OPINION
Marcos Gutierrez was convicted of first-degree murder and sentenced to life in prison. In two points of error Gutierrez complains that his right to equal protection was violated by the Guadalupe County grand juror selection process, and that the trial court erred in not granting his motion to transfer venue. We decline to apply a more stringent mathematical standard than one endorsed by the Supreme Court decades ago and to find systematic exclusion of Spanish-surnamed Americans of Mexican descent from Guadalupe County's grand juries. However, because we find the trial court erred in not considering the merits of Gutierrez' motion to transfer, we reverse and remand.
EQUAL PROTECTION In his first point of error, Gutierrez claims that the trial court erred in overruling his motion to quash the indictment because the class of Spanish-surnamed Americans of Mexican descent1, of which Gutierrez is a member, was systematically excluded from grand jury service in Guadalupe County.
In 1994, Gutierrez was indicted by a Guadalupe County grand jury, which was empaneled by what is called the "key-man" system. This system required jury commissioners, appointed by a district judge, to select and make a list of prospective jurors. Gutierrez claimed this system denied him equal protection of the law, and that the court committed reversible error in overruling his motion to *Page 88 quash the indictment because he presented an unrebutted, prima facie case of an equal protection violation. We disagree.
1. Establishing the Prima Facie Case
Nearly two decades ago, in Castaneda v. Partida,430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), the United States Supreme Court set forth the elements of a prima facie case of discrimination in the selection of grand jurors. UnderCastaneda, the defendant must show that the selection system employed resulted in substantial underrepresentation of his race by establishing:Castaneda, 430 U.S. at 494 [97 S.Ct. at 1280]. "Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case." Id. at 495 [97 S.Ct. at 1280]. When the state declines to rebut such a showing, they do so at their peril.(1) the group is a recognizable, distinct class that has been singled out for different treatment under the laws;
(2) the degree to which the group was underrepresented 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) the selection process is either susceptible to abuse or is not racially neutral.
Gutierrez, however, has failed to make out a prima facie case of discriminatory purpose. Although he meets the first and third prongs of the Castaneda test, he has failed to demonstrate, under the second prong, that Spanish-surnamed Americans of Mexican descent have been underrepresented on Guadalupe County grand juries by a legally significant amount over a significant period of time.
The first element set out in Castaneda is here satisfied because Spanish-surnamed Americans of Mexican descent are recognized as a clearly identifiable class with a history of being subjected to discriminatory treatment. Hernandezv. Texas, 347 U.S. 475, 478-80, 74 S.Ct. 667, 670-71, 98 L.Ed. 866 (1954). The third element is met as well because, while the key-man system has been upheld as facially constitutional, Carter v. Jury Comm'n, 396 U.S. 320, 332-37, 90 S.Ct. 518, 524-28, 24 L.Ed.2d 549 (1970), the system is susceptible to abuse as applied. Hernandez, 347 U.S. at 479, 74 S.Ct. at 671. Many Texas jurisdictions have abandoned this system for that reason.
Gutierrez, however, cannot meet the second prong of theCastaneda test unless we apply an analysis more stringent than the Supreme Court has required. Because we believe Supreme Court action in this area was spurred by compelling historical circumstances, we will not author a more stringent standard.
2. The Statistics
In an attempt to meet the second element of theCastaneda test, Gutierrez presented evidence at the hearing on the motion to quash the indictment showing that, pursuant to the 1993 Texas Estimated Population table made a part of the Texas Vital Statistics Annual Report for 1993, Spanish-surnamed individuals made up 31.35% of the total population of Guadalupe County. Gutierrez also produced lists of the individuals who were summoned and who served as grand jurors from 1987 to 1994, which established the following:(1) only 21.25% of those summoned during this time period had Spanish surnames, a disparity of 10.1% between the proportion of the group in the total population in 1993 and the proportion that were summoned between 1987 and 1994; and
(2) only 18.84% of the grand jurors who served during this time period had Spanish surnames, a disparity of 12.5% between the proportion of the group in the total population in 1993 and the proportion that actually served from 1987 to 1994.
