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 CLERKINDEX OF AUTHORITIES

TEXAS CASES Page(s) Brown v. State, 91 3 S.W.2d 581 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . . 21-22 Cannady v . State, 11 S.W. 3 d 205 (Te x. Crim. App. 2000). . . . . . . . . . . . . . . . . . . . . 20 Esquivel v. State, 595 S.W. 2d 516 ( Tex. Crim . App. 1980). . . . . . . . . . . . . . . . . . . . . 16 Feldman v . State, 71 S.W.3d738 (Tex . Crim. App. 2002 . . . . . . . . . . . . . . . . . . . . . 19 Gonzales v. State, 353 S.W. 3d 826 (T ex. Crim. App. 2011 . . . . . . . . . . . . . . . . . . . . 19-20 Hendricks on v. Sta te, 500 S .W. 2d 49 1 (Tex. C rim. App.1973) . . . . . . . . . . . . . . . . . . . 16 Jones v. State, 92 8 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, 54 2 S.W. 2d664 (Tex . Crim. App. 1976) . . . . . . . . . . . . . . . . . . . . . 16 Payton v. State, 5 72 S.W.2d677 (Tex . Crim. App. 1978) . . . . . . . . . . . . . . . . . . . . . 17 Pearce v. State, 5 13 S.W.2d539 (Tex . Crim. App. 1974) . . . . . . . . . . . . . . . . . . . . . 16 Sanne v. State, 60 9 S.W. 2d762 (Tex . Crim. App. 1980) . . . . . . . . . . . . . . . . . . . . . 16 Valore v. State, 5 45 S.W. 2 d 477 (Te x. Crim. App. 1977) . . . . . . . . . . . . . . . . . . . . . 16 TEXAS STATUTES ANDCODES TEX. CRIM . PROC. C ODE ANN. Art 35.16(b) 3 (Vernon 2013) . . . . . . . . . . . . . . . . . 18, 20, 2 2

iiAPPELLANT ’S MOTIONFOR 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 MEM BER 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 A

ND APPLY THE LAW TO THE FACTS Statementof the Facts I n its December 17, 2014 Memorandum Opinion and Judgment, the Court of Appeals ruled that the trial court “did not abu s e its discretio n in granting the State’s ch allenge for cause and dismissin g venire member number 17" ( i.e. Kevin Post) since venire member numbe r 17 “expresse d prejudice , ‘in essence’, against all phases of the applicabl e law.” Opinion at pages 6-7. However, a detailed revie w o f the facts as shown in the reporter’ s record shows that such was not the case. A chronolog ical recital of the reporter ’ s r e cord in voir dire as it relates to venire member number 17 (Kevin Post) i s set forth bel ow:

1MS. RUMMEL: . . . . Okay. Ultimatel y you’re goi n g to be given the charge of the Court, th e l aw, 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 ’ l l be asked to sit in judgment of another, and whet h er it be a personal belief, a moral belief, a just I’d-rathe rnot-belie f, wh a tever it may be, is there anybody that absolutel y will not sit in judgment of another. Okay. Number 17 [Kevin Post] And usually I do a caveat with t h i s one too. N o t that you’d rather not sit in judgment, but just cannot do it, will not do it. Is 17 the onlyone? VENIREPERSON: No. MS. RUMMEL: 1, 3. Okay. Befor e everybody raises their hands again, not would you rather no t do it, but you absolutel y will not return a verdict. You will not follow the law. You will not app l y the law to the facts and you w i l l not return a verdict. Okay. Again, if you absolutel y cannot do it, please raise your hand. It could be the same numbers. I’m just explainin g it. Okay. Number 1, 3, 5. VENIREPERSON: I have a ques tion. MS. RUMMEL: Okay. I’ll go over it again. 1 [Ms. Diana Martinez] , 3 [Mr. Francis Tejeda], 5 [Mr. Brendan C ockman], 6 [Ms. Anita Gonzales] , 17 [Mr. Kevin Post]. Anybody e lse over here? THE REPORTER: He said, I’m n o t sure I understoo d the que stion.

