                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00242-CV


IN THE INTEREST OF K.V.C.,
Q.V.C., AND V.C., CHILDREN


                                     ----------

           FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

                                     ----------

                         MEMORANDUM OPINION1
                                     ----------

      Appellant C.D. (Mother) appeals from the decree terminating her parental

rights to her children, K.V.C., Q.V.C., and V.C. In a single issue, Mother argues

that ―[t]he trial court erred in declaring a mistrial and dismissing the jury panel

instead of placing stricken jurors on the jury who were stricken in violation of

Batson.‖   According to Mother, ―the only remedy that protects the wrongfully

excluded veniremember[s] is placing them on the jury.‖ We will affirm.




      1
       See Tex. R. App. P. 47.4.
      Texas Department of Family and Protective Services (TDFPS) filed its

original petition for protection of a child, for conservatorship, and for termination

in suit affecting the parent-child relationship in January 2009. It alleged that

Mother’s parental rights to her children should be terminated because Mother

had committed several acts or omissions outlined in family code section

161.001(1) and because termination was in the children’s best interests. A jury

trial commenced in June 2010, and towards the end of voir dire, Mother—joined

by the children’s father—lodged Batson challenges to two of TDFPS’s

peremptory strikes and to one of the children’s ad litem’s peremptory strikes.2

After considering arguments and evidence, the trial court implicitly sustained the

Batson challenges, declared a mistrial, and set the trial to ―start again‖ the next

morning ―with 48 new jurors.‖ A new jury panel was summoned the following

day, the jury subsequently returned a verdict terminating Mother’s parental rights

to the children, and the trial court signed a decree terminating the parent-child

relationship between Mother and the children.

      Mother’s sole issue can be construed several different ways. To the extent

that Mother’s argument can be construed as a challenge to the trial court’s

decision to declare a mistrial because of its underlying conclusion to sustain the

Batson challenges, we agree with TDFPS that this court may not review on

appeal the trial court’s decision to grant the mistrial. See In re S.G., Jr., 935

      2
       The three jurors who were struck were the only African-American jurors
on the jury panel.


                                     2
S.W.2d 919, 923 (Tex. App.—San Antonio 1996, writ dism’d w.o.j.) (―We further

agree that in civil cases this court lacks jurisdiction to review a trial court order

granting a motion for a mistrial.‖); Galvan v. Downey, 933 S.W.2d 316, 321 (Tex.

App.—Houston [14th Dist.] 1996, writ denied) (holding that an order declaring a

mistrial is an interlocutory order and is not appealable and that appellants’ proper

remedy for appealing the mistrial was by mandamus); Fox v. Lewis, 344 S.W.2d

731, 734 (Tex. Civ. App.—Austin 1961, writ ref’d n.r.e) (holding that order

declaring mistrial after first trial was interlocutory and not appealable and likening

appellate court’s ability to review order granting mistrial with order granting a new

trial); cf. In re State Farm Lloyds, 254 S.W.3d 632, 636 (Tex. App.—Dallas 2008,

orig. proceeding) (conditionally granting mandamus relief from trial court order

prohibiting parties’ counsel from interviewing discharged jurors after mistrial and

stating that order for mistrial was interlocutory and not appealable); Ware v.

Marquez, 511 S.W.2d 594, 596–97 (Tex. Civ. App.—El Paso 1974, orig.

proceeding) (denying mandamus relief from order granting mistrial and relying on

rules governing granting of new trial).

      To the extent that Mother’s sole issue can be construed as a challenge to

the trial court’s decision to implement the remedy of declaring a mistrial and

calling for a new jury panel instead of reinstating the excluded jurors, Mother

directs us to no authority—nor have we located any after our own search—

reasoning that this particular issue is not also controlled by the authorities set out




                                      3
immediately above.3 Even if such authority existed, and assuming that Mother’s

motion for new trial preserved this issue for appellate review, we would not be

able to conclude that the trial court abused its discretion by declaring a mistrial

instead of placing the excluded panel members on the jury.         See Boones v.

State, 170 S.W.3d 653, 657 (Tex. App.—Texarkana 2005, no pet.) (reasoning

that trial court may fashion remedy in its discretion that is consistent with Batson

and its progeny (citing State ex rel. Curry v. Bowman, 885 S.W.2d 421, 424–25

(Tex. Crim. App. 1993))); see also Batson v. Kentucky, 476 U.S. 79, 99, 106

S. Ct. 1712, 1725 n.24 (1986) (declining to instruct courts on remedy when

Batson challenge sustained). Accordingly, we affirm the trial court’s judgment.




                                                   BILL MEIER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DELIVERED: March 24, 2011




      3
        It appears that Mother’s proper vehicle for appealing the granting of a
mistrial would have been to file a petition for writ of mandamus. See Galvan, 933
S.W.2d at 321; Ware, 511 S.W.2d at 596–97; see also Rod Ric Corp. v. Earney,
651 S.W.2d 407, 408 (Tex. App.—El Paso 1983, orig. proceeding).


                                     4
