                                                                                      ACCEPTED
                                                                                  01-14-00660-CR
                                                                       FIRST COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                             4/29/2015 3:01:58 PM
                                                                            CHRISTOPHER PRINE
                      No. 01-14-00660-CR                                                   CLERK


                              In the
                       Court of Appeals
                             For the                         FILED IN
                                                      1st COURT OF APPEALS
                     First District of Texas              HOUSTON, TEXAS
                           At Houston                 4/29/2015 3:01:58 PM
                                                      CHRISTOPHER A. PRINE
                                                   Clerk

                           No. 1377034
               In the 230th Criminal District Court
                     Of Harris County, Texas
                    

                   RODASHIAN E. DEGAR
                         Appellant
                            V.
                   THE STATE OF TEXAS
                         Appellee
                    

               STATE’S APPELLATE BRIEF
                    

                                         DEVON ANDERSON
                                         District Attorney
                                         Harris County, Texas
                                         MELISSA P. HERVEY
                                         Assistant District Attorney
                                         Harris County, Texas
                                         State Bar Number: 24053741

                                         LAUREN BARD
                                         Assistant District Attorney

                                         1201 Franklin Street, Suite 600
                                         Houston, Texas 77002
                                         Telephone: (713) 755-5826
                                         Fax Number: (713) 755-5809
                                         Hervey_Melissa@dao.hctx.net

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of

Appellate Procedure 39.1, the State requests oral argument only if appellant

requests oral argument.

                     IDENTIFICATION OF THE PARTIES

      Pursuant to Texas Rules of Appellate Procedure 38.1(a) and 38.2(a)(1)(A), a

complete list of the names of all interested parties, and the names and addresses of

all trial and appellate counsel, is provided below:

      Complainant or Victim:

             Chase Walker

      Counsel for the State:

             Devon AndersonDistrict Attorney of Harris County

             Melissa P. HerveyAssistant District Attorney on appeal

             Lauren Bard, Kristina Daily—Assistant District Attorneys at trial

             Harris County District Attorney’s Office
             1201 Franklin Street, Suite 600
             Houston, Texas 77002

      Appellant or Criminal Defendant:

             Rodashian E. Degar

      Counsel for Appellant:

             Allen C. Isbell—Defense Counsel on appeal


                                           i
                 202 Travis Street, Suite 208
                 Houston, Texas 77002

                 Lisa Andrews—Defense Counsel at trial

                 1207 S. Shepherd Drive
                 Houston, Texas 77019

                 Wendy Baker—Defense Counsel at trial

                 21 Waterway Avenue, Suite 300
                 The Woodlands, Texas 77380

        Trial Judge:

                 Honorable Jay Burnett—Presiding Judge of the 230th Criminal
                 District Court


                                       TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ................................................i

IDENTIFICATION OF THE PARTIES ....................................................................i

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT OF FACTS ........................................................................................ 1

SUMMARY OF THE ARGUMENT ........................................................................ 5

REPLY TO APPELLANT’S SOLE POINT OF ERROR ......................................... 5

        I.    STANDARD OF REVIEW AND APPLICABLE LAW REGARDING A BATSON
              CHALLENGE .............................................................................................. 6

                                                         ii
         II. APPELLANT FAILED TO PRESERVE ERROR REGARDING HIS PRESENT
             COMPLAINT THAT THE TRIAL COURT ERRED BY NOT DISMISSING THE
             ARRAY AND CALLING A NEW VENIRE PANEL............................................ 7

         III. THE TRIAL COURT DID NOT ERR BY REINSTATING JUROR 15,
              INSTEAD OF DISMISSING THE ARRAY AND CALLING A NEW VENIRE
              PANEL, BECAUSE REINSTATEMENT IS AN APPROPRIATE REMEDY FOR
              A BATSON VIOLATION ............................................................................ 12

         IV. EVEN IF THE TRIAL COURT ERRED BY REINSTATING JUROR 15,
             INSTEAD OF DISMISSING THE ENTIRE ARRAY, THE ERROR WAS
             HARMLESS .............................................................................................. 16

