Opposition Brief — Gustavo Tijerina Sandoval, Petitioner v. Texas

Supreme Court briefJan 4, 2024

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No. 23-5618

IN THE

Supreme Court of the United States

____________________

GUSTAVO TIJERINA SANDOVAL,

Petitioner,

vs.

STATE OF TEXAS,

Respondent.

____________________

On Petition for a Writ of Certiorari to the

Texas Court of Criminal Appeals

____________________

RESPONDENT’S BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

____________________

ANNETTE C. HINOJOSA

County and District Attorney

Willacy County, Texas

JEFFERSON CLENDENIN

Assistant District Attorney

Willacy County, Texas

Counsel of Record

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 936-1400

jay.clendenin@oag.texas.gov

Counsel for Respondent

QUESTIONS PRESENTED

1.

Should the Court grant certiorari to review Petitioner’s first

question presented where he waived his due process claim by not raising it in

the court below, the question presented does not comport with his argument,

and the split he asserts is illusory and inapposite?

2.

Should the Court grant certiorari to review Petitioner’s second

question presented where it raises nothing more than a request for error

correction, and Petitioner fails to show the lower court’s denial of his claim was

contrary to this Court’s precedent?

i

LIST OF PROCEEDINGS

State v. Tijerina Sandoval, 2015-DCR-2443-C (197th Dist. Ct. Cameron Co.,

Tex. Aug. 18, 2018)

Tijerina Sandoval v. State, 665 S.W.3d 496 (Tex. Crim. App. 2022), reh’g denied

(May 17, 2023)

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ................................................................................. i

LIST OF PROCEEDINGS ................................................................................... ii

TABLE OF CONTENTS ..................................................................................... iii

TABLE OF AUTHORITIES ............................................................................... iv

BRIEF IN OPPOSITION......................................................................................1

STATEMENT OF JURISDICTION .....................................................................2

STATEMENT OF THE CASE .............................................................................2

I.

Facts from Trial ..........................................................................................2

II.

The Lower Court’s Opinion Regarding Sandoval’s Voir Dire Claim .......4

III.

Procedural History ......................................................................................6

REASONS FOR DENYING THE WRIT .............................................................6

I.

II.

Certiorari Should Be Denied on the First Question Presented ...............6

A.

Relevant law ......................................................................................7

B.

Sandoval did not raise a due process claim in the court below ......9

C.

Sandoval’s petition is a poor vehicle for his first question because

it does not comport with his argument, and it rests on a matter of

state law ......................................................................................... 12

D.

The lower court’s opinion does not reflect a per se rule, and the

split Sandoval alleges is inapposite and illusory ......................... 17

Certiorari Should Be Denied on Sandoval’s Second Question Presented

................................................................................................................... 24

CONCLUSION ................................................................................................... 31

iii

TABLE OF AUTHORITIES

Cases

Page

Black v. State, 26 S.W.3d 895 (Tex. Crim. App. 2000)..................................... 11

Buntion v. State, 482 S.W.3d 58 (Tex. Crim. App. 2016)....................................9

Butler v. State, 830 S.W.2d 125 (Tex. Crim. App. 1992)................................ 8, 9

Chafin v. Chafin, 568 U.S. 165 (2013) .............................................................. 24

Cohen v. Senkowski, 290 F.3d 485 (2d Cir. 2002) ............................................ 19

Crutsinger v. State, 206 S.W.3d 607 (Tex. Crim. App. 2006) ...................... 8, 11

Davis v. State, 767 So.2d 986 (Miss. 2000) ................................................. 21, 22

Faretta v. California, 422 U.S. 806 (1975) ....................................................... 26

Flast v. Cohen, 392 U.S. 83 (1968) .................................................................... 24

Gomez v. United States, 490 U.S. 858 (1989) ................................................... 28

Hormel v. Helvering, 312 U.S. 552 (1941) .................................................. 10, 11

Jasper v. State, 61 S.W.3d 413 (Tex. Crim. App. 2001) ................... 7, 11, 12, 14

Lewis v. United States, 146 U.S. 370 (1892)............................................... 12, 13

People v. Lucious, 269 A.D2d 766 (N.Y. App. Div. 2000) ................................. 29

People v. Rogers, 141 P.3d 135 (Cal. 2006) ................................................. 16, 22

People v. Virgil, 253 P.3d 553 (Cal. 2011) ........................................................ 22

Porter v. State, 424 A.2d 371 (Md. 1981) .................................................... 29, 30

Preiser v. Newkirk, 422 U.S. 395 (1975) ........................................................... 24

Rushen v. Spain, 464 U.S. 114 (1983) .................................................. 16, 26, 30

iv

Sims v. Apfel, 530 U.S. 103 (2000) .................................................................... 10

Snyder v. Massachusetts, 291 U.S. 97 (1934) ............................................ passim

State v. Cosme, 943 A.2d 810 (N.H. 2008) ........................................................ 19

State v. Dangcil, 256 A.3d 1016 (N.J. 2021) ..................................................... 21

State v. Irby, 246 P.3d 796 (Wash. 2011) .............................................. 13, 18, 23

State v. Neal, 487 S.E.2d 734 (N.C. 1997) ........................................................ 22

State v. Wilson, 918 P.2d 826 (Or. 1996) .................................................... 18, 23

Suniga v. State, No. AP-77,041, 2019 WL 1051548 (Tex. Crim. App. Mar. 6,

2019) ................................................................................................................... 20

Tennessee v. Lane, 541 U.S. 509 (2004) ............................................................ 26

United States v. Bordallo, 857 F.2d 519 (9th Cir. 1988) ............... 17, 18, 23, 29

United States v. Gagnon, 470 U.S. 522 (1985) ..................................... 13, 25, 26

United States v. Greer, 285 F.3d 158 (2d Cir. 2002) ........................................ 19

Yee v. City of Escondido, Cal., 503 U.S. 519 (1992) ......................................... 10

Statutes and Rules

28 U.S.C. § 1257(a) ...............................................................................................2

Sup. Ct. R. 10 ........................................................................................... 6, 24, 25

Tex. Code Crim. Proc. art. 33.03 ...................................................... 7, 10, 11, 14

Tex. Code Crim. Proc. art. 34.01 ..........................................................................7

Tex. Code Crim. Proc. art. 35.03 ..........................................................................7

Tex. Code Crim. Proc. art. 35.04 ................................................................... 7, 25

v

Tex. Code Crim. Proc. art. 35.16 ........................................................... 7, 8, 9, 25

