                                                                           ACCEPTED
                                                                      01-14-00660-CR
                                                            FIRST COURT OF APPEALS
                                                                    HOUSTON, TEXAS
                                                                 1/27/2015 3:31:53 PM
                                                                  CHRISTOPHER PRINE
                                                                               CLERK

                      NO. 01-14-00660-CR

                IN THE COURT OF APPEALS               FILED IN
                                               1st COURT OF APPEALS
                                                   HOUSTON, TEXAS
                        FIRST DISTRICT         1/27/2015 3:31:53 PM
                                               CHRISTOPHER A. PRINE
                                                       Clerk
                       HOUSTON, TEXAS


                         NO. 1377034

                      IN THE TRIAL COURT

                 230TH JUDICIAL DISTRICT

                 HARRIS COUNTY, TEXAS


RODASHIAN E. DEGAR            §            APPELLANT

VS.                           §

THE STATE OF TEXAS            §            APPELLEE


                     BRIEF FOR APPELLANT




                                       ALLEN C. ISBELL
                                       202 Travis, Suite 208
                                       Houston, Texas 77002
                                       713/236-1000
                                       Fax: 713/236-1809
                                       STATE BAR NO. 10431500

                                       COUNSEL ON APPEAL
                NAMES AND ADDRESSES OF ALL PARTIES
                AT THE TRIAL COURT’S FINAL JUDGMENT


Trial Judge

       Honorable Jay Burnett, Judge Presiding
       230th District Court
       1201 Franklin, 16th Fl., Houston, Texas 77002


Appellant/Defendant

       Mr. Rodashian E. Degar
       #01944140
       Luther Unit
       1800 Luther Dr., Navasota, Texas 77868


Appellant’s Counsel

       Mr. Allen C. Isbell - Counsel on Appeal
       202 Travis, Suite 208, Houston, Texas 77002

       Ms. Lisa Kay Andrews - Counsel at Trial
       1207 S. Shepherd, Houston, Texas 77019

       Ms. Wendy Baker - Counsel at Trial
       21 Waterway, #300, The Woodlands, Texas 77380


Attorneys for the State of Texas

       Mr. Alan Curry - Assistant District Attorney on Appeal
       1201 Franklin, Ste. 600, Houston, Texas 77002

       Ms. Lauren Bard - Assistant District Attorney at Trial
       1201 Franklin, 6th Fl., Houston, Texas 77002

c:\appeals\degar\brief for appellant                            ii
                                    TABLE OF CONTENTS


                                                                                                      PAGE

       Names and Addresses of All Parties at the Trial Court’s Final Judgment
            . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

       Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

       Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . iv

       Statement of the Nature of the Case . . . . . . . . . . . . . . . . . . . . . . . . . 1

       Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Point of Error Number One
    The trial court abused its discretion in refusing to dismiss the array
    pursuant to Texas Code of Criminal Procedure, Art. 35.261 after the
    trial court found that the State had committed a “Batson” violation,
    and appellant objected to the only non-statutory remedy
    formulated by the trial court, and appellant objected to the jury
    panel which is the statutory remedy when a “Batson” violation
    occurs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

       Statement of Facts Point of Error Number One . . . . . . . . . . . . . . . . 7

       Summary of the Argument Point of Error Number One . . . . . . . . . . . 9

       Argument and Authorities Point of Error Number One . . . . . . . . . . . 9

       Conclusion and Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

       Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

       Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14



c:\appeals\degar\brief for appellant                                                                          iii
                                    INDEX OF AUTHORITIES


CASES                                                                                                  PAGE

Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-12

Boones v. State, 170 S.W.3d 653 (Tex. App. Texarkana 2005; writ of
    mandamus denied 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Saldivar v. State, 980 S.W.2d 475 (Tex. App. Houston [14th Dist.] 1998,
      pet.ref’d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State ex rel. Curry v. Bowman, 885 S.W.2d 421 (Tex. Crim. App. 1993)
       . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10


STATUTES

Texas Code of Criminal Procedure, Art. 35.261 . . . . . . . . . . . . . . 7, 10-12



                   STATEMENT REGARDING ORAL ARGUMENT

        Oral argument is waived.




c:\appeals\degar\brief for appellant                                                                          iv
TO THE HONORABLE COURT OF APPEALS:

       COMES NOW RODASHIAN E. DEGAR, appellant, by and through his

appointed attorney of record, ALLEN C. ISBELL, and files this Brief in support

of his prayer for reversal of his conviction.