CONCLUSION AND PRAYER ............................................................................. 18

CERTIFICATE OF COMPLIANCE ....................................................................... 19

CERTIFICATE OF SERVICE ................................................................................ 20


                                     INDEX OF AUTHORITIES

CASES

Allen v. State,
  811 S.W.2d 673 (Tex. App.—
  Dallas 1991, pet. ref’d) .........................................................................................11
Batson v. Kentucky,
  476 U.S. 79 (1986) ...................................................................................... 6, 7, 12
Boones v. State,
  170 S.W.3d 653 (Tex. App.—
  Texarkana 2005, no pet.) ..................................................................... 7, 14, 15, 16
Broxton v. State,
  909 S.W.2d 912 (Tex. Crim. App. 1995) ...................................................... 10, 11
Craig v. State,
  82 S.W.3d 451 (Tex. App.—
  Austin 2002, pet. ref’d) ................................................................................. 14, 16


                                                          iii
Garza v. State,
 10 S.W.3d 765 (Tex. App.—
 Corpus Christi 2000, pet. ref’d) .................................................................... 14, 16
Georgia v. McCollum,
 502 U.S. 42 (1993) .................................................................................................6
Henry v. State,
 729 S.W.2d 732 (Tex. Crim. App. 1987) .............................................................13
Johnson v. State,
  879 S.W.2d 313 (Tex. App.—
  Amarillo 1994, no pet.) ................................................................................. 10, 11
Montgomery v. State,
 810 S.W.2d 372 (Tex. Crim. App. 1990) ...............................................................7
Moss v. State,
 877 S.W.2d 895 (Tex. App.—
 Waco 1994, no pet.) ...................................................................................... 15, 16
Peetz v. State,
  180 S.W.3d 755 (Tex. App.—
  Houston [14th Dist.] 2005, no pet.)............................................................... 14, 16
Perea Velasco v. State,
  No. 01-96-01075-CR, 1999 WL 12792 (Tex. App.—
  Houston [1st Dist.] Jan. 14, 1999, pet. ref’d) ................................................ 15, 16
Sims v. State,
  768 S.W.2d 863 (Tex. App.—
  Texarkana 1989) ...................................................................................................13
State ex rel. Curry v. Bowman,
  885 S.W.2d 421 (Tex. Crim. App. 1993) ............................................ 7, 12, 13, 16
Wilson v. State,
 71 S.W.3d 346 (Tex. Crim. App. 2002) ...........................................................9, 11


STATUTES

TEX. CODE CRIM. PROC. ANN. art. 35.261..................................................................6
TEX. PENAL CODE ANN. § 19.02(b)(1) .......................................................................1
TEX. PENAL CODE ANN. § 19.02(b)(2) .......................................................................1

                                                          iv
RULES

TEX. R. APP. P. 9.4(g) ................................................................................................. i
TEX. R. APP. P. 9.4(i)................................................................................................19
TEX. R. APP. P. 33.1(a) .........................................................................................9, 11
TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................... i
TEX. R. APP. P. 39.1.................................................................................................... i




                                                            v
TO THE HONORABLE COURT OF APPEALS:

                             STATEMENT OF THE CASE

       The State charged appellant by indictment with murder. (CR – 14);1 see

TEX. PENAL CODE ANN. § 19.02(b)(1); TEX. PENAL CODE ANN. § 19.02(b)(2). The

jury found appellant guilty as charged in the indictment. (CR – 108, 118-19); (RR

V – 45). On July 29, 2014, the trial court assessed appellant’s punishment and

sentenced him to confinement in the Texas Department of Criminal Justice,

Correctional Institutions Division, for twelve years. (CR – 118-19); (RR VI – 42-

43). The trial court also entered an affirmative deadly weapon finding in the

court’s written judgment of conviction and sentence. (CR – 118-19). Appellant

timely filed written notice of appeal on July 29, 2014. (CR – 121).