2VENIREPERSON: My thing is, I can make a judgment , but under these kind of circumsta nces - - MS. RUMMEL: That was a whole separate question. VENIREPERSON: Okay . Thank you. MS. RUMMEL: Yes. And we are taking no t e s 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 o f f a n d started on somethingelse. THE COURT: Well, they’re conversin g. This whole process is hopefull y one where the jury and the attorneys c a n engage each other, so you’re we l c ome to follow up when it’s your turn and ask whatever you desire. MR. MACH: All righ t. Thank you, sir. MS. RUMMEL: An d I apologize I was cutting you off. You s a i d you had an issue on this type of c ase. VENIREPERS ON: Right. I just wanted to be sure. MS. RUMMEL: Sure. And I certainly understan d that. This is just notwithstandin g the type of case, there are some p e op le 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)(Emph asis Adde d) 3MR. MACH: All right. Mr. Post [Venirepe rson Number 17 ] VENIREPERSON: Yes, sir. . . . MR . MACH: Okay. Did you raise your hand t o anything? VENIREPERSON: Yeah. I don’t feel comfortable in sitting in judg ment of anyone else. MR. MACH: Without getting too specific, is that a re ligious c onvictionor a mor al? VENIREPE RS ON: I don’t believe in a God, so no. MR. MAC H: Well, strike religious out of it then. Youjust don ’t think - - VENIREPERSON: It’s mine to take and I don’t feel comfortable with it. MR. MACH: Okay. D i d you raise your hand to anything else - - VENIREPERSON: Nope . MR. MACH: - - we t alked abo ut? VENIREPERSON: Nope . MR. MACH: All righ t. Thank you, sir. (RR. Vol 2, pp. 11 6-117)(Emphasis Added). At th e conclusio n of the voir dire the trial court judge the n comment ed:

4THE COURT: All r i ght. The jury panel has been e x c used. Just for the record, the parties have i n dicated that they agree to strike numbers 1 [Ms. Diana Ma rtinez], 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 t h at correct? MS. RUMME L: Uh-huh . THE COURT : For therecord, is that ayes? MS. RUMMEL: Yes, That is correct from t he State. And 14 and49 are a lready - - MR. MACH: That’s c orrect. T hat’s cor rect. MS. RUMME L: - - ex cused. THE COURT: Okay. Now, Mr. Mach, were there any that you wanted to bring up? MR . MACH: I had marked in addition - - t h e C ourt may have marked 8, 19 48 twice. T h a t can’t be. 42. THE COURT: Okay. All right. Let’s br i n g up Number 8, Serna. MR. MACH: Which one s do you want? MS. RUMMEL: I said 8 [Rogelio Flores Serna], 17 [Kevin Post] and 25 [Gerardo Silva]. There was no o t h e r - - there was no others in the first t h e n that you wanted to bring up? MR. MACH: Does the Court have others that we had - - d idn’t men tion? 5THE COURT : Well, k ind of upto 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’allare okaywith - - MR. MACH: No. THE COURT: Let’s bring him up to th e mike. Let’s bri ng him upto the mike. All right, sir. You are Number 8 [Rogelio Flores Serna]; is that correct? Is that right, si r? VENIREPERSON: Sir, how are you? THE COURT: Good, good. We aske d you back because one or more or bot h s ides may have more ques tions foryou, allright? VENIREPERSON: Okay . (RR. Vol 2, pp. 146

- 1 4 7)(Emphas is Added)(Names and numbers of venireper sons found in Supplemen tal Clerk’s Record pp, 3-6). At the conclusio n of the voir dire, in response to the trial court judge’s query of “were there any that you wanted to ‘bring up’ for addit i o n al questioni ng, the Appellant ’s attorney (Mr. Mach) and the State’s attorney (Ms. Rummel) iden t ified venire members 8, 17, 19 , 25 and 42 as persons they wanted to further

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

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

a ttorney (Mr. Mach) then proceeded to question venireper son number 8 (Rogelio Flores Serna) before the trial c o u r t j udge and outside of the presence of the other venireper sons. (RR. Vol. 2, pp. 148-153). After granting the State’s challenge for cause against venireper son number 8 (Mr. Serna), the following exchange took plac e:

MS. RUMMEL: The State requested to bring up Number 17 [Mr. Kev in Post]. THE COURT: All right. So Number 17 , t he State’s g oing to c hallenge him? MS. RUMME L: Uh-huh . T HE COURT: All right. He mentioned in several different instances he would not be fair and he is the individua l that said that he could not sit in judgment of another one; is that c orrect? MS. RUMMEL: Ye s . An d then I followed - - I believe that I said, Will you follow the law and can you r e n der a verdict, and he said, No, I can’t do it. Won’t follow the law, Judge . MR. MACH: Let’s gi ve him a chance. THE COURT: All right. I’m going to grant the 7State’s c hallenge for Numbe r 17. MR. MACH: Well, Your Honor, I respectfu lly request achance t o rehabil itate him . THE COURT: Yes, sir. You had an opportuni ty to question him during voir dire and you did talk to him in voir dire and I’ll deny that. (RR. Vol. 2, pp. 1 53-154)(Emphasis Added) As noted in Appellant ’s Brief, Appellant ’s trial attorney objected to the exclusion of Venireper son Number 17 (Kevin Post) by the trial court, requested additiona l preemptor y strikes, objected to venireper son numbers 31 and 33 being included with the jury and moved for a

