                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

        ______________________________

              No. 06-08-00156-CR
        ______________________________


         GEORGE LEE WOODS, Appellant

                          V.

         THE STATE OF TEXAS, Appellee



          On Appeal from the County Court
               Lamar County, Texas
              Trial Court No. 51849




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                   MEMORANDUM OPINION

       George Lee Woods was sentenced to 270 days in jail and ordered to pay $500.00 in

restitution after a jury convicted him of driving while intoxicated (DWI). Woods has appealed.

Woods's complaints are threefold: He first argues that the trial court improperly commented on the

weight of the evidence when it instructed the jury it could "consider the defendant's refusal to submit

to a breath test as evidence." His second and third arguments involve the actions of the trial court

after having sustained a Batson1 challenge. In one, he complains that the trial court erred in allowing

the State to have further peremptory strikes after it struck two jurors on the basis of race. In the

other, he contends that the trial court erred when it reinstated the improperly-struck jurors instead

of calling for a new array.

I.     Improper Instruction in Charge

       The function of the jury charge is to inform the jury of the applicable law and to guide the

jury in its application of the law to the case that jury must decide. Hutch v. State, 922 S.W.2d 166,

170 (Tex. Crim. App. 1996). When reviewing a jury charge, we first determine whether error exists

and, if error does exist, address whether the harm caused by the error warrants reversal. Id. at

170–71 (citing Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986)).

       Because judges are neutral arbiters in the Texas adversarial system, the charge must not

express any opinion as to the weight to be accorded to the evidence. Brown v. State, 122 S.W.3d



       1
           Batson v. Kentucky, 476 U.S. 79 (1986).

                                                  2
794, 797 (Tex. Crim. App. 2003); see TEX . CODE CRIM . PROC. ANN . art. 36.14 (Vernon 2007). An

instruction that "unjustifiably singles out a particular piece of evidence for special attention" is

improper. Hess v. State, 224 S.W.3d 511, 515 (Tex. App.—Fort Worth 2007, pet. ref'd) ("Although

the jury was certainly free to consider Hess's refusal to submit to the [breath] test as evidence in the

case, the court was not justified in singling out that specific piece of evidence and inviting the jury

to pay particularized attention to it."). As the State concedes, submitting an instruction to the jury

regarding failure to submit to a breath test is an impermissible comment on the weight of the

evidence, which must be evaluated for harm. Bartlett v. State, 270 S.W.3d 147, 152 (Tex. Crim.

App. 2008); Leija v. State, No. 04-08-00679-CR, 2009 WL 331897, at *1 (Tex. App.—San Antonio

Feb. 11, 2009, no pet.) (mem. op., not designated for publication) (holding that although instruction

on defendant's refusal to submit to a breath test was error, record did not demonstrate egregious

harm); Vargas v. State, 271 S.W.3d 338, 340 (Tex. App.—San Antonio 2008, no pet.) (same); Hess,

224 S.W.3d at 515.

       The degree of harm which is necessary to require reversal depends upon whether the error

was preserved. Hutch, 922 S.W.2d at 171. If the appellant raised a timely objection in the trial court

to the error, then the appellate court must reverse the trial court's judgment if the error "was

calculated to injure the rights of [the] defendant." TEX . CODE CRIM . PROC. ANN . art. 36.19 (Vernon

2006); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g), overruled on

other grounds by Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988). Had there been a



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timely objection made to the error in the charge, all that Woods would need to demonstrate is that

he suffered "some harm." Almanza, 686 S.W.2d at 171. However, there was no objection lodged

by Woods to the charge as submitted. Because Woods failed to make a timely objection to the

charge, a different standard of review applies: reversible error will only exist in this case if the

record demonstrates that Woods suffered actual, egregious harm resulting from the incorrect charge.

See id. Egregious harm arises if the error is so severe that it deprived Woods of a fair and impartial

trial, affected the very basis of the case, vitally affected a defensive theory, or otherwise deprived

him of a valuable right. Id.; Warner v. State, 245 S.W.3d 458, 461–62 (Tex. Crim. App. 2008).

       Woods attempts to demonstrate that he suffered egregious harm because: (1) there was

evidence his actions as observed by others were caused by engine fumes instead of alcohol, and

(2) the offending instruction was placed "in a numbered paragraph of it's [sic] own, and just above

the paragraph that tells the jury that it is not to discuss inadmissible evidence."2 In determining

whether egregious harm exists, we consider the entire jury charge, the state of the evidence,

arguments of counsel, and any other relevant information in the record as a whole. Almanza, 686

S.W.2d at 171; Hutch, 922 S.W.2d at 171; Richardson v. State, 879 S.W.2d 874, 882 (Tex. Crim.

App. 1993); Leija, 2009 WL 331897, at *2. Although neither party has the burden to demonstrate




       2
        "Because these issues were never preserved, they cannot be considered as discrete points of
error." Leija, 2009 WL 331897, at *2 (addressing similar argument regarding placement of
erroneous instruction); see TEX . R. APP . P. 33.1(a).

