Opinion filed April 15, 2010




                                            In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-08-00133-CR
                                        __________

                     THOMAS JACINTO LOPEZ, III, Appellant

                                               V.

                               STATE OF TEXAS, Appellee


                             On Appeal from the 385th District Court

                                     Midland County, Texas

                                 Trial Court Cause No. CR33628



                                         OPINION
       The jury convicted Thomas Jacinto Lopez, III of theft over $100,000 but less than
$200,000. Based on the trial court‟s finding of “true” on a prior felony conviction alleged for
enhancement purposes, the trial court sentenced appellant to confinement in the Institutional
Division of the Texas Department of Criminal Justice for a term of forty-five years. The trial
court also ordered appellant to pay restitution of $108,344. Appellant challenges his conviction
in four issues. We affirm.
                                        Background Facts
       Kay Stephenson Hill and Thomas Leroy Hill met appellant on July 25, 2006, when he
stopped by their home to see if they might be interested in hiring him to perform some repairs on
their home. Appellant told the Hills that, while driving by their home, he had observed some
loose bricks and exterior areas that needed to be repainted. He informed them that he had a work
crew in the area that could perform these repairs. After discussing the scope of the repairs, the
Hills executed a written contract with appellant on July 25, 2006, for him to repair the loose
bricks and perform other miscellaneous repairs around the home for the total price of $4,871.25.
The Hills paid appellant a down payment of $2,500 at the time that the initial written contract
was executed.
       Appellant and his crew started working on the Hills‟ home within a couple of days after
executing the initial written contract. Soon after appellant began working on the Hills‟ home, he
and the Hills entered into a discussion about their desire to make additional changes to their
home. Appellant and the Hills executed a second written contract for him to install new
windows, a French door, and a new garage door at their home for a total price of $13,085. This
contract also included additional work to repair loose bricks around the Hills‟ home. The Hills
paid appellant an additional $5,456 as a down payment on the second written contract.
       On August 11, 2006, the Hills executed a third written contract with appellant for him to
install handicap accessible sidewalks and driveways around their home to accommodate
Mrs. Hill‟s use of a wheelchair. The total price of this written contract was $13,531.25 of which
the Hills paid $6,500 at the time of its execution as a down payment. Accordingly, the Hills had
executed three written contracts with appellant within three weeks of their initial meeting for him
to perform work on their home in the total amount of $31,487.50.
       During the course of appellant‟s work on the Hills‟ home, he reported additional items to
them that were purportedly in need of repair. One of these items involved their chimney.
Appellant informed the Hills that their chimney could potentially be leaking dangerous gas into
their home. Other items “discovered” by appellant included the lack of adequate foundation
underneath the house, deficient ceiling trusses, termite damage in the attic, and insufficient
insulation. Appellant agreed to repair these items for the Hills for additional compensation.
       Appellant‟s work on the Hills‟ home extended into 2007. The working relationship
between appellant and the Hills deteriorated during the course of the project. Mrs. Hill testified
that appellant began failing to show up with his crew to work on the house and that he was often
late or unprepared to do the work that he and his crew were scheduled to do on a given day. She

