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Price v. State

Court of Appeals of Texas, Fourteenth District

July 11, 2017

DETONE LEWAYNE PRICE, Appellant
v.
THE STATE OF TEXAS, Appellee

         On Appeal from the 178th District Court Harris County, Texas Trial Court Cause No. 1316155

          Panel consists of Justices Christopher, Jamison and Donovan

          OPINION

          John Donovan Justice

         A jury convicted appellant Detone Lewayne Price of capital murder. The trial court sentenced appellant to life without parole. Appellant brings this appeal complaining of the trial court's failure to remove a juror and an in-court identification of him by an eyewitness. We affirm.

         Background

         The complainant, Salim, accompanied his father, Saif al Mazrouei, from the United Arab Emirates to Houston, Texas, for Saif to receive cancer treatment. One night, two men broke into their apartment. One of the men pointed a gun at the complainant's head and he gave them his wallet and phone. The men left the apartment; Saif then ran out. As the complainant was going through the doorway, he was fatally shot. The men took Saif's car.

         The stolen car was found the next morning approximately one block from appellant's house. Fingerprints in the car matched those of appellant and Corey Perry. Saif selected both men from a photographic lineup.

         Appellant was charged with capital murder in that, while in the course of a robbery, he shot Salim with a firearm. As noted above, the jury found appellant guilty as charged and he was sentenced to life without the possibility of parole.

         Disabled Juror

         In his first issue, appellant claims one of the jurors ("L.W.") was disabled and should have been removed from the jury. See Tex. Code Crim. Proc. art. 36.29(a).[1]On the second day of trial, after testimony concluded, juror M.P. reported that another juror, whom she identified as the "younger" of two men with the same first name and wearing a plaid jacket, told the panel that he had seen news coverage of the case. According to M.P., "to be fair, we were not instructed not to watch the news and it was on the local news." M.P. said L.W. did not disclose any details. M.P. stated that L.W. suggested "this case was far more important than we realized or there were a lot of factors that we didn't realize they talked about in the news report that hadn't come out." M.P. thought L.W. "peaked [sic] a lot of interest with the way he phrased it." L.W. did not express any opinion on appellant's guilt. According to M.P., later that same day L.W. revealed appellant was eighteen and she did not recall that information having been presented in court.

         The next day, the trial court individually questioned each juror. Two of the jurors had not heard any other juror discussing news coverage. Six of the jurors said another juror revealed that he had seen the case on the news; they all agreed no details were given. None of them mentioned learning appellant's age at the time of the offense. Two of the jurors described the juror who saw the news coverage as the "younger" of two men with the same first name and described the clothing worn by the younger of the two. When questioned by the trial court, L.W. denied having seen any news coverage or hearing anyone else discussing it.

         The trial court asked L.W. "is there anything that has tainted your view of the evidence in this case or this case, in general? And can you still follow the oath that you took at the beginning of the trial that you'll decide the case on the evidence you see and hear in the courtroom, along with the law that I give you in the case?" L.W. answered, "Yes, sir."

         The trial court then discussed with the State and defense counsel what action to take. The record reflects that although the trial court thought L.W. was lying, the trial court was "not sure" article 36.29 was satisfied. Defense counsel asked for L.W. to be removed as disqualified[2] but refused to agree to proceed with eleven jurors, asking instead for a mistrial. The State's position was that because L.W. was not disabled, he could remain on the jury unless the defense agreed to his disqualification and proceeded with eleven jurors. The trial court ultimately denied the defense's motion to disqualify L.W., on the basis that article 36.29 had not been satisfied. The trial court also denied the defense's motion for a mistrial.