                                                  4
the existence or the absence of harm,3 "[e]gregious harm is a difficult standard to prove and such

determination must be done on a case-by-case basis." Hutch, 922 S.W.2d at 171; Warner, 245

S.W.3d at 462–64.

       Absent the comment regarding the breath test, there is no further error in the charge, and the

State made no comment on the issue during closing argument. Most important, the state of the

evidence demonstrates why Woods cannot show he was egregiously harmed in this case.

       In looking at the case as a whole, we first look at the evidence presented at trial:

       Candi Daniel was returning home from a Christmas party on a four-lane road when she

noticed a vehicle being driven by Woods was weaving. Witness Amber Dobbs also took note that

Woods was driving "quite erratically. He was all over the roadway in both the northbound lanes,

onto the curb." Woods pulled over to the right shoulder of the roadway and stopped. Concerned,

Dobbs stopped behind him and placed an emergency call to report the situation.

       Next, both Daniel and Dobbs watched as Woods "gunned his vehicle and tried to take a

u-turn—to turn southbound in the northbound lane," even though there was a grass median

separating the opposing lanes. He crossed two lanes before colliding with a truck in front of Daniel.

Dobbs and Daniel went to check on Woods, who had "exited his vehicle and was standing in the

middle of the roadway." He "had to hold onto [Daniel and Dobbs] to get to the side of the road."

Both witnesses observed Woods smelled of alcohol, "was very slurred, kept telling us how much he

       3
       The burden of examining for harm rests with the appellate courts. Warner, 245 S.W.3d at
463–64; Nunez v. State, 215 S.W.3d 537, 543 (Tex. App.—Waco 2007, pet. ref'd).

                                                 5
loved us and how much he appreciated us." They concluded that Woods had lost normal use of his

mental faculties because he was intoxicated.

       Officers Joey McCarthy and Thomas Curry arrived at the scene where Woods's vehicle was

blocking the northbound lanes of traffic. While only McCarthy noticed Woods's red eyes, both

officers observed that he could not maintain his balance, smelled of alcohol, and slurred his speech.

Curry attempted to administer the horizontal-gaze nystagmus, walk-and-turn, and one-legged stand

field-sobriety tests, but Woods either "never understood the tests well enough or he wouldn't

cooperate enough to perform any of the tests." Dobbs stated Woods "became erratic and not very

cooperative," while Daniel claimed he was "getting very defensive and [Daniel saw] a little bit of

shoving." Drawn from these observations, both officers concluded that Woods was intoxicated and

he was transported to the intoxilyzer test room, where he admitted to drinking beer and whiskey.

Woods refused to submit to a breath test. He was eventually transported to jail and charged with

DWI.

       In addition to the events described above, the jury watched a video taken of Woods in the

intoxilyzer room, which demonstrated Woods swaying, falling down, and slurring his words. Unable

to use the restroom due to police policy, Woods urinated on himself after fifteen minutes in the

intoxilyzer room.

       In order to combat this video evidence and the testimony of the four State witnesses, Woods

claimed that his behavior that night was precipitated by a panoply of physical difficulties, including:



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uncontrolled high blood pressure, chronic back pain, radiculopathy, arthritis, leg, knee, and hip pain,

nerves, and anxiety. Woods also advanced a theory that he appeared intoxicated due to fumes which

emanated from the engine of the 1985 Dodge vehicle he had been driving. However, two of the

three defense witnesses also testified that they had observed Woods consume beer on the day of the

accident at two different locations. In other words, evidence of the refusal of Woods to submit to

the breath test was a virtual grain of sand on the mountain of evidence which the jury heard.

        We find the jury could have assessed Woods's guilt beyond a reasonable doubt based on this

evidence presented at trial. See Vargas, 271 S.W.3d at 341 (citing Brown v. State, 122 S.W.3d 794,

803–04 (Tex. Crim. App. 2003)). Neither the record before us nor Woods's brief establishes that the

error was either calculated to injure his rights or deprived him of a fair trial. See Almanza, 686

S.W.2d at 171; Leija, 2009 WL 331897, at *3 (citing Hess, 224 S.W.3d at 515); Vargas, 271 S.W.3d

at 341. Given the weight of the evidence as a whole, we cannot say that the court's instruction

caused Woods egregious (or even substantial) harm. See Hess, 224 S.W.3d at 516.4

        We overrule this point of error.

II.     Reinstatement of Stricken Jurors after a Batson Challenge

        After voir dire, Woods urged a Batson challenge and argued that the State struck three

African-American veniremembers on the basis of their race. Although the State responded that one



        4
          To the extent it failed to apply the Almanza harm analysis, this Court's prior opinion in Fried
v. State is overruled. No. 06-06-00164-CR, 2007 WL 608392 (Tex. App.—Texarkana Mar. 1, 2007,
no pet.) (mem. op., not designated for publication).

