Rodashian E. Degar v. State

ACCEPTED
01-14-00660-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
1/27/2015 3:31:53 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00660-CR
IN THE COURT OF APPEALS FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
FIRST DISTRICT 1/27/2015 3:31:53 PM
CHRISTOPHER A. PRINE
Clerk
HOUSTON, TEXAS
NO. 1377034
IN THE TRIAL COURT
230TH JUDICIAL DISTRICT
HARRIS COUNTY, TEXAS
RODASHIAN E. DEGAR § APPELLANT
VS. §
THE STATE OF TEXAS § APPELLEE
BRIEF FOR APPELLANT
ALLEN C. ISBELL
202 Travis, Suite 208
Houston, Texas 77002
713/236-1000
Fax: 713/236-1809
STATE BAR NO. 10431500
COUNSEL ON APPEAL
NAMES AND ADDRESSES OF ALL PARTIES
AT THE TRIAL COURT’S FINAL JUDGMENT
Trial Judge
Honorable Jay Burnett, Judge Presiding
230th District Court
1201 Franklin, 16th Fl., Houston, Texas 77002
Appellant/Defendant
Mr. Rodashian E. Degar
#01944140
Luther Unit
1800 Luther Dr., Navasota, Texas 77868
Appellant’s Counsel
Mr. Allen C. Isbell - Counsel on Appeal
202 Travis, Suite 208, Houston, Texas 77002
Ms. Lisa Kay Andrews - Counsel at Trial
1207 S. Shepherd, Houston, Texas 77019
Ms. Wendy Baker - Counsel at Trial
21 Waterway, #300, The Woodlands, Texas 77380
Attorneys for the State of Texas
Mr. Alan Curry - Assistant District Attorney on Appeal
1201 Franklin, Ste. 600, Houston, Texas 77002
Ms. Lauren Bard - Assistant District Attorney at Trial
1201 Franklin, 6th Fl., Houston, Texas 77002
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TABLE OF CONTENTS
PAGE
Names and Addresses of All Parties at the Trial Court’s Final Judgment
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . iv
Statement of the Nature of the Case . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Point of Error Number One
The trial court abused its discretion in refusing to dismiss the array
pursuant to Texas Code of Criminal Procedure, Art. 35.261 after the
trial court found that the State had committed a “Batson” violation,
and appellant objected to the only non-statutory remedy
formulated by the trial court, and appellant objected to the jury
panel which is the statutory remedy when a “Batson” violation
occurs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Statement of Facts Point of Error Number One . . . . . . . . . . . . . . . . 7
Summary of the Argument Point of Error Number One . . . . . . . . . . . 9
Argument and Authorities Point of Error Number One . . . . . . . . . . . 9
Conclusion and Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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INDEX OF AUTHORITIES
CASES PAGE
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-12
Boones v. State, 170 S.W.3d 653 (Tex. App. Texarkana 2005; writ of
mandamus denied 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Saldivar v. State, 980 S.W.2d 475 (Tex. App. Houston [14th Dist.] 1998,
pet.ref’d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
State ex rel. Curry v. Bowman, 885 S.W.2d 421 (Tex. Crim. App. 1993)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
STATUTES
Texas Code of Criminal Procedure, Art. 35.261 . . . . . . . . . . . . . . 7, 10-12
STATEMENT REGARDING ORAL ARGUMENT
Oral argument is waived.
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TO THE HONORABLE COURT OF APPEALS:
COMES NOW RODASHIAN E. DEGAR, appellant, by and through his
appointed attorney of record, ALLEN C. ISBELL, and files this Brief in support
of his prayer for reversal of his conviction.
Statement of the Nature of the Case
This is an appeal arising from a conviction for Murder in the 230th District
Court of Harris County, Texas, the Honorable Jay Burnett, Visiting Judge
Presiding. The jury found appellant guilty. The judge sentenced appellant to
twelve (12) years imprisonment, in the Texas Department of Criminal Justice,
Institutional Division. No Motion for New Trial was filed. Appellant gave
written Notice of Appeal on July 29, 2014.
Statement of Facts
At approximately 1 p.m. on May 15, 2012, Houston homicide
investigator Jeffrey Rexroad accompanied Sergeant Jeff Rohling to the scene
of a shooting at Beran and Quentin Drive in Houston, Harris County, Texas.
The complainant, Chase Walker, had been found in the street. He had been
shot. The police learned the description of the suspect’s vehicle, and they
learned that possibly four black males were involved in this homicide. Nearby,
the police found a 9 mm handgun, $509 in cash, an iPad, the victim’s wallet
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and a cell phone. The police obtained a search warrant to retrieve the data
from the cell phone. This data led police to an apartment complex called
Cuney Homes near Yates High School (R.R. 3 111-116, 122-124, 129, 185).
