Frank Nobles v. the State of Texas

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00151-CR

FRANK NOBLES, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 450th District Court Travis County, Texas Trial Court No. D-1-DC-21-301803, Honorable Brad Urrutia, Presiding

April 29, 2024 CONCURRING OPINION ON REHEARING Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

I concur in the decision to deny rehearing but write to specifically explain why

appellant’s issue regarding the composition of the venire warrants rejection.

While the attack founded upon article 35.07 of the Texas Code of Criminal

Procedure was unpreserved, that founded on the Texas and United States Constitutions

was. Nevertheless, it proved deficient.

Appellant had to prove that: 1) the group alleged to be excluded is a distinctive

group in the community; 2) the representation of the distinctive group in jury venires is not fair and reasonable in relation to the number of such persons in the community; and 3)

the underrepresentation is due to systemic exclusion of the group in the jury process.

Pondexter v. State, 942 S.W.2d 577, 580 (Tex. Crim. App. 1996); Feagins v. State, 142

S.W.3d 532, 535 (Tex. App.—Austin 2009, pet. ref’d). Though not mentioned in this list,

at least one other factor necessitates consideration. It sets the framework within which

we define the distinctive group. That factor is eligibility to serve as a juror. Our Court of

Criminal Appeals indicated as much in Pondexter, as did the Austin Court of Appeals in

Feagins. Both rejected attacks like that by appellant due to the absence of evidence

illustrating the percentage of eligible voters in the county who were within the distinctive

group. See Pondexter, 942 S.W.3d at 580-81 (stating that “[w]hile on its face, ten percent

of the array versus twenty-two percent county-wide raises an inference of unfairness or

unreasonableness, appellant failed to show that the number of African-Americans who

qualified for the selection process (registered voters, and those with driver’s licenses or

identification cards) were of the same or similar percentages as the population of the

county”); Feagins, 142 S.W.3d at 537 (stating that many indicia impact who qualify for the

selection process, including relative percentages of registered voters, licensed drivers,

and adult population, and without “evidence representing what these figures are in Travis

County or directly showing what percentage of African-Americans are eligible to serve on

a jury, we are unable to conclude that 6% is not a proper number”). I reject the attack

here for the same reason.

First, witnesses testified that some Travis County venires lacked the presence of

African Americans. Several of these same witnesses also said that African Americans

appeared on other venires. And, in so testifying, each apparently assumed that the

2 percentage of African Americans comprising the Travis County population was 9.1

percent. Indeed, no evidence of the actual percentage appears of record. At most, a

witness was asked: “[d]o you believe a fair cross-section of the populous of Travis

County as it relates to African-Americans is 9.1 percent?” (Emphasis added). Though

she answered “yes,” conclusory beliefs are not evidence. See McAllen Hosps., L.P. v.

Lopez, 576 S.W.3d 389, 394 (Tex. 2019) (comparing a nurse’s “belief” about what was

promised to a naked and unsupported opinion lacking probative force); Texas Division-

Tranter v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (describing subjective beliefs as

“no more than conclusions” which are not competent evidence).

Second, and similarly missing, is evidence illustrating the percentage of African

Americans within Travis County eligible to serve as jurors, even if we were to assume

that African Americans, in general, comprised 9.1 percent of the population. Again, at

most, a witness was asked if he “believe[d] that the number of African-Americans who

qualify for the jury selection process is the same as the census percentage of 9.1

percent?” (Emphasis added). Despite answering “yes,” that means nothing for, again,

conclusory beliefs are not evidence. But even if they were probative, then it would be

reasonable to believe that a substantial proportion of the African American population in

Travis County were children under 18 at the time of appellant’s trial. Being under 18, they

would not qualify for jury service. See TEX. GOV’T CODE ANN. § 62.102(1) (stating that a

juror must be at least 18). That, in turn, would mean the distinctive group eligible to serve

as jurors would be less than the purported 9.1 percent of African Americans residing

within Travis County. And, being invited to conjecture, I too could speculate that other

segments of the African American population (like segments of the Anglo, Hispanic,

3 Asian, and other populations) would fall under some other disqualification enumerated in

§ 62.102. That would further reduce the pivotal number against which systemic exclusion

is compared.

In short, no group, racial or otherwise, should be systemically and impermissibly

excluded from juror service. But, the onus falls upon a complainant to prove the

impermissible aspect of their exclusion. Appellant did not do that under the tests supplied

by Pondexter and reiterated in Feagins. His evidence was deficient. He proffered apples

(conjectural ones at that) when the test required oranges. And, that is why I still concur

in the rejection of his appellate issues and affirmance of his conviction.

Brian Quinn Chief Justice

Parker, J., concurring.

Do not publish.