                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                       No. 07-13-00306-CR


                         RAFAEL MONTEAGUDO, JR., APPELLANT

                                                V.

                             THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 181st District Court
                                     Randall County, Texas
                 Trial Court No. 24,113-B, Honorable Andrew Kupper, Presiding

                                         May 27, 2014

                               MEMORANDUM OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant, Rafael Monteagudo, Jr., appeals the trial court’s judgment in which he

was convicted of the first-degree felony offense of manufacture or delivery of a

controlled substance, namely methamphetamine, in an amount of four grams or more

but less than 200 grams, and sentenced to sixty years’ imprisonment as punishment for

said offense.1 On appeal, he contends that the trial court erred in concluding that one




      1
          See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2010).
juror had become disabled early in the punishment phase, dismissing that juror from his

service, and proceeding with the trial on punishment with eleven jurors. We will affirm.


                             Factual and Procedural History


       Because appellant challenges only the trial court’s dismissal of one juror and its

decision to proceed with the trial on punishment with eleven jurors, we limit our

recitation of the facts to the minimal facts necessary to place appellant’s contentions in

the proper context.


       Appellant was arrested and charged with delivery or manufacture of a controlled

substance, namely methamphetamine, in an amount of four grams or more but less

than 200 grams. A Randall County jury found appellant guilty of the charged offense.

Foreman of that convicting jury was Juror A, who will be the subject of our analysis.

The day after the jury returned its guilty verdict, the State began to present its evidence

on punishment, appeared poised to introduce evidence of appellant’s past bad acts,

and, as its first witness, called Jacob Rincon. As it turns out, Rincon is the son of the

late victim of one of appellant’s past crimes. Rincon’s father—we will call him Rincon

Sr.—was killed when appellant, while driving intoxicated, struck Rincon Sr.’s

motorcycle; Rincon Sr. died five days later from the severe injuries sustained in the

collision.


       Within moments of Rincon taking the stand and after Rincon identified himself

and described his family generally, Juror A alerted the trial court that he needed to

speak to the trial court. Juror A, entirely unaware of the association between appellant

and Rincon Sr.’s death until the point at which Rincon identified himself, explained to

                                            2
the trial court that he knew and worked with Rincon Sr. and that the two men had a

close relationship.       As soon as Juror A realized who Rincon was and made the

connection between the Rincon family and appellant, he alerted the trial court.


        The trial court examined Juror A rather extensively during an initial exchange at

the bench, a conference in chambers, and a more formal examination in the courtroom

to assess the circumstances and impact of Juror A having discovered the connection.

The trial court was certain to confirm that Juror A was unaware of that connection until

punishment evidence began, making certain that such knowledge could not have had

any influence whatsoever on Juror A’s assessment of the evidence in the guilt-

innocence phase of trial and could not have influenced his verdict.2 Juror A agreed that

the connection had “never occurred” to him until he recognized who Rincon was.


        In addition to the trial court’s careful questioning in that regard, it thoroughly

examined Juror A with respect to the impact his newly-acquired knowledge would have

on him throughout the remainder of the trial on punishment. After establishing that

Juror A “knew [Rincon Sr.] well” through their work and confirming that appellant was

responsible for Rincon Sr.’s death, the exchange continued in which Juror A initially and

perhaps tentatively explained that he would likely be able to continue, but, when

pressed for certainty on the matter, Juror A seemed to express doubt as to his ability to

faithfully perform his duties as a juror:




        2
            The trial court was also careful to determine whether Juror A had divulged this information to
remaining jurors. Juror A explained to the trial court that he had not shared with them the specific details
of the issue, only that he had to discuss a situation with the trial court. Further examination of Juror A
confirmed that he did not share with the panel the nature of the situation he needed to discuss with the
trial court.

                                                     3
THE COURT: And you know that Mr. Rincon’s father was killed in a
wreck?

JUROR A: Uh-huh.

THE COURT: And I guess you’ve gathered so far that this Defendant in
this case may be the one that may have hit him.

JUROR A: I feel – with him up there, there’s something related.

THE COURT: Okay. Now then, knowing that, that Mr. Rincon is going to
testify that his father was the victim where Mr. Monteagudo is accused –

JUROR A: Right.

THE COURT: – of hitting him –

JUROR A: Yes, sir.

THE COURT: – in a case that we would call intoxication manslaughter.
Okay?

JUROR A: Yes, sir.

THE COURT: And that will come out. Knowing that, and knowing Mr.
Rincon, Sr. – or the father, as you do, would that affect your ability to
render a fair and impartial verdict in – on punishment in this case?

