                                       NO. 07-03-0205-CR

                                 IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                            PANEL E

                                         MARCH 5, 2004

                             ______________________________


                        CHARLES EDW ARD W ILLIAMS, APPELLANT

                                                V.

                              THE STATE OF TEXAS, APPELLEE


                           _________________________________

             FROM THE 411TH DISTRICT COURT OF SAN JACINTO COUNTY;

                    NO. 8590; HONORABLE ROBERT H. TRAPP, JUDGE

                             _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1


                                   MEMORANDUM OPINION


       Following his plea of not guilty, appellant Charles Edward Williams was convicted by

a jury of theft and punishment was assessed at two years confinem ent in a state jail facility,

suspended for five years, and a $500 fine. Presenting a sole point of error, appellant


       1
           John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignm ent.
contends his rights to due process and equal protection of the law were violated by the

prosecution’s use of a racially motivated peremptory challenge against venire mem ber

Calvin Harden. W e affirm.


       Appellant was charged with theft for cutting down timber pursuant to a purported

contract without the property owner’s authorization. W hen the case proceeded to trial and

following voir dire examination, the trial court asked the venire persons, whose nam es were

called, to be seated in the jury box. After the jury was sworn the court announced, “[t]hose

of you not selected, I’m going to let you go at this time and excuse you. . . . Thank you very

much. You are free to go.”


       Following preliminary instructions to the jury, the trial court asked defense counsel

if there were any other matters that needed to be addressed. The following colloquy

transpired:


       [Defense counsel]: Your Honor, you did not ask us if we had any objection to
       the jurors that were seated. In reviewing my notes, it appears that the
       prosecution struck three members of the jury panel who were black. One of
       them there was some articulated reasons for being struck. That was Angela
       Sykes. The other two, No. 12, Gloria Adams, and No. 19, Calvin Harden, I
       don’t remember either of these saying a word during the entire jury selection
       process.
       Under the Batson v. Kentucky case, which I know the Court is familiar with,
       the prosecution is required not to strike jurors on account of their race. And
       if a challenge is made pursuant to the Batson case, the prosecution will be
       required to explain why jurors of the defendant’s race were stricken. And so
       I’m going to do so at this time.
       The Court: O kay. At this tim e the Court is going to find that the 12 jurors that
       were seated have been sworn in. I don’t – the Court is going to rule that your

                                               2
       motion is not timely. If you wish to preserve error and make a bill, you can do
       that; but I’m going to find it’s not timely made at this time.
       [Defense counsel]: W ell, I wasn’t given a chance to do that, Judge.
       The Court: I understand that. That’s why I’m going to give you an opportunity,
       if you want them to articulate that. I’m overruling your motion. If you want to
       make it a bill for the record. I’ll allow them to state their reasons.


After the prosecutor explained that he had independent knowledge that Calvin Harden was

a relative of appellant and never responded to that question during voir dire, the trial court

concluded that Harden was struck for a race-neutral reason.2 Defense counsel did not offer

any explanation to rebut the prosecution’s reason.


       A party making a Batson challenge must timely object and make a prima facie

showing of discrim inatory motives.3 If the accused objects and makes a prim a facie

showing, the burden shifts to the prosecution to come forward with a race-neutral

explanation.      Batson, 476 U.S. at 97.     Once the prosecution offers a race-neutral

explanation, the burden shifts back to the accused to show the explanation is only a pretext

for race-m otivated strikes. Id.; see also Herron v. State, 86 S.W .3d 621, 630 (Tex.Cr.App.

2002). A trial court’s ruling on a Batson challenge is reviewed in the light m ost favorable

to it, applying a clearly erroneous standard of review. W illiams v. State, 804 S.W .2d 95,

101 (Tex.Cr.App. 1991).



       2
       Appellant only com plains on appeal of the prosecution exercising a peremptory
challenge on Calvin Harden.
       3
           Batson v. Kentucky, 476 U.S. 79, 106. S.Ct. 1712, 90 L.Ed.2d 69 (1986).

                                              3
          Appellant asserts his rights were violated by the State’s exercise of a peremptory

challenge to venire person Calvin Harden. The State argues that appellant failed to tim ely

raise his Batson objection and, alternatively, that he failed to rebut the State’s race-neutral

explanation. We agree with the State.


          To preserve an issue for appeal, a party must make a tim ely and specific objection.

Tex. R. App. P. 33.1(a). To preserve a Batson objection, a party must object to the

perem ptory strike before the jury is sworn and the remainder of the venire persons are

dismissed. Parra v. State, 935 S.W .2d 862 S.W .2d 869 (Tex.App.–Texarkana 1996, pet.

ref’d).


          Appellant’s objection to the prosecution’s use of a perem ptory strike on Calvin

Harden came after the jury was sworn and the remaining venire persons were dismissed.

Despite the trial court’s generosity in allowing the prosecution to offer its race-neutral reason

for striking Harden, error, if any, was not preserved for review. Additionally, appellant did

not rebut the prosecution’s race-neutral explanation. Appellant’s sole point of error is

overruled.


          Accordingly, the judgment of the trial court is affirmed.


                                              Don H. Reavis
                                                Justice


Do not publish.


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