# Maldonado v. State

> Court of Criminal Appeals of Texas · June 30, 1999 · 998 S.W.2d 239

URL: https://www.frixlaw.com/law-library/cases/9642004

## Case

- **Full name:** Virgilio MALDONADO, Appellant, v. the STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 30, 1999
- **Citations:** 998 S.W.2d 239; 1999 Tex. Crim. App. LEXIS 87; 1999 WL 438988
- **Precedential status:** Published
- **Opinion:** Concurrence by Price
- **Judges:** Meyers, Price, Johnson, Womack, McCormick, Mansfield, Keller
- **Cited by:** 127 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9642004

## How later opinions describe it (automated extraction)

- holding that a variance was not fatal where the indictment charged defendant with capital murder of Cruz C. Saucedo and evidence at trial showed the victim was known as Primo Correa Saucedo, but evidence also showed the victim was known by name charged in the indictment
- holding the trial court did not err in refusing to suppress a recorded statement when the evidence supported the conclusion that the recording was accurate and had not been impermissibly altered
- discussing revitalization of Moore v. State, 542 S.W.2d 664 (Tex. Crim. App. 1976) which held that challenges for cause could be properly asserted on grounds not specifically enumerated in Article 35.16, where the challenge “is based on facts that show that the prospective jur…
- affirming admission of video that contained gaps of a few seconds in the conversation because the evidence supported the conclusion that the anomalies occurred accidentally and obscured nothing of value in the dialogue
- stating that court’s discretion to strike jurors sua sponte was not limited to grounds listed in Tex. Code Crim. Proc. Art. 35.16

## Opinion text

PRICE, J.,
delivered a concurring opinion in which JOHNSON, J. joined.
I join the opinion of the Court but write separately regarding point of error eight. Nothing in the literal text of Article 35.16 indicates that the legislature intended the list of challenges for cause be an exclusive one. See Boykin v. State, 818 S.W.2d 782, 785-86 (Tex.Crim.App.1991). Trial courts have the discretionary power to dismiss prospective jurors at any time for reasons not explicitly articulated in Article 35.16, whether it be on motion of the parties, request of the juror himself, or sua sponte. Some examples of circumstances where such an action is necessary include jurors who seem to be too preoccupied with then-own personal fives to perform their duties as a juror conscientiously, jurors whose intelligence or vocabulary is so limited that they cannot understand the routine words and concepts used in the trial, and jurors who are too nervous and distraught at the proposition of jury service to do a good job. Trial courts must have the authority to exercise their judgment when considering these as well as any other facts which would render a prospective juror incapable or unfit to serve. With these comments, I join the opinion of the Court.
WOMACK, J., filed a concurring opinion, in which McCORMICK, P.J., and MANSFIELD and KELLER, JJ„ joined.
I do not join the discussion of the “two opposing fines of cases” on challenges for cause, ante at 248 n. 14. There was an incorrect fine of cases which had created from whole cloth the notion that there were grounds of challenge for cause that were not in Article 35.16 of the Code of *252 Criminal Procedure. This line of cases began with Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976), and was necessary to the decision of only two or three other cases: See Allridge v. State, 850 S.W.2d 471, 484 (Tex.Cr.App.1991); Rogers v. State, 774 S.W.2d 247, 253-54 (Tex.Cr.App.1989) (semble); Chambers v. State, 568 S.W.2d 313, 320 (Tex.Cr.App.1978). 1
This short line was overruled in Butler v. State, 830 S.W.2d 125, 130 (Tex.Cr.App.1992) (per cmiam), when the Court said “some past cases ... are disavowed.” The past cases were identified in a footnote only as, “For example, Moore and its progeny.” Id. at 130 n. 10. This was a careless way to overrule a line of cases, since the citation services can scarcely be expected to identify the progeny of Moore which have been disavowed. And the researcher who relies on disavowed cases without tracing their genealogy back to Moore will not know from the citation services that reliance is being placed on bastard progeny. But that was the state of the law books when the Court decided Mason v. State, 905 S.W.2d 570 (Tex.Cr.App.1995).
In Mason the State’s challenge for cause to a juror who “would be unable to fully concentrate on the case if he was required to miss too much school” was upheld on the basis of two of Moore’s progeny. See Mason v. State, 905 S.W.2d at 577 (citing Allridge v. State, supra, and Nichols v. State, supra n.*). I do not agree with the Court’s assessment that, “Curiously, Moore was revived after Butler, supra by Mason v. State,” ante at 248 n. 14. I think that the Mason Court correctly denied a point of error, mistakenly citing two of the progeny of Moore which had been overruled in a careless way.
The Mason Court should have denied the point of error by holding, as the Butler Court did, that a trial judge may use the authority of Code of Criminal Procedure article 35.03 to excuse a potential juror who is found to be too distracted by personal duties to carry out the duty of a juror. Accord, Kemp v. State, 846 S.W.2d 289, 293 (Tex.Cr.App.1992) (trial courts have “inherent authority under Article 35.03,” Code of Criminal Procedure, which gives them “broad discretion in excusing prospective jurors on any proper basis, either with or without the prompting of counsel”). If we did so today, while explicitly overruling Mason and the progeny of Moore which I have cited above, supra at 252 and n. 1, we would dispel, rather than compound, the confusion that our decisions in Butler and Mason have created.
I join the judgment of the Court and the remainder of its opinion.
. The Moore holding was repeated as dictum at another point in Chambers; see 568 S.W.2d at 323 .
The Moore holding also was repeated as dicta in other opinions, but it was not necessary to the decisions. See Burks v. State, 876 S.W.2d 877, 896 (Tex.Cr.App.1994) (non-statutory challenge properly overruled); Teague v. State, 864 S.W.2d 505, 512 (Tex.Cr.App.1993) (point was not preserved); Harris v. State, 784 S.W.2d 5, 28 (Tex.Cr.App.1989) (non-statutory challenge properly overruled); Sosa v. State, 769 S.W.2d 909, 917-18 (Tex.Cr.App.1989) (juror properly excused on statutory ground); Nichols v. State, 754 S.W.2d 185 (Tex.Cr.App.1988) (harm was not shown in any event); Henley v. State, 644 S.W.2d 950, 957 (Tex.App.—Corpus Christi 1982) (non-statutory challenge properly overruled).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9642004. Public record. Not legal advice.