Dimas, Rene v. The State of Texas--Appeal from 268th District Court of Fort Bend County

Affirmedand Opinion filed December 12, 2002.

In The

Fourteenth Court of Appeals

____________

NO. 14-01-01123-CR

____________

RENE DIMAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 34,123

O P I N I O N

Appellant, Rene Dimas, was charged by indictment with intentionally and knowingly causing serious bodily injury to a child; he entered a plea of not guilty. A jury convicted appellant of the lesser-included offense of recklessly causing serious bodily injury to a child and sentenced him to 20 years= imprisonment and a $10,000 fine. In two points of error, appellant contends the trial court erred in denying his challenges for cause to two prospective jurors. We affirm.

Specifically, appellant claims two venirepersons, identified in the record as venirepersons nineteen and forty-two, could not consider the full range of punishment, and thus, should have been excused for cause due to their bias or prejudice against the law upon which appellant was entitled to rely. Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (Vernon Supp. 2002).[1] During his voir dire examination, appellant=s counsel advised the panel that jurors would have five options, i.e., they could acquit the defendant, convict him of the offense charged, or convict him of one of three similar, but lesser-included, offenses. He then explained the punishment range for each of the offenses: (1) a first degree felony with 5B99 years or life imprisonment; (2) second degree felony with 2B20 years= imprisonment; (3) a third degree felony with 2B10 years= imprisonment; or (4) a fourth degree felony with 6 monthsB2 years= imprisonment. Following this explanation, appellant=s counsel asked, panel, can you consider in a proper case, in a proper fact situation, can you consider the minimum, each one of these minimums, 5, 2, 2 and 6 months; and can you consider the maximum, 99, 20, 10 and 2 years?

After appellant=s counsel questioned the jurors individually on whether they could consider the minimum punishment for the crimes, the judge asked for challenges for cause. During that process, before the parties made peremptory strikes, appellant=s counsel made the following objection:

I have got six people who are left on this panel who answered my question, can you consider the minimum punishment and who said no, and they are not struck off, and I don=t have enough alternate people to pick up as far as to strike. I am going to have to leave six people on the Jury Panel who I could have otherwise struck, and I am going to ask for additional strikes.

The trial court denied counsel=s request. Counsel failed to make any other objections at that time which would have identified to the court which particular jurors were objectionable. After the jury panel was sworn in and the court recessed, appellant=s counsel made the following objection:

The defense would like the record to reflect that in regards to selecting the venire panel and jury panel that we have now, that I have had toCI had four people who I had to use strikes on, all of which my notes indicated that they could not consider the minimum punishment. Two of those jurors have, in fact, made the jury panel, and I would ask for additional strikes so that I could strike. Let me strike that. Two of the people that I would have struck had I had additional strikes, Number 30, Ms. Tamborello, and Number 10, Mr. Soderstrom, are on the jury panel today and had I had additional strikes. . . I struckCthey are on the jury panel today because I didn=t have enough strikes. Had I been able to use strikes on Numbers 19 and 42, who both, according to my notes, indicated that they couldn t consider the minimum, jurors number 30 and10 would not have been on the jury today, and so at this point, as a result of that, I would move for a mistrial.

The trial court denied this request.

When the trial court overrules a challenge for cause, the defendant is harmed only if he uses a peremptory strike to remove the veniremember and thereafter suffers a detriment from the loss of a strike. Chambers v. State, 866 S.W.2d 9, 22 (Tex. Crim. App. 1993). To preserve error, the defendant must (1) exhaust his peremptory challenges, (2) request additional peremptory challenges, (3) identify a member of the jury as objectionable, and (4) claim that he would have struck the juror with a peremptory challenge. Broussard v. State, 910 S.W.2d 952, 956B57 (Tex. Crim. App. 1995). The defendant must make the proper challenge before the panel is sworn. Credille v. State, 925 S.W.2d 112, 115 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d). Although a defendant need not specify why a particular juror is objectionable, his challenge must at least state which particular juror is objectionable to give the trial judge the opportunity to correct any error. Fuller v. State, 827 S.W.2d 919, 924B25 (Tex. Crim. App. 1992); Credille, 925 S.W.2d at 115B16 (fairness requires the complaining party to object when it is possible to correct the error). A mere statement that certain jurors, without designation, are objectionable is not enough. Moreno v. State, 587 S.W.2d 405, 408 (Tex. Crim. App. 1979).

Here, appellant failed to preserve any error for review. When appellant first objected, he failed to identify any objectionable jury panel member; he merely made a blanket statement that six people left on the panel could not consider the minimum punishment. Only after the jury was sworn in did appellant=s counsel decide to identify to the trial court the objectionable jurors. Thus, appellant failed to give the trial court any opportunity to correct the alleged error. See Fuller, 827 S.W.2d at 924B25 (Tex. Crim. App. 1992). To preserve error on appeal when a trial court grants or denies a challenge for cause, counsel must object in a timely manner. Fuller, 827 S.W.2d at 924B25. Appellant=s assertions identifying the objectionable jurors, after the jury panel was sworn in, were not timely; thus, appellant failed to preserve error. Credille, 925 S.W.2d at 115.

Furthermore, even if appellant had preserved error, his complaint would nevertheless fail because the error was harmless. Appellant contends venireperson forty-two could not consider the minimum punishment for a first-degree felony or a third-degree felony and venireperson nineteen could not consider the minimum punishment for a fourth-degree felony. However, appellant was convicted of a second degree-felony, thus, any error relating to the other possible offenses had no effect on appellant=s conviction or punishment. King v. State, 953 S.W.2d 266, 268 (Tex. Crim. App. 1997) (holding that a denial of a challenge for cause was harmless when a panel member could not consider the minimum punishment for a lesser-included offense and the defendant was convicted of the charged offense). Accordingly, appellant=s two issues are overruled.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion filed December 12, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] Article 35.16(c)(2) provides in relevant part, A. . . a challenge for cause may be made by the defense. . . that he [venireperson] has a bias or prejudice against any of the law applicable to the case. . .@ Tex. Code Crim. Proc. Ann. art. 35.16(c)(2) (Vernon Supp. 2002).