IN THE

COURT OF APPEALS

FOR THE 

FOURTH SUPREME JUDICIAL DISTRICT

OF TEXAS

SAN ANTONIO, TEXAS

* * * * *

______________________

No.04-13-00530-CR

_______________________

OSCAR DAVID PARDO

Appellant

VS.

STATE OF TEXAS

Appellee

_______________________________________

Appealed from the 379 District Court TH

of Bexar County, Texas

Trial Court Cause No. 2011-CR-5260

________________________

MOTION FOR REHEARING BY APPELLANT

_______________________

ORAL ARGUMENT REQUESTED BARRY P. HITCHINGS

645 South Presa

San Antonio, Texas 78210

(210) 224-1433

(210) 224-4840 (telecopier)

State Bar No. 09723600

ATTORNEY FOR APPELLANT

ACCEPTED

04-13-00530-CR

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

1/5/2015 12:08:32 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 1/5/2015 12:08:32 PM KEITH E. HOTTLE Clerk
INDEX OF AUTHORITIES

TEXAS CASES Page(s)

Brown v. State, 913 S.W.2d 581 (Tex. Crim. App.

1996) . . . . . . . . . . . . . . . . . . . . 21-22

Cannady v. State, 11 S.W. 3d 205 (Tex. Crim. App.

2000). . . . . . . . . . . . . . . . . . . . . 20

Esquivel v. State, 595 S.W. 2d 516 (Tex. Crim. App. 

1980). . . . . . . . . . . . . . . . . . . . . 16

Feldman v. State, 71 S.W.3d 738 (Tex. Crim. App.

2002 . . . . . . . . . . . . . . . . . . . . . 19

Gonzales v. State, 353 S.W.3d 826 (Tex. Crim. App.

2011 . . . . . . . . . . . . . . . . . . . . 19-20

Hendrickson v. State, 500 S.W. 2d 491 (Tex. Crim.

 App.1973) . . . . . . . . . . . . . . . . . . . 16

Jones v. State, 928 S.W.2d 386 (Tex. Crim. App.

1998) . . . . . . . . . . . . . . . . . . . . . 21

Martinez v. State, 621 S.W. 2d 797 (Tex. Crim. App.

1981) . . . . . . . . . . . . . . 13, 15-18, 22-23

Moore v. State, 542 S.W. 2d 664 (Tex. Crim. App.

1976) . . . . . . . . . . . . . . . . . . . . . 16

Payton v. State, 572 S.W.2d 677 (Tex. Crim. App. 

1978) . . . . . . . . . . . . . . . . . . . . . 17

Pearce v. State, 513 S.W.2d 539 (Tex. Crim. App.

1974) . . . . . . . . . . . . . . . . . . . . . 16

Sanne v. State, 609 S.W. 2d 762 (Tex. Crim. App.

1980) . . . . . . . . . . . . . . . . . . . . . 16

Valore v. State, 545 S.W. 2d 477 (Tex. Crim. App.

1977) . . . . . . . . . . . . . . . . . . . . . 16

TEXAS STATUTES AND CODES

TEX. CRIM. PROC. CODE ANN. Art 35.16 (b) 3 (Vernon

2013) . . . . . . . . . . . . . . . . . 18, 20, 22

ii
APPELLANT’S MOTION FOR REHEARING POINT OF ERROR NO. 1

THE COURT OF APPEALS ERRED IN HOLDING

THAT THE TRIAL COURT DID NOT ABUSE ITS

DISCRETION IN GRANTING THE STATE’S

CHALLENGE FOR CAUSE AND DISMISSING

VENIRE MEMBER 17 WHEN VENIRE MEMBER 17

DID NOT STATE THAT: (1) HE COULD NOT

FOLLOW THE LAW BECAUSE HE COULD NOT SIT

IN JUDGMENT OF ANOTHER PERSON AND (2) HE

(ABSOLUTELY) WOULD AND COULD NOT FOLLOW

THE LAW AND APPLY THE LAW TO THE FACTS

Statement of the Facts

In its December 17, 2014 Memorandum Opinion and

Judgment, the Court of Appeals ruled that the trial court 

“did not abuse its discretion in granting the State’s

challenge for cause and dismissing venire member number

17" (i.e. Kevin Post) since venire member number 17

“expressed prejudice, ‘in essence’, against all phases of

the applicable law.” Opinion at pages 6-7. However, a

detailed review of the facts as shown in the reporter’s

record shows that such was not the case. A chronological

recital of the reporter’s record in voir dire as it

relates to venire member number 17 (Kevin Post) is set

forth below: 

1
MS. RUMMEL: . . . . Okay. Ultimately you’re

going to be given the charge of the Court,

the law, and you’re going to be asked, did

the defendant commit the crime, and you have

to return a verdict of guilty or not guilty.

