No . 01
- 14 -00660- CR In the Court of Appeals For the First District of Texas At Houston
 No. 1377034 In the 230 th Criminal District Court Of Harris County, Texas
 RODASHIAN E. DEGAR Appellant V. THE STATE OF TEXAS Appellee
 

### STATE ’ S APPELLATE BRIEF


D EVON A NDERSON District Attorney Harris County, Texas M ELISSA P. H ERVEY Assistant District Attorney Harris County, Texas State Bar Number: 24053741 L AUREN B ARD Assistant District Attorney 1201 Franklin Street, Suite 600 Houston, Texas 77002 Telephone : (713) 755-5826 Fax Number: (713) 755-5809 Hervey_Melissa@dao.hctx.net ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT ACCEPTED 01-14-00660-CR FIRST COURT OF APPEALS

HOUSTON, TEXAS 4/29/2015 3:01:58 PM CHRISTOPHER PRINE

CLERKi STATEMENT REGARDI NG ORAL ARGUMENT Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of Appellate Procedure 39.1 , the State requests oral argument only if ap pellant requests oral argument.

IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rule s of Appellate Procedure 38.1( a) and 38.2( a)(1)(A) , a complete list of the names of all interested partie s , and the names and addresses of all trial and appellate counsel, is provided below: Complainant or Victim: Chase Walker Counsel for the State:
Devon Anderson

 District Attorney of Harris County Melissa P. Hervey

 Assistant District Attorney on appeal Lauren Bard, Kristina Daily

— Assistant District Attorney s at trial Harris County District Attorney’s Office 1201 Franklin Street, Suite 600 Houston, Texas 77002 Appellant or C riminal D efendant: Rodashian E. Degar Counsel for Appellant: Allen C. Isbell

— Defense Counsel on appealii 202 Travis Street , Suite 208 Houston, Texas 77002 Lisa Andrews

— Defense Counsel at trial 1207 S. Shepherd Drive Houston , Texas 77 019 Wendy Baker

— Defense Counsel at trial 21 Waterway Avenue, Suite 300 The Woodlands, Texas 77380 Trial Judge:
Honorable Jay Burnett

— Presiding J udge of the 230 th Criminal District Court

TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT

................................ ................ i
IDENTIFICATION OF THE PARTIES

................................ ................................ .... i
TABLE OF CONTENTS

................................ ................................ .......................... ii
INDEX OF AUTHORITIES

................................ ................................ .................... iii
STATEMENT OF THE CASE

................................ ................................ .................. 1 STATEMENT OF FACTS

................................ ................................ ........................ 1 SUMMARY OF THE ARGUMENT

................................ ................................ ........ 5 REPLY TO APPELLANT’S SOLE POINT OF ERROR

................................ ......... 5
I. S TANDARD OF R EVIEW AND A PPLICABLE L AW R EGARDING A B ATSON C HALLENGE
................................ ................................ .............................. 6iii

II. A PPELLANT F

AILED TO P

RESERVE E

RROR R EGARDING HIS P RESENT C OMPLAINT THAT THE T RIAL C OURT E

RRED BY N

OT D ISMISSING THE A RRAY AND C

ALLING A N

EW V ENIRE P

ANEL
................................ ............ 7
III. T HE T RIAL C OURT D ID N OT E RR BY R EINSTATING J UROR 15, I NSTEAD OF D ISMISSING THE A RRAY AND C ALLING A N

EW V ENIRE P ANEL , B ECAUSE R EINSTATEMENT IS AN A PPROPRIATE R EMEDY FOR A B ATSON V

IOLATION
................................ ................................ ............ 12
IV. E V EN IF THE T

RIAL C OURT E

RRED BY R EINSTATING J UROR 15, I NSTEAD OF D ISMISSING THE E NTIRE A RRAY

, THE E

RROR WAS H ARMLESS
................................ ................................ .............................. 16 CONCLUSION AND PRAYER

................................ ................................ ............. 18 CERTIFICATE OF COMPLIANCE

................................ ................................ ....... 19
CERTIFICATE OF SERVICE

................................ ................................ ................ 20

INDEX OF AUTHORITIES
CASES
Allen v. State , 811 S.W.2d 673 (Tex. App.

