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.