Andrea Overton v. The State of Texas--Appeal from County Court at Law No 8 of Bexar County

MEMORANDUM OPINION

No. 04-05-00584-CR

Andrea OVERTON,

Appellant

v.

The STATE of Texas ,

Appellee

From the County Court at Law No. 8, Bexar County, Texas

Trial Court No. 871608

Honorable Karen Crouch , Judge Presiding

Opinion by: Sarah B. Duncan , Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone , Justice

Sarah B. Duncan , Justice

Delivered and Filed: October 25, 2006

AFFIRMED

Andrea Overton was convicted of engaging in deadly conduct. The trial court sentenced her to one year in jail, probated for eighteen months, and fined her $1,000.00. Overton appeals, arguing the trial court erroneously excluded two venirepersons and erroneously admitted her written statement into evidence. We affirm the trial court's judgment.

1. In her first and second points of error, Overton argues the trial court erred in granting the State's challenges for cause against venirepersons Ernest Perez and Rafael Molina in violation of article 35.16 of the Code of Criminal Procedure. However, as Overton acknowledges, the trial court's erroneous application of article 35.16(b)(3) is not of constitutional dimension. Therefore, the error must be disregarded unless it affects substantial rights. Jones v. State, 982 S.W.2d 386, 391-92 (Tex. Crim. App. 1998), cert. denied, 528 U.S. 985 (1999). The substantial right accorded a defendant in such a circumstance is not the "right that any particular individual serve on the jury," but the right "that the jurors who do serve be qualified." Id. at 393. Therefore, "the erroneous excusing of a veniremember will call for reversal only if the record shows that the error deprived the defendant of a lawfully constituted jury." Id. at 394. Here, Overton does not argue and there is no indication in the record that the exclusion of Perez and Molina deprived Overton of a lawfully constituted jury. We therefore presume that the jurors were qualified. See Ford v. State, 73 S.W.3d 923, 925 (Tex. Crim. App. 2002). Overton does argue that the error in her case is of constitutional dimension because Perez and Molina were allegedly removed solely on the basis of their religious beliefs. However, Overton does not support her argument with any persuasive or controlling authority; and we decline her invitation to reach that conclusion based on the undeveloped record before us. We therefore overrule her first and second points of error.

2. In her third and fourth points of error, Overton argues Perez and Molina were removed for religious reasons in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and urges us "to review the erroneously granted challenge for cause in light of Batson [v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)]." However, as Overton acknowledges, Batson and its progeny involve peremptory strikes,not challenges for cause. And, if we assume for the sake of argument, as Overton would have us do, that there is very little difference between peremptory challenges and challenges for cause, the Texas Court of Criminal Appeals has specifically declined to extend Batson to peremptory strikes based on religion. Casarez v. State, 913 S.W.2d 468, 496 (Tex. Crim. App. 1995) (op. on reh'g). We therefore overrule Overton's third and fourth points of error.

3. In her fifth and sixth points of error, Overton argues Perez and Molina were removed for religious reasons in violation of the Equal Rights Amendment to the Texas Constitution and posits that the Equal Rights Amendment provides more protection than the Equal Protection Clause, citing In re McLean, 725 S.W.2d 696 (Tex. 1987). However, Overton's reliance on McLean is misplaced. McLean did not address religious beliefs; rather, it held the Equal Rights Amendment in the Texas Constitution elevates gender to a suspect classification subject to strict scrutiny review.Id. at 697-98. More on point is Ramos v. State, 934 S.W.2d 358 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1198 (1997), in which the Texas Court of Criminal Appeals rejected the argument that the Equal Rights Amendment should be interpreted to confer more protection to religious belief than the Equal Protection Clause, noting that the appellant offered no explanation, other than a difference in wording, as to the nature of the greater protection afforded. Ramos, 934 S.W.2d at 368. So it is here. Overton has not offered us a compelling reason why the Texas Equal Rights Amendment affords greater protection than the Equal Protection Clause in the context of religious beliefs. We therefore overrule Overton's fifth and sixth points of error.

4. In her seventh and final point of error, Overton argues the trial court erred in admitting into evidence her signed, two-page written statement because it does not comply with the requirements of article 38.22 of the Texas Code of Criminal Procedure since the second page, unlike the first page, does not "have the required warnings," and the statement does "not demonstrate that [she], prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warnings." However, article 38.22 does not expressly require that the statutory warnings appear on each page of the statement, see Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005); and Overton has not presented us with any authority so requiring. Overton's reliance on Garcia v. State, 919 S.W.2d 370 (Tex. Crim. App. 1996) (op. on reh'g), is misplaced. In that case, the section 2(b) waiver was missing from the statement altogether. Present on each page of the statement, however, were the section 2(a) warnings, the appellant's initials next to those warnings, and a statement next to the appellant's signature on each page certifying that the facts were true and correct, he had made no request for the advice or presence of a lawyer before or during any part of the statement, he did not request that the statement be stopped before it was finished, and he was not told or prompted what to say in the statement. Garcia v. State, 919 S.W.2d. at 384-85, 386. Based on the totality of these circumstances, the Texas Court of Criminal Appeals was "persuaded ... that, though a close call, appellant did, on the face of his voluntary statement, knowingly, voluntarily and intelligently waive his Section 2(a) rights in a manner sufficient to comply with the legislature's intent when it enacted Section 2(b)." Id. at 387. In this case, there is no "close call." Unlike Garcia, the section 2(b) waiver is present in Overton's statement on the top portion of the first page, immediately below the section 2(a) warnings. It is thus indisputable that both the section 2(a) warnings and the section 2(b) waiver are shown "on the face of Overton's statement," as article 38.22 requires. We therefore overrule Overton's seventh point of error and affirm the trial court's judgment.

Sarah B. Duncan , Justice

Do not publish