         Applicable Law

         The Texas Constitution requires a jury in a felony criminal trial to be composed of twelve members. Tex. Const. art. V, § 13; Rivera v. State, 12 S.W.3d 572, 578 (Tex. App.-San Antonio 2000, no pet.). Likewise, article 36.29(a) of the Texas Code of Criminal Procedure provides that no less than twelve jurors can render and return a verdict in a felony case. Tex. Code Crim. Proc. art. 36.29(a). However, both the Texas Constitution and article 36.29 provide that if a juror dies or becomes "disabled" from sitting, the remaining empaneled jury has the power to render the verdict. Tex. Const. art. V, § 13; Tex. Code Crim. Proc. art. 36.29(a) (providing that if a juror dies or becomes disabled from sitting after the trial of a felony case begins, but before the court's charge is read to the jury, "the remainder of the jury shall have the power to render the verdict"). Another exception is provided by section 62.201 of the Texas Government Code: "The 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." Tex. Gov't Code § 62.201. Thus a trial can proceed with eleven jurors when the parties consent, or, "regardless of the parties' consent, when a juror dies or becomes disabled under Art. 36.29(a)." Hill v. State, 90 S.W.3d 308, 314 (Tex. Crim. App. 2002) (citing Hatch v. State, 958 S.W.2d 813, 816 n.4 (Tex. Crim. App. 1997)).

         Disability is not limited to physical disease, but includes "any condition that inhibits a juror from fully and fairly performing the functions of a juror." Reyes v. State, 30 S.W.3d 409, 411 (Tex. Crim. App. 2000) (quoting Griffin v. State, 486 S.W.2d 948, 951 (Tex. Crim. App. 1972)); see also Ponce v. State, 68 S.W.3d 718, 721 (Tex. App.-Houston [14th Dist.] 2002, no pet.). The disabling condition may result from physical illness, mental condition, or emotional state. Reyes, 30 S.W.3d at 411; Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999). A juror's bias or prejudice for or against the defendant does not render a juror disabled. Reyes, 30 S.W.3d at 412; Bass v. State, 622 S.W.2d 101, 106 (Tex. Crim. App. 1981).

         The determination as to whether a juror is disabled is within the discretion of the trial court. Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012). Absent such an abuse of discretion, we will not find reversible error. Id. at 784. (citing Brooks, 990 S.W.2d at 286); Ponce, 68 S.W.3d at 721 (same)). Thus, the trial court must make a sufficiently supported finding that the juror was disqualified or unable to perform the duties of a juror. Scales, 380 S.W.3d at 784. When reviewing the trial court's ruling on a request to dismiss a juror, we do not substitute our own judgment for that of the trial court, but rather assess whether, after viewing the evidence in the light most favorable to the trial court's ruling, the ruling was arbitrary or unreasonable. Id. (citing Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995)). We must uphold the trial court's ruling if it falls within the zone of reasonable disagreement. Id. (citing Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009)).

         Analysis

         On appeal, appellant contends the trial court abused its discretion when it denied his motion to remove L.W. under article 36.29(a) because he lied after having taken his oath as a juror.[3] The trial court's statements on the record reflect his belief that L.W. lied about having seen news coverage of the case. Because the trial court is the finder of fact, we limit our review to a determination of whether a juror who falsely denies having seen news coverage about the case during trial becomes "disabled" within the meaning of article 36.29.

         We first clarify that only a venireperson (a prospective juror) is disqualified from sitting on a jury. This occurs in two instances: (1) the venireperson is "absolutely disqualified, " or (2) the venireperson is subject to challenge for cause. See Green v. State, 764 S.W.2d 242, 246 (Tex. Crim. App. 1989). A venireperson is absolutely disqualified if he has been convicted of misdemeanor theft or a felony, is under indictment or other legal accusation for misdemeanor theft or a felony, or is insane. See Tex. Code Crim. Proc. arts. 35.19, 35.16(a). A juror, on the other hand, is dismissed from the jury after it is impaneled. This occurs only if the juror dies or becomes disabled from sitting. Tex. Code Crim. Proc. art. 36.29(a).

         When a juror is guilty of misconduct, such as discussing the case with other jurors before deliberations, discussing the case with a non-juror, seeking information about the case on the internet, driving-by the crime scene, or watching/reading the news, the defendant is entitled to a new trial, if the misconduct prevented him from receiving a fair and impartial trial. Tex.R.App.P. 21.3(g). Because appellant does not assert the trial court erred in denying his motion for mistrial on the basis of jury misconduct, we do not decide that issue.[4] Rather, appellant seeks a holding from this court that a juror who allegedly lies to the court during trial is disabled, even though juror misconduct itself is not a matter of disability.[5]

