MARTIN ANGELL, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED as modified; Opinion issued November 27, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-05-00707-CR
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MARTIN ANGELL, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Criminal Court No. 9
Dallas County, Texas
Trial Court Cause No. MA03-62928-K
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OPINION
Before Justices Morris, Whittington, and Richter
Opinion By Justice Morris
        At trial, Martin Angell was convicted by a five-person jury of unlawfully carrying a weapon. He now contends the trial court erred in denying him his right to a jury composed of six people and in denying his request for a defensive jury instruction. He further contends the evidence against him is legally and factually insufficient and the judgment should be corrected to reflect the actual facts of the case. We resolve appellant's final issue in his favor and modify the judgment to reflect the correct plea, sentence, and defense attorney in the case. We otherwise affirm the trial court's judgment as modified.
        After calling 911 to report a possible assault in progress, appellant waited for police in the parking lot of the condominium complex where he rents his home. Appellant had armed himself with a firearm and covered the weapon with his jacket. When a police officer asked appellant what was in his hand, appellant revealed the firearm. The officer then arrested appellant.
        In his first two issues, appellant complains he was denied his constitutional right to a jury composed of six people and the trial court erred by allowing the trial to proceed with five jurors without first securing a written waiver from appellant. In the case, just after jury selection concluded, a juror informed the trial court she could not be impartial because her husband was a police officer. Appellant's counsel moved for a mistrial, which was denied. Afterward appellant's counsel “[o]n behalf of the defense” stated that appellant had agreed with the State to continue the trial with only five jurors.
        Under the Texas Constitution, juries in county courts are to be composed of six jurors. See Tex. Const. art. 5, § 17. Relying on the opinion of the Houston Court of Appeals in Hanley v. State, 909 S.W.2d 117 (Tex. App.-Houston [14th Dist.] 1995, no pet.), appellant contends that for a waiver of the right to a misdemeanor jury panel composed of six members to be effective, all parties to the trial must comply with the statutory provision applicable to a complete waiver of a jury. See Hanley, 909 S.W.2d at 119; see also Tex. Code Crim. Proc. Ann. art. 1.13(a) (Vernon 2005).
        We question the Hanley opinion's equating waiver of a single juror with waiver of the right to a jury trial. Two years after Hanley was issued by the Houston court, the court of criminal appeals held the following in a felony case, “[T]here is a very real distinction between waiver of a right to a trial by jury and waiver of a right to be tried by twelve jurors. . . . A defendant who agrees to be tried by less than twelve jurors is still exercising his right to trial by jury.” Hatch v. State, 958 S.W.2d 813, 816 (Tex. Crim. App. 1997). Nevertheless, even if code of criminal procedure article 1.13(a) applied to the juror waiver in appellant's case, failure to comply with the statutory requirements did not amount to reversible error.
        The failure of a trial court to adhere to a statutory procedure related to a constitutional provision is a violation of the statute only, not a violation of the constitutional provision. Chavez v. State, 91 S.W.3d 797, 800 (Tex. Crim. App. 2002). Accordingly, any error caused by the trial court's failure to comply with article 1.13(a) in the case must be disregarded unless the error affected appellant's substantial rights. See Tex. R. App. P. 44.2(b). Appellant's counsel represented to the trial court that the defense agreed to proceeding with only five jurors. And appellant, who actively participated throughout his trial and testified in his defense, never voiced any objection to proceeding with one fewer juror. Nor does he complain he received ineffective assistance of counsel. A defendant in a misdemeanor case may agree to a trial by a jury composed of fewer than six people. Mackey v. State, 151 S.W. 802, 803 (Tex. Crim. App. 1912). Based on this record, we conclude appellant agreed to proceed with five jurors and was not harmed by any statutory error in the trial court's failure to comply with article 1.13(a). We resolve appellant's first and second issues against him.
        In his third and fourth issues, appellant complains the evidence against him is legally and factually insufficient to support his conviction. He contends there was evidence at trial that he was “on his own premises or premises under his control when he possessed the gun in question.” A person is not guilty of unlawfully carrying a weapon if he is carrying the weapon on his own premises or premises under his control. See Tex. Pen. Code Ann. § 46.15(b)(2) (Vernon Supp. 2006).
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, No. PD-469-05, 2006 WL 2956272, at *7 (Tex. Crim. App. Oct. 18, 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Watson, 2006 WL 2956272, at *8. Under either review, the jury is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Jones v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App. 1996); Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.).
        Appellant admitted he was holding the firearm in the parking lot of the condominium complex where he rented. The parking lot was fully accessible to the public. Clearly, appellant did not possess the firearm on his own premises. Appellant nonetheless argues that the parking lot was a premises under his control. To support this allegation he contends he was a member of the board of directors of the condominium association and chairman of the crime watch committee. Appellant did not become a member of the board, however, until months after the offense. And his testimony shows only that he created the crime watch committee the day before his arrest, not that he was made the chairman of the committee on that date.
        Appellant further claims he was given “full ownership rights” by the owners of his condominium unit, but, other than appellant's testimony, no evidence was admitted to support this claim. Moreover, the condominium owners possess only their condominium and their individual parking space. The evidence in this case fails to show appellant was on his own premises or a premises under his control when he possessed the firearm. Evaluating the evidence under both the legal and factual sufficiency standards, we conclude it is sufficient to support appellant's conviction. We resolve appellant's third and fourth issues against him.
        In his fifth, related issue, appellant complains the trial court erred in denying his request for a jury instruction on the defense of carrying a weapon on his own premises. He specifically requested that the jury be instructed to find him not guilty if it found he was on his own premises under the “conjoint control” of the condominium complex at the time he possessed the handgun. When a defensive theory is raised by the evidence, a defendant is entitled to have the jury instructed on that defense “regardless of whether such evidence is strong or weak, unimpeached or contradicted.” See Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987).
        Here, at the time the officer saw the handgun, appellant was in a parking lot for the condominium complex that was open to the public. He was not in the parking place assigned to his condominium. He had no greater right to be in that spot in the parking lot than a person off the street. We thus conclude that no evidence at trial raised the defensive theory of appellant's possession of the weapon on his own premises or premises under his control. See Tex. Pen. Code Ann. § 46.15(b)(2). We resolve appellant's fifth issue against him.
        In his final issue, appellant requests that the judgment be modified to reflect his actual plea, the sentence imposed, and the attorney who represented him at trial. The State joins appellant in the request. We have the power to modify judgments where we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly, we resolve appellant's sixth issue in his favor. We modify the judgment to show that appellant pleaded not guilty rather than guilty; to show that appellant's sentence was 180 days' confinement, probated for twelve months, and a $500 fine, rather than three days' confinement and a $100 fine; and to show that appellant was represented at trial by Jack Manning, rather than by Scott Bryant.         As modified, we affirm the trial court's judgment.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
050707F.U05