author: TERRY McCALL, Justice.

text:
    In the Matter of M.D.G., A Juvenile.
    No. 11-04-00125-CV.
    Court of Appeals of Texas, Eastland.
    Oct. 27, 2005.
    J.K. (Rusty) Wall, Midland, for appellant.
    Aaron M. Pier, Asst. Dist. Atty’s Office, Midland, for appellee.
    Panel consists of: WRIGHT, C.J., and McCALL, J.
   OPINION

TERRY McCALL, Justice.

This is an appeal from an order adjudicating M.D.G. delinquent, placing M.D.G. on probation for one year, and committing M.D.G. to the Kerr County Juvenile Detention Center. M.D.G. presents two points of error on appeal. In the first point of error, M.D.G. argues that the trial court abused its discretion by refusing to allow M.D.G. to withdraw his stipulations when the court refused to follow the agreed recommendation on disposition. In the second point of error, M.D.G. contends that he received ineffective assistance of counsel at trial. We reverse and remand.

Facts

In the underlying delinquency proceeding, the State and M.D.G. reached an agreement regarding disposition and presented that recommendation to the juvenile court for consideration. M.D.G. agreed to stipulate to interfering with a police officer. M.D.G. also agreed to stipulate to committing criminal mischief, specifically, throwing rocks at a garage door. However, he did not stipulate to the dollar amount of damages caused to the garage door. TEX. PEN. CODE ANN. § 28.03(a)(1) (Vernon Supp.2004-2005). In consideration for these stipulations, the State and M.D.G. agreed to the following disposition: M.D.G. would be found to have engaged in delinquent conduct, would be placed on one year’s probation in the home of his grandmother, and would be required to pay restitution.

M.D.G.’s stipulations were presented to the juvenile court at the adjudication hearing. The juvenile court questioned the partial stipulation concerning the act of criminal mischief. The court reasoned that, because M.D.G. would not stipulate to the amount of damages, the court would have to enter a plea of “not true” to the criminal mischief allegation. After discussing M.D.G.’s partial stipulation, the trial court asked, “And you wish for the Court, then, to try to determine from the testimony that might be presented into which bracket of the ranges under the Penal Code this particular event might occur?” The juvenile responded, “Yes.” When the court continued with its admonishments, it stated that M.D.G. was “essentially” pleading not true to the second charge.

The adjudication hearing proceeded with testimony concerning only the amount of damages caused by the criminal mischief. Two witnesses testified to the cost of repair, and the owner testified to the cause and amount of the damages. Except for the stipulations, no evidence was presented to prove that M.D.G. committed the offense of criminal mischief. The owner testified that “all the children across the alley [were] there when I opened [my garage door].” He further testified that two witnesses saw it occur and called the police before he got there. He did not testify that he knew which juvenile engaged in the criminal mischief, and he did not identify M.D.G. as the person responsible. When the juvenile court concluded the adjudication hearing, the court pronounced that M.D.G. had engaged in criminal mischief and found that the amount of damages was between $500 and $1,500.

After adjudicating M.D.G. delinquent, the juvenile court immediately held the disposition hearing. Pursuant to the terms of the agreement between the State and M.D.G., the juvenile probation officer recommended that M.D.G. be found to have engaged in delinquent conduct, be placed on one year’s probation in the home of his grandmother, and be ordered to pay restitution. After the conclusion of the presentation of evidence, the juvenile court ordered that M.D.G. be detained in the Kerr County juvenile facility for a minimum of six months.

The record shows that the juvenile court understood that its disposition differed from the agreed disposition reached between M.D.G. and the State. Nevertheless, the juvenile court proceeded with its disposition after explaining that it had treated the stipulations as one plea of “true” and one plea of “not true.” Trial counsel stated that M.D.G. had proceeded on the assumption that the only issue to be determined was the amount of damages/restitution and that, upon adjudication, the agreed disposition would be followed. After conferring with M.D.G., trial counsel requested that the stipulations be withdrawn. The juvenile court denied M.D.G.’s request.

