Kelly Wayne Lamon v. State

Opinion

ACCEPTED 06-14-00241-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 4/9/2015 9:09:27 AM DEBBIE AUTREY CLERK

ORAL ARGUMENT REQUESTED

CAUSE NOS. 06-14-00241-CR FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS IN THE 4/9/2015 9:09:27 AM DEBBIE AUTREY COURT OF APPEALS Clerk

SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA ___________________________________________________________

KELLY WAYNE LAMON, Appellant

V.

THE STATE OF TEXAS, Appellee ___________________________________________________________

ON APPEAL FROM THE 102ND JUDICIAL DISTRICT COURT RED RIVER COUNTY, TEXAS; HONORABLE BOBBY LOCKHART TRIAL COURT NO. CR-02184 ___________________________________________________________

APPELLEE’S (STATE’S) BRIEF ____________________________________________________________

Val J. Varley, County and District Attorney Red River County and District Attorney’s Office Red River County Courthouse 400 North Walnut Street Clarksville, Texas 75426-4012 (903) 427-2009 (903) 427-5316 (Fax)

ATTORNEYS FOR THE STATE OF TEXAS

1 IDENTITY OF PARTIES AND COUNSEL

Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and

counsel is not required to supplement or correct the appellant’s list.

2 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL 2

TABLE OF CONTENTS 3

INDEX OF AUTHORITIES 4

STATEMENT OF THE CASE 7

STATEMENT REGARDING ORAL ARGUMENT 8

SOLE ISSUE PRESENTED IN REPLY 9

INTRODUCTION 10

STATEMENT OF FACTS 11

SUMMARY OF THE ARGUMENT 20

ARGUMENT AND AUTHORITIES 21

PRAYER 36

CERTIFICATE OF COMPLIANCE 37

CERTIFICATE OF SERVICE 37

3 INDEX OF AUTHORITIES

TEXAS CASES: PAGE(S):

Carrillo v. State, 597 S.W.2d 569 (Tex. Crim. App. 1980). 23

Castro v. State, 233 S.W.3d 46 (Tex. App.--Houston [1st Dist.] 2007, no pet.). 25, 27

Chavez v. State, 134 S.W.3d 244 (Tex. App.--Amarillo 2003, pet. ref’d). 32-33

Hegar v. State, 11 S.W.3d 290 (Tex. App.--Houston [1st Dist.] 1999, no pet.). 25

Hill v. State, 90 S.W.3d 308 (Tex. Crim. App. 2002). 24, 28-32

Kinslow v. State, No. 06-14-00083-CR, 2014 Tex. App. LEXIS 13619, 2014 WL 7204556 (Tex. App.--Texarkana December 14, 2014, no pet.) (mem. op., not designated for publication). 12

Landrum v. State, 788 S.W.2d 577 (Tex. Crim. App. 1990). 23

Martel, Joseph M. v. The State of Texas, No. 12-07-00034, 2008 WL 257367, 2008 Tex. App. LEXIS 652 (Tex. App.--Tyler January 31, 2008, no pet.) (mem. op., not designated for publication). 30, 32

Ransom v. State, 920 S.W.2d 288 (Tex. Crim. App. 1996). 34

Ricketts v. State, 89 S.W.3d 312 (Tex. App.--Fort Worth 2002, pet. ref’d). 28

Romero v. State,

4 396 S.W.3d 136 (Tex. App.--Houston [14th Dist.] 2013, no pet.). 25, 27

Sandoval v. State, 409 S.W.3d 23 (Tex. App.--Austin 2013, no pet.). 23

Scales v. State, 380 S.W.3d 780 (Tex. Crim. App. 2012). 20, 33-34

Sneed v. State, 209 S.W.3d 782 (Tex. App.--Texarkana 2006, pet. ref’d). 23

Thurman, Tracy Lee v. The State of Texas, No. 11-10-00086-CR, 2011 WL 3890564, 2011 Tex. App. LEXIS 7225 (Tex. App.--Eastland August 31, 2011, no pet.) (mem. op., not designated for publication). 32

Whitehead v. State, 437 S.W.3d 547 (Tex. App.---Texarkana 2014, pet. ref’d). 20, 31, 33

TEXAS CODE(S): PAGE(S):

Tex. Code Crim. Proc. Ann. art. 36.29(a) (West Supp. 2014). 21-23, 25

Tex. Code Crim. Proc. Ann. art. 36.29(c) (West Supp. 2014). 21-23, 25-27

Tex. Code Crim. Proc. Ann. art. 33.011(b) (West Supp. 2014). 22-23, 25

Tex. Penal Code Ann. § 22.01(a)(1), (b)(1) (West Supp. 2014). 7

TEXAS RULES OF APPELLATE PROCEDURE: PAGE(S):

Tex. R. App. P. 9.4(i)(3) 37

Tex. R. App. P. 9.5 37

Tex. R. App. P. 33.1(a) 23

5 Tex. R. App. P. 38.2 8, 10

Tex. R. App. P. 38.2(a)(1)(A) 2

Tex. R. App. P. 44.2(b) 33-35

6 STATEMENT OF THE CASE

After an incident at the jail on May 4, 2014, a Red River County

grand jury returned an original indictment that charged Lamon with the

felony offense of assault on a public servant. See Tex. Penal Code Ann. §

22.01(a)(1), (b)(1) (West Supp. 2014). During the course of a jury trial, the

trial court ruled that one of the jurors “just can’t fully and fairly perform his

functions as a juror, and I’m going to release him from service at this time.”