You’ll be asked to sit in judgment of

another, and whether it be a personal

belief, a moral belief, a just I’d-rathernot-belief, whatever it may be, is there

anybody that absolutely will not sit in

judgment of another. Okay. Number 17 [Kevin

Post]

And usually I do a caveat with this one

too. Not that you’d rather not sit in

judgment, but just cannot do it, will not do

it. Is 17 the only one?

VENIREPERSON: No.

MS. RUMMEL: 1, 3. Okay. Before everybody

raises their hands again, not would you

rather not do it, but you absolutely will

not return a verdict. You will not follow

the law. You will not apply the law to the

facts and you will not return a verdict.

Okay. Again, if you absolutely cannot do it,

please raise your hand. It could be the same

numbers. I’m just explaining it. Okay.

Number 1, 3, 5. 

VENIREPERSON: I have a question.

MS. RUMMEL: Okay. I’ll go over it again. 1

[Ms. Diana Martinez], 3 [Mr. Francis

Tejeda], 5 [Mr. Brendan Cockman], 6 [Ms.

Anita Gonzales], 17 [Mr. Kevin Post].

Anybody else over here?

THE REPORTER: He said, I’m not sure I

understood the question.

2
VENIREPERSON: My thing is, I can make a

judgment, but under these kind of

circumstances - - 

MS. RUMMEL: That was a whole separate

question.

VENIREPERSON: Okay. Thank you.

MS. RUMMEL: Yes. And we are taking notes

down - - 

MR. MACH: May he be allowed - - Your Honor

- - excuse me, counsel. Can he be allowed to

finish his answer? He was a few words into

it and she just cut him off and started on

something else.

THE COURT: Well, they’re conversing. This

whole process is hopefully one where the

jury and the attorneys can engage each

other, so you’re welcome to follow up when

it’s your turn and ask whatever you desire.

MR. MACH: All right. Thank you, sir.

MS. RUMMEL: And I apologize I was cutting

you off. You said you had an issue on this

type of case.

VENIREPERSON: Right. I just wanted to be

sure.

MS. RUMMEL: Sure. And I certainly understand

that. This is just notwithstanding the type

of case, there are some people that just

won’t judge for whatever reason. They just

will not do it, cannot do it, and they will

not ever sign a verdict form, okay?”. . . .

(RR. Vol 2, pp. 61-62)(Emphasis Added)

3
MR. MACH: All right. Mr. Post [Venireperson

Number 17]

VENIREPERSON: Yes, sir. . . .

MR. MACH: Okay. Did you raise your hand to

anything?

VENIREPERSON: Yeah. I don’t feel comfortable

in sitting in judgment of anyone else.

MR. MACH: Without getting too specific, is

that a religious conviction or a moral?

VENIREPERSON: I don’t believe in a God, so

no.

MR. MACH: Well, strike religious out of it

then. You just don’t think - - 

VENIREPERSON: It’s mine to take and I don’t

feel comfortable with it. 

MR. MACH: Okay. Did you raise your hand to

anything else - - 

VENIREPERSON: Nope.

MR. MACH: - - we talked about?

VENIREPERSON: Nope.

MR. MACH: All right. Thank you, sir.

(RR. Vol 2, pp. 116-117)(Emphasis Added).

At the conclusion of the voir dire the trial court

judge then commented:

4
THE COURT: All right. The jury panel has

been excused. Just for the record, the

parties have indicated that they agree to

strike numbers 1 [Ms. Diana Martinez], 5

[Mr. Brendan Cockman], 7 [Ms. Yolanda

Kathryn Stanton], 14 [Ms. Amanda Marie

Sanchez], 30 [Ms. Suzanne Deborah Martel]

and 49 [Ms. Daryl Ann Denman]. Is that

correct?

