                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-17-00414-CR


GARY LEAMON TAYLOR A/K/A                                          APPELLANT
GARY L. TAYLOR

                                      V.

THE STATE OF TEXAS                                                     STATE

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         FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                    TRIAL COURT NO. CR13519

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                       MEMORANDUM OPINION 1

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     In one issue, Appellant Gary Leamon Taylor appeals his conviction for theft

in an amount less than $2,500. See Tex. Penal Code Ann. § 31.03 (West Supp.

2017). We affirm.




     1
      See Tex. R. App. P. 47.4.
      In July 2016, Appellant was charged with removing a theft-detection device

from a chainsaw and stealing it from Wal-Mart. See id. § 31.03(f)(5)(B). The

charge was enhanced to a second-degree felony because of a prior felony

conviction. See id. § 12.42(a) (West Supp. 2017). On Monday, December 11,

2017, Appellant pleaded guilty and requested that a jury assess his punishment.

On the same day, a jury was selected and seated. When the trial court adjourned

for the day, it instructed the jury to return on the following Thursday at 8:30 a.m. to

begin hearing evidence.

      When the trial court reconvened on Thursday morning, one juror did not

appear.    The trial court began the proceedings that day with the following

statement on the record:

      In this cause, . . . the Court has determined that the juror who’s listed
      number seven on this list of the jury panel list . . . is disabled, and that
      that disability is one that is related to her mental condition or emotional
      state arising out of the death of her mother as it was conveyed to this
      Court. The Court has, accordingly, determined that she is disabled
      from serving on this jury because of that mental and emotional state,
      and in accordance with the Code of Criminal Procedure Article
      36.29(a), the Court has discharged that juror, and this case will
      proceed to trial before the remaining 11 jurors.

Appellant’s counsel’s objection and motion for mistrial were overruled.              After

hearing the evidence, the jury found the enhancement paragraph to be true and

sentenced Appellant to 15 years’ incarceration.

      Appellant argues that the trial court was not permitted to proceed to trial with

eleven jurors. Appellant is incorrect. Article 36.29 provides: “[A]fter the trial of any

felony case begins and a juror dies or, as determined by the judge, becomes


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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.” Tex. Code

Crim. Proc. Ann. art. 36.29(a) (West Supp. 2017).

       Appellant does not take issue with the trial court’s determination that juror

number seven was disabled. Instead, Appellant relies upon the decision of the

court of criminal appeals in Hill v. State, 90 S.W.3d 308, 315 (Tex. Crim. App.

2002), as support for his argument that the trial court could not proceed with eleven

jurors. The decision in Hill supports no such proposition. To the contrary, in Hill,

the court of criminal appeals interpreted article 36.29(a) as not only authorizing the

trial court to continue with eleven jurors in the event one is disabled, but as

requiring the trial court to do so. 2 Id.

       In light of article 36.29(a) and the Hill decision, we overrule Appellant’s sole

issue and affirm the trial court’s judgment.


                                                     /s/ Bonnie Sudderth

                                                     BONNIE SUDDERTH
                                                     CHIEF JUSTICE

PANEL: SUDDERTH, C.J.; MEIER and BIRDWELL, JJ.

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

DELIVERED: August 2, 2018

       2
        See Tex. Disciplinary Rules Prof’l Conduct R. 3.03(a)(1) (providing that “[a]
lawyer shall not knowingly . . . make a false statement of . . . law to a tribunal”),
reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G, app. A, art. X, § 9 (West 2013).


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