See RR, Vol. 6, pg. 12. After arguments of counsel, the trial court

proceeded to trial with eleven jurors. See CR, pg. 59.

At the conclusion of the guilt-innocence phase, the jury retired to

begin its deliberations; and by its verdict, the jury found Lamon guilty of the

felony offense of assault of a public servant, as charged in the indictment.

See RR, Vol. 6, pgs. 142-143; CR, pg. 63. Later, the jury found a prior

felony conviction to be “true” and assessed punishment at confinement for

twelve (12) years in the Institutional Divison of the Texas Department of

Criminal Justice. See RR, Vol. 8, pg. 48; CR, pgs. 71-72.

From the trial court’s final conviction (CR, pgs. 85-86), Lamon timely

filed his notice of appeal. See CR, pgs. 94-95. By this appeal, Lamon

brought a single issue/point of error that questioned the trial court’s decision

to proceed with eleven jurors.

7 STATEMENT REGARDING ORAL ARGUMENT

The appellant, Lamon, requested oral argument because it might assist

“by discussing the factual basis for the trial court’s decision.” See

Appellant’s Brief, pg. 8.

The State will also request oral argument in the above-styled and

numbered appellate cause. See Tex. R. App. P. 38.2(a). While the factual

basis for the trial court’s decision in removing juror Yaross was important,

oral argument might further assist this Court in clarifying when, and if, a

trial court abuses its discretion in proceeding to trial with eleven jurors as a

less drastic alternative to a requested mistrial.

Oral argument might further assist this Court in its harm analysis, if

any.

8 ISSUE PRESENTED IN REPLY

SOLE ISSUE PRESENTED IN REPLY: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REMOVING JUROR YAROSS AND IN PROCEEDING TO TRIAL WITH ELEVEN JURORS AS A LESS DRASTIC ALTERNATIVE TO THE APPELLANT’S REQUESTED MISTRIAL; ALTERNATIVELY, THE RECORD DID NOT REVEAL HARM.

9 CAUSE NO. 06-14-00241-CR

IN THE

COURT OF APPEALS

SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA ___________________________________________________________

KELLY WAYNE LAMON, Appellant

V.

THE STATE OF TEXAS, Appellee ___________________________________________________________

ON APPEAL FROM THE 102ND JUDICIAL DISTRICT COURT RED RIVER COUNTY, TEXAS; HONORABLE BOBBY LOCKHART; TRIAL COURT NO. CR-02184 ___________________________________________________________

APPELLEE’S (STATE’S) BRIEF ____________________________________________________________

COMES NOW, the State of Texas, by and through the elected County

and District Attorney of Red River County, Val J. Varley, and the County and

District Attorney’s Office of Red River County, files this Appellee’s Brief in

accordance with Rule 38.2 of the Rules of Appellate Procedure.

Unless otherwise indicated, Kelly Wayne Lamon will be referred to as

“Lamon” or “the appellant.” The State of Texas will be referred to as “the

State” or “the appellee.”

10 STATEMENT OF FACTS

Factual Background.

On May 4, 2014, Sergeant Phyllis Owens (Owens), who was

considered a “certified jailer and dispatch[er]” and had 27 years of

experience with the Red River County Sheriff’s Department, was working at

the jail. See RR, Vol. 6, pg. 28. Owens was a public servant. See RR,

Vol. 6, pgs. 28, 41. Owens was wearing a jail uniform shirt that had the

label, “Red River County Sheriff’s Department” on it. See RR, Vol. 6, pg.

42.

On May 4th, Owens was acting as a dispatcher and was sitting in the

Red River County jail dispatch office. See RR, Vol. 6, pgs. 29, 113-114.

Owens was performing dispatch and telecommunication duties. See RR,

Vol. 6, pg. 30. The dispatch office was located at 500 North Cedar in Red

River County, Texas. See RR, Vol. 6, pgs. 29, 39, 44.

On May 4th, Owens saw Lamon when he came into the dispatch

office. See RR, Vol. 6, pgs. 29, 51. Lamon came through a door, that was

partially open to the dispatch office. See RR, Vol. 6, pg. 54.

Lamon “attacked” (RR, Vol. 6, pg. 29) and “assaulted” Owens. See

RR, Vol. 6, pgs. 39, 85. Owens began calling for other officers. See RR,

Vol. 6, pg. 36. Lamon was choking her out. See RR, Vol. 6, pgs. 39, 65.

11 Owens felt like she “wasn’t going to make it. . . . I just -- I felt -- I lost

consciousness. I mean, I couldn’t breathe because pressure was applied to

my throat. I was choking, and I just -- it was terrifying.” See RR, Vol. 6,

pg. 35. It caused pain to her neck and pain to her throat. See RR, Vol. 6,

pg. 39.

At about that time, the non-violent and minimum security inmates

who were designated as “trusties,” were working in the kitchen at the time

that the incident occurred. See RR, Vol. 6, pgs. 37-38. They were

preparing supper. See RR, Vol. 6, pgs. 38, 49.

On May 4th, Byron Ray Alford, Jr. (“Bubba”) was an inmate in the jail

and had been a “trusty” for about 14 months. See RR, Vol. 6, pgs. 67, 69,

78. Bubba, age 39, was in jail for drugs (methamphetamine) and had been

indicted for a state-jail felony. See RR, Vol. 6, pgs. 75-76. Bubba was

convicted of the felony before any of the May 4th events happened. See RR,

Vol. 6, pg. 76. Later, Bubba served 2 months in the state jail. See RR, Vol.

