Donald Wayne Simmons v. State

Simmons v. State

IN THE

TENTH COURT OF APPEALS

No. 10-91-181-CR

     DONALD WAYNE SIMMONS,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 87th District Court

Freestone County, Texas

Trial Court # 91-063-CR

O P I N I O N

      Donald Simmons appeals his conviction for aggravated sexual assault. Simmons was found guilty by a jury, and, as a result of two prior convictions that enhanced the range of punishment, the court assessed punishment at seventy-five years in prison. In a single point, Simmons contends that the trial court erred in overruling his challenges for cause of two prospective jurors. He argues that there was established in the minds of the challenged jurors such a conclusion as to the guilt or innocence of the defendant as would influence them in their action in finding a verdict.

      Before considering the substantive issues in Simmons' single point of error, we must determine whether he has properly preserved his complaint for appellate review. In Harris v. State, the Court of Criminal Appeals delineated the requirements for preserving a complaint of error due to a trial court's denial of a defense challenge for cause. Simmons properly exercised two of his ten peremptory strikes against the challenged jurors after the court denied his challenges for cause. However, as the State points out in its brief, Simmons failed to properly preserve his complaint when he did not request additional peremptory challenges and point out to the trial court that he was forced to try the case with a juror or jurors against whom he would have exercised a peremptory challenge had he had additional strikes. We overrule Simmons' single point of error.

      We affirm the judgment.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed September 9, 1992

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