— Dallas 1991, pet. ref’d)

................................ ................................ ......................... 11 Batson v. Kentucky , 476 U.S. 79 (1986)

................................ ................................ ...................... 6, 7, 12 Boones v. State , 170 S.W.3d 653 (Tex. App.

— Texarkana 2005, no pet.)

................................ ................................ ..... 7, 14, 15, 16 Broxton v. State , 909 S.W.2d 912 (Tex. Crim. App. 1995)

................................ ...................... 10, 11 Craig v. State , 82 S.W.3d 451 (Tex. App.

— Austin 2002, pet. ref’d)

................................ ................................ ................. 14, 16iv

Garza v. State , 10 S.W.3d 765 (Tex. App.

— Corpus Christi 2000, pet. ref’d)

................................ ................................ .... 14, 16 Georgia v. McCollum , 502 U.S. 42 (1993)

................................ ................................ ................................ . 6 Henry v . State , 729 S.W.2d 732 (Tex. Crim. App. 1987)

................................ ............................. 13 Johnson v. State , 879 S.W.2d 313 (Tex. App.

— Amarillo 1994, no pet.)

................................ ................................ ................. 10, 11 Montgomery v. State , 810 S.W.2d 372 (Tex. Crim. App. 1990)

................................ ............................... 7 Moss v. State , 877 S.W.2d 895 (Tex. App.

— Waco 1994, no pet.)

................................ ................................ ...................... 15, 16 Peetz v. State , 180 S.W.3d 755 (Tex. App.

— Houston [14th Dist.] 2005, no pet.)

................................ ............................... 14, 16 Perea Velasco v. State , No. 01

- 96

- 01075

- CR, 1999 WL 12792 (Tex. App.

— Houston [1st Dist.] Jan. 14, 1999, pet. ref’d)

................................ ................ 15, 16 Sims v. State , 768 S.W.2d 863 (Tex. App.

— Texarkana 1989)

................................ ................................ ................................ ... 13 State ex rel. Curry v. Bowman , 885 S.W.2d 421 (Tex. Crim. App. 1993)

................................ ............ 7, 12, 13, 16 Wilson v. State , 71 S.W.3d 346 (Tex. Crim. App. 2002)

................................ ........................... 9, 11

STATUTES

T EX
. C ODE C RIM
. P ROC
. A NN . art. 35.261

................................ ................................ .. 6 T EX
. P ENAL C ODE A NN
. § 19.02( b )(1)

................................ ................................ ....... 1 T EX
. P ENAL C ODE A NN
. § 19.02( b )(2)

................................ ................................ ....... 1v

RULES

T EX
. R. A PP
. P. 9.4(g)

................................ ................................ ................................ . i T EX
. R. A PP
. P . 9.4(i)

................................ ................................ ................................ 19 T EX
. R. A PP
. P . 33. 1(a)

................................ ................................ ......................... 9, 11 T EX
. R. A PP
. P. 38.2( a)(1)(A)

................................ ................................ ..................... i T EX
. R. A PP
. P. 39.1

................................ ................................ ................................ .... iTO THE HONORABLE COURT OF APPEALS: STATEMENT OF THE CASE
The State charged appellant by indictment with murder

. (CR

– 1 4 ); 1 see T EX
. P ENAL C ODE A NN
. § 19.02( b )(1) ; T EX
. P ENAL C ODE A NN
. § 19.02( b )(2)

. The jury found appellant guilty as charged in the indictment

. (CR

– 108 , 118

- 19 ) ; (RR
V

– 45)

. On July 29, 2014, t he trial court assessed appellant’s punishment and sentenced him to conf

inement in the Texas Department of Criminal Justice, Correctional Institutions Division, for twelve years . (CR

– 118

- 19 ); (RR V I

– 42

- 43 ). The trial court also entered an affirmative deadly weapon finding in the court’s written judgment of conviction and sentence. (CR

– 118

- 19 ). Appellant timely filed written notice of appeal on July 29 , 2014

. (CR

– 121 ).