                          

                               STATEMENT OF FACTS

       Around noon on May 15, 2012, Maurice White drove to Yates High School

and picked-up appellant, Anthony Duhon, and Kenya Jackson to take them to buy

marijuana from Chase Walker. (RR IV – 15, 18-20). White sat in the driver’s seat

of White’s dark green 1998 Pontiac Grand Prix sedan, while Jackson sat in the


1
  The Clerk’s Record consists of one volume, hereinafter referenced as (CR – [page number]).
The Court Reporter’s Record consists of seven volumes, which will be referenced as (RR [I-VII]
– [page number]). State’s Exhibits offered and/or admitted at trial are contained within Volume
VII of the Reporter’s Record, and will be referenced as (RR VII – SX [exhibit number]).
References to Appellant’s Brief will be cited as (AB – [page number]).
front passenger seat; appellant sat in the right rear passenger seat, behind Jackson;

and Duhon sat in the left rear passenger seat, behind White. (RR III – 133); see

(RR VII – SX 48). White drove appellant, Jackson, and Duhon to Walker’s home

and, when White’s car pulled up, Walker got into the back of the car, sitting in the

left, rear passenger seat behind White when Duhon slid into the middle of the

backseat. (RR III – 116, 133); (RR IV – 20-21, 23); see (RR VII – SX 48). Once

inside White’s vehicle, Walker produced a glass jar containing marijuana from

Walker’s backpack, handed the drugs to appellant and Duhon, and told White to

“make the block”—drive around the neighborhood—while appellant and Duhon

examined and smelled Walker’s marijuana and discussed the price for the drugs

with Walker. (RR IV – 22-25, 39).

      The negotiations over the drugs soon soured and Duhon loudly told Walker,

“I ain’t paying that much for the weed.” (RR IV – 28-29, 88-89). Appellant then

aggressively commanded Walker, “[N]igger, get out of the car[,]” and drew a

loaded Glock 17 nine-millimeter pistol from appellant’s jacket. (RR III – 146,

151); (RR IV – 29-30, 66-67, 89, 97); see (RR VII – SX 52).              A struggle

immediately began in the backseat as Walker drew his own gun—an unloaded,

nonfunctional Jimenez Arms nine-millimeter pistol. (RR III – 30-31, 84); (RR IV

– 67). The struggle was very brief, ending when appellant shot Walker in the head

at point-blank range. (RR IV – 31-32); see (RR III – 37-40, 51-52) (explaining

                                         2
that gunpowder, soot, and stippling in and around Walker’s gunshot wound

indicated that it was inflicted at “extremely close range”).     Appellant’s bullet

entered Walker’s forehead just above his left eyebrow, and then fragmented into

three pieces before finally lodging at the back of Walker’s skull. (RR III – 33, 35,

37-38, 43); see (RR VII – SX 2-4).

      Panicking, White jumped out of the driver’s seat, opened the left, rear

passenger door of his car, pulled Walker’s slumping body out of the backseat, and

dumped it in the street. (RR IV – 32-36). Jackson, too, jumped out of White’s car

and inadvertently dropped his cell phone on the street near where Walker’s body

and Walker’s belongings had been deposited. See (RR III – 71-73, 78, 81); (RR

VII – SX 8, 14-19). White and Jackson got back into White’s car, and White

quickly sped away from the scene with appellant and Duhon still in the backseat.

(RR IV – 36).

      White drove back to the area around Yates High School and dropped-off

appellant and Jackson. (RR IV – 37-38). When Jackson got out of White’s car,

Jackson took Walker’s jar of marijuana with him; Jackson later sold the drugs and

then divided the profits amongst himself, White, and Duhon. (RR III – 137-38,

193); (RR IV – 39, 42). Appellant grabbed his own belongings when he exited

White’s vehicle, including appellant’s Glock—which appellant subsequently

disposed of. (RR III – 138, 167). White then drove himself and Duhon to Duhon’s

                                         3
residence, where he and Duhon quickly began trying to clean Walker’s blood off

of the backseat of White’s vehicle. (RR III – 136-37, 194); (RR IV – 40). White

also told his father about the shooting, and his father hastily took White’s car and

had it repainted white. (RR III – 98-100, 134); (RR IV – 41-42); see (RR VII – SX

54-58).

      Meanwhile, someone in the neighborhood where the shooting occurred

called the police, and an ambulance soon arrived and transported Walker to the

hospital. Walker survived for about twenty-two hours in the hospital before finally

succumbing to his fatal gunshot wound at 11:57 AM on May 16, 2012. (RR III –

40); see (RR VII – SX 1).

