Petition — Flores v. Texas

ines ii i We \

¥ EILED

i NOV 14 4979

Ci PAsiirie RODAK, JR., CLERR

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-760

PEDRO DELAROSA FLORES,

Petitioner,

versus

THE STATE OF TEXAS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

TEXAS COURT OF CRIMINAL APPEALS

MARK SMITH & ASSOCIATES

1220 Broadway, Suite 1820

Lubbock, Texas 79401

Attorney for Petitioners

SCOFIELOS QUALITY PRINTERS, P. O. BOX 53096. N. O., LA. 70153 - 504/822-1611

TABLE OF CONTENTS

Page

SE re 1

oc Winins «ses saswsade's 2

eh 8 2 rr 2

CONSTITUTIONAL PROVISIONS INVOLVED. . .2

a a ae 3

Course of Proceedings and Disposition in

ey cha wes sites sucess 3

Ee 4

REASONS FOR GRANTING THE WRIT ........ 4

dee ia sks bev ecrteccesves 11

He ee Bs) Sr 11

APPENDIX A — Order Denying Petition for

ee eh nw eegs aes es eccencas la

APPENDIX B — Judgment and Probation/

sacs ce ces sscesecece 2a

TABLE OF AUTHORITIES

CASES:

Alexander v. Louisiana, 405 U.S. 625,92 S.Ct.

I 5

Camp v. United States, 413 F.2d 419 (5th Cir.

TT sg seca cee ceees 10

Castaneda v. Partida, 430 U.S. 482, 97 S.Ct.

peace cecees 6,7,8,9

il

TABLE OF AUTHORITIES (Continued)

Page

Duren v. Missouri, 13.0 cnama Me’ Lee

Pee a aio Wik ok dak oo kee eee 7 ,8,9

Hernandez v. Texas, 347 U.S. 475, 74 S.Ct.

ee ee a tl Ne Se 5

Rabinowitz v. United States, 366 F.2d 34 (Sth

ae eS Secale Venn SOs ae ee ot eta a acs 9

United States v. Arlt, 567 F.2d 1295 ............ 10

United States v. Greenberg, 200 F.Supp. 382

ES | Se A ache ne Pe 9

Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643,

EF Gee re EE kev bk wa ce Chdeeekc i vébcn 5

OTHER AUTHORITIES:

Te ee TC Sib ow US leaes Co pase ekdunes 2

United States Constitution, Amendment VI .. 2,3,5

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

PEDRO DELAROSA FLORES,

Petitioner,

versus

THE STATE OF TEXAS,

Respondent.

PETITION FOR A WRIT OF CERTIORARITO THE

TEXAS COURT OF CRIMINAL APPEALS

The Petitioner, Pedro DeLaRosa Flores, prays that a

writ of certiorari issue to review the judgment of the

Texas Court of Criminal Appeals in case number 57,-

763. Pedro DeLaRosa Flores, Appellant v. The State of

Texas, Appellee.

OPINIONS BELOW

The opinions and judgments of the Texas Court of

Criminal Appeals and the 72nd District Court of Lub-

2

bock County, Texas are contained in Appendices A and

B, hereinafter.

JURISDICTION

The jurisdiction of the Supreme Court is invoked

under 28 U.S.C. §1257(3). The decision of the Texas

Court of Criminal Appeals was rendered September

19, 1979 in which a timely Petition for Rehearing was

denied En Banc, and is attached as Appendix A.

QUESTION PRESENTED

Whether Petitioner was denied his right to a fair and

impartial jury because of the jury selection process of

the 72nd District Court of Lubbock County, Texas

which systematically excludes Mexican-Americans

from jury service.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution:

Amendment VI:

“In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and dis-

trict wherein the crime shall have been com-

mitted, which district shall have been pre-

viously ascertained by law, and to be inform-

3

ed of the nature and cause of the accusation; to

be confronted with the witnesses against him;

to have compulsory process for obtaining wit-

nesses in his favor, and to have the Assis-

tance of Counsel for his defense.”

