# Delrio v. State

> Court of Criminal Appeals of Texas · November 4, 1992 · 840 S.W.2d 443

URL: https://www.frixlaw.com/law-library/cases/9665423

## Case

- **Full name:** Heriberto DELRIO, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** November 4, 1992
- **Citations:** 840 S.W.2d 443; 1992 Tex. Crim. App. LEXIS 205; 1992 WL 315611
- **Precedential status:** Published
- **Opinion:** Dissent by Baird
- **Judges:** Baird
- **Cited by:** 290 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/9665423

## How later opinions describe it (automated extraction)

- holding that trial counsel’s failure to challenge a venire member who had voiced his lack of impartiality did not constitute ineffective assistance when the record was silent as to the reasons for defense counsel’s decision and the court could speculate as to why defense couns…
- holding that trial counsel = s failure to challenge a venire member who voiced lack of impartiality did not constitute ineffective assistance
- holding there was no deficient performance on silent record when counsel did not challenge or strike a juror who was an ex-narcotics officer and admitted during voir dire that he could not be impartial
- holding no deficient performance on silent record when counsel did not challenge or strike a juror who was an ex-narcotics officer and admitted during voir dire that he could not be impartial
- holding no deficient performance on a silent record when counsel did not challenge a juror 16 who was an ex-narcotics officer and admitted during voir dire that he could not be impartial

