      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00215-CR




                               Victor Everett Reynolds, Appellant

                                                  v.

                                   The State of Texas, Appellee



      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 65489, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found appellant Victor Everett Reynolds guilty of robbery. See Tex. Penal

Code Ann. § 29.02 (West 2003). The district court assessed punishment, enhanced by two previous

felony convictions, at forty-five years’ imprisonment. In his sole point of error, appellant contends

that the trial court reversibly erred by overruling his request to shuffle the jury panel. We overrule

this contention and affirm the conviction, but we modify the judgment to delete the order that

appellant pay his appointed attorney’s fees.

               In order to assure that the jury selection process is fair to both sides, article 35.11

provides for a random reseating of the panelists, commonly referred to as a jury shuffle, at the

request of either the defendant or the State. Tex. Code Crim. Proc. Ann. art. 35.11 (West 2006).

The statute is complied with when counsel for either party is allowed to view the venire seated

in the courtroom in proper sequence and then given an opportunity to have the names of
the panelists shuffled. Davis v. State, 782 S.W.2d 211, 214 (Tex. Crim. App. 1989). The statute

guarantees only a single jury shuffle, however, and neither the defendant nor the State is entitled to

a second shuffle after the panel is properly shuffled at the request of the other party. Chappell

v. State, 850 S.W.2d 508, 511 (Tex. Crim. App. 1993); Jones v. State, 833 S.W.2d 146, 148-49 (Tex.

Crim. App. 1992).

               The record before us reflects that the jury list was shuffled at the State’s request

before the panel was seated in the courtroom and before defense counsel had actually seen the panel.

This practice has been criticized and held not to comply with article 35.11. Stark v. State,

657 S.W.2d 115, 116 (Tex. Crim. App. 1983). Defense counsel has the right to see the jury panel

seated in the original sequence before deciding whether to request a shuffle. Scott v. State,

805 S.W.2d 612, 614 (Tex. App.—Austin 1991, no pet.). A jury shuffle conducted before the panel

is seated for voir dire does not disentitle defense counsel from requesting a shuffle after seeing the

seated panel. Id. at 613. Contrary to the State’s argument and the trial court’s ruling below, the jury

shuffle conducted at the State’s request before the panel was seated did not satisfy article 35.11.

                Defense counsel’s request for a jury shuffle, like the State’s, was made before the

panel was seated in the courtroom. It has been held that a defendant cannot complain of the denial

of a shuffle request made before the appropriate time. Velasquez v. State, 941 S.W.2d 303, 307

(Tex. App.—Corpus Christi 1997, pet. ref’d). Further, a defense lawyer who acquiesces in a shuffle

before the panel is seated, without objecting or requesting an opportunity to see the panel in advance,

forfeits the right to complain on appeal that the proper procedure was not followed. Johnson

v. State, 977 S.W.2d 137, 139-40 (Tex. Crim. App. 1998). In the trial court, defense counsel argued



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incorrectly that both the State and the defense are entitled to a shuffle under article 35.11. Counsel

did not object to shuffling the jury panel before it was seated. Insofar as the timing of the shuffle

is concerned, both parties appear to have acquiesced in the procedure employed.

                 Even if appellant’s request for a shuffle was timely and sufficient to invoke article

35.11, reversible error is not presented. The denial of a jury shuffle is trial error that must be

evaluated for harm under the standard for nonconstitutional errors. Roberts v. State, 77 S.W.3d 837,

838 (Tex. Crim. App. 2002); Ford v. State, 73 S.W.3d 923, 924 (Tex. Crim. App. 2002); see Tex.

R. App. P. 44.2(b). Although a jury shuffle may sometimes be used as a tactical tool, the purpose

of article 35.11 is to ensure that the members of the venire are listed in random order. Roberts,

77 S.W.3d at 838. Because other rules and statutes require that jury panels be randomly ordered at

the outset, the trial court’s failure to order a shuffle does not, in itself, indicate that the venire list was

not random. Id. In the absence of any evidence in this record that the process of assembling the jury

panel was subverted in some manner to achieve a nonrandom listing of the venire, no reversible error

is shown. See id.

                 Finally, appellant argues that article 35.11 notwithstanding, he was entitled to another

shuffle of the jury under Batson v. Kentucky, 476 U.S. 79 (1986). Counsel argued below that based

on the limited information he had and without having actually seen the jurors, he believed that the

last eight panelists on the jury list were demographically more desirable to the defense. Among other

things, counsel said that “the racial makeup of the last eight is better as far as I’m concerned.”

                 The court of criminal appeals has expressed its disapproval of the argument that

Batson extends to jury shuffles. See Ladd v. State, 3 S.W.3d 547, 563 n.9 (Tex. Crim. App. 1999).



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In any event, appellant did not object that the State’s request for a jury shuffle was racially

motivated, and he does not make that argument here. No Batson violation is shown in the conduct

of the shuffle. See id. at 564.

                For the reasons stated, we overrule appellant’s point of error. Nevertheless, our

examination of the record discloses an error that requires modification of the trial court’s judgment.

See Pena v. State, 191 S.W.3d 133, 136 (Tex. Crim. App. 2006) (appellate courts may review

unassigned error). The judgment contains a listing of court costs, including “$2652.50 Attorney

Fees.” The judgment also “Orders Defendant to pay all fines, court costs, and restitution as

indicated above.” The record reflects, however, that counsel was appointed to represent appellant

both at trial and on appeal after appellant was determined to be indigent. We find no evidence in the

record that appellant is no longer indigent or that he is otherwise able to pay attorney’s fees in the

amount ordered.

                The defendant’s financial resources and ability to pay are explicit critical elements

in the trial court’s determination of the propriety of ordering reimbursement of costs and fees

under article 26.05(g). Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2010); Mayer v. State,

309 S.W.3d 552, 556 (Tex. Crim. App. 2010). No trial objection is required to preserve the

sufficiency of the evidence for appellate review. Mayer, 309 S.W.3d at 556. When the evidence

does not support the order to pay attorney’s fees, the proper remedy is to delete the order. Id. at 557.




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               The trial court’s judgment is modified to delete “$2652.50 Attorney Fees” from the

listing of court costs. As modified, the judgment of conviction is affirmed.




                                             __________________________________________

                                             J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Modified and, as Modified, Affirmed

Filed: November 17, 2010

Do Not Publish




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