
                              NO. 07-08-0026-CR

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL A

                              JANUARY 26, 2010

                       ______________________________

                         DONALD F. DAVIS, APPELLANT

                                     V.

                        THE STATE OF TEXAS, APPELLEE
                      _________________________________

              FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY;

               NO. 1034587D; HONORABLE MOLLEE WESTFALL, JUDGE
                       _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

                             DISSENTING OPINION

      I agree with the  majority(s  disposition  of  Appellant(s  points  of
error one and five through ten; however, I write separately  to  express  my
opinion that the trial court erred in its determination  that  juror  Chatha
was disabled.  See Tex. Code Crim. Proc. Ann. art.  36.29(a)  (Vernon  Supp.
2009).

      As stated in the majority opinion, for purposes of  art.  36.29(a),  a
juror is "disabled" if he or she is unable to fully and fairly  perform  the
functions of a juror due to an inhibiting condition.  Griffin v. State,  486
S.W.2d 948, 951 (Tex.Crim.App. 1972).  While an inhibiting condition can  be
physical,  mental  or  emotional,  Hill  v.  State,  90  S.W.3d   308,   315
(Tex.Crim.App. 2002), that condition must be something more than  reluctance
on the part of the juror to render a verdict in accordance with the law  and
the evidence.  Landrum v. State, 788 S.W.2d 577,  579  (Tex.Crim.App.  1990)
(juror expressing misgivings regarding his willingness to consider the  full
range of punishment was not "disabled" for purposes of art. 36.29(a)).

      Here, juror Chatha  had  already  fully  participated  in  the  jury's
decision to render a guilty verdict and had sat through the presentation  of
evidence during the punishment phase of the trial.  However,  when  it  came
time to participate  in  jury  deliberations  at  punishment,  expressing  a
"religious preference" not to "hold  an  individual's  life  in  my  hands,"
after two rounds of questioning by the court and the  attorneys,  and  after
having just stated, "I  just  don't  want  to  be  involved,"  affirmatively
answered the court's question as to  whether  the  process  had  caused  him
"distress."  When questioned further as to whether the distress was of  such
a degree that it impaired his ability to function as a juror, juror  Chatha,
rather than answering affirmatively, stated,  "I  don't  think  I'm  a  good
juror."

      Under the facts of this case, juror Chatha's "disability" amounted  to
nothing more than misgivings  on  his  part  regarding  his  willingness  to
participate in the punishment phase of trial.  If  such  minimal  reluctance
amounts to disability, I dare say the entire jury process is in jeopardy  of
collapse.  Therefore, I disagree with the  majority's  conclusion  that  the
trial court did not err in discharging this particular juror.




                                               Patrick       A.       Pirtle
                                                 Justice



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