Opinion filed June 8, 2017




                                      In The

        Eleventh Court of Appeals
                                   __________

                             No. 11-16-00078-CV
                                 __________

                IN THE MATTER OF A.V., A JUVENILE


                    On Appeal from the County Court at Law
                             Brown County, Texas
                         Trial Court Cause No. J00010


                      MEMORANDUM OPINION
      This is an appeal from a judgment of disposition in a juvenile delinquency
matter involving determinate-sentence offenses.       See TEX. FAM. CODE ANN.
§§ 53.045(a), 54.04 (West Supp. 2016). After the grand jury approved the juvenile
court petition, A.V. pleaded true to allegations that he had engaged in delinquent
conduct by engaging in organized criminal activity and by committing the offenses
of aggravated robbery, and the trial court adjudicated A.V. See id. § 53.045. Several
weeks later, a jury was empaneled for the disposition hearing. The jury found that
A.V. was in need of rehabilitation or that disposition was required to protect either
A.V. or the public. See id. § 54.04(a), (c). The jury sentenced A.V. to commitment
in the Texas Juvenile Justice Department with a possible transfer to the Texas
Department of Criminal Justice for a term of thirty years, and the trial court entered
a judgment of disposition based on the jury’s verdict. See id. § 54.04(d)(3). We
affirm.
      A.V. presents three issues on appeal; all three relate to the disposition
hearing.1 In his first issue, A.V. complains that the trial court erred when it sustained
the State’s objection and refused to admit an expert report into evidence. In his
second issue, A.V. contends that the trial court erred when it overruled his challenge
for cause to one of the members of the venire panel. In his final issue, A.V. presents
a Batson2 claim.
      A.V.’s first issue is based on the trial court’s exclusion of an exhibit. During
A.V.’s disposition hearing, A.V. offered into evidence a letter prepared by a
psychiatrist who was appointed by the trial court as an expert to assist in the
preparation of A.V.’s defense. A.V. did not call the psychiatrist to testify at trial but,
instead, offered the psychiatrist’s letter into evidence during the testimony of the
chief juvenile probation officer. The letter, which was addressed to A.V.’s attorney,
contained the psychiatrist’s findings based upon his initial consultation with A.V.
The trial court sustained the State’s hearsay objection, and A.V. later made an
informal bill of exception or offer of proof as to the excluded exhibit. A.V. explained
to the trial court that the exhibit was admissible because it was authenticated by the
probation officer and because she had a copy of it in her file.
      A.V. argues on appeal that the letter constitutes an expert report of a
professional consultant under Section 54.04(b) and that, therefore, the hearsay rules




      1
          We note that the State did not file a brief in this case.
      2
          Batson v. Kentucky, 476 U.S. 79 (1986).

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do not apply.3 As a prerequisite to presenting a complaint for appellate review, the
record must show that the appealing party “stated the grounds for the ruling that [he]
sought from the trial court with sufficient specificity to make the trial court aware of
the complaint.” TEX. R. APP. P. 33.1(a)(1)(A). To complain on appeal about the
trial court’s exclusion of evidence, the proponent “must have told the judge why the
evidence was admissible” and must have brought to the trial court’s attention the
same complaint that is being made on appeal. Reyna v. State, 168 S.W.3d 173, 177
(Tex. Crim. App. 2005). To have evidence admitted under a hearsay exception, the
proponent of the evidence must specify at trial the exception upon which he is
relying.   Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
Additionally, to properly preserve an issue, the arguments asserted by the proponent
of the evidence at trial must comport with the arguments asserted on appeal. In re
C.Q.T.M., 25 S.W.3d 730, 738 (Tex. App.—Waco 2000, pet. denied). And, when
making an offer of proof, “the party must specify the purpose for which the evidence
is offered and give the trial judge reasons why the evidence is admissible.” Id. at
737 (quoting Cont’l Coffee Prods. Co. v. Cazarez, 903 S.W.2d 70, 80 (Tex. App.—
Houston [14th Dist.] 1995), rev’d in part on other grounds, 937 S.W.2d 444 (Tex.
1996)). Because A.V. did not at any point explain to the trial court why the hearsay
rule did not apply in this case or state that it was A.V.’s position that the exhibit was


