Opinion
No. 06-05-00032-CR
Submitted: July 27, 2005.
Decided: August 3, 2005. DO NOT PUBLISH.
On Appeal from the County Court at Law, Cherokee County, Texas, Trial Court No. 44079.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
A jury found Richard Delane guilty of the offense of possession of less than two ounces of marihuana. See TEX. HEALTH SAFETY CODE ANN. § 481.121(b)(1) (Vernon 2003). On appeal, Delane raises two separate points of error, each of which contend the trial court erred by failing to sustain his challenge to Rachel Smith, a potential juror, in violation of either Delane's state or federal due process rights. We affirm.
To preserve error with respect to a trial court's denial of a challenge for cause, an appellant must: (1) assert a clear and specific challenge for cause, (2) use a peremptory strike on the complained-of veniremember, (3) exhaust his peremptory strikes, (4) request additional peremptory strikes, (5) identify an objectionable juror, and (6) claim that he would have struck the objectionable juror with a peremptory strike if he had had one to use.Howes v. State, 120 S.W.3d 903, 908 (Tex.App.-Texarkana 2003, pet. ref'd). In this case, Delane asserted to the trial court a clear and specific challenge to prospective juror Smith for cause. Smith had previously indicated she was predisposed to recommending the maximum sentence for any criminal case in which she was a juror. Delane challenged Smith for cause, but the trial court overruled, saying
The question [Delane's counsel had asked to solicit the response about Smith wanting to impose the maximum punishment] was improper. It asked for a commitment, and the jury panel hasn't heard any of the infinite possibilities of mitigating circumstances that would color their decision. It was a commitment question. It wasn't proper in the first place. I'm not going to grant your strikes [for cause].Thereafter, Delane exhausted his peremptory strikes before reaching Smith on the list of prospective jurors. However, Delane failed to request any additional peremptory strikes. Smith was then seated as a member of the jury, to which Delane objected. Because the record does not show Delane requested additional peremptory strikes, these issues have not been preserved for appellate review. See id. Nevertheless, Delane further contends he did not need to request additional peremptory strikes (to preserve error) because "it is obvious the trial court would not have granted additional peremptory challenges based on [the trial court's] statements regarding the propriety of appellant's questions to the challenged jurors and [the] ruling on the challenge." We do not read the trial court's ruling so expansively, nor do we see the need to read error into a trial court's ruling where the trial court was not asked to grant additional peremptory strikes. Moreover, Delane's attempts to couch his argument in terms of fundamental, constitutional error also fail. The right to peremptory challenges is not of constitutional dimension, nor does the failure of a trial court to grant a challenge for cause create a federal due process issue unless the defendant first exhausts all the relief to which he or she is entitled under state law. See United States v. Martinez-Salazar, 528 U.S. 304, 311-14 (2000). In this case, Delane did not request additional peremptory strikes and thus failed to exhaust the available state-based relief. We overrule Delane's points of errors and affirm the trial court's judgment.