            TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-02-00021-CR


                                  Bijan Mauray Wolridge, Appellant

                                                    v.

                                     The State of Texas, Appellee



            FROM THE DISTRICT COURT OF LEE COUNTY, 21ST JUDICIAL DISTRICT
                 NO. 5761, HONORABLE JOHN L. PLACKE, JUDGE PRESIDING




                 Appellant Bijan Mauray Wolridge appeals his conviction for retaliation. See Tex. Pen.

Code Ann. ' 36.02(a)(1) (West Supp. 2002).1 The jury found appellant guilty and the trial court

assessed his punishment at imprisonment for five years and six months.


                                             Point of Error

                 Appellant advances a single point of error. He contends that the Atrial court erred in

overruling appellant=s Batson challenge because the State failed to establish a racially neutral

explanation for the State=s removal of all of the Black veniremen from the jury panel.@ Appellant

refers to Batson v. Kentucky, 476 U.S. 79 (1986), where the United States Supreme Court held that

the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution forbids

a prosecutor to peremptorily challenge potential jurors solely on account of their race. We will affirm.


        1
            The current code is cited for convenience.
                                                    Background

                    The indictment charged appellant with retaliation for threatening to kill a police officer, Jamie

Diaz, Aon the account of the service of Jamie Diaz as a public servant.@ Neither the factual nor legal

sufficiency of the evidence is challenged. Suffice it to say, the record shows that on July 21, 2001, Giddings

Police Officer Jamie Diaz responded to a call concerning a noise disturbance at apartment four of the

Windsor Square Apartments. Upon arriving at the apartment complex, Diaz encountered appellant and

arrested him for possession of marihuana. Appellant was handcuffed with his arms behind his back and

placed in another officer=s patrol car. While the officers were occupied elsewhere, appellant escaped. He

was recaptured at his friend=s house, nude, but still handcuffed. Appellant was taken to jail. While being

booked, appellant became abusive, combative, and called Diaz a Awetback.@ In the presence of other

officers, appellant twice threatened to kill Diaz. Officer Diaz had arrested appellant on several other

occasions. Diaz took the threats seriously and believed that the threats were made because of his service as

a police officer.


                                               The Batson Motion

                    The record reflects the voir dire examination of the jury panel on October 17, 2001. The

jury strike lists (peremptory challenges) are contained in the clerk=s transcript. Apparently after the clerk of

the court compared the strike list of both parties, see Tex. Code Crim. Proc. Ann. art. 35.26(a) (West

1989), the trial court swore and impanelled the jury at 11:50 a.m. The balance of the jury panel was

discharged at 12:00 p.m. The chosen jury was instructed to return to court at 1:30 p.m.




                                                          2
                 Before the court reconvened at 1:30 p.m., appellant filed a Amotion to order a new jury

panel, or to disallow State=s peremptory challenges because of racial discrimination.@ The trial court

summarily overruled the motion but allowed appellant to make a record on the Batson motion. Appellant=s

counsel then orally asserted that after the challenges for cause were ruled upon, there remained two qualified

African-Americans on the jury list, who were of the same race as appellant; that the State used two of its

peremptory challenges on these two prospective jurors, a AMs. Clemons@ and a AMs. Burns@; and that the

State=s action was racially motivated. No evidence was offered in response to the trial court=s inquiry; the

State simply stated that it had an explanation for its peremptory strikes but the Batson motion was not

timely. The trial court made no further ruling. There was no response to the trial court=s next inquiry,

AAnything further before we bring the jury in?@

                 Appellant concedes that there is an issue of the timeliness of his Batson motion. He

contends that there was little time to object between the clerk=s determination of the composition of the jury

from the strike lists and the swearing in of the jury. He urges that he filed his Batson motion immediately

Aafter lunch@ and prior to the commencement of the trial.

                 The United States Supreme Court made clear in Batson that Ain light of the variety of jury

selection practices followed in our state and federal trial courts,@ it would make no attempt to instruct these

courts how best to implement the Batson decision. Batson, 476 U.S. at 100 n.24. To codify and

implement the Batson decision, the Texas Legislature enacted article 35.261. Tex. Code Crim. Proc. Ann.

art. 35.261 (West 1989). Whenever a claim is made that veniremembers have been peremptorily

challenged on the basis of race, article 35.261 must be followed. Hill v. State, 827 S.W.2d 860, 863

(Tex. Crim. App. 1992).

                                                      3
                 For a Batson objection to be timely under article 35.261, it must be made A[a]fter the

parties have delivered their lists to the clerk under article 35.261 of this code and before the court has

impanelled the jury.@ Article 35.261; Hill, 827 S.W.2d at 864; Saldivar v. State, 980 S.W.2d 475, 482-

84 (Tex. App.CHouston [14th Dist.] 1998, pet. ref'd). A jury is Aimpanelled@ when the members of the

jury have been selected and sworn. Hill, 827 S.W.2d at 864.

                 It is clear that appellant=s Batson motion was not timely. No error was preserved for

appellate review. The trial court did not abuse its discretion in denying the motion. The point of error is

overruled.

                 The judgment is affirmed.




                                                 John F. Onion, Jr., Justice

Before Chief Justice Aboussie, Justices Yeakel and Onion*

Affirmed

Filed: August 30, 2002

Do Not Publish



*
    Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment.
    See Tex. Gov=t Code Ann. ' 74.003(b) (West 1998).




                                                    4