Tex. Code Crim. Proc. art. 35.19 ................................................................... 8, 25

Tex. Code Crim. Proc. art. 35.21 ..........................................................................8

Tex. Gov’t Code § 62.102...................................................................... 7, 8, 25, 30

Tex. Gov’t Code § 62.103............................................................................ 7, 8, 25

Tex. Gov’t Code § 62.1031 ......................................................................... 7, 8, 25

Tex. Gov’t Code § 62.104............................................................................ 7, 8, 25

Tex. Gov’t Code § 62.1041 ......................................................................... 7, 8, 25

Tex. Gov’t Code § 62.105.......................................................................................7

Tex. Gov’t Code § 62.106...................................................................... 7, 8, 25, 30

Tex. Gov’t Code § 62.110.......................................................................................8

vi

BRIEF IN OPPOSITION

Petitioner Gustavo Tijerina Sandoval was convicted and sentenced to

death for the murder of Javier Vega, Jr. (Harvey). In the court below, Sandoval

raised a claim alleging his Sixth Amendment right to confrontation and his

rights under state law were violated because the trial court called special

venires and conducted preliminary hearings on prospective jurors’ statutory

qualifications, excuses, and exemptions outside his presence. The Texas Court

of Criminal Appeals (CCA) rejected the claim because the preliminary inquiry

into a prospective juror’s “general qualifications, excuses, and exemptions is

not the sort of proceeding that needs to be conducted in the defendant’s

presence.” Pet’r’s App. A at 11. Relying on this Court’s opinion in Snyder v.

Massachusetts, 291 U.S. 97, 106 (1934), overruled in part on other grounds by

Malloy v. Hogan, 378 U.S. 1 (1964), Sandoval asks this Court to grant certiorari

to determine, for purposes of assessing whether a defendant’s right to due

process is violated, when empanelment of a jury begins and to set forth factors

a court must consider in making that determination. Pet. Cert. 13, 19. But

Sandoval does not present a compelling reason justifying certiorari review, and

his case is an inapt vehicle for the question he presents.

First, Sandoval neither cited Snyder in his briefing in the court below

nor raised a due process claim in relation to his complaint that he was absent

during the trial court’s preliminary statutory inquiry. He has, therefore,

1

waived the first question he raises in his petition. Second, the issue of when

empanelment of a jury begins is, at bottom, one of state law, not due process.

Consequently, Sandoval’s first question presented does not comport with his

argument that the CCA incorrectly found his presence at the trial court’s

preliminary inquiry did not have a reasonably substantial relationship to his

opportunity to defend himself. Third, the CCA’s opinion does not reflect a

categorical rule like Sandoval suggests it does. Sandoval’s petition is,

therefore, an inappropriate vehicle for addressing the first question he

presents. For the same reasons, Sandoval’s petition does not present an

important issue of federal law for this Court to resolve and, relatedly, he fails

to identify a relevant split that requires resolution by this Court. Lastly, his

second question presented is nothing more than a request for error correction,

and he fails to show the CCA’s decision was inconsistent with this Court’s

precedent. Consequently, Sandoval’s petition should be denied.

STATEMENT OF JURISDICTION

The Court has jurisdiction under 28 U.S.C. § 1257(a).

STATEMENT OF THE CASE

I.

Facts from Trial

On Sunday, August 3, 2014, Harvey Vega, a border patrol

agent, and his family and one of his son’s friends went to

Harvey’s parents’ house for a barbeque. Afterwards, Harvey and

some of the others left to go target shooting. Later, they all decided

to meet up again to go fishing. Harvey’s parents drove their own

2

truck. Harvey’s father, Javier, always carried his gun for

protection when he went somewhere, so along with their fishing

gear, he brought his .40 caliber Sig Sauer, a .22 pistol, and a .22

rifle.

As the two vehicles traveled to the fishing spot, they passed

a red SUV parked on the side of the road with two men inside.

Harvey’s mother noticed that the SUV was parked on an upslope.

That was unusual to her because, “No one ever parks on the

upslope.” Harvey’s father got a good look at the two men, and his

mother made eye contact with them. Both parents waved at the

two men as they passed. The SUV started following them. After

the Vega family arrived at and set up the fishing site, the SUV

drove to within 30 yards but then reversed and drove away.

Ten or fifteen minutes later, the SUV returned. Two men

jumped out and began firing their guns at the Vega family. The

driver shot Harvey point blank and the passenger shot at the

parents. According to the parents, the driver shouted “Al suelo,

cabron,” meaning “Down to the ground, motherfucker.” After

[Sandoval] shot Harvey, the passenger shot Javier. Javier fell to

the ground, went for his gun, and shot at the passenger. When that

happened, the two men got back into the SUV and drove away,

with the passenger hanging on to the door. Harvey’s parents

identified [Sandoval] as the driver and testified that [Sandoval]

shot Harvey. The friend, Aric Garcia, testified that the driver shot

Harvey. Harvey’s wife testified that [Sandoval] was one of the men

in the SUV. Harvey died, never regaining consciousness.

Around 2:00 the next morning, the SUV broke down and

[Sandoval] and his passenger were forced to walk. They went to a

house and asked for help. The woman who lived there let them in,

but she alerted border patrol agents after seeing a helicopter

search light.

[Sandoval] and his passenger were arrested. Swabs from

testing [Sandoval’s] hands tested positive for gunshot residue. A

.45 caliber Taurus pistol was later found near the scene of

[Sandoval’s] arrest. Four .45 caliber cartridge casings found at the

crime scene and the bullet that killed Harvey were consistent with

having been fired from the Taurus. Bloodstains on the driver’s side

3

seatbelt and the passenger seat backrest of the red SUV matched

[Sandoval’s] DNA.

At the punishment stage of trial, the State introduced

evidence that [Sandoval] participated in three other robberies

against people fishing in the area. During these robberies, the

victims were ordered at gunpoint to get on the ground. One victim

was struck twice in the head with the butt of a gun. [Sandoval] also

had convictions for misdemeanor assault, unlawful carrying of a

weapon, and driving while intoxicated, as well as two convictions

for possession of marijuana. And [Sandoval] had a federal

conviction for illegal reentry after deportation.

[Sandoval] presented the following mitigating evidence at

punishment: The woman who lived in the house where [Sandoval]

was arrested testified that [Sandoval] did not mistreat, harm, or

act disrespectfully to her or her four children while he was there

and that she did not feel threatened by him. The evidence also

showed that [Sandoval] surrendered peacefully to border patrol

agents when they found him. And a director from the Texas

Department of Criminal Justice testified that she saw nothing in

[Sandoval’s] records that indicated he was part of a security threat

group, though she testified on cross-examination that he had

previously been placed in administrative segregation.

