# McGee v. State

> Court of Criminal Appeals of Texas · February 15, 1989 · 774 S.W.2d 229

URL: https://www.frixlaw.com/law-library/cases/9767450

## Case

- **Full name:** Jewel Richard McGEE, Jr., Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** February 15, 1989
- **Citations:** 774 S.W.2d 229; 1989 Tex. Crim. App. LEXIS 20; 1989 WL 11461
- **Precedential status:** Published
- **Opinion:** On rehearing by Miller
- **Judges:** Miller, Davis, Duncan, Teague, Clinton
- **Cited by:** 277 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/9767450

## How later opinions describe it (automated extraction)

- finding no unfair surprise where appellant complained of lack of notice that the State intended to prove the murder weapon was a brick found at the murder scene when the indictment alleged and the evidence established that a hammer was the murder weapon
- holding that trial court did not abuse its discretion by rejecting appellant’s argument, which was an incorrect statement of law and not an argument he was entitled to make
- noting that the Court held “numerous times” that 11 evidence is sufficient to prove murder “in the course of” committing robbery in a capital murder case if the State proves that the robbery occurred immediately after the murder
- stating that a court reviews the alleged argument error in light of the facts adduced at trial and in the context of the entire argument
- noting that Court of Criminal Appeals has held numerous times that proof that robbery occurred immediately after commission of murder is sufficient to prove that murder committed in course of committing robbery

