Dremel Lamont Roberts v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-23-00008-CR
___________________________
DREMEL LAMONT ROBERTS, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 415th District Court
Parker County, Texas
Trial Court No. CR22-0766
Before Sudderth, C.J.; Kerr and Birdwell, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Appellant Dremel Lamont Roberts pleaded guilty to the felony offense of
property theft with two or more prior convictions, see Tex. Penal Code Ann.
§ 31.03(e)(4)(D), and elected to have a jury assess his punishment. The jury assessed
Roberts’s punishment at 17 years’ confinement, and the trial court sentenced him
accordingly. On appeal, Roberts, who is African American, argues in a single issue
that the trial court violated his constitutional rights by allowing his punishment trial to
proceed with a jury venire that lacked any African American representation and thus
deprived him of a jury representing a fair cross section of the community. See U.S.
Const. amend. VI; Tex. Const. art. I, § 10. We affirm.
BACKGROUND
Roberts was indicted for theft of property valued at less than $2,500 with two
prior theft convictions, a state jail felony offense. See Tex. Penal Code Ann.
§ 31.03(e)(4)(D). The indictment contained three enhancement paragraphs alleging
that Roberts was a habitual felon. If proven to be true, these enhancement allegations
would elevate the punishment range for Roberts’s charged offense to that of a
second-degree felony. See id. § 12.425(b).
At trial, Roberts pleaded guilty, pleaded true to the enhancement paragraphs,
and elected to have a jury assess his punishment. Roberts further stipulated that he
had previously been convicted of 34 offenses, including the offenses alleged in the
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indictment’s enhancement paragraphs. Seventeen of these prior convictions are for
theft.
After accepting Roberts’s guilty plea, the trial court commenced jury selection
for the punishment trial. Before voir dire began, Roberts objected to the racial
composition of the 50-person jury panel as constitutionally infirm because it did not
represent a fair cross-section of the community. As Roberts’s counsel pointed out,
“the individuals appearing are all white, maybe three Hispanic, people that don’t
match up with the demographics of this county.” The State offered neither objection
nor commentary regarding Roberts’s description of the jury’s racial composition. The
trial court overruled Roberts’s objection and proceeded with voir dire.
During voir dire, Roberts’s counsel pointed out to the veniremembers that
“[Roberts] is a different ethnicity[;] he’s a black man” and asked them whether
Roberts’s ethnicity would “be an issue” for them when assessing Roberts’s
punishment. Again, the State did not dispute or offer any commentary about
Roberts’s counsel’s characterization of Roberts’s and the veniremembers’ ethnicities.
During trial, copies of Roberts’s stipulation to his prior convictions and of the
prior judgments of conviction were admitted into evidence without objection. The
State then presented evidence showing that Roberts had stolen three Milwaukee-
brand tools from a Home Depot in Weatherford, Texas, valued at $567 before taxes.1
The evidence showed that the tools were recovered by the police and returned
1
undamaged to Home Depot.
3
After the jury assessed Roberts’s punishment at 17 years in prison and he was
sentenced accordingly, this appeal followed.
DISCUSSION
In a single issue, Roberts argues that the trial court violated Roberts’s
constitutional rights by allowing his punishment trial to proceed with a jury venire that
did not include a single African American member and therefore lacked a fair cross
section of the community. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. We
disagree.
The Sixth Amendment to the United States Constitution guarantees a criminal
defendant an impartial jury selected from sources reflecting a fair cross-section of the
community, Taylor v. Louisiana, 419 U.S. 522, 526, 530–37, 95 S. Ct. 692, 697–701
(1975); see U.S. Const. amend. VI, and the Texas Constitution affords a criminal
defendant this same right, Marquez v. State, 725 S.W.2d 217, 243 (Tex. Crim. App.
1987); see Jacobs v. State, 560 S.W.3d 205, 210 (Tex. Crim. App. 2018); see also Tex.
Const. art. I, § 10. Although jury venires must represent a fair cross-section of the
community, there is no requirement that a jury panel chosen for a particular case
“mirror the community and reflect the various distinctive groups in the population.”
Gray v. State, 233 S.W.3d 295, 300 (Tex. Crim. App. 2007) (quoting Taylor, 419 U.S. at
538, 95 S. Ct. at 702).
To establish a prima facie violation of the fair-cross-section requirement, a
defendant must show that: (1) the group alleged to be excluded is a “distinctive”
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group in the community; (2) the representation of this group 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) this underrepresentation is due to the systematic exclusion
of the group in the jury selection process. Berghuis v. Smith, 559 U.S. 314, 327,
130 S. Ct. 1382, 1392 (2010); Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668
(1979). With regard to the third prong, Roberts has not shown that the
underrepresentation of African Americans, if it occurred at all, was due to their
systematic exclusion in the jury process. See Berghuis, 559 U.S. at 327, 130 S. Ct. at
1392. Because he did not satisfy this third prong, Roberts has not made a prima facie
case that he was denied fair representation in the jury venire.