6, pg. 77.

On that evening, Bubba was in the kitchen, making dinner trays. See

RR, Vol. 6, pg. 70. “It was right before dinner, about five o’clock.” See

RR, Vol. 6, pg. 70.

At some point, Bubba heard Ms. Marsha Reed (Reed) holler get back.

12 See RR, Vol. 6, pgs. 70-71. Reed was hollering to get back and pointing to

2 other inmates, Dylan Childers and Shane Kinslow.1

Bubba ran around the corner to see what was happening. See RR,

Vol. 6, pg. 70. Bubba was telling other inmates to get back as they were

coming out of the library after church. See RR, Vol. 6, pgs. 71-72. When

he did, Reed said, “go help Ms. Phyllis, two of them got by her.” See RR,

Vol. 6, pgs. 71-72.

Bubba went around to dispatch. See RR, Vol. 6, pg. 72. When

Bubba rounded the corner, he was the first one through the door. See RR,

Vol. 6, pgs. 72-73. Bubba saw Gary Field was knocking over stuff and

trying to hit “the button” to open the door to get out. See RR, Vol. 6, pgs.

72-73.

Bubba saw “Ms. Phyllis” being choked. See RR, Vol. 6, pg. 73.

“She was down on one knee about choked out.” See RR, Vol. 6, pg. 73.

Bubba saw her eyes, and “[t]hey was bugged out, and she was rolling back.”

See RR, Vol. 6, pg. 75.

Bubba grabbed his arm and pried them away. See RR, Vol. 6, pg. 73.

It was not easy to get Lamon off of her. See RR, Vol. 6, pg. 73.

1 See Kinslow v. State, No. 06-14-00083-CR, 2014 Tex. App. LEXIS 13619, 2014 WL 7204556 (Tex. App.--Texarkana December 14, 2014, no pet.) (mem. op., not designated for publication).

13 In addition to Bubba, Brice Franks and Tracy Morgan were the

“trusties” that were holding Lamon down. See RR, Vol. 6, pgs. 37, 74.

“They’re holding him securely.” See RR, Vol. 6, pg. 57. Finally, Lamon

said, “he had enough, and there wasn’t no -- he said he give up.” See RR,

Vol. 6, pg. 74. “Ms. Phyllis” was “real shook up.” See RR, Vol. 6, pg. 74.

Lamon was later escorted out by police, who took him down the

hallway and into the detox secured area. See RR, Vol. 6, pgs. 38-39, 60.

The Clarksville Police Department was dealing with Lamon, not the sheriff’s

department. See RR, Vol. 6, pg. 59.

Later, Owens went to the emergency room, East Texas Medical

Center. See RR, Vol. 6, pg. 56. They made an assessment and prescribed

medication for pain. See RR, Vol. 6, pg. 56.

That evening, Owens had “lots of soreness around her neck and

shoulder.” See RR, Vol. 6, pg. 40. Her right arm was bruised. It was

medically determined that she had a strained shoulder and neck. See RR,

Vol. 6, pg. 40.

Indictment and Jury Trial.

On June 19, 2014, a grand jury in Red River County returned an

original indictment that charged Lamon with the third-degree felony offense

of assault on a public servant. See CR, pgs. 6-7. In due course, the trial

14 court proceeded with a jury trial on December 15, 2014 beginning with voir

dire examination. See RR, Vol. 5, pgs. 1, 4.

After voir dire, the trial court impaneled a twelve-member jury:

William Crock, Susan Leddy, Vicki Reep, Julia Clifton, Donna Miller, Lillie

Rhea, Linda Dilbeck, Ellen Bristow, Marilyn Storey, Joan Winchell, Vickie

Glass and Michael Yaross. See RR, Vol. 5, pgs. 59-60; CR, pg. 59. The

jury was sworn in by the trial court and dismissed for the day. See RR, Vol.

5, pgs. 60-61.

Removal of Juror.

Within twenty minutes after leaving the courthouse (RR, Vol. 6, pg.

6), one of the jurors came back into the courtroom and addressed the district

clerk. See RR, Vol. 6, pg. 5. Apparently, the juror told her that he felt like

he may be unable to serve on the jury. See RR, Vol. 6, pg. 5. The district

clerk brought the juror over to the trial judge, who basically told him to be

back in the morning. See RR, Vol. 6, pgs. 5-6.

On the following morning of December 16, 2014 (RR, Vol. 6, pg. 1),

the trial court called juror Y-A-R-O-S-S and asked, “tell me why you think

you can’t serve on this jury.” See RR, Vol. 6, pg. 7. After an exchange

between juror Yaross and the prosecutor and defense counsel (RR, Vol. 6,

pgs. 7-11), the trial court ruled that “he just can’t fully and fairly perform his

15 functions as a juror, and I’m going to release him from service at this time.”

See RR, Vol. 6, pg. 12. The trial judge “removed” juror number 12,

Michael Yaross, “after examining by Atty’s and Judge.” See CR, pg. 59.

After further discussion (RR, Vol. 6, pgs. 12-18), the trial judge

decided, “we’re going to go ahead.” See RR, Vol. 6, pg. 18. Subsequently,

the State arraigned the defendant by reading the indictment. See RR, Vol. 6,

pgs. 23-24. Lamon entered a plea of “not guilty.” See RR, Vol. 6, pg. 24.

