                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00281-CR


EBAN STILLWELL                                                     APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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         FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
                   TRIAL COURT NO. F-2011-1722-E

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                                  OPINION

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                                I. Introduction

      A jury convicted Appellant Eban Stillwell of indecency with a child and

assessed a twelve-year sentence. In three points, Stillwell contends that his

rights were violated when the court denied his motion for mistrial and proceeded

with only 11 jurors and that the trial court erred when it denied him the
opportunity to question a juror about possible misconduct.      We reverse and

remand.

                                    II. Facts

      The trial court empaneled a jury of 12 in this case, but after the State’s

third witness began to testify, Juror Ignacio Sanchez informed the bailiff that he

was having trouble understanding the proceedings.       Thereafter, the following

exchange occurred between Sanchez, the trial judge, and counsel:

      THE COURT: . . . All right. Mr. Sanchez, you commented to my
      bailiff this morning that you might have trouble understanding the
      proceedings.

      JUROR SANCHEZ: Yes.

      THE COURT: Okay. How long have you been in the United States?

      JUROR SANCHEZ: It’s my -- 15 years.

      THE COURT: Okay.

      JUROR SANCHEZ: Never make school here. Just in Mexico.

      THE COURT: Never did what?

      JUROR SANCHEZ: I never make school here. I never go to school
      in the United States.

      THE COURT: Okay. You went to school somewhere.

      JUROR SANCHEZ: In Mexico.

      THE COURT: Okay. And so I noticed from your juror questionnaire
      here you’ve been working at the same job for 11 years as a driver.

      JUROR SANCHEZ: Yeah.

      THE COURT: Okay. And so what do you deliver?


                                        2
JUROR SANCHEZ: I deliver doors and trim in the houses.

THE COURT: Okay.

JUROR SANCHEZ: The materials.

THE COURT: Okay. And so you’re able to read and write English.

JUROR SANCHEZ: In my job? Are you asking --

THE COURT: No, when you filled out the questionnaire.

JUROR SANCHEZ: No, no, no.

THE COURT: You didn’t fill out your own questionnaire?

JUROR SANCHEZ: Well, yes, but barely. Not too much.

THE COURT: Okay. And what so far have you not understood?

JUROR SANCHEZ:         I don’t -- I don’t understand exactly what is
question.

THE COURT: All right. I’m sorry, I don’t hear well, so --

JUROR SANCHEZ: Yes.

THE COURT: You what? Are you able to hear the questions?

JUROR SANCHEZ: No, I no understand what you say exactly.

THE COURT: I’m not hearing what you’re saying. What?

JUROR SANCHEZ: I no understand what you say.

THE COURT: My question to you was you have been -- you were
sworn in yesterday and you knew to come back here today, correct?

JUROR SANCHEZ: Yes.

THE COURT: Okay. And did you understand what was being said
today?


                                  3
JUROR SANCHEZ: I understand a little bit. Not too much.

THE COURT: Okay. I’m not sure if you -- let me just ask, anyone
want to ask a question?

[PROSECUTOR]: Can I ask, sir –

JUROR SANCHEZ: Yes?

[PROSECUTOR]: -- have you been able to understand what the
witnesses are saying in court?

JUROR SANCHEZ: A little bit. Not too much.

[PROSECUTOR]: So there are some things that witnesses have
said that you don’t understand?

JUROR SANCHEZ: Well, not exactly, but I understand little bit.

[PROSECUTOR]: So you understand a little bit only?

JUROR SANCHEZ: (Nods head.) Yes.

[PROSECUTOR]: So does that mean that there are some things
that have been said in court that you don’t understand? Do you
understand the question that I’m asking you right now?

JUROR SANCHEZ: If it’s easy question, I am, sir.

[PROSECUTOR]: Have there been things that I have said in court
that you have not understood?

[DEFENSE]: I would like the record to reflect that [the prosecutor] is
having to talk much slower than normal and enunciate very, very
clearly while he’s asking this question to Mr. Sanchez.

[PROSECUTOR]: Have there been things that I said in court that
you have not understood?

JUROR SANCHEZ: I don’t understand.

[PROSECUTOR]: You don’t understand me?


                                  4
      JUROR SANCHEZ: No.

      [PROSECUTOR]: Okay. I have no further questions, Judge. Thank
      you.

      THE COURT: Any questions?

      [DEFENSE]: No, Your Honor.

      THE COURT: All right. Thank you very much, sir. You’ll go back to
      the jury room.

      After Sanchez returned to the jury room, both Stillwell and the State

agreed that Sanchez could not “adequately understand English and [could not]

understand adequately what [was] being said in the courtroom.” When asked by

the trial court whether they wanted Sanchez to remain on the panel, the parties

agreed that he should not. However, the parties disagreed as to the legal basis

which would permit Sanchez to be removed and the procedural consequences of

doing so.