      The police recovered Jackson’s cell phone from the crime scene and, not

knowing who it belonged to, obtained a warrant to search it. By investigating

photographs and data on the phone, the police eventually learned that the phone

belonged to Jackson. (RR III – 122, 126-27). The police located Jackson and

interviewed him about the murder, during which Jackson told the police Duhon’s

name. (RR III – 128). The police interviewed Duhon, who named White, and then

interviewed White, who named appellant.         (RR III – 129-31).      The police

interviewed appellant about the crime and appellant admitted that he shot Walker

in the backseat of White’s car, although he claimed that he did so in self-defense

after Walker drew a gun. (RR III – 146, 196); see (RR VII – SX 52). At the

                                         4
conclusion of these interviews, the police arrested appellant, Jackson, Duhon,

White, and White’s father for tampering with evidence for their actions in

disposing of appellant’s gun, stealing and selling Walker’s marijuana, and

scrubbing and repainting White’s car, respectively. (RR III – 136-38, 194). After

additional investigation and conversations with appellant, Jackson, Duhon, and

White, the police also arrested appellant and Duhon for Walker’s murder. (RR III

– 153, 165-67, 174-75).

                       

                      SUMMARY OF THE ARGUMENT

      If appellant preserved error regarding the matter, the trial court did not abuse

its discretion by restoring Juror 15 to the jury panel, instead of dismissing the

venire panel and calling a new array, because the trial court’s alternative, non-

statutory remedy was permissible to cure the Batson violation. However, even if

the trial court erred by reinstating Juror 15, instead of enacting the statutory

remedy outlined in Article 35.261 of the Texas Code of Criminal Procedure, the

error was harmless.

                       

           REPLY TO APPELLANT’S SOLE POINT OF ERROR

      Appellant contends in his only point of error that the trial court abused its

discretion by not dismissing the venire panel and calling a new array, pursuant to

                                          5
Article 35.261 of the Texas Code of Criminal Procedure, after the court found that

the State committed a Batson violation regarding a particular venire person.

   I. Standard of Review and Applicable Law Regarding a Batson Challenge

      The United States Supreme Court made clear in Batson v. Kentucky, 476

U.S. 79 (1986), and in Batson’s progeny, that the Equal Protection Clause of the

United States Constitution prohibits a party from using peremptory challenges to

exclude otherwise qualified and unbiased potential jurors from the jury panel based

solely on the jurors’ race. See Batson, 476 U.S. at 86-87 (holding that the Equal

Protection Clause prohibits the prosecution from striking potential jurors solely

because of the jurors’ race); see also Georgia v. McCollum, 502 U.S. 42, 49-50

(1993) (holding that a defendant is constitutionally prohibited from engaging in

purposeful racial discrimination when exercising peremptory challenges). The

Texas Legislature codified the Batson rule by enacting Article 35.261 of the Texas

Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 35.261. Article

35.261 outlines a three-step process for a party seeking to make a “Batson

challenge[,]” and also proposes a remedy that the trial court may enact if the court

concludes that a Batson violation did in fact occur. See TEX. CODE CRIM. PROC.

ANN. art. 35.261 (establishing the three-part process of a Batson challenge and

authorizing the trial court to dismiss the venire panel and call a new array upon

concluding that a Batson violation occurred); State ex rel. Curry v. Bowman, 885

                                         6
S.W.2d 421, 424-25 (Tex. Crim. App. 1993) (explaining that Article 35.216’s

remedy of dismissing the array is not the exclusive remedy for a Batson violation

and that reinstatement of the excluded juror is also a permissible cure).

      A trial court’s remedy for a Batson violation is reviewed on appeal for abuse

of discretion.   See Boones v. State, 170 S.W.3d 653, 656-57 (Tex. App.—

Texarkana 2005, no pet.) (finding that the trial court’s remedy for a Batson

violation—to reinstate the wrong-challenged juror—was not an abuse of the

court’s discretion). A trial court should be found to have abused its discretion only

when the court’s ruling was arbitrary or unreasonable, or when the court acted

without reference to any guiding rules or principles. Montgomery v. State, 810

S.W.2d 372, 380 (Tex. Crim. App. 1990).

