In the Matter of J.A.M.--Appeal from 289th Judicial District Court of Bexar County

No. 04-98-00038-CV
In the Matter of J.A.M., a Juvenile
From the 289th Judicial District Court, Bexar County, Texas
Trial Court No. 97-JUV-01862
Honorable Carmen Kelsey, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 14, 1998

AFFIRMED

J.A.M. was adjudicated delinquent based on two counts of aggravated robbery, for which he received ten years commitment to the Texas Youth Commission. On appeal, J.A.M. complains the trial court erred in excusing a qualified venire person. Finding no error, we affirm.

J.A.M. argues the trial court abused its discretion in excusing Joe Vela, sua sponte, without giving J.A.M. an opportunity to question Vela or to hear his excuse. More specifically, J.A.M. contends the trial court violated article 35.03 of the Code of Criminal Procedure, regarding the court's ability to excuse jurors in a criminal case. In rebuttal, the State alleges J.A.M. waived error and improperly relies on the Code of Criminal Procedure. We agree with the State.

In this case, prospective jurors from the general assembly were directed to the juvenile court, where two members were dismissed.

THE COURT: Attorneys, I need you to approach. Prior to getting started number 7, Agapito Rivera, Jr., had small children, four and one, and they are going to be unsupervised after 3:30. So I sent him home. I released him. He didn't have anyone to watch his children. His wife had to go to work so he is gone. Number 7, Agapito Rivera.

The gentleman that just walked in is on the second list, the additional ten, Joe Vela. He has a prostate problem and kidney stones and he is drinking a lot of water and cannot sit still very long. I am excusing him from this panel to get a doctor's excuse. So he was excused because he cannot sit down. He has to be close to the restroom.

[THE STATE]: The State has no objection, Judge.

THE COURT: I was just letting you know so that you could mark your list. If you have an objection state it on the record, but I think it is appropriate. Mr. Rivera could have gotten an excuse from the Central Jury Room. I don't know how he made it this far.

[DEFENSE COUNSEL]: Well, Judge, since I didn't talk to this gentleman I have an objection.

THE COURT: Objection is noted for the record and overruled.

(Emphasis added.)

It is not clear whether J.A.M.'s attorney was objecting to the dismissal of Mr. Rivera or Mr. Vela. Additionally, it is not clear whether counsel was objecting on the basis of article 35.03 or some other provision of the Code of Criminal Procedure.(1) Because the objection was not specific, it failed to preserve error. See Tex. R. App. P. 33.1(a)(1); McDaniel v. Yarbrough, 898 S.W.2d 251, 252 (Tex. 1995).

In addition, the Code of Criminal Procedure is generally not applicable to juvenile proceedings. See In re J.A.W., No. 04-97-00322-CV, slip op at 6,1998 WL 354404, *3 (Tex. App.--San Antonio, June 30, 1998, no pet.); see also Tex. Fam. Code Ann. 51.17(c) (Vernon 1996) (applying chapter 38 of Code of Criminal Procedure to juvenile proceedings). Thus, article 35.03 is not applicable here. Even if it were, we find no abuse of discretion. Under article 35.03, a trial court may excuse a venire person for health reasons. Ellason v. State, 815 S.W.2d 656, 665 (Tex. Crim. App. 1991). Additionally, a trial court may act sua sponte at any time before the juror is seated. Butler v. State, 830 S.W.2d 125, 129-31 (Tex. Crim. App. 1992).

In conclusion, we find no error in the trial court excusing Mr. Vela. Accordingly, we affirm the trial court's judgment.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. Article 35.03 states, in part, that a court must hear excuses "and if the court deems the excuse sufficient, the court shall discharge the juror or postpone the juror's service." Tex. Code Crim. Proc. Ann. art. 35.03(1) (Vernon 1989). Chapter 35 also permits challenges to the array, peremptory challenges, and challenges for cause. Id. arts. 35.07, 35.14; id.. art. 35.16 (Vernon Supp. 1998).

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