Opinion
No. 10-03-00281-CR
Opinion delivered and filed January 26, 2005. DO NOT PUBLISH.
Appeal from the 54th District Court, McLennan County, Texas, Trial Court # 2002-503-C. Affirmed.
Stan Schwieger, Attorney at Law, Waco, TX, for Appellant/Relator. John W. Segrest, McLennan County District Attorney, Christy Barber, McLennan County Assistant District Attorney, Waco, TX, for Appellee/Respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Billy Karl Hill was charged with aggravated robbery but convicted of robbery. He stole a cash box from an area business. The jury found the allegations regarding two prior convictions to be true and assessed his punishment at life in prison. We affirm. In his first issue, Hill contends the trial court erred in allowing the State to delete language in the indictment defining a deadly weapon on the day of trial over his objection. The State argues that the words deleted were surplusage. Even if the deletion was erroneous, Hill was not harmed. A charge on the lesser included offense of robbery was submitted to the jury. Hill does not challenge the submission of that offense on appeal. This charge allowed the jury to find Hill guilty if they believed Hill committed robbery but did not use a deadly weapon. The jury found Hill guilty of the lesser offense, effectively acquitting him of aggravated robbery. TEX. CODE CRIM. PROC. ANN. art. 37.14 (Vernon 1981). Thus, the trial court's error, if any, did not affect Hill's substantial rights. TEX. R. APP. P. 44.2(b); Westfall v. State, 10 S.W.3d 85, 91 (Tex.App.-Waco 1999, no pet.); see also Dawson v. State, No. 10-01-202-CR, 2003 Tex. App. LEXIS 10873, *9 (Tex.App.-Waco Dec. 31, 2003, no pet.) (not designated for publication). Hill's first issue is overruled. In his second issue, Hill argues that the trial court erred in not allowing him to contest the State's reasons for striking a minority venireperson. He wants this Court to find that he did not need to preserve the issue at trial and that he is now entitled to rebut the State's race neutral reasons though he did not seek to put on any evidence in rebuttal of the State's race neutral reasons for exercising its strikes as it did. Hill's argument is that the trial court ruled immediately after hearing the race neutral reasons given by the State and he, therefore, had no opportunity to object. This Court has said before that the defendant may offer additional evidence to rebut the State's explanations. Shields v. State, 820 S.W.2d 831, 833 (Tex.App.-Waco 1991, no pet.) (emphasis in original). And the Court of Criminal Appeals has held that it is error for the trial court to refuse a request to allow a defendant to cross-examine the prosecutor on his race neutral reasons or to perfect a bill of exception. Salazar v. State, 795 S.W.2d 187, 192-193 (Tex.Crim.App. 1990). But Hill did not ask to put on additional evidence, or to cross-examine the prosecutor, or to perfect a bill of exception. To hold that, in the absence of a request to rebut or an objection to the refusal to allow a rebuttal, a trial court errs by not stopping the proceeding and specifically asking the defendant if he wishes to rebut the State's allegations before ruling on a Batson motion is something we will not do. It makes no sense to say that a party is not required to bring to the attention of the trial court a request to allow a rebuttal of the State's race neutral reasons before bringing an issue on appeal. This is similar to the situation when a defendant is about to be adjudicated upon a State's motion to proceed. The defendant is entitled to a separate punishment hearing but waives any complaint about the court's failure to have such a hearing absent a timely complaint brought to the trial court's attention. See Vidaurri v. State, 49 S.W.3d 880, 885-886 (Tex.Crim.App. 2001). In Vidaurri, the defendant asserted he should not be bound by the preservation of error requirement because "he was sentenced immediately after being adjudicated guilty, leaving no time to lodge an objection." Id. at 885. The Court of Criminal Appeals held that Vidaurri's issue had not been preserved for review. Id. at 886-887. Likewise, a defendant who raises a Batson claim at trial forfeits his opportunity to complain on appeal about what his response to the State's race neutral reasons would have been when he fails to timely present his evidence in rebuttal of the State's race neutral reasons or object to the trial court's refusal to let him do so. TEX. R. APP. P. 33.1. Hill's second issue is not preserved and presents nothing for review. The trial court's judgment is affirmed.
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).