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Almanza v. State

Court of Appeals of Texas, Tenth District

July 12, 2017

CATHY JO ALMANZA, Appellant
v.
THE STATE OF TEXAS, Appellee

         From the County Court at Law Hill County, Texas Trial Court No. M0290-15.

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins

          OPINION

          TOM GRAY Chief Justice

         Cathy Jo Almanza appeals from a conviction for the offense of driving while intoxicated. Tex. Penal Code Ann. § 49.04 (West 2011). Almanza complains that her Sixth Amendment right to a jury trial was violated because one of the jurors was not the actual juror that was summoned. Because the wrong individual appeared, Almanza contends that the trial court did not have jurisdiction over that juror and the juror had no authority to serve as a juror. In her sole issue, Almanza argues that the judgment is void because only five of the jurors were properly on the jury panel, which is less than the constitutionally-required minimum of six jurors. See U.S. Const. Amend. VI; Ballew v. Georgia, 434 U.S. 223, 245 (1978).

         A summons for jury duty addressed to "Oralia Alvarado" was sent to an address in Hill County. Oralia G. Alvarado and her daughter, Oralia (nmi) Alvarado, both resided at that address. To avoid the confusion that caused the issue which is the subject of this appeal, we will refer to them as "Mother" and "Daughter" as if that is their name, in essence as proper nouns. Daughter appeared for jury duty, believing that she was the person called because no middle initial appeared in the name of the addressee on the juror summons. There was nothing else on the summons to demonstrate which one of them was being summoned. When the names were called at the beginning of jury selection, only the first and last names were called, so the mistake was not discovered prior to or during the trial. Daughter took the various panel and juror oaths, participated in voir dire, and was ultimately selected and served on the six-member panel that found Almanza guilty. When the check for serving on the jury panel was issued to "Oralia G. Alvarado, " Daughter contacted the court. It was then discovered by review of the list of the venire panel prepared by the clerk that the jury summons was intended for Mother, "Oralia Garcia Alvarado, " with her date of birth also included on that list as well.

         Almanza filed a motion for new trial, alleging that her conviction should be set aside because of this alleged error. The trial court heard evidence, including Daughter's testimony, and denied the motion. It was shown both during voir dire and at the motion for new trial hearing that Daughter was not legally disqualified from serving on the panel pursuant to Article 35.16 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 35.16 (West 2006) ("Reasons for challenge for cause").

         Almanza argues that because Daughter was not actually summoned for jury duty, the trial court did not have jurisdiction over Daughter and therefore, Daughter did not have any authority to serve in Almanza's trial as a member of the jury to return a verdict. Because of this, Almanza contends that she was tried before a jury of five persons, which violates her right to a trial by jury pursuant to the Sixth Amendment. The United States Supreme Court has held that in order to satisfy the Sixth Amendment, a jury must consist of at least six jurors in the absence of the agreement of the defendant. See Ballew v. Georgia, 435 U.S. 223, 245 (1978) (panel must consist of six members); Ex parte Garza, 337 S.W.3d 903, 915 (Tex. Crim. App. 2011) (defendant can affirmatively waive requirement of six-member panel).

         Almanza conceded at the motion for new trial hearing that there was no juror misconduct and does not argue that there was any impropriety or undue influence during the proceedings by Daughter in her capacity as a juror. Almanza has not cited to any authority and we have found no authority to support her argument that she was deprived of her right to a fair and impartial jury pursuant to the Sixth Amendment because the trial court did not have jurisdiction over a juror.

         Almanza's sole issue is stated as follows: "Defendant was denied her Sixth Amendment right to a jury trial and, therefore, her conviction and sentence are void as a matter of law." To clarify the issue Almanza states in her brief that "[f]or the record, Appellant is not complaining of the trial court's denial of her motion for new trial. Rather, Appellant's complaint is that she was denied her right to a jury trial." It may be important to note, for our purposes and disposition, that the issue is limited to a complaint under the Sixth Amendment to the United States Constitution and not the Texas Constitution or Texas statutes.

         While much has been written about the right to a jury trial, the voir dire or juror selection process, disqualified jurors, strikes for cause, and juror commitment questions, we have been cited to no authority on point and our research has not yielded any closely analogous cases. In fact, much of the recent case authority on juror selection arises out of the equal protection clause and the use of preemptory challenges to strike constitutionally protected classifications from the jury without a protected-class-neutral reason. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (U.S. 1986).

         The State's argument in response to Almanza's issue is based in part on precisely what Almanza disclaimed as the issue. The State argues, in part, that the trial court did not err in denying Almanza's motion for new trial. As quoted above, Almanza expressly foreclosed this argument by affirmatively stating that was not her complaint. Accordingly the State's effort to focus on the ruling on the motion for new trial is not helpful to the disposition of this appeal.

         The State's only remaining argument is that by not raising the issue until the motion for new trial, Almanza failed to preserve the issue. However, the State does not address the larger issue of whether Almanza was required to preserve the issue before it could be raised on appeal. The Fort Worth Court of Appeals has held that a defendant may raise the issue of whether it is error to allow a disqualified juror to serve on the jury for the first time on appeal. Mayo v. State, 971 S.W.2d 464 (Tex. App.-Fort Worth, 1998). Although the merit of the issue is somewhat different in this appeal, we agree that the traditional preservation requirement does not apply under these facts. Tex.R.App.P. 33.1(a). To be tried by a jury is a category two right under Marin. Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1998). It is categorized as such because it is a right that must be implemented by the trial court unless affirmatively waived. As such, preservation at the trial court is not required. Id. We hold that the issue, as raised by Almanza in this appeal, is properly before the Court.

         Almanza's issue purports to attack the trial court's judgment for lack of jurisdiction. But this is not jurisdiction in the traditional sense. When jurisdiction is attacked in the more-or-less traditional sense the defendant argues that due to some fact or omission the trial court lacked the authority to proceed to judgment over the defendant. Typically there are two types of these "jurisdictional" arguments; subject matter jurisdiction over the particular controversy, or personal jurisdiction over the party. This is not, however, Almanza's argument, at least not directly. Rather, Almanza argues that the trial court lacked jurisdiction over a person that served as a juror.

         The argument is thus very different from those cases like Mayo, in which the juror is statutorily disqualified from serving as a juror. In this proceeding Almanza is arguing the trial court had no jurisdiction over a person that ...


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