       

       STATEMENT OF FACTS
Around noon on May 15, 2012, Maurice White drove to Yates High School and picked

- up appellant, Anthony Duhon, a nd Kenya Jac kson to take them to buy marijuana from Chase Walker . (RR IV

– 15 , 18

- 20 )

. White sat in the driver’s seat
of White’s dark green 1998 Pontiac Grand Prix sedan, while Jackson sat in the

1 The Clerk’s Record consists of one volume, hereinafter referenced as (CR

– [page number]). The Court Reporter’s Record consists of seven volumes, which will be referenced as (RR [I

- VII]

– [page number])

. State’s Exhibits offered and/or admitted at trial are contained within Volume VII of the Reporter’s Record, and will be referenced as (RR VII

– SX [exhibit number])

. References to Appellant’s Brief will be cited as (AB

– [page number]).2

front passenger seat; appellant sat in the right rear pass enger seat, behind Jackson; and Duhon sat in the left rear passenger seat, behind White. (RR III

– 133); see (RR VII

– SX 48). White drove appellant, Jackson, and Duhon to Walker’s home and, when White’s car pulled up, Walker got into the back of the car , sitting in the left , rear passenger seat behind White when Duhon slid into the middle of the back seat

. (RR III

– 116 , 133 ); (RR IV

– 20

- 21 , 23 ); see (RR VII

– SX 48)

. Once inside White’s vehicle, Walker produced a glass jar containing marijuana from
Wa lker’s backpack, handed the drugs to appellant and Duhon, and told White to

“ make the block ”

— drive around the neighborhood

— while appellant and Duhon examin ed and smelled Walker’s marijuana and discuss ed the price for the drugs with Walker

. (RR IV

– 22

- 2 5 , 39 ).
T he negotiations over the drugs soon soured and Duhon loudly told Walker, “I ain’t paying that much for the weed.” (RR IV

– 28

- 29 , 88

- 89 ). A ppellant then aggressively commanded Walker, “ [ N ] igger, get out of the car [,] ” and drew a loaded Glock 17 n ine

- millimeter pistol from appellant’s jacket. (RR III

– 146, 151); (RR IV

– 29

- 30 , 66

- 67 , 89, 97 ) ; see (RR VII

– SX 52)

. A struggle immediately began in the backseat as Walker drew his own gun

— an unloaded, nonfunctional Jimenez Arms nine

- millimeter pist ol. (RR III

– 30

- 31, 84); (RR IV

– 67)

. The struggle was very brief, ending when a ppellant shot Walker in the head at point

- blank range . (RR IV

– 31

- 32); see (RR III

– 37

- 40 , 51

- 52 ) (explaining3

that gunpowder, soot, and stippling in and around Walker’s gunshot wound indicated that it was inflicted at “extremely close range”). Appellant’s bullet entered Walker’s fore head just above his left eyebrow , and then fragmented into three pieces before finally lodging at the back of Walker’s skull. (RR III

– 33, 35, 37

- 38, 43 ) ; see (RR VII

– SX 2

- 4)

. Panicking, White jumped out of the driver’s seat, opened the left , rear passenger door of his car, pull ed Walker’s slumping body out of the backseat, and dump ed it in the street. (RR IV

– 32

- 36)

. Jackson, too, jum ped out of White’ s car and inadvertently dropped his cell phone on the street near where Walker’s body and Walker’s belongings had been deposited

. See (RR III

– 71

- 73, 78, 81) ; (RR
VII

– SX 8, 14

- 19)

. White and Jackson got back into White’s car, and Whit e quickly sped away from the scene with appellant and Duhon still in the backseat

. (RR IV

– 36). White drove back to the area around Yates High School and dropped

- off appellant and Jackson. (RR IV

– 37

- 38). When Jackson got out of White’s car,
Jackson took Walker’s jar of marijuana with him ; Jackson later sold the drugs and then divided the profits among st himself , W hite , and Duhon

. (RR III

– 137

- 38, 193); (RR IV

– 39, 42). Appellant grabbed his own belongings when he exited White’s vehicle, includin g appellant’s Glock

— which appellant subsequently disposed of . (RR III

– 138, 167). White then drove himself and Duhon to Duhon’s4

residence , where he and Duhon quickly began trying to clean Walker’s blood off
of the backseat of White’s vehicle

. (RR III

– 136

- 37, 194); (RR IV

– 40). White also told his father about the shooting, and his father hastily took White’s car and had it repainted white

. (RR III

– 98

- 100, 134); (RR IV

– 41

- 42) ; see (RR VII

– SX 54

- 58). Meanwhile, someone in the neighborhood where the shooting occurred called the police, and an ambulance soon arrived and transported Walker to the hospital. Walker survived for about twenty

