## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S
NO. WR-89,781-02

EX PARTE WAYMON JAESHELL STEPHERSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 77949-CR-B IN THE 300TH DISTRICT COURT

FROM BRAZ ORIA COUNTY
W A L K E R 

### , J., delivered the opinion of the Court, in w hich KE L L E R 

### , P.J., and H E R V E Y 

### , RI C H A R D S O N 

### , N E W E L L 

### , KE E L 

### , S L A U G H T E R 

### , and M C 

### C L U R E 

### , J J., joined. Y E A R Y 

### , J., concurred in the result. O P I N I O N

The former Di s t

r ict Clerk of B raz oria County , Rhonda B archak, devised a process of creating jury panels. 1 Instead of randomly selecting from the g eneral v e n ire, she sy stematically sorted the

1 Throug hout this opinion, we will refer to the prospective jurors that are assig ned to a court for trial, e x amined in voir dire, and subjected to strikes for cause and p eremptory strikes, as the “jury panel.” See, e .g. , W

ells v
. State , 611 S.W .3d 396, 4 28–30 (Tex

. Crim. App. 2020). This group is also commonly referred to as the “venire.” See Venire , B L A C K ’ S L AW D I C T I ON

A R Y (11th e d. 2019) (“A panel of persons selected for jury d uty and from among whom the jurors are to be chosen. — Also termed array ; jury

panel; jury

pool; (redundantly

) venire panel.”).
W e will refer to the initial g roup of prospective jurors that r eceives summonses and shows up for jury duty , from which the jury panel is formed, as the “g eneral venire.” See, e.g. , Chambers2

g eneral venire based upon whether the potential juror was white or n on-white and whether that potential juror lived in Pearland or outside of Pearland. F r om that sorted g eneral venire, she evenly distributed those prospective jurors to jury p a nels. Using B archak’s sorting process, a jury was empaneled f or Appli c a n t W ay

mon J aeshell Stepherson’s t ri al. The B raz oria County jury convicted h im. Applicant, wh o is black or African American, claims in this application for a writ of h abeas corpus that a race-based process was used
to create the jury p a nel for his trial, implicating constitutional concerns o f d ue process, equal protection, and the r ig ht to trial by a n impartial jury

. Applicant a lso claims a violation o f the statutory requirement of a randomly selected jury

panel.
B a sed upon the record before us, we find that B archak’s process was indeed r ace-based, but her process was not desig ned to ex clude certain g roups or cause those g roups to be underrepresented. The process w as desig ned to be inclusive and soug ht to avoid underrepresentation by creating jury panels mirroring the proportions o f the g eneral venire. It therefore seems that the constitutional
guarantees of due process, equal protection, and trial by an impartial jury w ere not violated. Habeas corpus relief is denied.

v. State , 903 S.W .2d 2 1 , 29 (Tex

. Crim. App. 1995); Davis v. State , 782 S.W .2d 211, 212 ( Tex

. Crim. App. 1989). In other cases, w e have referred to this g roup as the “g e neral jury pool or g eneral a ssembly .” See, e.g. , Jasper v. State , 61 S.W .3d 413, 423 (Tex

. Crim. App. 2001); W ells , 6 1 1 S.W

. 3d at 428 (quoting J a s p e r ) ; s e e also Georg e E. Dix & J ohn M. Schmolesky , 4 3 T E X A S P R A C T I C E : C R

I M I N AL P R A C T I C E A

ND P R O C E D UR E § 41:5, at 6 2 3 ( 3 d ed

. 2 0 23) ( “the g eneral jury panel”).
F inally , the jurors who are selected from the jury panel to sit on the trial itself will be referred to simply as the “jury .” This g r oup is also referred to a s the “ petit jury .” Jury, - petit jury , B L A C K ’ S L AW D I C T I ON

AR Y (11th e d

. 2 0 1 9 ) ( “ A jury ( usu. consisting of 6 o r 12 persons) summoned and empaneled in the trial of a specific case. — Also termed petty jury ; trial jury ; common jury ; traverse jury .”).3 I — Juror Cards Were Sorted by Race
In J uly of 2010, after the d eath of then-District Clerk J erry Deere, B archak was appointed to

serve the remainder of D eere’s unex p ired term. B archak w as elected to her f irst full term as district clerk in November 2010, and she was re-elected in 2014 and 2018.
In 2015, the L eg islature abolished the “key man” g r and jury sy stem and adopted a selection
sy stem similar to that for p etit juries. 2 The new g rand jury selection sy stem provided that “[ t] he g rand jurors and the alternate g rand jurors must be ran d o m l y s e l ec ted from a fair cross section of the
p o p u l ation of the area served by the court.” 3 B archak observed the judg es’ a ssembly of the g r a n d juries in this fashion, and she created a petit jury selection sy stem which she believed reflected this
process. Previousl y , when prospective jurors arrived f or jury duty , they would fill out juror questionnaire cards. A bailiff would collect the cards f rom the jurors, and a clerk would g ather the cards from the b ailiff. The cards would be shuffled, counted o ut, and divided to make each jury panel requested by the judg es. Deputy Clerk Rhonda Hammonds would then scan each panel’s cards into

2 “As amended, the g rand jury commissioners sy stem of org aniz ing a g r and jury known as the Key Man or Pick a Pal method is abolished, leaving only the random selection method in law.” S. Comm. on Crim. J ust., B ill Analy sis, Tex

. H.B

. 2150, 8 4th L e g ., R.S.; see a lso Kr i s t i n Etter et al., Criminal Law , 78 T E X
. B .J . 647, 648 (2015) (“HB 2150 abolishes the current g rand jury ‘key

man’ o r ‘pick-a-pal’ method, wherein a judg e s el e c t s t hree commissioners to be in charg e of choosingpersons to serve on a g rand jury . Instead, HB 2 1 50 utiliz es the random selection method for grand jurors like that already in use to pick petit jurors.”).

3 A c t o f M a y 3 1 , 2 0 15, 84th L eg . , R.S., ch. 929, § 8, 2015 Tex

. Gen. L aws 3202, 3204 (adding T E X
. C O D E C R I M
. P R O C

. Ann. art. 19.26(a)).
In a “nonsubstantive revision of certain provi s ions o f the Code of Criminal Procedure,” C h apter 19 was repealed in 2019 and replaced by Chapter 19A. Act of May 21, 2019, 86t h L e g. , R.S., ch. 469, §§ 1

