JOHNSON v. STATE (2025)

OPINION

A jury convicted appellant Davion Kenneth Johnson of aggravated sexual assault and punishment was assessed at 37 years confinement in the Texas Department of Criminal Justice. In two issues, appellant alleges that the trial court abused its discretion in replacing a juror with an alternate juror and in denying his motion for continuance. We affirm.

Background

D.R.C., the complainant, worked as a waitress in a sports bar. In the early morning hours of July 30, 2021, she headed home to her apartment after her shift. When she arrived at the apartment complex, D.R.C. initially noticed appellant smoking a cigarette under a stairwell. She circled the parking lot and by the time she parked her car, she did not see appellant under the stairwell. D.R.C. testified that she was on the phone with a friend and gathering her belongings to head inside. While she was turned away, she felt someone open up her driver's side door. When she looked at the door, she saw appellant pointing a gun at her. He demanded that she give him all of her belongings, but D.R.C. testified that she did not understand appellant because she did not speak English. Appellant then pointed at her belongings and signaled for her to give everything to him. D.R.C. gave appellant her purse and phone.

After taking her belongings, appellant told D.R.C. to get out the car. Appellant then exposed his erect penis and demanded that D.R.C. perform oral sex. D.R.C. explained that she did not understand what appellant was saying but knew that he wanted oral sex based on the signals he was making. D.R.C. begged appellant not to kill her and performed oral sex on appellant at gun point. After appellant finished, he left. D.R.C. ran into her apartment and reported the sexual assault to law enforcement. Appellant was subsequently identified and charged by indictment with the offense of aggravated sexual assault.

On August 22, the jury convicted appellant of the charged offense. Appellant elected to have the jury assess punishment. On August 23, before the jury began deliberations on the punishment, one of the jurors, Juror No. 8, fell outside the courthouse and was transported to the hospital for treatment. Due to the nature of Juror No. 8's injuries, her treating physician placed her on bedrest for 2–3 days. The trial court found that Juror No. 8 was unable to perform her duties and replaced her with an alternate juror, Juror No. 64. Appellant objected to replacing Juror No. 8 with the alternate juror, arguing that there was not enough information available to determine whether Juror No. 8 was disabled and that he had right to have the same jury assess punishment as the one that assessed guilt. Appellant also filed an in-trial motion for continuance objecting to proceeding on August 24. Among other arguments, appellant alleged that Juror No. 8 was only temporarily disabled. Appellant requested that the punishment phase be continued to August 28 when Juror No. 8 could be available. The trial court denied appellant's motion for continuance. The jury, comprised of the eleven juror members impaneled to hear the case and the alternate juror, found one enhancement paragraph true and sentenced appellant to 37 years confinement in the Texas Department of Criminal Justice.

Disabled Juror

In his first issue, appellant claims that the trial court erred in determining Juror No. 8 was disabled and replacing her with an alternate juror. According to appellant, Juror No. 8 only suffered from a “soft tissue contusion,” and the trial court refused to speak with Juror No. 8 about her willingness to perform her duties. Appellant also complains that he was deprived of his right to be sentenced by “the same jury.” We first analyze whether the trial court abused its discretion by replacing the disabled juror with the alternate juror and then discuss whether discharging the disabled juror deprived appellant of the statutory right to be sentenced by “the same jury.”

A. The Trial Court Did Not Abuse Its Discretion in Replacing the Disabled Juror With an Alternate Juror

The Texas Constitution requires a jury in a felony criminal trial to be composed of twelve members. Tex. Const. art. V, § 13; Price v. State, 526 S.W.3d 738, 741 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd). The Code of Criminal Procedure also 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). But, both the Texas Constitution and article 36.29 provide that if a juror dies or becomes “disabled” from sitting, the remaining impaneled jury has the power to render the verdict. Tex. Const. art. V, § 13, Tex. Code Crim. Proc. art. 36.29(a). Disability is not limited to physical disease but instead 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 Price, 526 S.W.3d at 742. The disabling condition may result from physical illness, mental condition, or emotional state. Reyes, 30 S.W.3d at 411.

