Appeal from the 178th District Court Harris County, Texas
Trial Court Cause No. 1316155
consists of Justices Christopher, Jamison and Donovan
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.
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.
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.
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.
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).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.
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.
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,
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 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.
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)).
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.
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)).
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. 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.
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).
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. 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.
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
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).
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.
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.
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.
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
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.
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.