STATEMENT OF THE CASE

Course of Proceedings and

Disposition in Court Below

Petitioner, Pedro DeLaRosa Flores, was charged

with the criminal violation of possession of more than

four ounces of marijuana. An indictment was return-

ed on January 17, 1975. Arraignment was waived on

January 23, 1975. Trial by jury was set for the week of

June 16, 1975.

On June 20, 1977, counsel for petitioner moved to

quash and suppress the jury panel. Said motion was de-

nied and the cause proceeded to trial on June 20, 1977.

Petitioner was found guilty by the jury and the Court

entered a judgment and commitment order of three

years in confinement suspended, with Petitioner to be

on probation for three years.

It is the denial of the motion to suppress and quash

the jury panel that Petitioner asserts in this appeal as

error by the trial court.

4

In an en banc opinion of September 19, 1979 a Panel

of the Texas Court of Criminal Appeals denied the

Petitioner’s Motion for Rehearing. Petitioner asserts

that the Panel erred (in denying the motion for rehear-

ing), as such denial conflicts with prior Supreme Court

decisions.

Statement of Facts

Testimony elicited at trial showed that census

figures for the year 1970 placed the percentage of

Spanish-surnamed individuals at 17.6 percent. Other

testimony, including testimony of an elected official of

the State of Texas (Representative Froy Salinas, Dis-

trict 75B) placed the percentage of Spanish surnames

from school enrollment figures at 32 percent. His testi-

mony established that the percentage of Spanish-

Americans in Lubbock County was increasing.

Appellant asserts that the lists of persons summon-

ed for and serving as Grand Jurors during the relevant

time periods (Defendant’s Exhibit No. Four) show an

unconstitutionally discriminatory pattern of ex-

clusion of Mexican-Americans from the Grand Juries

impaneled in Lubbock County.

REASONS FOR GRANTING THE WRIT

The Honorable Panel of the Texas Court of Criminal

Appeals erred in denying the motion for rehearing of

Petitioner and the 72nd District Court of Lubbock

5

County erred in denying Petitioner’s Motion to Quash

the Jury Panel which was based on Constitutional

grounds that Mexican-Americans were systematically

excluded from jury service.

A citizen accused has guaranteed to him under the

Constitution the most basic right known to our system

of government: “In all criminal prosecutions, the ac-

cused shall enjoy the right to a speedy and public trial,

by an impartial jury ...” U.S. Constitution, Sixth

Amendment (Emphasis Added). A jury drawn from a

system that excludes a class of individuals by reason of

race, especially when the accused is a member of that

class, is not such animpartial jury. Whitus v. Georgia, 385

U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Alexander

v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536

(1972).

Mexican-Americans are members of a class which

has been recognized as “identifiable” for purposes of

determining racial exclusion. Hernandez v. Texas, 347

U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866.

Petitioner, a Mexican-American, moved to quash the

petit jury based upon his constitutional right to an im-

partial jury. Through statistical as well as opinion, rep-

utation, and other proof, he established that a signifi-

cant portion of the population of the Lubbock County,

were Mexican-American. Census figures place the per-

centage at 20.5%. Testimony of witnesses placed it

higher, and demonstrated that the percentage was

rising.

6

Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51

L.Ed.2d 498, establishes the rule to be applied in deter-

mining whether a jury selection procedure passes con-

stitutional muster where race is a factor:

“In order toshow that an equal protection vio-

lation has occurred in the context of grand

jury selection, the defendant must show that

the procedure employed resulted in substan-

tial underrepresentation of his race or of the

identifiable group to which he belongs

ree Once the defendant has shown substantial

underrepresentation of his group, he has made out a

prima facie case of discriminatory purpose, and the

burden then shifts to the State to rebut that

case.” (Emphasis added) Castaneda, supra 430

U.S. at 494, 495.

In the case at bar, defendant has quite clearly shown

such a substantial underrepresentation; yet the state

has utterly failed to rebut the evidence and the prima

facie case.