To support his argument that the trial court violated the fair-cross-section
requirement, Roberts relies on two primary pieces of evidence: (1) his trial counsel’s
statements on the record that the members of the jury venire were “all white, maybe
three Hispanic, people that don’t match up with the demographics of this county”
and that Roberts was “a different ethnicity” than the members of the jury venire and
(2) census data—of which Roberts asks us to take judicial notice—showing that
Parker County has a population of 148,222, including a total of 2,929 people who
identify as African American or as both African American and another race. Even if
we were to assume that Roberts’s trial counsel’s statements are evidentiary2 and that
See State v. Guerrero, 400 S.W.3d 576, 585 (Tex. Crim. App. 2013)
2
(acknowledging rule that counsel’s statements on the record can be considered
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we can take judicial notice of the census data presented in Roberts’s brief,3 Roberts
has nevertheless failed to show that African Americans were systematically excluded
in the jury selection process. He has presented no evidence regarding the
composition of any other jury venires in Parker County, much less how such jury
venires were selected. See Pondexter v. State, 942 S.W.2d 577, 581 (Tex. Crim. App.
1996) (“[D]isproportionate representation in a single panel does not demonstrate the
systematic exclusion of distinctive groups in violation of the appellant’s rights under
the Sixth Amendment.” (quoting May v. State, 738 S.W.2d 261, 269 (Tex. Crim. App.
1987))); see also Duren, 439 U.S. at 366, 99 S. Ct. at 669 (holding that to establish a
prima facie case, “it was necessary” for the defendant to show underrepresentation
evidence provided that no objection was made and counsel was speaking from first-
hand knowledge).
3
See Emerson v. State, 880 S.W.2d 759, 765 (Tex. Crim. App. 1994) (“Judicial
notice, both of adjudicative and legislative facts, may be taken on appeal.”); see also
Wise Cnty. v. Mastropiero, No. 02-18-00378-CV, 2019 WL 3755766, at *6 n.4 (Tex.
App.—Fort Worth Aug. 8, 2019, no pet.) (mem. op.) (recognizing that “courts have
taken judicial notice of census data concerning population under [R]ule of [E]vidence
201” to determine “whether a theory of implied dedication is viable” and proceeding
to take judicial notice of Wise County census data); City of Mesquite v. Moore, 800
S.W.2d 617, 619 (Tex. App.—Dallas 1990, no writ) (holding that an appellate court
may take judicial notice of census data “for the first time on appeal”); but see Hood v.
Wal-Mart Stores, Inc., No. 05-05-01049-CV, 2008 WL 256763, at *2 n.1 (Tex. App.—
Dallas Jan. 31, 2008, pet. denied) (mem. op.) (admonishing that “[a]s a general rule,
appellate courts take judicial notice only to determine jurisdiction over an appeal or to
resolve matters ancillary to decisions which are mandated by law . . . .” because “[t]o
go further runs the risk of effectively rendering [the court of appeals] into one of
original, not appellate, jurisdiction” (internal quotations omitted)).
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“generally and on his venire” and that the defendant satisfied this burden by showing
the composition of venires over the course of nearly a year).
Roberts argues that we should presume that he has made a prima facie showing
of systematic exclusion because there was “no representation”—as opposed to merely
“disproportionate representation”—of African Americans on the jury venire.
However, neither of the cases Roberts cites for this proposition actually supports it;
rather, if anything, these cases undermine his argument that a particular group’s
underrepresentation—regardless of the severity—on a single jury venire warrants a
presumption of systematic exclusion. See Berghuis, 559 U.S. at 328; Goins v. Allgood, 391
F.2d 692, 697 (5th Cir. 1968). While Goins acknowledged that “very decided
variations” in the racial compositions of jury venires compared to the overall
population of the community may be evidence of systemic exclusion if these
variations are “not explained and are long continued,” this case does not support
Roberts’s argument that extreme underrepresentation on a single panel entitles him to a
presumption of systemic exclusion. Goins, 391 F.2d at 697.
Similarly, in Berghuis, the Supreme Court, citing the defendant’s evidence in
Duren as an example of what is needed to show systematic exclusion, noted that
Duren had “demonstrated systematic exclusion with particularity” by showing that
“women’s underrepresentation was persistent—occurring in every weekly venire for
almost a year” and identifying two stages of the jury-selection process in which the
systematic exclusion occurred. Berghuis, 559 U.S. at 328, 130 S. Ct. at 1392–93. Thus,
7
Berghuis—like Goins—makes clear that a variation—even a “very decided” variation—
in the racial composition of a single jury venire compared to the overall community
population in and of itself is insufficient to show systematic exclusion. See id.; Goins,
391 F.2d at 697.
Further, even if we were to accept as valid the distinction Roberts attempts to
draw between cases in which there is “no representation” as opposed to merely
“disproportionate representation” of a distinctive group on a venire panel, Roberts’s
own census data undercuts the significance of such a distinction in this case.
According to Roberts, out of Parker County’s total population of 148,222, there are
2,929 individuals who identify as either African American or African American and
another race. Based on these statistics, African Americans make up slightly less than
two percent of Parker County’s population.4 The record shows that the jury venire in
Roberts’s case consisted of fifty people, meaning that the presence of a single African
American on the venire panel would have been sufficient to prevent African
Americans from being underrepresented. Thus, for African Americans to have been
underrepresented in the jury venire, there would have had to be zero African
Americans on the panel. In other words, in the present case, “disproportionate
representation” equates to “no representation.”
4
By our calculations, the exact percentage is 1.976%.
8
Because we reject Roberts’s argument that he is entitled to a presumption that
African Americans were systematically excluded in the jury selection process and
because he has failed to present any evidence of systematic exclusion, we overrule his
sole issue.
CONCLUSION
Having overruled Roberts’s sole issue, we affirm the trial court’s judgment.
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: June 29, 2023
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