. 0 3 , 3

. 0 1 (2), 2019 Tex

. Gen. L aws 1065, 1070, 1151. W hat was then article 19.26(a) is now article 19A.201(a). See T E X
. C O D E C R I M
. P R O C . Ann. art. 19A.201(a).4

the TSG computer sy stem a nd print three copies of the jury list for each panel for the judg e and the clerks in the courtroom.
B a rchak’s new sy stem of creating jury panels, which w as used for a ll of B raz oria County ’s trials, civil and criminal, worked as follows: 1. W hen members of the g eneral venire were assembled a n d t h e i r juror questionnaire cards were taken up, B a rchak or her desig n ee would take those cards into the jury

room. 2. There, the cards would be separated into five piles: ( 1) white jurors living in the city of Pearland; (2) non-white jurors living in Pearland; (3) white jurors living outside of Pearland; (4) non-white jurors living outside of Pearland; and (5) cards that were not properly filled out. 3. After creating the five piles (or decks) o f cards, B archak or her desig nee would take one of the four race-residence decks— u s u a lly white-Pearland, which would be the larg est—and deal one card to ten to fifteen new piles. 4. After dealing a card to each of the new piles, B a rchak or her desig nee would then put that initial race-residence deck back, a nd pick o ne of the other three r a c e - r e s i dence decks, from which a card would be dealt onto each of th e previously

dealt cards.
5. They would continue dealing cards fro m t h e r emaining two race-residence decks, a nd then r eturn to the first deck, repeating the process u n t i l all the cards f rom the orig inal four race-residence decks were d istributed among the ten to fifteen piles. 6. Once all the race-residence decks w ere ex hausted and the p iles were c reated, they would then stack the p iles tog e ther to create a sing le deck, reconstituting mos t o f t h e deck of g eneral venire cards, without the incorrectly filled out cards.
7. B archak or her d esig nee would then lay out the day ’s “judg e’s cards,” which indicated how many venire persons each judg e requested. 8. B ased on the number requested on each judg e’s card, they w ould first distribute the improperly

filled out juror cards to the judg es’ cards. 9. Then, from the top o f the reconstituted deck of g eneral venire cards, cards5 would be dealt to the judg e’s stack until the requested number was met. 10. They would then f ill the nex t judg e’s stack and so on, until all of the judg es’ stacks were filled. 11. Afterwards, the judg e’s card, which would be at the bottom o f ea c h stack, would be moved from the bottom to the top of its respective stack. 12. The judg e ’s stack would be passed to Hammonds. 13. Hammonds would scan the judge ’ s stack into the Tyler T echnolog ies computer sy stem and use the Tyler sy stem to print a copy of the jury list, but the cards would come out in a random order instead of the order that they were scanned in. 4
14. Hammonds would sort the cards in alphabetical order, 5 and she would g ive copies of the jury

lists to the trial judg e, the prosecution, and the defense.
I t is unclear when B a

r chak’s o f

f ice b eg an employing this procedure, but it was in use by September 1, 2015, when the “key man” sy stem was abolished. She did n ot talk to any of the judg es about her p rocedure, and she was unaware that the B r az o ria C o u n t y Commissioner’s Court had adopted jury selection plans in 1993 and in 2018, the 2018 version of which provided for random selection of

jury panels. 6 Outside of the district clerk’s office, B archak’s plan was unknown to parties

4 T his was unlike the previous sy stem which Hammonds found to be “a lot easier” because the older sy stem returned the cards in the same order that they were scanned in.

5 Althoug h Hammonds did not ex plain why the TSG sy stem made thing s easier for her, when viewed in the contex t of her ex planation that she would have to alphab e t ically sort the cards after the Tyler sy stem randomly returned them, it a p p e a r s t hat Hammonds alphabetically

- ordered the juror cards before scanning

. T he TSG sy stem’s first-in-first-out scanning would be e asier since she would only have to alphabetiz e the juror cards once, whereas with the Tyler sy stem she would alphabetiz e them twice.

6 T he B raz oria County Commissioner’s C ourt’s 2018 jury selection plan contained a provision relatingto “Specific Panels”:
Pursuant to Chapter 6 2.015 of the Government Code, the judg e or the District Clerk as directed by the judg e, shall randomly select panels of prospective jurors a nd order6

involved in litig ation in B raz oria County , including the judg es, the district attorney ’ s office, defense counsel, and defendants. Meanwhile, Applicant was charg ed with two counts of ag g r avated r obbery , and voir dire was first conducted on October 10, 2016. One of the jurors was involved in a c ar accident and was unable
to continue, and Applicant declined to continue with eleven jurors. The trial court g ranted his motion for a mistrial. On November 1 4, 2016, voir dire was conducted a second time. The second jury found Applicant guilty and sentenced him to thirty -eight ye ars’ imprisonment on each count. Applicant did
not object to the composition of either the October 10 panel or the November 14 panel, nor did he ask for a jury

shuffle or assert that he was ever forced to take an objectionable juror. Applicant appealed the conviction, arguing that the trial court should have g ranted a motion
to suppress a photo array , that he received ineffective assistance of counsel, and that the punishment charg e erroneou s l y i ncluded enhancements, but the court o f appeals upheld the conviction. Stepherson v. State , No. 01-16-00936-CR, 2018 W L 7 61644, at *1 (Tex

. App.—Houston [ 1st Dist.]
F eb. 8, 2 018, pet. ref’d) (mem. op., n ot desig nated for publication). After issuance of the mandate, Applicant filed h i s first application for writ o f habeas corpus, in which he raised an evidentiary claim, a Brady claim, an ineffective assistance o f coun sel claim, a n impartial jury claim, 7 and an

those panels of prospective jurors to appear at a specific date, time and place for e ach r e spective p anel. The judg es will inform the District Clerk how many pros p e c t i v e jurors to place on each panel. The record does not describe any provisions related to jury panel formation in the 1993 plan.

7 The impartial jury cla i m r a i sed in the f irst a pplication did n ot alleg e jury bias due to the racial makeup of the p anel or that such makeup was caused by B a rchak’s process, which was at that time still unknown. Applicant’s c laim argued that the jury had become tainted during voir dire when members of the panel g av e their opinions about the presumption of innocence and a defendant’s rig ht not to testify

.7

a ct u al i nnocence c laim. W e denied relief on May 15, 2019, and we later denied Applicant’s
sug g estion that we reconsider his application on our own motion.
Two y ears later, in May 2021, B archak announced h er intention to retire. At this time, jury selection had temporarily moved from the courthouse to a g y mnasium to accommodate COVI D-19 precautions. At the g y

mnasium, then-bailiff Tracy Read observed B archak and Chief Deputy Clerk Cayla M y e r s sorting the juror cards. Concerned that the sorting of the c ards was improper, 8 Read later spoke to an employ ee of the district clerk’s office, who ex plained that the c ards were separated by race and by where the prospective juror lived. Read told, among others, District Court J udg e J ustin G ilbert, who in turn informed District Court J udg e Patrick Sebesta. J u dg e Sebesta met w ith B archak, and she ex plained her process to him.
B a rchak told J udg e Sebesta that s h e u s e d t h i s process to make the panels more diverse, “like the judg es do when they are assembling the g r and jury .” After J udg e Sebesta informed B a rchak that she could not do that, she said she w ould stop. J udg e Sebesta followed up with B archak a couple of day s later, and she told him that she h ad been using her method during her entire time as the district clerk.
J udg e Sebesta informed the district attorney ’s o ffice, which in t u rn c o n t acted the Tex as Rang ers Public Integ rity Unit. Rang e r Thomas Norsworthy beg an his investig ation in August 2021, and over the nex t several months he collected evidence and interviewed B archak an d h er staff, judg es, attorney s, and b ailiff Read, ultimately culminating in a 177-pag e r eport. Instead of retiring

as planned, B archak resig ned h er p osition after the investig ation beg an. The g r and jury declined to indict her of a criminal offense.