                                                2
testified as follows in this regard: “What we learned was that he was not going to be there when
he said he would be there; and when he came, he would not be ready to work; and when he
worked, he wouldn‟t get the work done that he said he would do.”
          Mrs. Hill testified that appellant‟s work on their home came to a halt for a two-week
period in February 2007. Virtually every project that appellant had agreed to perform remained
unfinished at this time. Mrs. Hill estimated that appellant had not completed two-thirds of the
work on the house as of this time. When the Hills threatened appellant with legal action, he
resumed work on the house. Appellant and his crew worked on the house for three additional
weeks, but then he stopped working again. Mrs. Hill estimated that appellant had completed
one-half of the work on the house as of this time.
          As of April 2007, the Hills had made payments in excess of $161,000 to appellant. A
part of these payments consisted of $15,735.54 that appellant charged the Hills for fees and
bonds that he purportedly was required to purchase from the City of Midland in order to perform
work on their home.1 Frustrated by appellant‟s lack of performance, the Hills contacted the
building inspector for the City of Midland, Richard Schwope, to determine if appellant had
obtained the necessary permits for their remodeling project. Schwope determined that appellant
had not obtained any permits for working on the Hills‟ home.2 Schwope additionally determined
that appellant had not submitted proof of a surety bond to the city as required by city ordinance
in order to obtain construction permits as a contractor in the city.
          The Hills confronted appellant at his home after learning that he had not paid any fees to
the city to obtain construction permits for their home. Appellant began crying when confronted
by the Hills, and he pleaded for them not to contact the police. He subsequently wrote a letter of
apology that read as follows:
                                          Letter of Apology
          To Kay Hill                                                                 4/9/07
          I would like to say Mrs. Hill that I‟m sorry for lieing [sic] to you about the city
          bond fee. I‟m very sorry for charging you fees that were at all not necessary. I‟m
          1
            The items charged by appellant for fees and bonds consisted of the following: (1) City Construction Bond - $2,500;
(2) Footing Fee - $343.85; (3) City Environmental Fee - $426; (4) City Bond to Repair Chimney - $1,500; (5) Fee Curb Cut -
$375.69; (6) Bond Curb Cut - $1,500; (7) City Bond to Rebuild Chimney - $1,975; (8) Gas Line Inspection - $900; (9) City
Environmental Fee - $225; (10) Curb Cut Fine - $1,320; (11) Chimney Bond Renewal - $3,870; and (12) Additional Bond for
Chimney - $800.

           2
             Schwope testified that appellant was only required to obtain a single building permit for the work to be performed on
the Hills‟ home at a cost of $5.25 per each $1,000 of the cost of construction and to pay a single curb cut fee of $25.
                                                                 3
       sorry because I know I hurt you emotionally and I feel bad cause you had to get
       out of bed when you hurt to wait for us to come work. I‟m sorry for the days I
       stood you up. I promise not to lie to you or anybody else. I promise to tell the
       truth no matter what the facts are. The truth will have to be told the way it is.
       Once again Mrs. Hill, I‟m sorry for all the pain and suffering I put you through.
       Thank you. /s/ T.J. Lopez

Appellant ultimately entered into an agreement with the Hills to pay back the $15,735.54 he
collected for city fees and bonds at the rate of $14 a week. He made five payments under this
arrangement, but he ceased making the payments after he was arrested.
       Another significant portion of the total payments in excess of $161,000 that the Hills
made to appellant were personal loans to appellant. The Hills made loans in excess of $38,000
to appellant over the course of their working relationship. The Hills made these loans based
upon appellant‟s statements to them regarding various financial difficulties that he was
purportedly encountering.
       The State offered the testimony of Lance Friday, a local contractor, regarding the
necessity of many of the repairs suggested by appellant to the Hills. He testified that the attic
trusses that appellant indicated needed to be repaired were not defective because the house was
properly framed when it was built. Additionally, he testified that appellant‟s work on the trusses
did not strengthen them. Friday additionally testified that the original foundation of the Hills‟
home was sufficient and that the additional footing that appellant poured around the home did
nothing to help support the structure. He did not observe any evidence of termite damage in the
attic of the home. He also did not observe any problems with the chimney requiring the repairs
to it that appellant performed. Friday additionally did not find that appellant installed insulation
in any significant amount in the house.
       During the guilt/innocence phase, the State additionally called several other individuals
who had hired appellant for construction projects as witnesses to testify about their experiences
with appellant. Their testimony is summarized as follows:
           Paul West hired appellant in January 2007 to do brickwork on a new home
           construction project. He agreed to pay appellant $8,000 to brick the home.
           West paid appellant $5,000 to brick the home, but appellant only completed
           approximately half of the work. West entered into a separate contract with
           appellant to do footings and brickwork on columns on the home for $2,000.
           West paid appellant the entire $2,000, but appellant did not do any of the
                                                 4
work. Appellant told West that he would return the money that West
advanced to him for work that was not done, but appellant failed to do so.

