Opinion issued December 10, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00660-CR ——————————— RODASHIAN E. DEGAR, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court Harris County, Texas Trial Court Case No. 1377034
OPINION
A jury convicted appellant, Rodashian E. 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
1 See TEX. PENAL CODE ANN. § 19.02 (Vernon 2011). violation of Batson v. Kentucky 2 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.
2 476 U.S. 79, 106 S. Ct. 1712 (1986).
2 (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 overruled.
[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 case. 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
3 federal courts to fashion their own remedy to such violations. See 746 U.S. 79, 84,
99 n.24, 106 S. Ct. 1712, 1716, 1725 n.24 (1986). In response, the Texas
Legislature enacted Code of Criminal Procedure article 35.261 implementing
Batson’s 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 “call[ing] 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
4 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 35.261.” 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).
5 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 on 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 . . . or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire.
Batson, 476 U.S. at 99 n.24, 106 S. Ct. at 1725 n.24; Bowman, 885 S.W.2d at 424.
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Opinion issued December 10, 2015
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-14-00660-CR ——————————— RODASHIAN E. DEGAR, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court Harris County, Texas Trial Court Case No. 1377034
OPINION
A jury convicted appellant, Rodashian E. 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
1 See TEX. PENAL CODE ANN. § 19.02 (Vernon 2011). violation of Batson v. Kentucky 2 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.
2 476 U.S. 79, 106 S. Ct. 1712 (1986).
2 (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 overruled.
[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 case. 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
3 federal courts to fashion their own remedy to such violations. See 746 U.S. 79, 84,
99 n.24, 106 S. Ct. 1712, 1716, 1725 n.24 (1986). In response, the Texas
Legislature enacted Code of Criminal Procedure article 35.261 implementing
Batson’s 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 “call[ing] 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
4 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 35.261.” 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).
5 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 on 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 . . . or to disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire.
Batson, 476 U.S. at 99 n.24, 106 S. Ct. at 1725 n.24; Bowman, 885 S.W.2d at 424.
And, as Bowman makes clear, trial courts have the discretion to implement
remedies such as reinstating venire members struck on the basis of race. See
Bowman, 885 S.W.2d at 424–25.
Here, the trial court sustained appellant’s Batson challenge regarding venire
member fifteen and suggested the remedy of reinstating her on the jury, which was
within its discretion. See id.; see also Peetz, 180 S.W.3d at 760 (“When a court
finds a Batson violation, it may fashion an appropriate remedy according to its
discretion.”); Boones, 170 S.W.3d at 657 (recognizing Bowman as holding that
decision to reinstate excluded venire members was acceptable remedy); Craig, 82
S.W.3d at 453 n.1 (recognizing that “a trial court is authorized to remedy a Batson
error by reinstating the excluded venire member to the trial jury”).
6 Appellant objected to this remedy by arguing that seating venire member
fifteen resulted in the removal of venire member forty-five from the jury, and
venire member forty-five was, like venire member fifteen, an African-American
female. However, appellant presented no argument regarding why this remedy was
inadequate to cure any harm arising from the Batson violation. The jury that
convicted appellant consisted of twelve people, eight of whom were minorities,
including three African-Americans. Cf. Bowman, 885 S.W.2d at 425 (observing
that “Batson and its progeny demonstrate that denying a person participation on a
jury . . . on account of his race unconstitutionally discriminates against the
excluded juror” and, thus, Batson violations are not “merely harmful to the parties
involved but to the individual veniremember as well”; concluding that reinstating
improperly struck venire member to jury serves to vindicate prospective juror’s
right to serve on jury).
We conclude that the trial court did not err in responding to appellant’s
Batson challenge by reinstating venire member fifteen to the jury. See id.
Appellant also argues on appeal that the trial court erred in “refusing” to
dismiss the entire venire panel and call a new array as required by Code of
Criminal Procedure article 35.261. See TEX. CODE CRIM. PROC. ANN. art. 35.261(a)
(providing that “defendant may request the court to dismiss the array and call a
new array in the case” and setting out procedure for doing so). As appellant never
7 requested this relief, we cannot conclude that the trial court abused its discretion in
failing to grant it.
An objection to an impermissible peremptory challenge based on Batson is
not coextensive with an objection under article 35.261, and the remedies are not
coextensive. Bowman, 885 S.W.2d at 425 (noting that Batson Court left selection
of appropriate remedy to discretion of state and federal courts and concluding that
when defendant “did not expressly assert any statutory rights” trial court did not
abuse its discretion in reinstating improperly challenged venire member); Boones,
170 S.W.3d at 657 (holding that trial court did not abuse its discretion by
reinstating excluded juror when defendant did not expressly assert any statutory
rights); cf. TEX. CODE CRIM. PROC. ANN. art. 35.261(a) (governing procedure and
remedy upon request to dismiss array).
Appellant’s objection before the trial court regarding the State’s peremptory
challenge to venire member fifteen referenced only Batson—appellant did not
assert any statutory grounds for his challenge, did not refer to article 35.261, and
did not request that the trial court dismiss the entire venire panel and call a new
array. Appellant “object[ed] to the panel with [the trial court’s proposed] remedy”
and stated that, “as part of [his] trial strategy, [he] would rather have Juror No. 45
seated than Juror No. 15 seated.” The trial court granted this request. Thus,
appellant failed to preserve for consideration on appeal his complaint that the trial
8 court erred in failing to dismiss the venire panel. See TEX. R. APP. P. 33.1(a); Pena,
353 S.W.3d at 807 (requiring specific objection “clear enough to provide the judge
and the opposing party an opportunity to address and, if necessary, correct the
purported error”). His argument on appeal does not comport with the objections
made at trial. See Wilson, 71 S.W.3d at 349; Bowman, 885 S.W.2d at 425.
We overrule appellant’s sole issue on appeal.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes Justice
Panel consists of Justices Keyes, Massengale, and Lloyd.
Justice Massengale, concurring.
Publish. TEX. R. APP. P. 47.2(b).