                                                                             ACCEPTED
                                                                        06-14-00241-CR
                                                              SIXTH COURT OF APPEALS
                                                                   TEXARKANA, TEXAS
                                                                   3/11/2015 9:22:32 AM
                                                                        DEBBIE AUTREY
                                                                                 CLERK



                  No. 06-14-0241-CR
                                                        FILED IN
                                                 6th COURT OF APPEALS
                                                   TEXARKANA, TEXAS
          IN THE SIXTH COURT OF APPEALS          3/11/2015 9:22:32 AM
                                                     DEBBIE AUTREY
                    at TEXARKANA                         Clerk


 ________________________________________________

   KELLEY WAYNE LAMON,
                                               Appellant

                           vs.

   STATE OF TEXAS,
                                          Appellee
 ________________________________________________


Appeal from the District Court of Red River County, Texas
                 102nd Judicial District

 ________________________________________________

               APPELLANT’S BRIEF
 _________________________________________________




                         Troy Hornsby

                         Miller, James, Miller & Hornsby, L.L.P.
                         1725 Galleria Oaks Drive
                         Texarkana, Texas 75503
                         troy.hornsby@gmail.com
                         903.794.2711, f. 903.792.1276

                         Attorney for Appellant
                         Kelley Wayne Lamon



               Oral Argument Requested
                    IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38.1(a), the following is a

complete list of all parties to the trial court’s judgment and the names and

addresses of all trial and appellate counsel:


Appellant                           Appellant’s appellate counsel

Kelley Wayne Lamon                  Troy Hornsby
                                    Miller, James, Miller, & Hornsby, LLP
                                    1725 Galleria Oaks Drive
                                    Texarkana, Texas 75503

                                    Appellant’s trial counsel

                                    Dave Turner, Jr.
                                    1116 Lamar Avenue
                                    Paris, Texas 75460-4682

Appellee                            Appellee's appellate/trial counsel

State of Texas                      Val Varley
                                    Red River County District Attorney
                                    400 N. Walnut Street
                                    Clarksville, Texas 75426




                                      2
                                            TABLE OF CONTENTS

Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Statement of Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

         Sole Issue:                 Did a juror's issue regarding men attacking women
                                     make him mentally impaired to the level that it
                                     hindered his ability to perform his duties as a
                                     juror?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

                           Preservation of Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

                           Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

                           Law and Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

                           Harmful Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

                  Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20




                                                           3
                                  INDEX OF AUTHORITIES

CASES:                                                                                     PAGE

Aldrick v. State,
      104 S.W.3d 890 (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . 12

Brooks v. State,
      990 S.W.2d 278 (Tex. Crim. App. 1999),
      cert. denied, 528 U.S. 956, 120 S.Ct. 384, 145 L.Ed.2d 300 (1999) . . 13,14

Brumit v. State,
     206 S.W.3d 639 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . 12

Carrillo v. State,
      597 S.W.2d 769 (Tex. Crim. App. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . 16

Ex Parte Hernandez,
     906 S.W.931 (Tex. Crim. App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Garcia v. State,
      149 S.W.3d 135 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 12

Johnson v. State,
      967 S.W.2d 410 (Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . 17

Johnson v. State,
      43 S.W.3d 1 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

King v. State,
      953 S.W.2d 266 (Tex. Crim. App. 1997) . . . . . . . . . . . . . . . . . . . . . . . . 16

Landrum v. State,
     788 S.W.2d 577 (Tex. Crim. App. 1990) . . . . . . . . . . . . . . . . . . . . . . 15-16

Marin v. State,
     851 S.W.2d 275 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . 12

Mendez v. State,
    138 S.W.3d 334 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 11

Mosley v. State,
     983 S.W.2d 249 (Tex. Crim. App. 1998) (op. on reh'g),
     cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999) . . . 11

                                                4
Ramsey v. Dunlop,
     146 Tex. 196, 205 S.W.2d 979 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Ransom v. State,
     920 S.W.2d 288 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . 17

Rodriguez v. State,
      71 S.W.3d 800 (Tex. App.—Texarkana 2002, no pet.) . . . . . . . . . . . . . 12

Routier v. State,
      112 S.W.3d 554 (Tex. Crim. App. 2003),
      cert. denied, 541 U.S. 1040, 124 S.Ct. 2157, 158 L.Ed.2d 728 (2004) . . . 12

Rushing v. State,
     50 S.W.3d 715 (Tex. App.—Waco 2001),
     aff'd, 85 S.W.3d 283 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . 13

Schutz v. State,
     63 S.W.3d 442 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Sneed v. State,
      209 S.W.3d 782 (Tex. App.)Texarkana 2006, pet. ref’d) . . . . . . . . . . . 16



STATUTES/RULES:

Tex. Code Crim. Proc. Ann. art. 35.16 (West 2006) . . . . . . . . . . . . . . . . . 13,14

Tex. Code Crim. Proc. Ann. art. 36.29 (West 2006) . . . . . . . . . . . . . . . . . 14,15

Tex. R. App. P. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Tex. R. App. P. 44.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16




                                                        5
                         STATEMENT OF THE CASE

Nature of case:   This is an appeal from a conviction for assault (of a public
                  servant), pursuant to Texas Penal Code section 22.01.
                  (C.R. vol. 1 pg. 85).