Gutierrez also showed that of the 12 members of the grand jury which indicted him, only two had Spanish surnames.
The United States Supreme Court has never promulgated precise mathematical *Page 89 standards to determine at what point a denial of equal protection by the "systematic" exclusion of an identifiable class from jury service occurs. Alexander v.Louisiana, 405 U.S. 625, 630, 92 S.Ct. 1221, 1225, 31 L.Ed.2d 536, 541 (1972). The Court has held only that when suspect systems such as the one employed in Guadalupe County are used, a sufficiently large disparity over a significant period of time supports a presumption of unconstitutional purposeful discrimination. Castaneda, 430 U.S. at 493-94, 97 S.Ct. at 1279-80. The disparities in this case, however, between the proportion of Spanish-surnamed persons in the total population in 1993 and the proportion of Spanish-surnamed individuals summoned to serve (10.1%) and who served as grand jurors (12.5%) between 1987 and 1994, are lower than the disparities found to be sufficient by both the United States Supreme Court and Texas courts considering this issue.2
Our research has disclosed only one Supreme Court case — Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967) — finding a prima-facie showing of an Equal Protection violation at a level lower than 15 percent discrepancy. A review of the circumstances surroundingJones illustrates why we believe Gutierrez does not present a sufficiently compelling argument to justify a more stringent standard to be applied to Guadalupe County.
3. The Georgia Grand Jury Cases
Jones was a two-page per curiam opinion in which the Supreme Court held that Georgia officials had misapplied its earlier holding in Whitus v. Georgia,385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967).Whitus was convicted of murder in 1960; at that time, no African-American had served on a jury in that county in any witness' memory. Whitus, 385 U.S. at 547-48, 87 S.Ct. at 644-45. His conviction reached the Supreme Court and was eventually reversed on that disparity; Whitus was tried and convicted again. Id. On appeal from that conviction, Whitus showed the grand jury and petit jury lists had been derived from taxpayer digests which were still segregated by race. Id. at 551, 87 S.Ct. at 647. He also showed there was still an 18.0% disparity between the grand jury venire and the number of African-Americans on the taxpayer rolls. Whitus, 385 U.S. at 548-49, 87 S.Ct. at 645-46. These circumstances, the Court held, were sufficient to make out a prima facie case of "purposeful discrimination."Id. at 551, 87 S.Ct. at 647.
Jones was decided nine months after Whitus. While the petitioner in Jones showed a 14.7 percent discrepancy, that case's statistical analysis is relegated to a footnote. Jones, 389 U.S. at 25, 88 S.Ct. at 5-6. The specific holding in Jones is that the state cannot rely on a presumption that public officials have properly discharged their duties to satisfy the burden of explaining "the disparity between Negroes on the tax digest and those on the venires." Jones, 389 U.S. at 25, 88 S.Ct. at 5 (quoting Whitus, 385 U.S. at 552, 87 S.Ct. at 647-48).
