
    Rodashian E. DEGAR, Appellant v. The STATE of Texas, Appellee
    NO. 01-14-00660-CR
    Court of Appeals of Texas, Houston (1st Dist.).
    Opinion issued December 10, 2015
    Allen C. Isbell, Houston, Texas,'for Appellant.
    Melissa P. Hervey, Assistant District Attorney, Harris County, Houston, Texas, for Appellee. . ■
    - Panel consists of Justices Keyes, Massengale, and Lloyd.
   OPINION

Evelyn V. Keyes, Justice

A jury. convicted appellant, Rodashian E. Degar, of murder, 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. Kentucky 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 S.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 ... 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”).

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 veni-re member forty-five was, like venire member fifteen, an1 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 articlé 35.261.’ See Tex. Code CRIM. Proo. 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 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 ah 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. Aijn. 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 Batsorir — 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 “objected] 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 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 objec? tion “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. ' ’

Justice Massengale, concurring.

Massengale, Justice,

concurring.

I concur in the judgment affirming De-gar’s conviction. That said, I disagree with the court’s conclusion that Degar failed to preserve his objection to the veni-re panel.

This appeal presents a single point of error: whether the trial court abused its discretion by “refusing to dismiss the array” after a Batson violation. Appellant’s Br. at iii, 7. As noted by the court, the trial objection was: “/ 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, / ■would object to the panel with that remedy.” Maj. Op. at 589. This was not merely a reiteration of the sustained Batson objection. In context, by twice stating, “I would object to the panel,” defense counsel articulated an independent objection to the proposed remedy. The subsequent request to seat Juror No. 45 instead of Juror No. 15 came after the trial court overruled the objection “to the panel.”

This scenario is different from Boones v. State, 170 S.W.3d 653 (Tex.App.Texarkana 2005, no pet.), in which the defendant objected to the State’s use of a peremptory strike but “did not request the trial court to dismiss the panel and call a new array” or “object to the trial court’s failure to dismiss the array pursuant to Article 35.261.” Boones, 170 S.W.3d at 656. While the court characterizes Boones as an example of a ■ “holding, where defendant did not expressly assert any statutory rights, trial court did not abuse its discretion by reinstating excluded juror,” Maj. Op. at 590, in fact Boones did not evaluate the specificity of an objection to- a proposed Batson remedy. Boones inyolved a naked Batson objection without a further objection to the trial court’s remedy. See Boones, 170 S.W.3d at 656. Likewise, State ex rel. Curry n Bowman, 885 S.W.2d 421 (Tex.Crim.App.1993), also did not evaluate the specificity required to preserve an objection to a Batson remedy. Bowman merely observed 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.

The court unnecessarily divides Degar’s single point of error into two different issues, one of which the court finds to be properly presented, and the other which it finds to have been waived. It affirmatively holds that reinstating Juror No. 15 was a proper remedy, yet it further holds that •Degar failed to properly preserve his argument that the trial court should have dismissed the entire array. The court explains that Degar’s- trial objection “referenced only Batson,” but if that was insufficient to preserve error with respect, to an objection “to the panel,” then the court’s entire discussion of the merits is dicta. Maj. Op. at 591.

The Court of Criminal Appeals rejects “hyper-technical requirements for preservation,” Everitt v. State, 407 S.W.3d 259, 263 (Tex.Crim.App.2013), instead instructing that “all the party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.” Layton v. State, 280 S.W.3d 235, 239 (Tex.Crim.App.2009) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992)). I would find that standard met here. The court seems to suggest that an express reference to Article 35.261 or “the array” would have been necessary to preserve error. But under the precedents of the Court of Criminal Appeals, neither was necessary in this context, ,in which the trial court’s familiarity with Article 35.261, fairly could be presumed.

Like the majority’s dictum, I conclude the trial court acted within its discretion when it remedied the Batson violation by seating Juror No. 15. If, like the majority, I thought the objection was not sufficiently specific and therefore futile, I would not go further to address the merits of a waived objection. 
      
      . . See Tex. Penal Code Ann. § 19.02 (Vernon 2011).
     
      
      . 47.6 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
     