   II. Appellant Failed to Preserve Error Regarding his Present Complaint that
       the Trial Court Erred by Not Dismissing the Array and Calling a New
       Venire Panel

      At the conclusion of voir dire, after the State and appellant made their

peremptory strikes, appellant made a Batson challenge to the State’s strikes of

Jurors 15, 16, and 29, asserting that the prosecution improperly struck those venire

members solely because they are African-American—the same race as appellant.

(RR II – 143-44, 146-47); see generally Batson, 476 U.S. at 86-87. The trial court

sustained appellant’s Batson challenge regarding Juror 15, only, and then the

following discussion occurred:

                                          7
[Trial Court]: Okay. All right. And her number was what?

[State]: No. 15, Your Honor.

[Trial Court]: 15?

[State]: Yes, Your Honor.

[Trial Court]: I will grant the Batson and seat the juror. That’s it.

[Defense]: Okay. So, we seat her and then who do we seat after that?

[Trial Court]: We have to take a look. So, what we do is - -
Let’s go off the record.

(Brief pause).

[Trial Court]: Okay. We’re back on the record on your motion.

[Defense]: 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.

[Trial Court]: Okay. That’s overruled.

[Defense]: And because my objection is overruled, as part of trial
strategy, I would rather have Juror No. 45 seated than Juror No. 15
seated.

[Trial Court]: Juror 15 is not seated. You’d rather keep Juror 45; is
that correct?

[Defense]: Correct. And that’s your trial strategy.

[Defense]: It is, Your Honor.

[Trial Court]: All right. That’s what we’ll do. We’ll keep the jury as
it is.

(End of conference). (RR II – 152-55) (parentheticals in original).


                                    8
      As this exchange makes clear, the trial court’s remedy for the Batson

violation was to reinstate the erroneously-challenged juror, Juror 15, to the jury

panel, which would have the effect of replacing the twelfth-seated regular juror,

Juror 45, with Juror 15. (RR II – 152-54). Appellant objected to the court’s

proposed substitution, but did not move the court to dismiss the array or object to

the court’s failure to do so, and did not request any alternative form of relief from

the trial court. (RR II – 154). Accordingly, appellant’s complaint on appeal—that

the trial court erred by not dismissing the array and calling a new venire panel—

does not comport with appellant’s complaint at trial—that the trial court’s

proposed remedy to reinstate Juror 15, which would remove Juror 45, was

objectionable—and, thus, may not now be asserted for the first time. Compare

(AB – 9-12) with (RR II – 154); see TEX. R. APP. P. 33.1(a) (establish that, to

preserve error for appellate review, a defendant must first present to the trial court

a timely request, objection, or motion clearly stating the specific factual and legal

basis for the ruling the defendant seeks, and then must fully pursue the matter by

either obtaining an adverse ruling from the trial court on the request, objection, or

motion, or by objecting to the trial court’s refusal to rule on the request, objection,

or motion.); Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002)

(reiterating that the defendant’s “point of error on appeal must comport with the

objection made at trial.”); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App.

                                          9
1995) (explaining that a defendant’s request, objection, or motion stating one legal

theory may not be relied upon to support a different legal theory advanced for the

first time on appeal).

      Appellant cites no cases which hold that a defendant’s mere objection to the

trial court’s non-statutory, Batson-violation remedy of reinstating the erroneously-

challenged juror, without also moving the trial court to dismiss the array and

summon a new venire panel, or objecting to the trial court’s failure to do so, is

adequate to preserve error regarding the trial court’s decision to enact that

alternative remedy in lieu of dismissing the array and calling a new one. In other

words, appellant fails to provide any legal authority which supports appellant’s

suggestion that a defendant’s mere objection to the trial court’s non-statutory,

Batson-violation remedy of reinstating a juror is adequate, without more, to trigger

an obligation that the trial court sua sponte dismiss the array and call a new venire

panel. Instead, case law demonstrates that a defendant does not preserve error

regarding the trial court’s option to remedy a Batson violation by restoring the

excluded juror, instead of by enacting the dismissal-remedy authorized by Article

35.261, when the defendant does not seek that specific, statutory remedy or object

to the trial court’s failure to effect it. See Johnson v. State, 879 S.W.2d 313, 317

(Tex. App.—Amarillo 1994, no pet.) (concluding that the defendant failed to

preserve error for his complaint on appeal that the trial court erred in reinstating

                                         10
two jurors rather than dismissing the array and calling a new venire panel when the

defendant did not object on that basis at trial); Allen v. State, 811 S.W.2d 673, 678

(Tex. App.—Dallas 1991, pet. ref’d) (holding that any error by the trial court in not

following Article 35.261 was not preserved when “[the defendant] never objected

to the trial court’s failure to dismiss the jury and summon a new array[,

and]...never even suggested to the trial court that article 35.261 controlled [the]

situation.”).