Jones and Whitus, read together, appear to be less about creating a statistical yardstick for future cases than about forcing recalcitrant Georgia officials to confront and eliminate the last vestiges of de jure discrimination in their state's criminal justice system. We find no evidence in this record of intentional or dejure discrimination against members of the class in this community. We therefore doubt Gutierrez' case is a convincing one for extending the Jones statistical standard into a later time and a different cultural context. *Page 90
4. Underrepresentation over a significant period of time
There are evidentiary problems with Gutierrez' case as well. As we noted in the discussion above, while participation in the grand jury system was represented by statistics over a seven-year period, the disparity was measured against one figure — the 1993 population estimate showing the percentage of class members in the county. The State argued both at the hearing on the motion to quash the indictment and in this appeal that because Gutierrez presented only the 1993 report, he failed to establish a prima facie case of statistical underrepresentation over a significant period of time as he presented no evidence demonstrating the Hispanic-American population in the county from 1987 to 1992. We agree that Gutierrez is asking us to compare apples to oranges. Without population estimates for these years, or evidence that such statistics were not available for these years,3 Gutierrez has failed to demonstrate systematic underrepresentation of class members on Guadalupe County grand juries. Other courts considering this issue have required no less. See Castaneda, 430 U.S. at 495 n. 15, 97 S.Ct. at 1280 n. 15 (accepting argument that 1970 census estimates remained constant only because 1960 census did not compile separate statistics for Spanish-surnamed persons);Cerda, 644 S.W.2d at 877-79 (reversing conviction on equal protection grounds only after comparing percentage of Spanish-surnamed individuals listed in 1970 census records and 1969-70 and 1979-80 school enrollment records to grand jury panels for 1969-79); cf. Stanley v. State, 678 S.W.2d 80, 80 n. 1 (Tex.Crim.App. — 1984) (Clinton, J., dissenting from refusal of PDR) (accepting comparison of 1970 census to fourteen years of grand jury information only because State failed to object to data), cert. denied,472 U.S. 1018, 105 S.Ct. 3481, 87 L.Ed.2d 616 (1985).Moreover, when we consider only the statistics regarding the composition of Guadalupe County grand juries for 1993 — the only year for which Gutierrez presented a complete set of statistics — the disparities between the percentage of Spanish-surnamed individuals in the county and those summoned are negligible at best. Thirty percent of those summoned for grand jury service in 1993 were Spanish-surnamed individuals, a disparity of only 1.35% between the percentage summoned and the percentage of Spanish-surnamed individuals in the Guadalupe County population. The evidence further illustrated that, of those who actually served on Guadalupe County grand juries during 1993, 25% were Spanish-surnamed individuals, a disparity of only 6.35% when compared to the population percentages.
We therefore conclude that Gutierrez has failed to establish a prima facie case of purposeful discrimination and overrule his first point of error.
MOTION FOR CHANGE OF VENUE Gutierrez argues in his second point of error that the trial court should have granted his motion for change of venue as a matter of law because his properly verified application was not controverted, he did not waive the requirement that the State produce a controverting affidavit, and no evidentiary hearing justifying the denial of the motion was conducted. We agree.
"The presentation of an application for change of venue, properly verified, makes it incumbent upon the trial judge to change the venue, unless the application is controverted in the manner prescribed by statute, or unless the controverting affidavit is waived by the accused, and evidence heard justifying the denial of the motion." Stapleton v.State, 565 S.W.2d 532, 533-34 (Tex.Crim.App. 1978) (quoting Cox v. State, 90 Tex.Crim. 106, 234 S.W. 72 (1921)); see Cooks v. State, 844 S.W.2d 697, 730 (Tex.Crim.App. 1992), cert. denied, 509 U.S. 927, 113 S.Ct. 3048, 125 L.Ed.2d 732 (1993); Fields v. State,627 S.W.2d 714, 719 (Tex.Crim.App.), cert. denied,459 U.S. 841, 103 S.Ct. 91, 74 L.Ed.2d 84 (1982); Clarke v. *Page 91 State, 928 S.W.2d 709, 718 (Tex.App. — Fort Worth 1996, pet. ref'd).
The following chain of events transpired prior to the date on which Gutierrez filed his motion for change of venue. First, a pretrial hearing was held on October 19, 1994 to determine whether a reduction of Gutierrez' bond was in order. Additional pretrial hearings were set for November 4, 1994, and trial was set for November 7, 1994. On November 4, 1994, a hearing was held on Gutierrez' motion to continue the November 7 trial date. The motion was granted, and the court scheduled pretrial hearings for November 16, 1994 and reset the trial for December 5, 1994. On November 22, 1994, a pretrial hearing was held on three motions filed by Gutierrez, one of which requested another continuance and none of which pertained to a change of venue. The court granted the motion for continuance, resetting the trial date for January 24, 1995, and set a hearing on a motion to quash the indictment filed by Gutierrez for December 14, 1994. At the hearing on December 14, 1994, the court heard the motion to quash the indictment, but no motion for change of venue was filed or mentioned.