8 Read had p reviously noticed the sorting activity at the c ourthouse before the pandemic, but apparently

that earlier instance did not cause him concern.8

After B a rchak’s sy stem was discovered, Applicant filed the instant subsequent application for writ of habeas corpus, alleging , among other thing s, that n ewly -discovered evidence showed a race-based selection sy stem was u sed to create the jury panel in his case. B ecause Applicant’s claims raised serious constitutional concerns, we remanded the matter to the habeas court to address four questions: (1) whether the former B r az oria County District Clerk, Rhonda B archak, utiliz ed a race-based jury

selection sy stem to create jury panels; (2) whether B archak’s selection sy stem had an impact o n the racial c omposition of the jury panels in B raz oria county , inc l u d ing whether c ertain races or g roups were ex cluded or under-represented; (3) whether Applicant’s specific jury panel represented a fair cross section of his community ; and (4) whether B archak’s error, if any , is considered s t ru c tural or non-structural error. On remand, th e h abeas court admitted into the record Rang er N orsworthy ’ s investig ative report, 2010 census data for T ex as counties including B raz oria County , and documentation of both of Applicant’s juries, including the final jury lists, the p arties’ strikes, and the individual juror cards. The h abeas court concluded that although r a c e was used as an initial factor in creating the jury panels, the record did not show that B archak’s procedure resulted in the sy stematic ex clusion of a d i s tinctive g roup. Similarly , the habeas court concluded that the record did not show Ba r c h a k ’ s sy stem had an impact on the rac i a l c o m position of the jury panels o r caused the ex clusion or underrepresentation o f a n y s p e c i fic races or g roups. The habeas court concluded that Applicant’s specific jury panels represented a fair cross section o f the community , a nd the c ourt concluded that
any error was non-structural. The habeas court recommended that we deny relief.9

In order for this Court to determine whether to a dopt the habeas c ourt’s recommendation, or whether Applicant has shown e ntitlement to habeas corpus relief, we filed and set the case to address the question of:
W h at does a litig ant n eed to show in order to obtain relief on a due process violation claim that a Tex as county ’s method of assembling a jury p a nel involves racial discrimination. II — Racial Discrim ination in Jury P r ocedures Denies Due P rocess A l t h o u gh j u r y d iscrimination claims are g enerally broug ht under the Equal Pro t e c t i o n C l a u s e , they are also a matter of due process. The F ourteenth Amendment provides that:
No State shall

. . . deprive any person of life, liberty , or property , without due process of law[ .] U.S. C ON S T
. amend X I V, § 1. In Pete r s v
. K i f f , a plurality of the United States Supreme Court declared that defendants indicted and tried by g rand or petit juries that “ar e p l a i n l y illeg al in their composition” a

r e denied due process of law. P eters v
. Kiff , 4 07 U.S. 493, 501 (1972) (plurality op.). The Peters plurality

ex plained that:

a State cannot, consistent with due process, subject a defendant to indictment or trial by a jury that has been selected in an arbitrar y a n d d i s c riminatory manner, in violation of the Constitution and laws of the Unite d S t at es . I lleg al a nd unconstitutional jury selection procedure s c as t doubt on the integ r ity of the whole judicial process. T h ey create the appearance o f bias in the d e ci sion of individual cases, and they

increase the risk of actual bias as well. Id. at 502–03. F urthermore, “the ex clusion from jury service of a substantial and identifiable class of citiz ens has a potential impact that is too subtle and too p ervasive to ad m i t o f c o n f i n e ment to particular issues or particular cases,” and a n y h a rm a n aly sis arising under such a sy stem should necessarily be resolved in f avor of the criminal defendant. Id. at 503–04. As a result, the Court held that:10

whatever his race, a criminal defendant has standing to c halleng e the sy stem used to select his g rand or petit jury , on the g round that it arbitrarily ex cludes from service the members of any

race, and thereby

denies him due process of law.
I d

. at 504. The Court reversed and remanded to a llow Peters to prove the facts h e all e ge d , t h a t Negroes were sy stematically ex cluded from g rand jury service, althoug h Peters h imself was white. Id. at 505. 9 Althoug h Peters failed to produce a majority opinion about what leg al theory g ave Peters standing to raise the c laim, whether it was due p r ocess, federal statute, or equal protection, the Peters opinion was relied upon in the six J u stice majority opinion in Hobby v. United States to address a claim that discrimination in the selection of grand jury foremen violated the Due Process Clause of
t h e Fi f t h Amendment. Hobby v. United States , 4 68 U.S. 339, 343–46 (1984). Indeed, the Ho b b y Court beg an its discussion by stating , in no uncertain terms:
I t is well settled, o f c ourse, that purposeful discrimination ag ainst Negroes or w omen in the selection of f

e d eral g rand jury foremen is forbidden by the F ifth Amendment to the Constitution. Id. at 342. Given that t h e Fi fth Amendment has a Due Process Clause, much like the F ourteenth

9 W hereas the plurality b e lieved that due process was what g ave Peters standing to raise the claim, the three-Justice c oncurrence in P eters argued that standingshould have been grounded on the “strong statutory policy” behind 18 U.S.C. § 243, which no t o n ly prohibits d iscrimination f or federal juries on the basis of race, c olor, or previous condition of servitude, but makes it a criminal offense (punishable by fine) to so discriminate. Peters , 407 U.S. at 506–07 (W hite, J

. , concurring ). The concurrence would have relied on the statute, not because the statute provided a narrower basis, but instead because the statute h ad a “br o ad e r sweep” and embodied the central concerns of the F ourteenth Amendment. Id. (discussing Hill v. Texas , 316 U.S. 400, 404, 406 (1942)). The three-Ju stice dissent in Peters did n ot dispute that persons could not b e ex cluded from juries on account of race. Rather, t h e d i s s e n t disag r e ed with the plurality that “such illeg ality necessarily voids a c ri m i n a l conviction, absent a ny demonstration of p rejudice, or basis f or presumingprejudice, to the accused.” Peters , 407 U.S. at 507 (B ur g er, J

. , dissenting ).11

Amendment does, but not an Equal Protection Clause of its o w n, 1 0 the Hobby Court implicitly affirmed the due p rocess basis f or P eters

. And, if there were still ling ering doubts as to whether due
process was the doctrinal basis f or Peters , eig ht J ustices in Campbell v. Louisiana noted that, “Our decision in Peters v. Kiff addressed the due process question,” a nd, “The relevant assumption of Hobby

. . . is that a defendant has standing to litig ate whether his conviction was procured by means

or procedures which contravene due p rocess.” Campbell v. Louisiana , 523 U.S. 392, 400–01 (1998).
In the case before us, Applicant d o es not make an ex plicit due process argument. However, his pro se writ a

pplication in substance invoked a Peters due process claim when he alleg ed that the
F ifth A mendment w as violated due to B archak selecting jurors in an unconstitutional manner. And althoug h h ab e a s counsel focused almost all of his time at the habeas hearing arguing an equal protection violation, c o unsel also argued for structural h a rm, reasoning that this case is similar to Peters in that it is virtually impossible to show that the selection method caused harm.
W h at test can we discern f rom Peters to assess Applicant’s P e ters -based due process claim? The few times that we addressed Peters , we h ad no occasion to articul a t e a test. This was either because the challeng ed sy stem was n o t arbitrary or discriminatory