         As noted above, the issue before us is whether L.W. became disabled. L.W. clearly did not suffer from a physical illness. The fact that L.W. denied having seen the news could not qualify as a "mental condition" or "emotional state" unless it would inhibit him from fully and fairly performing the functions of a juror. See Ponce, 68 S.W.3d at 721; see also Hill, 90 S.W.3d at 315 (holding juror who was unable to perform her duties because of debilitating panic attacks was disabled); Clark v. State, 500 S.W.2d 107 (Tex. Crim. App. 1973) (holding juror was disabled where he was emotionally upset over the death of his father-in-law and needed to go out of the state to be with his wife and none of the parties objected to proceeding with the remaining jurors); Griffin, 486 S.W.2d at 951 (upholding discharge of juror as disabled because juror was arrested for driving under the influence of intoxicating liquors during a noon recess).

         The arguments appellant makes in support of his claim that the trial court erred in failing to find L.W. was disabled are based upon (1) absolute disqualification in that L.W. committed aggravated perjury on the record, (2) L.W. was subject to a challenge for cause for lying to the trial court and (3) could not have been rehabilitated, and (4) the trial court agreed L.W. was disqualified. However, there is nothing in the record to indicate that, at the time of trial, L.W. was absolutely disqualified from serving as a juror under Tex. Crim. Proc. Code Ann. arts. 35.19, 35.16(a), discussed infra. "Committing a felony on the record" is not addressed in the code as an absolute disqualification. See Brooks, 990 S.W.2d at 286 (concluding juror arrested for carrying a handgun to court was not disabled under article 36.29).

         As to appellant's argument that L.W. was subject to a challenge for cause and could not have been rehabilitated for lying to the trial court, as noted above there is a distinction between a venireperson being disqualified and a juror being disabled from sitting. Article 36.29 is clear on its face. If the legislature had intended a trial court to remove a juror for any, or all, of the same reasons that a venireperson can be struck for cause, "it could have simply said so." Hargrove v. State, 40 S.W.3d 556, 559 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd) (construing a provision of the Texas Transportation Code). We decline to hold that a trial court errs in failing to remove a sitting juror because, as a venireperson, he or she would have been subject to a challenge for cause.

         Finally, whether or not the trial court agreed that L.W. would have been subject to a challenge for cause is of no moment - it does not, nor can it, alter the plain meaning of article 36.29(a). The record before this court does not establish the trial court abused its discretion in failing to find L.W. was disabled pursuant to article 36.29. Accordingly, appellant's first issue is overruled.

         Appellant's second issue asserts the failure to remove L.W. violated his right to a fair and impartial jury under the Texas Constitution. See Tex. Const. art. I, § 10. The record before this court reflects this issue was not presented to the trial court. See Tex. R. App. 33.1(a). State constitutional rights are subject to ordinary rules of waiver. State v. Morales, 253 S.W.3d 686, 697 (Tex. Crim. App. 2008). Accordingly, nothing is presented for our review and we overrule appellant's second issue.

         In-court Identification

         In his final issue, appellant asserts the trial court erred in denying his motion to suppress an in-court identification by Saif of appellant and Perry. Appellant claims the pre-trial identification procedure was unduly suggestive, thus the in-court identification was tainted. In determining whether an in-court identification is admissible, we use a two-step analysis. See Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). First, we determine whether the pre-trial identification procedures were impermissibly suggestive and, second, whether the suggestive procedure gave rise to a very substantial likelihood of irreparable misidentification. Id.

         The record reflects that after appellant's and Perry's fingerprints were found in Saif's vehicle, Sergeant Miller assembled a photographic array of six men, including Perry. Sergeant Chandler also assembled a photographic array of six men, this one including appellant. Saif selected Perry's photo from Miller's array and appellant's photo from Chandler's array. Saif subsequently identified appellant and Perry during a video deposition that was played before the jury as Saif's health did not permit his return for trial.

         Appellant points to statements by Saif that Miller showed him a single picture of appellant prior to presenting him with the entire array as evidence that the identification procedure was unnecessarily suggestive. See Bond v. State, 29 S.W.3d 169, 171-72 (Tex. App.-Houston [14th Dist.] 2000, pet. ...


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