Pet’r’s App. A at 2–4 (footnotes omitted).

II.

The Lower Court’s Opinion Regarding Sandoval’s Voir Dire

Claim

Prospective jurors can be summoned for jury service in

general and sent to a central jury room, to be sorted into panels

later, or they can be summoned to a “special venire,” one that is

already assigned to a particular case. [Sandoval’s] jury was

selected from three special venires called on three different days.

The court reporter’s record indicates that [Sandoval] and his

attorney were not present when the trial court conducted a general

inquiry into the prospective jurors’ qualifications, excuses, and

exemptions but arrived afterwards. We initially perceived a

possible conflict in the record because the docket sheets seemed to

suggest that [Sandoval] and his attorney were present on these

4

occasions. And in a hearing on [Sandoval’s] motion for mistrial, the

trial court suggested that [Sandoval] and his attorney were

present:

Okay. Hold on. What I told you was, we had to qualify

them just to make . . . certain that, you know, they

were—they were a U.S. citizen and a citizen of Texas,

presiding in . . . Just pre-qualifications. And I told you

you didn’t need to be there. In fact, you were there,

though.

Pursuant to our authority to have an inaccuracy in the

record corrected, we remanded the case to the trial court to

determine if there was an inaccuracy in either the clerk’s record or

the reporter’s record. On remand, the trial court concluded that

neither record was inaccurate. Rather, the clerk’s record simply

denoted the date and general time period for when [Sandoval] and

counsel were present but did not pinpoint specific times they were

present. The trial court found that [Sandoval’s] attorney

observed—but did not participate in—a portion of the first

qualifications, excuses, and exemptions proceeding. The trial court

also found that the court’s questioning of prospective jurors at this

time was sotto voce, at a whisper, and that [Sandoval’s] attorney

could not hear what was being said. The trial court further found

the court reporter’s record to “be the most reliable source for what

occurred” and that [Sandoval], his attorney, and the interpreter

were not present during the second and third hearings on

qualifications, excuses, and exemptions. The trial court also found

that all three hearings were held off the record.

....

[T]he reasons we have given for permitting a judge to

conduct this type of proceeding outside the presence of the

defendant and his attorney apply with equal force to special

venires. We have explained that the “process of hearing and

granting juror exemptions and excuses of this type lack the

traditional adversarial elements of most voir-dire proceedings.”

Further, the “right to be excused from the venire belongs to each

of its individual members, not to the defendant.” And it seems

nonsensical to suggest that a perfectly permissible procedure

5

becomes a constitutional violation based on how or where the

prospective juror is first summoned. Whether the prospective juror

is assigned first to the central jury room or to a special venire, a

preliminary inquiry into his general qualifications, excuses, and

exemptions is not the sort of proceeding that needs to be conducted

in the defendant’s presence. And nothing in the statute

authorizing a special venire for a capital case requires that an

Article 35.03 proceeding be held in the presence of the defendant.

Pet’r’s App. A at 7–11 (footnotes omitted).

III.

Procedural History

Sandoval was convicted and sentenced to death for the murder of Harvey

Vega, which was committed during the course of committing or attempting to

commit robbery. Pet’r’s App. A at 1–2. The CCA upheld Sandoval’s conviction

and death sentence on direct appeal. Pet’r’s App. A at 81. Sandoval filed a

motion for rehearing, which the CCA denied on May 17, 2023. Pet’r’s App. B.

Sandoval then filed a petition for a writ of certiorari. The instant Brief in

Opposition follows.

REASONS FOR DENYING THE WRIT

I.

Certiorari Should Be Denied on the First Question Presented.

Sandoval asks this Court to grant review to set forth a test for

determining when jury empanelment begins, triggering the due process right

to be present. Pet. Cert. ii. But Sandoval provides no compelling reason to

expend limited judicial resources on this case. See Sup. Ct. R. 10(a)–(c). Indeed,

Sandoval has waived the issue he presents because he did not raise a due

6

process claim in the court below, his first question presented is premised on a

matter of state law, the question presented does not comport with his

argument, and the split he alleges is inapposite and illusory. Consequently, his

petition should be denied.

A.

Relevant law

The Texas Code of Criminal Procedure establishes the procedure to be

followed in empaneling a petit jury. Tex. Code Crim. Proc. art. 33–35. Article

33.03 requires that a defendant in a felony prosecution “be personally present

at the trial[.]” See Jasper v. State, 61 S.W.3d 413, 423 (Tex. Crim. App. 2001).

Prospective jurors can be summoned for service and sent to a central jury room

to be sorted into panels later, i.e., a general assembly. Pet’r’s App. A at 7 (citing

Tex. Code Crim. Proc. art. 33.09). In a capital case, a court may summon

prospective jurors as a special venire assigned to that particular case. Tex.

Code Crim. Proc. art. 34.01; see Pet’r’s App. A at 7.

State law also provides ways prospective jurors may be dismissed by the

court. See generally Tex. Code Crim. Proc. art. 35. They may be excused for

sufficient reason under article 35.03, by claiming an exemption from jury

service under article 35.04, because they are disqualified from jury service

under article 35.16, or because they are absolutely disqualified under article

35.19. See Tex. Gov’t Code §§ 62.102–106.

7

Article 35.03 states that a trial court shall “hear and determine excuses

offered for not serving as a juror, including any claim of an exemption or a lack

of qualification, and if the court considers the excuse sufficient, the court shall

discharge the prospective juror[.]” See Tex. Gov’t Code § 62.110(a). Article

35.03 does not enumerate bases for excusing a potential juror. It “gives a trial

court broad discretion to excuse prospective jurors for good reason.” Crutsinger

v. State, 206 S.W.3d 607, 608 (Tex. Crim. App. 2006). “Unless the excuse given

is economic in nature, neither appellant nor his attorney is required to be

present.” Id. An excusal under article 35.03 of a prospective juror is subject to

review for an abuse of discretion. Butler v. State, 830 S.W.2d 125, 130–32 (Tex.

Crim. App. 1992) (en banc).

