Juan Gilberto Flores v. State of Texas--Appeal from 259th District Court of Jones County

Opinion filed July 24, 2008

In The

Eleventh Court of Appeals

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 No. 11-06-00348-CR

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JUAN GILBERTO FLORES, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 259th District Court

Jones County, Texas

Trial Court Cause No. 9028

M E M O R A N D U M O P I N I O N

A jury found Juan Gilberto Flores guilty of aggravated sexual assault, and the trial court assessed his punishment at confinement for sixty years. We affirm.

There is no challenge to the sufficiency of the evidence.

On the second day of the jury trial, a member of the jury sent a note to the trial court in which he said, AI didn=t know the little girl that was on the stand yesterday was my wife=s niece=s little girl. So I=m letting you know what the situation is.@ The trial court questioned the juror outside the presence of the other members of the jury. The juror indicated that his relationship with the victim=s family might affect his ability to be a fair juror. This excerpt from the record reflects what happened next:

THE COURT: Mr. Boaz [Flores=s trial counsel], what does the Defense desire?

[DEFENSE COUNSEL]: Judge, we would ask the Court to declare Juror Perez disabled under Article 36.29 of the Texas Code of Criminal Procedure and release him. He has indicated that probably the child victim . . . really won=t affect his ability to fully and fairly function as a juror even though she=s his wife=s niece=s child. However, he=s been informed that the wife=s niece . . . will testify for the State and he has indicated to the Court from questions by the Court that he will probably believe that witness and when asked by the Court would it affect his ability to give the Defendant a fair and impartial trial he said it could very well affect it. So we believe that he has become -- he is disabled. And in all fairness to the juror, counsel -- both counsel were probably not thorough enough in our examination during voir dire, but what has happened is he really didn=t know he knew these people until he actually saw them. And, of course, that can jog the memory. It did in this case, and he is obviously an honest and good man and came forth to let us all know about it, and, unfortunately, when his wife=s niece . . . testifies he=s probably going to believe her automatically, and so we would ask that he be excused.

[PROSECUTOR]: Judge, the State has no objection to excusing this juror under Article 36.29 and proceeding with 11.

[DEFENSE COUNSEL]: And, Judge, as I read Article 36.29 since we haven=t charged the jury yet, the remaining 11 jurors have the power to go ahead and render a verdict in the case as long as the verdict is unanimous and they follow the procedure on each -- all 11 will have to sign not just the presiding juror on the verdict form. That=s how I read 36.29.

THE COURT: All right. I=m going to declare Juror No. 12 disabled and we will proceed to trial with only the 11 jurors.

Flores brings one issue on appeal. In that issue, he claims that the trial court erred when it proceeded with eleven jurors under Tex. Code Crim. Proc. Ann. art. 36.29 (Vernon Supp. 2007) rather than under Tex. Gov=t Code Ann. ' 62.201 (Vernon 2005).

Article 36.29(a) provides in relevant part:

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.

Section 62.201 provides, AThe jury in a district court is composed of 12 persons, except that the parties may agree to try a particular case with fewer than 12 jurors.@

The court in Hatch v. State, 958 S.W.2d 813 (Tex. Crim. App. 1997), harmonized Article 36.29(a) and Section 62.201 by holding that the requirements under Article 36.29(a) could be waived by agreement in accordance with Section 62.201. Hatch, 958 S.W.2d at 816. The record must establish affirmatively that the parties have agreed to proceed with the trial with fewer than twelve jurors. Roberts v. State, 987 S.W.2d 160, 163 (Tex. App.CHouston [14th Dist.]1999, pet. ref=d). Here, the record is clear that the parties agreed to release the juror and to proceed with eleven jurors. Even if the trial court was incorrect in its reasons for releasing the juror and in proceeding with eleven jurors, we will uphold that ruling if it can be sustained under any applicable theory. Id. at 162. Section 62.201 authorized the action taken by the trial court. Id.

Further, the trial court did exactly what Flores asked it to do. The trial court did not commit error by releasing the juror and proceeding with eleven jurors; but, even if it did, Flores invited the error. The law of invited error estops a party from claiming error on appeal that arose because of an action it induced. Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999).

Flores advances the argument that the defendant must personally waive his right to be tried by a jury of twelve. That claim is similar to the position rejected by the majority and taken by the dissent in Hatch. There, the defendant did not sign a written waiver of his right to be tried by twelve jurors, yet the trial court=s action in proceeding with eleven jurors was upheld. If a defendant waives a jury, there are certain requirements that must be met in order for the waiver to be effective. For instance, Tex. Code Crim. Proc. Ann. art. 1.13(a) (Vernon 2005) provides in part that, to waive a jury effectively, the waiver must be made by the defendant in person, in writing, and in open court. In Hatch, the court pointed out that there was a distinction between a defendant who agrees to be tried by fewer than twelve jurors and one who is waiving his right to a jury entirely. Hatch, 958 S.W.2d at 816. The requirements set forth in Tex. Code Crim. Proc. Ann. arts. 1.13(a), 1.14, 1.15 (Vernon 2005) relate to the waiver of a jury trial, not to a waiver resulting in a trial by fewer than twelve jurors. Roberts, 987 S.W.2d at 162 (citing Hatch, 958 S.W.2d at 815).

It is affirmatively shown in the record that Flores asked the court to discharge the juror and also asked to proceed with eleven jurors. The State agreed. The parties are deemed to have agreed to proceed with fewer than twelve jurors. The provisions of Article 36.29(a) and Section 62.201 have been met.

Moreover, no complaint has been preserved for appellate review. Tex. R. App. P. 33.1(a). Flores=s sole issue on appeal is overruled.

We affirm the judgment of the trial court.

JIM R. WRIGHT

CHIEF JUSTICE

July 24, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright. C.J.,

McCall, J., and Strange, J.