Judge/Court:      Judge Bobby Lockhart sitting in the 102nd District Court of
                  Red River County, Texas. (C.R. vol. 1 pg. 85).

Pleas:            Kelley Wayne Lamon (Smith) entered a plea of “not
                  guilty” to the allegation against him. (C.R. vol. 1 pg.
                  85)(R.R. Vol. 6 pg. 24).

Trial disposition: The case was tried to a jury which found Lamon guilty of
                   assault (of a public servant) and recommended a sentence
                   of 12 years (C.R. vol. 1 pg. 71) which was imposed by the
                   trial court. (C.R. vol. 1 pg. 85)




                                      6
                         ISSUE PRESENTED

Sole Issue:   Did a juror's issue regarding men attacking women make
              him mentally impaired to the level that it hindered his
              ability to perform his duties as a juror?




                                7
                       STATEMENT OF ORAL ARGUMENT

      Oral argument might assist the trial court in considering whether the

trial court correctly excused the sitting jury by discussing the factual basis

for the trial court’s decision.




                                       8
                          STATEMENT OF FACTS

      The State alleges that Keith Wayne Lamon (Lamon) and four other

jail inmates in the Red River County Jail planned an escape attempt. They

approached the communications area where Phyllis Owens, a correctional

officer was working as a dispatcher. (R.R. Vol. 6 pg. 28-39). Lamon put

Phyllis Owens in a choke hold and she lost consciousness. (R.R. Vol. 6 pg.

28-39). However, Phyllis Owens was assisted by several jail trustees. (R.R.

Vol. 6 pg. 28-39).

      Lamon contends that he had no intention to escape (R.R. Vol. 6 pg.

111) because he was going to be bonded out of custody shortly. (R.R. Vol. 6

pg. 85,95). Further, Phyllis Owens was attacked by another jail inmate and

Lamon attempted to assist Phyllis Owens. (R.R. Vol. 6 pg. 26, 62,101).




                                     9
                       SUMMARY OF THE ARGUMENT


Sole Issue:       Did a juror's issue regarding men attacking women make
                  him mentally impaired to the level that it hindered his
                  ability to perform his duties as a juror?

      After the jury was seated, the trial court sua sponte excused a juror

because the juror stated he had an issue with men attacking a woman. This

ground is sufficient during voir dire. However, this was an insufficient

basis to excuse the juror during the trial because the juror's bias did not rise

to the level of mental impairment.




                                      10
                                  ARGUMENT

Sole Issue: Did a juror’s issue regarding men attacking women make him
            mentally impaired to the level that it hindered his ability to
            perform his duties as a juror?


      After the jury was seated, the trial court sua sponte excused a juror

because the juror stated he had an issue with men attacking a woman. This

ground is sufficient during voir dire. However, this was an insufficient

basis to excuse the juror during the trial because the juror’s bias did not

rise to the level of mental impairment.



                             Preservation of Error

      To preserve a complaint for appellate review, a party must generally

have presented to the trial court a timely request, objection, or motion

stating the specific grounds for the desired ruling, if they are not apparent

from the context of the request, objection, or motion. See Tex. R. App. P.

33.1(a); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on

reh'g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999).

Further, the trial court must have ruled on the request, objection, or

motion, either expressly or implicitly, or the complaining party must have

objected to the trial court's refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez

v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004).

      Here, immediately after the trial court stated it would remove the

seated juror, Lamon’s attorney, the Judge and the State’s attorney

                                       11
discussed removing the juror and proceeding to trial with only eleven

jurors at some length. (R.R. Vol. VI pg. 13-19). Lamon’s attorney

specifically stated the following:

      MR. TURNER: I have discussed the matter with my client, Your
      Honor. He does not want to proceed with 11 jurors. If this
      gentleman had raised this issue yesterday, then we wouldn't
      have had enough jurors to go forward, perhaps.

(R.R. Vol. 6 pg. 13). Lamon’s attorney later requested a mistrial on the

same basis, which was denied by the court. (R.R. Vol. 6 pg. 16,18).