The Texas Government Code provides general qualifications for and

exemptions from jury service. Tex. Gov’t Code §§ 62.102–1041, § 62.106. Article

35.16 of the Texas Code of Criminal Procedure also provides a list of

qualifications that a prospective juror must meet or otherwise be subject to a

challenge for cause. 1 Article 35.19 specifies that three of the qualifications in

article 35.16 are absolute and that jurors disqualified under those criteria may

“A challenge for cause is an objection made to a particular juror, alleging some

fact which renders the juror incapable or unfit to serve on the jury. A challenge for

cause may be made by either the state or the defense for any one of the [enumerated]

reasons.” Tex. Code Crim. Proc. art. 35.16(a). Under Texas Code of Criminal

Procedure article 35.21, “[t]he court is the judge, after proper examination, of the

qualifications of a juror, and shall decide all challenges without delay and without

argument thereupon.”

1

8

not serve even “though both parties may consent.” 2 The list of qualifications in

article 35.16 is a complete list of challenges for cause. Butler, 830 S.W.2d at

130. A challenge for cause under article 35.16 against an unqualified

prospective juror is “qualitatively different” than the excusal of a prospective

juror for personal reasons under article 35.03. Butler, 830 S.W.3d at 130.

“Where a party wishes to challenge a potential juror for bias, that party must

demonstrate, through questioning, that the potential juror lacks impartiality.”

Buntion v. State, 482 S.W.3d 58, 84 (Tex. Crim. App. 2016).

B.

Sandoval did not raise a due process claim in the court

below.

Relying on the right to due process, Sandoval asks this Court to grant

certiorari to set forth a test to determine when jury empanelment begins. Pet.

Cert. ii. But he did not raise a due process claim in the court below. Br. of

Appellant 129–36, Sandoval v. State, No. AP-77,018 (Tex. Crim. App. Dec. 15,

2020) (Br.). Rather, Sandoval only raised claims relating to his absence during

the trial court’s preliminary inquiry at voir dire under the Confrontation

Clause and Texas statutes. Id. Moreover, he did not argue in the court below

that he had a right to be present during the trial court’s preliminary inquiry

because the process of empaneling his jury had begun at that time. Id.

Those three absolute qualifications provide that a prospective cannot be insane

or have been convicted of, indicted for, or otherwise legally accused of misdemeanor

theft or a felony. Tex. Code Crim. Proc. art. 35.16(a)(2)–(4).

2

9

Consequently, Sandoval has waived his due process claim. See Yee v. City of

Escondido, Cal., 503 U.S. 519, 533 (1992) (“The Yees did not include a due

process claim in their complaint. . . . In reviewing the judgments of state courts

under the jurisdictional grant of 28 U.S.C. § 1257, the Court has, with very

rare exceptions, refused to consider petitioners’ claims that were not raised or

addressed below.”); Sims v. Apfel, 530 U.S. 103, 109 (2000) (“‘Ordinarily an

appellate court does not give consideration to issues not raised below.’”

(quoting Hormel v. Helvering, 312 U.S. 552, 556 (1941))).

Concededly, the CCA considered whether the trial court’s preliminary

inquiry “had a reasonably substantial relation to” Sandoval’s opportunity to

defend himself. Pet’r’s App. A at 8. But Sandoval did not argue—and the CCA

did not consider—whether he had a right to be present as a general matter

during the trial court’s preliminary inquiry because the jury empanelment

process had begun. Br. at 129–36. Nor did he argue in the lower court that any

of the trial court’s interactions with prospective jurors outside his presence had

any relation to his ability to defend himself. Id.

Moreover, the lower court’s focus and the bulk of its discussion regarding

Sandoval’s claim centered on state law and the court’s precedent applying it,

Pet’r’s App. A at 8–11, likely because Sandoval’s briefing did not allege he was

denied the right to due process. Specifically, the CCA’s analysis centered on

Texas Code of Criminal Procedure article 33.03, which requires that a

10

defendant in a felony case be “personally present at the trial[.]” The court

discussed at length its precedent applying article 33.03 to determine whether

“the trial” began during the trial court’s preliminary inquiry into prospective

jurors’ qualifications, excuses, and exemptions. Pet’r’s App. at 8–11. That

precedent did not rely on the right to due process. See Jasper, 61 S.W.3d at

422–24 (assuming for purposes of article 33.03 and the right to confrontation

that the defendant’s trial began at the time of the qualifications, excuses, and

exemptions inquiry because the venire was already assigned to the defendant’s

case, but finding a lack of harm); Crutsinger, 206 S.W.3d at 608–09 (applying

Tex. Code Crim. Proc. art. 35.03); Black v. State, 26 S.W.3d 895, 899–900 (Tex.

Crim. App. 2000) (en banc) (addressing claim under state law and alleging

ineffective assistance of counsel).

Sandoval’s failure to squarely present to the lower court the issue he

wants this Court to expend its limited resources to resolve counsels against

granting such a request. This Court has stated that a “rigid and undeviating”

application of waiver may be inappropriate where, inter alia, doing so would

not “promote the ends of justice.” Hormel, 312 U.S. at 557. But as discussed

below, the ends of justice do not require the Court to condone Sandoval’s failure

to raise in the court below the question he raises in his petition because he does

not raise an important issue of federal law for this Court to resolve, and the

lower court appropriately rejected his claim. There is simply nothing

11

exceptional about Sandoval’s case that justifies reaching an issue that was not

properly raised in the court below. 3 Therefore, Sandoval’s petition should be

denied.

C.

Sandoval’s petition is a poor vehicle for his first question

because it does not comport with his argument, and it rests

on a matter of state law.

Sandoval’s first question presented asks this Court to set forth a test for

determining “when the work of impaneling the jury begins,” which he argues

triggers the due process right to be present. Pet. Cert. ii, 16 (citing Lewis v.

United States, 146 U.S. 370, 373 (1892), abrogated on other grounds by Diaz v.

United States, 223 U.S. 442 (1912)). But his argument does not comport with

the question presented.

As discussed above, Sandoval did not raise a claim in the court below

that his absence during the trial court’s preliminary inquiry violated his right

to due process because that inquiry was part of the jury empanelment process.

Moreover, the bulk of Sandoval’s argument in his petition rests not on the

question implicated by Lewis of when the work of jury empanelment begins

Sandoval may argue the State’s concession of error in the court below renders

this case exceptional. Not so. The concession was premised on the CCA’s opinion in

Jasper, which as noted above, did not involve a due process claim but rather the issue

of whether for purposes of state law the defendant’s trial began during the

preliminary qualifications, excuses, and exemptions inquiry since the venire was

assigned to the defendant’s case. Br. for State 28, Sandoval v. State, No. AP-77,081

(Tex. Crim. App. Dec. 20, 2021) (“As all three panels were designated special jury

panels, the Appellant had the unwaivable right to be present during the proceedings.”

