Yanez v. State

679 S.W.2d 20, 1983 Tex. App. LEXIS 5743

• Court: Court of Appeals of Texas
• Decided: November 10, 1983
• Docket: No. 11-83-061-CR
• Status: Published

Opinions

RALEIGH BROWN, Justice.

This is an appeal from a conviction by a jury for the offense of possession of marihuana. Punishment was assessed at confinement in the Texas Department of Corrections for a term of four years. We reverse and remand.

Appellant urges three grounds of error with no challenge to the sufficiency of the evidence. His first ground contends that the trial court erred in denying his motion to reshuffle the jury panel pursuant to TEX. CODE CRIM.PRO .ANN. art. 35.11 (Vernon 1979).¹

Smith v. State, 648 S.W.2d 695 (Tex.Cr.App.1983, en banc), is dispositive of this first ground of error wherein the court said:

Under this statute, a defendant or the State is entitled, upon demand, to have the jury panel reshuffled. Davis v. State, 573 S.W.2d 780 (Tex.Cr.App.1978); Como v. State, 557 S.W.2d 93 (Tex.Cr.App.1977) _ Article 35.11 gives the defendant an absolute right to have the jury shuffled. This, of course, does not allow the defendant to demand that the panel be continually reshuffled after his first motion has been granted. He is entitled, however, to the granting of that first motion, regardless of the manner in which the jury was originally assigned by the clerk.

Furthermore, appellant need not demonstrate that the trial court’s failure to shuffle the jurors upon proper motion resulted in his being harmed or having to take an unacceptable juror. Davis, supra; Como, supra. The statute is mandatory; the trial court must cause the jurors to be shuffled upon proper demand; the court erred in denying appellant’s motion to reshuffle. Archibald v. State, 629 S.W.2d 67 (Tex.App.—Dallas 1981), pet. ref'd, (July 21, 1982); Davis, supra.

See also Latham v. State, 656 S.W.2d 478 (Tex.Cr.App.1983, en banc).

This holding makes it unnecessary to consider the other two grounds of error.

The judgment is reversed and the cause remanded.

1 . Art. 35.11. Preparation of List.

The trial judge, upon the demand of the defendant or his attorney, or of the State’s counsel, shall cause the names of all the members of the general panel drawn or assigned as jurors in such case to be placed in a receptacle and well-shaken, and the clerk shall draw therefrom the names of a sufficient number of jurors from which a jury may be selected to try such case, and such names shall be written, in the order drawn, on the jury list from which the jury is to be selected to try such case, and write the names as drawn upon two slips of paper and deliver one slip to the State’s counsel and the other to the defendant or his attorney.