The managers at the complex identified a picture on the phone as
Ashley Johnson, who lived in the complex with a man named Bobby Pal. The
police went to their apartment. The police recovered a .45 caliber handgun
from the apartment. Ashley Johnson identified the phone as belonging to her
brother, Kenya Jackson. Jackson gave the police the name of Anthony
Duhon. Duhon gave the police the name of Maurice White. White gave
police the name of Rodashian Degar, the appellant (R.R. 3, 128-131).
The police learned that the shooting had occurred in the backseat of a
green, 4-door Pontiac which was being driven by Maurice White. Kenya
Jackson sat in the front passenger seat. Anthony Duhon sat behind the driver
and appellant sat behind Kenya Jackson. At one point, the complainant,
Chase Walker, got into the back seat behind the driver. This made Anthony
Duhon move towards the center of the back seat (R.R. 3, 132-133).
Chase Walker survived for approximately 22 hours after being shot.
The hospital did not perform any toxicology tests prior to fluids and blood
transfusions being administered in an attempt to save Walker’s life. By the
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time Dr. Mary Lynn Anzolone performed an autopsy on May 17, 2012, she did
not have any good samples to submit for tests. Her examination of the body
revealed a single gunshot wound to the head, and minor abrasions on
Walker’s arm, thigh, knee and shin which were consistent with him falling out
of a vehicle onto pavement. She recovered a bullet and two fragmented
pieces. Dr. Anzolone determined the cause of death to be a gunshot wound
to the head and classified the death as a homicide (R.R. 3, 27, 38-48, 54-55).
The police recovered the vehicle which Maurice White drove. White’s
father had taken the vehicle to a paint shop to be repainted. April Palatino
with the Houston Police Department Crime Scene Unit, examined the vehicle
on May 31, 2012. She discovered that it had been green in color, but was
recently and hurriedly repainted white. Although the car had been cleaned,
Luminal spray revealed the presence of blood in the backseat area behind the
driver’s seat . Samples of the blood stained areas in the vehicle matched the
complainant’s DNA (R.R. 3, 95-101, 103, 134-135).
On January 30, 2013, Officer Rexroad obtained pocket warrants for
Maurice White, Kenya Jackson, Anthony Duhon and appellant for tampering
with evidence. Appellant gave a recorded statement in which he admitted that
he shot Chase Walker with a Glock 17 handgun. But, appellant maintained
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that he had acted in self-defense or in defense of the others (R.R. 135-151,
165-166, 188-189).
The primary witness against appellant at trial was Maurice White. White
testified that on May 15, 2012, he left school without permission to do
something for his mother. Anthony Duhon called him from school around
noon, and asked White to take him to buy some marijuana. White agreed.
He picked up Duhon, Kenya Jackson and appellant at the back of the school.
White knew that Duhon had money to buy marijuana for himself, and he knew
that appellant had about $300 to purchase marijuana for himself and Kenya
Jackson. Maurice was to be paid money for gas (R.R. 3, 13-20).
Chase Walker’s friend, Phillip Green, testified that they were smoking
marijuana when Chase received several phone calls. Green heard Chase
discuss selling marijuana to someone. Green drove Chase home between
noon and 1:00 p.m. (R.R. 4, 119-122).
White drove to a house where the complainant was standing in the
driveway, flagging them down. After grabbing a backpack from his truck,
Chase Walker got into the backseat of White’s vehicle. He let the others smell
the marijuana he had in a glass jar. Walker told White to drive slowly around
the block as he and the others discussed amounts and price. Duhon became
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upset, saying that he was not going to pay that much for marijuana. This
annoyed Walker because Walker and Duhon had discussed the price over the
phone (R.R.4, 28, 88-89).
At this point a scale that had been placed on the middle console fell
beneath White’s seat. As White reached for the scale, he heard appellant
say, “Nigger, get out of the car.” In his statement to the police, White said
that when he glanced into the back seat he saw Chase Walker pull a gun out
of his backpack, and he saw Duhon grab Walker’s arm in a struggle over the
gun. He heard a gunshot, but he was no longer looking into the backseat.
When he glanced back again, he saw Chase Walker in the corner with his
head down and bleeding. Both Anthony Duhon and appellant looked to be in
shock (R.R. 4, 30-32, 67-70, 74, 95).
White’s vehicle automatically locked the back doors when the vehicle is
moving. So, no one could get out of the backseat area while the vehicle was
moving. After hearing the gunshot, White slowed down and hit “the unlock
button.“ When the vehicle stopped, Jackson and appellant got out and ran a
short distance away. White got out and opened the rear passenger door.