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of those potential jurors was struck due to lengthy criminal history, it failed to satisfy the trial court

that the other two members were struck for race-neutral reasons. The court sustained the Batson

challenge as to two remaining veniremembers and asked counsel what remedy was being sought.

Woods clearly and repeatedly requested the court "[t]o put them back on the panel." The trial court

complied with the request by reinstating the veniremembers as jurors and gave the State two

additional peremptory strikes to replace those used to strike those reinstated veniremembers.

Although the reporter's record does not demonstrate that the State used the strikes, the clerk's record

contains some evidence that it employed one of the additional strikes. When the court announced

the prospective jury panel, neither the State nor Woods voiced any objection to its makeup.

        "Racial discrimination has no place in the courtroom." Edmonson v. Leesville Concrete Co.,

500 U.S. 614, 630 (1991). The Equal Protection Clause of the Fourteenth Amendment prohibits the

State from using peremptory challenges to deliberately exclude persons from jury participation solely

on account of their race. Id. at 616; Batson, 476 U.S. at 86; State ex rel. Curry v. Bowman, 885

S.W.2d 421, 423 (Tex. Crim. App. 1993). The harm caused by a Batson violation "is inflicted not

only upon the parties but the excluded juror" who "suffers a profound personal humiliation

heightened by its public character." Curry, 885 S.W.2d at 424–25. To remedy this harm, a "court

may fashion a remedy in its discretion consistent with Batson and its progeny." Id. at 425. Thus,

we review the remedy employed by the trial court for abuse of discretion. Boones v. State, 170

S.W.3d 653, 657 (Tex. App.—Texarkana 2005, no pet.).



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       Texas statutory law directs that the court shall "call a new array in the case" if it "determines

that the attorney representing the state challenged prospective jurors on the basis of race." TEX .

CODE CRIM . PROC. ANN . art. 35.261(b) (Vernon 2006). Woods argues this language provides an

exclusive remedy such that the trial court erred when it reinstated the previously-stricken African-

American jurors, rather than calling a new array. In Boones, this Court decided this exact issue and

the Texas Court of Criminal Appeals has clarified that the statutory remedy is not exclusive,

especially where, as here, a "defendant acquiesces to a remedy other than that prescribed in Article

35.261(b)." Curry, 885 S.W.2d at 422–23 (holding trial court committed no error when it reinstated

veniremembers struck on basis of race instead of calling new array); Boones, 170 S.W.3d at 655–57.

The reasoning behind this nonexclusion is simple: "If the only remedy is dismissal of the array, the

affected veniremember is still not allowed to participate in the process," a result that may defeat the

purpose of the Batson protection. Curry, 885 S.W.2d at 425.

       Here, Woods did not assert any statutory right in front of the trial court. As in Curry and

Boones, Woods specifically requested that the excluded veniremembers be reinstated to the jury, a

remedy the court is authorized to use after sustaining a Batson challenge. See Boones, 170 S.W.3d

657; Garza v. State, 10 S.W.3d 765, 769–70 (Tex. App.—Corpus Christi 2000, pet. ref'd). Based

on the state of the law on this matter, we cannot say the trial court acted without reference to any

guiding rules or principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).

       This point of error is overruled.



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III.    Preservation of Error on the Additional Peremptory Strike Issue

        Finally, for the first time at the appellate stage, Woods contends the trial court erred when

it allowed the State additional peremptory strikes after determining its strikes had violated Batson.

"As a prerequisite to presenting a complaint for appellate review, the record must show that the

complaint was made to the trial court by a timely request" and that the trial court ruled or refused to

rule on the request. TEX . R. APP . P. 33.1. Woods failed to bring the matter to the trial court's

attention by objecting or requesting additional strikes. Moreover, he ratified the trial court's solution

by stating that he had no objection when the court announced the prospective jury panel. We find

Woods waived this point of error.5 See Simpson v. State, 119 S.W.3d 262, 267 (Tex. Crim. App.

2003) (error during voir dire can be waived); Noble v. State, No. 05-02-01734-CR, 2004

WL 112940, at *8 (Tex. App.—Dallas Jan. 26, 2004, no pet.) (not designated for publication)

(Batson challenges can be waived); Atkins v. State, 919 S.W.2d 770, 775 (Tex. App.—Houston [14th

Dist.] 1996, no pet.) (same).

        We overrule this final point of error.




        5
        Moreover, it appears that trial courts have allowed additional peremptory strikes to replace
those expended after disallowing strikes used in violation of Batson. Garza, 10 S.W.3d at 769.

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IV.   Conclusion

      We affirm the trial court's judgment.




                                    Bailey C. Moseley
                                    Justice

Date Submitted:      May 6, 2009
Date Decided:        May 7, 2009

Do Not Publish




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