Analysis

Delinquency proceedings for juveniles in Texas are not handled in the criminal system. Although these proceedings are civil proceedings, they are quasi-criminal in nature. In the Matter of J.K.R., 986 S.W.2d 278, 280-81 (Tex.App.-Eastland 1998, pet’n den’d); In the Matter of R.S.C., 940 S.W.2d 750, 751 (Tex.App.-El Paso 1997, no writ); see also TEX. FAM. CODE ANN. § 51.17 (Vernon Supp. 2004-2005). Juvenile delinquency proceedings are governed by the Texas Family Code. In the Matter of R.J.H., 79 S.W.3d 1, 6 (Tex.2002).

We find TEX. FAM. CODE ANN. § 54.03(j) (Vernon Supp.2004-2005) to be controlling in this case. Section 54.03(j) provides as follows:

When the state and the child agree to the disposition of the case, in whole or in part, the prosecuting attorney shall inform the court of the agreement between the state and the child. The court shall inform the child that the court is not required to accept the agreement. The court may delay a decision on whether to accept the agreement until after reviewing a report filed under [TEX. FAM. CODE ANN. § 54.04(b) (Vernon Supp.2004-2005) ]. If the court decides not to accept the agreement, the court shall inform the child of the court’s decision and give the child an opportunity to withdraw the plea or stipulation of evidence. If the court rejects the agreement, no document, testimony, or other evidence placed before the court that relates to the rejected agreement may be considered by the court in a subsequent hearing in the case. A statement made by the child before the court’s rejection of the agreement to a person writing a report to be filed under Section 54.04(b) may not be admitted into evidence in a subsequent hearing in the case. (Emphasis added)

These provisions provide for a form of plea bargaining whereby a juvenile and the State may agree on the disposition, or a part thereof, and present an agreed recommendation to the juvenile court. Under Section 54.03(j), if the court declines to accept the agreement, the court is required to inform the juvenile of its decision and give the juvenile an opportunity to withdraw his plea or any stipulations that he made.

In the instant case, the State and M.D.G. had reached an agreement regarding disposition. They agreed that M.D.G. would be found to have engaged in delinquent conduct, would be placed on one year’s probation in the home of his grandmother, and would be ordered to pay restitution. Since the juvenile court elected not to accept this agreed disposition, Section 54.03(j) required the court to permit M.D.G. to withdraw his stipulations. Therefore, we hold that the juvenile court abused its discretion by refusing to allow M.D.G. to withdraw his stipulations.

The first point of error is sustained. In light of our disposition of the first point, we need not address the second point alleging ineffective assistance of counsel. TEX.R.APP.P. 47.1.

This Court’s Ruling

The judgment of the juvenile court is reversed, and the cause is remanded for further proceedings.

STRANGE, J., not participating.

      . Criminal mischief is a state jail felony if the amount of damages is at least $1,500 and less than $20,000, but a class A misdemeanor if the damages were at least $500 but less than $1,500. TEX. PEN. CODE ANN. § 28.03(b)(3-4) (Vernon 2004-2005).


source: Caselaw Access Project

author: BOB McCOY, Justice.

license: Public Domain

text:
    Sally B. STUTES, Appellant, v. Todd SAMUELSON, M.D., Appellee.
    No. 2-04-227-CV.
    Court of Appeals of Texas, Fort Worth.
    Nov. 3, 2005.
    Rehearing and En Banc Rehearing Overruled Dec. 1, 2005.

      Keith Law Firm P.C., Darrell L. Keith, Courtney Keith, Arm K. Schall, Fort Worth, for appellant.
    Wallach, Andrews & Stouffer, P.C., J. Wade Birdwell, D. Michael Wallach, C. Davis Chapman, Fort Worth, for appellee.
    Panel B: LIVINGSTON, WALKER, and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

I. Introduction

In two issues, Sally B. States (“States”) asserts that the trial court erred in dismissing her suit against Todd Samuelson, M.D., due to the lack of a physician-patient relationship. We affirm.