Robert Pfile‟s wife hired appellant to perform electrical work on two rent
houses in February 2007. The Pfiles met appellant a year earlier when he
came to their home offering to do brick repair. He came to their home in
February 2007 offering to do the brick repair work a second time. Appellant
informed them that he was a master electrician when in fact he was not.
Mr. Pfile testified that his wife paid appellant $19,000 over the course of a
week for the work he agreed to perform in rewiring the rent houses. Mr. Pfile
testified that appellant did very little work on the houses and that a qualified
electrician had to be hired to re-do the work that appellant had performed
because it did not comply with code requirements. When confronted by Mr.
Pfile, appellant agreed to pay back $10,000, but he never did repay the money.
Manuel Beltran, a detective with the Midland Police Department that has
extensive experience in the construction industry, testified that appellant did
not actually rewire the houses. In many instances, appellant merely installed
new switches and electrical outlets to the original wiring in the houses.

Maria Gabriela Ramos hired appellant in March 2007 to remove the flat roof
on her family‟s home and replace it with a pitched roof. Appellant also agreed
to add a small room to the house and replace some windows. Appellant agreed
to do the work for a total of $13,500. Ramos paid appellant $11,800 toward
the agreed upon amount. However, appellant only completed a small portion
of the project because he stopped working on the project after the third day of
work. At the time that he stopped working on Ramos‟s house, he had only
removed the flat roof that previously existed. Thus, appellant left Ramos‟s
family with a house that did not have a roof. Appellant told Ramos that he
would give her one-half of her money back, but he never did.

Perry Taylor hired appellant to perform some brickwork in March 2007. He
and appellant signed a written contract in the amount of $10,500 to perform
the work. Taylor paid appellant all of the money, but appellant did not
perform all of the work required under the contract. Taylor estimated that
appellant did not complete approximately $2,500 to $3,000 of the work that he
agreed to do. Appellant agreed to perform additional work for Taylor at a cost
of $2,100. Taylor paid appellant $2,100 for this work, but appellant did not
complete it. Taylor also loaned appellant $1,500 to assist with jobs that
appellant was performing for other individuals. However, appellant did not
repay the loan back to Taylor.

In March 2007, Pat Magers‟s contractor, Brent Bates, hired appellant to
demolish a structure. Appellant performed the demolition work, but he did
not clean up the debris left by the demolition. Appellant also agreed to supply
a heating/air conditioner system to Magers for a total cost of $5,800. Magers
                                     5
          paid appellant $4,500 up front for the system equipment, but appellant never
          delivered the system or paid the money back. Appellant subsequently paid
          Magers $1,000 of the $4,500 back.

          Roy Hearon hired appellant to paint his house in April 2007. Appellant
          agreed to perform the work for $1,800. Hearon paid him $1,000 up front, but
          appellant neither painted his house nor returned the $1,000 that Hearon had
          paid him.

          Mark Ament hired appellant in March 2007 to build a garage for the price of
          $15,000. Ament paid appellant $2,000 up front for the project and made
          subsequent payments totaling $7,500, but appellant stopped working on the
          project. Ament noticed at the outset that appellant did not build the garage in
          an acceptable manner. Ament also testified that appellant lied to him about
          obtaining the necessary construction permit. Ament testified that appellant
          agreed to return $2,500 of the money paid to him but that he never paid the
          money back.

          Aloise Kuykendall hired appellant in March 2007 to paint and perform grout
          work on her home for a total price of $5,412. She paid appellant $3,412 up
          front for the work. Some of appellant‟s workers came to work on the project.
          Their work was unacceptable, and they did not complete the project.
          Kuykendall had to hire others to re-do their work. Appellant did not refund
          any of the money that Kuykendall paid him for the project.