The trial court has discretion to determine whether a juror has become disabled under article 36.29 of the Code of Criminal Procedure and to seat an alternate juror under article 33.011 of the code. Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012); Romero v. State, 396 S.W.3d 136, 142 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). Absent such an abuse of discretion, we will not find reversible error. Scales, 380 S.W.3d at 783; Price, 526 S.W.3d at 742. 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. Price, 526 S.W.3d at 742. We must uphold the trial court's ruling if it falls within the zone of reasonable disagreement. Scales, 380 S.W.3d at 784 (citing Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009)).

In this case, the record sufficiently supports the trial court's finding that Juror No. 8 became disabled after she injured her knee. Deputy Sanchez, the bailiff, informed the court that Juror No. 8 fell outside the courthouse and was taken to the hospital by emergency medical services. Although Deputy Sanchez did not give sworn testimony regarding his conversation with Juror No. 8, he provided the following explanation to the parties regarding his knowledge of Juror No. 8's injury:

So Deputy Maldonado escorted [Juror No. 8] up here and informed me that she had fell outside on the street. And then when she got up here and he sat her in the jury room -- after he gave me the information, I went and I spoke to [Juror No. 8]; and as I was entering the room, she was complaining that her knee was hurting. So I asked her if she saw EMS. She stated that EMS did not come; she told them not to come but that her knee is hurting. So, at that point, I called EMS myself and I called my supervisors and we waited for EMS to get here. ․ After EMS was here, [Juror No. 8] was explaining to us how she fell. She was getting onto the sidewalk. She tripped with the sidewalk, trying to look in her purse to give a homeless person something; and she tried catching herself onto something and she slipped, hit her head, and then fell and hit her knee and then finished falling down to the ground.

Deputy Sanchez also stated that he received a doctor's note indicating that Juror No. 8 was seen by a doctor and would not be able to return to the court. The doctor's note, which was admitted into evidence, stated that Juror No. 8 suffered from a soft tissue contusion and instructed her to “rest for 2–3 days.”

Notwithstanding the temporary nature of Juror No. 8's injury, we cannot conclude that the trial court abused its discretion in discharging Juror No. 8. See Romero, 396 S.W.3d at 143–44 (no abuse of discretion when trial court discharged juror who was disabled due to physical illness, including nausea, vomiting, and headache, which prevented the juror from continuing to perform her duties as juror); Lopez v. State, 316 S.W.3d 669, 679 (Tex. App.—Eastland 2010, no pet.) (noting “courts have found that jurors who complained of other temporary illnesses that impaired their ability to perform the functions of a juror were properly determined by the trial court to be disabled”). To the extent that appellant attempts to show an abuse of discretion based on the trial court's failure to speak with Juror No. 8 about the nature of her disability, it is well-settled that there is no requirement that the disabled juror testify on the record. See Scales, 380 S.W.3d at 784. The trial court need only make a sufficiently supported finding that the juror was disqualified or unable to perform the duties of a juror. See id.; see also Foyt v. State, 602 S.W.3d 23, 46 (Tex. App.—Houston [14th Dist.] 2020, pet. ref'd). The record establishes that the trial court did.

B. Appellant Was Not Deprived of Statutory Right to be Sentenced by the “Same Jury”

We now turn to appellant's argument that replacing Juror No. 8 with the alternate juror deprived him of his right to be sentenced by the “same jury.” Appellant argues that the Code of Criminal Procedure only permits two exceptions to the statutory right to have punishment assessed by the same jury that found him guilty: (1) when a mistrial is granted based on a hung jury and (2) when an appellate court awards a new trial to the defendant on the basis of an error in the guilt or innocence stage of the trial or on the basis of errors in both the guilt or innocence stage of the trial and punishment stage of the trial. Tex. Code Crim. Pro. art. 37.07 § 2(b). Because resolution of appellant's argument involves multiple sections of the Code of Criminal Procedure, we first outline the relevant provisions and then address any alleged conflicts between the provisions.

