Opinion issued December 10, 2015




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-14-00660-CR
                            ———————————
                      RODASHIAN E. DEGAR, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 230th District Court
                            Harris County, Texas
                        Trial Court Case No. 1377034


                                  OPINION

      A jury convicted appellant, Rodashian E. Degar, of murder,1 and the trial

court assessed his punishment at twelve years’ confinement. In his sole issue,

appellant argues that the trial court abused its discretion in remedying the State’s

1
      See TEX. PENAL CODE ANN. § 19.02 (Vernon 2011).
violation of Batson v. Kentucky 2 by reinstating the improperly challenged venire

member rather than by calling a new venire panel.

      We affirm.

                                    Background

      Appellant was charged with the murder of the complainant, Chase Walker,

in the course of a marijuana sale gone wrong. Following voir dire and each party’s

exercise of its peremptory strikes, the trial court presented the first twelve members

remaining on the venire panel as the proposed trial jury.

      Appellant objected to the proposed jury, stating, “Judge, at this time I would

make a Batson challenge.” Appellant asserted that there were nine African-

Americans on the venire panel and only three had been selected to sit on the jury.

He identified three additional African-American venire members whom he argued

the State had struck in violation of Batson v. Kentucky. Following a hearing, the

trial court sustained appellant’s Batson challenge as to one of these people, venire

member fifteen.

      The trial court stated that it would seat the challenged venire member on the

jury, and the following discussion occurred:

      [Counsel]: Okay. So, we seat her and then who do we seat after that?

      [The Court]: We have to take a look. So, what we do is—Let’s go off
                   the record.

2
      476 U.S. 79, 106 S. Ct. 1712 (1986).

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      (Brief pause).

      [The Court]: Okay. We’re back on the record on your motion.

      [Counsel]: I would object to the panel—the proposed remedy is to
                 seat Juror No. 15, which then removes Juror No. 45 who
                 is also an African-American female. So, I would object to
                 the panel with that remedy.

      [The Court]: Okay. That’s overruled.

      [Counsel]: And because my objection is overruled, as part of trial
                 strategy, I would rather have Juror No. 45 seated than
                 Juror No. 15 seated.

      [The Court]: Juror 15 is not seated. You’d rather keep Juror 45; is that
                  correct?

      [Counsel]: Correct. . . .

      [The Court]: All right. That’s what we’ll do. We’ll keep the jury as it
                  is.

      The trial court empaneled a twelve-person jury with eight minorities,

including three African-Americans, to consider the case. The jury convicted

appellant of murder, and this appeal followed.

                          Remedy for Batson Violation

      In his sole issue, appellant argues that the trial court abused its discretion in

remedying the State’s Batson violation with regard to venire member fifteen.

      In Batson, the Supreme Court determined that racial discrimination in the

use of peremptory challenges violates the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution, and it left state and



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federal courts to fashion their own remedy to such violations. See 746 U.S. 79, 84,

99 n.24, 106 S. Ct. 1712, 1716, 1725 n.24 (1986). In response, the Texas

Legislature enacted Code of Criminal Procedure article 35.261 implementing

Batson’s prohibition on race-based peremptory challenges and providing that “the

defendant may request the court to dismiss the array and call a new array in the

case” and that “[i]f the court determines that the attorney representing the state

challenged prospective jurors on the basis of race, the court shall call a new array

in the case.” TEX. CODE CRIM. PROC. ANN. art. 35.261 (Vernon 2006).

      However, the Court of Criminal Appeals subsequently stated that the sole

statutory remedy of “call[ing] a new array” in the case after sustaining a Batson

challenge “may be unconstitutionally restrictive” and held that trial courts have

discretion to implement other remedies—such as reinstating venire members struck

on the basis of race. State ex rel. Curry v. Bowman, 885 S.W.2d 421, 424–25

(Tex. Crim. App. 1993); see, e.g., Peetz v. State, 180 S.W.3d 755, 760 (Tex.

App.—Houston [14th Dist.] 2005, no pet.) (“When a court finds a Batson

violation, it may fashion an appropriate remedy according to its discretion.”);

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

(recognizing Bowman as holding that decision to reinstate excluded venire

members was acceptable remedy); Craig v. State, 82 S.W.3d 451, 453 n.1 (Tex.

App.—Austin 2002, pet. ref’d) (recognizing that “the remedy prescribed by article



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35.261 is not exclusive and that a trial court is authorized to remedy a Batson error

by reinstating the excluded venire member to the trial jury”).

      To preserve an issue for review on appeal, an appellant must make a timely

objection that specifically states the legal basis for the objection. TEX. R. APP. P.

33.1(a); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011). “Regarding

its specificity, the objection must simply be clear enough to provide the judge and

the opposing party an opportunity to address and, if necessary, correct the

purported error.” Pena, 353 S.W.3d at 807. Furthermore, the point of error raised

on appeal must comport with the objection made at trial. Wilson v. State, 71

S.W.3d 346, 349 (Tex. Crim. App. 2002).