MS. RUMMEL: Uh-huh.

THE COURT: For the record, is that a yes?

MS. RUMMEL: Yes, That is correct from the

State. And 14 and 49 are already - - 

MR. MACH: That’s correct. That’s correct.

MS. RUMMEL: - - excused.

THE COURT: Okay. Now, Mr. Mach, were there

any that you wanted to bring up?

MR. MACH: I had marked in addition - - the

Court may have marked 8, 19 48 twice. That

can’t be. 42.

THE COURT: Okay. All right. Let’s bring up

Number 8, Serna.

MR. MACH: Which ones do you want?

MS. RUMMEL: I said 8 [Rogelio Flores Serna],

17 [Kevin Post] and 25 [Gerardo Silva].

There was no other - - there was no others

in the first then that you wanted to bring

up?

MR. MACH: Does the Court have others that we

had - - didn’t mention?

5
THE COURT: Well, kind of up to y’all.

MR. MACH: I’d like to bring up the Court’s

list.

THE COURT: I got a few, but it’s kind of up

to y’all. If y’all are okay with - -

MR. MACH: No.

THE COURT: Let’s bring him up to the mike.

Let’s bring him up to the mike.

All right, sir. You are Number 8 [Rogelio

Flores Serna]; is that correct? Is that

right, sir?

VENIREPERSON: Sir, how are you?

THE COURT: Good, good. We asked you back

because one or more or both sides may have

more questions for you, all right?

VENIREPERSON: Okay.

(RR. Vol 2, pp. 146-147)(Emphasis Added)(Names and

numbers of venirepersons found in Supplemental Clerk’s

Record pp, 3-6). At the conclusion of the voir dire, in

response to the trial court judge’s query of “were there

any that you wanted to ‘bring up’ for additional

questioning, the Appellant’s attorney (Mr. Mach) and the

State’s attorney (Ms. Rummel) identified venire members

8, 17, 19, 25 and 42 as persons they wanted to further

6
question before the bench.(RR. Vol. 2, p. 147). The

State’s attorney (Ms. Rummel) and the Appellant’s

attorney (Mr. Mach) then proceeded to question

venireperson number 8 (Rogelio Flores Serna) before the

trial court judge and outside of the presence of the

other venirepersons. (RR. Vol. 2, pp. 148-153). After

granting the State’s challenge for cause against

venireperson number 8 (Mr. Serna), the following exchange

took place:

MS. RUMMEL: The State requested to bring up

Number 17 [Mr. Kevin Post].

THE COURT: All right. So Number 17, the

State’s going to challenge him?

MS. RUMMEL: Uh-huh.

THE COURT: All right. He mentioned in

several different instances he would not be

fair and he is the individual that said that

he could not sit in judgment of another one;

is that correct?

MS. RUMMEL: Yes. And then I followed - - I

believe that I said, Will you follow the law

and can you render a verdict, and he said,

No, I can’t do it. Won’t follow the law,

Judge.

MR. MACH: Let’s give him a chance.

THE COURT: All right. I’m going to grant the

7
State’s challenge for Number 17.

MR. MACH: Well, Your Honor, I respectfully

request a chance to rehabilitate him.

THE COURT: Yes, sir. You had an opportunity

to question him during voir dire and you did

talk to him in voir dire and I’ll deny that.

(RR. Vol. 2, pp. 153-154)(Emphasis Added)

As noted in Appellant’s Brief, Appellant’s trial

attorney objected to the exclusion of Venireperson Number

17 (Kevin Post) by the trial court, requested additional

preemptory strikes, objected to venireperson numbers 31

and 33 being included with the jury and moved for a

mistrial which was all denied by the trial court.

(Appellant’s Brief pp. 19-22). 

