TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00811-CR
Jesse Sedillo a/k/a Jesse Sedillo, Jr., Appellant
v.
The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW NO. 6 OF TRAVIS COUNTY NO. C-1-CR-21-202862, DENISE HERNANDEZ, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Jesse Sedillo a/k/a Jesse Sedillo, Jr. was convicted by a jury of driving
while intoxicated (DWI). See Tex. Penal Code § 49.04(a). The trial court sentenced Sedillo to
120 days’ confinement and a $2,000 fine, suspended imposition of the sentence, and placed him
on community supervision for a period of nine months. See Tex. Code Crim. Proc. art.
42A.053(a)(1). In a single issue, Sedillo contends that the trial court erred by denying his motion
to quash the jury array. We affirm the trial court’s judgment of conviction.
BACKGROUND
Sedillo filed a pretrial motion 1 asking that the trial court “strike [the] venire jury
panel” because “Black and Hispanic or Latino jurors ha[d] been systematically excluded.”
1 Sedillo’s motion was titled, “Motion to Compel a Venire Constituting a Fair Cross-Section of The Hispanic or Latino and Black Population of Travis County.” Citing census figures, he asserted that “33% of the Travis County population is Hispanic or
Latino,” and “9.4% of the Travis County population is Black.” Attached to the motion were
completed juror questionnaires for the 30-person venire; 25 venirepersons self-identified as
white, one venireperson self-identified as Black, and four venirepersons did not provide their
races. Sedillo argued that the venire’s racial composition “violate[d] his Sixth and Fourteenth
Amendment rights to an impartial jury” and resulted from “the significant disparity which exists
between Hispanic or Latino and Black voters, as compared to White voters, in terms of
possessing the identification necessary to be placed on the jury wheel which composes Travis
County venires.”
The trial court held a hearing on Sedillo’s motion, at which he offered testimony
from a single witness, Travis County criminal defense attorney Benjamin Blackburn. The court
denied Sedillo’s request to qualify Blackburn as an expert on the racial composition of Travis
County juries. Blackburn testified instead about his personal observations of the racial makeup
of Travis County venires as well as a research project he oversaw that utilized
juror-questionnaire responses to quantify the races of Travis County venirepersons from
June 2022 to July 2023. Blackburn explained that he used raw data obtained from the Travis
County District Clerk’s Office to create a report charting the racial proportions of approximately
10,200 venirepersons, constituting approximately 200 panels, both in aggregate and by court.
Sedillo offered into evidence two exhibits regarding the research: Blackburn’s
report on the compiled questionnaire data and an email exchange between one of his research
assistants and the Travis County District Clerk’s Office. The State objected that defense counsel
had not laid the necessary foundation for the report, and—after attempting to do so—counsel
offered the email exchange without obtaining a ruling from the trial court on the report’s
2 admissibility.2 The trial court sustained the State’s hearsay objection to the email exchange but
changed its ruling after defense counsel asserted that the emails’ contents were not offered for
the truth of the matter asserted but for another purpose. Specifically:
to show that Mr. Blackburn has requested these open records requests through his employees and received data. Data that we have discussed a little bit here on the stand. So it’s really for the purpose of showing that he has received it from the clerk’s office, which is a record that he kept.
Concerning the results of his research, Blackburn testified that “the
numbers . . . show that Hispanics and Blacks – th[ose] racial minorities are underrepresented.”
He testified that in one district court, “about 17 percent of the people who show up for jury
selection are Hispanic and you’d expect to see twice as many as that.” The trial court, he
testified, “actually d[id] better than most of the other misdemeanor courts. And in that last year’s
worth of data, 14 percent of the people who were summoned to th[e] court were Hispanic,
3.3 percent were Black.”
