                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-239-CR


GERALD M. WRICE                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                       STATE

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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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      The issue in this case is whether the trial court abused its discretion by

not excusing a juror for disability based on bias when the juror expressed

anxiety upon learning that the defendant lived in her neighborhood. We affirm.

      Appellant Gerald M. Wrice pleaded guilty to murder for shooting his

girlfriend in the face with a shotgun. He went to the jury for punishment. At




      1
          … See Tex. R. App. P. 47.4.
some point during the testimony, one of the jurors realized that appellant lived

in her neighborhood. On a lunch break, while the bailiff escorted the rest of the

jury to the jury room, the juror held back, pulled the bailiff aside and said that

she did not feel she could be impartial. The bailiff relayed the comment to the

parties and to the trial court. After a hearing in chambers at which both sides

and the trial court examined the juror, the trial court found that the juror was

not disabled and allowed her to continue service over appellant’s motion for

mistrial. The trial proceeded to completion and the jury returned a verdict of

fifty-five years’ incarceration. The trial court sentenced appellant accordingly.

      In two points, appellant contends that the trial court abused its discretion

in not finding the juror disabled and in denying his motion for mistrial.

      Texas felony defendants have a constitutional right to trial by twelve-

member juries. 2     The code of criminal procedure, however, provides an

exception when the trial court determines that a juror is disabled. 3 A juror is

disabled when physical, mental, or emotional conditions inhibit the juror from

fully performing the juror’s duties. 4 Bias can be a disability if it impairs the


      2
          … Tex. Const. art. V, § 13.
      3
          … Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon Supp. 2009).
      4
        … Reyes v. State, 30 S.W.3d 409, 411 (Tex. Crim. App. 2000);
Stephens v. State, 276 S.W.3d 148, 152 (Tex. App.—Amarillo 2008, pet.
ref’d).

                                        2
juror’s ability to function fully and fairly. 5 We review a trial court’s ruling on

juror disability for an abuse of discretion. 6

      At the hearing in chambers the juror testified as follows:

              VENIREPERSON: It bothered me a little bit on Tuesday when
      I found out that the crime had been committed just a few blocks
      from where I live. And I’m sorry as I didn’t come forward sooner,
      it’s just as it goes on and on and I find that the Defendant is going,
      I guess, it’s going – – it’s becoming more apparent to me that he
      has strong ties to that neighborhood. And I’m afraid that I may not
      be impartial about what kind of punishment he would be getting
      because based on his punishment there will be a time that he will
      be returning to a neighborhood that is probably six, seven blocks
      from where I live.

            THE COURT: . . . . The question, I guess, at this point is, you
      will be given a Court’s charge. Can [you] follow the law in the
      Court’s charge and follow your oath that you that you’ve taken as
      a juror, Dr. Taylor, right?

              VENIREPERSON: Yes.

              THE COURT: Can you do that?

              VENIREPERSON: I’ve been thinking about it since it really
      started bothering me this morning. I guess I can do my best I do
      feel like I will go into negotiations not perfectly you know with kind
      of a personal interest in what happened to him.

      ....




      5
          … Reyes, 30 S.W.3d at 411–12.
      6
      … Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App.), cert.
denied, 528 U.S. 956 (1999); Stephens, 276 S.W.3d at 152.

                                          3
      MS. TOURJE [for the State]: Do you think that you would be
able to take those personal feelings that you have and set those
aside and follow what Judge Vick asks of you to follow the law?
I know you said that your [sic] weighing that right now, but, I
mean, if instructed by the Judge to do so, can you do that?

     MR. CLEVELAND [for the Defense]: . . . . She said she
doesn’t believe she could.

        VENIREPERSON: Actually I believe – – well, I’m wrestling
with it. I can’t help but I feel I’ll have some sort of personal
interest in what happens to him. I think I probably can, although
I’ll be a little bit nervous about what happens to him. I guess I can
still make a decision that is the proper one and not in my own best
interest.

       THE COURT: Okay. Do y’all have any questions?

       BY MR. CLEVELAND:

       Q.   You’re nervous about what?

      A.    You know the – – supposing he were to go to jail for
ten years and be paroled after five and then he comes back into the
community.

       Q.   That makes you nervous.

       A.    It’s likely that we live close enough together that it’s
likely that he would see me. I spend a lot of time walking around
the neighborhood with my dogs.

     Q.    And you stated that you’re afraid you may be – – you
ceased to be impartial. When did that thought come to you?

....

    A.     Maybe not immediately at first because I didn’t realize
immediately at first that he had strong ties to the neighborhood.

                                 4
     As of yesterday afternoon, I realized that he had strong ties. I feel
     he has strong ties where he’ll return if he does goes away.

           Q.    Does that make you feel like you’re going to give him
     a long prison sentence?

            A.    One or the other, actually.

     ....

           THE COURT: Can you still consider the entire range of
     punishment indicated to you on voir dire? Can you still consider
     that the entire range of punishment?

            VENIREPERSON: Yes, I can.

            THE COURT: That includes probation?

            VENIREPERSON: Yes.

     ....

           THE COURT: And you’re telling us here under oath you could
     consider the entire range of punishment?

            VENIREPERSON: Yeah. It’s difficult for me, but I think I
     could – – I feel like I have a vested interest in this, but I think I can
     put it aside.

            BY MR. CLEVELAND:

            Q.    Can I just ask her what’s her vested interest in this?

            A.    My own safety (emphasis added).

     Although the juror expressed anxiety and concern for her safety as a

result of learning that appellant had committed murder within a few blocks of



                                        5
her home and that given his ties to the neighborhood he would likely return

upon completion of any term of imprisonment, she testified that she could set

aside her personal feelings and consider the entire range of punishment. Thus,

the trial court reasonably could have concluded that she was not inhibited from

fully and fairly performing her duties. 7 We hold, therefore, that the trial court

acted within its discretion in not excusing this juror for a disability based upon

bias, and we overrule appellant’s first point of error.

      In appellant’s second point, he contends that the trial court abused its

discretion in denying his motion for mistrial. Because the motion was premised

upon appellant’s claim that the juror was disabled, and we have held that the

record supports the trial court’s finding that the juror was not disabled, we

further hold that there was no error warranting the extreme remedy of mistrial

and that the trial court acted within its discretion in denying a mistrial. 8

Accordingly, we overrule appellant’s second point.




      7
          … See Reyes, 30 S.W.3d at 412.
      8
     … See Ocon v. State, 284 S.W.3d 880, 888 (Tex. Crim. App. 2009);
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).

                                        6
     Having overruled both of appellant’s points, the judgment is affirmed.

                                             PER CURIAM

PANEL: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 19, 2009




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