EARNEST LERON SMITH, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed November 16, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-01008-CR
No. 05-09-01009-CR
No. 05-09-01010-CR
No. 05-09-01011-CR
NO. 05-09-01012-CR        
............................
EARNEST LERON SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 6
Dallas County, Texas
Trial Court Cause Nos. F07-23796-LX, F07-23797-LX, F07-23798-LX, F07-23799-LX, F07- 23800-LX
 
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OPINION
Before Justices Morris, Moseley, and Myers
Opinion By Justice Myers
        Earnest Leron Smith appeals from convictions for aggravated kidnapping and aggravated assault. In one issue, he argues that a juror was disabled from serving as a juror because of bias. We affirm the trial court's judgments.
 
 
 
Background and Procedural History
 
        Appellant was charged by indictment with four counts of aggravated kidnapping   See Footnote 1  and one count of aggravated assault.   See Footnote 2  Appellant pleaded guilty before the jury to each charge, enhanced by a prior conviction, and appellant pleaded true to the enhancements. The jury found appellant guilty in each case and sentenced him in the four aggravated kidnapping cases to forty-nine years in prison, and in the aggravated assault case to twenty-five years in prison. Appellant's motions for new trial were overruled by operation of law. These appeals followed.
        After the jury was sworn and empaneled and the State presented its case, juror Kerry Hopper spoke with the court. Hopper stated that she was employed by CareerStaff Unlimited, a health care company, and that it did contract staffing for rehabilitation therapies. Hopper's employer had assigned two therapists to the location--Castle Manor--where appellant's offenses were committed, and those offenses included hostage taking. At the time of the hostage standoff, according to Hopper, someone called CareerStaff to advise them of the situation. Later that evening, one of the CareerStaff therapists called and stated that both of them were safe and neither of them had been involved in the hostage situation. Hopper did not know who was involved in the hostage situation or how it unfolded, except to say that she did not believe her two fellow employees were present at the location when the offenses took place. She stated that her limited knowledge of the case would not have any bearing on her ability to fully and fairly determine appellant's “correct sentencing by the laws.”
        During examination by appellant's trial counsel, Hopper reiterated that she did not (either at the time or subsequently) discuss with anyone the specifics of what occurred at Castle Manor, and that at the time of trial CareerStaff did not employ any professional therapists that had been assigned to Castle Manor. Hopper again stated that she did not recall any details of the incident. Under examination by the prosecutor, Hopper stated that (1) she had not formed an opinion regarding appellant's punishment; (2) she did not have any opinions that would influence her in one direction or another; and (3) she could keep an open mind regarding the full range of punishment.
        After Hopper left the courtroom, appellant's trial counsel made the following objection to Hopper continuing to serve on the jury:
 
As a defense attorney, I just don't think we can proceed with her. I just think it's--it's just too much, just the fact that it's even Castle Manor. I mean, it was on the news. She knows it's on the news. I mean, it's only natural, common sense that at that immediate time, she's going to form an opinion. It's certainly not going to be an opinion that's going to help my client. So I'm going to object that we continue with her.
 
Appellant's counsel also argued:
 
. . . I just think its prejudicial to my client because once all the facts do come in and she realizes that it is Castle Manor, you know, she has pre-knowledge of something before anybody else that has that knowledge. And she admitted that yes, it was a scary thing, and she did discuss it with her family. She knew it was on the news. I'm just going to renew my objections.
 
The trial court overruled appellant's objection and commented as follows:
 
Well, she didn't appear to remember any details, said she didn't know any specific facts. Mr. Smith has pled guilty, and there is a broad range of punishment. I'm going to go ahead and I'm not going to strike her at this time. I think that she can--indicated she can be fair, and we need to just move forward.
 
On the following day, appellant's counsel renewed her objection to Hopper remaining on the jury:
 
Your Honor, I would like to reurge my objection relating to the juror, Ms. Hopper, who came out and stated what little knowledge that she did say about Castle Manor, that I still object that she cannot be fair and impartial due to the fact that she knew two employees that were working there at the time, two employees of hers. And also, I'm concerned as to whether or not she may have investigated in order for any of her employees to return.
        And I feel that the Defendant was denied appropriate challenge because there was a question asked by the District Attorney regarding whether or not anyone was--or was a victim of a crime or a loved one. And if she had mentioned anything about her employees being employed at Castle Manor where there were also four aggravated kidnappings, we would have further questioned her and probably struck her for cause.
 
The trial court again overruled appellant's objection.
Discussion
        In his only issue, appellant argues that the trial court erred in failing to strike Hopper “for bias after she approached the court and told of her knowledge of the incident.” Appellant bases his argument on article 36.29(a) of the Texas Code of Criminal Procedure, and argues Hopper was disabled from serving as a juror in the trial due to her bias. The State argues that appellant's issue is not preserved or, alternatively, that the trial court did not abuse its discretion.
         Standard of Review and Applicable Law
        Assuming, without deciding, that appellant's issue was preserved for review, we conclude his argument fails on the merits. Article 36.29(a) of the code of criminal procedure provides:
 
Not less than twelve jurors can render and return a verdict in a felony case. It must be concurred in by each juror and signed by the foreman. Except as provided in Subsection (b), however, after the trial of any felony case begins and a juror dies or, as determined by the judge, becomes disabled from sitting at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict; but when the verdict shall be rendered by less than the whole number, it shall be signed by every member of the jury concurring in it.
 
Tex. Code Crim. Proc. Ann. art. 36.29(a) (West Supp. 2009).
        A juror is disabled if he has a physical illness, mental condition, or emotional state that hinders his ability to perform his duties as a juror. Hill v. State, 90 S.W.3d 308, 315 (Tex. Crim. App. 2002). A disability for purposes of article 36.29 includes any condition that inhibits a juror from fully and fairly performing the functions of a juror. Routier v. State, 112 S.W.3d 554, 588 (Tex. Crim. App. 2003). The determination as to whether a juror is disabled is within the discretion of the trial court. Routier, 112 S.W.3d at 588. A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).
        It is well established that a bias or prejudice in favor of or against the defendant is not a disability within the meaning of article 36.29(a). Ex parte Hernandez, 906 S.W.2d 931, 932 (Tex. Crim. App. 1995), overruled on other grounds by Hatch v. State, 958 S.W.2d 813 (Tex. Crim. App. 1997); Carrillo v. State, 597 S.W.2d 769, 771 (Tex. Crim. App. 1980); but see Reyes v. State, 30 S.W.3d 409, 411-12 (Tex. Crim. App. 2000) (concluding that previous decisions in Hernandez and Carillo did not foreclose the possibility that a juror could be “disabled” through knowledge of a defendant when such knowledge inhibited the juror from fully and fairly performing the functions of a juror).
         Analysis
        In the present case, Hopper possessed knowledge of the incident that led to the instant allegations against appellant. But nothing in the record suggests this knowledge affected Hopper's mental condition or emotional state such that she was inhibited from fully and fairly performing her duties as a juror. See Reyes, 30 S.W.3d at 412. Accordingly, the trial court did not abuse its discretion by refusing to remove Hopper from the jury. We overrule appellant's issue.
        We affirm the trial court's judgments.
 
                                                          
                                                          LANA MYERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
091008F.U05
 
Footnote 1 Cause numbers 05-09-01008-CR (F07-23796-LX), 05-09-01009-CR (F07-23797-LX), 05-09-01010-CR (F07-23798-LX), and 05-09-01011-CR (F07-23799-LX).
Footnote 2 Cause number 05-09-01012-CR (F07-23800-LX).