                                   Sufficiency of the Evidence
       Appellant challenges the legal sufficiency of the evidence in his first issue. To determine
if the evidence is legally sufficient, we must review all of the evidence in the light most
favorable to the verdict and determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Jackson v. State, 17
S.W.3d 664, 667 (Tex. Crim. App. 2000). When conducting a sufficiency review, we consider
all the evidence admitted at trial, including pieces of evidence that may have been improperly
admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Conner v. State, 67
S.W.3d 192, 197 (Tex. Crim. App. 2001); Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim.
App. 1994); Chambers v. State, 805 S.W.2d 459, 460 (Tex. Crim. App. 1991). The finder of fact
is the sole judge of the weight and credibility of the witnesses‟ testimony. TEX. CODE CRIM.
PROC. ANN. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979). We presume that the jury

                                                6
resolved conflicts in the evidence in favor of the prosecution, and we defer to that determination
in reviewing the sufficiency of the evidence. Jackson, 443 U.S. at 326.
       Our analysis of appellant‟s challenge to the legal sufficiency of the evidence focuses on a
review of the mathematical calculations presented at trial. As noted previously, the Hills made
payments in excess of $161,000 to appellant. The jury convicted appellant of second degree
theft of between $100,000 and $200,000. See TEX. PENAL CODE ANN. § 31.03(e)(6) (Vernon
Supp. 2009). Accordingly, we must determine if any rational trier of fact could have found
beyond a reasonable doubt that appellant committed theft against the Hills in an amount of at
least $100,000.
       A person commits theft “if he unlawfully appropriates property with intent to deprive the
owner of property.” TEX. PENAL CODE ANN. § 31.03(a) (Vernon Supp. 2009). Appropriation of
property is unlawful if it “is without the owner‟s effective consent.” TEX. PENAL CODE ANN.
§ 31.03(b)(1) (Vernon Supp. 2009); Stewart v. State, 44 S.W.3d 582, 589 (Tex. Crim. App.
2001) (the “crucial element of theft is the deprivation of property from the rightful owner,
without the owner‟s consent”). “Consent” is not effective if it is induced by deception. See TEX.
PENAL CODE ANN. § 31.01(3)(A) (Vernon Supp. 2009).               The Texas Penal Code defines
“deception” as follows:
        “Deception” means:

               (A) creating or confirming by words or conduct a false impression of law
       or fact that is likely to affect the judgment of another in the transaction, and that
       the actor does not believe to be true;

               (B) failing to correct a false impression of law or fact that is likely to
       affect the judgment of another in the transaction, that the actor previously created
       or confirmed by words or conduct, and that the actor does not now believe to be
       true;

             (C) preventing another from acquiring information likely to affect his
       judgment in the transaction;

               (D) selling or otherwise transferring or encumbering property without
       disclosing a lien, security interest, adverse claim, or other legal impediment to the
       enjoyment of the property, whether the lien, security interest, claim, or
       impediment is or is not valid, or is or is not a matter of official record; or


                                                7
               (E) promising performance that is likely to affect the judgment of another
       in the transaction and that the actor does not intend to perform or knows will not
       be performed, except that failure to perform the promise in issue without other
       evidence of intent or knowledge is not sufficient proof that the actor did not
       intend to perform or knew the promise would not be performed.

