Lewis Gray v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-03-045 CR ____________________ LEWIS GRAY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 217th District Court Angelina County, Texas Trial Cause No. 23121 MEMORANDUM OPINION A jury convicted Lewis Gray of aggravated sexual assault of a child and sentenced him to forty-five years' confinement in the Texas Department of Criminal Justice, Institutional Division. Gray appeals raising one issue. Gray contends the trial court erred in proceeding with only eleven jurors at the punishment phase of trial over objection in violation of his constitutional and statutory right to be tried by twelve persons. The only authority cited by Gray in support of his contention is Article V, section 13 of the Texas Constitution and article 36.29 (a) of the Texas Code of Criminal Procedure. See Tex. Const. art. V, § 13; and Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp. 2003). In the present case, the disabled juror was dismissed before the charge was read in the second phase of a bifurcated trial. Therefore, in accordance with article 36.29 (a), the remaining eleven jurors had the power to render the punishment verdict. This issue has been addressed by other courts. Relying on the holding in Campbell v. State, 644 S.W.2d 154 (Tex. App.--Austin 1982), pet. ref'd, 647 S.W.2d 660 (Tex. Crim. App. 1983), the Houston Court of Appeals has held . . . clearly the juror was excluded prior to the reading of the charge on punishment. Since this was the second phase of a bifurcated trial, in which a completely different charge is given to the jury, the juror was excused prior to the charge being read regarding the issue the jury was to decide. Therefore, appellant has failed to show that the trial court erred in denying appellant's motion for mistrial. Sanchez v. State, 837 S.W.2d 791, 795 (Tex. App.--Houston [14th Dist.] 1992, pet. ref'd). The holdings in both Campbell and Sanchez can be applied to the present case since the disabled juror was clearly excused before the charge was read in the second phase of a bifurcated trial, and in accordance with Article 36.29(a), the trial court did not err in allowing the remaining eleven jurors to render the punishment verdict. Additionally, the Court of Criminal Appeals recently held [t]he Texas Constitution provides without qualification that a trial can proceed with as few as nine jurors if a juror is dismissed because of a disability. It does not set forth any procedures that must be adhered to following the dismissal. See TEX. CONST. art. V, § 13. Rather, it is the legislature that has chosen to regulate the manner in which a trial may proceed following the discharge of a disabled juror. See Article 36.29. Thus, because the decision to proceed with the trial over appellant's objection is a violation of a purely statutory right, we hold that the error is subject to a harm analysis under Rule of Appellate Procedure 44.2(b). Chavez v. State, 91 S.W.3d 797, 801 (Tex. Crim. App. 2002). In so doing, the court noted that the case did not involve a violation of a constitutional right because appellant did not contend that the trial court erroneously dismissed the juror. Similarly, in the case at bar, Gray does not contend the juror was erroneously dismissed, and because the disabled juror was dismissed before the charge was read, no harm analysis is warranted. Accordingly, Gray's sole issue is overruled and the judgment of the trial court is AFFIRMED. PER CURIAM Submitted on July 23, 2003 Opinion Delivered July 30, 2003 Do not publish Before McKeithen, C.J., Burgess, and Gaultney, JJ.