                                  NO. 07-04-0104-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                 NOVEMBER 22, 2005

                         ______________________________


                       WILLIAM VERNELL DAVIS, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 48,278-E; HONORABLE ABE LOPEZ, JUDGE

                         _______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.


                               MEMORANDUM OPINION


      Appellant, William Vernell Davis, appeals his conviction for evading arrest with a

motor vehicle, with an affirmative finding of use of a deadly weapon, enhanced by two final

convictions, and his jury-assessed sentence of 10 years incarceration in the Institutional

Division of the Texas Department of Criminal Justice. We affirm.
       On December 2, 2003, a police officer saw appellant driving his vehicle. The officer

recognized appellant and knew that there was an outstanding warrant for appellant’s

arrest. Appellant saw the officer and sped off. The officer activated his lights and siren

and pursued appellant through a residential neighborhood. The vehicular pursuit ended

in front of appellant’s residence, which was immediately across the street from Travis

Middle School. Appellant then fled on foot, but was later apprehended by police.


       Appellant was tried for evading arrest with a motor vehicle. After both parties had

rested and closed, juror McKissack advised the trial court and the parties that she was a

teacher at Travis Middle School and had observed appellant’s vehicle pulling in front of the

house and the police arriving shortly thereafter. Appellant moved for a mistrial based on

McKissack being disqualified from jury service as a witness to the incident. The trial court

denied appellant’s motion. The jury subsequently convicted appellant and he now appeals.


       Appellant brings two issues before the court. First, appellant contends that the trial

court erred in denying his request for a mistrial after it was discovered that a juror had

witnessed a part of the events resulting in appellant’s indictment. Second, appellant

contends that the evidence was legally insufficient to support a finding that appellant used

or exhibited a deadly weapon.


       Appellant’s first issue addresses the refusal of the trial court to grant a mistrial after

learning that juror McKissack had personally observed part of the incident for which

appellant was being tried. A refusal to grant a mistrial is reviewed under an abuse of

discretion standard. Trevino v. State, 991 S.W.2d 849, 851 (Tex.Crim.App. 1999). So long


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as the challenged ruling of the trial court is within the zone of reasonable disagreement,

an abuse of discretion is not shown. Montgomery v. State, 810 S.W.2d 372, 391

(Tex.Crim.App. 1990) (op. on reh’g). Mistrial is appropriate only for “highly prejudicial and

incurable errors.” Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). It may be

used to end trial proceedings when error is so prejudicial that “expenditure of further time

and expense would be wasteful and futile.” Id. The determination of whether a given error

necessitates a mistrial must be made by examining the particular facts of the case. Ladd

v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). In examining the particular facts of this

case, we must first determine whether retaining juror McKissack on the jury was error.


       Appellant cites the court to Texas Government Code section 62.105(1) which

provides, inter alia, “A person is disqualified to serve as a petit juror in a particular case if

he: (1) is a witness in the case; . . . .” TEX . GOV’T CODE ANN . § 62.105(1) (Vernon 2004).

Case law has identified certain instances in which a “witness” is not disqualified from jury

service. See E. Line & Red River R. Co. v. Brinker, 68 Tex. 500, 3 S.W. 99, 100 (1886)

(subpoenaed witness that did not testify was not disqualified from serving on jury); Hardin

v. State, 40 Tex.Crim. 208, 49 S.W. 607, 610 (1899) (witnesses on application for change

of venue, in criminal case, were not disqualified from serving on jury). However, in Nelson

v. State, 58 S.W. 107, 108 (Tex.Crim.App. 1900), a juror who was at the scene of the crime

shortly after it occurred and who was familiar with the facts of the case was disqualified

from serving on the jury. Comparing these cases, it appears that a juror’s knowledge of

facts of a case disqualifies the juror from service in that case.




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       Appellant likens a juror who witnessed events leading to the prosecution to a juror

who has a bias or prejudice for or against a party or the law a party is entitled to rely upon,

which would result in a disqualification as a matter of law. TEX . GOV’T CODE ANN . §

62.105(4) (Vernon 2004). However, appellant fails to demonstrate how a juror who

witnesses events leading to the prosecution would have a bias or prejudice such that the

juror would be disqualified as a matter of law. Therefore, we conclude this argument is not

helpful in analyzing the issue before us.


       The State refers the court to Texas Code of Criminal Procedure article 35.16(a)(6)

and contends that “witness” does not include a person in the position of juror McKissack.

TEX . CODE CRIM . PROC . ANN . art. 35.16(a)(6) (Vernon 2004). The State cites Wyle v. State,

777 S.W.2d 709 (Tex.Crim.App. 1989), for the proposition that a prospective juror is not

disqualified because they are a “witness” unless they have extensive knowledge of the

underlying facts of the case on trial. While we acknowledge that the prospective juror in

Wyle had more knowledge of the facts than juror McKissack, the Court held, “In other

words, ‘witness’ as used in Art. 35.16(a)(6) includes one who has personal knowledge of

facts of the case.” Id. at 712. Further, in State v. Thornton, 187 Ariz. 325, 929 P.2d 676,

680-81 (1996), the Arizona Supreme Court, after citing Wyle, concluded that a statute

similar to article 35.16(a)(6) of the Texas Code of Criminal Procedure was designed to

prevent persons with personal knowledge of a crime from sitting in judgment of the

accused. Such “witnesses” are disqualified because they are likely to decide a case based

on what they personally saw or heard rather than on what they see and hear in court. Id.

at 681. We believe that disqualification of a juror with personal knowledge of facts of the


                                              4
case is necessary to protect the parties’ right to a fair and impartial jury. Accordingly, we

hold that the term “witness,” as used in section 62.105 of the Texas Government Code and

article 35.16(a)(6) of the Texas Code of Criminal Procedure, includes a person with

personal knowledge of facts of the case.