TEX. PENAL CODE ANN. § 31.01(1)(A)-(E) (Vernon Supp. 2009). Thus, the Penal Code provides
five alternative methods of committing theft by deception.
       Appellant focuses his legal sufficiency challenge on the method of deception set out in
Section 31.01(1)(E). This subsection provides that an actor engages in deception if he promises
performance that he does not intend to perform or knows will not be performed. Most theft
convictions resulting from contractual civil disputes arise under this “failure to perform”
subsection. In the typical scenario, the actor agrees to perform a service, accepts money for the
service, but then ultimately fails to perform the service. A claim of theft in this situation requires
proof of more than an intent to deprive the owner of property and subsequent appropriation of
the property. Baker v. State, 986 S.W.2d 271, 274 (Tex. App.—Texarkana 1998, pet. ref‟d). “If
no more than intent and appropriation is shown in a contract claim, nothing illegal is apparent,
because under the terms of [a contract] individuals typically have the right to „deprive the owner
of property,‟ albeit in return for consideration.” Id. Stated another way, if money was voluntarily
given to the accused pursuant to a contractual agreement and there is insufficient evidence in the
record to show the money was obtained by deception, the conviction cannot stand. Phillips v.
State, 640 S.W.2d 293, 294 (Tex. Crim. App. 1982). Thus, to constitute theft in a contract
situation, the evidence must show that the accused intended to deprive the owner of the money
advanced under the contract at the time the money was accepted by the accused. See Wilson v.
State, 663 S.W.2d 834, 836-37 (Tex. Crim. App. 1984) (“Relevant intent to deprive the owner of
property is the accused‟s intent at the time of the taking.”).
       Texas courts have held that, if a contract is partially or substantially performed, then the
intent to commit theft through deception is not shown by the evidence. See Baker, 986 S.W.2d at
275. Appellant relies on this principle to assert that the evidence negates his culpability for theft
by deception because he partially performed his agreement to work on the Hills‟ home. We
agree that an actor‟s partial performance under a contract may negate his criminal culpability in



                                                  8
the context of the “failure to perform” ground of deception.                                 As set out above, however,
Section 31.01(1) lists additional grounds by which an actor may commit theft by deception.
          Section 31.01(1)(A) provides that an actor engages in deception by “creating or
confirming by words or conduct a false impression of law or fact that is likely to affect the
judgment of another in the transaction, and that the actor does not believe to be true.” The State
relied heavily upon this ground for establishing appellant‟s guilt for theft by deception.3 For
example, appellant represented to the Hills that they owed thousands of dollars in fees and bonds
to the City of Midland in order for the construction project to occur. As evidenced by his letter
of apology to Mrs. Hill, appellant created a false impression of law or fact that he knew was not
true that induced the Hills to pay him $15,735.54 for the bogus fees. The fact that appellant may
have partially performed under the contract is irrelevant to an inquiry as to whether he acquired
funds from the Hills without their effective consent by creating a false impression of law or fact.
Accordingly, we conclude that evidence of partial performance under a contract is not relevant to
a charge that an actor induced the property owner‟s consent to advance funds under a contract by
creating a false impression of law or fact.
          As noted previously, the State offered evidence that many of the alleged flaws that
appellant identified to the Hills with their home were not defective or deficient. These items
included the purported problems with the Hills‟ chimney, foundation, attic trusses, and termite
damage. The State contends that appellant‟s work on these items constituted unnecessary repairs
and that the amounts that appellant charged the Hills for these unnecessary repairs were obtained
by deception. We conclude that a rational trier of fact could have found beyond a reasonable
doubt that appellant induced the Hills to advance funds to him for these unnecessary repairs by
creating a false impression of law or fact regarding their necessity. Detective Bill Anderson,
another Midland police officer with construction experience, testified that appellant charged the
Hills $27,425 for work done on the chimney;4 $8,219 for the foundation work; and $18,300 for
work done in the attic for trusses, alleged termite damage, and insulation. Thus, the State offered
evidence that appellant charged the Hills $53,644 for unnecessary repairs.