## Opinion text

BAIRD, Judge,
dissenting.
“I respectfully dissent because the aggressive and assertive majority turns the jury system upside down.” Jones v. State, 815 S.W.2d 667, 681 (Tex.Cr.App.1991) (White, J., dissenting). In the majority opinion, the constitutional guarantees of a fair and impartial jury under the Sixth Amendment to the United States Constitution and Art. I, § 10 of the Texas Constitution have taken a back seat to judicial speculation and result-oriented jurisprudence. In a few short pages the majority has torn down a foundation that required many years to build.
An impartial jury and a fair trial is what the state demands, and in her demands she is no respecter of persons. She has one law for all, — the high and the low, the rich and the poor, the friendless, the most debased and hardened of criminals. The greater and more horrible the crime charged the greater and more imperative the necessity that these safeguards — these landmarks of the law — should be constantly looked to and kept steadily in view, lest, perchance, they should be forgotten, denied, or ignored in those natural promptings of a manly, it may be, and certainly a human, instinct, which, standing appalled and outraged at the very contemplation of such heinous iniquity, condemned the suspected criminal in advance, and mainly, perhaps, through the magnitude and turpitude of his imputed crime.
*448 Steagald v. State, 22 Tex.App. 464 , 8 S.W. 771 , 781 (1886).
The Sixth Amendment and Art. I, § 10 demand no less today. The constitutional guarantee of an impartial jury is the cornerstone of our system of justice. The possibility that even one juror in appellant’s case was biased or prejudiced offends our sense of justice and we have so held.
... The reflection should be a perfect one, not a distorted one or imperfect one. One crack in the mirror, one ripple upon the surface of the pool, is sufficient to destroy the trueness of the reflection. One improper juror destroys the integrity of the verdict.
Sorrell v. State, 74 Tex.Crim. 505 , 169 S.W. 299, 303 (Tex.Cr.App.1914).
In its rush to re-evaluate and reverse the judgement of the court of appeals, the majority tramples the Sixth Amendment as well as Art. I, § 10 of the Texas Constitution. There is no doubt that veniremember Martinez could not be a fair and impartial juror. As the Court of Appeals correctly noted:
... We can conceive of no reasonable defense strategy that would justify allowing such an individual to sit on a jury to determine the legal fate of one’s client in a criminal trial. Permitting such an occurrence undermines in advance the perceived essence of a jury’s purpose to render a fair and impartial verdict..
Delrio v. State, 820 S.W.2d 29, 32 (Tex.App.— Houston [14th Dist.] 1991).
Allowing Martinez to sit in judgment of appellant reflects poorly not only on defense counsel but the trial judge as well. 1 By holding that a defendant my waive a fair and impartial jury, we violate the very oath we took to preserve, protect, and defend the Constitution and laws of the United States and of this State. Tex.Const. art. 16, § 1(a). 2
In its haste, the majority further ignores our judicial policy concerning the re-evaluation of underlying facts after a review of the facts by the court of appeals, a policy we adopted just last term in Arcila v. State, 834 S.W.2d 357, 360-61 (Tex.Cr.App.1992). In Arcila we held:
... Like this Court, the courts of appeals are duty-bound to uphold the constitution and laws of this State and of the United States. So long as it appears that they have discharged that duty conscientiously by impartial application of pertinent legal doctrine and fair consideration of the evidence, it is our duty in turn to respect their judgments. Our principal role as a court of last resort is the caretaker of Texas law, not the arbiter of individual applications. When different versions of the law, including unsettled applications of the law to significantly novel fact situations, compete for control of an issue, it is finally the job of this Court to identify and elaborate which is to control thereafter. But, ex *449 cept under compelling circumstances, ultimate responsibility for the resolution of factual disputes lies elsewhere.
* * * * * *
Thus, the only basis for complaint here is that the Dallas Court of Appeals somehow managed to get it wrong. Even if our own decisions might have been different on the question presented, we cannot accept the proposition that an appellate court’s judgment ought to be subject to reversal on such basis, at least when the evidence is sufficient to support it.
Arcila, 834 S.W.2d 357, 360-61 (Tex.Cr.App.1992).
I dissented in Arcila because it has long been my feeling that this Court is constitutionally mandated to be more than the “caretaker of Texas law.” If we have the duty to uphold the Constitution and laws of this State and nation, that duty encompasses reversing the decision of the courts of appeals when we find either a factual misrepresentation or a misinterpretation of legal precedent. However, I also adhere to the doctrine of stare decisis. See, Ex Parte Porter, 827 S.W.2d 324 , 327 (Tex.Cr.App.1992) (Baird, J., dissenting).
During the more than one hundred years of its tenure this Court, like every conscientious appellate court, has endeavored to follow the ancient doctrine of ‘stare decisis et non quieta mov-eré ’ — to adhere to precedents, and not to unsettle things which are established— and to reconcile and harmonize divergent applications of legal principle that inevitably are made from time to time.
Sattiewhite v. State, 600 S.W.2d 277, 280 (Tex.Cr.App.1980) (op. on Reh’g.) (Historical footnote omitted).
Stare Decisis demands that we respect our previous decision in Arcila . However, the majority completely ignores Arcila and reverses the judgment of the Court of Appeals simply because it disagrees with the Court of Appeals. There can be no doubt that the Court of Appeals discharged its duties with an “impartial application of pertinent legal doctrine. Arcila, at 360. Indeed, the Court of Appeals correctly cited Strickland v. Washington as the controlling authority and provided an in-depth discussion of its application in appellant’s case. See, Delrio, 820 S.W.2d at 32 .
The majority opinion spends less than two paragraphs discussing the “pertinent legal doctrine,” while devoting pages to a discussion of the underlying facts and rank speculation of counsel’s trial strategy. 3 However, the majority fails to provide a compelling reason to depart from our holding in Arcila . Today, my worst fears have been realized; the majority clearly plans to use Arcila as nothing more than a tool to deny the parties’ meaningful appellate review. This is indeed a sad day, not only for the United States and the Texas Constitutions, but also for the Court of Criminal Appeals and its proud heritage.
Because the majority violates the constitutional guarantees to a fair and impartial jury provided under the Sixth Amendment and Art. I, § 10, and further ignores our own precedent, I dissent.
. Last term we considered whether or not the trial judge has the authority to excuse a juror sua sponte. Butler v. State, 830 S.W.2d 125 (Tex.Cr.App.1992). We held:
When conducting voir dire, the trial judge has the discretion, upon a reason sufficient to satisfy the court, to excuse an otherwise qualified venireperson from jury service.
******
We continued:
In order to provide the most efficient jury empanelment system possible, the judge must retain the ability to render an excuse in order to rectify problems created by such changed circumstances as, e.g., a venireperson’s sudden realization that an excuse applies to her or to new and unforeseen developments which would render venirepersons incapable of fairly considering the facts before them.
To hold otherwise would unnecessarily hamstring trial judges in the exercise of their duties, and would hinder the selection of a fair and impartial jury.
Id., at 130-131 (emphasis in original). Had the trial judge herein "exercise[d]” his duties, this issue may never have arisen.
. Tex.Const. art. 16, § 1(a) provides:
Members of the Legislature, and all other elected officers, before they enter upon the duties of their offices, shall take the following Oath or Affirmation:
"I,_, do solemnly swear (or affirm), that I will faithfully execute the duties of the office of_of the State of Texas, and will to the best of my ability preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.”
. The majority admits as much by declaring, "[o]f course we do not and cannot know whether counsel for appellant in fact utilized this or any other particular strategy.” Delrio, 840 S.W.2d at 447.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9665423. Public record. Not legal advice.