                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-200-CV


IN THE MATTER OF J.G.C.G.

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       FROM COUNTY COURT AT LAW NO. 1 OF DENTON COUNTY

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                                   OPINION

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                                I. Introduction

      In this aggravated sexual assault/delinquent conduct case, J.G.C.G.

(hereinafter “Buddy”) asserts in one issue that the trial court erred by denying

his request for a mistrial after learning that a seated juror was taking a

controlled substance. We affirm.

                                II. Background

      After the six-person jury was sworn and seated, the following exchange

took place between the court, a juror, and counsel:
THE COURT: . . . Do any of you have any medical needs; you have
to eat at a certain time or take medications or anything of that
sort? All right, Yes, sir?

JUROR: I do take pain medication, and that’s every four hours, so--

THE COURT: Every four hours. Do you have that medication with
you?

JUROR: In the car.

THE COURT: At what time is your next scheduled medication?

JUROR: 4:00 o’clock.

THE COURT: 4:00 o’clock. So we’ll need--okay, everybody, those
of you who are--probably be the--Let’s try to keep an eye on it.

JUROR: It’s not--it’s not a real--it’s not like I have to get it that
instant. I’m just letting you know.

THE COURT: But roughly 4:00 o’clock?

JUROR: Right.

THE COURT: Okay. No, we need to know that. And then
tomorrow, if you would, please, write down what your schedule is
for tomorrow so the bailiff can keep me informed about that.

JUROR: Okay.

THE COURT: We don’t want you to go into some sort of painful
situation.

....

THE COURT: I’m going to ask the jury to step outside. I’m going
to ask this one juror with medication to remain in the courtroom for
just a minute or two.

                                 2
THE COURT: Okay. Now that everybody else is out, will this
medication interfere in any way with your ability to listen?

JUROR: No.

THE COURT: And--

JUROR: No. I--I’ve been taking it for a couple years, and the
doctor has given it to me for--I had bad foot surgery.

THE COURT: Uh-huh.

JUROR: And I don’t even--I can’t even tell I’m taking it, quite
honestly, but I can tell when I don’t take it because I hurt.

THE COURT: Would you mind telling us the name of that?

JUROR: Hydrocodone and Lyrica.

THE COURT: Okay.

JUROR: And Cymbalta.

THE COURT: And it doesn’t interfere with your driving--

JUROR: No.

THE COURT: --your--

JUROR: In fact, I--I drive for a living, so if it interfered with that,
then it would be an issue.

THE COURT: Okay. Return the jury, please.

[DEFENSE COUNSEL]: Judge, I had a motion I--

THE COURT: Okay. Wait. I’m sorry.

[DEFENSE COUNSEL]: I’d like to make a motion outside the--

                                  3
     THE COURT: Okay. Then I’m going to ask you, would you step
     outside, please.

     THE COURT: Okay. There’s no jury member in the courtroom.

     [DEFENSE COUNSEL]: Judge, at this time, due to the mention of
     these narcotic drugs that were not mentioned on voir dire by this
     person that’s been selected for the jury, I’m going to move for a
     mistrial because, based on the medication, the cocktail-type of
     medications that he’s on--he’s on three different medications for
     pain, and I know myself that Hydrocodone is a narcotic drug that
     can severely impair judgment, and that because of that, at this time
     we’re going to respectfully request a mistrial.

     THE COURT: Does the State have any position on this? Hearing
     none, I’m denying the motion.

Also, the next day the following exchanged occurred:

     [DEFENSE COUNSEL]: Are we keeping up with our juror’s pain
     medication?

     THE COURT: Yes. Well, yes. I got an e-mail about that. 12:00
     noon is when he needs to take his next medication.

     [DEFENSE COUNSEL]: Thank you, Judge.

     (Recess taken)

     THE COURT: The bailiff had informed me that your medication is
     due at 4:00 o’clock. Can you take that in about five minutes?

     JUROR: Yeah.

     THE COURT: Okay. We’re going to let the jury exit for about five
     minutes. Go ahead and take care of your medication. Then we’ll
     have you come back in.




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                                  III. Discussion

A. Standard of Review

      We review a trial court’s ruling on a motion for mistrial for an abuse of

discretion. See Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).