                      Statement of the Nature of the Case

       This is an appeal arising from a conviction for Murder in the 230th District

Court of Harris County, Texas, the Honorable Jay Burnett, Visiting Judge

Presiding. The jury found appellant guilty. The judge sentenced appellant to

twelve (12) years imprisonment, in the Texas Department of Criminal Justice,

Institutional Division. No Motion for New Trial was filed. Appellant gave

written Notice of Appeal on July 29, 2014.

                                 Statement of Facts

       At approximately 1 p.m. on May 15, 2012, Houston homicide

investigator Jeffrey Rexroad accompanied Sergeant Jeff Rohling to the scene

of a shooting at Beran and Quentin Drive in Houston, Harris County, Texas.

The complainant, Chase Walker, had been found in the street. He had been

shot. The police learned the description of the suspect’s vehicle, and they

learned that possibly four black males were involved in this homicide. Nearby,

the police found a 9 mm handgun, $509 in cash, an iPad, the victim’s wallet


c:\appeals\degar\brief for appellant                                             1
and a cell phone. The police obtained a search warrant to retrieve the data

from the cell phone. This data led police to an apartment complex called

Cuney Homes near Yates High School (R.R. 3 111-116, 122-124, 129, 185).

       The managers at the complex identified a picture on the phone as

Ashley Johnson, who lived in the complex with a man named Bobby Pal. The

police went to their apartment. The police recovered a .45 caliber handgun

from the apartment. Ashley Johnson identified the phone as belonging to her

brother, Kenya Jackson. Jackson gave the police the name of Anthony

Duhon. Duhon gave the police the name of Maurice White. White gave

police the name of Rodashian Degar, the appellant (R.R. 3, 128-131).

       The police learned that the shooting had occurred in the backseat of a

green, 4-door Pontiac which was being driven by Maurice White. Kenya

Jackson sat in the front passenger seat. Anthony Duhon sat behind the driver

and appellant sat behind Kenya Jackson. At one point, the complainant,

Chase Walker, got into the back seat behind the driver. This made Anthony

Duhon move towards the center of the back seat (R.R. 3, 132-133).

       Chase Walker survived for approximately 22 hours after being shot.

The hospital did not perform any toxicology tests prior to fluids and blood

transfusions being administered in an attempt to save Walker’s life. By the


c:\appeals\degar\brief for appellant                                       2
time Dr. Mary Lynn Anzolone performed an autopsy on May 17, 2012, she did

not have any good samples to submit for tests. Her examination of the body

revealed a single gunshot wound to the head, and minor abrasions on

Walker’s arm, thigh, knee and shin which were consistent with him falling out

of a vehicle onto pavement. She recovered a bullet and two fragmented

pieces. Dr. Anzolone determined the cause of death to be a gunshot wound

to the head and classified the death as a homicide (R.R. 3, 27, 38-48, 54-55).

       The police recovered the vehicle which Maurice White drove. White’s

father had taken the vehicle to a paint shop to be repainted. April Palatino

with the Houston Police Department Crime Scene Unit, examined the vehicle

on May 31, 2012. She discovered that it had been green in color, but was

recently and hurriedly repainted white. Although the car had been cleaned,

Luminal spray revealed the presence of blood in the backseat area behind the

driver’s seat . Samples of the blood stained areas in the vehicle matched the

complainant’s DNA (R.R. 3, 95-101, 103, 134-135).

       On January 30, 2013, Officer Rexroad obtained pocket warrants for

Maurice White, Kenya Jackson, Anthony Duhon and appellant for tampering

with evidence. Appellant gave a recorded statement in which he admitted that

he shot Chase Walker with a Glock 17 handgun. But, appellant maintained


c:\appeals\degar\brief for appellant                                         3
that he had acted in self-defense or in defense of the others (R.R. 135-151,

165-166, 188-189).