II. Background

In November of 2000, States, a registered nurse, found a knot in the area of her right collarbone. Her primary care physician referred her to Dr. Michael Ko-renman, a general surgeon. He recom- ' mended a surgical open .biopsy following his diagnosis of a right supraclavicular mass, which he felt was probably a swollen benign or malignant lymph node. Prior to surgery, States signed two consent forms, one allowing Dr. Korenman to perform the surgery and another for another physician to perform a bone marrow aspiration and biopsy, if required. Both consent forms allowed the physician “and such associates ... and other health care providers to perform such other procedures which are advisable in their professional judgment.” According to States, the plan that she and Dr. Korenman had discussed, and what she believed would occur, was to determine if the mass was malignant, and then following the biopsy, they would jointly decide what to do — there was no discussion with her about removing the mass during the surgery. In fact, she testified that she and her husband had decided that if a malignant mass had to be removed, she would have that done in Oklahoma City. There is no evidence in the record that Dr. Samuelson was aware of any of these plans.

On January 31, 2001, the scheduled surgery occurred. During the surgery, Dr. Korenman located and mobilized the mass in question until it was free except for connections above and below it. At this point, Dr. Korenman stopped and decided that he wanted to “use another physician as a sounding board ... and discuss my thought process at that point in the case. I had hoped that one of the other general surgeons that does the same type of work as I do would have been in the operating suite, but ... they were not at that point.” As a result, a circulating nurse asked Dr. Samuelson, who was in the midst of surgery in the adjacent operating room, to “poke your head into [Korenman’s] room when you’re finished with your case.” A few minutes later, after removing his surgical gloves and gown and putting on his watch and ring, Dr. Samuelson went to the operating room of Dr. Korenman and inquired what Dr. Korenman wanted. At this point, Dr. Samuelson had no knowledge of States or her surgery. Dr. Koren-man asked questions about the general anatomy of the area and landmarks used to identify lymph nodes. The physicians’ recollections differed as to whether Dr. Samuelson offered to scrub-in and assist. Nevertheless, Dr. Samuelson did not scrub-in and did not enter the surgical field but came within three to five feet of the patient, behind Dr. Korenman, which was not close enough to observe the surgical wound clearly. Also, according to Dr. Korenman’s operative report, “I asked the ear, nose and throat physician [Dr. Samuelson, whose name does not appear in the report] to look in, and it was our opinion that this was a high probability malignant lymph node, and needed to .be excised.” Dr. Samuelson recalled that he was asked to clarify the location of certain muscles and nerves and to confirm that the mass could be a lymphoma, but he also indicated that it could be a nerve-type tumor, which would include neuromas and schwannomas. This was the end of Dr. Samuelson’s involvement. Following their discussion, Dr. Korenman decided that his original opinion was correct and that he had not penetrated too deeply to put the brachial plexus layer at risk.

Dr. Korenman then proceeded with the surgery, removed the mass, and sent it to pathology. It was determined to be a benign schwannoma with two nerve fragments attached. Following the surgery, Dr. Samuelson did not prepare or join in an operative report, did not speak to States, and did not bill for any professional services. Dr. Korenman testified that he did not intend to create a physician-patient relationship between Dr. Samuelson and States, that his conversation with Dr. Samuelson was not determinative, and that the decision to remove the mass was his alone. Dr. Samuelson testified that he expected Dr. Korenman to believe what he told him and to rely on the information he provided to him.

Subsequently, States sued the two physicians and Korenman, P.A., and others who were later non-suited, due to “pain, mental anguish, and loss of motor function, and numbness in her right arm and hand” along with “disfigurement, physical impairment, and other injuries and damages” resulting from the surgery. A settlement was reached with Dr. Korenman and Ko-renman, P.A., and the trial court granted Dr. Samuelson’s “traditional” motion for summary judgment based on the absence of a physician-patient relationship between States and Dr. Samuelson. This appeal resulted.

III. Standard of Review— Summary Judgment

In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the mov-ant. Sw. Elec. Power Co., 73 S.W.3d at 215; Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. Great Am., 391 S.W.2d at 47.