- two hours in the hospital before finally succumbing to his fatal gunshot wound at 11:57 AM on May 16, 2012

. ( RR III

– 40); see (RR VII

– SX 1)

. The police recovered Jackson’s cell phone from the crime scene and, not knowing who it belonged to, obtained a warrant to search it . B y investigating photographs and data on the phone, the police eventually learned that the phone belonged to Jackson. (RR III

– 122, 126

- 27). The police located Jackson and interviewed him about the murder, during which Jackson told the police Duhon’s name. (RR III

– 128). The police interviewed Duhon, who named White, and then intervie wed White, who named appellant. (RR III

– 129

- 31 ) . The police interviewed appellant about the crime and appellant admitted that he shot Walker in the backseat of White’s car , although he claimed that he did so in self

- de fense after Walker drew a gun . (R R III

– 146, 196); see (RR VII

– SX 52). At the5

conclusion of these interviews, the police arrested appellant, Jackson, Duhon, White, and White’s fat her for tampering with evidence for their actions in disposing of appellant’s gun, stealing and selling Wa lker’s marijuana, and scrubbing and repainting White’s car, respectively. (RR III

– 136

- 38 , 194). After additional investigation and conversation s with appellant, Jackson, Duhon, and White, the police also arrested appellant and Duhon for Walker’s murder . (RR III

– 153, 165

- 67 , 174

- 75 ).

       

       SUMMARY OF THE ARGUMENT If appellant preserved error regarding the matter, the trial court did not abuse its discretion by restoring Juror 15 to the jury panel , instead of dismissing the venire panel and calling a new array, because the trial court’s alternative, non

statutory remedy was permissible to cure the Batson violation. However, even if the trial court erred by reinstating Juror 15, instead of enacting the statutory remedy outlined in Article 35 .261 of the Texas Code of Criminal Procedure , the error was harmless.

       

      
REPLY TO APPELLANT’S SOLE POINT OF ERROR Appellant contends in his only point of error that the trial court abused its discretion by not dismissing the venire panel and calling a new array, pursuant to6

Article 35.261 of the Texas Code of Criminal Procedure, after the court found that the State committed a Batson violation regarding a particular venire person.
I. Standard of Review and Applicable Law Regarding a Batson Challe nge The United State s Supreme Court made clear in Batson v. Kentucky , 476 U.S. 79 (1986) , and in Batson’s progeny, that the Equal Protection Clause of the United States Constitution prohibits a party from using peremptory challenge s to exclude otherwise qualified and unbiased potential jurors from the jury panel based solely on the jurors’ race

. See Batson , 476 U.S. at 86

- 87 (holding that the Equal Protection Clause prohibits the prosecution from striking potential jurors solely because of the jurors’ race) ; see also Georgia v. McCollum , 502 U.S. 42, 49

- 50 (1993) ( holding that a defendant is constitutionally prohibited from engaging in purposeful racial discrimination when exercising peremptory challenges). The Texas Legislature codified the Batson rul e by enacting Article 35.261 of the Texas Code of Criminal Procedure

. T EX
. C ODE C RIM
. P ROC
. A NN . art. 35.261 . Article 35.261 outlines a three

- step process for a party seeking to make a “ Batson challenge[,]” and also proposes a remedy that the trial court may enact if the court concludes that a Batson violation did in fact occur. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 35.261 (establishing the three

- part process of a Batson challenge and authorizing the trial court to dismiss the venire panel and call a new array upon concluding that a Batson violation occurred); State ex rel. Curry v. Bowman , 8857

S.W.2d 421, 424

- 25 (Tex. Crim. App. 1993) (explaining that Article 35.216’s remedy of dismissing the arr ay is not the exclusive remedy for a Batson violation and that reinstatement of the excluded juror is also a permissible cure). A trial court’ s remedy for a Batson violation is reviewed on appeal for abuse of discretion. See Boones v. State , 170 S.W.3d 65 3, 656

- 57 (Tex. App.