      In the context of a complaint about the remedy to a Batson violation, the

Court of Criminal Appeals has held that “an objection to an impermissible

peremptory challenge of a veniremember based on Batson and its progeny is no

longer coextensive with an objection predicated upon Article 35.261.” Bowman,

885 S.W.2d at 425 (noting that defendant “did not expressly assert any statutory

rights” and concluding that trial court did not abuse its discretion in reinstating

improperly challenged juror); see also Boones, 170 S.W.3d at 657 (holding, where

defendant did not expressly assert any statutory rights, that trial court did not abuse

its discretion by reinstating excluded juror).




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      Appellant argues that the trial court abused its discretion in proposing to

remedy the Batson violation by reinstating venire member fifteen to the trial jury.

However, Batson did not prescribe a particular remedy but left it to state and

federal courts to fashion their own remedy, stating:

      We express no view on whether it is more appropriate in a particular
      case, upon a finding of discrimination against black jurors, for the trial
      court to discharge the venire and select a new jury from a panel not
      previously associated with the case . . . or to disallow the
      discriminatory challenges and resume selection with the improperly
      challenged jurors reinstated on the venire.

Batson, 476 U.S. at 99 n.24, 106 S. Ct. at 1725 n.24; Bowman, 885 S.W.2d at 424.

And, as Bowman makes clear, trial courts have the discretion to implement

remedies such as reinstating venire members struck on the basis of race. See

Bowman, 885 S.W.2d at 424–25.

      Here, the trial court sustained appellant’s Batson challenge regarding venire

member fifteen and suggested the remedy of reinstating her on the jury, which was

within its discretion. See id.; see also Peetz, 180 S.W.3d at 760 (“When a court

finds a Batson violation, it may fashion an appropriate remedy according to its

discretion.”); Boones, 170 S.W.3d at 657 (recognizing Bowman as holding that

decision to reinstate excluded venire members was acceptable remedy); Craig, 82

S.W.3d at 453 n.1 (recognizing that “a trial court is authorized to remedy a Batson

error by reinstating the excluded venire member to the trial jury”).




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      Appellant objected to this remedy by arguing that seating venire member

fifteen resulted in the removal of venire member forty-five from the jury, and

venire member forty-five was, like venire member fifteen, an African-American

female. However, appellant presented no argument regarding why this remedy was

inadequate to cure any harm arising from the Batson violation. The jury that

convicted appellant consisted of twelve people, eight of whom were minorities,

including three African-Americans. Cf. Bowman, 885 S.W.2d at 425 (observing

that “Batson and its progeny demonstrate that denying a person participation on a

jury . . . on account of his race unconstitutionally discriminates against the

excluded juror” and, thus, Batson violations are not “merely harmful to the parties

involved but to the individual veniremember as well”; concluding that reinstating

improperly struck venire member to jury serves to vindicate prospective juror’s

right to serve on jury).

      We conclude that the trial court did not err in responding to appellant’s

Batson challenge by reinstating venire member fifteen to the jury. See id.

      Appellant also argues on appeal that the trial court erred in “refusing” to

dismiss the entire venire panel and call a new array as required by Code of

Criminal Procedure article 35.261. See TEX. CODE CRIM. PROC. ANN. art. 35.261(a)

(providing that “defendant may request the court to dismiss the array and call a

new array in the case” and setting out procedure for doing so). As appellant never



                                         7
requested this relief, we cannot conclude that the trial court abused its discretion in

failing to grant it.

       An objection to an impermissible peremptory challenge based on Batson is

not coextensive with an objection under article 35.261, and the remedies are not

coextensive. Bowman, 885 S.W.2d at 425 (noting that Batson Court left selection

of appropriate remedy to discretion of state and federal courts and concluding that

when defendant “did not expressly assert any statutory rights” trial court did not

abuse its discretion in reinstating improperly challenged venire member); Boones,

170 S.W.3d at 657 (holding that trial court did not abuse its discretion by

reinstating excluded juror when defendant did not expressly assert any statutory

rights); cf. TEX. CODE CRIM. PROC. ANN. art. 35.261(a) (governing procedure and

remedy upon request to dismiss array).

       Appellant’s objection before the trial court regarding the State’s peremptory

challenge to venire member fifteen referenced only Batson—appellant did not

assert any statutory grounds for his challenge, did not refer to article 35.261, and

did not request that the trial court dismiss the entire venire panel and call a new

array. Appellant “object[ed] to the panel with [the trial court’s proposed] remedy”

and stated that, “as part of [his] trial strategy, [he] would rather have Juror No. 45

seated than Juror No. 15 seated.” The trial court granted this request. Thus,

appellant failed to preserve for consideration on appeal his complaint that the trial



                                          8
court erred in failing to dismiss the venire panel. See TEX. R. APP. P. 33.1(a); Pena,

353 S.W.3d at 807 (requiring specific objection “clear enough to provide the judge

and the opposing party an opportunity to address and, if necessary, correct the

purported error”). His argument on appeal does not comport with the objections

made at trial. See Wilson, 71 S.W.3d at 349; Bowman, 885 S.W.2d at 425.

      We overrule appellant’s sole issue on appeal.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Massengale, and Lloyd.

Justice Massengale, concurring.

Publish. TEX. R. APP. P. 47.2(b).




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