Thus, this issue was preserved for appellate review. However, if the Court

concludes the objection was not specific enough to the specific issue of the

Court’s removal of the juror, the issue is nonetheless fundamental error.

      Error which is based upon an absolute right or prohibition need not

be preserved. Marin v. State, 851 S.W.2d 275 (Tex. Crim. App.1993)

(discussing three types of rights); see also Garcia v. State, 149 S.W.3d 135, 144

(Tex. Crim. App. 2004). Such error is often called fundamental error. See

e.g. Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App. 2006). An error is

considered fundamental when it "directly and adversely affects the interest

of the public generally, as that interest is declared in the statutes or

Constitution of this state." Ramsey v. Dunlop, 146 Tex. 196, 202, 205 S.W.2d

979, 983 (1947). A denial of absolute systemic requirements does not

require a timely and specific objection to raise for the first time on appeal.

See Aldrick v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003); Rodriguez v.

State, 71 S.W.3d 800, 802 (Tex. App.—Texarkana 2002, no pet.); Rushing v.

                                       12
State, 50 S.W.3d 715, 723 (Tex. App.—Waco 2001), aff'd, 85 S.W.3d 283 (Tex.

Crim. App. 2002).

      Here, the erroneous disqualification of the juror did not result in the

seating of an alternate juror. Rather, the error resulted in Lamon being

tried by an eleven person jury rather than a twelve person jury.

Accordingly, the error was fundamental.



                            Standard of Review

      The decision to excuse a juror, once the jury has been impaneled and

sworn, is reviewed under an abuse-of-discretion standard. Routier v. State,

112 S.W.3d 554, 588 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 1040, 124

S.Ct. 2157, 158 L.Ed.2d 728 (2004); Brooks v. State, 990 S.W.2d 278, 286 (Tex.

Crim. App. 1999), cert. denied, 528 U.S. 956, 120 S.Ct. 384, 145 L.Ed.2d 300

(1999).



                            Law and Application

      After the jury was seated, the trial court sua sponte excused a juror

because the juror stated he had an issue with men attacking a woman. This

ground is sufficient during voir dire. However, this was an insufficient

basis to excuse the juror during the trial because the juror’s bias did not

rise to the level of mental impairment.

      Texas Code of Criminal Procedure article 35.16 provides a trial court


                                      13
broad discretion to excuse jury panel members for numerous reasons. See

Tex. Code Crim. Proc. Ann. art. 35.16 (West 2006). However, such

challenges must be exercised during voir dire. This provision is contained

within chapter 35 of the Code of Criminal Procedure titled "Formation of

the Jury." See Tex. Code Crim. Proc. Ann. Chapter 35 (West 2006). The

provisions of that chapter address calling a panel, questioning the panel,

making challenges for cause, making peremptory challenges and seating

the jury. Id. Additionally, a trial court may excuse a juror from further

service if the juror becomes disabled during trial. See Tex. Code Crim. Proc.

Ann. art. 36.29 (West 2006). A juror is disabled within the meaning of the

statute if the juror is physically or mentally impaired in some way which

hinders his or her ability to perform the duty of a juror. See Brooks v. State,

990 S.W.2d 278, 286 (Tex. Crim. App. 1999), cert. denied, 528 U.S. 956, 120

S.Ct. 384, 145 L.Ed.2d 300 (1999) .

      In this case, the trial court excused the juror because the juror stated

he had an issue with a man who attacks a woman as follows:

      THE COURT: Okay. If you would, at this time, sir, tell me why
      you think you can't serve on this jury.

      JUROR YAROSS: I have a bad problem with any man attacking
      a woman for any reason, and I don't know if I could be a fair
      judge of that. I've had -- that's been in my family before, and
      I'm probably not the one to judge him.
      ...
      MR. VARLEY: Now, based on that, do you think that you'd be
      able to put aside anything in your past -- or I don't know what
      you're --


                                       14
      JUROR YAROSS: That's what I can't tell you. I don't know until
      I'm in this situation.
      ...
      JUROR YAROSS: What I'm concerned about is if we do find
      that the evidence is against him, what will I feel then.

      MR. VARLEY: You're worried about the punishment phase?

      JUROR YAROSS: Exactly.
      ...
      MR. VARLEY: I understand that, but could you imagine any
      certain situation in which an assault on a public servant in
      which you could consider the minimum range of punishment,
      the two years.

      JUROR YAROSS: I don't know, really, especially her being a
      woman, especially what's going on with public servants these
      days. And it just -- I've got friends who are in law enforcement,
      too.

(R.R. Vol. 7 pgs. 5-7).

