Chambers v. State

750 S.W.2d 264, 1988 Tex. App. LEXIS 699, 1988 WL 26539
CourtCourt of Appeals of Texas
DecidedMarch 31, 1988
DocketC14-87-195-CR
StatusPublished
Cited by3 cases

This text of 750 S.W.2d 264 (Chambers v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chambers v. State, 750 S.W.2d 264, 1988 Tex. App. LEXIS 699, 1988 WL 26539 (Tex. Ct. App. 1988).

Opinions

OPINION

JUNELL, Justice.

Harry Chambers appeals a felony conviction for burglary of a building. A jury found appellant guilty and the court assessed punishment, enhanced by two prior convictions, at twenty-five years imprisonment in the Texas Department of Corrections.

In a single point of error appellant contends that the trial court committed fundamental error by proceeding with his trial, and the selection of a new jury panel, after a mistrial was declared because appellant showed the systematic exclusion of blacks from the first jury panel.

Appellant’s trial began on January 20, 1987. Twelve jurors were selected from the jury panel but were not sworn. The jury panel included six black prospective jurors. The state, using its peremptory challenges, struck five of the six blacks from the panel. Appellant moved for a mistrial based on the state’s use of its peremptory challenges to remove members of appellant’s race from the venire. The court held a hearing out of the presence of the jury panel in accordance with Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Based on the evidence presented at the hearing, the court determined that appellant had made a prima facie showing of discrimination and that the state had not offered sufficiently racially neutral explanations for the questioned challenges. The trial court concluded the hearing by granting appellant’s Motion for Mistrial.

The next day a new jury was selected from a second jury panel. Prior to the second jury being sworn, appellant again made a Batson objection and moved for a mistrial. The Galveston district attorney had used one of her peremptory challenges to strike one of the two black prospective jurors on the second jury panel. A second Batson hearing was held outside the presence of the second jury panel. The court determined that the state had presented racially neutral grounds for striking this prospective black juror. Therefore, appellant’s second request for a mistrial was denied.

Appellant asserts that the trial court committed error when it continued appellant’s trial and selected a new jury panel after a mistrial was declared. Appellant contends that some additional remedy [266]*266should have been fashioned by the court to dissipate the harm resulting from the state’s misuse of its peremptory strikes with the first jury panel. Appellant concedes that the majority of reported decisions support the trial court’s actions. However, appellant does cite U.S. v. Robinson, 421 F.Supp. 467 (D.Conn.1976) as authority supporting his position that the appropriate remedy, upon a finding of discriminatory use of the state’s peremptory challenges, is to disallow the challenge of the stricken black veniremen and to resume the jury selection process with those black jurors included.

It is well recognized that when no objection is made at trial nothing is presented for appellate review. Griffin v. State, 665 S.W.2d 762, 763 (Tex.Crim.App.1988). The record before us clearly shows that appellant did not object when the court dismissed the first jury panel after the court declared a mistrial nor did he request the court to disallow the state’s strikes and reinstate the veniremen struck by the state. Since appellant received all the relief he requested, he has preserved nothing for our review. Reese v. State, 531 S.W.2d 638, 641 (Tex.Crim.App.1976); Hopkins v. State, 480 S.W.2d 212, 213 (Tex.Crim.App.1972).

However, assuming appellant’s contention had been properly preserved, the trial court did not commit error when it continued with appellant’s trial using a second jury panel. A reviewing court should give great deference to a trial judge’s findings of fact concerning purposeful discrimination. Henry v. State, 729 S.W.2d 732, 734 (Tex.Crim.App.1987). The United States Supreme Court has suggested two alternatives available to the trial court once purposeful discrimination by the state has been shown. The trial court may either (1) discharge the veniremen and select a new jury from the panel previously associated with the case or (2) disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire. Batson v. Kentucky, 106 S.Ct. at 1724 n. 24. Henry v. State, 729 S.W.2d at 737. However, due to the variety of jury selection practices used within our judicial system, the United States Supreme Court declined to choose the most appropriate method for courts to use. Batson, 106 S.Ct. at 1724. Clearly, the view of the United States Supreme Court and the Texas Court of Criminal Appeals is that individual trial judges have the power to choose either alternative. Henry v. State, 729 S.W.2d at 737.

After reviewing U.S. v. Robinson, 421 F.Supp. 467, we find that the facts presented therein were more egregious than those found in the present case. The Connecticut District Court reviewed data concerning the selection of juries empaneled in all criminal cases in their district during the previous two years. The data submitted by the defendants analyzed seventy-one trials. After assessing all of the data presented, the Connecticut District Court concluded that the pattern of government peremptory challenges of black veniremen had reached an excessive point. The court then exercised its discretionary supervisory power by disallowing the challenges of the black veniremen and resuming the jury selection process with the names of the four black veniremen included. U.S. v. Robinson, 421 F.Supp. at 474. In the instant case appellant did not allege, either in his brief or in his oral argument to this court, that the Galveston County District Attorney’s office exhibited a history of racially motivated challenges of black veniremen. Rather, he stated that the Galveston District Attorney’s office had exercised its peremptory challenges improperly only as to the first jury panel in this particular case.

On June 19, 1987, the Texas Legislature approved the amendment of Article 35.261 to the Texas Code of Criminal Procedure. We realize that the amended statute was not in effect at the time of appellant’s trial. However, we believe the enactment of this amendment clearly demonstrates the legislature’s approval of the practice of calling a new jury panel when it is determined that the state has used its peremptory challenges in a racially discriminatory manner. Revised Article 35.261 states in relevant part:

[267]*267(a) After the parties have delivered their lists to the clerk under Article 35.26 of this code and before the court has impanelled (sic) the jury, the defendant may request the court to dismiss the array and call a new array in the case.

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Related

Thompson v. State
802 S.W.2d 840 (Court of Appeals of Texas, 1990)
Sims v. State
768 S.W.2d 863 (Court of Appeals of Texas, 1989)
Chambers v. State
750 S.W.2d 264 (Court of Appeals of Texas, 1988)

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750 S.W.2d 264, 1988 Tex. App. LEXIS 699, 1988 WL 26539, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chambers-v-state-texapp-1988.