This caused Chase Walker to fall half-way out of the vehicle. White pulled
Walker’s legs out and closed the door. Then, everyone got back into the
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vehicle and drove away, leaving Chase Walker lying in the street. White
dropped Jackson and appellant off near the high school. Jackson took the
glass jar of marijuana with him, which he later sold. Jackson brought the
money to White. White and Duhon went to Duhon’s house to clean the car.
When White told his father what had happened, his father said he would take
care of things. The next day, appellant told White that he only did what he
had to do because Chase Walker had pulled a gun on him, and appellant was
trying to protect himself and the others (R.R. 4, 25-26, 32-36, 38-44, 57, 67-
70, 80-82, 93). At trial White testified that he never actually saw Chase
Walker reach into the bag for a gun, and that he could not testify as to who
pulled a gun first. He did, however, reiterate that both Duhon and appellant
told him that Chase Walker pulled out a gun first, and that is why appellant
pulled his gun. White testified that he did see Duhon struggling with Chase
Walker over a gun (R.R. 4, 74).
Firearms expert, Donna Eudaley, examined the bullet and fragments
recovered during autopsy and the two firearms, a .45 caliber handgun found
at the apartment of Ashley Johnson and Bobby Pal, and the firearm found on
the street near Chase Walker (R.R. 4, 103-104). She found that the bullet
was a member of the .38 caliber/9 mm family. The land and groove markings
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were consistent with a Glock 17 firearm which appellant said he had used
(R.R. 4, 107-110). She determined that the .45 caliber handgun had nothing
to do with the shooting of Chase Walker (R.R. 4, 103), and that the firearm
found near Chase Walker did not fire the bullet that caused Walker’s death
(R.R. 4, 113-115).
Point of Error Number One
The trial court abused its discretion in refusing to dismiss the array
pursuant to Texas Code of Criminal Procedure, Art. 35.261 after the trial
court found that the State had committed a “Batson” violation, and
appellant objected to the only non-statutory remedy formulated by the
trial court, and appellant objected to the jury panel which is the statutory
remedy when a “Batson” violation occurs.
Statement of Facts
Point of Error Number One
After the voir dire and each party had made its peremptory strikes, the
trial court called the names of the first twelve people who had not been struck
by either side. The trial court asked if there were any objections to these
twelve people being impaneled as jurors. Appellant’s counsel objected
because the State had struck numbers 15, 16 and 29 in violation of Batson
v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) (R.R. 2, 142,
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146-147; C.R. I, 88, 91).
After hearing the State’s reasons for striking these jurors, and after
questioning juror number 15, the trial court upheld the Batson challenge with
regard to juror number 15. The trial court found that the reasons which the
State gave for striking number 15 were reasons which the State found
unobjectionable with regard to juror number 45, an African-American woman
who had been the twelfth person called to be seated on the jury.
Having found a “Batson” violation, the trial court proposed to seat
number 15 as a juror, and remove number 45 from the jury. Appellant’s trial
counsel objected to the trial court’s proposed remedy because it would
remove an African-American woman from the jury. Appellant requested the
only statutory remedy for a “Batson” violation:
THE COURT: I will grant the Batson and seat the
juror. That’s it.
MS. ANDREWS: Okay. So, we seat her and then
what do we do after that?
(Off the record discussion)
MS. ANDREWS: I would object to the panel - - the
proposed remedy is to seat Juror No. 15, which then removes
Juror Number 45 who is also an African-American female. So, I
would object to the panel with that remedy.
THE COURT: Okay. That’s overruled (R.R. 2, 142-
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143, 147-154).
Summary of the Argument
Point of Error Number One
The trial court sustained the defendant’s “Batson” objection to jury panel
number 15. The trial court proposed a non-statutory remedy. That remedy
was to put number 15 on the jury which would bump another African-American
female off the jury. Appellant did not acquiesce in this proposed non-statutory
remedy, and objected to the panel array.
A non-statutory remedy to a Batson violation is permitted, if the
defendant acquiesces in the remedy. This case involves the novel issue
whether the statutory remedy should be applied, if the defendant objects on
good grounds to the non-statutory remedy proposed by the trial court.
Argument and Authorities
Point of Error Number One
The Batson challenges were timely. The jury was not sworn until after
the trial court had ruled on the Batson challenges. See and compare: Saldivar
v. State, 980 S.W.2d 475 (Tex. App. Houston [14th Dist.] 1998, pet. ref’d).
The issue before this court is the proper remedy when the court has
sustained a Batson challenge by the defense, and the defense counsel does
not acquiesce in the non-statutory remedy formulated by the court for good
reasons, and objects to the jury panel which is the statutory remedy.