      The State urged the trial court to dismiss Sanchez as disabled1 and

proceed with the remaining 11 jurors.2 Stillwell, on the other hand, maintained


      1
        Disabled is defined as either (1) involving a “physical illness, mental
condition, or emotional state which hinders one’s ability to perform one’s duties
as a juror” or (2) “any condition that inhibits the juror from fully and fairly
performing the functions of a juror.” Ramos v. State, 934 S.W.2d 358, 369 (Tex.
Crim. App. 1996) (internal citations omitted). The determination as to whether a
juror is disabled is within the discretion of the trial court. Brooks v. State, 990
S.W.2d 278, 286 (Tex. Crim. App. 1999); Ricketts v. State, 89 S.W.3d 312, 318
(Tex. App.—Fort Worth 2002, pet. ref’d).
      2
        Article 36.29 of the Texas Code of Criminal Procedure provides that if a
juror in a felony trial becomes disabled after trial has begun but prior to the

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that since Sanchez was never “able” to begin with, he did not become disabled

but, rather, was disqualified as a juror. Stillwell moved that Sanchez be excused

from the panel and a mistrial be granted, insisting that the trial could proceed with

11 jurors only by agreement of the parties, that Stillwell did not agree to it, and

that Stillwell would not “waive that.”

      Citing Bina v. State,3 the trial court dismissed Sanchez as disabled and

signaled its intent to proceed with 11 jurors. Stillwell re-urged his motion for

mistrial on the ground that less than 12 jurors were left on the jury. The trial court

denied Stillwell’s motion. Two days later, the jury of 11 returned a guilty verdict.

                                     III. Analysis

      In his first two points, Stillwell asserts that his rights were violated when the

court proceeded with 11 jurors over Stillwell’s objection. Specifically, Stillwell




charge being read to the jury, the remainder of the jury has the power to render a
verdict. Tex. Code Crim. Proc. Ann. art. 36.29(a) (West 2006 & Supp. 2014).
      3
        In Bina, a juror asked if he could withdraw from the jury because he did
not think his English was good enough. No. 01-06-00557-CR, 2008 WL 256897,
at *2 (Tex. App.—Houston [1st Dist.] Jan. 31, 2008, pet. ref’d). The juror
explained that he could read and write English but had trouble understanding
when the parties spoke quickly. Id. The trial court dismissed the juror, replaced
him with an alternate, overruled the appellant’s general objections to the
dismissal and replacement, and then proceeded with 12 jurors. Id. The Houston
court held that the trial court “implicitly concluded that [the juror] was disabled
because of his lack of proficiency in the English language” and, therefore, did not
abuse its discretion by dismissing the juror. Id. at *3. However, as the court
pointed out, because there was an alternate juror, in this circumstance the
appellant was not deprived of a 12-member jury. Id.


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argues that the trial court erroneously dismissed Sanchez under the theory that

he became disabled when, in fact, he was not qualified to serve as a juror at all.

      The Texas constitution requires that juries be composed of 12 people in a

felony criminal case. Tex. Const. art. V, § 13. However, the constitution also

allows the legislature to modify this rule and authorize less than 12 to render a

verdict in certain circumstances. Id. Texas statutory law provides two instances

in which a trial can proceed with 11 jurors: (1) when the parties consent or (2) if

a juror dies or the trial court finds that a juror has become disabled. Tex. Gov’t

Code Ann. § 62.201 (West 2013); Tex. Code Crim. Proc. Ann. art. 36.29(a)

(West 2006 & Supp. 2014); Hill v. State, 90 S.W.3d 308, 314 (Tex. Crim. App.

2002). In the second instance, when a trial court finds that a juror has become

disabled, consent is not necessary to proceed with the 11 jurors remaining on the

panel. Hill, 90 S.W.3d at 315 (noting that because the juror was disabled, the

defendant’s consent was not necessary to proceed to trial).

      In this case, Sanchez was not disabled. However, he was excludable.

Tex. Code Crim. Proc. Ann. art. 35.16(a)(11) (West 2006); See Montoya v. State,

810 S.W.2d 160, 170 (Tex. Crim. App. 1989).

      Article 35.16 of the code of criminal procedure provides a list of grounds on

which attorneys may assert a challenge for cause as to a potential juror based on

his or her capability or fitness to serve as a juror. Tex. Code Crim. Proc. Ann.

art. 35.16 (West 2006); Butler v. State, 830 S.W.2d 125, 130 (Tex. Crim. App.

1992). When a prospective juror is challenged on one of these grounds, the trial


                                         7
court is responsible for determining the capability or fitness of the prospective

juror against whom the challenge for cause was made. Tex. Code Crim. Proc.

Ann. art. 35.21 (West 2006); see also Phillips v. State, 656 S.W.2d, 219, 220

(Tex. Crim. App.—Fort Worth 1983, no pet.) (noting that “[w]hen the challenge is

made, the court decides the qualifications of the juror”). If the court determines

that the prospective juror is incapable or unfit, the trial court should excuse the

juror. See Saldivar v. State, 980 S.W.2d 475, 485 (Tex. App.—Houston [14th

Dist.] 1998, pet. ref’d) (noting that if either party proves a potential juror to be

excludable under article 35.16, the judge must excuse that juror).

