






Melissa Kay Resendez aka Melissa Kay Davis v. State of Texas















IN THE
TENTH COURT OF APPEALS
 

No. 10-00-188-CR

     MELISSA KAY RESENDEZ
     A/K/A MELISSA KAY DAVIS,
                                                                         Appellant
     v.

     THE STATE OF TEXAS,
                                                                         Appellee
 

From the 54th District Court
McLennan County, Texas
Trial Court # 1999-619-C
                                                                                                                
                                                                                                         
DISSENTING OPINION
                                                                                                                

      The United States Supreme Court has said, “Because of the risk that the factor of race may
enter the criminal justice process, we have engaged in ‛unceasing efforts' to eradicate racial
prejudice from our criminal justice system.”  McCleskey v. Kemp, 481 U.S. 279, 309, 107 S.Ct.
1756, 1776, 95 L.Ed.2d 262 (1987) (citing Batson v. Kentucky, 476 U.S. 79, 85, 106 S.Ct. 1712,
1716, 90 L.Ed.2d 69 (1986)).  We should be engaged in the same endeavor. 
      The right to a trial free of racial prejudice is, in my view, a fundamental, systemic
requirement of the criminal justice system.  See Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim.
App. 1993).  It is thus a category-one right under Marin, not subject to the preservation
requirement of Rule 33 or a harm analysis under Rule 44.  See id. at 280.  
      Although the record does not prove a sinister motive by the State, the fact is that the
prosecutor unnecessarily asked questions that had the potential to appeal to racial prejudice.
Because I view this as a violation of Resendez' fundamental right to a trial free of racial prejudice,
I would reverse the judgment.  Because the majority does not, I respectfully dissent.
 
                                                                         BILL VANCE
                                                                         Justice

Dissenting Opinion delivered and filed June 27, 2001
Publish

al style='text-indent:.5in'>Justice
Reyna, and
Justice
Davis
Motion to
reconsider granted in part
Order issued
and filed January 21, 2009
Do not publish



 