Castaneda establishes a two-prong basis for determi-

nation of the prima facie case: first, that the group is a

recognizable, distinct class; and second, that the under-

representation be proved over a significant period of

time, by comparison of percentage of the class in-

cluded in the jury selection process. 430 U.S. at 494.

Castaneda establishes another element that may be

proved to support the claim of discriminatory practice:

7

proof of a system not racially neutral. “Finally, as noted

above, a selection procedure that is susceptible of abuse

or is not racially neutral supports the presumption of discrimi-

nation raised by the statistical showing.” (Emphasis added).

Castaneda, supra, 430 U.S. at 494. Herein lies the error of

the Panel in its En Banc Decision: it failed to dis-

tinguish a prima facie showing and presumption of dis-

crimination from the shifting of the burden of proof to

the state. Castaneda does not require a showing of in-

tentional discrimination; the case holds that the pre-

sumption of discrimination has arisen prior to any need

for a showing of intent.

The proof in Castaneda was primarily that of statis-

tics. The Court agreed that these statistics established

a prima facie case of discrimination. In the very next

sentence, the Court stated: “Supporting this conclusion is

the fact that the Texas system of selecting grand jurors

is highly subjective.” (Emphasis added) 430 U.S. at

487. The conclusion of discrimination had already been

made from statistical evidence. The same conclusion

exists in the case at bar. Seven years of grossly dispro-

portionate percentages cannot be ignored. Yet the

Government has attempted to do so.

The Supreme Court has had occasion to write on this

subject in the context of sex discrimination in Duren 0.

Missouri, US. , 47 Law Week 4089 (1979).

That case held a Missouri jury selection system which

allowed women to “opt out” of jury service fatally

defective due to the consistently disproportionate

8

numbers of women on venires. Duren repeats the requi-

site of Castaneda; and yet it adds another method of

proof of discriminatory system. That proof exists in

showing a consistent, continuing exclusion of the class from

the venires. Mr. Justice White, writing for the Court

states:

“(Duren’s) undisputed demonstration that a

large discrepancy occurred not just occasion-

ally but in every weekly venire for a period of

nearly a year manifestly indicates that the

cause of the underrepresentation was system-

atic — that is, inherent in the particular jury-

selection process utilized... The resulting

disproportionate and consistent exclusion of

women from the jury wheel and at the venire

stage was quite obviously due to the system by

which injuries were selected. Petitioner dem-

onstrated that the underrepresentation of

women in the final pool of prospective jurors

was due to the operation of Missouri's exemp-

tion criteria — whether the automatic exemp-

tion for women or other statutory exemp-

tions — as implemented in Jackson County.”

47 Law Week at 4091.

Where Duren proved a disproportion weekly for one

year, Petitioner has proved such exclusion for seven

years.

The exclusion in Duren was systematic; yet the Court

did not make any requirement of intent, as would the

9

Panel's decision in the instant case. On the contrary,

the low percentage of women in Duren probably came

from the ability of the women to “opt out” of the jury

pool. This shows no “intent” on the part of the state;

yet that selection procedure was declared unconsti-

tutional.

Here, the evidence is overwhelming that such a

systematic exclusion exists. Here, the system is the

problem. The Panel is correct in that appellant does not

contend that the District Clerk discriminated in mak-

ing up thejury panels. But, as noted in Castaneda, “some-

times a clear pattern, unexplainable on grounds other

than race, emerges from the effect of the state action

even when the governing legislation appears neutral

on its face.” 430 U.S. at 493. Even though the Mexi-

can-America> community may and even has succeed-

ed in electing a Mexican-American representative to

the state legislature, who testified at trial, such limited

successes are inapplicable to a determination of dis-

crimination under any “ruling party” theory. Castaneda,

supra.

The court in Rabinowitz v. United States, 336 F.2d 34 (Sth

Cir. 1966) incorporated by a footnote a quote from

United States v. Greenberg, 200 F.Supp. 382 (S.D.N.Y.,

1961):

“The test is not whether voter registration

lists are used, exclusively or otherwise, as a

source of qualified jurors. The test is whether

10

or not the use of such lists results in an array

which is a representative cross-section of the

community or from which a recognizable

group or class of qualified citizens is system-

atically excluded.