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The Texas Code of Criminal Procedure, Art. 35.261 prohibits a
peremptory challenge based on race, and it provides the remedy if this statute
is violated by the attorney representing the State.
Article 35.261. Peremptory Challenges Based on Race Prohibited
(a) After the parties have delivered their lists to the clerk
under Article 35.26 of this code and before the court has
impanelled the jury, the defendant may request the court to
dismiss the array and call a new array in the case. The court shall
grant the motion of a defendant for dismissal of the array if the
court determines that the defendant is a member of an identifiable
racial group, that the attorney representing the state exercised
peremptory challenges for the purpose of excluding persons from
the jury on the basis of their race, and that the defendant has
offered evidence of relevant facts that tend to show that
challenges made by the attorney representing the state were
made for reasons based on race. If the defendant establishes a
prima facie case, the burden then shifts to the attorney
representing the state to give a racially neutral explanation for the
challenges. The burden of persuasion remains with the defendant
to establish purposeful discrimination.
(b) If 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.
In State ex rel. Curry v. Bowman, 885 S.W.2d 421 (Tex. Crim. App.
1993), the Court of Criminal Appeals addressed whether the mandatory
remedy contained in Texas Code of Criminal Procedure, Art. 35.261(b) is
exclusive, if the trial court sustains a Batson challenge and the defendant
acquiesces in a non-statutory remedy. In that case, the State wanted the
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Court of Criminal Appeals to mandamus the trial judge to comply with the
mandate of this statute, rather than order two of the struck venire members
reinstated to serve as jurors.
The issue was whether the prosecution is entitled to the dismissal of the
array pursuant to Article 35.261, when a defense Batson motion has been
sustained and the defendant acquiesces to a remedy other than the one
prescribed by statute.
The Court of Criminal Appeals noted that the United States Supreme
Court in Batson did not prescribe a particular remedy but left it to state and
federal courts to fashion their own remedy. To codify and implement Batson
in Texas, the Legislature enacted Article 35.261 and elected that the sole
remedy would be to discharge the jury and call a new array. Id., at 424. The
Court of Criminal Appeals noted that the defendant based his objection upon
the equal protection rights of the excluded jurors. The defendant did not
expressly assert any statutory rights. Also, the Court noted that the defendant
had suggested an alternative remedy:
“The State had three peremptory challenges and used all of their
peremptory challenges on black males on the jury panel. And I
move that you quash the panel or otherwise disallow their strikes.”
Id., at 424
The Court of Criminal Appeals concluded that because the defendant
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had requested an alternative relief not available under the statute, he was not
relying solely on Article 35.261. The Court of Criminal Appeals held that where
a Batson claim is sustained the trial court may fashion a remedy, in its
discretion, that is consistent with Batson and its progeny, if the defendant
acquiesces in the non-statutory remedy. Similarly, in Boones v. State, 170
S.W.3d 653 (Tex. App. Texarkana 2005; writ of mandamus denied 2007), the
trial court granted the defendant’s Batson challenge, and the defendant
acquiesced in the trial court’s remedy.
The instant case is distinguishable. Appellant did not acquiesce in the
Court’s proposed remedy for a very good reason. The proposed remedy
would have removed another qualified African-American woman from the jury,
whom the appellant preferred to sit as a juror. The proposed remedy allowed
the State to violate Batson with impunity. Defense counsel faced a “Hobson
Choice,” either lose a preferred African-American female juror or waive the
Batson error (R.R. 2, 154). Under the circumstances in this case, the trial
court’s only non-statutory remedy was not appropriate. The trial court should
have dismissed the panel, which is the statutory remedy requested by
appellant.
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Conclusion and Prayer
WHEREFORE, PREMISES CONSIDERED, appellant prays that the
judgment of conviction be reversed and the cause remanded for new trial.
Respectfully submitted,
/s/ Allen C. Isbell
ALLEN C. ISBELL
202 Travis, Suite 208
Houston, Texas 77002
713/236-1000
Fax: 713/236-1809
email: allenisbell@sbcglobal.net
STATE BAR NO. 10431500
COUNSEL ON APPEAL
Certificate of Service
I hereby certify that on this 27th day of January, 2015, a true and correct
copy of the foregoing Brief for Appellant has been sent to the District
Attorney's Office, Appellate Division, and to Mr. Rodashian E. Degar,
appellant.
/s/ Allen C. Isbell
ALLEN C. ISBELL
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Certificate of Compliance
The undersigned attorney on appeal certifies this brief is computer
generated and consists of 3,261 words. Counsel is relying on the word count
provided by the Word Perfect computer software used to prepare the brief.
/s/ Allen C. Isbell
ALLEN C. ISBELL
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