(citing Jasper, 61 S.W.3d at 422–23)).

3

12

but on whether the CCA correctly applied the Snyder standard to determine

the trial court’s preliminary inquiry did not have a reasonably substantial

relation to his opportunity to defend himself. Compare United States v.

Gagnon, 470 U.S. 522, 526 (1985) (explaining the rule from Snyder as requiring

a defendant’s presence when it has a reasonably substantial relation to his

opportunity to defend against the charge), with Lewis, 146 U.S. at 373 (stating

that for purposes of the requirement that a defendant be present at a felony

trial, “the trial commences at least from the time when the work of impaneling

the jury begins”). 4 Indeed, while Sandoval urges this Court to grant review to

set forth a test to determine when jury empanelment begins, Pet. Cert. 13, this

Court has already provided the test for the relevant due process question:

whether the defendant was absent during a proceeding that had a reasonably

substantial relation to his opportunity to defend himself, Gagnon, 470 U.S. at

526.

Sandoval fails to show there exists, as his first question presented

suggests, an absolute right to be present at trial once the jury empanelment

process begins. Indeed, as Sandoval concedes, the right is not absolute. Pet.

Cert. 14; see State v. Irby, 246 P.3d 796, 800 (Wash. 2011) (en banc). It is

implicated only where the defendant’s presence has a reasonably substantial

This Court noted in Snyder that its statements in Lewis “on the subject of the

presence of a defendant was dictum, and no more.” Snyder, 291 U.S. at 118 n.2.

4

13

relation to his opportunity to defend himself. Snyder, 291 U.S. at 105–06. As

discussed below, the opinions on which Sandoval relies to urge a split

regarding when jury empanelment begins do not revolve around that question.

The bulk of those opinions, instead, apply the Snyder standard. So Sandoval’s

argument simply does not comport with his first question presented and is

therefore an inapt vehicle to address that question.

Moreover, underneath Sandoval’s purported due process claim is a pure

matter of state law. As discussed above, Sandoval’s failure to properly raise a

due process claim in the court below deprived that court of the opportunity to

fully address it and likely led the court to focus on state law. See Pet’r’s App. A

at 10–11. Specifically, the CCA addressed whether Sandoval’s trial “had

begun” for purposes of Texas Code of Criminal Procedure article 33.03 at the

time of the trial court’s preliminary inquiry because the prospective jurors

were summoned as a special venire rather than a general assembly. Id.

(quoting Jasper, 61 S.W.3d at 423); see Tex. Code Crim. Proc. art. 33.03 (“In all

prosecutions for felonies, the defendant must be personally present at the

trial[.]”). In that way, Sandoval’s petition conflates the issue of when jury

empanelment begins with the state law issue under article 33.03 of when “the

trial” begins. At bottom, Sandoval’s first question raises only the issue of

whether the CCA erred in determining Sandoval’s trial had not begun for

purposes of article 33.03 at the time of the trial court’s preliminary inquiry.

14

His petition is, therefore, an inapt vehicle to resolve any broader matter of

constitutional law.

Sandoval argues this case is a good vehicle for this Court to determine

when jury empanelment begins because the prospective jurors in his case were

assigned specifically to his case, the prospective jurors may have disclosed to

the trial court information regarding their ability to be impartial in Sandoval’s

case, and the trial court had latitude to excuse prospective jurors. Pet. Cert.

19–23. But he fails to show this Court can resolve the question he presents.

First, Sandoval’s vehicle argument is nothing but an argument that the

CCA should have found he had a right to be present during the trial court’s

preliminary inquiry because the prospective jurors were called as a special

venire. Pet. Cert. 19–23. That does not make this case a good vehicle for the

first question presented; it is a request for error correction.

Second, Sandoval argues the Court should use this case to lay down a

rule setting forth factors to consider in determining when jury empanelment

begins. Pet. Cert. 19. But as discussed above, his argument does not comport

with his first question presented, which renders his case an inapt vehicle for

resolving it. Moreover, rather than providing factors courts should consider in

making an inquiry under Snyder, Sandoval instead seeks a categorical rule

that a defendant has a due process right to be present during all interactions

15

between a trial court and prospective jurors if they were summoned specifically

for the defendant’s case. Pet. Cert. 19–23.

Importantly, Sandoval provides no reason for the rule he seeks other

than speculation that prospective jurors may disclose information outside a

defendant’s presence about their ability to serve in a particular case. Pet. Cert.

22–23. But Sandoval’s speculation does not warrant this Court’s attention or

the sweeping rule he seeks. See Rushen v. Spain, 464 U.S. 114, 118–19 (1983)

(“There is scarcely a lengthy trial in which one or more jurors do not have

occasion to speak to the trial judge about something, whether it relates to a

matter of personal comfort or to some aspect of the trial. The lower federal

courts’ conclusion that an unrecorded ex parte communication between trial

judge and juror can never be harmless error ignores these day-to-day realities

of courtroom life and undermines society’s interest in the administration of

criminal justice.”); People v. Rogers, 141 P.3d 135, 158 (Cal. 2006) (declining to

engage in speculation that prospective jurors’ in-chambers discussions with

the trial court involved matters of personal bias). Indeed, the trial court in this

case admonished a prospective juror that his or her case-specific reasons not to

serve as a juror were not an appropriate topic for the court’s preliminary

inquiry but should instead be raised during individual voir dire. 50 RR 20 (“I

understand, but that’s something that you’re going to have to—when we do the

individual voir dire, that’s when you bring that up.” (emphasis added)). The

16

trial court’s comment belies the notion that this case is an appropriate vehicle

to expand Snyder into a categorical rule, and the comment belies the notion

that Court’s intervention is necessary to set forth a broad constitutional test.

Sandoval’s petition should be denied.

D.

The lower court’s opinion does not reflect a per se rule, and

the split Sandoval alleges is inapposite and illusory.

Sandoval argues this Court should grant his petition to resolve a split

regarding how to determine when jury empanelment begins. Pet. Cert. 13. But

the split he alleges is illusory, and his petition does not present an issue worth

of this Court’s attention.

Sandoval argues the lower court’s opinion reflects a rigid per se rule that

a defendant does not have the right to be present when the trial court conducts

its preliminary inquiry into veniremembers’ qualifications, excuses, and

exemptions. Pet. Cert. 24. He argues the CCA’s ruling conflicts with the

approach of several courts that conduct a fact inquiry to determine when the

jury empanelment process begins. Pet. Cert. 18. But, again, his argument

about the CCA’s application of Snyder does not comport with his first question

presented regarding jury empanelment. Moreover, the CCA’s opinion does not

represent a relevant split.

