Elias Diaz Balderas v. State

Affirmed and Memorandum Opinion filed August 31, 2006 Affirmed and Memorandum Opinion filed August 31, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00619-CR ____________ ELIAS DIAZ BALDERAS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 248th District Court Harris County, Texas Trial Court Cause No. 988,521 M E M O R A N D U M   O P I N I O N Appellant entered a plea of not guilty to the offense of aggravated sexual assault of a child. He was convicted and the jury assessed punishment at fifty years= confinement in the Texas Department of Criminal JusticeCInstitutional Division. In a single issue, appellant contends the judgment should be reversed because the trial court erred in denying appellant the opportunity to cross-examine the prosecutor during a Batson[1] hearing. We affirm. Background The jury in this case was selected from the first forty-three veniremembers. An alternate jury was selected from veniremembers forty-four through forty-six. After the jury was chosen, but before it was sworn, appellant objected to the composition of the jury based on article 35.26(1) of the Texas Code of Criminal Procedure. Appellant objected because he is a member of a recognized ethnic minority group in that he is Hispanic, and the prosecutor used peremptory challenges to strike four members of the venire who were also members of recognized ethnic minority groups. The trial court reviewed the racial make-up of the venire for the record, and determined there was no Aindicia of any type of racial slashing based on any racial reason.@ Despite finding no prima facie showing that the prosecutor exercised peremptory strikes on the basis of race, the trial court requested the prosecutor to articulate his reasons for striking the veniremembers Ain an abundance of caution.@ After the prosecutor articulated his reasons for striking the challenged veniremembers, the trial court stated: For purposes of the record, I make the finding that I didn=t find anybody was struck for that reason; however, I did ask them. I do not find any cause on Batson challenge. I will accept the jury as it is. Following the trial court=s ruling, there was a discussion between the prosecutor, defense counsel, and the trial court concerning the alternate jury panel: [Defense counsel]: Judge, additionally, a different issue which I just became aware of, whether the State said they did not strike No. 44. [Prosecutor]: We did not say that. I said I don=t know who I struck. We wanted to get 46. [Defense counsel]: I=d like to know if the State did strike 44 because if they didn=t, then 44 should be the alternate. THE COURT: They did strike 44. What he was saying and I understood there were three people, three people who you could strike. Everyone was a minority. He struck a minority. You struck a minority. That left a minority. No matter who he struck, it would have been the same challenge by you. So he=s saying he did not know who he struck. I wanted to look at that list and he struck 44. [Defense counsel]: Would I be permitted to cross-examine the prosecutor? THE COURT: No. I find it was in good cause. I only ask those questions in the event that somebody 15 years from now reads a record and doesn=t know the reason for it. That=s the only reason. If somebody disagrees with my original finding, it=s written down there. So, no, you may not. At that time, the trial court dismissed the veniremembers that had not been chosen to serve on the jury. Discussion To challenge the State=s use of peremptory strikes under Batson, a defendant must first make a prima facie showing that the State exercised peremptory strikes on the basis of race. See Batson, 476 U.S. at 96; 106 S.Ct. at 1723; Harris v. State, 827 S.W.2d 949, 955 (Tex. Crim. App. 1992). After a defendant makes a prima facie showing of purposeful discrimination, the State must then provide a race neutral explanation for striking the prospective jurors in question. Harris, 827 S.W.2d at 955. If the State provides a race neutral explanation for its strikes, the defendant must rebut the State=s explanation or show the explanation was merely a sham or pretext. Williams v. State, 804 S.W.2d 95, 101 (Tex. Crim. App. 1991). When a defendant asks to cross-examine the prosecutor on the reasoning behind his explanations, the trial court errs in failing to permit cross-examination. Bausley v. State, 997 S.W.2d 313, 316B17 (Tex. App.CDallas 1999, pet. ref=d). Here, appellant failed to preserve the error. Although appellant asked to cross-examine the prosecutor, he failed to make an offer of proof or bill of exception showing what questions he would have asked the prosecutor had he been allowed to cross-examine him. Appellant, therefore, failed to preserve error for review. See Warner v. State , 969 S.W.2d 1, 2 (Tex. Crim. App. 1998); (holding absent offer of proof, any claim of error is not preserved) Brown v. State, 750 S.W.2d 340, 341 (Tex. App.CBeaumont 1988, no pet.) (holding appellant failed to preserve error with regard to cross-examination of prosecutor in Batson hearing by failing to make an offer of proof). To preserve a complaint regarding the exclusion of evidence, a defendant generally must make an offer of proof or file a bill of exception to make the substance of the evidence known. Tex. R. Evid. 103(a)(2). Otherwise, it is usually impossible for the appellate court to assess whether the exclusion was erroneous or harmful. LaHood v. State, 171 S.W.3d 613, 621 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). Where the defendant is not permitted to question a witness about a certain general subject that might affect the witness= credibility, in this case, the prosecutor=s credibility, the offer‑of‑proof burden is less rigid. Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim. App. 1987). In that situation, the defendant must establish the general subject matter on which he desired to examine the witness. Id. Here, appellant failed to establish the general subject matter on which he intended to examine the prosecutor. In fact, the record is unclear whether appellant requested to cross-examine the prosecutor on Batson related issues. Appellant=s request to cross-examine the prosecutor was made after the trial court stated it found no racial discrimination and that it Aaccepted the jury as it is.@ Appellant did not object to this statement or request to cross-examine the prosecutor after the prosecutor articulated his reasons for striking the challenged veniremembers. Appellant requested to cross-examine the prosecutor following the discussion of which veniremember the prosecutor struck from the alternate panel. Because appellant failed to make an offer of proof, this court cannot determine on what general subject appellant wished to cross-examine the prosecutor. Appellant=s sole issue is overruled. The judgment of the trial court is affirmed. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed August 31, 2006. Panel consists of Chief Justice Hedges and Justices Yates and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).