Blackburn testified that his personal experience corroborated those results. He
testified that he had tried approximately 50 to 100 cases to a jury over a 20-year career; that he
had not had “any jury venires that have not had underrepresentation”; that “sometimes [his]
knowledge comes from [his] personal observation – [his] eyes looking at people’s skin color”;
that it was common for him to “show up to jury selection[,] and there[ are] no African
Americans, no Blacks who have been summoned to appear for jury selection”; and that “it can be
a little harder to identify Hispanics – you know, whether or not they have a Hispanic name or
2 During the discussion regarding Blackburn’s qualification as an expert, the State’s attorney stated, “If Mr. Blackburn chooses to represent to the Court what his research showed, I will not object to that. But I do not think he qualifies as an expert in the calling of venire panels in Travis County.” 3 whether or not they self-identify as Hispanic or whether or not you can just look at a person and
know their origin.” Opining on the causes of the discrepancy, he testified that “this
racially disparate impact . . . is based on the system of how jury summons are sent out to
prospective jurors”:
We know that Blacks and Hispanics are more likely to get stopped. We know there is more likely to be a law enforcement interaction. We know that that interaction is more likely to result in a detention, more likely to result in a search, more likely not to result in a warning, more likely to result in an arrest, more likely that when they do get arrested that they are more likely to be denied bail and personal bond and that they sit in jail and are more likely to get pled out at jail call for a minor drug offense, which is going to result in a suspension of their driver’s license.
So when we show up to jury selection and say “Where are all the Black people?” well, if they don’t have driver’s licenses – if the way that you summons jurors is based on a driver’s license, guess who gets a driver’s license? People who have cars. Not people who ride the bus. Why don’t we send out the jury summons to people who have pilot licenses? You think that won’t create a lot of White people showing up? Why don’t we send out the jury summons to people who subscribe to L[.]L[.] Bean? We don’t do it because we know it’s going to result in this disparity.
Maybe when they set this up, this was the best system. But why don’t we send jury summons to people on the welfare rolls or people on the unemployment rolls?
Citing the test established by the United States Supreme Court in Duren
v. Missouri, 439 U.S. 357, 364 (1979), the trial judge denied Sedillo’s motion to quash the array
but noted that she was “greatly concerned by the lack of representation of individuals of the
global majority.” She explained that she “would have liked to have heard from the statistician
from the Texas Demographic Center, the Travis County Research and Planning Division and/or a
representative from the District Clerk’s” because “[a]ll of these individuals are trained experts in
these statistics to provide an objective opinion on the data presented.” She also advised, “[I]f
4 this type of argument is presented in another jury setting, I greatly encourage an individual to
consider contacting these departments for data and for testimony.”
Following a trial, Sedillo was convicted of misdemeanor DWI. This
appeal followed.
DISCUSSION
In a single issue, Sedillo contends that he “should have had a jury venire panel
which constituted a fair cross[-]section of the community.” He argues that Texas’s jury-selection
process systematically excludes people who self-identify as Black and Hispanic and that the trial
court’s denial of his motion to quash the array deprived him of his Sixth Amendment right to an
impartial jury. See U.S. Const. amend. VI; Holland v. Illinois, 493 U.S. 474, 480 (1990) (“The
Sixth Amendment requirement of a fair cross section on the venire is a means of assuring, not a
representative jury (which the Constitution does not demand), but an impartial one (which it
does).”). Sedillo asserts that the underrepresentation of Black and Hispanic venirepersons results
from Texas’s reliance on voter rolls and driver’s licenses in compiling its list of eligible voters
(the jury wheel).
I. Travis County Jury-Selection System
During the hearing on Sedillo’s motion to quash the array, the trial court admitted
an affidavit sworn by the Travis County District Clerk, in which she articulated the process by
which juries are empaneled in Travis County. Pursuant to subsection 62.001(a) of the Texas
Government Code, the Texas Secretary of State’s Office prepares its jury wheel from:
(1) the names of all persons on the current voter registration lists from all the precincts in the county; and
5 (2) all names on a current list to be furnished by the Department of Public Safety, showing the citizens of the county who:
(A) hold a valid Texas driver’s license or a valid personal identification card or certificate issued by the department; and
(B) are not disqualified from jury service under Section 62.102(1), (2), or (8).
Tex. Gov’t Code § 62.001(a). Under section 62.002, a person is disqualified to serve as a petit
juror unless the person is at least 18 years of age, is a U.S. citizen, and has not been convicted of
misdemeanor theft or a felony. See id. § 62.002(1), (2), (8).
Names are randomly selected from the jury wheel “by the electronic system for
receiving the jury summons notification”; at the time the affidavit was prepared, in June 2023,
approximately four to six thousand potential jurors were summoned each week “for all the courts
in Travis County” after being randomly selected. Before summonses are mailed to potential
jurors, their names are screened for changes of address; summonses are mailed only to those
individuals with addresses in Travis County.
A potential juror who receives a summons has approximately three weeks to
register either online or in person. During the registration process, potential jurors must meet the
qualifications in section 62.002, may claim exemptions listed in section 62.106, and are able to
obtain postponements by providing dates of important conflicts for a 75-day period. See id.