. See Aldrich v. State , 928 S.W .2d 558, 560 (Tex

. Crim. App. 1 996) (selection sy stem was sy stematic and n e u t r a l). Or there was no

1 0 The F ifth Amendment provides:
No person shall be held to a nswer for a capital, or otherwise infamous crime, unless on a p resentment or indictment of a Grand J ury , ex cept in cases arising in t h e land or n aval f orces, o r in the M i l i t i a , w h e n in actual service in time of W ar or public dang er; nor shall any person be subject for th e s a m e offence to be twice put in jeopardy of life or limb; n or shall be compelled in any criminal case to be a witness ag ainst himself, nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use, without just compensation. U.S. C ON S T . amend. V (emphasis added).12

challeng ed sy stem at all. Bird v
. State , 6 92 S.W .2d 6 5, 78 ( Tex

. Crim. App. 1985) (overruling due
process Peters claim where there was nothing in the record showing that the g rand jury w as selected

on an impermissible basis). Or where the Peters claim was not properly before us. Ex parte Powers , 487 S.W .2d 101, 103–04 ( Tex

. Crim. App. 1972) ( finding appe l l ant’s Peters issue not before the Court, where he had waived it). Or, a s it was in Seubert , where w e discussed Peters for some other

reason. Seubert v. State , 7 87 S.W .2d 68, 69–70 (Tex

. Crim. App. 1990) ( a n argument had b een made that Peters ’s holding on standing a llowed defendants to g et around the “same r a ce” requirement of
Batson ). 1 1
In arguing that due process was not violated by B archak’s procedure, the State points to the
F ifth Circuit’s opinion in McGinnis v. Johnson , in which that court o utlined a test for considering

a Peters claim. See McGinnis v. J ohnson , 181 F .3d 686, 692 (5th Cir. 1999), cert. denied, 528 U.S. 1125 (2000). The only three African Americans in McGinnis’s 102 person jury panel were ex cused by the trial court, a

nd on federal habeas appeal, McGinnis argued that their e x cusal was unconstitutional for several reasons, including that it violated the Due Process Clause under Peters

. Id. at 6 89, 692. On the d

ue p rocess claim, the F ifth Circuit court found that Peters “allows a criminal defendant to challeng e the r acial c o mposition of h is g rand o r p e tit jury under the Due Process Clause,

1 1 See also Pierson v. State , 614 S.W .2d 102, 112 (Tex

. Crim. Ap p . 1 9 8 0 ) ( Teague, J ., concurring ) (citing Peters for n otion that “Due Process requires a c ompetent and impartial [ jury ] .” (internal q

uotations removed)); Espinoza v. State , 6 04 S.W .2d 908, 912 (Tex

. Crim. App. [ Panel Op.] 1980) (Clinton, J ., dissent ing ) (in arguing that prima facie c ase of equal p rotection violation was shown, q uoting Peters ’ s discussion on ho w r acial ex clusion impacts fair and e ven-handed administration of

justice); S tanley v. State , 678 S.W .2d 80, 80–81 (Tex

. Crim. App. 1984) (on refusal of p etition for d iscretionary review) (Clinton, J ., dissenting ) (arg u ing that petition should be g ranted because d e fendant h ad made prima facie case that equal protection w as violated by ex clusion of women from g r and juries, but conceding cloudiness of whether male defendant had standing to raise the equal protection c laim; sug g esting the male defendant had standing and could r aise the issue as a matter of due process under Peters ).13

only when the arbitrary or sy stematic ex clusion of a p a rticular racial group renders the jury ‘plainly illeg al in [its] composition.’” I d. at 6 92 (quoting Peters , 407 U .S. at 501). The F ifth Circuit panel ruled a g ainst McGinnis, because althoug h the three were part of a distinctive group, he did not show that their ex cusal rendered the jury “plainly illeg al” a nd h e f ailed to show sy stematic ex clusion. Id. 1 2
W e find the F ifth Circuit’s formulation of Peters in McGinnis apt. On the issue that we filed and set Applicant’s case for, we hold that, on claims that due process was v i o l a t e d by a county ’s employ ment of a racially discriminatory process in constructing its jury panels, a n app l i c ant must make two showing s to sustain his due process-based challeng e: ( 1) sy ste m a t i c ex c lusion o f a particular group; and (2) that ex clusion rendered the jury plainly illeg al in its composition. III — Barchak’s P rocedure Did Not Exclude; Did Not Violate Due P rocess The State concedes that B a rchak utiliz ed a race-based jury sy stem to create jury panels, but the State argu es that there has been no showingof a sy stematic exclusion o f any distinctive g roup. Instead, the State’s p o s i tion is that whatever effect B archak’s process had in a rrang ing and
rearrang ing the juror cards, ultimately they were all reunited into one sing le stack which was then fed into the Tyler Technolog ies sy stem, which had a random output when creating the panels. To the

ex tent that B archak’s process v iolated any thing , the State sug g ests that it violated the Government Code, but the State argu es that statutory violations are not sufficient to establish a violation of due
process.

1 2 Instead, the re c o r d s howed that the three w ere ex c used for non-discriminatory reasons. The first had scheduled a

n out-of-town vacati on. The second had hig h blood pressure and vision problems, and she w orked to support herself. T h e third suffered seiz ures and was o n medication

. McGinnis , 181 F .3d at 689.14

W h ile the State misunderstands the effect of B archak’s process, 1 3 the State is correct that her
sy stem was not desig n ed to ex clude a particular g roup. Instead, B a rchak’s sy stem was desig ned to evenly distribute whites a

nd non-whites, Pearland residents and non-Pearland r esidents, throug hout the r eassembled deck of g eneral v enire cards. The end r esult was a sy stematic inclusion in each jury panel of wh i t e P e a

r l a n d r e s i d e nts, non-white Pearland residents, white residents of the county outside of Pearland, and non-white r esidents of the county outside of Pearland, in t h e same proportion as they w ere in the g eneral venire. Althoug h sy stematic and not race neutral, B archak’s process did not

cause an e x clusion of any g roup of venire persons. T he first prong of McGinnis is not met, and Applicant does not show B archak’s process violated his rig ht to due process of law.
Insofar as Applicant raised a due process violation, we deny relief. IV — Racial Discrim ination in Jury P rocedures Denies Equal P rotection The F ourteenth Amendment also provides: No State shall . . . deny

to any person within its jurisdiction the equal protection of the laws.

