Jimmy Parr v. State ( 2008 )

IN THE
TENTH COURT OF APPEALS
No. 10-07-00207-CR
JIMMY PARR,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2003-667-C2
MEMORANDUM OPINION
Appellant was convicted by a jury of the felony offense of robbery. He pled true
to an enhancement paragraph and the jury assessed his punishment at confinement in
the institutional division for a period of 17 years and assessed a $1,000 fine. He
appealed.
Appellant and his co-defendant followed the victim from an ATM to her
apartment. When she stepped out of her car, they approached her on foot. Appellant
grabbed her purse, and when she refused to release it, he held a gun to the side of her
neck and took the purse. The gun was later determined to be a BB gun. The sufficiency
of the evidence is not challenged.
Appellant raises two issues on appeal. First, that his bond was improperly raised
during trial, and second, that he was denied a complete Batson hearing at which he
could cross-examine the prosecutor regarding his reasons for exercising peremptory
strikes against two African–American venire members. We overrule the first issue and
abate the appeal for the trial court to complete the Batson hearing.
During the trial, the court became concerned about the sufficiency of the
appellant’s bond. After a hearing at which a witness testified that appellant had
threatened him and his family, the court raised appellant’s bond from $10,000 to
$75,000, and he was placed into custody for the remainder of the trial. Appellant
contends that this action constituted an abuse of the trial court’s discretion. While the
amount of bond set by a trial court can be appealed prior to trial, once a defendant is
convicted, any complaint about that bond becomes moot. Martinez v. State, 826 S.W.2d
620 (Tex. Crim. App. 1992). Appellant’s issue here is similarly moot and is accordingly
overruled.
In his second issue, appellant complains that he was not given an opportunity to
cross-examine the prosecutor after he offered his race–neutral reasons for striking two
African–American venire members.
After both sides had turned in their lists of peremptory strikes, but before the
jury was seated and sworn, appellant objected to the state’s striking of two African–
American jurors, Nos. 31 and 28. The court then asked for the state’s response. The
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prosecutor then offered as reasons for striking No. 31 that her husband had a criminal
history and that her answer to one specific question indicated that she had been
involved in “situations” in the past. As for No. 28, the state said they struck him
because he had not revealed a prior DWI conviction. After each explanation, the trial
court stated that the Batson challenge was denied. Appellant’s attorney then requested
a hearing on the “third phase of the Batson trial,” which, under questioning from the
judge, he explained as cross-examining the prosecutor. The judge denied that request
and proceeded with the trial.
The exclusion of a venire-member based on race violates the Equal Protection
Clause. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Once a
Batson challenge is made, there is a three-step procedure that the trial court employs to
determine the validity of the challenge. First, the defendant must establish a prima facie
showing of purposeful discrimination by the prosecutor. Second, once the prima facie
case is made, the prosecutor must come forward with a race-neutral reason for the
peremptory challenge. Finally, once the prosecutor offers such an explanation, the
defendant must rebut the explanation by showing that it is a mere pretext for an
improperly motivated action.
An integral part of the Batson procedure is the right to cross-examine the
prosecutor once he has stated his racially neutral reason for challenging the jury.
Salazar v. State, 795 S.W.2d 187, 192-93 (Tex. Crim. App. 1990). The Salazar court
explained:
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Cross-examination is necessary in a Batson hearing because once the State
has met its burden of coming forward with neutral explanations for its
peremptory strikes, the burden to show purposeful discrimination shifts
back to the defendant to impeach or refute the neutral explanation or
show that it is merely a pretext.
Id. at 192 (citations omitted).
In the instant case, the trial court made an implicit finding that a prima facie case
had been made when he requested the State to respond and then heard their two race–
neutral explanations. After each of those explanations, he denied the challenge.
Appellant’s trial attorney then requested a hearing on the “third phase of the Batson
trial.” After clarifying that the defense attorney wanted to cross-examine the prosecutor
on the stand, the trial court refused to allow it. This action violated the holding of
Salazar.
The proper remedy for a violation of the procedures for a Batson hearing is to
abate the appeal and remand the case to the trial court to conduct a further hearing.
Guzman v. State, 85 S.W.3d 242, 255 (Tex. Crim. App. 2002). Consequently, we abate the
appeal and remand the case to the trial court to conduct a further Batson hearing which,
at a minimum, will provide the appellant an opportunity to cross-examine the
prosecutor.
The appeal is abated.
KEN ANDERSON
District Judge
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Before Chief Justice Gray,
Justice Vance, and
Judge Anderson1
(Chief Justice Gray dissenting)
Abated
Opinion delivered and filed November 5, 2008
Do not publish
[CR25]
1 Ken Anderson, Judge of the 277th District Court of Williamson County, sitting by assignment of the
Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the Government Code.
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