## Opinion text

OPINION ON APPELLANT’S MOTION FOR REHEARING
MILLER, Judge.
Appellant was convicted of capital murder. On original submission we affirmed appellant’s conviction. We granted appellant’s motion for rehearing only to address two points of error raised by appellant in a supplemental brief which were not addressed on original submission. We overrule these points of error and again affirm appellant’s conviction.
In his fourteenth point of error, appellant argues that the petit jury was selected and seated in violation of Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986). Appellant contends all blacks on the venire were struck for cause by the State (apparently there were only four blacks on the panel as appellant only mentions four in his brief). In his supplemental brief, appellant argues that two such strikes were, improperly granted by the trial court. 1 Appellant contends he did not raise as a point of error on original submission the improper excusal of prospective juror Howard because Batson was not decided until after he had submitted his original brief and because the erroneous grant of a challenge for cause is considered harmless error when the State has peremptory challenges remaining at the conclusion of voir dire, and in this case, the State had three remaining peremptory challenges. 2
Appellant argues that he has established a prima facie case of purposeful discrimination under Batson . He specifically argues that he is black, that the prosecutor successfully challenged for cause the black venirepersons, and that he has demonstrated that one, possibly two or more, of these strikes for cause was granted erroneously. 3 Since the challenges for cause were erroneously granted, according to appellant, they should be charged as peremptory strikes against the State. At that point, appellant argues, the district *245 attorney would have exercised racially motivated peremptory challenges to remove from the jury panel those veniremen who were members of appellant’s race. 4
We do not reach the merits of appellant’s Batson claim because we find that appellant has failed to preserve this point of error for review. (See footnote four, supra.) In Brown v. State, 769 S.W.2d 565 (Tex.Cr.App.1989), and Allen v. State, 769 S.W.2d 563 (Tex.Cr.App.1989), we held that an appellant may not raise Batson error for the first time on appeal when there is no objection. It is of no consequence that the Batson decision was delivered subsequent to the time of an appellant’s trial. See Allen, supra.
In his supplemental brief, appellant asserts that after the trial court granted the State’s challenge for cause as to Howard he objected and raised the issue of whether he could get a fair trial if no blacks were allowed to sit on his jury. Appellant’s specific objection upon the excusal of Howard was:
The Defense feels like excusing this juror for cause is a violation under Adams [v. Texas, 448 U.S. 38 , 100 S.Ct. 2521 , 65 L.Ed.2d 581 (1980)] and Witherspoon [v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968)].
We also feel like from the testimony from this witness, her being a black person in this community, it further illustrates that the Defendant is not going to be able to get a fair trial in this community because of the blacks not being able to sit on the jury.
When viewed in a vacuum, this objection appears to raise the Batson issue, but our review of the record indicates that this objection was another opportunity for appellant’s counsel to argue the necessity for a change of venue. 5 Appellant’s objection also addressed his concern that blacks in the community did not want to sit on this particular jury because of their familiarity with appellant and/or the victim of the offense. 6 Appellant did not object to the *246 racial composition of the petit jury or to the prosecutor’s use of peremptory challenges. Thus, the Batson issue is not raised. C.f. Henry v. State, 729 S.W.2d 732 (Tex.Cr.App.1987). Appellant’s fourteenth point of error is overruled.
In his fifteenth point of error (supplemental brief point of error number 2), appellant argues that he was denied the opportunity to determine if the statement of facts in his cause was complete and accurate. Appellant claims that to deny him this opportunity violates the due process provisions of Art. I, § 19 of the Texas Constitution and the Fifth and Fourteenth Amendments to the United States Constitution.
On June 11, 1986, this Court abated appellant’s appeal because the trial court erred in failing to order the court reporter to transcribe the notes taken during the voir dire examination of several prospective jurors. McGee v. State, 711 S.W.2d 257 (Tex.Cr.App.1986). The supplemental statement of facts was.then filed with this Court on February 6, 1987. Appellant thereafter filed a “Motion For An Evidenci-ary (sic) Hearing To Determine Completeness Of Record”. Appellant stated in his motion that the supplemental statement of facts was filed with the Hardin County District Clerk’s office and forwarded to this Court without the District Clerk giving written notice to him of completion of the record. Appellant moved for a hearing by the trial court to determine the accuracy and completeness of the supplemental record. This Court denied appellant’s motion on April 27, 1987.
In appellant’s supplemental brief, filed in this Court on June 8, 1987, he states that his motion for the evidentiary hearing was based upon the fact that the majority of the supplemental record was transcribed by a court reporter who was not present in court when the trial notes for the supplemental record were taken. As a result, appellant contends, he will not know if the statement of facts, both the original and supplemental, is the entire record until he has had an opportunity to question the court reporter who transcribed the supplemental statement of facts. 7
At the time of appellant’s trial, Art. 40.-09, V.A.C.C.P., was in effect. Article 40.-09, § 7, supra, specifically provided, in pertinent part, that:
Notice of completion of the record shall be made by the clerk by certified mail to the parties or their respective counsel. If neither files and presents to the court in writing any objection to the record, within fifteen days after the mailing of such notice and if the court has no objection to the record, he shall approve the same. If such objection be made ... the court shall set the matter down for hearing ...
Article 40.09, supra, was repealed when the new rules of appellate procedure were promulgated and became effective September 1, 1986. The supplemental record in this cause was filed with the district clerk on January 30, 1987, and was thereafter filed in this Court on February 6, 1987. Thus, the disposition of this point of error is controlled by the new rules of appellate procedure. See Order Implementing the Texas Rules of Appellate Procedure in Criminal Cases, entered by this Court and dated September 22,1986. 8 Texas Rules of Court, State, p. 297 (West 1989).
