Opinion
No. 10-07-00207-CR
Opinion delivered and filed November 5, 2008. DO NOT PUBLISH.
Appeal from the 54th District Court McLennan County, Texas, Trial Court No. 2003-667-C2.
MEMORANDUM OPINION
Appellant was convicted by a jury of the felony offense of robbery. He pled true to an enhancement paragraph and the jury assessed his punishment at confinement in the institutional division for a period of 17 years and assessed a $1,000 fine. He appealed. Appellant and his co-defendant followed the victim from an ATM to her apartment. When she stepped out of her car, they approached her on foot. Appellant grabbed her purse, and when she refused to release it, he held a gun to the side of her neck and took the purse. The gun was later determined to be a BB gun. The sufficiency of the evidence is not challenged. Appellant raises two issues on appeal. First, that his bond was improperly raised during trial, and second, that he was denied a complete Batson hearing at which he could cross-examine the prosecutor regarding his reasons for exercising peremptory strikes against two African-American venire members. We overrule the first issue and abate the appeal for the trial court to complete the Batson hearing. During the trial, the court became concerned about the sufficiency of the appellant's bond. After a hearing at which a witness testified that appellant had threatened him and his family, the court raised appellant's bond from $10,000 to $75,000, and he was placed into custody for the remainder of the trial. Appellant contends that this action constituted an abuse of the trial court's discretion. While the amount of bond set by a trial court can be appealed prior to trial, once a defendant is convicted, any complaint about that bond becomes moot. Martinez v. State, 826 S.W.2d 620 (Tex.Crim.App. 1992). Appellant's issue here is similarly moot and is accordingly overruled. In his second issue, appellant complains that he was not given an opportunity to cross-examine the prosecutor after he offered his race-neutral reasons for striking two African-American venire members. After both sides had turned in their lists of peremptory strikes, but before the jury was seated and sworn, appellant objected to the state's striking of two African-American jurors, Nos. 31 and 28. The court then asked for the state's response. The prosecutor then offered as reasons for striking No. 31 that her husband had a criminal history and that her answer to one specific question indicated that she had been involved in "situations" in the past. As for No. 28, the state said they struck him because he had not revealed a prior DWI conviction. After each explanation, the trial court stated that the Batson challenge was denied. Appellant's attorney then requested a hearing on the "third phase of the Batson trial," which, under questioning from the judge, he explained as cross-examining the prosecutor. The judge denied that request and proceeded with the trial. The exclusion of a venire-member based on race violates the Equal Protection Clause. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Once a Batson challenge is made, there is a three-step procedure that the trial court employs to determine the validity of the challenge. First, the defendant must establish a prima facie showing of purposeful discrimination by the prosecutor. Second, once the prima facie case is made, the prosecutor must come forward with a race-neutral reason for the peremptory challenge. Finally, once the prosecutor offers such an explanation, the defendant must rebut the explanation by showing that it is a mere pretext for an improperly motivated action. An integral part of the Batson procedure is the right to cross-examine the prosecutor once he has stated his racially neutral reason for challenging the jury. Salazar v. State, 795 S.W.2d 187, 192-93 (Tex.Crim.App. 1990). The Salazar court explained:
Cross-examination is necessary in a Batson hearing because once the State has met its burden of coming forward with neutral explanations for its peremptory strikes, the burden to show purposeful discrimination shifts back to the defendant to impeach or refute the neutral explanation or show that it is merely a pretext.Id. at 192 (citations omitted). In the instant case, the trial court made an implicit finding that a prima facie case had been made when he requested the State to respond and then heard their two race-neutral explanations. After each of those explanations, he denied the challenge. Appellant's trial attorney then requested a hearing on the "third phase of the Batson trial." After clarifying that the defense attorney wanted to cross-examine the prosecutor on the stand, the trial court refused to allow it. This action violated the holding of Salazar. The proper remedy for a violation of the procedures for a Batson hearing is to abate the appeal and remand the case to the trial court to conduct a further hearing. Guzman v. State, 85 S.W.3d 242, 255 (Tex.Crim.App. 2002). Consequently, we abate the appeal and remand the case to the trial court to conduct a further Batson hearing which, at a minimum, will provide the appellant an opportunity to cross-examine the prosecutor. The appeal is abated.
DISSENTING OPINION
To fully appreciate the trial court's ruling, the interchange between counsel and the trial court must be set out in detail. Note that the trial counsel's request is less than clear, but based on what counsel requested, there was no need for a further hearing as the record already contains the prosecutor's detailed explanation for the strikes. And, according to trial counsel, that was all counsel wanted on the record. The trial court stated on the record that counsel's reasons for the strikes were already on the record and there was, therefore, no need for a hearing. This observation by the trial court was not challenged in any way by the defendant's counsel. Counsel did not suggest that additional explanations or evidence would be offered. The following is the exchange that occurred at the end of voir dire, before the application of the jury strikes:Court: All right. Make your strikes.