1 3 As we understand the State ’ s a r gu m e nt, the State sees the end of B archak’s process as handing the entire reorg aniz e d deck of g eneral venire cards to Hammonds, wh o would then feed them into the Tyler Technolog ies sy stem. Hammonds would then use the Tyler sy stem to output the required number of cards r equested b y each judg e, and the Tyler sy stem would randomly select prospective jurors and g ive those names to Hammonds, the e nd result b eing that B archak’s process would have been for naug ht.
W h ile inputting all of the g eneral venire cards at once into the Ty ler Technolog ies sy stem, which would then o utput randomly selected names based on the number requested, seems to be the recommended use, this is n ot what happened. According to Rang er Norsworthy ’s report, B archak and her assistants d ealt the required number of juror car d s f r o m t h e r eorg aniz ed deck of g eneral venire cards to each judg e’s jury panel. The jury panels were then g iven to Hammonds to separately scan into the Tyler sy stem, and the Tyler sy stem would output those same names, albeit in a random order. Hammonds w ould then arrang e them in alphabetical order before d istributing the lists. As a result, it is the Tyler sy stem’s randomiz ation that is for naug h t.15

U.S. C ON S T
. amend. X I V. E q ual protection of the laws is denied when a defendant is tried under an indictment issued b y a g rand jury , or before a p etit jury , f r om which persons have been ex cluded from those juries solely because o f their race. Hernandez v. Texas , 347 U.S. 475, 477 (1954). Althoug h a defendant has n o r ig ht to a “petit jury composed in whole or in part of persons of [ the defendant’s] own race,” he or she does h av e t h e r i g h t to be tried by a jury whose members are selected by nondiscriminatory c riteria. Powers v. Ohio , 499 U.S. 400, 4 04 (1991) ( quoting Strauder
v. W est Virginia , 100 U.S. 303, 305 (1879)). Althoug h courts used to hold otherwise, “a c riminal defendant may obj ect to race-based

ex c lusions of jurors

. . . whether or not the defendant and the ex cluded juror share the same races.” Id. at 402; Campbell , 523 U.S. at 398 (applying Powers to g rand jury contex t). “ The principles that apply to the sy stematic ex clusion of potential jurors on the gr ound of race are essentially the same for grand juries and for petit juries[

. ] ” Alexander v. Louisiana , 405 U.S. 625, 626 n.3 ( 1972); see,
e.g. , Batson v. Kentucky , 476 U.S. 79, 89 (1986) (in formation o f jury , e qual protection is violated by race-based use of peremptory strikes); Avery v
. Georgia , 345 U.S. 559, 562 (1953) (venire); Alexander , 405 U.S. at 6 28 (g rand jury ); Castaneda v. Partida , 4 30 U.S. 482, 492–93 (1977) (g rand jury ). “[ I ] n order to show that a n equal p rotection violation has o ccurred in the c ontex t of

. . . jury selection, the defend ant must show that the procedure employ ed resulted in substantial underrepresentation o f [ a] race or . . . identifiable g roup[ .] ” Partida , 430 U.S. at 494; O valle v. State , 13 S.W

. 3d 774, 777 ( Tex

. Crim. App. 2000) (citing Partida ). A defendant makes out a p rima facie case if he shows: (1) that a particular g r oup c onstitutes “a recogniz able, distinct c lass, sing led out for16

different treatment under the l a w s , as written o r as applied,” (2) “the deg ree of underrepresentation

. . . by compar i n g the proportion of the g r oup in the total population to the proportion called to serve as g rand jurors, over a sig nificant period of time,” and ( 3) “ a selection procedure that is susceptible of abuse or is not racially neutral.” Ovalle , 13 S.W .3d at 777 (quoting Partida , 430 U.S. at 4 94). Once a prima facie ca s e h a s b een made, the burden shifts to the State to rebut that case. Id. That rebuttal must be made b y more than

a simple protestation that racial considerations p lay ed no part in the selection of jurors, nor can the State rely on a p resumption that officials discharg ed their sworn duties. Pa rtida , 430 U

. S

. at 498 n.19.
V— Barchak’s P rocedure Did Not Cause Statistical Underrepresentation Over a

Signif icant P eriod of

Tim e; Did Not Violate Equal P rotection Applicant contends that B a rchak’s process of dividing juror cards based on the juror’s race and residence g ives rise to an inference of discriminatory purpose, even if the d ifferent stacks were later mix ed tog ether to form a jury panel for a particular c ourt to u se. 1 4 According to Applicant, the taint of racial discrimination c r eated by assembling stacks according to race cannot be erased by the subsequent mix ing of the separate stacks, a nd the burden therefore shifts to the State to demonstrate a racially neutral reason for B a

rchak’s jury

panel formation. The State argu es that a lthoug h race w as initially a consideration in terms o f how she divided these four stacks, there has been no showing b y Applicant that certain r aces or g roups were either

ex c luded or underrepresented. Rather, B archak’s sy stem appears to have been intended to achieve

1 4 B archak’s process actually did not include a step of mix ing the cards. To the ex tent that Applicant’s equal protection argument used the word “mix ed,” we understand he is referring to the fact that the four race-residence decks were ultimately r e c ombined into the reconstituted deck of g eneral venire cards.17

the opposite effect—more even distribution of racial minorities in jury panels. 1 5 Among other thing s, the habeas court found that the record does not show that any specific

races or groups were ex cluded or underrepresented, pointing to an audit done during Rang er Norsworthy ’s investig ation. Rang e r N orsworthy had collected f rom the d istrict clerk’s office several venire panel juror cards, and Dr. Young , Associate Professor o f Educational L eader s hip at L amar University , audited twelve jury selection d ates for venire panel juror cards from October 19, 2020 throug h August 2, 2021 (approx imately 3 3 % o f the total results d uring that time frame). Apparently , “[ t] here were no complete sets of d ata available to conduct an a udit of jury selections prior to 10/2020.” Dr. Young found—throug h the “standard deviation ” m e t h od—only one statistically sig nificant month, N ovember 2 020. During that month, the “other” categ ory was underrepresented by f ive people while the “white” categ ory was overrepresented by four people. Dr. Young a lso found that, when all of the da t a was combined, e ach r acial categ ory was within acceptable or ex pected
rang e s. B ut Dr. Young ’s m o d e l i n g w a s based on d ata from October 2020 to August 2021. As the State admits, B archak’s process had fallen into d isuse at this time

. R a n ge r Norsworthy ’s report indicates that this was because of COVI D-19; the clerk’s offi ce stopped separating cards because fewer jurors w ere available for venire panels. B ut even if B archak was using her sy stem at that time, the data used by Young raises some questions. Young relied on thr e e b o x e s Rang er Norsworthy collected from deputy clerk Hammonds’s office containing jury p anels and questionnaires from

1 5 Althoug h it purported to ag ree with the State, the habeas court found that the record does not show that B archak’s selection sy stem had an impact on the racial composition of jury panels in B r az o ria County . The State’s position is not that there was no impact on the racial composition of the v enire panels. Rather, its position is that there was an impact—the racial c omposition was more evenly distributed.18

approx imately six ty -nine dat e s . O f all the dates listed, only the d ate for August 16, 2021 contains

a note that, “According to R. H ammonds, this selection was d one by B archak.” I t is unclear why only this date was sing led out that way . Moreover, that specific panel date w as not part of Young ’s audit. Nevertheless, we ag ree with the State and the habeas court: Applicant has not proven that equal protection was violated. The crux of Applicant’s claim is whether there was “purposeful” discrimination. On the on e h a n d , B archak’s sy stem intentionally sorted the cards b y race and location. On the other hand, she claimed that she d id this in a n attempt to diversify the jury panels,
not to ex clude any r a ce . T h e sy stem was “purposeful,” a lthoug h it d oes n ot seem to be “discriminatory” in the usual sense of the word. According ly , we have no trouble finding that Applicant h as met the third prong o f PartidaOvalle ; B archak’s sy stem was not racially neutral and was susceptible to abuse. B a rchak’s sy stem considered race as a factor and used manual sorting b y hand by a person, and if the c ard was unclear about whether the prospective juror was white, that person would have to use their own judg ment about whether the juror indicated white or non-white. Compare Pa rtida , 4 30 U.S. at 4 97 (“the Tex as [ key man] sy stem of selecting g rand jurors is hig hly subjective.