— Texarkana 2005, no pet.) (finding that the trial court’s remedy for a Batson violation

— to reinstate the wrong

- challenged juror

— was not an abuse of the court’s discretion). A trial court should be found to have abused its discretion only when the court’s ruling was arbitrary or unreasonable, or when the court acted
without reference to any guiding rules or principles. Montgomery v. State , 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)

. II. Appellant Failed to Preserve Error Regarding his Present Complaint that the Trial Court Erred by Not Dismissing the Array and Calling a New Venire Panel At the conclusion of voir dire, after the State and appellant made their peremptory strikes, appell ant made a Batson challe nge to the State’s strikes of
J urors 15, 16, and 29 , asserting that the prosecution improperly struck those venire members solely because they are African

- American

— the same race as appellant

. (RR II

– 143

- 44, 146

- 47); see generally Batson , 476 U.S. at 86

- 87

. T he trial court sustained appellant’s Batson challenge regarding Juror 15 , only, and then the following discussion occurred:8

[Trial Court]: Okay. All right. And her number w as what? [State]: No. 15, Your Honor. [Trial Court]: 15? [State]: Yes, Your Honor. [Trial Court]: I will grant the Batson and seat the juror. That’s it. [Defense]: Okay. So, we seat her and then who do we seat after that? [Trial Court]: We ha ve to take a look. So, what we do is

- - Let’s go off the record. (Brief pause). [Trial Court]: Okay. We’re back on the record on your motion. [Defense]: I would object to the panel

- - the proposed remedy is to seat Juror No. 15, which then remove s Juror No. 45 who is also an African

- American female. So, I would object to the panel with that remedy. [Trial Court]: Okay. That’s overruled. [Defense]: And because my objection is overruled, as part of trial strategy, I would rather have Juror No. 45 seated than Juror No. 15 seated. [Trial Court]: Juror 15 is not seated. You’d rather keep Juror 45; is that correct? [Defense]: Correct. And that’s your trial strategy. [Defense]: It is, Your Honor. [Trial Court]: All right. That’s what we’l l do. We’ll keep the jury as it is. (End of conference). (RR II

– 152

- 55) (parentheticals in original).9

As this exchange makes clear, t he trial court ’s remedy for the Batson violation was to reinstate the erroneously

- challenged juror, Juror 15, to the jury panel, which would have the effect of replacing the twelfth

- seated regular juror,
Jur or 45 , with Juror 15

. (RR II

– 152

- 54). Appellant objected to the court’s proposed substitution, but did not move the court to dismiss the array or object to the co urt’s failure to do so , and did not request any alternative form of relief from the trial court . (RR II

– 154). Accordingly , appellant’s complaint on appeal

— that the trial court erred by not dismissing the array and calling a new venire panel

— does not co mport with appellant’s complaint at trial

— that the trial court’s proposed remedy to reinstate Juror 15, which would remove Juror 45 , was objectionable

— and, thus, may not now be asserted for the first time

. Compare (AB

– 9

- 12) with (RR II

– 154); see T EX
. R. A PP
. P . 33.1(a) (establish that, to preserve error for appellate review, a defendant must first present to the trial court a timely request, objection, or motion clearly stating the sp ecific factual and legal basis for the ruling the defendant seeks, and then must fully pursue the matter by either obtaining an adverse ruling from the trial court on the request, objection, or motion, or by objecting to the trial court’s refusal to rule o n the request, objection, or motion. ); Wilson v. State , 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (reiterating that the defendant’s “point of error on appeal must comport wit h the objection made at trial. ” ) ; Broxton v. State , 909 S.W.2d 912, 918 (Tex. Crim. App.10

1995) (ex plaining that a defendant’s request, objection, or motion stating one legal theory may not be relied upon to support a different legal theory advanced for the first time on appeal )

. A ppellant cites no cases which hold that a defendant’s mere objection to t he trial court’s non

- statutory, Batson

- violation remedy of reinstating the erroneously

challenged juror, without also moving the trial court to dismiss the array and summon a new venire panel, or objecting to the trial court’s failure to do so, is adequate to preserve error regarding the trial court’s decision to enact that alternative remedy in lieu of dismiss ing the array and call ing a new one . In other words , appellant fails to provide any legal authority which supports appellant’s suggestion that a def

endant’s mere objection to the trial court’s non

- statutory,
Batson

- violation remedy of reinstating a juror is adequate, without more, to trigger an obligation that the trial court sua sponte dismiss the array and call a new venire panel . Instead, case law demonstrates that a defendant does not preserve error regarding the trial court’s option to remedy a Batson violation by restoring the excluded juror, instead of by enacting the dismissal

- remedy authorized by Article 35.261, when the defendant does not se ek that specific, statutory remedy or object to the trial court’s failure to effect it. See Johnson v. State , 879 S.W.2d 313, 317 (Tex. App.