      Thus, the issue presented is whether the trial court abused its

discretion by concluding that the juror’s issue with a man attacking a

woman made him mentally impaired to the level that it hinders his ability

to perform his duties as a juror.

      In Ex Parte Hernandez the Texas Court of Criminal Appeals concluded

that bias or prejudice with regard to a Defendant did not qualify as a

disability under this statute. 906 S.W.931 (Tex. Crim. App. 1995). More

specifically, bias for or against any of the law applicable to the case, while

an appropriate basis on which to challenge a member of the venire for

cause, does not render a member of the sworn jury panel mentally

impaired such that he is disabled as envisioned by article 36.29(a). Landrum


                                      15
v. State, 788 S.W.2d 577, 579 (Tex. Crim. App. 1990)(citing Carrillo v. State,

597 S.W.2d 769 (Tex. Crim. App. 1980)).

      Here, the juror simply stated a bias against a man who is involved in

an altercation with a woman. However, the juror never provided a basis to

conclude that the juror’s bias rose to the level of a mental impairment. In

fact the only basis for such a conclusion was the juror’s statement that he

didn’t know if he could consider the minimum range of punishment for the

offense. (R.R. Vol. 7 pgs. 5-7). This situation appears similar to that in

Sneed v. State where this Court concluded that the bias expressed by the

juror alone was insufficient to establish leqal disqualification. Sneed v.

State, 209 S.W.3d 782 (Tex. App.)Texarkana 2006, pet. ref’d).

      For this reason, the juror’s issue of a man attacking a woman does

not raise to the specific and identifiable fear present in Reyes. Accordingly,

the juror's fear of retaliation did not mentally impair him to the level that it

hinders his ability to perform his duties as a juror.



                                Harmful Error

      An error must affect the substantial rights of the accused to be

harmful. See Tex. R. App. P. 44.2(b). A "substantial right" is affected when

the error had a substantial and injurious effect or influence in determining

the jury's verdict. King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997)

(citing Tex. R. App. P. 44.2(b)). Alternatively, error is harmless if the error


                                       16
"did not influence the jury, or had but a slight effect." Johnson v. State, 967

S.W.2d 410, 417 (Tex. Crim. App. 1998). The Appellant does not bear the

burden to establish such harmful error. Schutz v. State, 63 S.W.3d 442, 444

(Tex. Crim. App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App.

2001). Rather, it is the responsibility of the appellate court to assess harm

after reviewing the record. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim.

App. 2001); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001).

      In a criminal setting, an erroneous grant of a challenge for cause is

generally harmful error. See e.g. Ransom v. State, 920 S.W.2d 288 (Tex. Crim.

App. 1994). Accordingly, Lamon likewise contends that the erroneous

removal of a juror is also harmful error.




                                       17
                                  PRAYER

      WHEREFORE, premises considered, Kelley Wayne Lamon

respectfully requests that this conviction be reversed and judgment

rendered in his favor, that the conviction be reversed and a new trial

granted, or for such other and further relief to which Appellant may be

entitled.




                                   Respectfully Submitted,

                                   Miller, James, Miller & Hornsby, L.L.P.

                                   By:______________________________
                                      Troy Hornsby
                                      Texas Bar Number 00790919

                                   1725 Galleria Oaks Drive
                                   Texarkana, Texas 75503
                                   troy.hornsby@gmail.com
                                   903.794.2711, f. 903.792.1276

                                   Attorney for Appellant Kelley Wayne
                                   Lamon




                                     18
                            CERTIFICATE OF SERVICE

This is to certify that on March 11, 2015, a true and correct copy of the
above and foregoing Appellant’s Brief has been forwarded by U.S. mail on
all counsel of record and interested party listed below:

Appellant                                 State's Attorney
Kelly Wayne Lamon                         Val Varley
TDC #01972384                             Red River County District
McConnell Unit                            Attorney
3001 S. Emily Drive                       400 N. Walnut Street
Beeville, Texas 78102                     Clarksville, Texas 75426

Trial Court Judge                         Defendant's Trial Attorney
Hon. Bobby Lockhart                       Dave Turner, Jr.
102nd District Judge                      1116 Lamar Avenue
Bi-State Justice Building                 Paris, Texas 75460-4682
100 N. Stateline Avenue
Texarkana, Texas 75501

                                    ___________________________________
                                    Troy Hornsby




                                     19
                       CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4, the undersigned
counsel certifies that, exclusive of the exempted portions in Texas Rule of
Appellate Procedure 9.4(i)(1), this brief contains 1,914 words (less than
15,000), based upon the word count of the WordPerfect program used to
prepare the document.


                                   _______________________________
                                   Troy Hornsby




                                     20