. . . the sy stem is susceptible of abuse

as applied.”); and Hernandez v
. S tate , 24 S.W .3d 846, 850 ( Tex

. App.—El Paso 2000) (determining “jury wheel” selection system is not susceptible to abuse and is racially neutral). And if w e a ssume that non-whites c onstitute a recogniz able, distinct class, 1 6 then Applicant

1 6 Other courts have declined to consider the c atch-all group “non-whites ” a d i stinctive g roup for the purposes ofjury selection claims. See United States v. S uttiswad , 696 F .2d 645, 649 (9th Cir. 1982) (rejecting defendant’s sug ge s t i o n to “ ‘add up’ a ll of the separate figures of minority underrepresentation in order to arrive at o n e f i g u r e f o r u n d e r r e p r e s e nt a tion of ‘non-whites[ .] ’”); Gray v. Brady , 592 F .3d 296, 3 06 (1st Cir. 2010) (declining to r ule that “minorities” would constitute a cog niz able g r oup); United States v. Daly , 573 F .Supp. 788, 791 (N.D

. T e x . 1 983) (finding “nonwhite” not a cogniz able, distinct g roup because “the seg ment is by its very definition . . . an open-19

would meet the first prong of the Partida-Ovalle test. Non-whites are sing led out f or di fferent treatment because B archak separated their cards from the cards of white prospective jurors. Applicant, however, has not met the second p rong —i.e., the deg r e e of underrepresentation

over a sig n ificant period of time. Aside from census data, he presents no evidence of the makeup of
ended categ ory .”).
B ut w e take care t o n o t e t hat the g roups found within “non-whites” (the census g roups other than whites in the census data, i.e., Hispanic or L atino, B lack or African American, American Indian and Alaska Native, Asian, Native Hawaiian and Other Pacific I slander) are distinctive on their own. See Aldrich v. State , 9 28 S.W .2d 5 58, 560 (Tex

. Crim. App. 1996) (“W e accept that Hispanics are a distinctive g roup in any community [ .] ”); but see Ovalle , 13 S.W .3d at 777–78 (assuming , without deciding , that Hispanics are a recog niz able, distinct class). See Pondexter , 942 S.W .2d at 580 (African-Americans are a distinctive g roup). See W amget v. State , 67 S.W .3d 851, 854 (Tex

. Crim. App. 2001) (citing United States v. Chalan , 812 F .2d 1302, 1314 (10th Cir. 1987), which recog niz ed striking of American Indians on account of race would violate Equal Protection Clause under Batson ); Hirst v. Gertzen , 676 F .2d 1 252, 1256 n.5 (9th Cir. 1982) (“N a t i v e A m ericans constitute a distinct or identifiable group for purposes of making an equal protecti on challeng e to the [ jury selection] Plan.”); United States v. Y azzie , 660 F .2d 422, 426–27 (10th Cir. 1981) (“There is no question that Indians c onstitute a distinctive g roup in the community [ .] ”); Brower v. State , 683 P.2d 290, 291–92 (Alaska Ct. App. 1984) (on Partida equal protection c laim b ased on a lleg e d ex clusion o f Alaska Natives, rejecting appellant’s claim for failure to show underrepresentation rather than deciding Alaska Natives were not an identifiable g roup). See Kline v. State , 737 S.W .2d 895, 8 99 (Tex

. App.—Houston [ 1 st Dist.] 1987, pet. ref’d) (finding appellant, “of Oriental ex traction,” to be a member o f a c og niz able racial g roup for equal protection claims under Batson ); W

illiams v. State , 634 So.2d 1 034, 1 037–38 (Ala. Crim. App. 1993) (citing Kline for p roposition that “Asians

. . . have been held to be [ a] c og niz able racial g roup[ .] ”); see a lso United States v. Shinault , 147 F .3d 1266, 1271–72 (10th Cir. 1998) (on Six th Amendment fair cross section claim, considering alleg ed underrepresentation of Asians after g o vernment conceded Asians were a distinctive g roup); People v. Luong , 378 P.3d 8 43, 848–52 (Colo. App. 2016) (finding trial counsel not ineffective f o r n o t o b

j ecting to r acial makeup of jury panel based on alleg ed u nderrepresentation of A sians and Asian-Americans; implicitly accepting those were distin c t i v e g roups). See R ice v. Cayetano , 528 U.S. 495, 5 14–15 (2000) (treating discrimination on the b asis of Hawaiian ancestry as a facial race classification because “[ a] ncestry [ was] a prox y

for race”).20

jury panels during the time B archak’s process was in use. See, e .g. , Carillo v. State , 566 S.W .2d 902, 918 (Tex

. Crim. App. [ Panel Op.] 1978) (rejecting Partida equal protection c laim where “There was

no e vidence

. . . that underrepresentation on the grand jury had occurred over a sig n ificant period of time.”); Villa v. Commercial Union I ns. Co. , 635 S.W .2d 929, 931 (Tex

. App.—Amarillo 1982, no writ) ( in civil workers compensation case, rejecting Partida equal protection c laim where plaintiff “introduced no evidence of the proportion of Mex ican-Americans summoned to serve as jurors over

a sig nificant period of time.”). Instead, the record before us shows the opposite: according to Rang er Norsworthy ’s report, there w er e “ n o complete sets of d ata available to c onduct an audit of jury selections prior to 10/2020.”
Insofar as Applicant r aised an equal protection violation, becaus e A p p l i c a nt h a s n o t p r e s e nted historical statistical data, we deny r elief. However, Applicant does present data from his own trial, and we turn to whether his specific jury panels w ere rendered unconstitutional by B a rchak’s sy stem under the Six th Amendment, rather than the F ourteenth Amendment. IV — Racial Discrim ination in Jury P rocedures Denies An Im partial Jury The Six th Amendment provides:
In all criminal prosecutions, the accused shall enjoy the rig ht to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed

. . . . U.S. C O N S T
. amend VI (emphasis added). T h e Impartial J ury Clause applies to the States by virtue of the F ourteenth Amendment’s Due Process Clause. Duncan v. L o u i s i a n a , 3 91 U.S. 145, 149 (1968) (“B ecause we believe that trial by jury in criminal cases is fundamental to the A merican scheme of justice, we hold that the F o urteenth A mendment gu arantees a rig h t of jury trial in all criminal cases which—were they to b e t r ied in a federal court—would come within the Six th Amendment’s21

guarantee.”); Bullard v. State , 5 48 S.W .2d 13, 19 (Tex

. Crim. App. 1977) (citing D u ncan ); Franklin v. State , 576 S.W .2d 621, 623 (Tex

