Howard v. State

704 S.W.2d 571
CourtCourt of Appeals of Texas
DecidedFebruary 12, 1986
DocketNo. 09-85-138 CR
StatusPublished
Cited by1 cases

This text of 704 S.W.2d 571 (Howard v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howard v. State, 704 S.W.2d 571 (Tex. Ct. App. 1986).

Opinions

OPINION

BROOKSHIRE, Justice.

The Appellant pleaded guilty to the offense of intentionally and knowingly delivering, by an actual transfer, a controlled substance, Diazepam, in a quantity of less than 200 grams. The indictment set out June 30, 1984, as the date of the delivery. An enhancement paragraph alleged that the Appellant, on October 13, 1978, in Jefferson County, had been convicted by a final judgment of the felony of aggravated robbery.

THE SOLE ISSUE DECIDED

As shown by the stipulation below, the premier question is whether a grand juror’s moving from North Beaumont, in Jefferson County, to Lumberton, in Hardin County, standing solely and alone, disqualifies that person as a grand juror. Our narrow, square, holding is that his moving across a county line to an adjacent county does not disqualify him. We do not intend to pass upon any other question. We are unwilling to be understood as holding that, if a person had met the legal qualifications as a grand juror at impaneling time; but, there-áfter, was indicted and convicted of a crime, that person could still serve as a grand juror during his term. Furthermore, there is nothing in this record to indicate that the challenged grand juror was not an honest, law-abiding citizen. Certainly his move across a county line does not prove differently.

We think that a quotation from a recent landmark case, by the Court of Criminal Appeals, is both appropriate and compelling. The case is Almanza v. State, 686 S.W.2d 157, 173 (Tex.Crim.App.1984). We quote:

"... As a court of last resort we should not be so far removed from reality that we cannot see when common sense coincides with the fair administration of justice. When we do see such coincidence our duty seems clear.”

[577]*577The fair administration of justice makes our duty clear in this case. Any other decision would “engender disrespect for the courts and the law”. Almanza v. State, supra.

THE STIPULATION

The facts of this appeal are in one “Stipulation of Evidence”. The salient paragraphs of the Stipulation state:

“2. On October 1, 1984 Nicolas Kinchen was duly impanelled as a member of the October 1984 Term Jefferson County Grand Jury.
“3. On October 1, 1984, at the time said Grand Jury was impanelled, the said Nicolas Kinchen resided at 6550 Lexington Drive # 35, Beaumont, Jefferson County, Texas.
“4. At the time he was impanelled as a member of the October 1984 Term of the Grand Jury, the said Nicolas Kinchen met all of the requirements and qualifications to serve as a Grand Juror under 19.02 Texas Code of Criminal Procedures.
“5. On or about December 1, 1984, the said Nicolas Kinchen moved his residence from Jefferson County, Texas to 1100 Red Oak, Lumberton, Texas which is located in Hardin County, Texas.
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“7. On December 17, 1984, the October Term 1984 Grand Jury returned indictments in Cause Nos. 45278 and 45279, against William Henry Howard.
“8. On December 17, 1984, Nicolas Kin-chen was present and participated as a member of the October Term 1984 Grand Jury.
“9. On December 17, 1984 Nicolas Kin-chen was a resident of Hardin County, Texas.”

The Stipulation does not reveal whether Nicolas Kinchen voted for or against the true bill of indictment. Nor does it reveal the number of votes for the true bill. If at least 9 other grand jurors had voted in favor of a true bill, then Kinchen’s vote would be immaterial.

The indictment herein had the trial court number of 45,279. Appellant was sentenced to 5 years in the State Department of Corrections. Prior to the trial, Appellant had filed a “Motion to Quash or Set Aside Indictments.” After the court overruled the “Motion to Quash or Set Aside Indictments”, a plea bargain was entered into, resulting in the 5 years incarceration. The Appellant’s motion was based on his contention that TEX.CODE CRIM.PROC. ANN. art. 27.02 (Vernon 1986 Pamph. Supp.) and art. 27.03 (Vernon 1966) had not been followed. The motion does not set out which subpart of art. 27.02 is relied upon, nor is the subpart or subdivision of art. 27.03 specifically pleaded. But the motion spells out that the indictments are defective and should be set aside by the trial court “upon the grounds that an unauthorized person was present when the Grand Jury was deliberating upon the accusation against your Defendant, or was present when the Grand Jury was voting upon the said indictments.” (Emphasis ours)

Then, the motion to quash sets out in part:

“Evidence will show that a member of the October Term 1984 Jefferson County Grand Jury, namely: Nicolas Kinchen, had moved his residence from Jefferson County, Texas, to Hardin County, Texas, prior to the date of these indictments, and that on December 17, 1984, the date upon which said indictments were returned against your Defendant, the said Nicolas Kinchen was a participating member of the October Term 1984 Jefferson County, Texas, Grand Jury even though the same Nicolas Kinchen resided in Hardin County, Texas.”

THE STATUTES

After this recitation with some legal conclusions having been pleaded, the motion does refer to a specific part of TEX. CODE CRIM.PROC.ANN. art. 19.08 (Vernon Supp.1986) as follows:

[578]*578“No person shall be selected or serve as a grand juror who does not possess the following qualifications:
“1. He must be a citizen of the state, and of the county in which he is to serve, and be qualified under the Constitution and laws to vote in said county, provided that his failure to register to vote shall not be held to disqualify him in this instance.... ” (Emphasis ours)

In view of this later paragraph of his motion, it seems obvious that Appellant was referring to art. 27.03 stating:

“2. That some person not authorized by law was present when the grand jury was deliberating upon the accusation against the defendant, or was voting upon the same;.... ” (Emphasis ours)

We construe art. 19.08(1) to determine and to fix a grand juror’s qualification at the time he is impaneled and takes the qualifying oath.

It is a cardinal rule of statutory construction to construe statutes dealing with the same subject matter harmoniously. We necessarily construe art. 19.08 with closely related statutes, an important one being TEX.CODE CRIM.PROC.ANN. art. 19.21 (Vernon 1977), entitled “To test qualifications”, reading:

“When as many as twelve persons summoned to serve as grand jurors are in attendance upon the court, it shall proceed to test their qualifications as such”;

a second one being TEX.CODE CRIM. PROC.ANN. art. 19.22 (Vernon 1977), reading:

“Each person who is presented to serve as a grand juror shall, before being impaneled, be interrogated on oath by the court or under his direction, touching his qualifications”;

a third one being

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Related

Sifford v. State
704 S.W.2d 571 (Court of Appeals of Texas, 1986)

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704 S.W.2d 571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-state-texapp-1986.