§§ 62.002, .106. The Clerk’s Office is unable to verify all of the information entered by
potential jurors, who certify that their information is true and correct. After registering, the
potential juror is assigned to a jury trial. If a potential juror does not respond to the initial
summons, she is sent a second reminder with a 30-day deadline.
6 II. Fair-Cross-Section Requirement
Although “the Constitution does not require proportionate representation of races
on jury panels,” May v. State, 738 S.W.2d 261, 269 (Tex. Crim. App. 1987), “[t]he Sixth
Amendment requires that the jury panel from which the petit jury is selected represent a fair
cross-section of the community,” Aldrich v. State, 928 S.W.2d 558, 560 (Tex. Crim. App. 1996)
(citing Taylor v. Louisiana, 419 U.S. 522, 538 (1975)). The United States Supreme Court has
created a three-prong test, applicable to cases involving Texas juries, by which a defendant may
establish a prima facie violation of the fair-cross-section requirement: “(1) the group allegedly
excluded is a ‘distinctive’ group in the community; (2) the group was not fairly represented on
the jury panel from which the petit jury was chosen; and (3) the underrepresentation resulted
from a systematic exclusion of the group in the jury selection process.” Id. (citing Duren,
439 U.S. at 364. The defendant need not be a member of the underrepresented group to have
standing to raise the claim. Id. The State may rebut the prima facie violation by “showing that
the disproportionate exclusion manifestly and primarily advances a significant governmental
interest.” Id. (citing Duren, 439 U.S. at 367–68).
We agree with both parties in this case that people who self-identify as Black or
Hispanic are distinctive groups for purposes of the Duren analysis. See id. (“We accept that
Hispanics are a distinctive group in any community.”); Feagins v. State, 142 S.W.3d 532, 535
(Tex. App.—Austin 2004, pet. ref’d) (“African–Americans are a distinctive group.”); see also
Lockhart v. McCree, 476 U.S. 162, 175 (1986) (“Our prior jury-representativeness cases,
whether based on the fair-cross-section component of the Sixth Amendment or the Equal
Protection Clause of the Fourteenth Amendment, have involved such groups as blacks; women;
and Mexican-Americans.”).
7 The second prong of the Duren test requires that Sedillo show that the
representation in Travis County venires of people who self-identify as Black or Hispanic “is not
fair and reasonable in relation to the number of such persons in the community.” See Duren,
439 U.S. at 364. A showing of the distinctive groups’ percentages of the community is “the
conceptual benchmark for the Sixth Amendment fair-cross-section requirement.” Id. The
United States Supreme Court has not specified the method courts must use to measure the
representation of distinctive groups in jury pools. Berghuis v. Smith, 559 U.S. 314, 329 (2010).
The evidence considered by the trial court was insufficient to ascertain the
proportions of Travis County residents who self-identify as Black or Hispanic or those groups’
representation in Travis County venires and, consequently, could not provide a basis for the court
to find a prima facie fair-cross-section violation. At trial, Sedillo attempted to present evidence
of the groups’ underrepresentation from two sources: Blackburn’s report comparing census data
with juror-questionnaire responses from June 2022 to July 2023 and his personal, anecdotal
observations from 20 years of practice in Travis County. However, the trial court never admitted
the report, 3 and we may not consider it in our analysis. See State v. Opare, 583 S.W.3d 685, 692
(Tex. App.—Fort Worth 2018, no pet.) (recognizing that appellate court can consider unadmitted
evidence when: “(1) the record clearly reflects that a jury saw, heard, or felt the unobjected-to
item; or (2) the record clearly reflects that the trial court and the parties treated the evidence as
admitted, and there is nothing about the evidence itself that requires discretion, interpretation, or
3 Defense counsel offered the report into evidence, but the State objected that counsel had not laid the proper foundation. After questioning Blackburn regarding the report’s preparation, however, counsel offered into evidence an email exchange between Blackburn and the Travis County District Clerk’s Office without obtaining a ruling on the report’s admissibility. The trial court admitted the email exchange once counsel clarified that it was not to be considered for the truth of the matter asserted. 8 authentication”); cf. Cornish v. State, 848 S.W.2d 144, 145 (Tex. Crim. App. 1993) (considering
unadmitted juror information cards in evaluating Batson claim because trial court and parties
treated them as if they were admitted). The only admitted evidence of Blackburn’s research
project was the email exchange, which was offered “not to show . . . that there were
200 summoned jury lists or panels” but only to prove that he requested and obtained data from
the clerk’s office. Reflecting the paucity of reliable statistical evidence, the trial court denied
defense counsel’s request to qualify Blackburn as an expert and—when denying Sedillo’s
motion—explained that it would have preferred testimony from a statistician trained “to provide
an objective opinion on the data presented.”