For instance, in United States v. Bordallo, the prospective jurors knew

which case they would hear if chosen to serve as a juror. 857 F.2d 519, 522 (9th

17

Cir. 1988). The defendant was not present when the trial judge excused

prospective jurors specifically because they were friends or supporters of the

defendant. Id. The Ninth Circuit held the trial court’s excusal of the

prospective jurors outside the defendant’s presence was error because “some

were excused due to factors related to [the defendant’s] particular case.” Id. at

523.

Similarly, in State v. Irby, the trial judge and attorneys for the

prosecution and defense discussed over email excusing several potential jurors.

246 P.3d at 800. The judge and attorneys discussed dismissing several

potential jurors because they had parents who had been murdered. 5 Id. at 801.

The Supreme Court of Washington held those discussions, which occurred

without the defendant, were part of voir dire because they tested the

prospective jurors’ ability to try the defendant’s specific case and the

prospective jurors were dismissed for cause. Id. at 801. Therefore, the

defendant’s absence from those discussions violated his right to due process.

Id.

In State v. Wilson, the defendant was absent during the trial court’s

preliminary orientation when the prospective jurors were asked whether they

knew the parties or witnesses and completed a questionnaire. 918 P.2d 826,

5

798.

The defendant in Irby was charged with first degree murder. Irby, 246 P.3d at

18

830 (Or. 1996). The Supreme Court of Oregon found the defendant’s absence

was error under state law but harmless. Id. at 831–33. The court addressed

whether the defendant was harmed as a matter of federal law, but the court

did not hold there was error as a matter of federal law. Id.

In State v. Cosme, the defendant complained of the trial court’s

unrecorded orientation of prospective jurors. 943 A.2d 810, 812–13 (N.H. 2008).

The Supreme Court of New Hampshire held the defendant’s absence during

juror orientation did not deprive him of any constitutional right because the

prospective jurors were not informed in those proceedings of any specific facts

or witnesses nor asked about their potential prejudices. Id. at 814.

On the other hand, Sandoval argues the Second Circuit’s opinion in

United States v. Greer, 285 F.3d 158 (2d Cir. 2002), represents a per se

approach to determining when jury empanelment begins. Pet. at 17. The

Second Circuit in Greer distinguished the Ninth Circuit’s opinion in Bordallo,

finding the complained-of procedure during which the defendant was absent

was administrative and routine. 285 F.3d at 168. But it did not reach that

conclusion by refusing to consider the nature of the interaction between the

court and prospective jurors. Id. Notably, in a later case, the Second Circuit

conducted a fact inquiry and found “pre-screening of prospective jurors” was a

material stage of trial because the court was inquiring into the prospective

jurors’ knowledge of the defendant’s case. Cohen v. Senkowski, 290 F.3d 485,

19

487, 489–90 (2d Cir. 2002). This plainly undercuts Sandoval’s suggestion that

the Second Circuit blindly applies a categorical test regarding when jury

empanelment begins and that a deep, irreconcilable conflict exists between the

Second Circuit and other courts.

Nothing in the CCA’s opinion is inconsistent with the courts Sandoval

says conduct fact-intensive inquiries to determine when jury empanelment

begins. See Pet. Cert. 18. Most importantly, nothing in the CCA’s opinion

indicates it would pretermit consideration of a claim that a trial court excused

prospective jurors in a special venire during a preliminary inquiry for reasons

that extended beyond that inquiry, e.g., a prospective juror’s bias or ability to

render a particular verdict in a capital case. Pet’r’s App. A at 11; cf. Suniga v.

State, No. AP-77,041, 2019 WL 1051548, at *11–12 (Tex. Crim. App. Mar. 6,

2019) (holding that trial court’s ex parte inquiry with juror during voir dire

regarding her potential bias violated the defendant’s right to be present at his

trial but finding a lack of harm). Sandoval did not present a claim to the CCA

alleging the trial court’s inquiry was improper because it went beyond the

topics that are covered by an inquiry into prospective jurors’ qualifications,

excuses and exemptions. Instead, Sandoval argued that his presence was

required under state law merely because the trial court called the prospective

jurors as a special venire rather than as a general assembly. Br. at 132–33. So

the CCA did not apply or set forth a broad per se rule as Sandoval suggests

20

that would preclude the court from considering whether a trial court’s inquiry

into the qualifications, excuses, and exemptions improperly extended to

matters that required the defendant’s presence. Therefore, Sandoval fails to

identify a relevant split that this Court could resolve in this case, which

renders this case an inapt vehicle for Sandoval’s first question. Relatedly, any

opinion regarding the first question presented would be purely advisory

because the CCA’s decision did not rest on a bright-line rule regarding jury

empanelment. See Pet’r’s App. A at 11.

Further, the opinions of the courts Sandoval alleges apply a per se rule

regarding jury empanelment are consistent with those of the courts Sandoval

argues apply a fact-based approach. For example, in State v. Dangcil, the

Supreme Court of New Jersey held the defendant’s absence during the pre-voir

dire disqualification, excusal, and deferral stage was not error, finding the

defendant failed to show his participation was necessary when the trial court

removed prospective jurors “based on substantiated hardships, scheduling

conflicts, and similar considerations.” 256 A.3d 1016, 1029 (N.J. 2021). It does

not appear the appellate court was presented with a claim that the trial court’s

questioning of prospective jurors extended to questions regarding their fitness

to serve in the defendant’s trial. And in Davis v. State, the state court held a

trial judge’s questions on statutory qualifications does not require a

defendant’s presence. 767 So.2d 986, 992 (Miss. 2000). While the court

21

indicated its holding was a “bright line,” it also recognized that the questioning

of prospective jurors regarding a defendant’s case requires the defendant’s

presence. Id. (“Regardless of whether it is called ‘impaneling the jury’ or ‘voir

dire’ or otherwise, the critical stage of jury selection begins at the time when

the trial judge and counsel for the parties begin questioning the qualified

prospective jurors about such matters . . . specific to the particular case such

as opposition to the death penalty[.]”).