During the guilt-innocence phase of the trial, the State called two (2)

witnesses, “Ms. Phyllis” Owens and Bubba. Following their testimony, the

State rested. See RR, Vol. 6, pg. 81.

Lamon moved the trial court for an instructed or directed verdict. See

RR, Vol. 6, pgs. 82-83. The trial court denied the motion. See RR, Vol. 6,

pg. 83.

The defense called Michael Childers as a witness; and following his

testimony (RR, Vol. 6, pgs. 84-87), Lamon took the stand and began his

testimony. See RR, Vol. 6, pgs. 91-102. The State cross-examined Lamon.

See RR, Vol. 6, pgs. 102-112. Upon the conclusion of this testimony,

Lamon rested. See RR, Vol. 6, pg. 112.

The State called Owens as a rebuttal witness. See RR, Vol. 6, pg.

113. After brief testimony from Owens, the State rested and closed. See

16 RR, Vol. 6, pg. 116. The defense rested and closed. See RR, Vol. 6, pg.

116.

Following a charge conference (RR, Vol. 6, pgs. 116-125), the trial

court heard no objections to its jury charge. See RR, Vol. 6, pgs. 125-126.

The trial court then read its charge to the jury. See RR, Vol. 6, pgs.

127-133; CR, pgs. 60-62.

After closing arguments (RR, Vol. 6, pgs. 133-139), the jury retired to

begin its deliberations. See RR, Vol. 6, pg. 139. Upon the conclusion of its

deliberations, the jury returned a unanimous verdict. See RR, Vol. 6, pg.

142. By its verdict, the jury found Lamon guilty of assault of a public

servant, as charged in the indictment. See RR, Vol. 6, pgs. 142-143; CR, pg.

63.

Punishment Phase.

Afterwards, the State proceeded with the punishment phase of the trial

by waiving opening argument and by reading a notice of intent to seek

enhanced sentence as a repeat offender. See RR, Vol. 7, pgs. 6-7. Lamon

entered a plea of “not true.” See RR, Vol. 7, pg. 7.

As its first witness, the State called Chris Brooks, an investigator with

the Lamar County District Attorney’s office and a fingerprint expert. See

RR, Vol. 7, pg. 7. Over objection, the trial court later admitted State’s

17 Exhibits 1 and 2. See RR, Vol. 7, pg. 11. See also RR, Vol. 9 (exhibits).

As its next witness, the State called Shania Lamon. See RR, Vol. 7,

pg. 20. Following her testimony (RR, Vol. 7, pgs. 20-35), the State called

Michael Pace, an investigator with the Sheriff’s Office. See RR, Vol. 7,

pgs. 35-36. Following his testimony, the State rested and closed. See RR,

Vol. 7, pg. 43.

On the following day of December 17, 2014 (RR, Vol. 8, pg. 1), the

defense called James Lee, the grandfather of Lamon. See RR, Vol. 8, pg. 5.

Following his testimony (RR, Vol. 8, pgs. 5-12), the defense called Kim

Stribling. See RR, Vol. 8, pg. 12. After her testimony, the trial court heard

no objections to its punishment charge. See RR, Vol. 8, pgs. 20-21.

The trial court then read its punishment charge to the jury. See RR,

Vol. 8, pgs. 22-29; CR, pgs. 66-70. Following closing arguments (RR, Vol.

8, pgs. 29-38, the jury retired to begin its deliberations. See RR, Vol. 8, pg.

38. Upon the conclusion of its deliberations, the jury returned a unanimous

verdict. See RR, Vol. 8, pg. 45. By its verdict, the jury found the prior

conviction to have been proved “true” and assessed his punishment at twelve

(12) years confinement in the Institutional Division of the Texas Department

of Criminal Justice. See RR, Vol. 8, pg. 48; CR, pgs. 71-72.

On December 17, 2014, the trial court signed its final judgment of

18 conviction. See CR, pgs. 85-86. On January 5, 2015, Lamon timely filed

his notice of appeal. See CR, pgs. 94-95.

Proceedings in this Court of Appeals.

On or about December 30, 2014, Lamon filed his notice of appeal in

this Court. On the same day, Lamon filed the docketing statement.

On or about February 17, 2015, the official court reporter filed the

Reporter’s Record. The District Clerk of Red River County filed the

Clerk’s Record on or about February 20, 2015.

On or about March 11, 2015, Lamon filed his brief. The State will be

filing its brief on or before the current due date of April 10, 2015.

19 SUMMARY OF THE ARGUMENT

By this appeal, Lamon brought a single issue, in which, he questioned

whether a juror’s issue regarding men attacking women made him mentally

impaired to the level that it hindered his ability to perform his duties as a

juror. Regardless of the factual basis underlying this question, the trial

court removed juror Yaross and proceeded to trial with eleven jurors. That

decision by the trial court should not be an abuse of discretion.

In the present case, the trial court did not abuse its discretion in

removing juror Yaross and in proceeding to trial with eleven jurors because

that option was available to the trial court, and that option was a less drastic

alternative to the appellant’s, Lamon’s, requested mistrial. Because the trial

court exercised its sound discretion in proceeding to trial with eleven jurors,

this Court should overrule Lamon’s sole issue/point of error on appeal.

Even assuming the trial court abused its discretion in removing juror

Yaross and/or erred in finding that juror Yaross was “disabled” or “unable to

perform,” the State will argue, in the alternative, that this appellate record

should not reveal any harm.