In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence are disregarded and the evidence favorable to the non-movant is accepted as true. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995). Evidence that favors the movant’s position will not be considered unless it is uncontroverted. Great Am., 391 S.W.2d at 47.

A defendant is entitled to summary judgment if the summary judgment evidence establishes, as a matter of law, that at least one element of a plaintiffs cause of action cannot be established. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex.1999). The defendant as movant must present summary judgment evidence that negates an element of the plaintiffs claim. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). Once the defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the plaintiff to come forward with competent controverting evidence raising a genuine issue of material fact with regard to the element challenged by the defendant. Id.

IV. The Physician-Patient Relationship

The singular question presented to this court is whether Dr. Samuelson disproved that a physician-patient relationship existed between Dr. Samuelson and States, and hence summary judgment in his favor was proper.

To prevail on a health care liability claim, a claimant must show that the health care provider had a duty to act according to certain legal standards and that the applicable standard of care was breached, causing an injury. Gross v. Burt, 149 S.W.3d 213, 221 (Tex.App.Fort Worth 2004, pet. denied). As to a physician, “malpractice is predicated on a physician-client relationship,” that is, a physician “cannot be hable for malpractice unless the physician breaches a duty flowing from a physician-patient relationship.” St. John v. Pope, 901 S.W.2d 420, 423 (Tex.1995). The burden of establishing the existence of this relationship lies with the claimant/patient. Gross, 149 S.W.3d at 222. Our Texas Supreme Court has explained,

It is only with a physician’s consent, whether express or implied, that the doctor-patient relationship comes into being. Thus we agree with those cases that hold that the duty to treat the patient with proper professional skill flows from the consensual relationship between the patient and physician, and only when that relationship exists can there be a breach of a duty resulting in medical malpractice.... Creation of the physician-patient relationship does not require the formalities of a contract.

St. John, 901 S.W.2d at 423-24 (emphasis supplied).

Contractual terms are often used in discussing the physician-patient relationship. It is created when professional services are offered and they are accepted by another. See id. In fact, the relationship is generally viewed as a voluntary and contractual one, which may be implied or express. Gross, 149 S.W.3d at 222. The implied contractual relationship may arise from facts and circumstances indicating there was a mutual intention to contract. Lection v. Dyll, 65 S.W.3d 696, 704 (Tex.App.-Dallas 2001, pet. denied). The con sent of the physician, whether express or implied, is absolutely necessary to the creation of the relationship. See Gross, 149 S.W.3d at 222; Majzoub v. Appling, 95 S.W.3d 432, 436 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). “If there is no prior relationship between the physician and the patient, there must be some affirmative action on the part of the physician to treat the patient to create such a relationship.” Gross, 149 S.W.3d at 221-22 (quoting Majzoub, 95 S.W.3d at 436). “Mere recommendations, made by an on-call physician, to be accepted or rejected by a treating physician do not constitute such an affirmative act.” Majzoub, 95 S.W.3d at 438.

V. Case Law

Several cases have discussed the parameters of the physician-patient relationship in similar, but not the same, circumstances as exist here. In Majzoub, an on-call physician was called by an emergency room doctor and told about a patient in the emergency room. 95 S.W.3d at 434-35. The on-call doctor answered questions and made certain recommendations, which were apparently followed. Id. Regarding this conversation, the court, in affirming a summary judgment in favor of the on-call physician based on the absence of a physician-patient relationship, observed that (1) the emergency room physician retained responsibility for the patient and was free to accept or reject the on-call physician’s recommendations, (2) the on-call physician made no medical diagnosis or medical decisions, (3) nothing indicated that either doctor contemplated that the comments were binding on the emergency room doctor and (4) the on-call physician did not have the responsibility to control the patient’s treatment. Id. at 438. The court also noted,

The extension of potential malpractice liability to doctors with whom a treating physician has merely conferred, without more, would unacceptably inhibit the exchange of information and expertise among physicians. This would benefit neither those seeking medical attention nor the medical profession.

Id.

