# Trevino v. State

> Court of Criminal Appeals of Texas · October 14, 1992 · 841 S.W.2d 385

URL: https://www.frixlaw.com/law-library/cases/9774934

## Case

- **Full name:** Joe Mario TREVINO, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** October 14, 1992
- **Citations:** 841 S.W.2d 385; 1992 Tex. Crim. App. LEXIS 191; 1992 WL 278697
- **Precedential status:** Published
- **Opinion:** Concurrence by Clinton
- **Judges:** Campbell, Clinton, Maloney, Benavides, McCormick, White
- **Cited by:** 9 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/9774934

## Opinion text

CLINTON, Judge,
concurring.
This dust up is, alas, symptomatic of the contentious nature of too many communities of interest in our society. When the issue is alleged discrimination on account of race, their adversarial tendencies become especially acute as tensions mount between degrees of respective sensibilities. See, e.g., Seubert v. State, 787 S.W.2d 68 (Tex.Cr.App.1990).
In the instant cause on original submission this Court examined and rather summarily ruled on just such an issue that is still the bone of contention here, viz:
“In his second point of error, appellant asserts that he was deprived of a jury comprising a fair cross-section of the community as guaranteed to him by the Sixth and Fourteenth Amendments in that the State struck all black jurors from the jury panel. This issue has been decided adversely to appellant in Holland v. Illinois, 493 U.S. 474 , 110 S.Ct. 803 , 107 L.Ed.2d 905 (1990). In Holland , the Court decided that ‘[a] prohibition upon the exclusion of cognizable groups through peremptory challenges has no conceivable basis in the text of the Sixth Amendment, is without support in our prior decisions, and would undermine rather than further the constitutional guarantee of an impartial jury.’ 493 U.S. at 478 , 110 S.Ct. at 806 . [note 3, stating in pertinent part that appellant “does not rely upon the Equal Protection Clause See Seubert v. State, 787 S.W.2d 68 (Tex.Cr.App.1990). See also [citations omitted]. We overrule appellant’s second ground of error.”
Trevino, at 598. 1
In determining to grant certiorari the Supreme Court first critically and fairly reviewed circumstances surrounding the opinion on original submission and the opinion itself. That done it then determined that appellant had not only “presented his equal protection claim to the trial court,” but also had “preserved his equal protec *388 tion claim before [this Court].” Finally the Supreme Court rejected the State’s contention that appellant’s “equal protection claim had no legal support.” Accordingly, without setting the cause for submission on briefs and oral argument, it simultaneously granted certiorari, reversed the judgment of this Court and remanded the cause “for further proceedings not inconsistent with this opinion.” Trevino v. Texas, 503 U.S. -, 112 S.Ct. 1547 , 118 L.Ed.2d 193 (1992). 2
With those observations and because it is clear enough to me that the Supreme Court merely found we failed to consider all of its germane decisions then extant, and did not gratuitously undertake to override any local rule of procedure for preserving error, I join the opinion and order of this Court.
. All emphasis throughout this opinion is mine unless otherwise indicated.
. Appellant filed his appellate brief in this Court December 15, 1985; inter alia, he noted the pendency of Batson v. Kentucky in the Supreme Court after oral argument had been heard. From that predicate the Supreme Court went on to point out that Batson was decided April 30, 1986; that in its brief thereafter filed, the State discussed but distinguished Batson in that "a criminal defendant does not state an equal protection claim unless he alleges that the excluded jurors are members of the same protected class as he,” a view the Supreme Court noted it rejected in Powers v. Ohio, 499 U.S. -, 111 S.Ct. 1364 , 113 L.Ed.2d 411 , decided April 1, 1991. Turning to deal with this Court, the Supreme Court further observed:
"The Court of Criminal Appeals of Texas, sitting en banc, affirmed the petitioner’s conviction and sentence on June 12, 1991, and denied petitioner’s motion for rehearing on September 18, 1991. The opinion of the Court of Criminal Appeals does not set forth the reason for the delay of over five years between the submission of briefs and the resolution of the appeal. With respect to peremptory challenge question, the court stated that the argument was foreclosed by Holland v. Illinois .... In a footnote, the Court of Criminal Appeals stated that the argument in petitioner’s brief did not amount to reliance on the Equal Protection Clause.... The court's opinion cited neither Powers nor Ford v. Georgia, 498 U.S. 411 , 111 S.Ct, 850 , 112 L.Ed.2d 935 , which we decided on February 19, 1991. We now grant certiorari.”
Id., at-, 112 S.Ct., at 1549 , 118 L.Ed.2d, at ' 199.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9774934. Public record. Not legal advice.