20 ARGUMENT AND AUTHORITIES

SOLE ISSUE PRESENTED IN REPLY: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REMOVING JUROR YAROSS AND IN PROCEEDING TO TRIAL WITH ELEVEN JURORS AS A LESS DRASTIC ALTERNATIVE TO THE APPELLANT’S REQUESTED MISTRIAL; ALTERNATIVELY, THE RECORD DID NOT REVEAL HARM.

A. Introduction.

With his sole issue, Lamon questioned whether a juror’s issue

regarding men attacking women made him mentally impaired to the level

that it hindered his ability to perform his duties as a juror. See Appellant’s

Brief, pgs. 7, 10, 11. In this case, the trial court removed juror Yaross.

B. Standard of Review: Abuse of Discretion.

The trial court has discretion to determine whether a juror has become

disabled and to seat an alternate juror. See Whitehead v. State, 437 S.W.3d

547, 554 (Tex. App.---Texarkana 2014, pet. ref’d) (citing Scales v. State, 380

S.W.3d 780, 783 (Tex. Crim. App. 2012). In deciding to remove a juror, the

trial court must make a finding, sufficiently supported by the record, that the

juror was disqualified or unable to perform the duties of a juror. See id.

This Court may not substitute its judgment for that of the trial court. See id.

Instead, this Court should assess whether, after viewing the evidence in the

light most favorable to the trial court’s ruling, the ruling was arbitrary or

unreasonable. See Whitehead, 437 S.W.3d at 554 (citing Scales, 380

21 S.W.3d at 784. The ruling must be upheld if it within the “zone of

reasonable disagreement.” See id. Absent an abuse of discretion, no

reversible error will be found. See id.

C. Law Regarding Removal of a Juror: Article 36.29 and Article 33.011(b) of the Texas Code of Criminal Procedure.

Article 36.29 of the Texas Code of Criminal Procedure provided in

pertinent part:

Art. 36.29. If a Juror Dies or Becomes Disabled

(a) Not less than twelve jurors can render and return a verdict in a felony case. It must be concurred in by each juror and signed by the foreman. Except as provided in Subsection (b), however, after the trial of any felony case begins and a juror dies or, as determined by the judge, becomes disabled from sitting at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict; but when the verdict shall be rendered by less than the whole number, it shall be signed by every member of the jury concurring in it.

* * *

(c) After the charge of the court is read to the jury, if a juror becomes so sick as to prevent the continuance of the juror's duty and an alternate juror is not available, or if any accident of circumstance occurs to prevent the jury from being kept together under circumstances under which the law or the instructions of the court requires that the jury be kept together, the jury shall be discharged, except that on agreement on the record by the defendant, the defendant's counsel, and the attorney representing the state 11 members of a jury may render a verdict and, if punishment is to be assessed by the jury, assess punishment. If a verdict is rendered by less than the whole number of the jury, each member of the jury shall sign the

22 verdict.

See Tex. Code Crim. Proc. Ann. art. 36.29(a), (c) (West Supp. 2014).

In addition, article 33.011(b) of the Texas Code of Criminal Procedure

provided the following:

Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury renders a verdict on the guilt or innocence of the defendant and, if applicable, the amount of punishment, become or are found to be unable or disqualified to perform their duties or are found by the court on agreement of the parties to have good cause for not performing their duties. Alternate jurors shall be drawn and selected in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, security, and privileges as regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury has rendered a verdict on the guilt or innocence of the defendant and, if applicable, the amount of punishment.

See Tex. Code Crim. Proc. Ann. art. 33.011(b) (West Supp. 2014).

Although the statute does not define “unable to perform,” this Court

held in Whitehead that appellate courts have concluded that “unable” as used

in Article 33.011 is indistinguishable from “disabled” as used in Article

36.29. See Whitehead, 437 S.W.3d at 554 (citing Scales, 380 S.W.3d at

783; Sandoval v. State, 409 S.W.3d 239, 279 (Tex. App.--Austin 2013, no

pet.); Sneed v. State, 209 S.W.3d 782, 786 (Tex. App.--Texarkana 2006, pet.

ref’d) (“one must strain to recognize real differences in the meaning of the

two words in this context”)). “Bias for or against any of the law applicable

23 to the case, while an appropriate basis on which to challenge a member of

the venire for cause, does not render a member of the sworn jury panel

mentally impaired such that he is disabled as envisioned by Art. 36.29(a).”

See Landrum v. State, 788 S.W.2d 577, 579 (Tex. Crim. App. 1990) (citing

Carrillo v. State, 597 S.W.2d 569 (Tex. Crim. App. 1980)).

D. Application of Law to the Present Facts and Circumstances.

1. The Trial Court Did Not Abuse its Discretion in Proceeding to Trial with Eleven Jurors.

In the present case, the trial court made a finding on the record that

the juror (i.e. Juror Yaross) “can’t fully and fairly perform his functions as a

juror, and I’m going to release him from service at this time.” See RR, Vol.

6, pg. 12. To this ruling, Lamon presented no objection. See Tex. R. App.

P. 33.1(a). Yet, on appeal, Lamon questioned the factual basis for this

ruling.

By this ruling, the trial court essentially found that the juror was

“unable to perform” under article 33.011(b), as opposed to “disabled” under

article 36.29. Compare Tex. Code Crim. Proc. Ann. art. 33.011(b) (West

Supp. 2014) with Tex. Code Crim. Proc. Ann. art. 36.29(a) (West Supp.

