Degar v. State

482 S.W.3d 588, 2015 Tex. App. LEXIS 12570, 2015 WL 8557159
CourtCourt of Appeals of Texas
DecidedDecember 10, 2015
DocketNO. 01-14-00660-CR
StatusPublished
Cited by2 cases

This text of 482 S.W.3d 588 (Degar 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
Degar v. State, 482 S.W.3d 588, 2015 Tex. App. LEXIS 12570, 2015 WL 8557159 (Tex. Ct. App. 2015).

Opinions

OPINION

Evelyn V. Keyes, Justice

A jury. convicted appellant, Rodashian [589]*589E. Degar, of murder,1 and the trial court assessed his punishment- at twelve years’ confinement. In his sole issue, appellant argues that the trial court abused its discretion in remedying the State’s violation of Batson v. Kentucky2 by reinstating the improperly .challenged venire member rather than by calling a new venire panel.

We affirm.

Background

Appellant was charged with the murder of the complainant, Chase Walker, in the course of a marijuana sale gone wrong. Following voir dire and each party’s exercise of its peremptory strikes, the trial court presented the first twelve members remaining on the venire panel as the proposed trial jury.

Appellant objected to the proposed jury, stating, “Judge, at this time I would make a Batson challenge.” Appellant asserted that there were nine African-Americans on the venire panel and only three had been selected to sit on the jury. He identified three additional African-American venire members whom he argued the State had struck in violation of Batson v. Kentucky. Following a hearing, the trial court sustained appellant’s Batson challenge as to one of these people, venire member fifteen.

The trial court stated that it would seat the challenged venire member on the jury; and the following discussion occurred:

[Counsel]: Okay. So, we seat her and . then who do we seat after , . that?
[The Court]: We have to-take a look. So, what we do is — Let’s go off the record.
(Brief pause).
[The Court]: Okay. We’re back on the record on your motion.
[Counsel]: I would object to the panel— the proposed remedy is to seat Juror No. 15, which then removes Juror No. 45 who is also an African-American female. So, I would object to the panel with that . remedy.
[The Court]: Okay. That’s overruléd.
[Counsel]: And because my (Objection is overruled, as part of trial strategy, I would rather have Juror No. 45 seated than Juror No. 15 seated.
' [The Court]: Juror 15 is not seated. You’d rather keep Juror 45; is that correct?
[Counsel]: Correct....
. [The . Court]: All right. That’s what we’ll do. We’ll keep the jury as it is.

The trial court empaneled a twelve-person jury with eight minorities, including three African-Americans, to consider the ease. The jury convicted appellant of murder, and this appeal followed.

Remedy for Batson Violation

■ In his sole issue, appellant argues that the trial court abused its discretion in remedying the State’s Batson violation with regard to venire member fifteen.

In Batson,' the Supreme Court determined that racial discrimination in the use of peremptory' challenges violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and it left state and federal courts to fashion their own remedy to such violations. See 476 U.S. 79, 84, 99 n. 24, 106 [590]*590S.Ct. 1712, 1716, 1725 n. 24, 90 L.Ed.2d 69 (1986). In response, the Texas Legislature enacted Code of Criminal Procedure article 35.261 implementing Batson ⅛ prohibition on race-based peremptory challenges and providing that “the defendant may request the court to dismiss the array and call a new array in the case” and that “[i]f the court determines that the attorney representing the state challenged prospective jurors on the basis of race, the court shall call a new array in the case.” Tex. Code Crim. PROC. Ann. art. 35.261 (Vernon 2006).

. However, the Court of Criminal Appeals subsequently stated that the sole statutory remedy of “callfing] a new array” in the case after sustaining a Batson challenge “may be unconstitutionally restrictive” and held that trial courts have discretion to implement other remedies — such as reinstating venire members struck on the basis of race. State ex rel. Curry v. Bowman, 885 S.W.2d 421, 424-25 (Tex.Crim.App.1993); see, e.g., Peetz v. State, 180 S.W.3d 755, 760 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (“When a court finds a Batson violation, it may fashion an appropriate remedy according to its discretion.”); Boones v. State, 170 S.W.3d 653, 657 (Tex.App,-Texarkana 2005, no pet.) (recognizing Bowman as holding that decision to reinstate excluded venire members was acceptable remedy); Craig v. State, 82 S.W.3d 451, 453 n. 1 (Tex.App.-Austin 2002, pet. ref'd) (recognizing that “the remedy prescribed by article 35.261 is not exclusive and that a trial court is authorized to remedy a Batson error by reinstating the excluded venire member to the trial jury”).

To preserve an issue for review on appeal, an appellant must make a timely objection that specifically states the legal basis for the objection. Tex. R. App. P. 33.1(a); Pena v. State, 353 S.W.3d 797, 807 (Tex.Crim.App.2011). “Regarding its specificity, the objection must simply be clear enough to provide the judge and the opposing party an opportunity to address and, if necessary, ■ correct the purported error.” Pena, 353 S,W.3d at 807. Furthermore, the point .of- error raised on appeal must comport with the objection made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App.2002).

In the context of a complaint about the remedy to a Batson violation, the Court of Criminal Appeals has held that “an objection to an impermissible peremptory challenge of a veniremember- based on Batson and its progeny is no longer coextensive with an objection predicated upon Article 35.2,61.” Bowman, 885 S.W.2d at 425 (noting that defendant “did not expressly assert any statutory rights” and concluding that trial court did not abuse its discretion in reinstating improperly challenged juror); see also Boones, 170 S.W.3d at 657 (holding, where defendant did not expressly assert any statutory rights, that trial court did not abuse its discretion by reinstating excluded juror).

Appellant argues that the trial court abused its discretion in proposing to remedy the Batson violation by reinstating venire member fifteen to the trial jury. However, Batson did not prescribe a particular remedy but left it to state and federal courts to fashion their own remedy, stating: ;

We express no view ón whether it is more appropriate in a particular case, upon a finding of discrimination against black jurors, for the' trial court to discharge the venire and select a new jury from a panel not previously associated with the case ...

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Cite This Page — Counsel Stack

Bluebook (online)
482 S.W.3d 588, 2015 Tex. App. LEXIS 12570, 2015 WL 8557159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/degar-v-state-texapp-2015.