      3
       Section 54.04(b) of the Family Code provides:
               At the disposition hearing, the juvenile court, notwithstanding the Texas Rules of
      Evidence or Chapter 37, Code of Criminal Procedure, may consider written reports from
      probation officers, professional court employees, or professional consultants in addition to
      the testimony of witnesses. On or before the second day before the date of the disposition
      hearing, the court shall provide the attorney for the child and the prosecuting attorney with
      access to all written matter to be considered by the court in disposition. The court may
      order counsel not to reveal items to the child or the child’s parent, guardian, or guardian ad
      litem if such disclosure would materially harm the treatment and rehabilitation of the child
      or would substantially decrease the likelihood of receiving information from the same or
      similar sources in the future.

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admissible under Section 54.04(b), he has not preserved this issue for review. We
overrule A.V.’s first issue.
      In his second issue, A.V. argues that the trial court erred when it overruled his
challenge for cause to Veniremember No. 30. A.V. contends that this prospective
juror was disqualified because she was biased and prejudiced. See TEX. GOV’T CODE
ANN. § 62.105 (West 2013); TEX. CODE CRIM. PROC. ANN. art. 35.16 (West 2006).
The record shows that Veniremember No. 30 had twice been a victim of a crime
similar to the one committed by A.V. She stated during voir dire that she knew how
it felt to be a victim of such a crime: “Worse than horrible.” When questioned further
at the bench, Veniremember No. 30 first said that she thought A.V. needed some jail
time but then said that she could consider probation if the facts showed that probation
“would do him good.” She then indicated that, given her history, her judgment could
possibly be a little cloudy but that A.V. is “a different person than who robbed me,
and it would be probably completely different circumstances than what happened to
me.” A.V. moved to excuse Veniremember No. 30 for cause, and the trial court
overruled that motion. A.V. properly preserved this issue for our review. See
Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996).
      We review a trial court’s ruling on a challenge for cause with considerable
deference because the trial court is in the best position to evaluate the demeanor and
responses of a prospective juror. Gardner v. State, 306 S.W.3d 274, 295–96 (Tex.
Crim. App. 2009). We may reverse a trial court’s ruling on a challenge for cause
only if the trial court clearly abused its discretion. Id. at 296. When the answers of
the challenged veniremember are vacillating, unclear, or contradictory, we accord
particular deference to the trial court’s decision. Id. at 295; In re M.R., No. 11-08-
00155-CV, 2010 WL 1948286, at *2 (Tex. App.—Eastland May 13, 2010, pet.
denied) (mem. op.).