2014). Under article 33.011(b), however, an alternate juror was not

available to the trial court, as evidenced by the following exchange:

THE COURT: Well, I think one of the things, and it’s

24 probably maybe just easier stated on the record, I think there was maybe 124 people summoned yesterday. I think right at 40 showed up. I took excuses on seven or eight, but any way, the point being, we had 34 --

MR. TURNER: We had 36 jurors.

See RR, Vol. 6, pg. 13; CR, pg. 53. The trial judge then continued:

THE COURT: We had 36 prospective jurors. Four of them I struck for cause. So we were down to 32. Now, it did cross the Court’s mind to reduce the amount of strikes to give the State, but both sides have kind of hinted this trial they think was going to take maybe one day. So I didn’t do that. Like I said, I was telling Mel this morning, the only law I can ever quote in Murphy’s law, and I forgot it for just a moment yesterday. And that’s why we’re in the shape we’re in. But give me just a minute to read through this Hill case,2 and I’d rather acquiesce to the defense’s request for a continuance. I can try it in January, and I’ve already called Bowie County. I’ve got a week available in January.

MR. TURNER: And my client prefers, and I don’t guess he can insist, but he would urge the Court to --

THE COURT: The word insist don’t bother me. I don’t mind. Val, what’s the State’s position?

MR. VARLEY: Well, Judge, if we need to go forward, if that Hill case says we shall go forward, then I think we better go forward.

THE COURT: Give me just a few minutes to look at it.

MR. TURNER: Well, it occurs to me that my client can waive any error on the record and that we can’t -- if we cannot -- if we can waive it and can’t raise it on appeal, then --

2 Hill v. State, 90 S.W.3d 308 (Tex. Crim. App. 2002).

25 RR, Vol. 6, pgs. 13-14. An alternate juror was not be chosen. CR, pg. 59.

a. An Alternate Juror Was Not Available.

As set forth above, an alternate juror was not available to the trial

court. See RR, Vol. 6, pgs. 13-14. So, the present case was not governed

by article 33.011(b) and article 36.29(c). See Romero v. State, 396 S.W.3d

136, 149-50 (Tex. App.--Houston [14th Dist.] 2013, no pet.). Further, article

36.29(c) did not govern this situation because the charge of the court had not

yet been read to the jury. See Tex. Code Crim. Proc. Ann. art. 36.29(c)

(West Supp. 2014) (“[a]fter the charge of the court is read to the jury, . . .”).

b. A Previously-Dismissed Venire Member Was Not Available.

Also, a previously-dismissed venire member was not available to the

trial court, so the present case was not governed by Hegar v. State, 11

S.W.3d 290 (Tex. App.--Houston [1st Dist.] 1999, no pet.). Under Hegar,

the trial court was required to give the defendant the choice between eleven

jurors or a mistrial when a disabled juror was dismissed and the trial court

sought to empanel a previously dismissed venire member. See Castro v.

State, 233 S.W.3d 46, 50 (Tex. App.--Houston [1st Dist.] 2007, no pet.)

(citing Hegar, 11 S.W.3d at 294).

c. The Trial Court Did Not Abuse its Discretion by Proceeding with a Less Drastic Alternative to a Mistrial.

In the present case, the trial court heard and considered Lamon’s

26 argument for a mistrial, as follows:

MR. TURNER: It occurs to me, Judge, that the Court has wide latitude in granting a mistrial during the course of a case. It would seem to me that with my client’s consent and urging that the Court can simply declare a mistrial and retry the case in January. I cannot -- it does not seem reasonable to me that an appellate Court can take all the discretion from a Trial Court in a matter like this. I do not see, on reflection, that this is any kind of reversible error, particularly since my client and I will be happy to put him on the stand and testify under oath that this is what he wants. I do not see that there is any error in the Court granting a mistrial because of what happened and letting us retry this case in January. We wouldn’t be here today if Mr. Yaross had respond (sic?) -- I asked on voir dire is there any reason that you should not -- somebody cannot be fair or could not serve on this jury. Had he acknowledged that with the other strikes for cause, we would not have had sufficient number of people to select a jury. So I understand, but it just occurs to me that there is nothing improper.

THE COURT: Dave, and I think when I first thought about what happened yesterday afternoon on the drive back to Bowie County yesterday, I was thinking along the same lines. Let me read you just two sentences out of this opinion, those which I think require me. It says, in this case, and they’re talking about this Hill case, proceeding to trial with 11 jurors would not have been -- it would not have been impossible to arrive at a fair verdict or continue with trial because Article 36.29(a) required it. Likewise, it would not present automatic reversible error on appeal. This is the part that I’m paying attention to, because the procedure is not just authorized but compelled by the statute. So I read that as telling me I have to proceed.

See RR, Vol. 6, pgs. 15-17.

From the exchange above, the trial court was obviously concerned

with the granting of a mistrial because it would “present automatic reversible

27 error on appeal.” See RR, Vol. 6, pg. 16. That was why the trial court, in

the exercise of its discretion, proceeded with eleven jurors as a less drastic

alternative to a mistrial and denied Lamon’s oral motion over his “exception

on the record, [and] [his] objection to continuing the case . . . over to another

date.” See RR, Vol. 6, pg. 18. As explained above, the trial court had no

alternate juror and no previously-dismissed venire member to replace juror

Yaross. See Romero, 396 S.W.3d at 149-50; Tex. Code Crim. Proc. Ann.

art. 36.29(c); Castro, 233 S.W.3d at 50. So, the trial judge denied Lamon’s

oral motion for mistrial and proceeded with eleven jurors because “the

procedure [was] not just authorized but compelled by statute.” See RR, Vol.

