                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-07-00207-CR

JIMMY PARR,
                                                              Appellant
v.

THE STATE OF TEXAS,
                                                              Appellee


                            From the 54th District Court
                             McLennan County, Texas
                            Trial Court No. 2003-667-C2


                            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.)

        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

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        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


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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

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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.



                                         TOM GRAY
                                         Chief Justice

Dissenting opinion delivered and filed November 5, 2008




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