— Amarillo 1994, no pet.) (concluding that the defendant failed to preserve error for his complaint on appeal that the trial court erred in reinstating11

two jurors rather than dismissing the array and calling a new venire panel when the defendant did not object on that basis at trial); Allen v. State , 811 S.W.2d 673, 678 (Tex. App.

— Dallas 1991, pet. ref’d) (holding that any error by the trial court in not following Article 35.261 was not preserved when “[the defendant] never objected to the trial court’s failure to dismiss the jury and summon a new arra y[, and]...never even suggested to the trial court that article 35.261 controlled [the] situation.”). Accordingly, i f, as appellant now claims on appeal, appellant’s desired cure for the Batson violation regarding Juror 15 was that the trial court dismiss the array and summon a new venire panel, appellant was required to notify the court of appellant’s wishes by clearly and specifically moving the court to execute that remedy, or by expressly objecting to the court’s refusal to do so, to be able to complain of the t rial court’s conduct on appeal. See Johnson , 879 S.W.2d at 317; Allen , 811 S.W. 2d at 678. Aside from the fact that appellant’s failure to request such a remedy demonstrates that appellant did not actually want an entirely new
array , appellant’s failure to seek such amelioration or to object to its absence waived t he matter for appel late review. See T EX
. R. A PP
. P . 33.1(a) ; Johnson , 879 S.W.2d at 317; Allen , 811 S.W.2d at 678; see also Wilson , 71 S.W.3d at 34 9 ; Broxton , 909 S.W.2d at 918

. Appellant’s point of error should b e rejected at this juncture.12

III. T he T rial C ourt Did Not Err by Reinstating Juror 15, Instead of Dismissing the Array and Calling a New Venire Panel, Because Reinstatement is an Appropriate Remedy for a Batson Violation Even assuming that a ppellant preserved error , appellant’s argument fails because the reinstatement of a wrongly

- challenged juror is a well

- accepted, alterna tive remedy to Article 35.261’s statutory remedy of dismissing the array and summoning a new one

. In State ex rel. Curry v. Bowman , 885 S.W.2d 421 (Tex. Crim. App. 1993), the Texas Court of Criminal Appeals observed that the Supreme Court in Batson speci fically declined to prescribe a particular remedy that must be enacted following a Batson violation. Bowman , 885 S.W.2d at 424 ; see Batson , 476 U.S. at 99 (“We decline...to formulate particular procedures to be followed upon a defendant’s timely objection to a prosecutor’s challenges.”) . Rather, the Supreme
Court left the task of creating an appropriate remedy to the state and federal trial courts, and “express[ed] no view on whether it is more appropriate in a particular case, upon a finding of discrimin ation...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 venir e.” Batson , 476 U.S. at 100 n.24 (internal citations omitted) ; Bowman , 885 S.W.2d at 424.13

The Bowman court then determined that the sole remedy provided by Article 35.261 “may be u nconstitutionally restrictive ” and “may defeat the purpose of the protect ion” assured by Batson and its progeny, given that “the evolving interpretations of Batson instruct that a Batson violation is not merely harmful to the parties involved but to the individual veniremember as well”

— who would still not be permitted to partic ipate in the process if dismissal of the array were the only acceptable remedy for the wrongful exclusion of that veniremember in violation of
Batson

. Bowman , 885 S.W.2d at 424

- 25. Accordingly, the Court of Criminal Appeals acknowledged that Article 35.2 61 should be interpreted in a “ flexible ”

manner to vindicate the prospective juror’s right to serve; held that , “where a
Batson claim is sustained[,] the trial court may fashion a remedy in its discretion consistent with Batson and its progeny ” ; and conclu d ed that the trial court’s remedy of reinstating the veniremember that was wrongly

- excluded in violation of
Batson was one such appropriate, alternative correction to the statutory remedy listed in Article 35.261

. Bowman , 885 S.W. 2d at 425; see also Henry v. State , 729 S.W.2d 732, 73 7 (Tex. Crim. App. 1987) (listing the disallowance of a peremptory strike as an acceptable remedy for a Batson violation regarding the erroneously

stricken juror) ; Sims v. State , 768 S.W.2d 863 (Tex. App.

