Jerome Whitaker v. Vivian Lahmon, et al.--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-94-009-CV

JEROME WHITAKER,

Appellant

v.

VIVIAN LAHMON, ET AL.,

Appellees

From the 13th District Court

Navarro County, Texas

Trial Court # 93-00-03814-CV

O P I N I O N

Jerome Whitaker, proceeding in forma pauperis, sued the twelve members of the jury that convicted him of aggravated robbery. // He alleged that the jury had violated his constitutional rights by finding that he used a deadly weapon in the course of a robbery in the absence of any evidence to support the finding and sought resentencing and $1.5 million in damages. The court found that the suit was "asinine [and] frivolous" and dismissed his petition. See Tex. Civ. Prac. & Rem. Code Ann. 13.001(a) (Vernon Supp. 1994). We agree.

Our duty is to affirm the judgment of the trial court if it was proper under any legal theory. See Birdo v. Ament, 814 S.W.2d 808, 810 (Tex. App. Waco 1991, writ denied). We conclude that the dismissal was proper because the claim has no arguable basis in law or in fact. See Tex. Civ. Prac. & Rem. Code Ann. 13.001(b)(2). Individuals are absolutely immune from suits based on their service as jurors at a criminal trial. See Young v. Biggers, 938 F.2d 565, 569 (5th Cir. 1991); see also Freeze v. Griffith, 849 F.2d 172, 174 (5th Cir. 1988); Sunn v. Dean, 597 F. Supp. 79, 81-82 (N.D. Ga. 1984). The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed April 6, 1994

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