                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00101-CR


COTY RAY HUNT                                                  APPELLANT

                                      V.

THE STATE OF TEXAS                                                  STATE


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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                       MEMORANDUM OPINION1

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                               I. INTRODUCTION

      Appellant Coty Ray Hunt appeals his conviction on two counts of

aggravated robbery with a deadly weapon. We will affirm.

                               II. BACKGROUND

      On the evening of April 28, 2010, Hunt entered an Albertsons grocery

store, made his way to a private office, and ordered two store employees at

      1
      See Tex. R. App. P. 47.4.
gunpoint to give him money. The employees complied, and Hunt made off from

the store with the money. Authorities eventually arrested Hunt and found a .45

semiautomatic handgun, which matched the description of the gun used during

the robbery, in the same vehicle that Hunt was riding in when he was arrested.

Hunt admitted to investigators that he committed the robbery, but he claimed to

have used a fake BB gun during the offense. A jury convicted Hunt on both

counts of aggravated robbery with a deadly weapon and assessed his

punishment at life imprisonment for both counts. The trial court sentenced Hunt

in accordance with the jury’s verdicts.

                 III. DISABLED JUROR AND CONTINUATION OF TRIAL

      In his first point, Hunt argues that the trial court abused its discretion by

dismissing a juror as disabled and continuing the trial with eleven jurors. He

contends that ―[t]here was insufficient proof to show that Juror [S.] was disabled

from jury service‖ and that ―the trial court abused its discretion by not simply

recessing the trial for a day.‖2

      The Texas constitution requires a jury in a felony criminal trial to be

composed of twelve members. Tex. Const. art. V, § 13. But if a juror dies or

becomes ―disabled‖ from sitting, the remaining impaneled jury has the power to

render the verdict. Id.; see Tex. Code Crim. Proc. Ann. art. 36.29(a) (West Supp.

2011) (providing that after a felony trial ―begins and a juror dies or, as determined


      2
       Contrary to the State’s initial arguments, Hunt preserved these arguments
for appellate review.

                                          2
by the judge, becomes 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.‖). A juror is disabled when the juror is physically, emotionally, or

mentally impaired in some way that hinders his or her ability to perform the duty

of a juror. Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App.), cert. denied,

528 U.S. 956 (1999); see Reyes v. State, 30 S.W.3d 409, 411 (Tex. Crim. App.

2000) (stating that disability is not limited to physical disease, but also includes

any condition that inhibits a juror from fully and fairly performing the functions of a

juror). The determination of whether a juror is disabled is within the discretion of

the trial court. Brooks, 990 S.W.2d at 286.

      The record demonstrates that after the jury was impaneled and sworn but

before opening arguments were made, Juror S. notified the trial court of her

concern about sitting on the jury because she had to take her mother to a

doctor’s appointment.3 The trial court initially asked Juror S. to find ―someone

else to take care of the doctor’s appointment,‖ but Juror S. stated that she did not

―have anybody else.‖ Juror. S. explained that her eighty-two-year-old mother had

fallen down two weeks earlier, puncturing her lung and breaking a rib, and that

her mother needed an EKG ―to make sure that she doesn’t get pneumonia in her

lungs.‖ Juror S. made a phone call to see if she could find someone to take her

mother to the appointment, but she was unsuccessful after speaking to both her

mother and her father. Juror S. told the trial court that it had taken ―an hour just

      3
       Juror S. also had a funeral to attend in Dallas.

                                          3
for her [mother] to even understand who she’s talking to -- to even get through

to -- she say[s] she’s hurting, she’s laying in the bed, I mean.‖ After the trial court

questioned Juror S. some more, the State questioned her, and the following

exchange took place:

             [Prosecutor]: Here’s the question, and only you can answer
      that. As you sit here right now, are you going to be sitting there
      thinking about your mom?

             [Juror S.]: Yes.

             [Prosecutor]: How she’s doing?

             [Juror S.]: Very much so after this phone call.

             [Prosecutor]: You look like you’re very upset.

             [Juror S.]: I am.

             [Prosecutor]: You look like you’re probably near tears.

             [Juror S.]: Yes.

             [Prosecutor]: Is it to the point where you’re not going to be
      able to give this trial your full consideration?

             [Juror S.]: I won’t.

             [Prosecutor]: I can tell you’re about to start crying.

             [Juror S.]: I don’t, because she just told me she’s hurting so.

             [Prosecutor]: And for the record you are --

             [Juror S.]: I’m very upset.

             [Prosecutor]: -- have begun crying.

             So you’re not going to be able to give this trial your full
      attention? You’re shaking your head no.


                                           4
             [Juror S.]: No.

            [Prosecutor]: You won’t be able to concentrate and listen to
      the evidence --

             [Juror S.]: Right.

            [Prosecutor]: -- because you’re going to be so preoccupied
      with your mother’s health condition and her situation.

             [Juror S.]: Correct.

The trial court decided to dismiss Juror S. from service ―due to the illness of [her]

mother and the funeral and the fact that those two things combined would not

allow [her] to concentrate on this trial.‖

      Based on the foregoing, the trial court could have reasonably concluded

that Juror S. was emotionally inhibited from fully and fairly performing the

functions of a juror. See Reyes, 30 S.W.3d at 411; Brooks, 990 S.W.2d at 286.

