                       NUMBERS 13-13-00526-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

HERMAN LEE KINDRED,                                                       Appellant,

                                          v.

THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 24th District Court
                        of Jackson County, Texas.


                        MEMORANDUM OPINION
            Before Justices Benavides, Perkes, and Longoria
                Memorandum Opinion by Justice Perkes
      Appellant Herman Lee Kindred appeals his conviction for theft, a state-jail felony

that was enhanced to a second-degree felony. See TEX. PENAL CODE ANN. §§ 31.03(a),

(e)(4)(D); 12.425(b) (West, Westlaw through 2013 3d C.S.).      Appellant pleaded not

guilty, but a jury found him guilty and assessed punishment at twenty years’
imprisonment. By one issue, appellant argues the trial court abused its discretion by sua

sponte disqualifying a venire member. We affirm.

                                            I. BACKGROUND1

        Before voir dire, a veniremember told the trial court that a criminal background

check conducted on herself pursuant to a job had revealed “a theft type thing[,]” but she

did not remember if it was a felony. The alleged offense occurred when she lived abroad,

where the United States Army had stationed her husband. She affirmed that the Judge

Advocate General’s Corps prosecuted her, but she did not serve any jail time or pay a

fine, and she said, “I didn’t go to court or anything like that. I came home.”

        The defense attorney felt that that the veniremember’s information was insufficient

to disqualify her as a potential juror on the grounds of having a prior theft conviction. The

trial court agreed, but it requested the State to run a criminal background check. The

State returned with a report, and the trial court responded:

        [W]hat I have been provided is a report that indicate[s] that in 1990 she was
        charged with fraud and with larceny. . . . the report that I have before me
        does not indicate that it was a conviction. Nevertheless, out of an
        abundance of caution I am going to declare [her] disqualified and I think that
        disposes of the matter.

                                     II. JUROR DISQUALIFICATION

        By his sole issue, appellant contends the trial court abused its discretion by sua

sponte disqualifying the veniremember because the evidence was insufficient to show

she was disqualified.2 Appellant does not argue that an impartial juror sat on the jury.


         1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not

recite them except as necessary to advise the parties of the Court's decision and the basic reasons for it.
See TEX. R. APP. P. 47.4.
         2 A prospective juror is disqualified if the juror has been convicted of misdemeanor theft or a felony

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Appellant relies on Green v. State for the rule that a court’s erroneous exclusion of a

qualified juror is automatically harmful when the State exhausts its peremptory

challenges, as it did here. See 764 S.W.2d 242, 246 (Tex. Crim. App. 1989) (en banc)

(quotation omitted) (explaining that in such situations the State essentially receives an

extra peremptory strike).

        Since Green, however, the Texas Court of Criminal of Criminal Appeals has

returned to the “previous rule[:] that the erroneous excusing of a veniremember will call

for reversal only if the record shows that the error deprived the defendant of a lawfully

constituted jury.” Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998) (en banc);

see Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). Under this rule, “the

question is whether or not the jurors who actually sat were impartial.” Gamboa, 296

S.W.3d at 580; Jones, 982 S.W.2d at 393 (“The defendant’s only substantial right is that

the jurors who do serve be qualified. The defendant’s rights go to those who serve, not

to those who are excused.”). There being no such showing in this case, we overrule

appellant’s issue. 3      See Gamboa, 296 S.W.3d at 580 (“Appellant’s only complaint



or is under indictment or other legal accusation for misdemeanor theft or a felony. See TEX. CODE CRIM.
PROC. ANN. art. 35.19 (West, Westlaw through 2013 3d C.S.). Generally, we review a trial court’s excusal
for an abuse of discretion. See, e.g., Chambers v. State, 903 S.W.2d 21, 27 (Tex. Crim. App. 1995)
(citation omitted).

        The State claims the issue is unpreserved because defense counsel did not object when the trial
court admitted the background check as a voir dire exhibit and made its final ruling, but the record shows
the court was aware of defense counsel’s argument, and we address it.

        3 In discussing the background facts in his brief, appellant says the State was concerned because
the veniremember was an African American, but appellant does not argue that she was excused on account
of race. To the extent appellant hints she was, we overrule the suggestion as inadequately briefed. See
TEX. R. APP. P. 38.1(i). Moreover, the record shows the State sought to avoid determining her qualification
solely on account of race: “I understand the sensitivity of it being African American [sic],” but “[i]f a
subsequent review of the record determines she was convicted then we have done this for naught.”
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regarding the jury is that, because of the erroneous excusal, his ability to have a

compatible jury was negated. This is insufficient to show that he was deprived of a

lawfully constituted jury. For these reasons, we need not decide whether the trial judge

erred in dismissing” the veniremember); Jones, 982 S.W.2d at 394 (overruling argument

that trial court excused a qualified juror because appellant failed to show he was deprived

of a lawfully constituted jury); see also Hernandez v. State, No. 02-12-00392-CR, 2014

WL 1510093, at *2 (Tex. App.—Fort Worth Apr. 17, 2014, no pet.) (mem. op., not

designated for publication) (overruling appellant’s claim that trial court excused a qualified

juror because he failed to show harm by demonstrating he was deprived of lawfully

constituted jury).

                                      III. CONCLUSION

       We affirm the trial court’s judgment.

                                                     GREGORY T. PERKES
                                                     Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
5th day of February, 2015.




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