After reviewing the reporter’s record (as cited

above) the Court of Appeals concluded that:

“the essence” of the statements made by

venire member number 17 was that he could

not follow the law because he could not sit

in the judgment of another person. When

asked whether he would follow the law and

apply the law to the facts, venire member

number 17 expressed that he absolutely could

not do it. Thus, venire member number 17

expressed prejudice, “in essence”, against

all phases of the applicable law. Because

bias or prejudice against any law upon which

the State intends to rely is a proper ground

8
for a challenge for cause under the Code, we

hold the trial court did not abuse its

discretion in granting the State’s challenge

for cause and dismissing venire member

number 17. See Gonzales, 353 S.W.3d at 831.

Court of Appeals Opinion at pp. 6-7. However, the

conclusion of the Court of Appeals that venire member

number 17 stated that: (1) he could not follow the law

because he could not sit in the judgment of another

person; and (2) he (absolutely) would not follow the law

and apply the law to the facts is contrary to the

statements made by venire member 17 [Mr. Post] in the

reporter’s record. 

The alleged statements attributed to venire member 17

that he (1) could not follow the law, (2) could not sit

in the judgment of another person, and (3) he absolutely

could not follow the law and apply the law to the facts

were not statements made by venire member number 17, but

were in fact statements and arguments made by the

prosecutor Lorina Rummel which she attributed to venire

member number 17. (RR. Vol. 2, pp. 61-62). Venire member

17's only “mistake” was to raise his hand because he had

9
a question.” (RR. Vol. 2, pp. 61-62). The Court Reporter

stopped the prosecutor to inform the prosecutor that –

“He said, I’m not sure I understood the question.” (RR.

Vol. 2, p. 62). The venire member responded by stating:

VENIREPERSON: My thing is, I can make a

judgment, but under these kind of

circumstances - - 

when he was interrupted by the prosecutor before he could

finish his statement. (RR. Vol 2, p. 62). When

Appellant’s trial attorney complained to the trial judge

that “she just cut him off” the trial judge informed

Appellant’s trial attorney that “you’re welcome to follow

up when it’s your turn and ask whatever you desire.” (RR.

Vol 2, pp. 61-63). When Appellant’s trial attorney

questioned venire member 17 (Mr. Post), if he had raised

his hand to anything, Mr. Post responded by stating:

VENIREPERSON: Yeah. I don’t feel comfortable

in sitting in judgment of anyone else. . . .

and I don’t feel comfortable with it.

(RR. Vol. 2, p.117)(Emphasis Added). When the Appellant’s

trial attorney asked venire member 17 if he had raised his

hand to anything else, venire member 17 responded –

10
“Nope.” (RR. Vol 2, p. 117). 

After the State requested to bring venire member 17

[Kevin Post] before the bench for questioning on a

challenge for cause (and apparently without venire member

17 being before the bench) the trial court judge showed

confusion as to the statements actually made by Mr. Post

when the trial judge stated:

THE COURT: All right. He mentioned in

several instances he would not be fair and

he is the individual that said he could not

sit in judgment of another one; is that

correct?

MS. RUMMEL: Yes. And then I followed - - I

believe that I said, Will you follow the law

and can you render a verdict, and he said,

No, I can’t do it. Won’t follow the law.

Judge.

(RR. Vol 2, p. 153)(Emphasis Added). However, the

statements of the trial court judge and the prosecutor

attributed to Kevin Post (venire member number 17) are

not supported by the reporter’s record and are, in fact,

contrary to the reporter’s record. Such statements are

solely the prosecutor’s argument, not the statements of

venire member number 17. Venire member 17 (Kevin Post’s)

11
only “statements” were: (1) “I have a question”; (2) “My

thing is, I can make a judgment, but under these kind of

circumstances - -”; (3) “Right. I just wanted to be

sure”; (4) ”Yeah, I don’t feel comfortable in sitting in

judgment of anyone else”; (4) “It’s mine to take and I

don’t feel comfortable with it”; and (5) “Nope” (when

asked by Appellant’s trial attorney if he had raised his

hand to anything else.” (RR. Vol. 2, pp. 61-62, 116-117).