In Lopez v. Aziz, 852 S.W.2d 303, 304, 306-07 (Tex.App.-San Antonio 1993, no writ), a similar result occurred in a suit where a treating physician sought treatment advice over the phone from an OB-GYN, and followed the advice. The court observed that the OB-GYN, Dr. Aziz,

did no more than answer the professional inquiry of a colleague. There is no evidence of any consensual basis for the existence of a physician-patient relationship arising out of that one telephone conversation.... To expose physicians such as Dr. Aziz to liability for simply conferring with a colleague would be detrimental in the long run to those seeking competent medical attention and is contrary to the public policy of this state.

Id. at 306-07. The court went on to observe that (1) Dr. Aziz did not contact, examine, or treat the patient, (2) his opinions concerning treatment were directed to her treating physician who was free to accept or reject the recommendations, and (3) the treating doctor acknowledged that he was ultimately responsible for the patient’s treatment. Id.

A different result was reached in Kimber v. Sideris, 8 S.W.3d 672, 676-78 (Tex.App.-Amarillo 1999, no pet.). Dr. Sideris was Julia Kimber’s pediatric cardiologist, a non-surgeon. He was present for the entire surgery of his patient and squeezed in around the surgical field to observe the surgery, and he was ousted from that position when he would do so. As to a patch being placed during the surgery, he complained at least three times that each patch was insufficient and needed to be replaced. There was evidence that he was directing some of the decisions being made during the surgery. The court found that under these circumstances, there was evidence that Dr. Sideris was more than an observer, undertook an affirmative course of action by directing some of the decisions during surgery and was hence a participant in the surgery, thereby raising a fact question as to whether Dr. Sideris assumed a duty during the surgery. Id. The court reversed the summary judgment in favor of the doctor and remanded the case to the trial court. Id.

VI. Application

We hold that under the facts presented, no physician-patient relationship existed, as proven by Dr. Samuelson. Dr. Samuelson’s role was that of a question answerer, and he confirmed the thinking of Dr. Korenman. He appeared briefly in the surgical suite at the behest of Dr. Korenman, did not enter the surgical field, did not touch the patient, did not scrub-in, was not in a position to direct a procedure, did not prepare a report, never spoke to the patient, and did not bill for his time. Dr. Korenman remained responsible for the patient, and he testified that he alone made the decision to proceed with surgery and that his conversation with Dr. Samuelson was not determinative. Further, we agree with the public policy rationale expressed in Majzoub and Lopez; to hold that a physician-patient relationship could be established in these circumstances would have a chilling effect on efficient medical care and be contrary to the public policy of this state.

VII. Conclusion

Having overruled Stutes’s two issues, we affirm the judgment of the trial court.


author: WANDA McKEE FOWLER, Justice.

text:
    Jeremiah Johnson PEETZ, Appellant, v. The STATE of Texas, Appellee.
    No. 14-04-00642-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 10, 2005.

      Christopher Downey, Houston, for appellant.
    Alan Curry, Houston, for appellee.
    Panel consists of Justices FOWLER, EDELMAN, and GUZMAN.
   OPINION

WANDA McKEE FOWLER, Justice.

A jury convicted appellant, Jeremiah Johnson Peetz, of a Class A misdemeanor offense of assault, and found true an enhancement paragraph that he intentionally selected the complainant, Jowanna Green, on the basis of his bias and prejudice against her race. The jury assessed punishment at 365 days in county jail and a $4,000 fíne. On appeal, appellant raises two points of error: (1) the trial court’s granting of the State’s Batson challenge; and (2) the trial court’s refusal to allow the defense to exercise additional peremptory strikes once the trial court reinstated two jurors. We affirm.

Factual and Procedural Background

On December 5, 2003, appellant was driving his Ford Explorer and passed a bus stop where complainant, Jowanna Green, was waiting. When he did so, he utilized a modification made to his rear windshield wiper to spray an unknown liquid on Ms. Green. After appellant passed Ms. Green, his cousin, who was riding with appellant, screamed out the window, “F— you, you n-,” while he “shot the bird.” Appellant later made a statement to the Metro Police Department and, following an investigation, the State filed charges of a Class A misdemeanor. The State also presented an enhancement paragraph alleging appellant had committed a hate crime. Complainant is black and appellant is white.

