Arthur Puente, Jr. v. The State of Texas--Appeal from 291st District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Arthur Puente, Jr.

Appellant

Vs. No. 11-02-00331-CR -- Appeal from Dallas County

State of Texas

Appellee

The jury convicted Arthur Puente, Jr. of the offense of aggravated sexual assault of a child. Upon finding that appellant had previously been convicted of the felony of aggravated rape, the trial court assessed appellant=s punishment at confinement for life as mandated by TEX. PENAL CODE ANN. ' 12.42(c)(2) (Vernon 2003). We affirm.

Appellant presents two issues on appeal but does not challenge the sufficiency of the evidence. The record shows that appellant abducted the 14-year-old victim, took her to an isolated area, threatened to kill her, and forcibly strangled and sexually assaulted her.

In the first issue, he complains of a Batson[1] error and of the trial court=s refusal to allow defense counsel to examine the prosecutor=s voir dire notes. The use of peremptory challenges to strike potential jurors on the basis of race is prohibited. Batson v. Kentucky, supra; TEX. CODE CRIM. PRO. ANN. art. 35.261 (Vernon 1989). In Purkett v. Elem, 514 U.S. 765 (1995), the Supreme Court delineated the three-step process for properly determining a Batson challenge. First, the opponent of a peremptory challenge must make out a prima facie case of racial discrimination, essentially a burden of production. In the second step, the burden of production shifts to the proponent of the strike to respond with a race-neutral explanation. Third, if a race-neutral explanation has been proffered, the trial court must decide whether the opponent of the strike has proved purposeful racial discrimination. The burden of persuasion is on the opponent of the strike to convince the trial court that the strike was racially motivated. Purkett v. Elem, supra; Ford v. State, 1 S.W.3d 691, 693 (Tex.Cr.App.1999); Camacho v. State, 864 S.W.2d 524, 529 (Tex.Cr.App.1993), cert. den=d, 510 U.S. 1215 (1994).

The record shows that appellant objected because the State used five of its ten peremptory strikes on black veniremembers. Veniremembers Nos. 9, 18, 21, 25, and 40 were struck by the State. The State responded that there were other AAfrican American@ veniremembers whom the State did not strike. The State also gave race-neutral reasons for its strikes. Veniremember No. 9 was struck Abased on her answers during [the] questioning about Fifth Amendment.@ The prosecutor did not Aget a good feel based on her answers that she was responding to [the prosecutor] truthfully and openly.@ The prosecutor originally stated that Veniremembers Nos. 18, 21, 25, and 40 were struck because they had no children. The prosecutor subsequently stated that Veniremember No. 25 was struck because Ashe had family members charged with child abuse.@ The record from the voir dire proceedings showed that Veniremember No. 25 had a cousin charged with a Asimilar offense to [appellant].@ The prosecutor pointed out that he also struck Veniremember No. 24, who was white, because Veniremember No. 24 had no children. We hold that the State=s explanations were both reasonable and racially neutral.

In response to the State=s explanations, defense counsel pointed out that Veniremember No. 25 had children and that Veniremember No. 40 may or may not have had children and Acould probably be read either way@ because that blank was not filled in on the jury questionnaire. Defense counsel also stated that the State had not struck a white venireman whose family member had been convicted of an offense against a child. However, the prosecutor responded that the charge in that case was not sexually oriented but, rather, was child endangerment. The record from voir dire supports the prosecutor=s remarks. Appellant did not show that the State=s race-neutral reasons for its strikes were a pretext for discrimination. We hold that the trial court=s determination on the Batson issue was not clearly erroneous. See Chamberlain v. State, 998 S.W.2d 230, 236 (Tex.Cr.App.1999), cert. den d, 528 U.S. 1082 (2000); Adanandus v. State, 866 S.W.2d 210, 224-25 (Tex.Cr.App.1993), cert. den d, 510 U.S. 1215 (1994).

Appellant also contends in his first issue that the trial court erred by denying appellant s request to review the prosecutor s notes from voir dire. A prosecutor may be required to turn over notes made during voir dire if those notes were used to refresh the prosecutor s memory before or while testifying with respect to a Batson challenge. Pondexter v. State, 942 S.W.2d 577, 582 (Tex.Cr.App.1996), cert. den d, 522 U.S. 825 (1997); Salazar v. State, 795 S.W.2d 187, 193 (Tex.Cr.App.1990). The record shows that, the morning after the jury had been sworn, appellant asked the trial court to reopen the Batson hearing. Appellant then moved to examine the notes that the prosecutor made during voir dire and may have relied upon to exercise her peremptory challenges. There is no indication in the record that the prosecutor used her notes to refresh her memory before or during her testimony at the Batson hearing. See Pondexter v. State, supra. Moreover, appellant s request appears to be untimely in this case because appellant did not request such notes until after the jury had been sworn. We hold that the trial court did not err by failing to require the prosecutor to turn over her notes. Appellant s first issue is overruled.

In the second issue, appellant argues that the trial court erred in failing to grant his motion to quash the jury panel. Appellant timely filed the motion to quash, but the hearing on the motion was postponed by agreement and was heard after trial. In the motion, appellant contended that the method of choosing and summoning jury panels in Dallas County is clearly discriminatory and that Hispanics are disproportionately underrepresented as jurors.

The Supreme Court set out the following standard:

In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a Adistinctive@ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364 (1979).

Testimony of the jury services manager for Dallas County from a similar hearing in a different case was introduced as an exhibit at the hearing. According to the jury services manager, the Secretary of State creates Dallas County=s jury wheel from the list of Dallas County residents that are either registered to vote or have a Texas driver=s license or identification card. Names of prospective jurors are randomly pulled off the jury wheel, and those people are sent a summons. Generally, however, only about 20 percent of those summoned actually report for jury service.

Appellant also introduced into evidence a study of Dallas County juries. The study reported that about 25 percent of Dallas County residents are Hispanic. According to the study, the group of people sent a jury summons Aclosely resembled the adult population of Dallas County.@ The study showed, however, that only 7 percent of those reporting for jury service were Hispanic.

We hold that appellant failed to meet the third prong of the Duren test. Unlike the defendant in Duren, appellant did not show that the underrepresentation of Hispanics in jury pools Awas systematic--that is, inherent in the particular jury-selection process utilized.@ Duren v. Missouri, supra at 366. In Duren, the defendant showed that women were underrepresented in jury pools in large part because of an automatic exemption that was authorized by statute. In this case, appellant merely showed that a disproportionate number of Hispanics failed to report for jury service. Some of the people who failed to report for jury service were contacted and were asked to answer a survey. Only 41 of those polled were Hispanic, and they gave a variety of answers in response to a question regarding the reason they failed to report. Appellant failed to show that the underrepresentation was caused by a systematic exclusion of Hispanics in the jury-selection process. See Hernandez v. State, 24 S.W.3d 846, 849-51 (Tex.App. - El Paso 2000, pet=n ref=d). Appellant=s second issue is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

August 7, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]Batson v. Kentucky, 476 U.S. 79 (1986).