            3
              The court‟s charge included the methods of perpetrating deception set out in Section 31.01(1)(A), (B), (C), and (E) in
its definition of “[d]eception.”
          4
            In addition to charging the Hills $27,425 for unnecessary repairs to their chimney, he also collected $8,145 from them
for bogus permit fees for the work on the chimney.
                                                                  9
        In addition to the $15,735.54 that appellant collected from the Hills for bogus permit fees
and the $53,644 he charged them for unnecessary repairs, he also borrowed $38,945.79 in
personal loans from them. Appellant informed the Hills of various financial problems he was
having when he obtained these loans.          Mr. Hill testified that appellant told him that his
bookkeeper/accountant had stolen money from him and fled to the Cayman Islands. Mr. Hill
described the conversations leading up to appellant asking for loans as follows:
        Usually he would come in and say, you know “I‟m really short on cash because
        my accountant has cleaned out my account; my funds are tied up; that the bank
        would not loan me any more money until we -- this was resolved.” It was all in
        the process. I believe what he said was his accountant had been arrested, and that
        a good bit of the money that he had taken from Mr. Lopez and others, had been
        found -- or at least the Court had managed to turn up a bunch of it; and it was all
        sitting in the Court Clerk‟s hand; and eventually they were going to sort it all out
        as to how much would be proportioned out to certain people that were all victims.

                And so it was going to be tied up for a while, and he needed something to
        tide him over until then.

Appellant also stated that he needed money to complete projects for other customers and that he
needed money to re-incorporate his business. Detective Anderson determined that appellant‟s
story about his accountant was a sham. Additionally, the testimony from appellant‟s other
customers with regard to funds they advanced to him for projects demonstrated that he was not in
dire financial straits. Accordingly, a rational trier of fact could have found beyond a reasonable
doubt that appellant induced the Hills to loan money to him by creating a false impression of law
or fact regarding his financial difficulties and its causes.
        Additionally, Mrs. Hill testified that she paid appellant $2,100 for Pella windows and
$1,000 for a credenza that he never delivered. She also testified that twenty-five percent of the
work that appellant agreed to complete remained unfinished. The testimony of appellant‟s other
customers reveals a pattern of conduct on his part to agree to perform work with no intention of
completing it. Based upon their testimony, a rational trier of fact could have found beyond a
reasonable doubt that appellant did not intend to deliver the windows and credenza or complete
the work he agreed to perform at the time he accepted funds for these projects from the Hills.
Accordingly, the record contains legally sufficient evidence to support the jury‟s determination

                                                  10
that appellant committed theft by deception against the Hills in an amount in excess of $100,000.
Appellant‟s first issue is overruled.
                     Evidence of Appellant’s Dealings with Other Customers
       In his second and third issues, appellant challenges the admission of evidence pertaining
to his dealings with other customers. He contends in his second issue that the admission of this
evidence violated TEX. PENAL CODE ANN. § 31.03(c)(1) (Vernon Supp. 2009). He asserts in his
third issue that the admission of this evidence violated TEX. R. EVID. 404(b). We review the trial
court‟s ruling on the admissibility of evidence under an abuse of discretion standard. Powell v.
State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001); Montgomery v. State, 810 S.W.2d 372 (Tex.
Crim. App. 1991). This standard requires an appellate court to uphold a trial court‟s admissibility
decision when that decision is within the zone of reasonable disagreement. Powell, 63 S.W.3d at
438.
       Section 31.03(c)(1) provides that “evidence that the actor has previously participated in
recent transactions other than, but similar to, that which the prosecution is based is admissible for
the purpose of showing knowledge or intent and the issues of knowledge or intent are raised by
the actor‟s plea of not guilty.” Appellant asserts that another transaction must be identical to the
charged offense in order to be admissible under the statute. We disagree. The statute only
requires that another transaction be similar to the charged offense in order to be admissible. We
conclude that the trial court did not abuse its discretion in determining that the other transactions,
which all occurred during the period of time that appellant was also working on the Hills‟ home,
were similar to the transaction giving rise to the charged offense. Appellant‟s second issue is
overruled.
       Evidence of other crimes, wrongs, or bad acts is not admissible for the purpose of
showing that the person acted in conformity therewith. Rule 404(b); Montgomery, 810 S.W.2d at
386-88. However, this evidence may be admissible when it is relevant to a “noncharacter
conformity fact of consequence in the case,” such as intent, motive, identity, opportunity,
preparation, plan, knowledge, or absence of mistake or accident. Powell, 63 S.W.3d at 438; see
Rule 404(b); Montgomery, 810 S.W.2d at 387-88. Admissibility of evidence hinges on the
relevancy of the evidence to a “fact of consequence” in the case. Rankin v. State, 974 S.W.2d
707, 709 (Tex. Crim. App. 1996). Other crimes, wrongs, or bad acts have noncharacter

