DWAYLON WASHINGTON v. THE STATE OF TEXAS (2012)

MEMORANDUM OPINION

Opinion By Justice FitzGerald

A jury found appellant Dwaylon J. Washington guilty of assault on a public servant.   The trial court assessed appellant's punishment at eight years' confinement and a fine of $1000.   In a single issue, appellant contends the trial court abused its discretion by refusing to discharge a juror who became disabled by reason of physical illness.   Because that issue involves the application of well-settled principles of law, we issue this memorandum opinion.   See Tex.R.App. P. 47.4. We affirm the trial court's judgment.

A jury was chosen and sworn in this case the day before trial was to begin.   The next morning, before any evidence was put on, one of the jurors presented the trial court with a note.   The note was signed by a doctor and stated:

To Whom It May Concern:  [The juror] was seen this evening.   He will not be able to work his regular job nor will he be able to fulfill his duties as a juror as he will need treatment and rest at home until Monday, January 24, 2011.1

The trial court informed counsel and the defendant and then spoke to the juror.   The juror explained he had been experiencing a bad cough and breathing problems the evening before and had gone to the doctor.   He had been diagnosed with bronchitis and an upper respiratory infection, and he was given both cough medicine (which he had taken that morning) and a narcotic medicine (which he had not taken).   The juror assessed his condition candidly:

I don't know how it affects the process.   If [replacing me] was something that was simple and, obviously, I would love to go home and take my medicine and get to feeling better, but if it's not then I will do what I need to do.

After further questioning, and explaining it was likely a one-day trial, the trial court asked, “Can we get started and see if we can make it through this?”   The juror responded, “Sure.” He agreed to let the judge know if he needed a break or anything else by raising his hand.

Counsel for appellant objected to the juror sitting, saying:

I think he has indicated he has got a doctor—from the note—and I think under the law, under Article, I think it's 36.29(c) I think he has presented a note to the Court that says he cannot sit as a juror.   He has an illness.   He cannot sit as a juror and fulfill his duties, and I think that the doctor's opinion on that should discharge this case, discharge this jury at this point.   He has indicated that he has taken his cough medicines, which do have a negative effect.   He has indicated the last time he took one of the narcotics drugs—it could have been last night, and it might have impaired his ability to sit in this case—and I just want to put my objection on the record, Judge.

The trial court overruled the objection and proceeded to trial with the juror.

Appellant contends the juror was disabled and the trial court erred by continuing trial with that juror.   Ordinarily, twelve jurors are required to return a verdict in a felony case.  Tex.Code.Crim. Proc. Ann. art. 36.29(a) (West Supp.2011).   One exception to that rule governs the issue in this case:

[A]fter 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.

Id. Here, the jury had already been sworn when the juror went to the doctor and presented his note to the trial court, so the trial had begun.   See Sanchez v. State, 138 S.W.3d 324, 329 (Tex.Crim.App.2004).   A juror is disabled if he has a physical illness, mental condition, or emotional state that hinders his ability to perform his duties as a juror.  Hill v. State, 90 S.W.3d 308, 315 (Tex.Crim.App.2002).   And the determination as to whether a juror is disabled lies within the sound discretion of the trial court.   Brooks v. State, 990 S.W.2d 278, 286 (Tex.Crim.App.1999).

In this case, the judge was able to observe the juror's demeanor.   He questioned the juror concerning his condition, his medications, and his own assessment of his ability to serve on the jury.   The juror agreed to go forward and to let the judge know if he was experiencing any problem.   The record does not indicate any such problem arose during trial or deliberations.   The decision as to whether the juror was disabled was the court's, not a physician's.   Here, the court's careful evaluation of the juror's condition establishes it did not abuse its discretion in allowing the juror to complete his jury service.   See id.   We overrule appellant's issue and affirm the judgment of the trial court.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

DWAYLON J. WASHINGTON, Appellant

No. 05–11–00417–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the Criminal District Court No. 4 of Dallas County, Texas.  (Tr.Ct.No.F10–54668–K).

Opinion delivered by Justice FitzGerald, Justices Murphy and Fillmore participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered July 6, 2012.

/Kerry P. FitzGerald/

KERRY P. FITZGERALD

JUSTICE

FOOTNOTES

FN1. The juror's note was written on Wednesday, January 19th, when jury selection occurred.   Trial took place on Thursday, January 20th.   The note provided an excuse through the weekend, until Monday, January 24th..  FN1. The juror's note was written on Wednesday, January 19th, when jury selection occurred.   Trial took place on Thursday, January 20th.   The note provided an excuse through the weekend, until Monday, January 24th.

KERRY P. FITZGERALD JUSTICE