RONALD PARSON, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed November 22, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00300-CR
No. 05-89-00301-CR
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RONALD PARSON, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause Nos. F88-96628/29-NJ
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OPINION PER CURIAM
Before Justices Whitham, Rowe and Whittington
        Ronald Parson was convicted by a jury of the offenses of aggravated assault and involuntary manslaughter. Punishment in the aggravated assault case was assessed at ten years' confinement, probated for a period of ten years. Punishment in the involuntary manslaughter case was assessed at ten years' confinement. Appellant raises two points of error, claiming that: (1) the trial court erred in failing to excuse, sua sponte, an unqualified juror; and (2) the trial court erred in failing to grant appellant's motion for new trial. We overrule both points and affirm the judgments of the trial court.
        We will address appellant's points of error together, since the basis of the claimed error in both cases was the trial court's failure to exclude a juror who was absolutely disqualified from serving. The record reflects that during voir dire, one of the venirepersons told the court that he had previously been convicted of criminal mischief and theft under $200. The venireperson was subsequently selected to serve on the jury. At the end of trial, after the jury had been dismissed, the juror was again asked about his criminal record. He said that in the theft case, he was put on probation and "lived that out successfully." He also told the court that there was no final conviction in the theft case. When defense counsel questioned him about the offense, he referred to an offense "that was on the computer screen."
        Appellant filed a motion for new trial alleging that the juror was absolutely disqualified because he had been convicted of theft on June 8, 1976. He attached to his motion a judgment in Cause No. 75-3899-D, which recited that the juror had been convicted of theft of $5 or more but less than $50. At the hearing on the motion for new trial, the State introduced the court file in Cause No. 75-3899-D. The documents contained in the file included a docket sheet which contained the notation "T/U $5". In addition, the file included a voluntary statement and police reports describing the theft of bicycles and an attempt to remove an outside rear-view mirror from a car. The remaining documents revealed that the juror was tried for and convicted of criminal mischief for damaging the rear-view mirror; among these documents was a "Transcript of Judgment" containing the recitation that the juror was convicted of criminal mischief. In addition, the State introduced into evidence a corrected judgment in Cause No. 75-3899-D reciting that the juror was guilty of criminal mischief.
        A juror is absolutely disqualified when he has been convicted of theft or any felony. Tex. Code Crim. Proc. Ann. arts. 35.16(a), 35.19 (Vernon Supp. 1989). A conviction for misdemeanor theft is sufficient to constitute an absolute disqualification. Holland v. State, 761 S.W.2d 307, 317 (Tex. Crim. App. 1988); Frame v. State, 615 S.W.2d 766, 769 (Tex. Crim. App. [Panel Op.] 1981). However, when a juror has received a probated sentence, has successfully served his probation, and has been discharged, he is released from all penalties and liabilities; as a result, the juror is not absolutely disqualified. Payton v. State, 572 S.W.2d 677, 678-79 (Tex. Crim. App. 1978).
        In the present cause, the responses of the juror were conflicting. On one hand, he said he had been convicted twice, once of theft and once of criminal mischief. He later said that he had been placed on probation for the theft offense, and that there had been no final judgment. Defense counsel referred to a single offense "that was on the computer screen," and asked if the date of disposition of the theft case was consistent with the date appearing on the screen. When he filed his motion for new trial, he complained of a theft conviction in only one case. We are left with two possible conclusions; either the juror was prosecuted for only one offense, or he was prosecuted for two offenses, but only "convicted", for purposes of article 35.16 of the Code of Criminal Procedure, in one case. However, the result is the same under either option. It appears that only one conviction appeared of record. At the hearing on the motion for new trial, it was made clear that the conviction was for criminal mischief, a Class C misdemeanor. Tex. Penal Code Ann. § 28.03 (Vernon 1974). Thus, the record did not show that the juror was disqualified for the conviction complained of by appellant.
        Based on the foregoing, we conclude that the record does not show that a juror served when he was absolutely disqualified from service. Appellant's first and second points of error are overruled and the judgment of the trial court is affirmed.
                                                          PER CURIAM
Do Not Publish
Tex. R. App. P. 90
 
890300F.U05
 
 
File Date[11-21-89]
File Name[890300F]