       The primary witness against appellant at trial was Maurice White. White

testified that on May 15, 2012, he left school without permission to do

something for his mother. Anthony Duhon called him from school around

noon, and asked White to take him to buy some marijuana. White agreed.

He picked up Duhon, Kenya Jackson and appellant at the back of the school.

White knew that Duhon had money to buy marijuana for himself, and he knew

that appellant had about $300 to purchase marijuana for himself and Kenya

Jackson. Maurice was to be paid money for gas (R.R. 3, 13-20).

       Chase Walker’s friend, Phillip Green, testified that they were smoking

marijuana when Chase received several phone calls. Green heard Chase

discuss selling marijuana to someone. Green drove Chase home between

noon and 1:00 p.m. (R.R. 4, 119-122).

       White drove to a house where the complainant was standing in the

driveway, flagging them down. After grabbing a backpack from his truck,

Chase Walker got into the backseat of White’s vehicle. He let the others smell

the marijuana he had in a glass jar. Walker told White to drive slowly around

the block as he and the others discussed amounts and price. Duhon became


c:\appeals\degar\brief for appellant                                         4
upset, saying that he was not going to pay that much for marijuana. This

annoyed Walker because Walker and Duhon had discussed the price over the

phone (R.R.4, 28, 88-89).

       At this point a scale that had been placed on the middle console fell

beneath White’s seat. As White reached for the scale, he heard appellant

say, “Nigger, get out of the car.” In his statement to the police, White said

that when he glanced into the back seat he saw Chase Walker pull a gun out

of his backpack, and he saw Duhon grab Walker’s arm in a struggle over the

gun. He heard a gunshot, but he was no longer looking into the backseat.

When he glanced back again, he saw Chase Walker in the corner with his

head down and bleeding. Both Anthony Duhon and appellant looked to be in

shock (R.R. 4, 30-32, 67-70, 74, 95).

       White’s vehicle automatically locked the back doors when the vehicle is

moving. So, no one could get out of the backseat area while the vehicle was

moving. After hearing the gunshot, White slowed down and hit “the unlock

button.“ When the vehicle stopped, Jackson and appellant got out and ran a

short distance away. White got out and opened the rear passenger door.

This caused Chase Walker to fall half-way out of the vehicle. White pulled

Walker’s legs out and closed the door. Then, everyone got back into the


c:\appeals\degar\brief for appellant                                         5
vehicle and drove away, leaving Chase Walker lying in the street.       White

dropped Jackson and appellant off near the high school. Jackson took the

glass jar of marijuana with him, which he later sold. Jackson brought the

money to White. White and Duhon went to Duhon’s house to clean the car.

When White told his father what had happened, his father said he would take

care of things. The next day, appellant told White that he only did what he

had to do because Chase Walker had pulled a gun on him, and appellant was

trying to protect himself and the others (R.R. 4, 25-26, 32-36, 38-44, 57, 67-

70, 80-82, 93). At trial White testified that he never actually saw Chase

Walker reach into the bag for a gun, and that he could not testify as to who

pulled a gun first. He did, however, reiterate that both Duhon and appellant

told him that Chase Walker pulled out a gun first, and that is why appellant

pulled his gun. White testified that he did see Duhon struggling with Chase

Walker over a gun (R.R. 4, 74).

       Firearms expert, Donna Eudaley, examined the bullet and fragments

recovered during autopsy and the two firearms, a .45 caliber handgun found

at the apartment of Ashley Johnson and Bobby Pal, and the firearm found on

the street near Chase Walker (R.R. 4, 103-104). She found that the bullet

was a member of the .38 caliber/9 mm family. The land and groove markings


c:\appeals\degar\brief for appellant                                        6
were consistent with a Glock 17 firearm which appellant said he had used

(R.R. 4, 107-110). She determined that the .45 caliber handgun had nothing

to do with the shooting of Chase Walker (R.R. 4, 103), and that the firearm

found near Chase Walker did not fire the bullet that caused Walker’s death

(R.R. 4, 113-115).