The opinions cited by Sandoval simply do not reflect disagreement as to

how to determine when a defendant’s right to be present during voir dire

attaches. Sandoval merely points to courts that were presented with different

fact patterns. He does not identify any court that pretermits consideration of a

claim alleging a trial court’s questioning of prospective jurors during an initial

qualification procedure exceeded the appropriate bounds. 6

Relatedly, Sandoval argues this Court should grant review to lay out

factors courts must consider in determining when jury empanelment begins,

but the cases Sandoval relies on for support did not rely on any such factorSee also People v. Virgil, 253 P.3d 553, 577 (Cal. 2011) (holding defendant’s

absence from sidebar conferences during which trial court ruled on for-cause

challenges did not violate his constitutional right to be present); Rogers, 141 P.3d at

158 (holding defendant’s rights were not violated due to his absence during 133

hardship excusals that were unrecorded where some jurors provided answers to a

questionnaire regarding their potential bias); State v. Neal, 487 S.E.2d 734, 738–39

(N.C. 1997) (holding defendant’s absence during bench conferences on hardship

excusals did not violate his right to be present).

6

22

based test. 7 Rather, the courts addressed whether particular interactions with

prospective jurors involved removal of jurors for case-specific reasons. See Irby,

246 P.3d at 801; Wilson, 918 P.2d at 830–31; Bordallo, 857 F.2d at 522–23. The

opinions on which Sandoval relies show a consistent ability to determine

whether an interaction with a prospective juror was such that the defendant’s

presence was necessary to test his or her ability to serve. Sandoval does not

show any need for this Court to set forth a particular test for all courts to use—

irrespective of the nuances of the States’ varying voir dire procedures—to

determine when jury empanelment begins.

Moreover, as discussed above, the CCA’s opinion centered on state law,

likely because Sandoval’s claim did. Pet’r’s App. at 11. The CCA applied its

precedent regarding a defendant’s right under state law to be present during

“the trial” and held a defendant’s absence during a trial court’s preliminary

inquiry is not error regardless of whether the prospective jurors are called as

a general assembly or special venire. Id. This is a matter of state law and does

not raise “an important federal question,” let alone present a split regarding

such a question. Because of that, resolution of Sandoval’s first question

Sandoval’s argument that the CCA committed reversible error by holding he

did not have a right to be present during the trial court’s preliminary inquiry belies

his argument that the CCA should have conduct a factor-based assessment. That is,

Sandoval would have this Court determine as a per se matter that capital defendants

in Texas have an absolute right to be present during a trial court’s hearing on

prospective jurors’ qualifications, excuses, and exemptions if they were summoned as

a special venire. See Pet. Cert. 25–29.

7

23

presented would have no bearing on the outcome of his case. See Chafin v.

Chafin, 568 U.S. 165, 172 (2013) (“Federal courts may not decide questions

that cannot affect the rights of litigants in the case before them or give opinions

advising what the law would be upon a hypothetical set of facts.” (quotation

marks and citation omitted)); Preiser v. Newkirk, 422 U.S. 395, 401 (1975); see

also Flast v. Cohen, 392 U.S. 83, 95 (1968) (no justiciable controversy is

presented “when the parties are asking for an advisory opinion”).

As discussed above, Sandoval’s petition presents neither a pure matter

of federal law nor a split that requires this Court’s attention. Therefore, his

petition should be denied.

II.

Certiorari Should Be Denied on Sandoval’s Second Question

Presented.

Sandoval’s second question presented asks this Court to grant review to

correct what he believes was an erroneous application of a properly stated rule

of law. Pet. Cert. ii. But this Court rarely grants certiorari for such reasons.

Sup. Ct. R. 10. Nonetheless, the lower court’s decision was correct and is

consistent with this Court’s precedent. Therefore, Sandoval’s petition should

be denied.

Sandoval argues the lower court erred in holding he did not have a right

to be present during the trial court’s preliminary inquiry of prospective jurors

regarding their statutory qualifications, exemptions, and excuses. Pet. Cert.

24

25–29. He speculates that, because the prospective jurors were called

specifically for his case, he could have learned during that process whether

they were willing and able to serve as a juror in his case. Id. at 25–27. But his

speculation does not show error.

First, Sandoval does not identify any precedent from this Court that

conflicts with the CCA’s opinion. Id. at 25–29. This, alone, is reason enough to

deny his petition. Sup. Ct. R. 10(c). Moreover, while Sandoval alleges the trial

court inappropriately excused several prospective jurors for reasons that were

insufficient under state law, he fails to show or adequately allege that the trial

court’s qualification of the jury was reasonably related to his opportunity to

defend himself against the capital murder charge.8

As the CCA stated, a “defendant has a due process right to be present

‘whenever his presence has a relation, reasonably substantial, to the fulness of

his opportunity to defend against the charge.’” Pet’r’s App. A at 8 (quoting

Gagnon, 470 U.S. at 526). This Court has stated a defendant’s presence is not

required if its benefit would be “but a shadow.” Snyder, 291 U.S. at 106–07.

“Due process of law requires that the proceedings shall be fair, but fairness is

During the preliminary inquiry, the trial court asked the prospective jurors,

e.g., whether they were at least eighteen years old or not over seventy years old, a

citizen of Cameron County, Texas, qualified to vote, of sound mind, able to read and

write the English language, and regarding any recent prior jury service, their

criminal history, and their custody of minor children. 27 RR 6–20; 50 RR 12–20; 55

RR 11–16; see Tex. Code Crim. Proc. art. 35.04 (exemptions); Tex. Code Crim. Proc.

art. 35.16, 35.19 (qualifications); Tex. Gov’t Code § 62.102–1041, § 62.106.

8

25

a relative, not an absolute concept. It is fairness with reference to particular

conditions or particular results.” Id. at 116; see Tennessee v. Lane, 541 U.S.

509, 523 (2004) (criminal defendants have “the ‘right to be present at all stages

of the trial where his absence might frustrate the fairness of the proceedings’”

(quoting Faretta v. California, 422 U.S. 806, 819 n.15 (1975)).

In Gagnon, this Court held the defendant’s absence from a hearing in

camera regarding a juror’s ability to be impartial “clear[ly]” did not violate his

constitutional right to be present:

[T]he mere occurrence of an ex parte conversation between a trial

judge and a juror does not constitute a deprivation of any

constitutional right. The defense has no constitutional right to be

present at every interaction between a judge and a juror, nor is

there a constitutional right to have a court reporter transcribe

every such communication.