Five (5) venire members raised their hands in

response to the prosecutor’s question of “is there

anybody that absolutely will not sit in judgment of

another?” (RR. Vol 2, p. 61). The five (5) venire

members were numbers: 1 [Ms. Diana Martinez who was an

agreed strike]; 3 [Mr. Francis Tejeda - struck for cause

when he admitted he couldn’t be fair]; 5 [Mr. Brendan

Cockman who was an agreed strike]; 6 [Ms. Anita Gonzales

- struck for cause when she said “I cannot be fair”]; and

17 [Mr. Kevin Post]. (Supplemental Clerk’s Record pp, 3-

6; RR. Vol 2, pp. 91, 94-96, 146-147). Of the five (5)

venire members the only disagreement between the State

and the Appellant concerned venire member 17 (Kevin

12
Post).

Argument and Authorities

The Court of Appeals’ December 17, 2014 Memorandum

Opinion and Judgment ignores the Texas Court of Criminal

Appeals opinion in Martinez v. State, 621 S.W.2d 797

(Tex. Crim. App. 1981) which was argued by Appellant in

his Appellant’s Brief and Reply Brief of Appellant. As

previously set forth in Appellant’s two briefs, in the

Texas Court of Criminal Appeals en banc opinion in

Martinez, the venire member Mr. Clifford, following

general and individual voir dire, was called to the bench

to answer specific questions. While answering questions

by the trial court judge, venire member Clifford stated

“I don’t think I am qualified to sit in judgment of

another human being” and “I think the responsibility is

more awsome [sic] than I want to accept to judge another

human being” when the trial court judge interrupted the

prosecutor and stated “I am going to excuse him” over the

objections of the Appellant’s attorney. Id. at 798.

In comparing venire member Clifford (in Martinez)

with venire member Post in Appellant’s case, there are

13
striking similarities and differences. Venire member

Clifford was questioned at the bench following general

and individual voir dire. Despite the State’s request to

bring venire member Kevin Post before the bench to

question him, the trial court judge granted the State’s

challenge for cause (to venire member Post) over the

objection of Appellant’s trial attorney without either

side having an opportunity to question venire member Post

before the bench (despite such a request by the State).

As noted previously, the trial court judge showed

confusion as to the statements actually made by venire

member Post when the trial court judge commented that

“[h]e mentioned in several instances that he could not be

fair and he is the individual that said he could not sit

in judgment of another. . . .” (RR. Vol. 2, p. 153). The

trial court judge granted the State’s challenge for cause

based upon the prosecutor’s erroneous claims attributed

to venire member Post that – “I believe that I said, Will

you follow the law and can you render a verdict, and he

said, No, I can’t do it. Won’t follow the law, Judge.”

(RR. Vol. 2, pp. 153-154). However, the record fails to

14
show such statements by venire member Post. When

Appellant’s trial attorney stated - “Let’s give him a

chance” the trial court judge responded by stating – “I’m

going to grant the State’s challenge for Number 17.” (RR.

Vol. 2, p. 154).

Venire member Clifford in Martinez expressed the same

reservations as venire member Post when venire member

Clifford told the trial court judge that “I don’t think

I am qualified to sit in judgment of another human being”

and “I think the responsibility is more awsome [sic] than

I want to accept to judge another human being. . . .”

Martinez at 798. Both venire members Clifford (in

Martinez) and Post (in Appellant’s case) expressed “a

disinclination to accept responsibility” in judging

another person. Venire member Clifford was “struck” for

cause by the trial court in Martinez for expressing such

a disinclination. After the State requested that venire

member approach the bench for questioning, venire member

Post was “struck” for cause by the trial court before

either the State or the Appellant questioned venire

member Post before the bench. The trial court judge

15
granted the State’s challenge for cause to venire member

Post in Appellant Pardo’s case based upon the same

reservations and disinclination expressed by venire

member Clifford in the Martinez case.

As pointed out in the Appellant’s Brief and the Reply

Brief, the Texas Court of Criminal Appeals in Martinez in

quoting from Esquivel v. State, 595 S.W.2d 516, 524 (Tex.

Crim. App. 1980) noted that the Esquivel court reiterated

the well settled rule that:

[a] trial judge should not on its own motion

excuse a prospective juror for cause unless

he is absolutely disqualified from serving

on a jury. This rule is also stated in Sanne

v. State, 609 S.W.2d 762, 770 (Tex.Crim.App.

1980), Valore v. State, 545 S.W.2d 477

(Tex.Crim.App. 1977), Moore v. State, 542

S.W.2d 664 (Tex.Crim.App. 1976), Pearce v.