                            Point of Error Number One

The trial court abused its discretion in refusing to dismiss the array

pursuant to Texas Code of Criminal Procedure, Art. 35.261 after the trial

court found that the State had committed a “Batson” violation, and

appellant objected to the only non-statutory remedy formulated by the

trial court, and appellant objected to the jury panel which is the statutory

remedy when a “Batson” violation occurs.

                                Statement of Facts
                            Point of Error Number One

       After the voir dire and each party had made its peremptory strikes, the

trial court called the names of the first twelve people who had not been struck

by either side. The trial court asked if there were any objections to these

twelve people being impaneled as jurors.       Appellant’s counsel objected

because the State had struck numbers 15, 16 and 29 in violation of Batson

v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (R.R. 2, 142,

c:\appeals\degar\brief for appellant                                         7
146-147; C.R. I, 88, 91).

       After hearing the State’s reasons for striking these jurors, and after

questioning juror number 15, the trial court upheld the Batson challenge with

regard to juror number 15. The trial court found that the reasons which the

State gave for striking number 15 were reasons which the State found

unobjectionable with regard to juror number 45, an African-American woman

who had been the twelfth person called to be seated on the jury.

       Having found a “Batson” violation, the trial court proposed to seat

number 15 as a juror, and remove number 45 from the jury. Appellant’s trial

counsel objected to the trial court’s proposed remedy because it would

remove an African-American woman from the jury. Appellant requested the

only statutory remedy for a “Batson” violation:

                   THE COURT: I will grant the Batson and seat the
       juror. That’s it.

                 MS. ANDREWS: Okay. So, we seat her and then
       what do we do after that?

                             (Off the record discussion)

                  MS. ANDREWS: I would object to the panel - - the
       proposed remedy is to seat Juror No. 15, which then removes
       Juror Number 45 who is also an African-American female. So, I
       would object to the panel with that remedy.

                     THE COURT: Okay. That’s overruled (R.R. 2, 142-

c:\appeals\degar\brief for appellant                                       8
       143, 147-154).
                            Summary of the Argument
                            Point of Error Number One

       The trial court sustained the defendant’s “Batson” objection to jury panel

number 15. The trial court proposed a non-statutory remedy. That remedy

was to put number 15 on the jury which would bump another African-American

female off the jury. Appellant did not acquiesce in this proposed non-statutory

remedy, and objected to the panel array.

       A non-statutory remedy to a Batson violation is permitted, if the

defendant acquiesces in the remedy. This case involves the novel issue

whether the statutory remedy should be applied, if the defendant objects on

good grounds to the non-statutory remedy proposed by the trial court.

                            Argument and Authorities
                            Point of Error Number One
       The Batson challenges were timely. The jury was not sworn until after

the trial court had ruled on the Batson challenges. See and compare: Saldivar

v. State, 980 S.W.2d 475 (Tex. App. Houston [14th Dist.] 1998, pet. ref’d).

       The issue before this court is the proper remedy when the court has

sustained a Batson challenge by the defense, and the defense counsel does

not acquiesce in the non-statutory remedy formulated by the court for good

reasons, and objects to the jury panel which is the statutory remedy.

c:\appeals\degar\brief for appellant                                           9
       The Texas Code of Criminal Procedure, Art. 35.261 prohibits a

peremptory challenge based on race, and it provides the remedy if this statute

is violated by the attorney representing the State.

       Article 35.261. Peremptory Challenges Based on Race Prohibited

             (a) After the parties have delivered their lists to the clerk
       under Article 35.26 of this code and before the court has
       impanelled the jury, the defendant may request the court to
       dismiss the array and call a new array in the case. The court shall
       grant the motion of a defendant for dismissal of the array if the
       court determines that the defendant is a member of an identifiable
       racial group, that the attorney representing the state exercised
       peremptory challenges for the purpose of excluding persons from
       the jury on the basis of their race, and that the defendant has
       offered evidence of relevant facts that tend to show that
       challenges made by the attorney representing the state were
       made for reasons based on race. If the defendant establishes a
       prima facie case, the burden then shifts to the attorney
       representing the state to give a racially neutral explanation for the
       challenges. The burden of persuasion remains with the defendant
       to establish purposeful discrimination.