We view the evidence in the light most favorable to the trial court’s ruling and

uphold the ruling if it was within the zone of reasonable disagreement. Id. A

trial court abuses its discretion in denying a motion for mistrial only when no

reasonable view of the record could support the ruling. Id. The determination

of whether a juror is disabled is also within the discretion of the trial court, and

absent an abuse of that discretion, we will not find reversible error. See Brooks

v. State, 990 S.W.2d 278, 286 (Tex. Crim. App.), cert. denied, 528 U.S. 956

(1999).

B. Disabled Juror

      Buddy frames his complaint in terms of article 35.16 of the Texas Code

of Criminal Procedure, entitled “Reasons for Challenge for Cause.” Specifically,

Buddy asserts the applicability of article 35.16(a)(5), which reads in part,

      A challenge for cause is an objection made to a particular juror,
      alleging some fact which renders the juror incapable or unfit to
      serve on the jury . . . for any one of the following reasons:

            5. That the juror has such . . . bodily or mental defect or
            disease as to render the juror unfit for jury service . . . .



                                         5
Tex. Code Crim. Proc. Ann. art. 35.16(a)(5) (Vernon 2006). He also refers us

to Cordova v. State, No. 04-03-00639-CR, 2004 WL 2997734, at *1 (Tex.

App.—San Antonio Dec. 29, 2004, no pet.) (mem. op., not designated for

publication),1 although he acknowledges that this case is “clearly not on point.”

      We note that, while the word “juror” is used throughout chapter 35 of the

code of criminal procedure, entitled “Formation of the Jury,” it is apparent in

context that the word in article 35.16 refers to prospective jurors and not to

seated jurors. See State v. Morales, 253 S.W.3d 686, 693 (Tex. Crim. App.

2008) (“[N]othing in [a]rticle 35.16 expressly requires a trial court to grant a

challenge for cause against a prospective juror . . . .“) (emphasis added); see

also Webb, 232 S.W.3d at 112 (stating that article 35.16(a)(7) is a ground for

a challenge for cause of a panelist); Granados v. State, 85 S.W.3d 217, 230

(Tex. Crim. App. 2002) (discussing challenges to prospective jurors), cert.

denied, 538 U.S. 927 (2003); Feldman v. State, 71 S.W.3d 738, 744 (Tex.

Crim. App. 2002) (same); King v. State, 29 S.W.3d 556, 568 (Tex. Crim. App.

2000) (same). Therefore, Buddy’s argument under article 35.16(a)(5) appears



      1
       … In Cordova, the San Antonio Court of Appeals held that the trial court
did not abuse its discretion by granting the State’s challenge for cause of a
venireperson who testified during voir dire that she had a hearing deficiency,
that sitting for extended periods of time caused her pain because of back
surgery, and that her medication made her drowsy, all of which would prevent
her from devoting her full attention to the trial. 2004 WL 2997734, at *1.

                                       6
to be inapposite because the juror in question had already been seated by the

time the trial court was apprised of his medical condition.2

      However, an accused in a criminal prosecution has the right to a fair trial

by an impartial jury. See Tex. Const. art. I, § 10. When a juror withholds

material information in the voir dire process without fault or lack of diligence by

the complaining party, the parties are denied an opportunity to exercise

challenges, which hampers the selection of an impartial jury. Franklin v. State,

12 S.W.3d 473, 477–78 (Tex. Crim. App. 2000); Armstrong v. State, 897

S.W.2d 361, 363 (Tex. Crim. App. 1995); Salazar v. State, 562 S.W.2d 480,

482 (Tex. Crim. App. 1978).        Therefore, when a juror withholds material

information during voir dire, a mistrial may be appropriate.      See Franklin v.

State, 138 S.W.3d 351, 353–54 (Tex. Crim. App. 2004).

      To obtain a reversal on an allegation that a juror withheld information in

voir dire, an appellant must show that material information was “withheld”

despite due diligence exercised by the complaining party, who acted in good

faith on the answers given by a juror in voir dire. See Franklin, 12 S.W.3d at

478; De La Rosa v. State, 658 S.W.2d 162, 164 (Tex. Crim. App.), cert.




