Concurring 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


                             CONCURRING OPINION

         I concur in the judgment affirming Degar’s conviction. That said, I disagree

with the court’s conclusion that Degar failed to preserve his objection to the venire

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: “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.” Maj. Op. at 3. 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 5, in fact Boones did not evaluate the specificity of an objection

to a proposed Batson remedy. Boones involved a naked Batson objection without a

further objection to the trial court’s remedy. See Boones, 170 S.W.3d at 656.



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Likewise, State ex rel. Curry v. 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 8.

      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



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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.




                                              Michael Massengale
                                              Justice

Panel consists of Justices Keyes, Massengale, and Lloyd.

Justice Massengale, concurring in the judgment.

Publish. TEX. R. APP. P. 47.2(b).




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