Kiheem Grant a/k/a Shawn Atkins v. The State of Texas--Appeal from Criminal District Court of Jefferson County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-04-226 CR
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KIHEEM GRANT, AKA SHAWN ATKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 89888
MEMORANDUM OPINION

A jury convicted appellant Kiheem Grant, aka Shawn Atkins, (hereafter "Grant") of aggravated robbery, enhanced by a prior felony conviction. Tex. Pen. Code Ann. 12.42(c)(1) (Vernon Supp. 2005); Tex. Pen. Code Ann. 29.03(a)(2) (Vernon 2003). The jury sentenced Grant to life imprisonment and assessed a $10,000 fine. In two issues, Grant asserts the jury panel was not sworn prior to voir dire pursuant to Tex. Code Crim. Proc. Ann. art. 35.02 (Vernon 1989), and Tex. R. App. P. 44.2(c)(2) is unconstitutional "as applied" to him because it denies him a meaningful review of his constitutional right to trial by jury. Because Grant has not challenged the sufficiency of the evidence, we will not discuss the details of the offense except when discussing the issues presented. Finding no error, we affirm.

In issue one, Grant argues the record does not show the jury was sworn prior to voir dire pursuant to Tex. Code Crim. Proc. Ann. art. 35.02. Grant argues, and the record supports, that "[o]nce the venire panel entered the courtroom of the Criminal District Court, the trial court began introductions, provided the venire panel with a brief overview of the proceedings, and then allowed the attorneys to proceed with questions."

Article 35.02 provides:

To those present the court shall cause to be administered this oath: "You, and each of you, solemnly swear that you will make true answers to such questions as may be propounded to you by the court, or under its directions, touching your service and qualifications as a juror, so help you God."

 

Tex. Code Crim. Proc. Ann. art. 35.02. "[T]he jury is to be sworn before the voir dire examination begins; therefore, any statements or answers given by prospective jurors during voir dire are given under oath." Duffy v. State, 567 S.W.2d 197, 200 (Tex. Crim. App. 1978). The Texas Rules of Appellate Procedure create presumptions of regularity in lower court proceedings that require us to presume:

(1) that venue was proved in the trial court;

(2) that the jury was properly impaneled and sworn;

(3) that the defendant was arraigned;

(4) that the defendant pleaded to the indictment or other charging instrument; and

(5) that the court's charge was certified by the trial court and filed by the clerk before it was read to the jury.

 

Tex. R. App. P. 44.2(c). Pursuant to Tex. R. App. P. 44.2(c)(2), we must presume the jury was properly impaneled and sworn, unless such matter was disputed in the trial court or the record affirmatively shows the contrary. See also Osteen v. State, 642 S.W.2d 169, 171 (Tex. Crim. App. 1982); Faison v. State, 59 S.W.3d 230, 237 (Tex. App.--Tyler 2001, pet. ref'd). Texas case law has consistently applied this presumption when faced with a silent record. See Duffy, 567 S.W.2d at 201 (silent record did not affirmatively reflect prospective jurors were not properly sworn prior to voir dire).

In Grant's case, the record is silent as to whether the oath was administered prior to voir dire. Because the record is silent, this Court must presume the jury was properly sworn. Tex. R. App. P. 44.2(c)(2). Furthermore, we note Grant did not object to a failure to administer the oath to the jury panel. Therefore, this error was not preserved for our review. Tex. R. App. P. 33.1(a). Issue one is overruled.

In issue two, Grant argues Tex. R. App. P. 44.2(c)(2) is unconstitutional "as applied" to him because it denies him a meaningful review of his constitutional right to trial by jury in violation of Tex. Const. art. I, 15. To preserve a complaint for appellate review, a party must make a timely objection in the trial court. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Tex. R. App. P. 33.1(a).

With few exceptions not applicable here, even constitutional complaints may be waived by the failure to timely object in the trial court. Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990); Hawkins v. State, 964 S.W.2d 767, 769-771 (Tex. App.--Beaumont 1998, pet. ref'd). A contention that a statute (1) is unconstitutional as applied must be asserted in the trial court or it is waived. See Curry v. State, 910 S.W.2d 490, 496 n.2 (Tex. Crim. App. 1995) (citing Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994)); Coggin v. State, 123 S.W.3d 82, 89 (Tex. App.--Austin 2003, pet. ref'd).

The record indicates Grant made no objection in the trial court complaining of the constitutionality of Tex. R. App. P. 44.2(c). This issue was not preserved for review. Issue two is overruled.

AFFIRMED.

 

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HOLLIS HORTON

Justice

 

Submitted on May 30, 2005

Opinion Delivered July 27, 2005

Do Not Publish

 

Before McKeithen, C.J., Kreger and Horton, JJ.

1. Rules of procedure have the same force and effect as statutes. See In re City of Georgetown, 53 S.W.3d 328, 332 (Tex. 2001).