Further, as the court stated in Camp v. United States,

413 F.2d 419 (Sth Cir. 1969):

“Use of such lists (voter registration) as the

sole source of names for jury duty is constitu-

tionally permissible unless the system results

in the systematic exclusion of a cognizable

group of class of qualified citizens.”

Therefore, the dicta in United States v. Arlt, 567 F.2d 1295

is inapplicable; the system must result in a con-

stitutionally fair and impartial venire and jury.

The system here creates a substantial variance

between the proportion of the Mexican-Americans in

the general population and the proportion appearing in

the jury panels. The state has failed entirely to rebut

the prima facie case of discrimination. The Panel En

Banc decision, if allowed to stand, would substantially

alter the rule as set forth by the Supreme Court; that it

is the state that must provide the accused with an im-

partial jury made up of his peers, and one drawn from

all segments of society, including the race in which he is

included. The state has failed to do this; it has failed to

rebut the presumption of discrimination established by

defendant's evidence.

a> 4

11

CONCLUSION

Petitioner respectfully submits that his Court should

grant his petition for writ of certiorari and review the

decisions of the courts below, and upon hearing re-

verse the decision below.

Respectfully submitted,

MARK SMITH & ASSOCIATES

1220 Broadway, Suite 1820

Lubbock, Texas 79401

Mark Smith

Attorney for Petitioner

CERTIFICATE OF SERVICE

This is to certify that three true and correct copies of

the above and foregoing Petition for Writ of Certiorari

to the Texas Court of Criminal Appeals have this the

day of November, 1979, been placed in the United

States mail, postage prepaid, addressed to Hon. Mark

White, Attorney General of the State of Texas, Courts

Building, Post Office Box 12548, Capitol Station,

Austin, Texas 78711 and one true and correct copy has

been mailed to Hon. John T. Montford, Criminal Dis-

trict Attorney, County Courthouse, 904 Broadway,

Lubbock, Texas 79401.

Mark Smith

la

_ APPENDIX “A”

COURT OF CRIMINAL APPEALS OF TEXAS

CLERK’S OFFICE

Austin, Texas, Sept. 19, 1979

Dear Sir:

I have been instructed to advise that the Court has

this day denied the Appellant’s Motion for Rehearing

En Banc in Cause No. 57,763, PEDRO DELAROSA

FLORES vs. THE STATE OF TEXAS, Appellee.

Sincerely yours,

Thomas Lowe, Clerk

2a

APPENDIX “B”

IN THE 72ND DISTRICT COURT

OF LUBBOCK COUNTY, TEXAS

FEBRUARY TERM, A.D. 1977

THE STATE OF TEXAS

versus NO. 15,618

PEDRO DELAROSA FLORES

Filed Aug. 18, 1977

JUDGMENT

ON the 20th day of June, A.D. 1977, this cause was

called for trial, and the State appeared by a duly

appointed Assistant Criminal District Attorney, and

the Defendant PEDRO DELAROSA FLORES appear-

ed in person, in open Court, his counsel, Mark Smith

(Employed), also being present.

And the said Defendant PEDRO DELAROSA

FLORES having been duly arraigned in open Court,

and having pleaded not guilty to the charge contained

in the Indictment herein, both parties announced ready

for trial; thereupon a jury of good and lawful persons,

to-wit: Donald A. Durham and eleven (11) others were

duly selected, impaneled and sworn, who, having heard

3a

the Indictment read, and the Defendant’s plea of not

guilty thereto, and having heard the evidence sub-

mitted, and having been duly charged by the Court re-

tired in charge of the proper officer to consider of their

verdict, and afterward was brought into open Court by

the proper officer, the Defendant and his counsel being

present, and in due form of law returned into open

Court the following verdict, which was received by the

Court and is here now entered upon the minutes of the

Court, to-wit:

“We, the Jury, find beyond a reasonable doubt that

the defendant is guilty of the offense of possession of a

usable quantity of marihuana, as charged in the indict-

ment.

ls} DONALD A. DURHAM

Foreman”

ON the 21st day of June, A.D. 1977, a finding of

guilty having been returned by the jury and evidence

having been offered by the State and the Defendant as

to the prior criminal record of the Defendant including

his general reputation and his character, and the Court

having heard and considered the evidence offered,

IT IS THEREFORE CONSIDERED, ORDERED

AND ADJUDGED by the Court that the Defendant

PEDRO DELAROSA FLORES is guilty of the offense

of Possession of Marihuana: to-wit more than four (4)

ounces, a Third-Degree Felony, committed on January

2, 1975, as charged in the indictment, as found by the

jury, and that he be punished by confinement in the

4a

Texas State Penitentiary for a term of three (3) years,

and that the State of Texas do have and recover of the

said Defendant PEDRO DELAROSA FLORES allcosts

in this prosecution expended for which execution will

issue, and that the said Defendant PEDRO DELA-

ROSA FLORES be remanded to jail to await the

further order of this Court herein.

And it appearing from the proof and the findings of

the Court that the Defendant has not before beencon-

victed of a felony in this State or another State, it is

ordered and adjudged by the Court that the imposition

of Sentence of the Judgment of conviction in this cause

be suspended and the Defendant, PEDRO DELA-

ROSA FLORES, is hereby placed on Probation for a

period of three (3) years under the terms and condi-

tions of the Adult Probation and Parole Law of the

State of Texas, as amended, upon the following terms

and conditions of Probation:

(a) Commit no offense against the laws of this or

any other State or the United States;

(b) Avoid injurious or vicious habits;

(c) Avoid persons or places of disreputable or

harmful character;

(d) Report to the Probation Officer as directed.

Defendant is paroled to John L. Shropshire,

Adult Probation Officer, or his successors in

office; Defendant shall report this day in per-

son, and thereafter as directed by the Proba-

tion Officer but at least once every month, in

(e)

(f)

(j)

(k)

5a

writing, on or before the Sth day of each month

hereafter, and each of said days ordered to re-

port is a separate condition of this probation;

Permit the Probation Officer to visit him at his

home or elsewhere;

Work faithfully at suitable employment as far

as possible;

Remain within the State of Texas and County

of Lubbock or Lynn County unless the Court

consents in writing to a change of residence;

Support all his dependents;

Report any change of address to the Probation

Office of Lubbock County, Texas, in writing,

within twenty-four (24) hours;

Memorize the terms and conditions of this

probation;

Pay Court Costs to the Adult Probation Of-

ficer of Lubbock County, Texas, or his

successor in office, the sum of $62.00 in three

(3) monthly installments of $20.00 each, ex-

cept the last installment for the sum of $22.00

with each monthly installment being due on

the 5th day of each month beginning on the Sth

day of August, A.D. 1977 and continuing

through the Sth day of October, A.D. 1977; the

payment of each installment is a separate con-

dition of this probation;

(1)

(m)

6a

Pay $10.00 per month commencing on

November 5, A.D. 1977 as a probation fee until

the probation period expires;

Pay (Restitution) (Fine) to the Adult Probation

Officer of Lubbock County, Texas, the sum of

$ in monthly install-

ments ot $ each except the last in-

stallment for thesum of $ witheach

monthly installment being due on the

day of each month beginning on the

day of , A.D.

and continuing through the day of

, A.D. 19

19

/

SIGNED AND ENTERED this the 17th day of

August, A.D. 1977.

Is} ILLEGIBLE

Judge Presiding

STATE OF TEXAS

COUNTY OF LUBBOCK

1, Verna Boyd, District Clerk in and for the County and

State above named, do hereby certify that the within

instrument is a true and correct copy of like instru-

ment now on file in my office.

11th Day of October, 1979.

Verna Boyd, District Clerk

ls) GAYLA MARTIN

Deputy