— Texarkana 1989) (concl uding that, given the purpose for which Article 35.261 was enacted, that that statute “does not require in all cases that a new array be called, but that the trial14

judge has the discretion to” either dismiss the array and a call a new one, or
reinstate the excluded juror), pet. dism’d as improvidently granted , 792 S.W.2d 81 (Tex. Crim. App. 1990)

. Following Bowman , numerous Texas appellate courts

— including this
Court

—have affirmed that the remedy established by Article 35.261 is not exclusive and that a tri al court is permitted to correct a Batson violation by reinstating the excluded veniremember to the jury panel , instead. See , e.g., Peetz v. State , 180 S.W.3d 755, 760 (Tex. App.

— Houston [14th Dist.] 2005, no pet.) (“As a [ Batson

- violation] remedy, the court appropria tely empaneled the two wrongfully

- struck jurors.”); Boones v. State , 170 S.W.3d 653 , 656

- 57 (Tex. App.

— Texarkana 2005, no pet.) (finding that the trial court did not abuse its discretion by reinstating a wrongly

- excused juror to the jury, rather than dismi ssing the entire array); Craig v. State , 82 S.W.3d 451, 453 n.1 (Tex. App.

— Austin 2002, pet. ref’d) (“[T]he remedy prescribed by [A]rticle 35.261 is not exclusive and...a trial court is authorized to remedy a Batson error by reinstating the excluded venire member to the trial jury.”); Garza v. State , 10 S.W.3d 765, 769

- 70 (Tex. App.

— Corpus Christi 2000, pet. ref’d) (“[A] trial court’s reinstatement of improperly excluded veniremembers to the jury, rather than dismissing the entire array, is an acceptable re medy for constitutional purposes.”); Perea Velasco v. State , No. 01

- 96

- 01075

- CR, 1999 WL 12792, at *2 (Tex. App.

— Houston [1st Dist.] Jan. 14,15

1999, pet. ref’d) (not designated for publication) (“Instead of dismissing the entire array, a trial judge may sea t a prospective juror against whom a trial prosecutor has incorrectly exercised a peremptory challenge.”); Moss v. State , 877 S.W.2d 895, 897

- 98 (Tex. App.

—

Waco 1994, no pet.) (stating that the remedy provided by Article 35.261 is not exclusive and that on e such allowable alternative remedy is for the trial court to disallow the State’s strike and reinstate the ex cluded juror on the jury panel). For example, in Boones v. State , 170 S.W.3d 653 (Tex. App.

— Texarkana 2005 , no pet.), the State used peremptory ch allenges to strike six of the eight African

- American veniremembers within the “strike range.” Boones , 170 S.W.3d at 656. The defense made a Batson challenge to the State’s six strikes. Id

. The trial court found that the State had race

- neutral reasons f or striking all but one of those six jurors and, to remedy the Batson violation regarding the remaining veniremember , ordered that that juror be reinstated on the jury panel

. Id

. On appeal, as here, the defendant claimed that the trial court’s remedy of reinstating the juror, rather than dismissing the array and summoning a new array, contravened Article 35.261 and, thus, was an abuse of discretion. Boones , 170 S.W.3d at 656

- 57. The Sixth Court of Appeals at Texarkana disagreed and affirmed the trial co urt’s decision, reiterating that Article 35.261’s dismissal

remedy is not the only permissible cure for a Batson violation, and that the16

reinstatement of a wrongly

- excluded juror is an acceptable alternative. Boones , 170 S.W.3d at 657

. Just as in Bowman , Boones , and the other cases cite above , the trial court in appellant’s case did not abuse its discretion by restoring Juror 15 to the jury panel to remedy the Batson violation because the court’s action wa s an acceptable , alternative cure to the relief a uthorized by Article 35.261. See Bowman , 885 S.W.2d at 424

- 25; Peetz , 180 S.W.3d at 760; Boones , 170 S.W.3d at 656

- 57; Craig , 82 S.W.3d at 453 n.1; Garza , 10 S.W.3d at 769

- 70; Perea Velasco , 1999 WL 12792, at *2; Moss , 877 S.W.2d at 897

- 98. A ccordingly, appellant’s arguments to the contrary lack merit , and appellant’s point of error should be overruled.
IV. Even i

f the Trial Court Erred by Reinstating Juror 15, Instead of Dismissing the Entire Array , the Error was Harmless A ppellant was not harmed by the trial court’s error, if any, in restoring Ju ror 15 to the jury, instead of dismissing the array and calling a new venire panel, because appellant’s jury panel consisted entirely of fair