470 U.S. at 526 (quoting Rushen, 464 U.S. at 125–26 (Stevens, J., concurring

in judgment)); see Rushen, 464 U.S. at 118–19 (“The lower federal courts’

conclusion that an unrecorded ex parte communication between trial judge and

juror can never be harmless error ignores these day-to-day realities of

courtroom life and undermines society’s interest in the administration of

criminal justice.”). The CCA’s holding that Sandoval’s presence was not

required during the trial court’s preliminary inquiry is entirely consistent with

this Court’s precedent.

26

Sandoval essentially argues this Court should hold that a Texas capital

defendant has an absolute right to be present during a trial court’s inquiry into

the qualifications, exemptions, and excuses of prospective jurors if they are

summoned as a special venire. Pet. Cert. 25–29. He argues that, because a

special venire is summoned for a particular defendant’s case, there is a

possibility that prospective jurors will discuss case-specific information with

the trial judge and be excused for reasons related to that information. Id. at

25. But his speculation does not demonstrate that an inquiry into the

qualifications, exemptions, and excuses of prospective jurors in a special venire

is reasonably related to his ability to defend against the capital murder charge.

Most importantly, Sandoval—like all capital murder defendants in

Texas—have the opportunity to inquire into prospective jurors’ potential

biases and other case-specific information during general and individual voir

dire. Indeed, the voir dire record in this case consists of more than twenty

volumes of questioning of prospective jurors by the trial court and the parties

during which numerous prospective jurors were excused by agreement, for

cause, and by peremptory challenge. 9 For instance, Sandoval successfully

challenged for cause a prospective juror who stated he did not believe he could

See generally 28 RR, 29 RR, 31 RR, 32 RR, 35 RR, 36 RR, 37 RR, 38 RR, 39 RR,

40 RR, 41 RR, 42 RR, 43 RR, 44 RR, 45 RR, 46 RR, 47 RR, 48 RR, 49 RR, 51 RR, 52

RR, 53 RR, 54 RR, 56 RR, 57 RR.

9

27

be fair and had a predetermined opinion of Sandoval’s guilt. 29 RR 57–63; see

also 35 RR 57–64 (prospective juror who indicated a predetermined opinion of

Sandoval’s guilt and indicated concern he could not be fair excused for cause);

41 RR 204 (prospective juror who attended the victim’s funeral excused for

cause); 47 RR 57–58 (challenge for cause granted as to prospective juror who

stated he could not vote for a life sentence in a capital case); 56 RR 243–44

(prospective juror who indicated he would automatically vote to impose the

death penalty excused for cause). Based on the information learned during voir

dire, Sandoval raised claims on direct appeal arguing that his jury was biased

due to pretrial exposure to media coverage of his case, Br. at 138–44, and that

the trial court erred in its rulings regarding challenges for cause as to certain

jurors, id. at 144–64. Simply put, the lengthy voir dire process Sandoval

participated in allowed him to enforce his right to a jury free from prejudices

and predisposition regarding the case. See Gomez v. United States, 490 U.S.

858, 873 (1989). Sandoval provides no reason to believe the trial court excused

prospective jurors based on reasons related to his case or prevented him from

uncovering prospective jurors’ biases and prejudices.

Sandoval points to one prospective juror who stated he or she did not feel

comfortable in this case. Pet. Cert. 26 (citing 50 RR 20). But the trial court

appropriately told that prospective juror, “I understand, but that’s something

that you’re going to have to—when we do the individual voir dire, that’s when

28

you bring that up.” 50 RR 20 (emphasis added). Consequently, the record

simply refutes Sandoval’s speculation that the trial court’s preliminary inquiry

of the prospective jurors’ qualifications extended into their case-specific biases

such that he had a due process right to be present. See People v. Lucious, 269

A.D2d 766, 767 (N.Y. App. Div. 2000) (“A defendant’s right to be present is not

violated where the sidebar discussions relate to juror qualifications such as

physical impairments, family obligations or work commitments. On the other

hand, a sidebar interview that concerns a juror’s background, bias or hostility,

or ability to weigh the evidence objectively is a material stage of trial at which

a defendant has a right to be present.” (citations omitted)); Bordallo, 857 F.2d

at 523 (finding defendant’s right to be present violated because he was absent

during a proceeding “more appropriately analogized to voir dire” where some

prospective jurors were excused based on factors related to his case, as opposed

to the ministerial drawing of the prospective juror pool); Porter v. State, 424

A.2d 371, 377 (Md. 1981) (“The time to explore the possibility of bias or

prejudice on such a ground is during the voir dire questioning of the

prospective jurors who were not excused, to determine if any should be

disqualified for cause.”).

Sandoval’s speculation that the trial court may have excused individuals

for reasons related to his case, Pet. Cert. 25, is contradicted by the trial court’s

explicit statement to that prospective juror, 50 RR 20. And Sandoval’s

29

speculation assumes trial courts will act with impunity in excusing prospective

jurors ex parte in a special venire for case-specific reasons. His speculation is

unjustified and is rebutted by the trial court’s statement in his case. 50 RR 20;

see Rushen, 464 U.S. at 118–19 (“emphatically” disagreeing with lower court’s

conclusion that “an unrecorded ex parte communication between trial judge

and juror can never be harmless error”).

Lastly, Sandoval complains that the trial court erred in excusing

prospective jurors who were not disqualified or exempt from service under

state law. Pet. Cert. 27. He fails, however, to show that such disqualifications

and exemptions had any, let alone a reasonably substantial, relation to his

ability to defend himself against the capital murder charge. See Tex. Gov’t

Code § 62.102, § 62.106; see also Porter, 424 A.2d at 376 (“The purpose of the

right to be present, in the context of juror selection, relates solely to jury

impartiality and the disqualification of prospective jurors. It would not further

this purpose to extend the right to communications involving the personal

hardship of a juror to serve.”).

Sandoval’s second question presents nothing but a request for error

correction, which is a plainly insufficient justification for certiorari review.

Moreover, he fails to show the lower court erred in its application of this Court’s

precedent, and he fails to identify any reason amplifying the need for this

Court’s attention. The petition for a writ of certiorari should be denied.

30

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

ANNETTE C. HINOJOSA

County and District Attorney

Willacy County, Texas

s/ Jefferson Clendenin

JEFFERSON CLENDENIN

Assistant District Attorney

Willacy County, Texas

P.O. Box 12548, Capitol Station

Austin, Texas 78711

Tel: (512) 936-1800

Fax: (512) 320-8132

e-mail: jay.clendenin@oag.texas.gov

Counsel for Respondent

31

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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Opposition Brief — Gustavo Tijerina Sandoval, Petitioner v. Texas | Frix