# Shelling v. State

> Texas Court of Appeals, 1st District (Houston) · July 26, 2001 · 52 S.W.3d 213

URL: https://www.frixlaw.com/law-library/cases/9676203

## Case

- **Full name:** Roy Neal SHELLING, Jr., Appellant, v. the STATE of Texas, Appellee
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** July 26, 2001
- **Citations:** 52 S.W.3d 213; 2001 WL 463139
- **Precedential status:** Published
- **Opinion:** Concurrence by Brister
- **Judges:** Mirabal, Taft, Price, Schneider, Hedges, Nuchia, Brister, Jennings, Wilson, Cohen
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9676203

## How later opinions describe it (automated extraction)

- holding that appellant waived complaint that trial court erred in overruling objection to voir dire questions concerning O.J. Simpson trial because that case was racially polarizing when trial objection had been only that defense counsel was “going to object to the reference t…
- holding issue not preserved for appeal when trial objection does not comport with argument on appeal and specific grounds were not apparent from context
- holding issue not preserved for appeal when trial objection does not comport to argument on appeal and specific grounds were not apparent from context

## Opinion text

BRISTER, Justice,
concurring in the en banc opinion.
I fully join in the majority opinion and concur in the judgment. I write separately to point out that reducing the number of peremptory challenges — as recommended by many judges, legal commentators, and the American Bar Association — would temper the claims of bias, racism, and other heated charges that often arise in cases like this.
It appears to me that defense counsel’s real objection in this ease was not so much as to how the State used its peremptories as to how many it had to use:
This thing, retrying the O.J. Simpson case, this is an all-white jury, there were no more than in the first group if [sic] we had an opportunity to choose from four black people. Those who said they couldn’t be fair, we agreed on. Whether or not someone believes that the O.J. Simpson case was or was not a travesty does not mean that that person can or cannot be fair. [The prosecutor] has luxury, Judge. He has out of 72 people at least 65 to 66 who are white who are on this jury panel — on Friday it was even worse — that I object.
It appears from this exchange that voir dire was conducted twice, and in both instances there were fewer black members on the venire than defense counsel expected or hoped.
Texas law guarantees 10 ¡peremptory strikes to both the State and the accused in felony cases in which the death penalty is not sought. Tex.Code Crim. PROC. Ann. art. 35.15(b) (Vernon Supp.2001). This is twice as many as recommended by the ABA. Committee on Jury Standards, Ameri-oan Bar Ass’n, Standards Relating to Juror Use and Management 76 — 82 (1993) (standard 9(d)(ii)). More than half of the states allow six or less peremptory strikes in such cases. G. Thomas Munsterman et al„ Jury Trial Innovations 233 (1997). Because of this abundance, the prosecutor had the “luxury” of eliminating all black members of the venire, and even more white members.
Given the diversity of our state and nation, it is impossible to assure a representative cross-section on each jury. Batson v. Kentucky, 476 U.S. 79 , 86 n. 6, 106 S.Ct. 1712 , 1717 n. 6, 90 L.Ed.2d 69 (1986). But we can take steps to make jury selection better. Peremptory challenges tend to make juries less representative. Munsterman, supra at 78; Nancy S. Marder, Beyond Gender: Peremptory Challenges and the Roles of the Jury, 73 Tex. L.Rev. 1041, 1052-66 (1995). By cutting them to the levels used in most states, the Legislature *225 could reduce the need for large venire panels as well as the occasions in which Batson becomes an issue.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9676203. Public record. Not legal advice.