- minded and qualified people, all of whom expressed that they would fo llow the law and the trial court’s
instructions , and that they would render a true verdict based upon the evidence presented, or the lack thereof. See (RR II

– 22

- 28, 156 ) . Additionally, appellant’s jury panel was racially diverse and contained eight peo ple of a minority race, three of whom were African

- Americans , like appellant . (RR II

– 144, 147). The trial17

court’s reinstatement of Juror 15 and proposed substitution of Juror 15 for the twelfth

- seated regular juror, Juror 45, did nothing to alter the r acial composition of appellant’s jury panel, given that both Jurors 15 and 45 were African

- American

women , or to otherwise harm appellant

. See (RR II

– 148, 154). In fact , the trial court’s resolution of the Batson violation in this case actually benefitt ed appellant , rather than harming him. The trial court permitted appellant to craft the jury more to appellant’s favor by granting appellant’s request that Juror 45 remain on the panel, in lieu of the trial court’s remedy that Juror 15
be reinstated and t he twelfth juror empaneled, Juror 45, be excused, when appellant explained to the court that , for reasons related to trial strategy, appellant preferred to have Juror 45 seated on the jury panel inste ad of Juror 15

. (RR II

– 154). The result of this was that appellant was allowed the choice of having either Juror 15 or Juror 45 on appellant’s jury panel, which put appellant in a better position tha n if the State had never challenged Juror 15 to begin with , given that, in that scenario, Juror 15 would h ave been empanelled from the outset and Juror 45 , appellant’s preferred jurist, would not have been reached

. Thus, even if the trial court’s remedy of reinstating Juror 15 to appellant’s jury was error, the error was harmless under the circumstances. Appell ant’s sole point of error should be overruled.

       

      18 CONCLUSION AND PRAYER For the foregoing reason s , the State respectfully submits that even if appellant preserved error regarding his claim that the trial court abused its discretion by rein stating a wrongly

- excluded juror following a Batson violation, instead of dismissing the array and calling a new venire panel, the trial court’s remedy was a proper alternative to the statutory relief afforded by Article 35.261

. Further, appellant benefit ted from the trial court’s remedy, rather than being harmed by it. Thus, the State respectfully prays that this Court will overrule appellant’s sole point of error and wil l affirm appellant’s conviction and sentence

.

Respectfully submitted,

D EVON A NDERSON District Attorney Harris County, Texas

/ S / Melissa Hervey
M ELISSA P. H ERVEY Assistant District Attorney Harris County, Texas State Bar Number: 24053741 1201 Franklin Street , Suite 600 Houston, Texas 77002 Telephone (713) 755

- 5826 Fax Number (713) 755

- 5809 Hervey_Melissa@dao.hctx.net19 CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i) , the undersigned attorney certifies that the re are 4,000 words in the foregoing computer

- generated document, based upon the representation provided by Microsoft Word, the word processing program that was used to cr eate the document , and excluding the portions of the document exempted by Rule 9.4(i)(1)

.

/ S / Melissa Hervey
M ELISSA P. H ERVEY Assistant District Attorney Harris County, Texas State Bar Number: 24053741 1201 Franklin Street, Suite 600 Houston, Texas 77002 Telephone (713) 755

- 5826 Fax Number (713) 755

- 5809 Hervey_Melissa@dao.hctx.net20 CERTIFICATE OF SERVICE This is to certify that the undersigned counsel has directed the e - filing system eFile.TXCourts.gov to serve a true and correct copy of the foregoing document upon Allen C. Isbell , appellant’s attorney of record on appeal , on April 29 , 201 5 , at the following e

- mail address, through the electronic service system provide d by eFile.TXCourts.gov: allenisbell@sbcglobal.net

/ S / Melissa Hervey
M ELISSA P. H ERVEY Assistant District Attorney Harris County, Texas State Bar Number: 24053741 12 01 Franklin Street , Suite 600 Houston, Texas 77002 Tel ephone (713) 755

- 5826 Fax Number (713) 755

- 5809 Hervey_Melissa@dao.hctx.net