Monroe Andrews v. The State of Texas--Appeal from Crim Dist Ct 3 of Dallas Co of Dallas County

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Andrews-M v. State /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-94-139-CR

 

MONROE ANDREWS,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the Criminal District Court No. 3

Dallas County, Texas

Trial Court # F94-00653-J

 

O P I N I O N

 

Appellant Andrews appeals his conviction for possession of heroin (less than 28 grams), with intent to deliver, enhanced by a prior felony conviction. The jury found Appellant guilty and punishment was fixed by the judge at twenty-five years in prison.

Appellant appeals on one point of error: "The trial court erred by holding a juror disabled under article 36.29, Texas Code of Criminal Procedure, and proceeding to try Appellant before a jury of eleven."

Appellant concedes that at no time did the court state the law it was relying on as authority for proceeding with eleven jurors, but that the only statute applicable appears to be article 36.29(a) of the Texas Code of Criminal Procedure. We assume, without deciding, that article 36.29(a) is here applicable. After the jury was chosen and released for the day the following occurred:

BAILIFF: Judge, we've a Mexican back there than can't speak English.

PROSECUTOR: On the jury?

BAILIFF: Yes, sir.

THE COURT: Let's not lose this whole jury panel, can we select another by agreement?

DEFENSE COUNSEL: Sure.

THE COURT: Why don't you just pick the next one on the list and let's call and see if we can get them back up here.

(Here, an off-the-record discussion, after which the following proceeding occurred).

THE COURT: One of the jurors has made it known to the bailiff that he speaks no English. He does not speak or understand English. I'm going to excuse that juror and all counsel have agreed they will continue with eleven jurors. Is that correct, gentlemen?

DEFENSE COUNSEL: Yes, sir.

PROSECUTOR: That's correct.

THE COURT: I'll ask you [Appellant], do you agree to eleven jurors instead of twelve?

[APPELLANT]: Yes.

THE COURT: Let the record reflect [Appellant] agrees in open court.

Article 36.29(a) 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 . . . when pending the trial of any felony case one juror may die or be 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.

 

The language of article 36.29 and the cases which have applied it hold that its intent was to limit application to those cases where the juror was physically or mentally impaired in some way, or the parties consented to trying the case with just eleven jurors. Carrillo v. State, 597 S.W.2d 769, 771 (Tex. Crim. App. 1980).

Because the parties agreed and Appellant's consent is on the record, the juror was "disabled" as contemplated by article 36.29. In any event, Appellant waived any error by expressly agreeing to continue with eleven jurors. Buck v. State, 599 S.W.2d 810 (Tex. Crim. App. 1980); Somudio v. State, 648 S.W.2d 312, 314 (Tex. Crim. App. 1983).

A trial court's alleged failure to comply with the statutory requirements for selection of jury panels is not reversible error absent a showing of injury, which is not present here. Cooks v. State, 844 S.W.2d 697, 725 (Tex. Crim. App. 1992).

Appellant's point is overruled. The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

 

Before Chief Justice Thomas,

Justice Cummings, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed October 4, 1995

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