 Art. 33.011. Alternate jurors

The provision of the Code of Criminal Procedure for alternate jurors states:

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.

Tex. Code Crim. Pro. art. 33.011(b).

 Art. 36.29. If a Juror Dies or Becomes Disabled

The Code of Criminal Procedure also contemplates when the court may discharge an alternate juror who has not replaced a juror:

After the jury has rendered a verdict on the guilt or innocence of the defendant and, if applicable, the amount of punishment, the court shall discharge an alternate juror who has not replaced a juror.

Id. art. 36.29(d).

 Art. 37.07. Verdict must be general; separate hearing on proper punishment.

Lastly, section 2 of article 37.07 provides the relevant rule for when a defendant elects to have the jury assess punishment:

[I]n other cases where the defendant so elects in writing before the commencement of the voir dire examination of the jury panel, the punishment shall be assessed by the same jury, except as provided in Section 3(c) of this article and in Article 44.29.

Tex. Code Crim. Pro. art. 37.07 § 2(b); see also id. arts. 37.07 § 3(c) (stating that if the jury fails to agree on the issue of punishment, “a mistrial shall be declared only in the punishment phase of the trial, the jury shall be discharged, ․ no jeopardy shall attach” and the “court shall impanel another jury ․ to determine the issue of punishment.”), 44.29 (discussing the effects of reversal on the basis of error in the guilt or innocence stage or punishment stage of the trial).

Any alleged discrepancy between the provisions regarding when an alternate juror may replace a disabled juror and the provision providing the statutory right to have the same jury assess punishment as the one that assessed guilt can be reconciled without conflict. When a jury is selected, the jurors take an oath to render a true verdict according to the law and the evidence. Id. art. 35.22. Alternate jurors are drawn and selected in the same manner as the regular jurors, take the same oath, and have the same functions and powers as regular jurors. Id. art. 33.011(b). After it is charged, the jury retires to render its verdict, but there are circumstances where an alternate juror may replace a juror found to be unable or disqualified to perform her duties. Id. arts. 33.011(b), 36.29(a), (d). The Code of Criminal Procedure permits an alternate juror to replace a disabled juror prior to the time the jury renders a verdict on the guilt or innocence or the amount of punishment. Id. art. 33.011(b). Thus, the alternate juror provision contemplates when a defendant follows the procedural steps to have the jury assess punishment. See id. arts. 33.011(b), 37.07 § 2(b); see also Ex parte Pete, 517 S.W.3d 825, 831 (Tex.Crim.App. 2017) (“The default under [section 2(b) of Article 37.07 of the Code of Criminal Procedure] is judge-assessed punishment, but a defendant may obtain jury punishment.”).

Our review of the Code of Criminal Procedure indicates that if a defendant elects to have punishment assessed by the jury, his statutory right to have the “same jury” assess punishment is not violated if an alternate juror replaces a disabled juror after the verdict but before punishment is assessed. See Tex. Code Crim. Pro. arts. 33.011(b), 37.07 § 2(b); see generally Ex parte Pete, 517 S.W.3d at 831. This is because an alternate juror takes the same oath and has the “same functions, powers, facilities, security, and privileges as regular jurors,” thereby making the alternate part of the “same jury.” See generally Tex. Code Crim. Pro. art. 33.011(b) (providing that an alternate juror has the same qualifications and subject to the same examination and challenges as regular jurors).

We are further persuaded that a defendant's statutory right is not violated if an alternate juror replaces a disabled juror after the verdict but before sentencing when jury-assessed punishment is elected because a contrary finding would render the alternate juror provision meaningless in circumstances where a regular juror becomes disabled after the verdict but before punishment is assessed. See id. (“Alternate jurors ․ 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). When we interpret statutes, we seek to effectuate the collective intent or purpose of the legislators who enacted the legislation. Lira v. State, 666 S.W.3d 498, 505 (Tex. Crim. App. 2023) (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). We try to interpret the work of our legislature as best we can to fully effectuate the goals they set out and do not focus solely upon a discrete provision; we look at other statutory provisions as well to harmonize provisions and avoid conflicts. Id.; see also Watkins v. State, 619 S.W.3d 265, 272 (Tex. Crim. App. 2021). Appellant's interpretation of section 2(b) of article 37.07 would create the very conflict that we seek to avoid.

