George Louis Duke v. State ( 1998 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

---

NO. 03-97-00355-CR

---

George Louis Duke, Appellant

v.

The State of Texas, Appellee

---

FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT NO. 8640, HONORABLE H. R. TOWSLEE, JUDGE PRESIDING

---

Appellant, George Louis Duke, pleaded guilty before a jury to aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021 (West Supp. 1998). The jury assessed punishment at ninety-nine years in the Texas Department of Criminal Justice Institutional Division. On appeal, appellant raises three points of error. Finding that appellant has not raised any issue requiring reversal, we will affirm.

DISCUSSION

By three points of error, appellant challenges the use of the State's peremptory strikes against potential Hispanic jury members, attacks the voluntariness of his confession, and claims that the trial court committed reversible error in failing to sustain his challenge for cause to a prospective juror. Appellant, however, entered a nonnegotiated guilty plea, thereby removing his right to appeal these issues. Where there is no plea bargain and a plea of guilty is voluntarily and understandingly made, all nonjurisdictional defects, including claimed deprivations of federal due process, are waived. See Shallhorn v. State, 732 S.W.2d 636, 637 (Tex. Crim. App. 1987); Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim. App. 1972). Before the punishment phase began, the trial court examined appellant outside the presence of the jury as to the voluntariness of his plea. When the trial court asked appellant whether he was freely and voluntarily entering his plea of guilty, appellant responded "Yes, I am." Appellant, therefore, cannot complain of these matters on appeal.

Even assuming that appellant could complain of the State's use of peremptory strikes under Batson v. Kentucky, 476 U.S. 79 (1986), or of the trial court's refusal to strike a juror for cause, appellant has failed to preserve any error. To preserve an issue for appeal, there must have been a timely objection specifically stating the legal basis for the objection. See Tex. R. App. P. 33.1. See also Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990); Parra v. State, 935 S.W.2d 862, 869 (Tex. App.--Texarkana 1996, no writ). The Texas Court of Criminal Appeals has held that a Batson objection is timely if the defendant makes the motion before the jury is sworn and the remainder of the venire is dismissed. See Henry v. State, 729 S.W.2d 732, 736-37 (Tex. Crim. App. 1987). The Legislature enacted a statute requiring the objection to be raised before the jury is impanelled. See Tex. Code Crim. Proc. Ann. art. 35.261 (West 1989). Appellant does not cite this Court to any evidence that he raised a Batson challenge before the jury was impanelled or sworn. In his brief, appellant argues that the prosecutor's explanation for striking three Hispanic jurors was not racially neutral. This argument, however, is based on testimony that the prosecutor gave at the hearing on the motion for new trial, and appellant may not use a hearing on a motion for new trial to develop a record for a Batson claim. See Prosper v. State, 788 S.W.2d 625, 627 n.2 (Tex. App.--Houston [14th Dist.] 1990, pet. ref'd). Consequently, under either standard, appellant has failed to preserve error.

Regarding appellant's complaint about striking a juror for cause, error is preserved only if appellant used all his peremptory strikes, asked for and was refused additional peremptory strikes, and was then forced to take an identifiable, objectionable juror whom he would have struck had the trial court granted his challenge for cause or granted him additional peremptory strikes. See Lewis v. State, 911 S.W.2d 1, 4 (Tex. Crim. App. 1995); Bigby v. State, 892 S.W.2d 864, 882-83 (Tex. Crim. App. 1994). Although it appears that appellant used all of his peremptory strikes, the record does not reflect that appellant requested additional peremptory strikes. Further, appellant did not declare at trial and does not claim on appeal that he was forced to accept a specific juror as a result of exhausting his peremptory strikes and the denial of additional ones.

CONCLUSION

For the reasons stated above, appellant's first, second, and third points of error are overruled. The judgment of the trial court is affirmed.

Marilyn Aboussie, Justice

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: February 20, 1998

Do Not Publish

AN STYLE="font-family: CG Times Regular"> By three points of error, appellant challenges the use of the State's peremptory strikes against potential Hispanic jury members, attacks the voluntariness of his confession, and claims that the trial court committed reversible error in failing to sustain his challenge for cause to a prospective juror. Appellant, however, entered a nonnegotiated guilty plea, thereby removing his right to appeal these issues. Where there is no plea bargain and a plea of guilty is voluntarily and understandingly made, all nonjurisdictional defects, including claimed deprivations of federal due process, are waived. See Shallhorn v. State, 732 S.W.2d 636, 637 (Tex. Crim. App. 1987); Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim. App. 1972). Before the punishment phase began, the trial court examined appellant outside the presence of the jury as to the voluntariness of his plea. When the trial court asked appellant whether he was freely and voluntarily entering his plea of guilty, appellant responded "Yes, I am." Appellant, therefore, cannot complain of these matters on appeal.

Even assuming that appellant could complain of the State's use of peremptory strikes under Batson v. Kentucky, 476 U.S. 79 (1986), or of the trial court's refusal to strike a juror for cause, appellant has failed to preserve any error. To preserve an issue for appeal, there must have been a timely objection specifically stating the legal basis for the objection. See Tex. R. App. P. 33.1. See also Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990); Parra v. State, 935 S.W.2d 862, 869 (Tex. App.--Texarkana 1996, no writ). The Texas Court of Criminal Appeals has held that a Batson objection is timely if the defendant makes the motion before the jury is sworn and the remainder of the venire is dismissed. See Henry v. State, 729 S.W.2d 732, 736-37 (Tex. Crim. App. 1987). The Legislature enacted a statute requiring the objection to be raised before the jury is impanelled. See Tex. Code Crim. Proc. Ann. art. 35.261 (West 1989). Appellant does not cite this Court to any evidence that he raised a Batson challenge before the jury was impanelled or sworn. In his brief, appellant argues that the prosecutor's explanation for striking three Hispanic jurors was not racially neutral. This argument, however, is based on testimony that the prosecutor gave at the hearing on the motion for new trial, and appellant may not use a hearing on a motion for new trial to develop a record for a Batson claim. See Prosper v. State, 788 S.W.2d 625, 627 n.2 (Tex. App.--Houston [14th Dist.] 1990, pet. ref'd). Consequently, under either standard, appellant has failed to preserve error.

Regarding appellant's complaint about striking a juror for cause, error is prese