       Accordingly, if, as appellant now claims on appeal, appellant’s desired cure

for the Batson violation regarding Juror 15 was that the trial court dismiss the array

and summon a new venire panel, appellant was required to notify the court of

appellant’s wishes by clearly and specifically moving the court to execute that

remedy, or by expressly objecting to the court’s refusal to do so, to be able to

complain of the trial court’s conduct on appeal. See Johnson, 879 S.W.2d at 317;

Allen, 811 S.W.2d at 678. Aside from the fact that appellant’s failure to request

such a remedy demonstrates that appellant did not actually want an entirely new

array, appellant’s failure to seek such amelioration or to object to its absence

waived the matter for appellate review. See TEX. R. APP. P. 33.1(a); Johnson, 879

S.W.2d at 317; Allen, 811 S.W.2d at 678; see also Wilson, 71 S.W.3d at 349;

Broxton, 909 S.W.2d at 918. Appellant’s point of error should be rejected at this

juncture.

                                         11
   III.   The Trial Court Did Not Err by Reinstating Juror 15, Instead of
          Dismissing the Array and Calling a New Venire Panel, Because
          Reinstatement is an Appropriate Remedy for a Batson Violation

      Even assuming that appellant preserved error, appellant’s argument fails

because the reinstatement of a wrongly-challenged juror is a well-accepted,

alternative remedy to Article 35.261’s statutory remedy of dismissing the array and

summoning a new one.

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

the Texas Court of Criminal Appeals observed that the Supreme Court in Batson

specifically declined to prescribe a particular remedy that must be enacted

following a Batson violation. Bowman, 885 S.W.2d at 424; see Batson, 476 U.S.

at 99 (“We decline...to formulate particular procedures to be followed upon a

defendant’s timely objection to a prosecutor’s challenges.”). Rather, the Supreme

Court left the task of creating an appropriate remedy to the state and federal trial

courts, and “express[ed] no view on whether it is more appropriate in a particular

case, upon a finding of discrimination...for the trial court to discharge the venire

and select a new jury from a panel not previously associated with the case...or to

disallow the discriminatory challenges and resume selection with the improperly

challenged jurors reinstated on the venire.” Batson, 476 U.S. at 100 n.24 (internal

citations omitted); Bowman, 885 S.W.2d at 424.




                                        12
      The Bowman court then determined that the sole remedy provided by Article

35.261 “may be unconstitutionally restrictive” and “may defeat the purpose of the

protection” assured by Batson and its progeny, given that “the evolving

interpretations of Batson instruct that a Batson violation is not merely harmful to

the parties involved but to the individual veniremember as well”—who would still

not be permitted to participate in the process if dismissal of the array were the only

acceptable remedy for the wrongful exclusion of that veniremember in violation of

Batson. Bowman, 885 S.W.2d at 424-25. Accordingly, the Court of Criminal

Appeals acknowledged that Article 35.261 should be interpreted in a “flexible”

manner to vindicate the prospective juror’s right to serve; held that, “where a

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

consistent with Batson and its progeny”; and concluded that the trial court’s

remedy of reinstating the veniremember that was wrongly-excluded in violation of

Batson was one such appropriate, alternative correction to the statutory remedy

listed in Article 35.261. Bowman, 885 S.W.2d at 425; see also Henry v. State, 729

S.W.2d 732, 737 (Tex. Crim. App. 1987) (listing the disallowance of a peremptory

strike as an acceptable remedy for a Batson violation regarding the erroneously-

stricken juror); Sims v. State, 768 S.W.2d 863 (Tex. App.—Texarkana 1989)

(concluding that, given the purpose for which Article 35.261 was enacted, that that

statute “does not require in all cases that a new array be called, but that the trial

                                         13
judge has the discretion to” either dismiss the array and a call a new one, or

reinstate the excluded juror), pet. dism’d as improvidently granted, 792 S.W.2d 81

(Tex. Crim. App. 1990).