                                          4
      A veniremember is challengeable for cause if she has (1) a bias or prejudice
for or against a party or (2) a bias or prejudice against the law upon which the parties
are entitled to rely. Gardner, 306 S.W.3d at 295; M.R., 2010 WL 1948286, at *1.
A veniremember is not challengeable for cause merely because she has a bias against
the crime committed. M.R., 2010 WL 1948286, at *3.
      When a prospective juror expresses bias or prejudice in favor of or against the
defendant (as opposed to a bias or prejudice against the law), it is not ordinarily
deemed possible for the prospective juror to be qualified by stating that she can lay
aside such prejudice or bias. Id. at *1 (citing Smith v. State, 907 S.W.2d 522, 530
(Tex. Crim. App. 1995)). When a prospective juror expresses a bias for or against
the law, the question is whether the bias or prejudice would substantially impair the
prospective juror’s ability to carry out her oath and instructions in accordance with
the law. Gardner, 306 S.W.3d at 295; M.R., 2010 WL 1948286, at *2. Before a
veniremember may be excused for cause, the law must be explained to her, and she
must be asked whether she can follow that law regardless of her personal views.
Gardner, 306 S.W.3d at 295; M.R., 2010 WL 1948286, at *2. The proponent of a
challenge for cause carries the burden of establishing that the challenge is proper.
Gardner, 306 S.W.3d at 295. The proponent does not meet this burden until the
proponent shows that the veniremember understood the requirements of the law and
could not overcome her prejudice well enough to follow the law. Id.
      Here, Veniremember No. 30 did not express a bias or prejudice against A.V.
but, rather, against the crime he committed. Veniremember No. 30 vacillated
somewhat with respect to any bias or prejudice as it related to the law—specifically,
probation. However, we defer to the trial court’s determination and hold that A.V.
did not meet his burden to show that Veniremember No. 30 understood the law but
could not overcome her prejudice well enough to follow the law. A.V.’s second
issue is overruled.
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        In his third issue, A.V. asserts a Batson claim. He argues that the State used
its peremptory strikes against three Hispanic veniremembers—Nos. 4, 9, and 10—
on the basis of their race. The record shows that A.V. is Hispanic.
        Under Batson, the State is prohibited from using peremptory strikes to exclude
jurors on the basis of race. Batson, 476 U.S. at 86. A Batson challenge consists of
three steps. “First, the opponent of the strike must establish a prima facie showing
of racial discrimination. Second, the proponent of the strike must articulate a race-
neutral explanation. Third, 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) (citing Purkett v. Elem, 514 U.S. 765, 767 (1995)). We defer to
the trial court’s evaluation of the credibility and demeanor of the prosecutor and the
veniremembers, and we must uphold the trial court’s ruling unless it was clearly
erroneous. Id.
        Because the State offered reasons for its strikes, the inquiry as to the first step
is moot.4 Johnson v. State, 68 S.W.3d 644, 649 (Tex. Crim. App. 2002). Thus, we
begin our analysis with the second step: whether the reasons offered by the State
were in fact race neutral. Id.
        Veniremembers Nos. 4 and 9 were Hispanic, and Veniremember No. 10 may
have been Hispanic. The State used peremptory strikes against all three. The State
explained that it struck Veniremember No. 4 because he had a son that was in prison.
The State said that it struck Veniremember No. 9 because he gave conflicting
answers and because he “seemed to indicate that he thought that if you just went
along with older people who did something, you may not be as guilty or as culpable”
as the others. With respect to Veniremember No. 10, the State had not realized that


        4
         We note that there were either five or six Hispanics on the venire panel and that three of them were
not struck by the State and actually served on A.V.’s jury.

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she was Hispanic; she left that portion of her questionnaire blank. The State
nevertheless explained that she was struck because she acted very disinterested and
did not seem to care about what was being discussed during voir dire. The State
indicated that it had attempted to engage her in a conversation but that those efforts
resulted in very little interaction.
       When asked if he had any response to the State’s race-neutral explanations for
striking Veniremembers Nos. 4 and 9, A.V. replied that he had no response. A.V.’s
response with respect to Veniremember No. 10 was merely that she had answered
numerous questions posed by A.V.           We note that the record reflects that
Veniremember No. 10 answered only two questions posed by A.V. and that both of
those questions were specifically addressed to her. The record also reflects that the
State attempted to engage Veniremember No. 10 in a conversation during the State’s
voir dire.
       The explanations offered by the State in this case were valid, race-neutral
reasons. See, e.g., Yarborough v. State, 947 S.W.2d 892, 895–96 (Tex. Crim. App.
1997). Therefore, A.V. had the burden to show that the State’s explanations were
merely a pretext for discrimination. See Johnson, 68 S.W.3d at 649; In re C.H., 412
S.W.3d 67, 77 (Tex. App.—Fort Worth 2013, pet. denied). A.V. failed to meet that
burden. Therefore, we hold that the trial court’s Batson ruling was not clearly
erroneous. A.V.’s third issue is overruled.
       We affirm the judgment of the trial court.




June 8, 2017                                        JIM R. WRIGHT
Panel consists of: Wright, C.J.,                    CHIEF JUSTICE
Willson, J., and Bailey, J.



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