JUROR A: I don’t think so. I just wanted – I just wanted everybody to
know that I – when it – when he said his name and what his dad’s name
was, it rang a bell.

THE COURT: So you think you could still be fair?

JUROR A: Yes, sir.

THE COURT: You think that you could sit in the box and kind of set your
relationship with Mr. Rincon [Sr.] aside and say, I’m not going to base my
verdict on anything except what I think I hear from the witness stand and
what I think will be fair to the State and the Defendant? You’ve got to be
absolutely positive that you can do that.

JUROR A: I don’t think I’m positive I can do that, no, sir.

THE COURT: Okay. So you feel like that that would affect –

JUROR A: It could, yes.

THE COURT: Well, “it could” is –

                                      4
      JUROR A: Yes.

      THE COURT: It would?

      JUROR A: Yes.

      THE COURT: Is that what you’re telling me?

      JUROR A: Yes.

Later, the trial court swore in Juror A and further examined him on the matter, reiterating

the nature of the relationship between Juror A and Rincon Sr. and assessing the impact

Juror A’s knowledge that appellant was responsible for Rincon Sr.’s death would have

on Juror A:


      THE COURT: And you had a close relationship with him, I believe, you
      told me.

      JUROR A: Well, I knew him real well.

      THE COURT: You knew him real well.

      JUROR A: He was our painter.

      THE COURT: And when I asked you a question earlier about being fair
      and impartial and you said, well, he’s deceased, it appeared to me that
      you had some emotional feelings about that when I asked you that.

      JUROR A: Yes, sir.

      THE COURT: And your response to me indicated that you had an
      emotional response to it.

      JUROR A: Yes, sir.

      THE COURT: Would that be true?

      JUROR A: Yes, sir.

      THE COURT: Further, you have stated, before I brought you back in here,
      that you felt like your knowledge of this situation would affect your ability to
      be fair –

      JUROR A: Yes, sir.


                                             5
        THE COURT: – to the Defendant in this case.

        JUROR A: Yes, sir.

        THE COURT: And would you say that this knowledge that you have would
        substantially impair your ability to serve as a juror and assess punishment
        in this case?

        JUROR A: Yes, sir.

        State’s counsel declined the opportunity to question Juror A, but defense counsel

did briefly examine him and, presumably in an effort to support his request for a new

jury, emphasized the visible physical reaction Juror A had to the discovery:


        DEFENSE COUNSEL: Sir, I noticed whenever you raised your hand and
        said you need a minute or – I don’t remember the exact words, and even
        now, you look physically distraught?

        JUROR A: Yes.

        DEFENSE COUNSEL: And that’s – the thought of what you – what – your
        friend having passed, and you having to listen to testimony about is
        physically distressing to you, isn’t it?

        JUROR A: Yes.

        DEFENSE COUNSEL: And you – your demeanor hasn’t changed from
        right there in the jury box through the three times you’ve been in here
        talking to us, has it?

        JUROR A: No.

        DEFENSE COUNSEL: I’m sorry about this situation and I appreciate your
        honesty.

        JUROR A: Yes, sir.

As defense counsel later urged the trial court to impanel a new jury rather than proceed

on punishment with eleven jurors, he again noted that Juror A had “physically changed

in appearance once he noticed this because it affected him so much. I think that taints

the entire jury . . . .”


                                            6
         The trial court denied appellant’s motion for mistrial and his request for a new

jury. The trial on punishment continued with eleven jurors, all of whom signed the

verdict form as confirmed by the trial court and all of whom were polled sua sponte by

the trial court immediately after the jury’s verdict was announced. Appellant timely filed

his notice of appeal and brings to this Court his complaint regarding the dismissal of

Juror A and the trial court’s decision to proceed with eleven jurors. We will affirm.


                               Clarifying the Issue on Appeal


         On appeal, appellant advances the contention that the trial court’s failure to

comply with the strictures of the governing procedural provision and its attendant

decision to continue with the trial on punishment “denied the Appellant both due process

and equal protection of law.” We address appellant’s contention regarding the propriety

of the trial court’s dismissal of Juror A to the extent that he raised the issue in the trial

court.    And, in the trial court, appellant made no mention of any constitutional

consideration relating to the dismissal of Juror A. For that reason, we will examine the

issue as it was raised below, that is, as one complaining of the trial court’s compliance

with applicable procedural rules and without reading into it the constitutional implications

now raised on appeal.