mi s t r ial which was all denied by the trial court . (Appellan t’s Briefpp. 19-2 2). A f t e r reviewing the reporter’ s record (as cited above) th e Court o f Appealsconclude d that:

“the essence” of the statement s made by venire member number 17 was t h at he could not follow the law because he could not sit in the judgment of another person. When asked whether he would follow the l aw and apply the law to the facts, venire member number 17 expressed that he absolutel y could not do it. Thus, venire member numb e r 17 expressed prejudice , “in essence”, against al l phases of the applicabl e law. Because bias or prejudice against any law upon which the State intends to rely is a proper ground 8for a challenge for cause under the Code, we hold t h e trial court did not abuse its discretio n in granting the State’s challenge for cause and dismissin g venire member number 17. See Gonzales , 353 S.W.3d at 831. Court of Appeals Opinion at pp. 6-7. However , t he conclusio n of th e C o u rt of Appeals that venire member number 17 stated that: (1) he could not follow the law because he could not sit in the judgment o f a n other person; and (2) he (absolute ly) would not follow the law and apply the law to the facts is contrary to the statement s made by venire member 17 [Mr. Post] in the reporter’ s record. The alleged statement s attribute d 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 fa c t s

were not statement s made by venire member number 17, but

were in f a c t statement s and arguments made by the prosecuto r Lorina Rummel which she attribute d 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

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

stopped the prosecuto r to inform the prosecuto r that

–

“ He said, I’m not sure I understoo d the qu e s tion.” (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 interrupt ed by the prosecuto r before he could finish his statement . (RR. Vol 2, p . 6 2 ). When Appellant ’s trial attorney complaine d to the trial judge t h a t “ s h e 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 questione d venire member 17 (Mr. Post), if he had raised his hand to anythi ng, Mr. P ost respo nded by s tating:

VENIREPERSON: Yeah. I don’t feel comfortable in sitting in judgment of anyone else. . . . and I don’t feel comfortable wi th 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 t o b ring venire member 17 [Kevi n P o s t ] before the bench for questioni ng on a challenge for cause (and apparentl y without venire member 1 7 b e i n g before the bench) the trial court judge showed confusion as to the statement s 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 individua l that said he could not sit in judgment o f 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)(Emph asis Added). However, the statement s of the trial court judge and the prosecuto r attribute d 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 statement s are solely the prosecuto r’s argument, no t the statement s of venire member number 17. Venire member 17 (Kevin Post’s)

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

thing is, I can make a judgment, but under these kind of circumsta n c e s - -”; (3) “Right. I just wanted to be sure”; (4) ”Yeah, I don’t feel comfortab le in sitting in judgment of anyone else”; (4) “It’s mine to take and I do n ’ t feel comfortab le 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 prosecuto r’s question of “is there anybody that absolut e ly will not sit in judgment of another?” (RR. Vol 2, p. 61). The five (5) venire members were numbers: 1 [Ms. D iana Martinez who was an agreed strike]; 3 [Mr. Francis Tejeda - struck for cause when he admitted he coul dn’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]. (Suppleme ntal Clerk’s Record pp, 3- 6; RR. Vol 2, pp . 9 1 , 9 4

- 96, 146-147). Of the five (5) venire members the only disagreement between the S tate and the Appellant con cerned venire member 17 (Kevin 12Post).

Argument and Authorities The Court of Appeals’ December 17, 2014 Memorandum Opinion and Judgment ignores the Texas Court of Criminal Appeals opinion in Marti n e z v. State, 621 S.W.2d 797 (Tex. Crim. App. 1981) which was a r gued by Appellant in his Appellant ’s Brief and Reply Brief of Appellant . As previousl y 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 individua l voir dire, was called to the bench to answer specific questions . While answering que s tions 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 t h ink the responsib ility is

more awsome [ sic ] than I want to accept to judge another human being” when the trial court ju dge interrupt ed the prosecuto r and stated “I am going to excuse him” over the objection s of the Appellant ’s attorn ey. Id. a t 798. In comparing venire member Clifford (in Martinez) with venire member Post in Appellant ’s case, there are 13striking similarit ies and differenc es. Venire member