6, pg. 17. Further, the trial judge didn’t “think the juror [Yaross] was

excused erroneously.”3 See RR, Vol. 6, pg. 17.

Under these circumstances, the trial judge decided to proceed with

eleven jurors (RR, Vol. 6, pg. 81), and that ruling should not be disturbed for

an abuse of discretion because it was within the zone of reasonable

disagreement as a less drastic alternative to Lamon’s oral motion for

mistrial. See Ricketts v. State, 89 S.W.3d 312, 318 (Tex. App.--Fort Worth

2002, pet. ref’d) (“Notably, it is within the trial court’s sound discretion to

3 To this finding by the trial court, the appellant, Lamon, presented no objection to the trial court’s determination of the juror being “disabled” or “unable to serve.” See Tex. R. App. P. 33.1(a). Rather, the appellant, Lamon, moved for a mistrial.

28 consider less drastic alternatives to a mistrial.”). When a trial judge grants

a mistrial despite the available option of less drastic alternatives, there is no

“manifest necessity” prompting a mistrial and an appellate court will find an

abuse of discretion. See id.

As applied here, no abuse of discretion occurred because the trial

judge had the available option of a less drastic alternative (i.e. proceed with

eleven jurors), and it was within the zone of reasonable disagreement to

proceed with that available option. Further, the trial judge felt “compelled

by statute” (RR, Vol. 6, pg. 17) to proceed with eleven jurors because “it

would not have been impossible to arrive at a fair verdict or continue with

trial.” See RR, Vol. 6, pg. 16. The trial judge said, “they’re talking about

this Hill case.” See RR, Vol. 6, pg. 16.

(1) Hill v. State, 90 S.W.3d 308 (Tex. Crim. App. 2002).

In Hill, the case upon which the trial judge relied, voir dire began in a

capital murder case on a Tuesday morning and concluded the following

morning. See Hill, 90 S.W.3d at 310. The jury was sworn in on

Wednesday and told to return the next day for the trial to begin. See id.

On Wednesday afternoon, one of the jurors called the court “hysterical,”

saying she couldn’t continue.” See id. This juror explained that she

suffered from “debilitating panic attacks when placed under stressful

29 situations” and should not “participate in jury decision-making due to the

emotional stress.” See id. A physician’s note stated that the juror suffered

from “generalized anxiety disorder and possible panic disorder with stressful

situations.” See id.

After a brief hearing, the trial court, on its own motion, declared a

mistrial. See id. Both the State and the defendant objected, and the trial

court overruled the objections. See id. Subsequently, the defendant filed a

motion to dismiss on the basis of double jeopardy, which the trial court

denied. See id at 310-11. A second voir dire began, with a second jury

being sworn in, and the trial commenced. See id at 311. The defendant,

Hill, was convicted of capital murder and sentenced to life in prison. See

id.

On appeal, the appellant, Hill, argued that the second prosecution

violated double jeopardy. See id. In an unpublished opinion, the court of

appeals agreed and reversed the conviction. See id. The court of appeals

held that the record did not reflect that the judge had considered less drastic

alternatives to a mistrial, such as proceeding to trial with eleven jurors. See

id. The Texas Court of Criminal Appeals granted the State’s petition for

review. See id.

In Hill, the Court of Criminal Appeals held that the State could not

30 satisfy its burden of proving manifest necessity for the mistrial because the

record did not reflect that the trial court considered less drastic alternatives.

See id. at 314. In Hill, the Court of Criminal Appeals concluded that the

record did not demonstrate manifest necessity for a mistrial. See id.

In Hill, the Court reasoned that to show manifest necessity for the

mistrial, the State would have to show that there was no less drastic

alternative available. See id. In Hill, the Court concluded that “proceeding

to trial with eleven jurors was not just an available alternative in this case[;]

[i]t was a mandatory alternative under our constitutional, statutory, and case

law.” See id. at 315. Regardless of consent, the judge was required to

proceed to trial with eleven jurors. See id.

(2) Subsequent Cases to Hill, 90 S.W.3d at 315.

In an unpublished opinion, the Tyler Court of Appeals has held that

“[o]ne example of a less drastic alternative to a mistrial when a juror

becomes unable to serve is to continue with less than twelve jurors.” See

Joseph M. Martel v. The State of Texas, No. 12-07-00034, 2008 WL 257367,

2008 Tex. App. LEXIS 652, at * 6 (Tex. App.--Tyler January 31, 2008, no

pet.) (mem. op., not designated for publication). In Martel, the Court held

that “[i]n fact, it is reversible error for a trial court not to continue with

eleven jurors in such a situation.” See id (citing Hill, 90 S.W.3d at 315).

31 In another unpublished opinion, the Eastland Court of Appeals held

that “[w]here, as here, no alternate jurors have been selected, if a juror dies,

or, as determined by the trial court, becomes disabled from sitting as a juror

at any time before the charge of the court is read to the jury, the remainder of

the jury shall have the power to render the verdict.” See Tracy Lee

Thurman v. The State of Texas, No. 11-10-00086-CR, 2011 WL 3890564,

2011 Tex. App. LEXIS 7225, at * 5 (Tex. App.--Eastland August 31, 2011,

no pet.) (mem. op., not designated for publication) (citing Article 36.29(a)).

In Thurman, the Court held that “the trial court did not err by proceeding

with the trial with the remaining eleven jurors.” See Thurman, 2011 Tex.