Gutierrez did not file his motion for change of venue until 9:40 a.m. on January 24, 1995, the day on which his jury trial was to begin. Gutierrez filed another motion for continuance along with his motion for change of venue. The trial judge denied the motion for change of venue as not timely filed, and granted the motion for continuance. However, in light of the continuance, the trial judge told Gutierrez that he could reurge his motion for change of venue. In anticipation of Gutierrez reurging his motion, the State filed controverting affidavits later the same day at 4:50 p.m. Between January 24, 1995 and February 28, 1995, the day the case was called for trial, at least two more pretrial hearings were held on motions filed by Gutierrez, yet Gutierrez refused to reurge his motion for change of venue. The trial court never withdrew its ruling.
It is clear from the record before us that the court did not rule on the contents of the motion for change of venue, but merely denied it because it was untimely filed. This very issue was considered by the Texas Court of Criminal Appeals inRevia v. State, 649 S.W.2d 625 (Tex.Crim.App. 1983). In Revia, the trial court denied the appellant's motion for change of venue, holding it was not timely filed when it was presented for the first time at the start of voir dire examination of the jury panel. Id. at 626-27. In reversing Revia's conviction, the court found that it had "no other alternative than to hold the trial judge reversibly erred when he denied appellant's motion simply because it was not timely filed." Id. at 627. The court noted thatEnriquez v. State, 429 S.W.2d 141 (Tex.Crim.App. 1968) held that time limitations applicable to other pretrial motions should not apply to motions for change of venue because under recent Supreme Court decisions, change-of-venue questions have become questions of constitutional dimension. Id. at 626. The court noted that in its decisions sinceEnriquez, it "has looked primarily to Article 31.03, V.A.C.C.P., when deciding whether a motion for change of venue is properly filed." Id.
Gutierrez' motion complied with TEX.CODE CRIM. PRO. ANN. ART. 31.03 (Vernon 1989), which requires that the motion be written, supported by the defendant's own affidavit and the affidavits of two credible persons in the county of prosecution, and based upon one of the following causes:
1. That there exists in the county where the prosecution is commenced so great a prejudice against [the defendant] that he cannot obtain a fair and impartial trial; and
2. That there is a dangerous combination against him instigated by influential persons, by reason of which [the defendant] cannot expect a fair trial.
Gutierrez' motion was properly filed and was uncontroverted by the State when it was denied by the trial court. Accordingly, the trial court erred in denying Gutierrez' motion for change of venue without an evidentiary hearing. SeeFaulder v. State, 745 S.W.2d 327, 338 (Tex.Crim.App. 1987) (reaffirming holding in Revia that because change of venue is of constitutional dimension, time requirements applicable to other pretrial motions do not apply to motion for change of *Page 92 venue); Powell v. State, 777 S.W.2d 466, 468 (Tex.App. — El Paso 1989, pet. ref'd) (followingRevia and holding that trial court erred when it denied motion for change of venue not on contents, but because motion was untimely filed after pretrial hearing);Biegajski v. State, 653 S.W.2d 624, 627 (Tex.App. — San Antonio 1983, pet. ref'd) (relying onRevia to hold that trial court erred in denying motion for change of venue because it was untimely filed on day of trial).
We also note that while the trial court invited Gutierrez to re-urge his motion, the trial court never withdrew the ruling. Without a prior ruling Gutierrez would not have preserved a complaint for appellate review.
We recognize that the State, not to mention the trial court, is put in a precarious position by the present state of the law. As the Fort Worth Court of Appeals recognized when it considered this issue, "[t]he State, when met with a motion for change of venue at a time suspiciously close to trial, is left with the disheartening choice of hoping defense counsel will waive error by putting on evidence, present a motion for continuance or be faced with a change of venue as a matter of law through no fault of its own." Jones v. State, 753 S.W.2d 837, 839 (Tex.App. — Fort Worth 1988, pet. ref'd). We agree with the Fort Worth court, however, that the State should request either a recess or a continuance in situations such as this one to allow sufficient time to prepare controverting affidavits. See id. We sustain Gutierrez' second point of error.
The judgment of the trial court is REVERSED and REMANDED for further proceedings in accordance with this opinion.
HARDBERGER, C.J., concurs.
DUNCAN, J., dissents.