Additionally, appellant has not cited and research has not revealed any Texas case stating that the “same jury” means the “original” twelve jurors as opposed to all the jurors originally impaneled, i.e., both the regular jury members and the alternate jurors. Both the Texas Constitution and Code of Criminal Procedure requires a jury in a felony criminal trial to be composed of twelve members but neither the Texas Constitution nor the Code of Criminal Procedure differentiates between regular juror members and alternate jurors. See Tex. Const. art. V, § 13, Tex. Code Crim. Proc. art. 36.29(a). We see no reason to treat a jury composed of twelve members, one of whom is an alternate, any differently than a jury composed of twelve regular members.

We overrule appellant's second issue regarding the replacement of the disabled juror and the statutory right to have the jury assess punishment.

Motion for Continuance

As his second issue, appellant complains that the trial court abused its discretion in denying his motion for continuance. The State counters that the issue was not properly preserved, and that even if preserved, the trial court's denial of the motion did not constitute an abuse of discretion.

A trial court's ruling on a motion for continuance is reviewed for an abuse of discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). To establish an abuse of discretion, there must be a showing that the defendant was actually prejudiced by the denial of his motion. Id. (citing Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996)). A trial court does not abuse its discretion as long as its decision is within the zone of reasonable disagreement. Heiselbetz v. State, 906 S.W.2d 500, 517 (Tex. Crim. App. 1995) (en banc); see generally, e.g., Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018); Balderas v. State, 517 S.W.3d 756, 778 (Tex. Crim. App. 2016).

Before we address the substance of appellant's complaint, we must first determine whether he preserved it for our review. With regard to continuances, the Code of Criminal Procedure provides: “A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion.” Tex. Code Crim. Proc. art. 29.03; see Anderson v. State, 301 S.W.3d 276, 278–79 (Tex. Crim. App. 2009), declined to follow on other grounds, Grado v. State, 445 S.W.3d 736, 741 (Tex. Crim. App. 2014). However, article 29.08 of the Code of Criminal Procedure further provides that “[a]ll motions for continuance must be sworn to by a person having personal knowledge of the facts relied on for the continuance.” Tex. Code Crim. Proc. art. 29.08; see Anderson, 301 S.W.3d at 279. In Anderson, the Texas Court of Criminal Appeals explained:

We have construed these statutes to require a sworn written motion to preserve appellate review from a trial judge's denial of a motion for a continuance. Thus, if a party makes an unsworn oral motion for a continuance and the trial judge denies it, the party forfeits the right to complain about the judge's ruling on appeal.

301 S.W.3d at 279; accord Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012) (refusing to “recognize a due process exception” to requirement that motion for continuance be written and sworn).

Here, it is undisputed that although appellant filed a written motion for continuance, that motion was not sworn. Article 29.08 specifically states the motion must be sworn to. Tex. Code Crim. Proc. art. 29.08. When interpreting this article, and article 29.03 which mandates the motion be in writing, the Texas Court of Criminal Appeals specifically held “a sworn written motion” is required for appellate preservation. Anderson, 301 S.W.3d at 279. By failing to file a written, sworn motion for continuance, appellant's complaint about the trial court's denial of his motion for continuance is subject to a procedural default. See Tex. Code Crim. Pro. 29.03; accord Blackshear, 385 S.W.3d at 591. Appellant thereby failed to preserve his complaint for appeal. We overrule appellant's second issue regarding the denial of his motion for continuance.

Conclusion

We affirm the judgment of the trial court.

Tracy Christopher, Chief Justice