Tony Mize v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-93-00624-CR Tony Mize, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT NO. 932195, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING PER CURIAM A jury found appellant guilty of robbery. Tex. Penal Code Ann. § 29.02 (West 1994). (1) The district court assessed punishment, enhanced by two previous felony convictions, at imprisonment for forty-five years. In four points of error, appellant contends the district court erred by overruling his motion for new trial. Appellant first urges that the indictment in this cause was void because a member of the grand jury that returned it was under legal accusation for theft and therefore not qualified to serve. Tex. Code Crim. Proc. Ann. art. 19.08(5) (West Supp. 1995). It is undisputed that at all relevant times an information was pending against one of the grand jurors accusing him of misdemeanor theft. No person may be held to answer to a felony offense except by grand jury indictment. Tex. Const. art. I, § 10. A grand jury must be composed of twelve persons. Tex. Const. art. V, § 13; Lott v. State, 18 Tex. Ct. App. 627, 629 (1885). Appellant argues that the constitutional mandate of twelve grand jurors means twelve qualified grand jurors. Because one of the grand jurors in this cause was legally disqualified, appellant urges that he was indicted by a grand jury composed, in effect, of eleven persons. Appellant relies on opinions holding that an indictment returned by a grand jury having other than twelve members is void and incapable of conferring jurisdiction on the district court. Ogle v. State, 63 S.W. 1009, 1012 (Tex. Crim. App. 1901) (thirteen members); Ex parte Reynolds, 34 S.W. 120, 121 (Tex. Crim. App. 1896) (fourteen members); Lott, 18 Tex. Ct. App. at 630 (thirteen members). (2) We find appellant's argument unpersuasive because, while the constitution requires that a grand jury have twelve members, the duty of determining the qualifications for grand jury membership is constitutionally delegated to the legislature. Tex. Const. art. XVI, § 19. The qualifications for grand jury membership are found in article 19.08, not in the constitution. Moreover, a challenge to the grand jury array or to any particular grand juror must be made before the grand jury is impaneled. Tex. Code Crim. Proc. Ann. art. 19.27 (West 1977). If a defendant cannot make his challenge before the grand jury is impaneled, the challenge may be made by a pretrial motion to quash the indictment. Muniz v. State, 672 S.W.2d 804, 807 (Tex. Crim. App. 1984); Ex parte Covin, 277 S.W.2d 109, 111 (Tex. Crim. App. 1955). In Covin, the court held that an indictment returned by a grand jury on which three disqualified jurors served was not void, and that the defendant waived any objection to the qualifications of the grand jurors by not challenging them in a motion to quash. The practice and procedures relating to the use of indictments, including their sufficiency and requisites, are as provided by law. Tex. Const. art. V, § 12. That an indictment was returned by an unlawfully chosen or empaneled grand jury is a defect of form that is waived if the defendant does not object before trial begins. Tex. Code Crim. Proc. Ann. arts. 1.14(b) (West Supp. 1995), 27.09(3) (West 1989). The grand jury that returned the indictment in this cause was composed of the constitutionally required twelve members. Although one of those members was statutorily disqualified to serve, the indictment was not void for that reason and appellant waived his right to complain of the disqualified grand juror by failing to timely object prior to trial. Covin, 277 S.W.2d at 111; Tex. Code Crim. Proc. Ann. arts. 1.14(b), 19.27. Points of error one, two, and three are overruled. Finally, appellant contends the district court erred by overruling his motion for new trial based on ineffectiveness of counsel. Appellant urges that trial counsel was ineffective because he did not discover and object to the disqualified grand juror prior to trial. At the hearing, counsel testified that he did not become aware of the requirements of article 19.08 until after appellant's trial. To prevail on a claim of ineffective assistance of counsel, an appellant generally must show that counsel made such serious errors that he was not functioning effectively as counsel and that these errors prejudiced the appellant's defense to such a degree that he was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); and see Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim. App. 1985); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin 1992, pet. ref'd). A defendant is not entitled to errorless counsel. Ex parte Owens, 860 S.W.2d 727, 729 (Tex. App.--Austin 1993, pet. ref'd). The effectiveness of counsel is judged by the totality of the representation provided, not by isolated acts or omissions. Id. As the district court remarked at the hearing below, effective assistance does not mean that every "possible and conceivable stone must be overturned in every case." We believe that appellant has failed to demonstrate that trial counsel's performance as a whole outside the broad range of reasonable professional assistance. Appellant's trial counsel filed and prosecuted pretrial motions for discovery and to suppress evidence, conducted an extensive voir dire examination, secured the appointment of a fingerprint expert to assist in the cross-examination of the State's expert, cross-examined the other State witnesses, and presented appellant's defense through several witnesses including (despite counsel's advice) appellant himself. Appellant voices no complaint regarding any of these matters. Further, given the likelihood of reindictment had the disqualification of the grand juror been discovered, appellant has failed to show that counsel's single error prejudiced him to such a degree that he was deprived of a fair trial. Point of error four is overruled. The judgment of conviction is affirmed. Before Chief Justice Carroll, Justices Aboussie and Jones Affirmed Filed: April 26, 1995 Do Not Publish 1. Section 29.02 was amended in a nonsubstantive way after this offense was committed. 2. Appellant also refers us to obsolete opinions holding an indictment void if returned by a grand jury on which women served as members. Stroud v. State, 235 S.W. 214 (Tex. Crim. App. 1921); Harper v. State, 234 S.W. 909, 911 (Tex. Crim. App. 1921). The requirement that grand jurors be male, like the requirement that grand jurors be twelve in number, was found in the constitution. The grand juror in this cause, on the other hand, was not constitutionally forbidden to serve, but merely statutorily disqualified.