     TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-00-00309-CR




                                 Siavash Sayyadi, Appellant

                                               v.

                                The State of Texas, Appellee



               FROM THE COUNTY COURT AT LAW OF COMAL COUNTY
         NO. 99CR-949, HONORABLE BRENDA R. FREEMAN, JUDGE PRESIDING




              A jury found appellant Siavash Sayyadi guilty of driving while intoxicated. See

Tex. Penal Code Ann. § 49. 04 (West Supp. 2000).             The court assessed punishment at

incarceration for ninety days and a $900 fine, but suspended imposition of sentence and placed

appellant on community supervision. In his sole point of error, appellant contends the court

violated the Equal Protection Clause of the United States Constitution by excluding a prospective

juror because he could not speak English. See U. S. Const. Amend. XIV. We will overrule this

contention and affirm.

              The ability to read and write is a statutory requirement for service on a trial jury.

Tex. Gov’t Code Ann. § 62.102(5) (West 1998). While the inability to read or write is not an

absolute disqualification, it is a ground for challenge by either party. Tex. Code Crim. Proc.

Ann. arts. 35.16(a)(11); 35. 19 (West 1989). The statutes do not expressly require English
literacy, but case law has long implied this requirement. See Lyles v. State, 41 Tex. 172, 176-77

(1874); Montoya v. State, 810 S.W.2d 160, 169-70 (Tex. Crim. App. 1989); Hodge v. State, 896

S.W.2d 340, 342-43 (Tex. App.—
                             Amarillo 1995, pet. ref’d). Appellant argues that it is a violation

of equal protection principles to disqualify persons who do not speak English from jury service. 1

               Jury selection began in this case with the court welcoming the panelists and

examining them regarding the “mandatory qualifications for jury service.” Among other things,

the court asked if “everyone is able to read and write the English language.” 2 The court added,

“I’ve already got one indication of difficulty with English,” an apparent reference to venire

member Manrique Delagarza, who later spoke individually with the court. Delagarza explained

that he had been born in Texas but raised in Mexico. He told the court, “I —I have English

problems. I’m —I be here before for touring to learn English, but it still —somebody talk fast, I’m

lost.” Asked by the court if he had difficulty “ reading, writing, and hearing in English,” he

answered, “I can read. I can write —not so good —but I can read. I can write. But somebody

talking fast, I’m lost. I’m lost right there. I got only six months’ school. That’s all I got.” The

court excused Delagarza from jury service, for which he expressed his thanks. Counsel for

appellant objected that “excluding somebody due to lack of English-speaking abilities violates the

Equal Protection clauses of both the Texas and the United States Constitutions.”



   1
      Appellant contends he has standing to assert the excluded venire member’s equal protection
rights under the rationale of Powers v. Ohio, 499 U.S. 400, 410-15 (1991). Because the State
does not challenge appellant’s standing to assert the venire member’s alleged equal protection
right, we will accept it for this opinion without deciding the issue.
   2
       Appellant voiced no objection to this question.

                                                2
               It is important to distinguish between excusing a qualified venire member from

service on the jury and excluding an unqualified venire member from service. Under code of

criminal procedure article 35.03, 3


        the trial judge has the discretion, upon a reason sufficient to satisfy the court, to
        excuse an otherwise qualified venireperson from jury service. This is in contrast
        to a situation where a judge must excuse a venireperson who, for instance, suffers
        from a disability sufficient to absolutely disqualify. . . . Article 35. 16,[4] on the
        other hand, provides a framework under which unqualified potential jurors may be
        discovered by the parties and excised from the panel without need to resort to the
        exercise of a peremptory strike. An excusal of an unqualified venireperson
        pursuant to Article 35. 16 is qualitatively different than one in which a qualified
        venireperson requests, on the basis of a personal reason, an excuse from jury
        service, viz: the bases for a cause challenge enumerated in Article 35. 16 are, as a
        matter of law, the only ones which a party may request that a judge rule upon to
        disqualify a juror, while the judge may, in accordance with Article 35. 03, consider
        any other excusal factor with or without the prompting of counsel.


Butler v. State, 830 S.W.2d 125, 130 (Tex. Crim. App. 1992) (emphases in original).

               The record reflects that the trial court considered the ability to read and write

English to be an absolute qualification for jury service, and Delagarza was excused from service

while the court was considering the qualifications of the various panelists. However, the record

also reflects that Delagarza asked to be excused from jury service, apparently making his request

known before voir dire formally began, citing his lack of English comprehension. A court may

grant an excuse from jury service pursuant to article 35.03 at any time during the jury selection

process. Id. at 131. Even if we were to agree with appellant that it is a violation of the Equal


   3
       Tex. Code Crim. Proc. Ann. art. 35.03 (West 1989).
   4
       Tex. Code Crim. Proc. Ann. art. 35.16 (West 1989 & Supp. 2001).

                                                  3
Protection Clause to disqualify a potential juror who is not literate in English, a court retains the

discretion under article 35.03 to grant a venire member’s request to be excused from jury service

because of limited English skills.

               We should not reach a constitutional issue if a narrower basis for decision applies.

See Briggs v. State, 740 S.W.2d 803, 806-07 (Tex. Crim. App. 1987); Smith v. State, 899

S.W.2d 31, 34 (Tex. App.—
                        Austin 1995, pet. ref’d). Because we conclude that the trial court did

not abuse its discretion by granting the venire member’s request to be excused from jury service,

we overrule appellant’s point of error without expressing any opinion whether the inability to

speak or understand English may constitutionally disqualify a person from jury service.

               The judgment of conviction is affirmed.




                                              Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Patterson

Affirmed

Filed: March 8, 2001

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