. Crim. App. 1978) (same). 1 7
In considering the Six th Amendment rig h t to jury trial, the Supreme Court “unambiguously declared that t h e A m e rican concept of the jury trial contemplates a jury drawn from a fair cross section of the community .” Taylor v. Louisiana , 419 U .S. 522, 526–27 (1975). “The unmistakable import of [ the Supreme Court’s] opinions

. . . is that the selection o f a petit jury from a representative

cross section of the community is an essential component of the Six th Amendment r i gh t t o a jury trial.” Id. at 528. Indeed, the fair cross section requirement is fundamental because:
T h e p u r p o s e of a jury is to guard ag ainst the e x ercise of arbitrary p ower—to mak e available the commonsense judg ment of the com m u n i t y a s a h edg e a g ainst the overz ealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased r esponse of a judg e. . . . This prophylactic vehicle is not provided if the jury po o l i s m a d e up of only special seg ments of the populace or if larg e, distinctive g roups are ex cluded from the pool. Community participation in the administration of th e c r i m i n a l law, moreover, is not only consistent with our democratic heritag e but is also critical to public c onfidence in the fairne s s o f t he criminal justice sy stem. Restricting jury service to only special g r oups or ex cluding identifiable seg ments playing major roles in the community cannot be squared with the constitutional concept of jury trial. Id. at 5 3 0. B ut while “petit juri es must be drawn from a source fairly representative of the community ,” there is “no requirement that petit juries actually chosen must mirror the community and reflect the various d istinctive g roups in the population.” I d. at 538. “Defendants are n ot entitled

1 7 I t has been sug g ested t h a t “the appropriate vehicle for incorporation may well be the F ourteenth Amendment’s Privileg es or Immunities Clause, rather than, as [the Supreme] Court has long assumed, the Due Process Clause.” Timbs v. Indiana , 139 S.Ct. 682, 691 (2019) ( Gorsuch, J ., concurr i n g); see also id. at 691–98 (Thomas, J ., concurring ) (arg u ing that the Privileg es or Immuniti es C l au s e is the proper doctrinal basis for incorporation of the E ig hth Amendment); McDonald v. Chicago , 561 U.S. 7 4 2 , 8 0 5

– 58 (2010) (Thomas, J ., concurring ) (arg uing f or incorporation of the Second Amendment v ia the Privileg es or Immunitie s C l a u s e , r ather than the Due Process Clause, a

nd documenting evidence that the framers of the F ourteenth A mendment intended the Privileg es or Immunities Clause to incorporate the B ill of Rig hts).22

t o a j u ry of any particular composition

. . . but the jury wheels, pools o f n ames, panels, or venir e s from which juries are drawn must not sy stematically ex clude distinctive g roups in the community and thereby

fail to be reasonably

representative thereof.” Id.
In order to establish a prima facie violation of the fair-cross-section requirement, the d e fendant must show ( 1) that the gr oup alleg ed to b e ex cluded is a “distinctive ” g ro up i n t h e community ; (2) that the r epresentation of this g roup in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community ; and (3) that this underrepresentation is due to sy stematic ex c lusion of the g roup in the jury -selection process.
Duren v. Missouri , 439 U .S. 357, 364 (1979); Pondexter v. State , 942 S. W

. 2 d 5 7 7 , 5 8 0 –81 ( Tex

. Crim. App. 1996) (apply

ing D uren test).
“A criminal defendant has standing to c halleng e e x c l u s i o n resulting in a violation of the fair-cross-section requirement, whether or not he is a member of the ex cluded class.” Duren , 439 U.S. at 359 n.1. Once a prima facie c ase has been made, the burden shifts to the State to show how
any disproportionate ex clusion manifestly a n d primarily advances a sig n ificant g overnmental interest. Id. at 367–68; Aldrich , 928 S.W .2d at 560 (citing Duren ). VII(1) — Distinctive G roups Althoug h Applicant did not ex plicitly ra i s e a S i x th Amendment claim, because of the seriousness of his alleg ations and the supposed lack of d emog raphic data necessary to address the Equal Protect i o n Clause claim, this Court asked for finding s on remand on whether Applicant’s specific jury

panel represented a fair cross section of his community

. T h e S t a t e argues that Applicant’s jury panel represented a fair cross section of th e

commu n i t y , and habeas counsel concedes as much, at least as it pertains to black people. After loo k i n g a t t he racial composition of Applicant’s two panels, the habeas court made a similar23

conclusion: Applicant’s specific jury panels represented a fair cross section of his community

. As a preliminary matter, w e n ote that the parties seemed to look only at the number of black people on Applicant’s jury , presumably because Applicant himself is black. B ut Six th Amendment fair cross section claims are not limited to the d e fendant’s racial class. D uren , 439 U.S. at 359 n.1. And we know that B archak’s sorting sy stem was not black-and-white; rather, her sy stem was whiteand-non-white (and Pearland-and-non-Pearland). N on-whites includes distinctive g r oups within the community (i.e., Hispanic or L atino, B lack or Afr i c a n A m e rican, American Indian and Alaska Native, Asian, Native Hawaiian and other Pacific I slander). And whites a re themselves a distinctive
g roup within the community . Applicant has met the first Duren prong . VII(2) — Did Not System atically Exclude; Did Not Violate Im partial Jury Clause W e need not decide whether the second Duren element is met—i.e., whether the data shows that the representation o f n o n-whites in Applicant’s jury panels was n ot f a ir a nd reasonable in relation to the numbe r o f non-whites in the community —because he fails to meet the third Duren
prong —i.e., that there was a sy stematic ex clusion that caused the underrepresentation. Even if Applicant’s jury panels were statistically non-representative o f B raz oria County , “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). W h at the Constitution requires is “selection of the panel . . . without discrimination as to race.” Id. The third Duren p rong must be proved b y m o r e t h an a showing of underrepresentation; “[ d] isproportionate representation in a sing le panel does not demonstrate the
sy stematic ex clusion of distinctive g roups in v i o l ation of a ppellant’s rig h ts under the Six th Amendment.” Id. As we discussed with reg ard to the due process claim, B archak’s procedure w as undoubtedly24

sy stemati c . Bu t just like the due process claim, that sy stem must cause an “ ex clusion.” And as discussed with the due process claim, her sy stem was actually desig ned to be inclusive, by seeking
to e nsure that each jury panel matched, a s nearly as possible, the proportions of the g eneral venire.
Even if we assume that Applicant’s j u ry panels were n on-representative of B raz oria County , that would be an indication that t h e O c t o b er 10 and November 14 g e neral venires themselves were

u n d e rrepresentative when compared to the community

. There can be several reasons fo r w h y a particular g eneral venire may fail to represent the community —a county ’s list of prospective jurors mig ht not f

airly reflect the c ommunity ; a list could b e a fair r eflection, but the prospective jurors who

were ra n d omly selected for jury duty were not a fair cross section; or the prospective jurors who received summonses could be a fair c ross section, b ut the ones who r esponded and showed up were
not. 1 8 B ut nothing of the sort is in the record, and there is no sug g estion that B archak’s process had
any role to play in which B raz oria County residents received jury summons nor any role to play in which summoned jurors responded and appeared. According ly , reg ardless of whether Applicant’s jury p anels were repre s e nt a t i ve of a fair cross section o f the c o mmunity , “[ n] o opportunity or method for sy stematic ex clusion is shown.” May , 738 S.W

. 2d at 269. The third Duren prongis not met. Applicant has failed to show that his right to an impartial jury

under the Six th Amendment was violated.