Following voir dire, appellant exercised his three peremptory strikes. He used all to exclude “every black person available to be on [the] jury.” The State then raised a Batson challenge. Appellant offered race-neutral explanations for each of the struck jurors, but the court ultimately upheld only one challenge and placed the other excluded black jurors on the jury.

The judge accepted appellant’s argument that perhaps juror one was hostile to the defense and was thus properly struck. However, the judge rejected appellant’s reasons for excluding the other two jurors, jurors six and ten. Appellant contended juror six had an angry expression, her face resembled one part of the anatomy of a chicken, and she was reading a newspaper. Appellant claimed to reject juror ten because he had prior jury experience, which appellant did not prefer, and was “really glib.” In response, the State and the court noted that juror four, a white juror, also had prior jury experience and was not struck. After considering the reasons offered, the court disagreed that appellant’s reasons for striking jurors six and ten were truly race neutral. She informed appellant’s attorney that jurors six and ten would sit on the jury.

Appellant then requested two additional peremptory strikes, but the court denied the request. The jury ultimately convicted appellant and found the enhancement paragraph true.

Analysis

I. Racially-Motivated Strikes

In his first point of error, appellant contends the trial court committed reversible error when it determined he exercised his peremptory strikes based on race. We will affirm unless the court’s ruling was clearly erroneous. Emerson v. State, 851 S.W.2d 269, 273 (Tex.Crim.App.1993) (en banc) (citations omitted). We review the court’s determination deferentially because it observed the attorneys and the prospective jurors. Id. So long as the record supports the court’s findings, we will affirm. Id. We view all evidence in the light most favorable to the verdict. Vargas v. State, 838 S.W.2d 552, 554 (Tex.Crim.App.1992) (en banc).

A. Purpose and procedure of a Bat-son hearing

The Fourteenth Amendment guarantees persons the right to equal protection under the law, including freedom from racial discrimination in jury selection. Georgia v. McCollum, 505 U.S. 42, 44, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (citing Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880)) (explaining that the Court has, since 1880, maintained that racial discrimination by the State in jury selection offends the Equal Protection Clause). The right does not merely encompass a defendant’s right to have a jury selected without regard to race, but also protects prospective jurors’ rights to serve on a jury without regard to their race. Id. at 48, 112 S.Ct. 2348. Because the right attaches to excluded jurors, the State may raise a Batson challenge on the jurors’ behalf. Id.

Once a party raises a Batson challenge, the court must engage in a three-step process. First, the party opposing the peremptory strikes must make a prima facie showing of racial discrimination and thus carries a burden of production. Ford v. State, 1 S.W.3d 691, 693 (Tex.Crim.App.1999). Second, the burden shifts to the party who exercised the peremptory strikes to give a faeially-neutral explanation. Id. Finally, the court must determine whether or not the challenging party has made out a case of discrimination. Id. The burden of persuasion always rests on the party challenging the use of the peremptory strikes. Id. (citing Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). However, the court must evaluate the reasons proffered for the strikes in light of what it observes during voir dire and during the Batson hearing. See, e.g., Johnson v. State, 68 S.W.3d 644, 649 (Tex.Crim.App.2002) (stating appellate courts must give great deference to the trial courts because they make determinations based on credibility and demeanor in connection to the Batson hearing).

B. The trial court’s role during the Batson hearing

Appellant argues that the court erred when it failed to ask the State to rebut each and every one of appellant’s reasons for exercising his strikes. Specifically, citing Yarborough v. State, 947 S.W.2d 892 (Tex.Crim.App.1997) (en banc), appellant argues we must accept as true any assertion made during a Batson hearing unless the other party contradicts it. A close reading of Yarborough invalidates appellant’s claim. In Yarborough, the Court of Criminal Appeals addressed whether or not uncontradicted counsel statements were sufficient on appeal to support a trial court’s finding. Id. at 893. That question is not before us in this case. Here, the question is whether the trial court must accept as true uncontradicted reasons for strikes. Yarborough does not mandate the trial court accept any proffered justification for a strike. Quite the opposite. The Yarborough Court specifically stated that “the counsel (and the judge) naturally will be the best-placed observers of the venire members.” Id. at 895; see also Gibson v. State, 144 S.W.3d 530, 534 (Tex.Crim.App.2004) (citation omitted) (holding that “ ‘pretext’ is solely a question of fact ... [therefore, the trial court [is] in the best position to make that credibility determination”). Obviously, the Court of Criminal Appeals intended the trial court to observe voir dire and rule according to its observations.

