                                       IN THE
                               TENTH COURT OF APPEALS

                                       No. 10-12-00076-CR

DOYLE RAY ROBERTSON,
                                                                        Appellant
    v.

THE STATE OF TEXAS,
                                                                        Appellee


                                 From the 40th District Court
                                     Ellis County, Texas
                                   Trial Court No. 36151CR


                                MEMORANDUM OPINION


         Doyle Ray Robertson was convicted of theft with two or more prior convictions.

See TEX. PENAL CODE ANN. § 31.03 (West Supp. 2012). He was sentenced to thirteen

years in prison. We affirm.1

         In his first issue, Robertson argues that the trial court erred in overruling

Robertson’s challenge to the jury panel array.

         A challenge to the array must be made before the jury panel is qualified. TEX.

CODE CRIM. PROC. ANN. art. 35.06 (West 2006). The failure to raise a challenge to the

1 Because there is no challenge to the sufficiency of the evidence, there is no need to discuss the facts of
the underlying case.
array before the panel is interrogated regarding its qualifications is untimely and

constitutes a waiver of the opportunity to challenge the array. Jackson v. State, 745

S.W.2d 4, 18 (Tex. Crim. App. 1988). Further, a proper challenge to the array must be in

writing, setting forth distinctly the grounds for the challenge. TEX. CODE CRIM. PROC.

Ann. art. 35.07 (West 2006). In this case, Robertson made his objection to the array after

the panel was interrogated regarding its qualifications. He also failed to challenge the

array in writing. Accordingly, his challenge was untimely and his complaint is waived.

See Jackson v. State, 745 S.W.2d 4, 18 (Tex. Crim. App. 1988); see also Stephenson v. State,

494 S.W.2d 900, 905 (Tex. Crim. App. 1973).

           Robertson’s first issue is overruled.

           In his second issue, Robertson contends the trial court erred in overruling his

Batson2 challenge to the State’s use of a peremptory challenge on the only African-

American member of the jury panel.

           A Batson challenge to a peremptory strike consists of three steps: 1) the opponent

of the strike must establish a prima facie showing of racial discrimination; 2) the

proponent of the strike must articulate a race-neutral explanation; and 3) the trial court

must decide whether the opponent has proved purposeful racial discrimination. Grant

v. State, 325 S.W.3d 655, 657 (Tex. Crim. App. 2010). The trial court's ruling in the third

step must be sustained on appeal unless it is clearly erroneous. Id. Once the proponent

of the strike has articulated race-neutral explanations, the burden shifts to the opponent

to show that the explanations are really a pretext for discrimination. Williams v. State,

301 S.W.3d 675, 688 (Tex. Crim. App. 2009).

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

Robertson v. State                                                                     Page 2
        Assuming without deciding that Robertson established a prima facie showing of

racial discrimination, the State offered its race-neutral explanations for its strike.

Afterward, Robertson was to show that the explanation was really a pretext for

discrimination.      The only counter Robertson presented to the trial court was that

because one of the State’s explanations for its strike was that the panel member was a

minister and might be lenient, Robertson stated that the panel member was also a

“teacher coach” which would counterbalance any fear of leniency.            Otherwise,

Robertson agreed with the State’s explanations, stating, “I can’t disagree with the

synopsis presented….I think her statement of what he did say is accurate.” Thus,

because Robertson made no showing that the State’s explanations were a pretext for

discrimination, the trial court’s decision to overrule Robertson’s Batson challenge was

not clearly erroneous.

        Robertson’s second issue is overruled.

        Having overruled each issue presented on appeal, we affirm the trial court’s

judgment.



                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 20, 2012
Do not publish
[CR25]




Robertson v. State                                                               Page 3