V III — Article 35.11 Was Not Violated

1 8 See Spencer v
. State , No. 11-02-00306-CR, 2003 WL 22233540, at *5–6 ( Tex

. App.—Eastland Sept. 2 6, 2003, pet. struck) (not desig n ated for publication) (rejecting D uren claim where the p eople receiving jury summons were proportional, but only 7% of those reporting for jury duty were His p a n i c al t h oug h they were 25% of Dallas County ; defendant merely showed that a disproportionate number of H ispanics f a i l ed to r eport for jury duty) ; Puente v. State , No. 11-02- 00331-CR, 2003 W L 21804906, at *3 (Tex

. App.—Eastland Aug

. 7, 2003, no p et.) ( not desig nated for publication) (same).25

In addition to his claims that B archak’s process violated the constitution, Applicant alleg es it violated article 35.11 of the Code of Criminal Procedure, which provides: The trial judg e, o n t h e d e m a n d of the defendant or his attorney , or of the State’s counsel, shall cause a sufficient number of jurors from which a jury may be selected to try the case to b e randomly selected from the members of the g eneral p anel drawn or assig n ed as j urors in the case. The clerk shall randomly select the jurors by a computer or other process of random selection and shall write or print the names, in the order selected, on the jury list from which the jury is to be selected to try the c ase. The clerk shall deliver a copy of the list to the State’s counsel and to the defendant or his attorney

. T E X
. C O D E C R

I M
. P R O C . Ann. art. 35.11 (emphasis added).
W h ile Applicant is correct that this statute unequivocally places a duty upon the district clerk
to randomly select jurors, 1 9 he misses that this is the “ jury shuffle” statute. I ts p rovisions come into play “on demand of the defendant o r h i s a t t o rney , or of the State’s counsel,” and the jurors to be shuffled are “from the members of the general panel drawn or assig ned as jurors in the case” (i.e., the already selected jury panel). Neither of Applicant’s jury panels w e r e s h u f f l e d , and there is no claim that Applicant o r the State demanded a shuffle and that the shuffle was improperly performed
t h roug h B a

rchak’s process instead of random selection. Strictly as a matter of form, B archak’ s process did not violate article 35.11.
In any event, even if article 35.11 was violated, Applicant misses that this is h abeas corpus,
not direct appeal. Purely statu t o ry v i o lations a re not cog n iz able in habeas c orpus. See Ex parte Johnson , 541 S.W .3d 827, 829–30 (Tex

. Crim. App. 2017) ( holding habeas corp u s is not an appropriate vehicle for a claim based purely on statute). “[ W] e do n ot sanction noncompliance with

1 9 T E X
. C O D E C R

I M
. P R O C

. A nn. art. 35.11 (“The clerk shall randomly select the jurors by a computer or other process of random selection.”); T E X
. G O V ’ T C O D E Ann. § 311.016(2) (“‘Shall’ imposes a duty .”).26

procedural rules desig ned to safeg uard constitutional rig hts.” Ex parte Sadberry , 864 S.W .2d 541, 543 (Tex

. Crim. App. 1993). B ut violations of such procedural rules and statutes are not a basis f or habeas c orpus relief, even if they are “mandatory ” and desig ned to protect a defendant’s constitutional rig ht to a jury trial. See Ex parte McCain , 6 7 S.W .3d 204, 211 (Tex

. Crim. App. 2002) (holding non-cogniz a

ble v iolation of article 1.13(c), the statutory r equirement that trial c ourt appoint counsel for an unrepresented defendant before that def endant may waive jury

); Sadberry , 864 S.W

. 2d at 543 (holding n on-cogniz able violation of article 1.13(a), the statutory requi rement that jury waiver must be made in p erson by the defendant in writing ); Ex parte Douthit , 232 S.W .3d 69, 74 (Tex

. Crim. App. 2007) (holdingnon-cogniz able violation of article 1.14, which at the time of defendant’s trial prohibited jury waiver in capital felony

cases).
Even if we assume that Applicant has shown a violation of article 35.11, he is not entitled to habeas corpus relief.
Yet that d o es not mean article 35.11 is unoffended. While it d id not violate the letter of the law, her process violated the spirit of the law. “The jury shuffle is desig ned to e nsure the compilation of a random list of jurors.” Ford v. State , 73 S.W .3d 923, 9 26 ( Tex

. Crim. A p p . 2 0 0 2 )

. “[ T] he
purpose of the statute is

. . . to ensure that the members of the venire are listed in r andom order.” Id.
B a rchak’s process was sy stematic and desig ned to control the distribution of white-and-non-white and Pearland-and-non-Pearland jurors. That is not random. IX — Conclusion
In conclusion , u

pon the issue we filed and set this case, w e h old that the McGinnis test applies to a claim that a Tex a s c ounty ’s method o f assembling jury panels v iolates due process because it involves racial discrimination. In order to obtain relief, a litig a nt needs to show: ( 1)27

sy stematic ex clusion of a particular g roup; and (2) that e x clusion rendered the jury plainly illeg al in its composition. On the merits, w e ag r ee with the habeas court tha t f o r mer B raz oria County District Clerk Rhonda B archak utiliz ed a race-based sy stem to create jury p anels. However, we disag ree with the habeas court’s conclusion that her sy stem did not impact the racial composition of panels in B raz oria County

. B archak’s sy stem w as desig n ed to have a racial impact: it was calculated to yield jury panels having , a s near l y a s possible, the same p roportional makeup of whites and non-whites, Pearland residents and non-Pearland residents, as the g eneral venire. N evertheless, we ag ree with the habeas
court that there is no showing under McGinnis that B a rchak’s sy stem caused the ex clusion or underrepre s e n t a t ion of non-whites. Instead, her sy stem was meant to have the opposite effect: inclusion and representation. Applicant has not shown a violation of the Due Process Clause of the
F ourteenth Amendment.
H e h a s a l s o not shown a violation of the Equal Protection Clause of the F ourteenth Amendment. There is no showing under Partida-Ovalle that B archak’s sy stem caused non-whites to be disproportionately left out of jury service over a sig

nificant period of time. Additionally , B archak’s process did not violate the Impartial J ury C lause of the Six th Amendment because, reg ardless of wheth e r Ap plicant’s particular jury p anels were fair and representative i n r e l at i o n to the community , there is no showing under Duren that her procedure
sy stematically

ex cluded non-whites and was the cause of any underrepresentation.
W e ag ree with the habeas court that any error c aused by B archak’s p rocess is not structural. According ly , Applicant is n ot entitled to hab e a s c o rp u s relief. W e adopt the h abeas court’s recommendation, and we deny the application.28

Delivered: July

31, 2024 Publish