Other than the report, the sole evidence of underrepresentation came from
Blackburn’s personal experience of having selected approximately 50 to 100 juries over 20 years
and having observed “hundreds and hundreds of panels” in that time. We do not find his
testimony alone sufficient to establish a prima facie fair-cross-section violation. Blackburn
testified that “racial minorities” were “almost always . . . under-represented” “when [he]
show[ed] up for jury selection,” that he largely based his determination of a venireperson’s race
on her skin color or whether she had a Spanish surname, that for this reason “it can be a little bit
harder to identify Hispanics,” that he could “walk out and see . . . [t]here [was] a Black on [his]
panel,” and that his “suspicion was validated” when he received “the raw data.” In light of the
relatively small sample size encompassed by his experience, his reliance on census figures for
the community’s racial demographics, the lack of scientific rigor in his classification scheme,
and the possibility of error from relying on surnames, we cannot say that his testimony
establishes that people who self-identify as Black or Hispanic are underrepresented on Travis
County venires. See Ovalle v. State, 13 S.W.3d 774, 779 (Tex. Crim. App. 2000) (“[U]se of
9 general population figures and Spanish surnames involves a degree of uncertainty”); Martinez
v. City of Austin, 852 S.W.2d 71, 74 (Tex. App.—Austin 1993, writ denied) (“Appellants have
failed to bring forth in the record any census data, tax rolls, jury-service records, or other data to
demonstrate the alleged disparity. By failing to show evidence of the percentages of the minority
group residing in the community or serving on the panel, appellants have not established a prima
facie case under Duren.”); Weeks v. State, 396 S.W.3d 737, 745 (Tex. App.—Beaumont 2013,
pet. ref’d) (“On this record, however, the trial court could reasonably find that Weeks failed to
present sufficient evidence to support his claim that the specific jury-selection-process feature he
targeted violated his Sixth Amendment right to an impartial jury.”); see also Howell
v. Superintendent Rockview SCI, 939 F.3d 260, 266 (3d Cir. 2019) (explaining that Duren claim
“‘must be supported by statistical evidence,’ beginning with the percentage of [distinctive group]
in the community,” and concluding that statistician’s analysis, which only considered completed
and returned juror questionnaires and not unanswered questionnaires, was unreliable (quoting
United States v. Weaver, 267 F.3d 231, 239 (3d Cir. 2001))). As the United States Supreme
Court has explained, an appellant cannot “make out a prima facie case merely by pointing to a
host of factors that, individually or in combination, might contribute to a group’s
underrepresentation.” Berghuis, 559 U.S. at 332.
Because no evidence in the record established the population in Travis County
who qualify for jury service and who self-identify as Black and/or Hispanic, the trial court could
reasonably conclude that Sedillo had failed to demonstrate underrepresentation or prove a prima
facie fair-cross-section violation. See Duren, 439 U.S. at 364; see also Pondexter v. State,
942 S.W.2d 577, 580–81 (Tex. Crim. App. 1996) (“[A]ppellant failed to show that the number of
African–Americans who qualified for the selection process (registered voters, and those with
10 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 (“With no 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.”). 4
Accordingly, the trial court did not err by denying his motion to quash the jury
array. We overrule his only issue.
CONCLUSION
Having overruled Sedillo’s sole issue on appeal, we affirm the trial court’s
judgment of conviction.
__________________________________________ Rosa Lopez Theofanis, Justice
Before Justices Baker, Smith, and Theofanis
Affirmed
Filed: August 30, 2024
Do Not Publish
4 Because Sedillo failed to demonstrate that people who self-identify as Black or Hispanic are underrepresented on Travis County jury venires, we need not address the existence of systematic exclusion. See Aldrich v. State, 928 S.W.2d 558, 560 (Tex. Crim. App. 1996) (“Appellant has failed to make a prima facie showing of a fair-cross-section violation. We accept that Hispanics are a distinctive group in any community, but appellant has not shown that Hispanics were actually underrepresented on the jury panel in his case.”). 11