      Following Bowman, numerous Texas appellate courts—including this

Court—have affirmed that the remedy established by Article 35.261 is not

exclusive and that a trial court is permitted to correct a Batson violation by

reinstating the excluded veniremember to the jury panel, instead. See, e.g., Peetz v.

State, 180 S.W.3d 755, 760 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (“As

a [Batson-violation] remedy, the court appropriately empaneled the two

wrongfully-struck jurors.”); Boones v. State, 170 S.W.3d 653, 656-57 (Tex.

App.—Texarkana 2005, no pet.) (finding that the trial court did not abuse its

discretion by reinstating a wrongly-excused juror to the jury, rather than dismissing

the entire array); Craig v. State, 82 S.W.3d 451, 453 n.1 (Tex. App.—Austin 2002,

pet. ref’d) (“[T]he remedy prescribed by [A]rticle 35.261 is not exclusive and...a

trial court is authorized to remedy a Batson error by reinstating the excluded venire

member to the trial jury.”); Garza v. State, 10 S.W.3d 765, 769-70 (Tex. App.—

Corpus Christi 2000, pet. ref’d) (“[A] trial court’s reinstatement of improperly

excluded veniremembers to the jury, rather than dismissing the entire array, is an

acceptable remedy for constitutional purposes.”); Perea Velasco v. State, No. 01-

96-01075-CR, 1999 WL 12792, at *2 (Tex. App.—Houston [1st Dist.] Jan. 14,

                                         14
1999, pet. ref’d) (not designated for publication) (“Instead of dismissing the entire

array, a trial judge may seat a prospective juror against whom a trial prosecutor has

incorrectly exercised a peremptory challenge.”); Moss v. State, 877 S.W.2d 895,

897-98 (Tex. App.—Waco 1994, no pet.) (stating that the remedy provided by

Article 35.261 is not exclusive and that one such allowable alternative remedy is

for the trial court to disallow the State’s strike and reinstate the excluded juror on

the jury panel).

      For example, in Boones v. State, 170 S.W.3d 653 (Tex. App.—Texarkana

2005, no pet.), the State used peremptory challenges to strike six of the eight

African-American veniremembers within the “strike range.” Boones, 170 S.W.3d

at 656. The defense made a Batson challenge to the State’s six strikes. Id. The

trial court found that the State had race-neutral reasons for striking all but one of

those six jurors and, to remedy the Batson violation regarding the remaining

veniremember, ordered that that juror be reinstated on the jury panel. Id. On

appeal, as here, the defendant claimed that the trial court’s remedy of reinstating

the juror, rather than dismissing the array and summoning a new array,

contravened Article 35.261 and, thus, was an abuse of discretion. Boones, 170

S.W.3d at 656-57.     The Sixth Court of Appeals at Texarkana disagreed and

affirmed the trial court’s decision, reiterating that Article 35.261’s dismissal-

remedy is not the only permissible cure for a Batson violation, and that the

                                         15
reinstatement of a wrongly-excluded juror is an acceptable alternative. Boones,

170 S.W.3d at 657.

      Just as in Bowman, Boones, and the other cases cite above, the trial court in

appellant’s case did not abuse its discretion by restoring Juror 15 to the jury panel

to remedy the Batson violation because the court’s action was an acceptable,

alternative cure to the relief authorized by Article 35.261. See Bowman, 885

S.W.2d at 424-25; Peetz, 180 S.W.3d at 760; Boones, 170 S.W.3d at 656-57;

Craig, 82 S.W.3d at 453 n.1; Garza, 10 S.W.3d at 769-70; Perea Velasco, 1999

WL 12792, at *2; Moss, 877 S.W.2d at 897-98.              Accordingly, appellant’s

arguments to the contrary lack merit, and appellant’s point of error should be

overruled.