       In the present case, we conclude that McKissack’s having witnessed appellant flee

from police constitutes personal knowledge of facts of the case that disqualified her from

serving on the jury and the trial court’s failure to excuse her from the jury constituted an

abuse of discretion.


       However, we must next determine whether this error is subject to harmless error

analysis. Error defined as structural error by the U. S. Supreme Court does not require

proof of harm. Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997). However,

seating a disqualified juror is not among the structural errors identified by the Court as

being immune from harmless error analysis. See Johnson v. United States, 520 U.S. 461,

468-69, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). Neither is this error a constitutional error

within the meaning of Texas Rule of Appellate Procedure 44.2(a).1 Jones v. State, 982

S.W.2d 386, 390-91 (Tex.Crim.App.1998). Thus, we are required, pursuant to rule 44.2(b),

to determine if the error affected a substantial right of the appellant. Llamas v. State, 12

S.W.3d 469, 470 (Tex.Crim.App. 2000). A substantial right is affected when the error had

a substantial or injurious effect or influence in determining the jury’s verdict. Id. To

determine whether such harm occurred, everything in the record must be considered,



       1
           Further references to the Texas Rules of Appellate Procedure will be to “rule ___“.

                                               5
including all the evidence admitted at trial, the closing arguments, and the juror’s

comments during voir dire. Id. at 471.


       In the present case, there was no discussion of the facts of the case during voir dire.

Juror McKissack was questioned one time by the State’s attorney on matters not involved

in this appeal. During the State’s case-in-chief, the evidence consisted of the testimony

of the officer who chased appellant and the detective who took a statement from appellant,

wherein appellant admitted committing the offense of evading. The appellant called no

witnesses during the guilt-innocence phase. After both sides had rested and closed, juror

McKissack informed the court that she had seen some of the events involved in the case.

McKissack was questioned by the court and both parties. McKissack advised that she saw

only the very end of the incident, knew something was going on but did not know what until

the State’s opening statement reminded her of the incident in front of the school.

McKissack stated that she believed that she could make her decision based only on the

evidence she had heard in court. Viewing all of the evidence contained in the record, we

conclude that the evidence establishing appellant’s guilt for the underlying charge of

evading arrest with a motor vehicle was substantial. Accordingly, under the analysis

mandated by rule 44.2(b), we conclude that the error in retaining the juror did not influence

the jury or had a very slight effect on its verdict. Johnson v. State, 967 S.W.2d 410, 417

(Tex.Crim.App. 1998). Therefore, the error was harmless. Inasmuch as the error in

keeping juror McKissack is deemed harmless, the refusal to grant a mistrial based on the

retention of the juror was not so prejudicial that “expenditure of further time and expense




                                              6
would be wasteful and futile.” Wood, 18 S.W.3d at 648. Appellant’s first issue is therefore

overruled.


       Appellant’s second issue contends that the evidence was legally insufficient to

sustain a finding that he used or exhibited a deadly weapon. An attack on the legal

sufficiency of the evidence requires us to review all the evidence in a light most favorable

to the jury’s verdict. Cates v. State, 102 S.W.3d 735, 738 (Tex.Crim.App. 2003) (citing

Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Upon

reviewing the evidence, we must determine whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Id. The evidence

is measured against a hypothetically correct charge. Gollihar v. State, 46 S.W.3d 243,

255-56 (Tex.Crim.App. 2001).


       To sustain a deadly weapon finding, the evidence must show that the object in

question meets the requirement of a deadly weapon, see TEX . PENAL CODE ANN . §

1.07(a)(17)(B) (Vernon 2003); the deadly weapon was used during the transaction from

which the conviction was obtained, see Ex parte Jones, 957 S.W.2d 849, 851

(Tex.Crim.App. 1997); and that other people were put in actual danger, Cates, 102 S.W.3d

at 738. A motor vehicle may become a deadly weapon if used in a manner capable of

causing death or serious bodily injury.      Ex parte McKithan, 838 S.W.2d 560, 561

(Tex.Crim.App. 1992).


       Appellant contends that the evidence does not support the jury’s finding that he

used his motor vehicle as a deadly weapon because there was no direct testimony that


                                             7
anyone was placed in actual danger by appellant’s operation of the vehicle. According to

appellant, evidence must be presented that he caused actual danger to the public rather

than merely posing some hypothetical threat of danger. Cates, 102 S.W.3d at 738. In

addressing the legal sufficiency of the evidence necessary to support a deadly weapon

finding, the Court of Criminal Appeals held, in Drichas v. State, No. PD-1915-04, 2005 WL

2660161, at *3 (Tex.Crim.App. Oct. 19, 2005), that the manner that the vehicle in question

was used proved more than just a hypothetical danger, even though the testimony was

only that there was “some traffic” on the road at the time of the occurrence.


       The record reveals that, while evading arrest, appellant ignored a stop sign and

drove through an intersection without stopping, drove through a residential area at speeds

up to 60 miles per hour, and continuously ignored the emergency lights on the patrol car

behind him. This record shows that, by the manner of its use, appellant’s vehicle was

capable of causing death or serious bodily injury. We find that, when this evidence is

viewed in the light most favorable to the prosecution, a rational trier of fact could find that

appellant used his vehicle as a deadly weapon beyond a reasonable doubt. Therefore,

appellant’s second issue is overruled.


       Having overruled appellant’s issues, the judgment of the trial court is affirmed.




                                           Mackey K. Hancock
                                              Justice


Do not publish.


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