         We add that such an approach is consistent with authority that regards the failure

of a trial court to adhere to a statutory procedure that is related to a constitutional

provision as simply a violation of that statute, not a violation of the constitutional

provision itself. See Ex parte Long, 910 S.W.2d 485, 486 (Tex. Crim. App. 1995) (en

banc); see also Ex parte Sadberry, 864 S.W.2d 541, 543 (Tex. Crim. App. 1993) (en


                                              7
banc) (characterizing the issue of whether defendant’s failure to sign a written jury

waiver violated a defendant’s constitutional right to a jury trial as one that “involve[d] an

irregularity in the proceedings in the trial court,” not “a question of constitutional

dimension”).


                         Applicable Law and Standard of Review


       Generally, the Texas Constitution requires that the jury in a felony trial be

composed of twelve members. See TEX. CONST. art. V, § 13. However, the right to a

twelve-member jury is not absolute. Texas Constitution also provides as follows:


       When, pending the trial of any case, one or more jurors not exceeding
       three, may die, or be disabled from sitting, the remainder of the jury shall
       have the power to render the verdict; provided, that the Legislature may
       change or modify the rule authorizing less than the whole number of the
       jury to render a verdict.

Id.   Pursuant to this constitutional authority, the Legislature enacted a provision to

govern such circumstances:


       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.

TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (West 2013); see Chavez v. State, 91 S.W.3d

797, 800 (Tex. Crim. App. 2002) (citing Johnson v. State, 525 S.W.2d 170, 171 (Tex.

Crim. App. 1975)).




                                             8
      The Texas Court of Criminal Appeals has observed that Article 36.29’s language

and the cases applying Article 36.29 make clear that the Legislature’s intent was to limit

the article’s application to those cases where the juror was physically or mentally

impaired in some way which hindered his ability to perform his duty as a juror. See

Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999) (en banc) (citing several

cases illustrating instances of a “disabled” juror); Ramos v. State, 934 S.W.2d 358, 369

(Tex. Crim. App. 1996) (interpreting “disabled from sitting” as referring to a physical,

mental, or emotional disability).   Put another way, a juror becomes disabled if he

develops a “‘physical illness, mental condition, or emotional state’ which hinders [his]

ability to perform [his] duties as a juror.” See Hill v. State, 90 S.W.3d 308, 315 (Tex.

Crim. App. 2002) (concluding that juror was unable to perform her duties and was,

therefore, “disabled” under Article 36.29 when she suffered from “debilitating panic

attacks” and quoting Landrum v. State, 788 S.W.2d 577, 579 (Tex. Crim. App. 1990) (en

banc) (per curiam)). A juror’s bias or prejudice for or against a defendant, however,

does not render a juror “disabled.” Reyes v. State, 30 S.W.3d 409, 412 (Tex. Crim.

App. 2000) (en banc); see Bass v. State, 622 S.W.2d 101, 105 (Tex. Crim. App. 1981)

(en banc).


      The Texas Court of Criminal Appeals has upheld a trial court’s decision to

excuse a juror for disability who was emotionally upset over the death of his father-in-

law and needed to go out of state to be with his wife. See Clark v. State, 500 S.W.2d

107, 108–09 (Tex. Crim. App. 1973). Also, a juror who testified that he had made

arrangements to move from McAllen to Houston for a new job, that he had to begin the

job on March 1 or lose it, and that he had given notice that he was vacating his


                                            9
apartment was found to be “disabled” within the meaning of Article 36.29. See Ramos,

934 S.W.2d at 369. The juror had initially believed that the trial would be finished by the

time he had to move and start his new job, but later developments, it seems, had made

it unlikely that trial would be complete by the time the juror had to move. See id. When

questioned by the trial court, the juror explained that his changed circumstances would

impair his ability to serve on the jury and diminish his ability to concentrate and that he

considered himself mentally and emotionally disabled to serve. See id. In affirming the

trial court’s dismissal on the basis that the juror had become “disabled,” the Ramos

court observed as follows:


       In the present case, there is evidence in the record that [the juror] would
       be unable to concentrate due to the time pressures associated with
       moving and starting a new job. We have held that emotional pressures
       due to an illness in the family will justify discharge under Article 36.29. . . .
       Likewise, the emotional pressures suffered by [the juror] justify the trial
       court’s decision to discharge him.

Id. (citing Carrillo v. State, 597 S.W.2d 769, 770 (Tex. Crim. App. [Panel Op.] 1980)).


       After being sworn but before trial began, a single-parent juror in Owens v. State,

202 S.W.3d 276, 277 (Tex. App.—Amarillo 2006, pet. ref’d), informed the trial court that

she had been unable to obtain child care and transportation for her special needs son.