Clifford was questione d at the b ench following general and individua l voir dire. Despite the State’s request to bring venire member Kevin Post before the bench to question him, the trial court judge gra n ted the State’s challenge for cause (to venire member Post) over t h e objection of Appellant ’s trial attorney without either side having an opportuni ty to question venire member Post before the bench (despite such a request by the S t a t e ). As noted previou sly, the trial court judge showed confusion as to the statement s actually made by venire member Post when t h e trial court judge commented that “[h]e mentioned in several instances that he could not be fair and he is the individua l 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 prosecuto r’s erroneous claims attribute d to venire member Post that – “I believe that I said, Will you follow the law a n d c an 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 14show such statement s by venire member Post. Wh en

Appella n t ’ 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 reservati ons as venire member Post whe n venire member Clifford told the t r i a l court judge that “I don’t think I am qualified to sit in judgment of another human being” and “I think the responsib ility is more awsome [ sic ] than I want to accept to judge another human being. . . .” Martinez at 798. Both venire members Clifford (in Mar tinez) and Post (in Appellant ’s case) expressed “a disinclin ation to accept responsib ility” in judging another per son. Venire member Clifford was “struck” for

cause by the trial court in Martinez for expressin g such

a disinclin ation . After the State requested that venire member approach the bench for questioni ng, venire member Post was “struck” f or cause by the trial court before either the State or the Appe llant questione d venire member Post before the b ench. The trial court judge 15granted the State’s challenge for cause to venire member

Post in Appellant Pardo’s case based upon the same reservati ons and disinclin ation expressed by venire member Cl ifford inthe Mart inez 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 reiterate d the well settled rule that:

[a] trial judge should not on its own motion excuse a prospecti ve 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. Sta t e , 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 Hendricks on v. State, 500 S .W.2d 491 (Tex.Crim .App. 197 3). Id. at 797-798. (Emphasis Texas Court of Crimin al Appeals). The Texas Court of Criminal Appeals in Martinez in reversing the judgment of the trial court emphasize d that under the Texas Co de o f C riminal Procedure – “A disinclin ation to accept responsib ility is not listed as

a reason for the trial judge sua sponte to excuse a 16venire person” and “[t]he trial court judge clearly

erred.” I d. at 799 . After finding reversibl e error in Martinez, the Texas Court of Criminal Appeals in it s en banc opinion then proceeded to decide whether the trial court’s error in Martinez was harmful. The Texas Court of Criminal Appeals i n Martine z noted t hat:

[ i]n Payton v. State, 572 S.W.2d 677, 6 8 0 (Tex.Crim .App. 1978) the Court set forth a test devised to show harm for the erroneous exclusionof a qua lified ju ror: ‘Harm may be shown in the erroneous exclusion of a qualified juror by s h owing that the State exhausted its preemptor y challenge s.’ See also, Pearce v. S tate, supra. Martinez at 799. (Emphasis Added). After examining the trial court record showing the lists of preemptor y challenge s, the Texas Court of Criminal Appeals i n Martinez noted that the record showed that the State had exhausted its preemptor y challenge s. In its harm analysis, the Texas Court of Criminal Appeals in Martinez concludedthat:

[t]he effect of the trial court’s a c t ion, “from the perspecti ve of the defendant , 17[was] the same as if t h e S t ate had been given an extra preemptor y challenge .” Payton v. State, supra. As the appellant argued in his brief, it is not proper “to exclude from a jury those of the ‘reluc t a n t’ mold in favor of those of the ‘eager’ mold. Harm now appearing , the ground must be sustained . The judgment is revers e d , a nd the cause remanded. Martinez at 799. ( Emphasis Added). Although Martinez rep resents 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 challenge s for cause made by either the state or the defen s e. Specifica lly, Article 35.16 (b) 3 provides that:

[a] ch a l l enge 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 punishmen t. In Gonzales v. State, the Texas Court of Criminal Appeals

ru led that in applying such a standard to a veni r e member:

18[t]he test is whether the venireper son’s “bias or prejudice would substanti ally imp a i r [his] ability to carry out his oath and instructi ons in accordanc e with the law.” citing Feldman v. State, 71 S . W.3d 7 3 8 , 744 (Tex. Crim. App. 2002). To establish that the ch a l l enge for cause is proper, the proponent of the challenge must show that the venireper son understoo d the requireme nts of the law and could not overcome his prejudice well enough to follow the law. Feldma n at 747. So before a venireper son may be excused for cau s e on t h i s basis, the law must be explained to him, and he must be asked whether he can follow that law, regardles s of his personal views. 353 S.W.3d 826, 831-32. In Gonzales, venireper son 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 venireper son Murdock’s statement s were based upo n “a misunders tanding of the law.” Id. However, when the trial court judge explained the requireme nts of jury service to venireper son Murdock and asked whether she could still follow the law and the instructi ons of the Court and follow her oath , veniremember Murdock responded — “Yes, I will do t h at.” Id. a t 8 3 6 . On appeal, the Court of Criminal Appeals 19overruled Appellant ’s point of error denying Appellant ’s

challenge for cause to venireper son 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 challenge s 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 correctio nal officer he had witnessed

a murder by a prisoner of another prisoner in his unit and had express ed his dissatisf action with the jury acquittin g the defendant . However, despite both veniremembers occasiona l confusion on the issues, both veniremembers testified that they could listen to the facts and make a determina tion based solely on the facts and the l aw. Id. a t 210. In Jones v. State, the T e x a s Court of Criminal Appeals ruled that “before a veniremember can be properly challenge d under Article 35.16 (b) (3), the law mu s t be explained to him and he must be asked whether he can 20follow that law regard l e s s of his personal views. 982

S.W.2d 386, 390 (1998) citing Chamber s 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 explain ed to veniremember Snyder, she was not subject to a challenge for cause. Id. at 390. In Brown v. State, the Texas Court o f C riminal Appeals considere d a case in which venireper son Stagner vacillate d between stating that “she definitel y would be ab l e to follow the law and stating that she definitel y 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 Crimi n a l Appeals concludedthat:

[i]n other words , n othing is left to the discretio n of the trial court whe n t he venireper son is unequivoc al as to their ability to follow the law. If they t e s tify unequivoc ally that they can follow the law despite personal prejudice s, the trial court abuses its discretio n in allowing a challenge for cause on that basis. Likewise, if they testify unequivoc ally that they cannot follow the law due to their personal biases, the trial court abuses its discretio n in failing to grant a challenge

21for causeon that basis. . . .

Id. at 580. However, the Texas Court of Criminal Appeals reinstate d the judgment of the trial court by ruling that “when the record reflects a vacillati ng venireper son, the reviewing court is bound by the trial court’s judgment in the matte r.” Id at580-581. A s n o t e d on page 12 of this Motion for Rehearing , veniremember 17 [Kevin Post] made five (5) statement s in response to questioni ng by the State and the defe n s e in which he stated his ability to make a judgment but that he simply did not feel comfortab le sitting in judgment of anyone else. The statement s 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 simpl y not supported bythe reco rd. Th e logic of the Texas Court of Criminal Appeals’ opinion in Martinez that “it is not proper to exclude from a jury those of the ‘reluctan t’ mold in favor of those of the ‘eager’ mold” is equally applic able to criminal cases in which the State makes a c h a l lenge for 22cause pursuant to Article 35.16 (b) 3 of the Texas Code

of C r imi nal Procedure . As harm was found in Martinez by

a trial court judge on its own motion excusing a prospecti ve juro r , harm likewise exists in Appellant Pardo’s c ase. 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 alternati ve, reverse the judgment of the t r ial court and remand the case for further proceedin gs. Respectfu lly submi tted, LAW OFFIC ES OF HITCHINGS& POLLOCK 645 SouthPresa San Anton io, Texas78210 (210) 224 -1433 ( 2 1 0 ) 2 2 4

- 4 8 4 0 ( t e l e c op i e r ) By: /S/ BarryP. Hitch ings

BARRY P. HITCHINGS State BarNo. 0972 3600 ATTORNEYSFOR APPE LLANT

23CERTIFICATE OF COMPLAINCE

I certify, in accordanc e with Rule 9.4 of the Texas Rules of Appellate Procedure that this document contains 4279 word s. /S/ BarryP. Hitch ings Barry P. Hitchings

CERTIFICATE OF SER VICE The undersign ed hereby certifies that on this 5 day t h of January, 2015, a true and correct copy of the Appell ant's Motion for Rehearing was served by e-filing at laura.durbin@bexar .org and hand-deli vered to the Bexar County Criminal District Attorneys Office, Paul Elizondo Tower, 10 1 W. Nueva Street, San Anto nio, Texa s 78205.

/S/ Barry P. Hitchings BARRY P. HITCHINGS

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