



Martinez - final                                                    



IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 



NO. 3-92-173-CV



ARMANDO Z. MARTINEZ AND HORTENCIA O. MARTINEZ,

	APPELLANTS

vs.



CITY OF AUSTIN,

	APPELLEE


 


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT

NO. 493,373, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

 


 
	Armando Z. Martinez and Hortencia O. Martinez, appellants, bring a limited
appeal challenging, as unconstitutional, the ethnic and racial composition of the jury in their
wrongful-death suit against the City of Austin.  We will affirm the trial court's judgment.


BACKGROUND
	Appellants and other family members brought a wrongful-death action against the
City for the shooting death of their son, Arthur.  Based upon the jury's verdict, the trial court
rendered judgment that the plaintiffs take nothing on their wrongful-death claim.  The trial court
did hold the City liable for $1,000 in damages for emotional distress caused Armando by actions
of City employees after Arthur's death.
	Arthur was shot and killed by Austin Police Department officers responding to a
report of gunfire in a residential area.  The parties disputed the facts and circumstances of this
incident below; however, appellants make no complaint as to the merits of the wrongful-death
claim in this limited appeal.  Instead, appellants address only a claimed defect in the composition
of the jury panel.
	Appellants concede that the initial panel of approximately seventy-five persons
reflected the racial and ethnic composition of the general population. (1)  Appellants also concede
that none of the parties challenged the array or asked for a shuffle of the panel.  See Tex. R. Civ.
P. 221, 222 & 223.
	During voir dire of the jury panel, several prospective jurors who were of minority
race or ethnicity expressed doubt that they could be objective because of bad personal experiences
with the police.  The City challenged these individuals, whom the court then excused for cause. 
Appellants successfully challenged another minority individual because he was a former Austin
police officer.  As a result, no Hispanics remained within the so-called "strike zone," the portion
of the jury panel from which the first twelve individuals and one alternate would be chosen to
serve as jurors after the parties had exercised their peremptory strikes.  After both sides had
exercised their peremptory strikes and the twelve jurors and one alternate had been sworn and
empaneled as the jury, appellants moved to quash the original panel on the ground that appellants
were denied the opportunity to select a jury from a panel composed of a fair cross-section of the
community as guaranteed by the Texas Constitution.  See Tex. Const. art. I, §§ 3, 3a, 13, 15, 19,
29 & art. V, § 10.  The trial court denied the motion.
	The jury returned a verdict that was unfavorable to the Martinez family, except as
to the emotional-distress damages awarded to Armando.  The trial court rendered judgment on the
jury verdict.
	Armando and Hortencia bring a limited appeal in a single point of error. 
Appellants complain that the trial court erred in denying the Martinez family's motion to quash
the panel.


DISCUSSION AND HOLDING
	Appellants do not allege that there was a defect in the selection of the array, that
the "for cause" strikes were improperly granted, or that biased jurors served on the jury.  Instead,
they claim that a systemic bias denied them a jury that fairly represented a cross-section of the
community.  Appellants argue that because minorities are more likely to have disputes with the
police, they are more likely to be struck "for cause" from serving on juries in cases in which a
police organization is a party, resulting in minority under-representation on juries in such cases.
	The rules of civil procedure provide for two objections to the makeup of the jury. 
First, a party may challenge the array.  Tex. R. Civ. P. 221.  Generally, this objection alleges
a defect in the juror selection and summons procedure or a violation of the jury-wheel statute. 
See Tex. Gov't Code Ann. §§ 62.001-.021 (West 1988 & Supp. 1993).  If the movant is
successful, the entire array is dismissed and a new array summoned.  Tex. R. Civ. P. 222.  The
challenge must be presented in a written motion supported by affidavit to the particular judge in
charge of the local jury system.  Tex. R. Civ. P. 221; State ex rel. Hightower v. Smith, 671
S.W.2d 32, 36 (Tex. 1984); Texas Employers' Ins. Ass'n v. Burge, 610 S.W.2d 524, 525 (Tex.
Civ. App.--Beaumont 1980, writ ref'd n.r.e.); see also Tex. Gov't Code Ann. §§  62.001-.021
(West 1988 & Supp. 1993).
	Second, a party may demand a "shuffle" of the panel.  Tex. R. Civ. P. 223.  The
result is that the panel is randomly rearranged with the possibility that potential jurors at the end
of the list may move up and be more likely to serve on the jury.  This demand must be made
before voir dire and is limited to one shuffle in a case.  Tex. R. Civ. P. 223.
	In the immediate cause, it is undisputed that appellants did not make either of these
objections.  Appellants objected only after the parties completed voir dire, made their peremptory
strikes, and the jury had been sworn and empaneled.  We believe that this objection was not
timely.
	We distinguish the immediate case from the situation in Mendoza v. Ranger
Insurance Co., 753 S.W.2d 779 (Tex. App.--Fort Worth 1988, writ denied).  In Mendoza, the jury
array was largely made up of jurors who had been previously excused from service.  The array
summoned for a jury trial during school vacation included an inordinate number of teachers.  The
local practice did not provide for juror information cards.  Instead, some basic information was
obtained by preliminary voir dire.  The lack of randomness on the panel was therefore not
apparent until the time to challenge the array had passed.  Appellants complained of a defect in
the method used to select the array.  The court of appeals held that, under these facts, a motion
for mistrial made at the end of voir dire properly preserved error.
	In the immediate case, however, appellants had information of the racial and ethnic
makeup of the array and the panel before voir dire and did not object.  Appellants were provided
with a list of the panel members several days before voir dire and were able to observe and
question the panel at voir dire.  Appellants admit that the array was properly selected and that the
panel contained a fair minority representation.
	We find the immediate situation to be very different from that of the Batson line
of cases holding peremptory strikes unconstitutional when made with no motive other than the
purposeful exclusion of some cognizable class.  See, e.g., Batson v. Kentucky, 476 U.S. 79
(1986).  In this case, the strikes in question were made for cause for the sole reason of admitted
bias on the part of the potential jurors.
	Appellants rely on federal case law holding that demonstration of a threshold
percentage disparity between minorities serving on juries and minorities in the general population
establishes a prima facie case of denial of the right to a jury composed of a fair cross-section of
the community.  See, e.g., Duren v. Missouri, 439 U.S. 357 (1979); Casteneda v. Partida, 430
U.S. 482 (1977).  However, no evidence exists in the record by which this Court could measure
the alleged disparity.  The only evidence presented to the trial court of the percentage of Mexican-Americans residing in Travis County and serving on the panel in this case were bare assertions
in appellants' motion for new trial.  Appellants have failed to bring forth in the record any census
data, tax rolls, jury-service records, or other data to demonstrate the alleged disparity.  By failing
to show evidence of the percentages of the minority group residing in the community or serving
on the panel, appellants have not established a prima facie case under Duren. See Weaver v.
State, 823 S.W.2d 371, 373-74 (Tex. App.--Dallas 1992, pet. ref'd).
	For the above reasons, we conclude that the trial court did not err in denying
appellants' motion to quash the panel.


CONCLUSION
	 Accordingly, we overrule appellants' point of error and affirm the trial court's
judgment.


  

					Jimmy Carroll, Chief Justice

[Before Chief Justice Carroll, Justices Jones and Kidd]

Affirmed

Filed:  April 7, 1993

[Publish]
1.        We will use the following terminology in identifying the progression of steps in the
jury-selection process:  "the array"--the group drawn from the jury wheel and summoned
for jury service; "the panel"--the individuals assigned before voir dire to a particular case;
and "the jury"--the twelve or six individuals selected after voir dire to serve as the trier-of-fact in a particular case.
