McGee v. State

817 S.W.2d 810, 1991 Tex. App. LEXIS 2505, 1991 WL 202260

Opinions

OPINION

SAM BASS, Justice.

Appellant was convicted of capital murder and sentenced to life imprisonment.

We affirm.

Appellant asserts two points of error concerning jury selection. In his first point of error, appellant urges this Court to abate the appeal so that the trial court can hold a Batson hearing. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In his second point of error, he asserts that the conviction should be reversed because the prosecutor allegedly struck black venirepersons on the basis of race.

The voir dire was conducted on an individual basis and is contained in 10 volumes of the statement of facts. Both the prosecutor and defense counsel questioned each venireperson separately and then either challenged the venireperson for cause, used a peremptory strike, or accepted the venire-person. Appellant complains about the State’s use of peremptory strikes against two black venirepersons. After questioning each venireperson, Appellant objected to the State’s use of peremptory strikes. While not stating that Appellant had not demonstrated a prima facie case of racially motivated strikes, the trial court invited the prosecutor to state his reasons for striking the venirepersons. After listening to the State’s reasons, the trial court found that the peremptory strikes were not exercised for a racially motivated reasons. Appellant did not repeat his Batson motion.

An appellant makes a timely objection under Batson if such objection is made after the composition of the jury is made known but before the jury is sworn and the venire panel is discharged. Henry v. State, 729 S.W.2d 732, 737 (Tex.Crim.App. 1987). This gives the trial court the opportunity to correct any Batson violations. Id.

When Appellant concluded the questioning of the two venirepersons, he made a Batson objection. The trial court overruled the Batson objection and found the State's use of the peremptory strikes was not racially motivated. At no time after the the jury was selected and before the jury was sworn did Appellant assert a Bat-son objection. Appellant did not make a timely objection and did not preserve error for appeal. Tex.R.App.P. 52(a).

Appellant argues that the Batson issue was presented to the trial court in the same manner as the issue was presented in Keeton v. State, 749 S.W.2d 861 (Tex.Crim. App.1988). Appellant contends the issue was preserved for appeal. In 1987, the Court of Criminal Appeals stated the procedure to be followed prospectively. Henry, 729 S.W.2d at 737. Appellant’s trial took place in 1990, after Henry, and Appellant did not follow this procedure.

Appellant did not ask the trial court to hold a Batson hearing, but only objected on the basis of Batson when two venireper-sons were struck. Although not finding a prima facie case of discrimination, the State gave its reasons for the strikes and the trial court found that the strikes were not racially motivated. Abatement is not necessary.

Appellant’s points of error are overruled.

The judgment is affirmed.

DUNN, J., dissents.