                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo

                                       No. 07-14-00363-CR


                         ARTURO MONTENEGRO, JR., APPELLANT

                                                 V.

                             THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 108th District Court
                                      Potter County, Texas
               Trial Court No. 67,865-E, Honorable Douglas Woodburn, Presiding

                                          June 4, 2015

                               MEMORANDUM OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Appellant, Arturo Montenegro, Jr., was convicted of the offense of possession of

a controlled substance, cocaine, in an amount of less than one gram in a drug-free

zone.1 Additionally, the jury found two prior felony enhancement paragraphs to be

“True,”2 and sentenced appellant to 40 years confinement in the Institutional Division of

the Texas Department of Criminal Justice (ID-TDCJ).                Appellant has perfected his


      1
          See TEX. HEALTH & SAFETY CODE ANN. § 481.134(d)(1) (West Supp. 2014).
      2
          See TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2014).
appeal and brings forth two contentions for our consideration. First, appellant contends

that the trial court erred by declaring a juror disabled because of a bias professed by the

juror after the jury was seated. Second, appellant contends that the trial court erred in

proceeding with eleven jurors without his consent. For the reasons hereinafter set forth,

we will affirm the conviction.


                           Factual and Procedural Background


       Appellant does not challenge the sufficiency of the evidence; therefore, we recite

only that portion of the record germane to his contentions.


       Following voir dire of the jury panel, a jury of twelve citizens was seated and

sworn. The State read the indictment and appellant entered his plea. The trial court

then took a noon recess. During the break, one of the seated jurors penned a note to

the trial court. The note is not produced in the record; however, the contents of the note

were discussed on the record.


       From the record, we can see that the juror observed appellant from the back,

after the jury was sworn and seated. When observing appellant from the back, this

particular juror, for the first time, noticed a tattoo on the back of appellant’s head.

Based upon seeing the tattoo, the juror stated that he could not be fair and that he

considered anyone with a tattoo, “either on their face or their head or their neck, to be

criminal—you know, to be a thug[.]” The juror was interviewed by the trial court, the

State’s attorney, and counsel for appellant. In each instance, he stated that he could

not follow the trial court’s charge because he automatically thought the person with the

tattoo was a criminal.


                                            2
         Following this discussion, trial counsel made the following statement to the trial

court:


         Well, Your Honor, I would object to this juror being on the jury. First of all,
         this is not automatic. I mean, you brought him in here, you talked to him
         and he still maintains his position. His position is that he cannot be fair.

         Your honor, due to the fact that we haven’t put on any evidence, we
         haven’t gone any further, I don’t think that we need this juror on this jury
         and I would ask that he be excused.

The juror was subsequently found to be disabled by the trial court and excused.


         After having discharged the juror, the trial court was bringing the remaining

eleven jurors back to begin the case and appellant objected. Appellant then requested

a mistrial. The trial court overruled the request and trial commenced.


         After hearing the evidence, the jury found appellant guilty and assessed

punishment at 40 years confinement in the ID-TDCJ. Appellant appeals contending that

the trial court erred in discharging the juror in question as disabled and completing the

trial with eleven jurors without the consent of appellant.          We overrule appellant’s

contentions and affirm the judgment of conviction.


                                            Analysis


         The question of whether a juror has become disabled for the purposes of article

36.29 of the Texas Code of Criminal Procedure is vested in the sound discretion of the




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trial court.3    See Routier v. State, 112 S.W.3d 554, 588 (Tex. Crim. App. 2003).

Accordingly, we will not disturb that finding absent an abuse of discretion. Id.


        However, before we can address that question, we must look at the procedural

aspect of whether this issue is properly before the Court. The State contends that the

issue was not preserved for appeal because trial counsel actually requested that the

juror in question be dismissed from the jury because of his bias against tattoos. We

agree with the State.


        The record before us clearly demonstrates that, prior to the trial court finding the

juror disabled, appellant requested that said juror be dismissed.                       Now, appellant

complains about the trial court’s action in finding the juror disabled. In this situation,

appellant has not only waived the error, he invited it. See Woodall v. State, 336 S.W.3d

634, 644 (Tex. Crim. App. 2011) (holding that a party cannot take advantage of an error

that it invited or caused) (citing Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App.

1999) (en banc)). Accordingly, appellant’s first issue is overruled.


        Turning to appellant’s complaint that the trial court erred in continuing with eleven

jurors over appellant’s objection, we note that, because of the resolution of the first

issue, we need not address whether the trial court erred in invoking the provisions of

article 36.29(a).     Inasmuch as the trial court cannot be found to have erred in its

declaration that the juror was disabled, we likewise find that the trial court did not err in

continuing with eleven jurors. The provision of article 36.29(a) clearly allows such an

        3
           Article 36.29(a) provides in relevant part, that “after the trial of any felony case begins and a
juror dies or, as determined 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 verdict. . . .” TEX.
CODE CRIM. PROC. ANN. art. 36.29(a) (West Supp. 2014). Further reference to the Texas Code of
Criminal Procedure will be by reference to “article ____.”

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action and does not require the consent of the appellant. See Hernandez v. State, 416

S.W.3d 522, 525-26 (Tex. App.—Eastland 2013, pet. ref’d) (citing Hill v. State, 90

S.W.3d 308, 315 (Tex. Crim. App. 2002)). Accordingly, appellant’s second issue is

overruled.


                                     Conclusion


      Having overruled appellant’s two contentions, the judgment of conviction is

affirmed.




                                             Mackey K. Hancock
                                                 Justice


Do not publish.




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