      A juror is incapable or unfit and may be challenged for cause based on the

juror’s inability to read and write. Tex. Code Crim. Proc. Ann. art. 35.16(11) (“A

challenge for cause may be made by either the state or the defense for any one

of the following reasons: . . . (11) That the juror cannot read or write.”). Also

encompassed in this specific challenge is a juror’s inability to understand English.

Montoya, 810 S.W.2d at 170 (explaining that a juror’s trouble understanding

English was an excludable ground under art. 35.16(a)(11)).4




      4
        In Montoya, the court sua sponte excused a prospective juror because he
could not understand English. 810 S.W.2d at 169. While the juror was able to
voice his opinions, he became confused when the prosecutor began explaining
procedural matters. Id. The juror testified that he had limited understanding of
English and that he only understood a small portion of the preliminary
instructions given to him. Id.


                                         8
      Although the legislature has designated three of the grounds within article

35.16 as “absolute disqualifications,”5 meaning that if a juror with one of these

disqualifications is empaneled, a conviction could be reversed on appeal

irrespective of whether the juror is challenged during voir dire, the ability to read

and write is not one of them. See Tex. Code Crim. Proc. Ann. arts. 35.19, 44.46,

35.16; see also Nelson v. State, 129 S.W.3d 108, 112–13 (Tex. Crim. App. 2004)

(distinguishing between the two portions of article 44.46 and explaining the

burden the defendant carries to prove harm and obtain a reversal based on the

sitting of an absolutely disqualified juror). For all other grounds under article

35.16, if the challenge is not raised during voir dire the parties forfeit the right to

complain thereafter. Tex. Code Crim. Proc. Ann. art. 35.16; see also Webb v.

State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007) (holding that a challenge for

cause is forfeited if not asserted).

      The record in this case is sufficient to establish Sanchez’s inability to

understand English. He testified that he understood only a little of what the

witnesses were saying, and the record demonstrates that he was having trouble

understanding the questions posed to him by the trial court and the prosecutor.

Nevertheless, this is a challenge that should have been raised during voir dire.

See Webb, 232 S.W.3d at 112 (holding that the right to challenge a juror that

      5
       A juror is absolutely disqualified if the juror (1) has a misdemeanor theft or
felony conviction, (2) is under indictment or other legal accusation for
misdemeanor theft or a felony, or (3) is insane. Tex. Code Crim. Proc. Ann. arts.
35.16(a)(2)–(4), 35.19.


                                          9
served on the grand jury that indicted the defendant was forfeited because

neither party challenged the juror for cause during voir dire); see also Van Dalen

v. State, 789 S.W.2d 334, 336 (Tex. App.—Houston [14th Dist.] 1990) (holding

that by failing to make an initial inquiry into whether the members of the panel

could understand English, error was waived).

      In this case, no one questioned the panel during voir dire about their ability

to understand English. Regardless of a county’s practice in screening potential

jurors, the attorneys are not relieved of their duty to determine capability or

fitness of the jurors during voir dire. See Guzman v. State, 649 S.W.2d 77, 79

(Tex. App.—Corpus Christi 1982) (holding that error was waived when the

attorneys failed to question jurors during voir dire on their ability to read and write

English);6 see also Webb, 232 S.W.3d at 113 (noting that “it is incumbent upon

counsel to specifically ask questions which will determine whether they have a

right to challenge the veniremember”).

      Since the exclusion of Sanchez, based upon his inability to understand

English, had been forfeited, the trial court could have allowed Sanchez to remain

on the panel. Once the trial court excused Sanchez, however, agreement of the

parties was required for the trial to proceed with the remaining 11 jurors. Since

Stillwell did not agree to proceed with 11 jurors, a mistrial was the only

      6
       In Guzman, a juror requested that the entire charge be translated into
Spanish. 649 S.W.2d at 79. The appellant claimed that the juror failed to inform
him during vior dire of her inability to comprehend English and therefore deprived
him of a challenge for cause. Id.


                                          10
procedural option available to the trial court once Sanchez had been removed

from the panel.

      Because Sanchez was excludable, rather than disabled, and Stillwell did

not consent to a jury of fewer than 12, the trial court erred in excusing Sanchez

and then proceeding with the remaining 11 jurors. We sustain Stillwell’s first and

second points.7

                                 IV. Conclusion

      Having sustained Stillwell’s dispositive points, we grant the relief requested

and reverse and remand for new trial.


                                                   /s/ Bonnie Sudderth
                                                   BONNIE SUDDERTH
                                                   JUSTICE

PANEL: DAUPHINOT, GABRIEL, and SUDDERTH, JJ.

PUBLISH

DELIVERED: May 28, 2015




      7
        Having sustained Stillwell’s first and second point, we need not reach his
third point. See Tex. R. App. P. 47.1.


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