In Re Jgcg

283 S.W.3d 927, 2009 Tex. App. LEXIS 2692, 2009 WL 1035125
Procedural entryThis page is a short order in In Re Jgcg. Read the opinion of the Court — 283 S.W.3d 927
Court of Appeals of Texas·Decided April 16, 2009·No. 2-08-200-CV·Published

Opinion

283 S.W.3d 927 (2009)

In the Matter of J.G.C.G.

No. 2-08-200-CV.

Court of Appeals of Texas, Fort Worth.

April 16, 2009.

*928 Henry C. Paine, Jr., Denton, TX, for Appellant.

Paul Johnson, Criminal District Atty., John A. Stride, Asst. Criminal District Atty. and Chief of the Appellate Section, Andrea A. Simmons, Sheila Bowles, and *929 Victoria Abbott, Asst. Criminal District Attys., Denton, TX, for Appellee.

Panel: GARDNER, WALKER, and McCOY, JJ.

OPINION

BOB McCOY, Justice.

I. Introduction

In this aggravated sexual assault/delinquent conduct case, J.G.C.G. (hereinafter "Buddy") asserts in one issue that the trial court erred by denying his request for a mistrial after learning that a seated juror was taking a controlled substance. We affirm.

II. Background

After the six-person jury was sworn and seated, the following exchange took place between the court, a juror, and counsel:

THE COURT: ... Do any of you have any medical needs; you have to eat at a certain time or take medications or anything of that sort? All right, Yes, sir?
JUROR: I do take pain medication, and that's every four hours, so—
THE COURT: Every four hours. Do you have that medication with you?
JUROR: In the car.
THE COURT: At what time is your next scheduled medication?
JUROR: 4:00 o'clock.
THE COURT: 4:00 o'clock. So we'll need—okay, everybody, those of you who are—probably be the—Let's try to keep an eye on it.
JUROR: It's not—it's not a real—it's not like I have to get it that instant. I'm just letting you know.
THE COURT: But roughly 4:00 o'clock?
JUROR: Right.
THE COURT: Okay. No, we need to know that. And then tomorrow, if you would, please, write down what your schedule is for tomorrow so the bailiff can keep me informed about that.
JUROR: Okay.
THE COURT: We don't want you to go into some sort of painful situation.
. . . .
THE COURT: I'm going to ask the jury to step outside. I'm going to ask this one juror with medication to remain in the courtroom for just a minute or two.
THE COURT: Okay. Now that everybody else is out, will this medication interfere in any way with your ability to listen?
JUROR: No.
THE COURT: And—
JUROR: No. I—I've been taking it for a couple years, and the doctor has given it to me for—I had bad foot surgery.
THE COURT: Uh-huh.
JUROR: And I don't even—I can't even tell I'm taking it, quite honestly, but I can tell when I don't take it because I hurt.
THE COURT: Would you mind telling us the name of that?
JUROR: Hydrocodone and Lyrica.
THE COURT: Okay.
JUROR: And Cymbalta.
THE COURT: And it doesn't interfere with your driving—
JUROR: No.
*930 THE COURT: —your—
JUROR: In fact, I—I drive for a living, so if it interfered with that, then it would be an issue.
THE COURT: Okay. Return the jury, please.
[DEFENSE COUNSEL]: Judge, I had a motion I—
THE COURT: Okay. Wait. I'm sorry.
[DEFENSE COUNSEL]: I'd like to make a motion outside the—
THE COURT: Okay. Then I'm going to ask you, would you step outside, please.
THE COURT: Okay. There's no jury member in the courtroom.
[DEFENSE COUNSEL]: Judge, at this time, due to the mention of these narcotic drugs that were not mentioned on voir dire by this person that's been selected for the jury, I'm going to move for a mistrial because, based on the medication, the cocktail-type of medications that he's on—he's on three different medications for pain, and I know myself that Hydrocodone is a narcotic drug that can severely impair judgment, and that because of that, at this time we're going to respectfully request a mistrial.
THE COURT: Does the State have any position on this? Hearing none, I'm denying the motion.

Also, the next day the following exchanged occurred:

[DEFENSE COUNSEL]: Are we keeping up with our juror's pain medication?
THE COURT: Yes. Well, yes. I got an e-mail about that. 12:00 noon is when he needs to take his next medication.
[DEFENSE COUNSEL]: Thank you, Judge.
(Recess taken)
THE COURT: The bailiff had informed me that your medication is due at 4:00 o'clock. Can you take that in about five minutes?
JUROR: Yeah.
THE COURT: Okay. We're going to let the jury exit for about five minutes. Go ahead and take care of your medication. Then we'll have you come back in.

III. Discussion

A. Standard of Review

We review a trial court's ruling on a motion for mistrial for an abuse of discretion. See Webb v. State, 232 S.W.3d 109, 112 (Tex.Crim.App.2007). We view the evidence in the light most favorable to the trial court's ruling and uphold the ruling if it was within the zone of reasonable disagreement. Id. A trial court abuses its discretion in denying a motion for mistrial only when no reasonable view of the record could support the ruling. Id. The determination of whether a juror is disabled is also within the discretion of the trial court, and absent an abuse of that discretion, we will not find reversible error. See Brooks v. State, 990 S.W.2d 278, 286 (Tex.Crim.App.), cert. denied, 528 U.S. 956, 120 S.Ct. 384, 145 L.Ed.2d 300 (1999).

B. Disabled Juror

Buddy frames his complaint in terms of article 35.16 of the Texas Code of Criminal Procedure, entitled "Reasons for Challenge for Cause." Specifically, Buddy asserts the applicability of article 35.16(a)(5), which reads in part,

A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury ... for any one of the following reasons:
*931 5. That the juror has such ... bodily or mental defect or disease as to render the juror unfit for jury service....

Tex.Code Crim. Proc. Ann. art. 35.16(a)(5) (Vernon 2006). He also refers us to Cordova v. State, No. 04-03-00639-CR, 2004 WL 2997734, at *1 (Tex.App.-San Antonio Dec.29, 2004, no pet.) (mem. op., not designated for publication),[1] although he acknowledges that this case is "clearly not on point."

We note that, while the word "juror" is used throughout chapter 35 of the code of criminal procedure, entitled "Formation of the Jury," it is apparent in context that the word in article 35.16 refers to prospective jurors and not to seated jurors. See State v. Morales, 253 S.W.3d 686, 693 (Tex.Crim.

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In Re Jgcg, 283 S.W.3d 927, 2009 Tex. App. LEXIS 2692, 2009 WL 1035125 (Tex. Ct. App. 2009).

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