Accordingly, we hold that the trial court did not abuse its discretion by concluding

that Juror S. was disabled from sitting on the jury. See Tex. Code Crim. Proc.

Ann. art. 36.29(a); see also Stephens v. State, 276 S.W.3d 148, 152 (Tex.

App.—Amarillo 2008, pet. ref’d) (holding that trial court did not abuse its

discretion by dismissing juror as disabled due to ―an emotional state which

hindered her ability to perform her duties as a juror‖).

      To the extent that Hunt argues the trial court abused its discretion by not

recessing the trial after dismissing Juror S., article 36.29 requires the trial to

proceed with eleven jurors if a juror becomes disabled. See Hill v. State, 90

S.W.3d 308, 315 (Tex. Crim. App. 2002). We overrule Hunt’s first point.


                                             5
                                     IV. MISTRIAL

      In his second point, Hunt argues that the trial court erred by denying his

motion for mistrial after the trial court sustained his objection to part of the State’s

jury argument.

      When the trial court sustains an objection and instructs the jury to

disregard but denies a defendant’s motion for a mistrial, the issue is whether the

trial court abused its discretion by denying the mistrial. Hawkins v. State, 135

S.W.3d 72, 76–77 (Tex. Crim. App. 2004). When the refusal to grant a mistrial

follows an objection for improper jury argument, we balance three factors: (1) the

severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the

certainty of conviction absent the misconduct. Id.; Mosley v. State, 983 S.W.2d

249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070

(1999).   Only in extreme circumstances, when the prejudice caused by the

improper argument is incurable, i.e., ―so prejudicial that expenditure of further

time and expense would be wasteful and futile,‖ will a mistrial be required.

Hawkins, 135 S.W.3d at 77. In most instances, an instruction to disregard will

cure the alleged harm. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App.

2000), cert. denied, 532 U.S. 944 (2001). We review a trial court’s ruling on a

motion for mistrial for an abuse of discretion. Hawkins, 135 S.W.3d at 77.

      The trial court sustained Hunt’s ―outside-the-record‖ objection but denied

his motion for mistrial in regard to this part of the State’s closing argument at the

guilt/innocence phase: ―And you know that car when [Hunt] was arrested was


                                           6
taken into police custody and held in a secure bay until they could get a search

warrant. Mandy Harvell calls, and I know that that’s his girlfriend, and I suspect

there’s a whole lot more involved there.‖ [Emphasis added.] Assuming without

deciding that the State’s argument—implying that Harvell was involved in the

underlying offense in some way—was improper, we cannot conclude that the trial

court abused its discretion. Hunt objected that the State’s argument referenced

facts that were outside of the record, but there was evidence from which the jury

could reasonably have inferred that Harvell was involved in the robbery—Harvell

was Hunt’s girlfriend, Harvell was arrested when Hunt was arrested, Harvell’s

vehicle was used during the robbery, and the gun that Hunt used during the

robbery was found in Harvell’s vehicle. Also, the State later made the following

related argument that Hunt did not object to:

      He mentioned immunity. Here’s how it works. When we believe
      someone is a party to an offense, we would have to require that we
      cut a deal with them, give them immunity for their testimony.

             Make no mistake, we fully believe Mandy Harvell was a party
      to this crime, and we’re not willing to do that. We’re not going to cut
      a deal with her for what he did.

Hunt argues that the State ―continued with [its] interjection of improper and

unknown facts into the case‖ during an exchange in which the State objected to

part of defense counsel’s closing argument and said that ―[c]ounsel knows that

we could not call Ms. Harvell,‖ but the State’s comment was not part of its closing

argument, and it occurred before the State’s unobjected-to argument regarding




                                        7
immunity for Harvell. In light of all of this, the severity of the alleged improper

argument was considerably low.

      As for the remaining factors that we must balance, the trial court

immediately instructed the jury to disregard the prosecutor’s argument, and there

is nothing in the record indicating that the jury did not do so. See Colburn v.

State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (stating that in the absence

of evidence to the contrary, appellate court presumes that jury followed

instruction to disregard). Further, the certainty of Hunt’s conviction was high

absent the alleged improper argument.4 We hold that the trial court did not

abuse its discretion by denying Hunt’s motion for mistrial. We overrule Hunt’s

second point.

                                 V. CONCLUSION

      Having overruled both of Hunt’s points, we affirm the trial court’s

judgments.




                                                   BILL MEIER
                                                   JUSTICE

      4
        The evidence showed that the individual responsible for committing the
robbery wore a white baseball cap during the offense. Veronica Anderson, a
service operations manager with Albertsons, testified that she returned to the
store after the robbery and watched the video footage captured by the store’s
surveillance cameras. Shortly thereafter, on her way home, she found a white
baseball cap lying on the side of the road about one mile from the store.
Subsequent testing revealed that the profile from biological material obtained
from the white cap matched the profile from a buccal swab that authorities
obtained from Hunt.

                                        8
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

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

DELIVERED: March 15, 2012




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