Tezeno v. State (484 S.W.2d 374, 1972)

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for murder with malice. Trial was before a jury, which assessed the death penalty.

The appellant entered an automobile supply house in the city of Houston. An employee of the firm noticed appellant standing near the front of the store, and approached him and asked if he could help him. The appellant replied that he was “just looking.” The employee then returned to his place at the counter and began examining a catalog. The deceased and another employee were standing behind a counter, talking on telephones. At this time appellant went to the center of the store, pulled out a pistol and stated, “This is a stickup. Give me your money. Put them phones down. I said put them telephones down.” He then fired the pistol, the bullet striking the deceased in the chest. The deceased died from this wound.

Appellant then took money at gunpoint from an employee who had removed it for him from the cash register. He also approached a salesman who was in the store at the time and asked for his billfold, although he did not take it. At that time another person, a salesman, entered through the front door and appellant fled.

Appellant raises eleven grounds of error.

Appellant asserts by his first and ninth grounds that the trial court erred in denying his motions to quash the jury panel and to challenge the composition of the jury. He contends that the jury was composed only of whites and that blacks were excluded from the jury by the State’s use of its peremptory challenges. In his motion to quash the panel, he contended “that the members of the jury panel do not constitute the peers of the defendant,” and that “to require the defendant to be tried by a jury other than those individuals of his class is a violation of equal protection anc due process . . . . ” He also claims that the jury qualifications set out by