Opinion filed March 28, 2013




                                              In The

         Eleventh Court of Appeals
                                           ___________

                                     No. 11-11-00090-CR
                                         __________

                        EDWARD LYNN ST. JOHN, Appellant

                                                 V.

                           THE STATE OF TEXAS, Appellee


                            On Appeal from the 441st District Court
                                   Midland County, Texas
                               Trial Court Cause No. CR37352



                            MEMORANDUM OPINION
       The jury convicted Edward Lynn St. John of the offense of burglary of a habitation. The
trial court assessed punishment at confinement for four years, but it suspended the imposition of
the sentence and placed St. John on community supervision for four years. We affirm.
       St. John presents two issues for review. In the first issue, he contends that the trial court
abused its discretion in allowing the trial to proceed with only eleven jurors. In his second issue,
St. John challenges the sufficiency of the evidence to support his conviction.
       The record in this case shows that, on the second morning of trial and prior to the reading
of the charge, the trial court declared that one of the jurors had become disabled and that the trial
would proceed with eleven jurors. The trial court stated that it had been informed that Juror
No. 6, Mary Tipps, had fallen after leaving court the previous day and had broken her ankle and
her leg. According to the trial court, Tipps had “a letter from the doctor saying she is not able to
come and complete her jury service.” The trial court had been informed that Tipps had an
appointment with an orthopedic surgeon that morning and that she was “going to have to have
surgery.” The trial court stated that it would procure the doctor’s letter and place the letter in the
file. Immediately after the trial court announced that Tipps was discharged from the jury panel,
St. John requested a mistrial. 1 The trial court denied his request.
          A trial court is authorized to allow the trial of a felony case to proceed with fewer than
twelve jurors if, before the charge of the court is read to the jury, “a juror dies or, as determined
by the judge, becomes disabled from sitting.” TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (West
Supp. 2012); see also TEX. CONST. art. V, § 13. 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); Landrum v. State, 788 S.W.2d 577, 579
(Tex. Crim. App. 1990). The determination as to whether a juror is disabled lies within the
sound discretion of the trial court. Landrum, 788 S.W.2d at 579. Absent an abuse of that
discretion, no reversible error will be found. Griffin v. State, 486 S.W.2d 948, 951 (Tex. Crim.
App. 1972).
          St. John’s specific contention in his first issue is that there is no evidence in the record
regarding Tipps’s alleged injury other than the statements made by the trial court. We agree with
St. John that the appellate record does not contain the doctor’s letter or any evidence regarding
Tipps’s injury other than the statements made by the trial court. However, it is apparent that the
trial court had been in contact with Tipps or someone speaking on her behalf. Based upon the
information received by the trial court, it was within the trial court’s discretion to determine that
Tipps was disabled. See Moore v. State, 82 S.W.3d 399, 406–07 (Tex. App.—Austin 2002, pet.
ref’d), overruled on other grounds by Taylor v. State, 268 S.W.3d 571, 587 (Tex. Crim. App.
2008). The trial court did not err in denying St. John’s request for mistrial. The first issue is
overruled.
          In his second issue, St. John argues that the evidence is insufficient to support his
conviction for burglary of a habitation. St. John was charged with committing the offense by


           1
             We note that the State contends that St. John failed to preserve his complaint for review. We disagree. St. John
immediately moved for a mistrial after the trial court announced its decision to discharge Tipps as disabled and to proceed with
eleven jurors. The reason that St. John requested a mistrial was apparent, and his request was timely. See Griggs v. State, 213
S.W.3d 923, 927 (Tex. Crim. App. 2007); Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004) (holding that a motion for
mistrial made without a preceding objection may preserve an issue for review but that, when a party’s first action is to move for
mistrial, “the scope of appellate review is limited to the question whether the trial court erred in not taking the most serious action
of ending the trial”).
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knowingly and intentionally entering the habitation of Jason Heath Shipp without Shipp’s
consent and by committing theft while therein. St. John’s specific argument on appeal is that no
rational jury could have found that he committed this offense because the “evidence falls
substantially in favor of St. John” regarding Shipp’s permission for St. John to be in the
apartment and also to remove a rifle from the apartment.
       We review a sufficiency of the evidence issue, regardless of whether it is denominated as
a legal or a factual sufficiency claim, under the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010);
Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the
Jackson standard, we examine all of the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and any reasonable inferences from it, any rational
trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The
jury, as the trier of fact, was the sole judge of the credibility of the witnesses and of the weight to
be given to their testimony. TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007), art. 38.04
(West 1979). As such, the jury was free to believe or disbelieve all or any part of any witness’s
testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
       Shipp testified that he had known St. John for fifteen or sixteen years and that they had
been good friends since college. At some point in 2007 or 2008, St. John lived with Shipp for
several months while St. John was going through a divorce. Shipp testified that he kept his
Remington hunting rifle in a case underneath his bed; that the rifle was there after St. John
moved out of Shipp’s apartment; and that, when St. John moved out, St. John kept a key to
Shipp’s apartment. Shipp did not ask St. John to return the apartment key, but he did not give
St. John permission to enter the apartment without calling beforehand. In April 2010, Shipp
noticed that his rifle was missing from its case. Shipp asked St. John about the rifle, and St. John
initially told Shipp that he had not taken it. Shipp then contacted the police to report his rifle
stolen. After Shipp filed a police report, St. John admitted to Shipp that he had taken the rifle.
St. John told Shipp that he had taken it to a gunsmith to have it customized. After Shipp learned
from the gunsmith that St. John had not taken the rifle to the gunsmith, Shipp confronted St. John
again. St. John then admitted that he took the rifle and pawned it because he had lost his job and
needed the money. Shipp testified that he did not give St. John permission to use or pawn the

                                                  3
rifle. Copies of text messages between Shipp and St. John were admitted into evidence as an
exhibit at trial. These messages support Shipp’s testimony.
       Detective Daniel Espinosa of the Midland Police Department located Shipp’s rifle at a
pawnshop. A business record from that pawnshop indicated that the rifle was pawned by
St. John on October 19, 2009. St. John told Detective Espinosa that he and Shipp had a key to
each other’s apartment and that he had permission to go to Shipp’s apartment “at any time that
[he] wanted to.” St. John also told the detective that he pawned the rifle the same day that he
took it from Shipp’s apartment. Shipp testified that St. John did not have permission to enter
Shipp’s apartment for any reason on October 19, 2009.
       St. John testified at trial that, after he got laid off from his job, he asked Shipp if he could
borrow some money from Shipp. According to St. John, Shipp did not have any money at that
time, but Shipp reluctantly agreed to allow St. John to pawn Shipp’s deer rifle as long as St. John
retrieved it from the pawnshop in a timely manner. St. John testified that he was not able to get
the rifle out of hock because he did not have the money to do so. He said that he told Shipp he
could not get the rifle back and that Shipp got mad at him and reported the rifle stolen.
St. John’s girlfriend testified that she overheard a conversation between Shipp and St. John in
which Shipp gave St. John permission to go get the rifle and pawn it as long as St. John returned
it to Shipp within thirty days. The jury apparently chose not to believe the testimony of St. John
and his girlfriend.
       Based upon the evidence presented at trial, a rational jury could have found beyond a
reasonable doubt that St. John committed each of the elements of the offense of burglary of a
habitation as charged in this case. We hold that the evidence is sufficient to support the
conviction, and we overrule St. John’s second issue.
       The judgment of the trial court is affirmed.




                                                              JIM R. WRIGHT
                                                              CHIEF JUSTICE
March 28, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.
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