She stated to the trial court that her concern for her son would cause her to be unable to

focus her attention upon the trial. See id. In light of those circumstances, the trial court

concluded that the juror was “disabled” within the meaning of Article 36.29, released her

from duty, and proceeded to trial with the remaining eleven jurors. See id. On appeal,

this Court upheld the trial court’s ruling. Id. (citing Edwards v. State, 981 S.W.2d 359,

367 (Tex. App.—Texarkana 1998, no pet.), for similar holding on similar circumstances).


                                              10
      To illustrate an instance when a dismissed juror was not “disabled” per Article

36.29, we look to Brooks. In Brooks, the juror in question was arrested on the morning

the punishment trial was to begin for entering the courthouse with a handgun. See

Brooks, 990 S.W.2d at 286. Appellant unsuccessfully moved for a mistrial and then

requested that the trial court remove the juror on the grounds that he was “disabled,” a

request the trial court also denied; the trial court allowed the juror to remain. See id.

When appellant contended that the trial court should have dismissed the juror as

“disabled,” the Texas Court of Criminal Appeals disagreed: the juror in question had not

suffered from a physical illness, mental condition, or emotional state which affected his

ability to perform the duties assigned to him as a juror. See id. In fact, the Brooks court

pointed out, the trial court asked the juror whether “this experience you’ve had this

morning in any way impedes your ability to be fair to both sides in the trial of the

punishment?” See id. The juror responded to the trial court’s inquiry, “No, sir, it had

nothing to do with the trial at all.” Id. The court concluded that the Brooks juror was not

disabled as envisioned by Article 36.29. Id.


      The determination as to whether a juror has become “disabled” within the

meaning of Article 36.29 lies within the trial court’s discretion; absent an abuse of such

discretion, we will find no reversible error. See Scales v. State, 380 S.W.3d 780, 784

(Tex. Crim. App. 2012) (op. on reh’g). Therefore, to support its judgment, the trial court

must make a finding, one sufficiently supported by the record, that the juror was

“disabled” or unable to perform the duties of a juror. Id. When reviewing the decision to

dismiss a “disabled” juror, an appellate court may not presume from a silent record that

the dismissal was proper. Id. (citing Valdez v. State, 952 S.W.2d 622, 624 (Tex. App.—


                                            11
Houston [14th Dist.] 1997, pet. ref’d). However, neither is it the role of an appellate

court to substitute its own judgment for that of the trial court; rather, we must assess,

after viewing the evidence in the light most favorable to the trial court’s ruling, whether

the trial court’s ruling was arbitrary or unreasonable. Id. (citing Ocon v. State, 284

S.W.3d 880, 884 (Tex. Crim. App. 2009), and Lewis v. State, 911 S.W.2d 1, 7 (Tex.

Crim. App. 1995)). We must uphold the ruling if it lies within the zone of reasonable

disagreement. See id.


                                          Analysis


       Here, the record before us is far from silent; in fact, we have a fairly well-

developed record from which we can review the trial court’s dismissal of Juror A. And

from this record we see that, despite Juror A’s initial expressions that he thought he

would be able to continue, the trial court’s observations regarding Juror A’s reaction and

current emotional state, as echoed by defense counsel himself, demonstrate that Juror

A’s physical countenance changed immediately upon his realization that appellant was

responsible for Rincon Sr.’s death.       It is true that the term “disabled” does not

encompass bias or prejudice. See Reyes, 30 S.W.3d at 412. But the term does include

“a physical illness, mental condition, or emotional state” which hinders a juror’s ability to

perform his duties as a juror. See Hill, 90 S.W.3d at 315. And, by all accounts, Juror A

demonstrated a physical manifestation of his emotional reaction to having learned that

appellant was the driver who struck and killed Rincon Sr.


       Based on its extensive examination of Juror A and its ability to directly observe

his demeanor and physical and emotional states, the trial court could have found that


                                             12
discovering this information about appellant brought about a condition in Juror A that

inhibited, hindered, or prevented him “from fully and fairly performing the functions of a

juror.” See Reyes, 30 S.W.3d at 411. Viewing the evidence in the light most favorable

to the trial court’s ruling, we cannot say that the trial court’s dismissal of Juror A as

“disabled” within the meaning of Article 36.29 was an arbitrary or unreasonable

decision. See Scales, 380 S.W.3d at 784. Accordingly, we overrule appellant’s sole

point of error on appeal.


                                       Conclusion


       Having overruled appellant’s point of error on appeal, we affirm the trial court’s

judgment of conviction. See TEX. R. APP. P. 43.2(a).




                                         Mackey K. Hancock
                                             Justice


Do not publish.




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