Under the new rules of appellate procedure, appellant has no right to a hearing merely by raising an objection to the *247 record. For relief, appellant must avail himself of Rule 50(e) or Rule 55(a), which he recognizes in his supplemental brief. Rule 50(e) provides a remedy for an appellant when the record or any portion thereof or the court reporter’s notes and records have been lost or destroyed. Rule 55(a) provides for a hearing by the trial court to settle any dispute about the accuracy of the statement of facts.
We find that neither rule is applicable to appellant. Appellant fails to allege that portions of the record are lost, destroyed, or inaccurate. Appellant merely asserts that an evidentiary hearing is necessary so that he may determine whether the court reporter who transcribed the supplemental statement of facts was given the complete record transcribed by the substitute court reporter at trial and whether she was able to read the substitute court reporter’s notes and make an accurate supplemental record. The original court reporter in this cause certified that each volume of the supplemental record is a true and accurate transcription of all the proceedings associated with appellant’s trial, taken by her or under her direction. This certification raises the presumption that the transcription was accurate and the record is complete. Appellant fails to assert any inaccuracies in the record, and nothing in the record is disputed by the parties. Appellant fails to present any reason necessitating a hearing under the Rules of Appellate Procedure, and we hold he is not entitled to any such hearing.
Since appellant is not entitled to a hearing under the Rules of Appellate Procedure, there was no error in denying him an evidentiary hearing. Under the facts of this case, the appellate rules adequately protected appellant’s due process and due course of law rights under the United States and Texas Constitutions. Appellant’s fifteenth point of error is overruled.
Accordingly, appellant’s motion for rehearing is in all other respects denied, and appellant’s conviction is affirmed.
CLINTON, J., concurs in the result.
. In his first two points of error on original submission, appellant challenged the trial court’s excusal, on the State’s challenge for cause, of prospective juror Locke. We concluded the trial judge properly excluded Locke.
. Appellant’s statement as to preservation of error is incorrect. We stated in Bell v. State, 724 S.W.2d 780 (Tex.Cr.App.1986):
In capital murder cases, if the trial court improperly sustains a State’s challenge for cause and excludes a qualified juror, over a defendant’s objection, reversible error arises regardless of whether the State has exhausted its peremptory challenges. This is because peremptory strikes are exercised after each prospective juror is questioned, under Art. 35.13, V.A.C.C.P., as opposed to after the entire panel is questioned in a non-capital case, [citations omitted].
Thus, error is preserved in this instance if appellant objected to the trial court’s grant of the State’s challenge for cause.
.Appellant refers to the challenges for cause which were granted as to venire members Locke and Howard. As noted in footnote one, supra, Locke was properly excluded for cause. We need not decide whether Howard was improperly excluded to resolve the Batson issue raised by appellant.
.Appellant’s Batson argument is patently merit-less. In Keeton v. State, 724 S.W.2d 58 (Tex.Cr. App.1987), we stated that in order to invoke the protections afforded by Batson , a defendant must establish purposeful discrimination by showing that:
1. he was a member of a cognizable racial group;
2. the prosecutor had exercised peremptory challenges to remove from the venire members of the defendant’s race; and
3. the facts and any other relevant circumstances raise an inference that the prosecutor used peremptory challenges to exclude the veniremen on account of race.
Keeton, supra at 65 . Reviewing these criteria, we find appellant has clearly not shown purposeful discrimination by the prosecutor in the use of his peremptory strikes. Batson protections apply when the State uses its peremptory -, challenges to deliberately deny jury participation to blacks. Appellant has not shown, nor does he argue, that the State used its peremptory challenges to strike blacks from his jury panel solely on account of their race. Appellant’s speculation that the State would have used its peremptory challenges in a constitutionally impermissible way had the black venirepersons not been struck for cause does not raise an inference of purposeful discrimination by the prosecutor. Batson , therefore, is inapplicable to this cause.
. On original submission in his twelfth point of error, appellant contended the trial court’s overruling of his motion for change of venue, based in part upon racial tension in the community, was reversible error. We held that the trial court did not abuse its discretion in overruling the motion, and, thus, there was no error.
. A portion of Howard’s voir dire shows the extent to which she did not want to be a juror in this trial.
MR. WRIGHT (Defense Counsel): If all the black people in this community asked to be excused, do you feel like [appellant] would get a fair trial?
[HOWARD]: No, sir, I don’t, but only if they didn’t know him. If they don’t know the people that is involved in it — if they didn’t know then, you know, see them around, maybe they could do it.
But I mean, you know, I been here nearly twenty-six years and I went to the laundromat. I have washed and I have talked with [the victim]. I know him.
And I have seen this man [appellant] walk around and I just can’t do it. I can’t do it. This is too much on me, Your Honor. It is making me sick.
It is clear that appellant’s objection was not in response to racially motivated peremptory strikes by the prosecutor but to Howard’s emphatic pleas not to be seated on the jury.
. Appellant’s argument as to the original record is meritless. The record reflects he was afforded a hearing on his objections to the appellate record on January 17, 1985, as required by Art. 40;09, § 7, V.A.C.C.P.
. The Order reads, in pertinent part:
It is Ordered by the Court of Criminal Appeals that as to posttrial, appellate and review procedures and steps completed or required to have been completed prior to September 1,
1986, the procedural provisions then in effect shall govern.
It is further Ordered that all procedural matters and requirements as to posttrial, appellate and review procedures and steps completed or required to have been completed on or after September 1, 1986, shall be governed by the procedural requirements of the Texas Rules of Appellate Procedure in criminal cases, regardless of when notice of appeal was given.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9767450. Public record. Not legal advice.