35.16 (b) (3), the law must be
explained to him and he must be asked whether he can
20
follow that law regardless of his personal views. 982
S.W.2d 386, 390 (1998) citing Chambers v. State, 903
S.W.2d 21, 29 (Tex. Crim. App. 1995). In Jones, the
Court of Criminal Appeals concluded that because the
relevant law was not explained to veniremember Snyder,
she was not subject to a challenge for cause. Id. at 390.
In Brown v. State, the Texas Court of Criminal
Appeals considered a case in which venireperson Stagner
vacillated between stating that “she definitely would be
able to follow the law and stating that she definitely
would not be able to follow the law and stating that she
did not know for sure whether she could follow the law.
913 S.W.2d 581 (1996). The Court of Criminal Appeals
concluded that:
[i]n other words, nothing is left to the
discretion of the trial court when the
venireperson is unequivocal as to their
ability to follow the law. If they testify
unequivocally that they can follow the law
despite personal prejudices, the trial court
abuses its discretion in allowing a
challenge for cause on that basis. Likewise,
if they testify unequivocally that they
cannot follow the law due to their personal
biases, the trial court abuses its
discretion in failing to grant a challenge
21
for cause on that basis. . . .
Id. at 580. However, the Texas Court of Criminal Appeals
reinstated the judgment of the trial court by ruling that
“when the record reflects a vacillating venireperson, the
reviewing court is bound by the trial court’s judgment in
the matter.” Id at 580-581.
As noted on page 12 of this Motion for Rehearing,
veniremember 17 [Kevin Post] made five (5) statements in
response to questioning by the State and the defense in
which he stated his ability to make a judgment but that
he simply did not feel comfortable sitting in judgment of
anyone else. The statements attributable to veniremember
Post [by the State] that; “he could not be fair”, “could
not sit in judgment of another one”, he “can’t follow the
law”, “won’t follow the law” and “can’t render a verdict”
are simply not supported by the record.
The logic of the Texas Court of Criminal Appeals’
opinion in Martinez that “it is not proper to exclude
from a jury those of the ‘reluctant’ mold in favor of
those of the ‘eager’ mold” is equally applicable to
criminal cases in which the State makes a challenge for
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cause pursuant to Article 35.16 (b) 3 of the Texas Code
of Criminal Procedure. As harm was found in Martinez by
a trial court judge on its own motion excusing a
prospective juror, harm likewise exists in Appellant
Pardo’s case.
PRAYER
WHEREFORE, Appellant prays that this Honorable Court
grant this Motion for Rehearing and reverse the judgment
of the trial court and render judgment in favor of the
Appellant or in the alternative, reverse the judgment of
the trial court and remand the case for further
proceedings.
Respectfully submitted,
LAW OFFICES OF
HITCHINGS & POLLOCK
645 South Presa
San Antonio, Texas 78210
(210) 224-1433
(210) 224-4840 (telecopier)
By: /S/ Barry P. Hitchings
BARRY P. HITCHINGS
State Bar No. 09723600
ATTORNEYS FOR APPELLANT
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CERTIFICATE OF COMPLAINCE
I certify, in accordance with Rule 9.4 of the Texas
Rules of Appellate Procedure that this document contains
4279 words.
/S/ Barry P. Hitchings
Barry P. Hitchings
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 5th day
of January, 2015, a true and correct copy of the
Appellant's Motion for Rehearing was served by e-filing
at laura.durbin@bexar.org and hand-delivered to the Bexar
County Criminal District Attorneys Office, Paul Elizondo
Tower, 101 W. Nueva Street, San Antonio, Texas 78205.
/S/ Barry P. Hitchings
BARRY P. HITCHINGS
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Oscar David Pardo v. State
Combined Opinion