State, 513 S.W.2d 539 (Tex.Crim.App. 1974)

and Hendrickson v. State, 500 S.W.2d 491

(Tex.Crim.App. 1973).

Id. at 797-798. (Emphasis Texas Court of Criminal

Appeals). The Texas Court of Criminal Appeals in Martinez

in reversing the judgment of the trial court emphasized 

that under the Texas Code of Criminal Procedure – “A

disinclination to accept responsibility is not listed as

a reason for the trial judge sua sponte to excuse a

16
venire person” and “[t]he trial court judge clearly

erred.” Id. at 799. 

After finding reversible error in Martinez, the Texas

Court of Criminal Appeals in its en banc opinion then

proceeded to decide whether the trial court’s error in

Martinez was harmful. The Texas Court of Criminal

Appeals in Martinez noted that:

[i]n Payton v. State, 572 S.W.2d 677, 680

(Tex.Crim.App. 1978) the Court set forth a

test devised to show harm for the erroneous

exclusion of a qualified juror:

‘Harm may be shown in the erroneous

exclusion of a qualified juror by showing

that the State exhausted its preemptory

challenges.’ See also, Pearce v. State,

supra.

Martinez at 799. (Emphasis Added). After examining the

trial court record showing the lists of preemptory

challenges, the Texas Court of Criminal Appeals in

Martinez noted that the record showed that the State had

exhausted its preemptory challenges. In its harm

analysis, the Texas Court of Criminal Appeals in Martinez

concluded that:

[t]he effect of the trial court’s action,

“from the perspective of the defendant,

17
[was] the same as if the State had been

given an extra preemptory challenge.” Payton

v. State, supra. As the appellant argued in

his brief, it is not proper “to exclude from

a jury those of the ‘reluctant’ mold in

favor of those of the ‘eager’ mold. Harm

now appearing, the ground must be sustained.

The judgment is reversed, and the cause

remanded.

Martinez at 799. (Emphasis Added).

Although Martinez represents a case in which the

trial court on its own motion “struck” a veniremember for

cause, Article 35.16 of the Texas Code of Criminal

Procedure (entitled “Reasons for Challenge for

Cause”)addresses challenges for cause made by either the

state or the defense. Specifically, Article 35.16 (b) 3

provides that: 

[a] challenge for cause may be made by the

State for any of the following reasons: . .

. .

3. That he [a juror] has a bias or prejudice

against any phase of the law upon which the

State is entitled to rely for conviction or

punishment.

In Gonzales v. State, the Texas Court of Criminal Appeals

ruled that in applying such a standard to a venire

member:

18
[t]he test is whether the venireperson’s

“bias or prejudice would substantially

impair [his] ability to carry out his oath

and instructions in accordance with the

law.” citing Feldman v. State, 71 S.W.3d

738, 744 (Tex. Crim. App. 2002). To

establish that the challenge for cause is

proper, the proponent of the challenge must

show that the venireperson understood the

requirements of the law and could not

overcome his prejudice well enough to follow

the law. Feldman at 747. So before a

venireperson may be excused for cause on

this basis, the law must be explained to

him, and he must be asked whether he can

follow that law, regardless of his personal

views.

353 S.W.3d 826, 831-32. In Gonzales, venireperson Murdock

provided answers that she would not afford the Appellant

the right to remain silent and would shift the burden of

proof to the Appellant. Id. at 832. However, the Court of

Criminal Appeals concluded that venireperson Murdock’s

statements were based upon “a misunderstanding of the

law.” Id. However, when the trial court judge explained

the requirements of jury service to venireperson Murdock

and asked whether she could still follow the law and the

instructions of the Court and follow her oath,

veniremember Murdock responded — “Yes, I will do that.”

Id. at 836. On appeal, the Court of Criminal Appeals

19
overruled Appellant’s point of error denying Appellant’s

challenge for cause to venireperson Murdock. Id. at 837. 