                                                 11
conformity relevance where it logically serves to make less probable defensive evidence that
undermines an elemental fact. Powell, 63 S.W.3d at 438.
       We conclude that the trial court did not err under Rule 404(b) in admitting the other
customers‟ testimony.      The evidence was admissible under both Section 31.03(c)(1) and
Rule 404(b) to show appellant‟s intent. In a theft case arising from a construction contract, the
issue of the defendant‟s intent at the time he received funds under the contract in consideration of
his promise to perform future work will invariably be a contested issue at trial. The evidence
from the other customers showed that appellant took money for work that he never intended to
complete. Appellant‟s third issue is overruled.
                                           Disabled Juror
       In his fourth issue, appellant contends that the trial court erred in proceeding with the trial
over his objection after a juror became ill. Appellant claims that the trial court erred in
determining that the juror was disabled under TEX. CODE CRIM. PROC. ANN. art. 36.29(a)
(Vernon Supp. 2009). On the third day of trial, the proceedings began with the trial court
informing the attorneys that a juror had contacted the court to report that she was ill with a
stomach ailment and that she would not be able to attend court. The trial court additionally
advised the parties that the same juror had informally advised the court on the previous day that
she had an upset stomach and was not feeling well. Although appellant objected and requested
that the trial be postponed, the trial court chose to proceed under TEX. CODE CRIM. PROC. ANN.
art. 36.29 (Vernon Supp. 2009). Prior to making its determination to proceed with eleven jurors,
the trial court polled the remaining jurors to ascertain their availability in the event the trial was
postponed. Six of the remaining jurors indicated it would be difficult for them to come back at a
later date, and all eleven of the remaining jurors indicated that they would like for the trial to
continue without waiting for the return of the sick juror.
       Article 36.29 allows a trial to proceed with fewer than twelve jurors if a juror becomes
disabled. 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). A disability for
purposes of Article 36.29 includes any condition that inhibits a juror from fully and fairly
performing the functions of a juror. Routier v. State, 112 S.W.3d 554, 588 (Tex. Crim. App.

                                                  12
2003). 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). Absent an abuse of
that discretion, no reversible error will be found. Id.
       Appellant contends that an upset stomach is insufficient to render a juror disabled
because such an illness is temporary. However, other 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. See Allen v. State, 536 S.W.2d
364, 366-67 (Tex. Crim. App. 1976) (juror properly determined to be disabled after having been
diagnosed with influenza); Hughes v. State, 787 S.W.2d 193, 195 (Tex. App.—Corpus Christi
1990, pet. ref‟d) (juror excused after complaining of nausea, headaches, and vomiting). A
juror‟s inability to come to the courthouse due to a stomach ailment provides some evidence of
the requisite incapacity to perform the duties assigned to that juror that the trial court may
consider in making a determination of disability. Although some stomach ailments might be only
temporary, it remains within the trial court‟s discretion to determine whether the juror had
become disabled. Therefore, the record does establish that the trial court abused its discretion in
determining that the juror‟s ailment rendered her disabled. Furthermore, Article 36.29 does not
require the trial court to consider postponing the trial prior to proceeding with eleven jurors in
the event of a juror‟s disability. Thus, the remaining jurors‟ preference for proceeding with the
trial is of no consequence to a disability determination under Article 36.29. Appellant‟s fourth
issue is overruled.
                                        This Court’s Ruling

       The judgment of the trial court is affirmed.




                                                              TERRY McCALL
                                                              JUSTICE
April 15, 2010
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.

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