   IV. Even if the Trial Court Erred by Reinstating Juror 15, Instead of
      Dismissing the Entire Array, the Error was Harmless

      Appellant was not harmed by the trial court’s error, if any, in restoring Juror

15 to the jury, instead of dismissing the array and calling a new venire panel,

because appellant’s jury panel consisted entirely of fair-minded and qualified

people, all of whom expressed that they would follow the law and the trial court’s

instructions, and that they would render a true verdict based upon the evidence

presented, or the lack thereof. See (RR II – 22-28, 156). Additionally, appellant’s

jury panel was racially diverse and contained eight people of a minority race, three

of whom were African-Americans, like appellant. (RR II – 144, 147). The trial
                                         16
court’s reinstatement of Juror 15 and proposed substitution of Juror 15 for the

twelfth-seated regular juror, Juror 45, did nothing to alter the racial composition of

appellant’s jury panel, given that both Jurors 15 and 45 were African-American

women, or to otherwise harm appellant. See (RR II – 148, 154).

      In fact, the trial court’s resolution of the Batson violation in this case

actually benefitted appellant, rather than harming him. The trial court permitted

appellant to craft the jury more to appellant’s favor by granting appellant’s request

that Juror 45 remain on the panel, in lieu of the trial court’s remedy that Juror 15

be reinstated and the twelfth juror empaneled, Juror 45, be excused, when appellant

explained to the court that, for reasons related to trial strategy, appellant preferred

to have Juror 45 seated on the jury panel instead of Juror 15. (RR II – 154). The

result of this was that appellant was allowed the choice of having either Juror 15 or

Juror 45 on appellant’s jury panel, which put appellant in a better position than if

the State had never challenged Juror 15 to begin with, given that, in that scenario,

Juror 15 would have been empanelled from the outset and Juror 45, appellant’s

preferred jurist, would not have been reached. Thus, even if the trial court’s

remedy of reinstating Juror 15 to appellant’s jury was error, the error was harmless

under the circumstances. Appellant’s sole point of error should be overruled.

                        




                                          17
                         CONCLUSION AND PRAYER

      For the foregoing reasons, the State respectfully submits that even if

appellant preserved error regarding his claim that the trial court abused its

discretion by reinstating a wrongly-excluded juror following a Batson violation,

instead of dismissing the array and calling a new venire panel, the trial court’s

remedy was a proper alternative to the statutory relief afforded by Article 35.261.

Further, appellant benefitted from the trial court’s remedy, rather than being

harmed by it. Thus, the State respectfully prays that this Court will overrule

appellant’s sole point of error and will affirm appellant’s conviction and sentence.



                                                    Respectfully submitted,


                                                    DEVON ANDERSON
                                                    District Attorney
                                                    Harris County, Texas


                                                    /S/ Melissa Hervey

                                                    MELISSA P. HERVEY
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                    State Bar Number: 24053741
                                                    1201 Franklin Street, Suite 600
                                                    Houston, Texas 77002
                                                    Telephone (713) 755-5826
                                                    Fax Number (713) 755-5809
                                                    Hervey_Melissa@dao.hctx.net

                                         18
                     CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i), the undersigned

attorney certifies that there are 4,000 words in the foregoing computer-generated

document, based upon the representation provided by Microsoft Word, the word

processing program that was used to create the document, and excluding the

portions of the document exempted by Rule 9.4(i)(1).



                                                 /S/ Melissa Hervey

                                                 MELISSA P. HERVEY
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 State Bar Number: 24053741
                                                 1201 Franklin Street, Suite 600
                                                 Houston, Texas 77002
                                                 Telephone (713) 755-5826
                                                 Fax Number (713) 755-5809
                                                 Hervey_Melissa@dao.hctx.net




                                       19
                        CERTIFICATE OF SERVICE

      This is to certify that the undersigned counsel has directed the e-filing

system eFile.TXCourts.gov to serve a true and correct copy of the foregoing

document upon Allen C. Isbell, appellant’s attorney of record on appeal, on April

29, 2015, at the following e-mail address, through the electronic service system

provided by eFile.TXCourts.gov:

      allenisbell@sbcglobal.net



                                                 /S/ Melissa Hervey

                                                 MELISSA P. HERVEY
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 State Bar Number: 24053741
                                                 1201 Franklin Street, Suite 600
                                                 Houston, Texas 77002
                                                 Telephone (713) 755-5826
                                                 Fax Number (713) 755-5809
                                                 Hervey_Melissa@dao.hctx.net




                                       20