In Cannady v. State, the Texas Court of Criminal

Appeals overruled an Appellant’s two points of error in

which a trial court judge denied two challenges for cause

to veniremembers. 11 S.W.3d 205, 209-210 (2000). One

veniremember testified that the fact that Appellant was

already in prison would affect his ability to presume the

Appellant innocent. Id. at 209. The second veniremember

testified that as a correctional officer he had witnessed

a murder by a prisoner of another prisoner in his unit

and had expressed his dissatisfaction with the jury

acquitting the defendant. However, despite both

veniremembers occasional confusion on the issues, both

veniremembers testified that they could listen to the

facts and make a determination based solely on the facts

and the law. Id. at 210. 

In Jones v. State, the Texas Court of Criminal

Appeals ruled that “before a veniremember can be properly

challenged under Article 35.16 (b) (3), the law must be

explained to him and he must be asked whether he can

20
follow that law regardless of his personal views. 982

S.W.2d 386, 390 (1998) citing Chambers v. State, 903

S.W.2d 21, 29 (Tex. Crim. App. 1995). In Jones, the

Court of Criminal Appeals concluded that because the

relevant law was not explained to veniremember Snyder,

she was not subject to a challenge for cause. Id. at 390.

In Brown v. State, the Texas Court of Criminal

Appeals considered a case in which venireperson Stagner

vacillated between stating that “she definitely would be

able to follow the law and stating that she definitely

would not be able to follow the law and stating that she

did not know for sure whether she could follow the law.

913 S.W.2d 581 (1996). The Court of Criminal Appeals

concluded that: 

[i]n other words, nothing is left to the

discretion of the trial court when the

venireperson is unequivocal as to their

ability to follow the law. If they testify

unequivocally that they can follow the law

despite personal prejudices, the trial court

abuses its discretion in allowing a

challenge for cause on that basis. Likewise,

if they testify unequivocally that they

cannot follow the law due to their personal

biases, the trial court abuses its

discretion in failing to grant a challenge

21
for cause on that basis. . . .

Id. at 580. However, the Texas Court of Criminal Appeals 

reinstated the judgment of the trial court by ruling that

“when the record reflects a vacillating venireperson, the

reviewing court is bound by the trial court’s judgment in

the matter.” Id at 580-581. 

As noted on page 12 of this Motion for Rehearing,

veniremember 17 [Kevin Post] made five (5) statements in

response to questioning by the State and the defense in

which he stated his ability to make a judgment but that

he simply did not feel comfortable sitting in judgment of

anyone else. The statements attributable to veniremember

Post [by the State] that; “he could not be fair”, “could

not sit in judgment of another one”, he “can’t follow the

law”, “won’t follow the law” and “can’t render a verdict”

are simply not supported by the record.

The logic of the Texas Court of Criminal Appeals’

opinion in Martinez that “it is not proper to exclude

from a jury those of the ‘reluctant’ mold in favor of

those of the ‘eager’ mold” is equally applicable to

criminal cases in which the State makes a challenge for

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cause pursuant to Article 35.16 (b) 3 of the Texas Code

of Criminal Procedure. As harm was found in Martinez by

a trial court judge on its own motion excusing a

prospective juror, harm likewise exists in Appellant

Pardo’s case. 

PRAYER

WHEREFORE, Appellant prays that this Honorable Court

grant this Motion for Rehearing and reverse the judgment

of the trial court and render judgment in favor of the

Appellant or in the alternative, reverse the judgment of

the trial court and remand the case for further

proceedings. 

Respectfully submitted,

LAW OFFICES OF

HITCHINGS & POLLOCK 

645 South Presa

San Antonio, Texas 78210

(210) 224-1433

(210) 224-4840 (telecopier)

 By: /S/ Barry P. Hitchings 

BARRY P. HITCHINGS

State Bar No. 09723600

ATTORNEYS FOR APPELLANT

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CERTIFICATE OF COMPLAINCE

I certify, in accordance with Rule 9.4 of the Texas

Rules of Appellate Procedure that this document contains

4279 words.

/S/ Barry P. Hitchings 

Barry P. Hitchings

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 5 day th

of January, 2015, a true and correct copy of the

Appellant's Motion for Rehearing was served by e-filing

at laura.durbin@bexar.org and hand-delivered to the Bexar

County Criminal District Attorneys Office, Paul Elizondo

Tower, 101 W. Nueva Street, San Antonio, Texas 78205. 

/S/ Barry P. Hitchings

BARRY P. HITCHINGS

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