      2
      … We note that the “absolute disqualification” provision in article 35.19
does not apply to article 35.16(a)(5). See Tex. Code. Crim. Proc. Ann. art.
35.19 (Vernon 2006).

                                        7
denied, 464 U.S. 865 (1983); see also Brown v. State, 183 S.W.3d 728, 737

(Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). Information is considered to

be “withheld” when the defense counsel asked questions in voir dire that were

calculated to uncover material information, and the juror did not reveal the

information. Jones v. State, 596 S.W.2d 134, 137 (Tex. Crim. App. 1980),

overruled on other grounds by Sneed v. State, 670 S.W.2d 262, 266 (Tex.

Crim. App. 1984).    An appellant’s trial counsel must be diligent in eliciting

pertinent information from venire members during voir dire in an effort to reveal

prejudice or potential bias. Gonzales v. State, 3 S.W.3d 915, 917 (Tex. Crim.

App. 1999). Unless the defense counsel asks such questions, the material

information that a juror fails to disclose is not “withheld.” Id.; Armstrong, 897

S.W.2d at 364. Furthermore, when the information withheld is not material

and the record does not show that the defendant was denied an impartial jury

or a fair trial, denying a motion for mistrial is not error. Decker v. State, 717

S.W.2d 903, 907–08 (Tex. Crim. App. 1986).

C. Analysis

      A review of the voir dire in this case does not reveal any questions posed

to the jury panel that would have called upon the venire to reveal the medical

situation that is the basis of this appeal. See Franklin, 12 S.W.3d at 478.

Hence, the juror did not “withhold” material information.

                                       8
      Furthermore, although Buddy failed to raise an argument under article

36.29 of the code of criminal procedure, regarding seated jurors who become

disabled, we note that even under this provision, the trial court did not abuse

its discretion because the juror indicated to the trial court that his pain

medication did not interfere with his abilities to listen or to drive (his

profession). See Tex. Code Crim. Proc. Ann. art. 36.29 (Vernon Supp. 2008).3



      3
        … Under article 36.29, a juror is disabled if he has a “physical illness,
mental condition, or emotional state” that hinders his ability to perform his
duties as a juror. Hill v. State, 90 S.W.3d 308, 315 (Tex. Crim. App. 2002).
This type of disability includes “any condition that inhibits a juror from fully and
fairly performing the functions of a juror.” Routier v. State, 112 S.W.3d 554,
588 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 1040 (2004).

      Although the Code of Criminal Procedure does not address how a
      court should proceed when there are fewer than six remaining
      jurors in a misdemeanor case due to the disability of one of the
      jurors, courts have treated this situation in misdemeanor juries the
      same as for felony juries. . . . Thus, when the jury composed of six
      people is reduced to five jurors due to a juror becoming disabled,
      the trial court could either declare a mistrial, or alternatively, it
      could proceed to a verdict with the remaining five jurors if the State
      and defendant agree.

Garza v. State, 276 S.W.3d 646, 651–52 (Tex. App.—Houston [1st Dist.]
2008, pet. filed) (internal citations omitted). While article 36.29 discusses
what occurs when a member of a twelve-person jury becomes disabled, and
Buddy was tried before a six-person jury, we find it sufficiently analogous. See
id.; see also Dean v. State, No. 01-01-00443-CR, 2002 WL 31122124, at *3
(Tex. App.—Houston [1st Dist.] Sept. 26, 2002, pet. ref’d) (not designated for
publication) (holding that the trial court did not abuse its discretion by finding
that a juror was not disabled when, during trial, the juror became involved in an
altercation that required medical attention and informed the trial court that he

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Buddy’s counsel did not ask the juror any questions, and hence nothing was

developed to otherwise indicate that the juror was unable to fully and fairly

perform his duties as a juror. We overrule Buddy’s sole issue.

                                IV. Conclusion

      Having overruled Buddy’s sole issue, we affirm the trial court’s judgment.




                                            BOB MCCOY
                                            JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: April 16, 2009




would not be able to focus and pay attention that day, but that he would be
able to pay attention and fairly and impartially perform his functions as a juror
the following day; the trial court postponed the trial until the following day),
cert. denied, 540 U.S. 1019 (2003).

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