(Recess while peremptory challenges were made by counsel.)
(Defendant present, jury panel not present.)1
Court: I have the strikes from the State and defense. We're about to call the jury panel back in. We're outside the presence and hearing of the jury panel. Mr. Reyna, you wanted to place a matter on the record.
Mr. Reyna: Yeah, Judge. Just at this time for purposes of the record we would challenge the State — we have been provided with a list of the jurors, and it appears as though the State has struck Number 31, Ms. Lucas, and Number 28, Mr. Daniels, and we challenge those under Batson, Judge.
Court: I take it both of them —
Mr. Reyna: Both of those are African Americans, yes, sir, Judge.
Court: Does the State have a response?
Mr. Freeman: Judge, in regard to Number 31, we never reached her. Whether we struck her or not, that shouldn't make any difference. Your jury is complete at Number 30. We can certainly give a reason, but I don't think it's necessary. The reason in regard to her, if you would like to hear it is, in checking the criminal history list, her husband has a DWI arrest and an AWOL, absence without leave, from Fort Hood. She also stated in reply to Mr. Reyna's question, why would a co-defendant say a defendant did it and not himself, she said, "I've been involved in situations like that before where I have been picked out." We think she would be prejudicially predisposed to find against the State.
Court: The Batson challenge is denied.
Mr. Long: Your Honor, on Mr. Daniels, he has a — number 28, he has a DWI conviction which he did not reveal. He was given every opportunity to reveal it, and I even kind of looked at him and asked is anybody here that wanted to just speak from the array there and not go back in chambers, and that's the same reason that we struck Number 3, Ms. Sawyer, who also has a DWI conviction that she did not reveal.
Court: All right. The challenge is denied.
Mr. Reyna: Judge, obviously the Court can deny or grant, but at this time just for purposes of the record, we would request a hearing on the third phase of the Batson trial, Judge.
Court: All right.
Mr. Reyna: Are you granting or denying?
Court: You want a hearing?
Mr. Reyna: Yes, which the court is free to deny or grant, whichever.
Court: Oh, what type of hearing do you want?
Mr. Reyna: Just basically would require putting the prosecutor on the stand and question them as to what they have told you.
Court: Well, it's on the record, so I'm going to deny the motion.
All a party has to do to preserve error is to let the trial judge know what he wants, why he thinks himself 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. TEX. R. APP. P. 33.1; Saldano v. State, 232 S.W.3d 77, 88 (Tex.Crim.App. 2007); Keeter v. State, 175 S.W.3d 756, 760 (Tex.Crim.App. 2005); accord Loredo v. State, 159 S.W.3d 920, 923 (Tex.Crim.App. 2004). This, trial counsel failed to do. In this regard, the events at trial did not preserve an issue for appeal. Id.
To the extent the appellant now wants a more extensive hearing and makes additional complaints about what happened at trial, the complaint on appeal does not comport with the trial court objection and, therefore, presents nothing for review. Gallo v. State, 239 S.W.3d 757, 768 (Tex.Crim.App. 2007); Swain v. State, 181 S.W.3d 359, 367 (Tex.Crim.App. 2005).Additionally, the defendant essentially waived the error, or invited the error, by inviting the trial court to make either ruling telling the trial court that ". . . . the court is free to deny or grant, whichever." Such a statement by counsel suggested that there really could not be reversible error in the denial of the request for a hearing. Further, counsel did not correct the trial court's statement on the record, if it was in any way erroneous, that what he wanted on the record, the State's race neutral explanations for its strikes, was already in the record and, therefore, no error was preserved. See Loredo, 159 S.W.3d at 923-924. Finally, in the present case, counsel was asked what type hearing he wanted. Counsel responded with a description of what he wanted on the record. The trial court responded that what counsel wanted was already on the record — the State's race neutral explanations for its strikes. Thus, unlike the recent Texas Supreme Court decision in Fisk, it is not that counsel was not allowed to make a record because what counsel wanted was already in the record. Davis v. Fisk Elec. Co., No. 06-0162, 2008 Tex. LEXIS 863, *14-16 (Tex. Sept. 26, 2008). Whereas in Fisk the Texas Supreme Court held that the complaint about not having the third part of the Batson hearing was preserved, in this instance I do not believe that it was. Id. * 15-16. Alternatively, if the complaint was sufficiently specific to preserve the issue, I would nevertheless hold, for the other reasons expressed, that there was no error. But if there was error in not having the third phase of the Batson hearing, I would proceed to the harm analysis as the Court did in Fisk, and upon the totality of the circumstances hold that it was harmless. See Fisk, 2008 Tex. LEXIS 863, at *16-17. For any of these reasons, I would overrule appellant's first issue and affirm the trial court's judgment. Because the majority does not, I respectfully dissent.