             (b) If 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.

       In State ex rel. Curry v. Bowman, 885 S.W.2d 421 (Tex. Crim. App.

1993), the Court of Criminal Appeals addressed whether the mandatory

remedy contained in Texas Code of Criminal Procedure, Art. 35.261(b) is

exclusive, if the trial court sustains a Batson challenge and the defendant

acquiesces in a non-statutory remedy. In that case, the State wanted the

c:\appeals\degar\brief for appellant                                           10
Court of Criminal Appeals to mandamus the trial judge to comply with the

mandate of this statute, rather than order two of the struck venire members

reinstated to serve as jurors.

       The issue was whether the prosecution is entitled to the dismissal of the

array pursuant to Article 35.261, when a defense Batson motion has been

sustained and the defendant acquiesces to a remedy other than the one

prescribed by statute.

       The Court of Criminal Appeals noted that the United States Supreme

Court in Batson did not prescribe a particular remedy but left it to state and

federal courts to fashion their own remedy. To codify and implement Batson

in Texas, the Legislature enacted Article 35.261 and elected that the sole

remedy would be to discharge the jury and call a new array. Id., at 424. The

Court of Criminal Appeals noted that the defendant based his objection upon

the equal protection rights of the excluded jurors. The defendant did not

expressly assert any statutory rights. Also, the Court noted that the defendant

had suggested an alternative remedy:

       “The State had three peremptory challenges and used all of their
       peremptory challenges on black males on the jury panel. And I
       move that you quash the panel or otherwise disallow their strikes.”
       Id., at 424

       The Court of Criminal Appeals concluded that because the defendant

c:\appeals\degar\brief for appellant                                         11
had requested an alternative relief not available under the statute, he was not

relying solely on Article 35.261. The Court of Criminal Appeals held that where

a Batson claim is sustained the trial court may fashion a remedy, in its

discretion, that is consistent with Batson and its progeny, if the defendant

acquiesces in the non-statutory remedy. Similarly, in Boones v. State, 170

S.W.3d 653 (Tex. App. Texarkana 2005; writ of mandamus denied 2007), the

trial court granted the defendant’s Batson challenge, and the defendant

acquiesced in the trial court’s remedy.

       The instant case is distinguishable. Appellant did not acquiesce in the

Court’s proposed remedy for a very good reason. The proposed remedy

would have removed another qualified African-American woman from the jury,

whom the appellant preferred to sit as a juror. The proposed remedy allowed

the State to violate Batson with impunity. Defense counsel faced a “Hobson

Choice,” either lose a preferred African-American female juror or waive the

Batson error (R.R. 2, 154). Under the circumstances in this case, the trial

court’s only non-statutory remedy was not appropriate. The trial court should

have dismissed the panel, which is the statutory remedy requested by

appellant.




c:\appeals\degar\brief for appellant                                        12
                              Conclusion and Prayer

       WHEREFORE, PREMISES CONSIDERED, appellant prays that the

judgment of conviction be reversed and the cause remanded for new trial.

                                             Respectfully submitted,


                                             /s/ Allen C. Isbell
                                             ALLEN C. ISBELL
                                             202 Travis, Suite 208
                                             Houston, Texas 77002
                                             713/236-1000
                                             Fax: 713/236-1809
                                             email: allenisbell@sbcglobal.net
                                             STATE BAR NO. 10431500

                                             COUNSEL ON APPEAL


                                Certificate of Service

       I hereby certify that on this 27th day of January, 2015, a true and correct

copy of the foregoing Brief for Appellant has been sent to the District

Attorney's Office, Appellate Division, and to Mr. Rodashian E. Degar,

appellant.

                                             /s/ Allen C. Isbell
                                             ALLEN C. ISBELL




c:\appeals\degar\brief for appellant                                            13
                             Certificate of Compliance

       The undersigned attorney on appeal certifies this brief is computer

generated and consists of 3,261 words. Counsel is relying on the word count

provided by the Word Perfect computer software used to prepare the brief.


                                            /s/ Allen C. Isbell
                                            ALLEN C. ISBELL




c:\appeals\degar\brief for appellant                                    14