App. LEXIS 7225, at * 6.

Under Hill and subsequent cases, the trial court did not abuse its

discretion in proceeding with eleven jurors as a less drastic alternative to the

appellant’s requested mistrial. See Hill, 90 S.W.3d at 315; Martel, 2008

Tex. App. LEXIS 652, at * 6; Thurman, 2011 Tex. App. LEXIS 7225, at * 5.

This Court should hold accordingly. Because the trial court did not abuse

its discretion, Lamon’s sole issue/point of error should be overruled.

2. Even if the Trial Court Erred in Removing Juror Yaross, the Record Did Not Reveal Harm.

Even assuming the trial court abused its discretion in removing juror

Yaross and/or erred in finding that juror Yaross was “disabled” or “unable to

32 perform,” the next step would be to determine whether the error resulted in

harm. See Whitehead, 437 S.W.3d at 556; Chavez v. State, 134 S.W.3d 244,

245 (Tex. App.--Amarillo 2003, pet. ref’d) (on remand). The burden to

demonstrate whether appellant was harmed by trial court error did not rest

on appellant or the State. See Chavez, 134 S.W.3d at 245.

Because Lamon complained of a statutory violation and did not claim

a violation of his constitutional rights, any harm analysis should be

conducted pursuant to Rule 44.2(b) of the Texas Rules of Appellate

Procedure. See Whitehead, 437 S.W.3d at 556. Rule 44.2(b) provided that

an appellate court must disregard a nonconstitutional error that does not

affect a criminal defendant’s “substantial rights.” See id; Chavez, 134

S.W.3d at 245. An error affects a substantial right of the defendant when

the error has a substantial and injurious effect or influence in determining

the jury’s verdict. See Whitehead, 437 S.W.3d at 556 (citing Scales, 380

S.W.3d at 786).

To support his contention of harmful error, Lamon likened the

erroneous removal of a juror to the erroneous grant of a challenge for cause.

See Appellant’s Brief, pg. 17 (citing Ransom v. State, 920 S.W.2d 288 (Tex.

Crim. App. 1996)). Beyond that in his brief, Lamon provided no further

argument or authorities, but a review of this record should not reveal any

33 harm.

This record should not reveal any harm because the trial court

removed juror Yaross before he could have any effect or influence on the

jury’s verdict. In the present case, the trial court removed juror Yaross

before the remaining eleven members of the jury heard any testimony, or

considered any evidence. So, juror Yaross could not have had any effect or

influence on the jury’s verdict during the trial. See Tex. R. App. P. 44.2(b).

Here, unlike Scales, the jury was not seemingly deadlocked and did

not return a guilty verdict until after the trial court removed the “disabled”

juror. See Scales, 380 S.W.3d at 786-87. Here, the trial court removed

juror Yaross before the jury commenced any deliberations.

Further, a review of this record disclosed that juror Yaross was

concerned about the punishment phase (RR, Vol. 6, pgs. 9, 10) and “if we

do find that the evidence is against him, what will I feel then.” See RR, Vol.

6, pg. 9. As juror Yaross responded to questions from Lamon’s trial

counsel, he said, “I got a strike against you.” See RR, Vol. 6, pg. 11. In

essence, juror Yaross seemed unable to consider a minimum range of

punishment. See RR, Vol. 6, pg. 10. Thus, the trial court’s removal of

juror Yaross might have been beneficial to Lamon, and not harmful, because

juror Yaross did not participate in the punishment phase and did not

34 deliberate with the other jurors in assessing Lamon’s punishment at twelve

(12) years. So, the removal of juror Yaross did not have any effect or

influence on the jury’s assessment of punishment. As a final consideration,

the jury’s assessment of punishment was within the applicable range of

punishment (2 to 20 years) and twelve (12) years of confinement was

certainly not the maximum punishment.

In conclusion, a review of this record should not reveal any harm.

See Tex. R. App. P. 44.2(b). Accordingly, the appellant’s, Lamon’s, sole

issue/point of error should be overruled and the final judgment of conviction

should be affirmed.

35 PRAYER

WHEREFORE, PREMISES CONSIDERED, the State of Texas prays

that upon final submission upon oral argument, this Court should affirm the

trial court’s final judgment of conviction in all respects; adjudge court costs

against the appellant and for such other and further relief, both at law and in

equity, to which the State may be justly and legally entitled.

Respectfully submitted,

Val J. Varley, County and District Attorney Red River County Courthouse 400 North Walnut Street Clarksville, Texas 75426-4012 (903) 427-2009 (903) 427-5316 (fax) valvarley@valornet.com

By: /s/ Val Varley Val J. Varley, County-District Attorney SBN# 20496580

ATTORNEYS FOR THE STATE OF TEXAS

36 CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

the “State’s Brief” was a computer-generated document and contained 7,107

words--not including the Appendix (not applicable here). The undersigned

attorney certified that he relied on the word count of the computer program,

which was used to prepare this document.

/s/ Val Varley Val J. Varley valvarley@valornet.com

CERTIFICATE OF SERVICE

This is to certify that in accordance with Tex. R. App. P. 9.5, a true

copy of the “Appellee’s (State’s) Brief” has been served on the 9TH day of

April, 2015 upon the following:

Troy Hornsby Miller, James, Miller & Hornsby, L.L.P. 1725 Galleria Oaks Drive Texarkana, TX 75503 troy.hornsby@gmail.com

/s/Val Varley Val J. Varley valvarley@valornet.com