Espinoza v. State , 1980 Tex. Crim. App. LEXIS 1239 ( 1980 )

OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of arson. The punishment is imprisonment for two years.

The appellant filed a timely motion to quash the indictment alleging that Spanish-surnamed persons were systematically excluded from El Paso County grand juries for the period of 1965-1976. The appellant was indicted September 11, 1975. The trial court after hearing the motion overruled it and refused to quash the indictment.

The sole ground on which the appellant seeks reversal of the judgment is the trial court’s alleged error in refusing to quash the indictment. The appellant says that Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977) is dispositive of this appeal and mandates a reversal of his conviction. We disagree.

Every criminal defendant is entitled to be indicted by a grand jury whose members have been selected in a non-discriminatory manner. Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Partida v. Castaneda, 524 F.2d 481 (5th Cir. 1975). In the record in the instant case there is evidence that the class to which the appellant belongs was underrepresented for several years prior to the time the appellant was indicted; however, the appellant fails to show the composition of the grand jury that indicted him. For all we know every member of the grand jury that indicted the appellant had a Spanish surname. Unlike the record in this case, the record in the United States Court of Appeals for the Fifth Circuit in Partida v. Castaneda, supra, and the record in the Supreme Court of the United States in Castaneda v. Partida, supra, revealed that there was in Hidalgo County where Partida was indicted a population of 79.2% with Spanish surnames. The record indicated that five of the twelve grand jurors had Spanish surnames. The grand jury list prepared in the term Partida was indicted was 50% Mexican-American while the panel itself was 40%. The disparities were 29.2% and 39.2% respectively. Castaneda v. Partida, supra.

Since the appellant failed to show the composition of the grand jury which indicted him, evidence showing the composition of the grand juries for the ten preceding years was irrelevant. If the class to which a defendant belongs is fully represented on the indicting grand jury the defendant suffers no injury and exclusion of members of the class from earlier grand juries is irrelevant to his case. Only if the defendant’s class is substantially underrepresented on the indicting grand jury does the makeup of prior grand juries become relevant to explain whether this underrep-resentation on the indicting grand jury is a statistical accident or the result of purposeful discrimination.

If a defendant could successfully move to quash his indictment solely by showing underrepresentation of his class on past grand juries it would be impossible to correct the prior constitutional error. It offends both common sense and sound public policy to suggest that indictments returned by grand juries on which all recognizable classes in the community are fully represented should nevertheless be dismissed to atone for- the sins of the past.

The judgment is affirmed.