Appellant’s argument also misunderstands the procedure of a Batson hearing. The first two steps of a Batson hearing are simply evidentiary steps whereby both parties present their evidence to the court. Johnson v. California, — U.S. -,-, 125 S.Ct. 2410, 2417-18, 162 L.Ed.2d 129 (2005). While any facially-neutral reason will suffice to meet appellant’s burden of production for the second step, appellant is simply producing evidence for the hearing. It is at that point the court evaluates the evidence presented and considers what it observed during voir dire and the Batson hearing. Id. 125 S.Ct. at 2418 (citing Purkett, 514 U.S. at 768, 115 S.Ct. 1769). We grant the lower court great deference because it observes the attorneys and the prospective jurors, and is thus able to evaluate whether the justifications proffered are genuine or not. Johnson, 68 S.W.3d at 649. Appellant seeks to transform the third step into another evidentiary step and force the State to produce more evidence. While rebutting the race-neutral justifications may be helpful to the court — as the State did to show striking juror ten was race based — the third step has always been the evaluation stage of the Batson hearing and we will not alter the procedure to require more of the challenging party. Neither do we accept appellant’s contention that the court needed to “articulate sufficient contradictory information” to rebut defense counsel’s proffered reasons.

C. The record supports the trial court’s finding

This case concerned a racially-motivated crime with a white defendant and a black victim. Appellant was not entitled to be tried by an all-white jury. See generally McCollum, 505 U.S. at 46, 112 S.Ct. 2348 (citing Strauder, 100 U.S. at 305, 10 Otto 303 for the proposition that “a defendant has no right to ‘a petit jury composed in whole or in part of persons of his own race’ ”). Here, the State met its burden of proof by showing that appellant used all three peremptory strikes against the three black jurors who would otherwise be empaneled. Appellant then met his burden of proof by providing facially-neutral reasons for each of the three strikes. It was in the third step that the court evaluated the reasons appellant proffered.

The court granted the strike regarding one of the black jurors, indicating that juror was indeed hostile to the defendant. The court did not give a detailed reason for rejecting the strike against juror six, who appellant claimed was angry. However, it did state that it disagreed with appellant’s characterization and that it believed striking juror six was race-based. The court also believed appellant provided a pretextual reason for striking juror ten. Appellant claimed to have struck juror ten because that juror had prior jury experience and because he was “really glib.” Yet, juror four, a white juror, also had prior jury experience. Moreover, the court again did not agree with appellant’s characterization of juror ten’s demeanor. Both jurors six and ten indicated they could follow the law and consider all ranges of punishment. There is nothing on the record to support appellant’s characterizations of them as angry, glib, or somehow inappropriate for jury service. Based on the record, we cannot say that the court clearly erred in empaneling two qualified jurors whom it determined were struck for no reason other than their race. We must rely on the court’s evaluation of appellant’s credibility and its observations during voir dire. We overrule appellant’s first point of error.

II. Remedy for Batson Violation

A. A trial court may fashion an appropriate remedy

In his second point of error, appellant argues that even if he did violate Batson, the court nonetheless erred by not restoring to him those two peremptory strikes. Essentially, appellant asks us to adopt the rule that a party may engage in racial discrimination and suffer no consequences. Adopting appellant’s rule would only foster greater discrimination. That we will not do.

When a court finds a Batson violation, it may fashion an appropriate remedy according to its discretion. State ex rel. Curry v. Bowman, 885 S.W.2d 421, 425 (Tex.Crim.App.1994) (en banc). In this case, appellant argues that the court im-permissibly allowed him only one peremptory strike while allowing the State three. See Tex.Code Crim. Proo. Ann. Art. 35.15(c) (Vernon 1991) (providing each side three peremptory strikes in a misdemeanor trial held in a county court at law). However, appellant did exercise three strikes. But, he did so in a way the court found to be impermissible, racially-motivated, and thus unconstitutional. As a remedy, the court appropriately empaneled the two wrongfully-struck jurors. Presumably, a further implication of the court’s remedy was that appellant lost his gamble in trying to exclude all blacks from the jury and did not get the full effect of his strikes. That is not the same as not exercising his strikes, which is guaranteed by statute.

Appellant cites two cases he believes support this claim that a court must restore peremptory strikes. See Perez v. State, 171 Tex.Crim. 505, 351 S.W.2d 234 (1961); Truong v. State, 782 S.W.2d 904 (Tex.App.-Houston [14th Dist.] 1989, pet ref'd). Those cases are inapposite. In those cases, the courts addressed counsel mistakes resulting in an exercise of fewer strikes than allowed. Perez, 351 S.W.2d at 234-35 (holding it is error to refuse to allow an attorney to correct a strike when he meant to strike one juror, but erroneously gave the name of another juror); Truong, 782 S.W.2d at 905 (determining it was error to empanel a juror that the attorney intended to strike, but mistakenly failed indicate the strike in the proper form). Those courts held that when a mistake results in a loss of peremptory strikes, and it can be cured before the jury is sworn in, the court must correct it. But those cases involved clerical mistakes resulting in the use of fewer peremptory strikes than the law allows, while this case involves the deliberate misuse of strikes. The two are different situations and merit different responses. The court appropriately fashioned a remedy that would penalize counsel for unconstitutionally exercising peremptory strikes: she empaneled wrongfully-struck jurors and refused to allow counsel to reuse these strikes, thereby putting other litigants on notice of the unwanted consequences of improperly using a peremptory strike.

B. The trial court fashioned an appropriate remedy for the violation

To hold that courts must restore the misused peremptory strikes is not only against the purpose of Batson, but also logically unsound. The United States Supreme Court sought to fulfill the purpose of the Fourteenth Amendment in guaranteeing equal protection by eliminating race as an acceptable factor in jury selection. Were we to accept appellant’s rule, we would undermine Batson, for there would be no consequence for racially-motivated strikes. If a trial court refuses to restore misused strikes, litigants truly face a consequence and are less likely to engage in improper, racially-motivated behavior. Such a remedy, though not required, is acceptable.

In short, appellant exercised his three strikes, the court invalidated two of them, and appellant must cope with losing his race-based gamble. The effect of a successful Batson challenge always has been that the party exercising the strikes does not enjoy the benefit of those strikes. We hold the court did not abuse its discretion in fashioning a remedy. We overrule appellant’s second point of error.

Conclusion

For the foregoing reasons, we overrule appellant’s points of error and affirm the ruling of the trial court.

      . While we do not understand exactly what appellant’s attorney meant by this description, she seems to have acted out precisely what she meant by the phrase.

      . We also note that the record indicates no in-depth questioning of juror six to determine if she were indeed hostile. Regarding lack of questioning, the Supreme Court has stated, "failure to engage in any meaningful voir dire examination on a subject [a party] alleges it is concerned about is evidence suggesting that the explanation is a sham and a pretext for discrimination.” Miller-El v. Dretke,-U.S. -,-, 125 S.Ct. 2317, 2328, 162 L.Ed.2d 196 (2005) (citation omitted). Further, appellant’s other justification — that juror six was reading a newspaper — is not reflected in the record. Both of these reasons are properly left to the trial judge to evaluate and rule on based upon what she observed during voir dire.

      . As with juror six, again there is no questioning we see indicating that appellant even attempted to discern whether juror ten’s prior jury service would somehow hinder his ability to serve on this case. Additionally, appellant did not pursue questioning regarding whether or not juror ten was truly "really glib” in regards to this case. Again, these are credibility and demeanor determinations properly within the trial judge’s purview.