Opinion filed March 26, 2020




                                      In The


        Eleventh Court of Appeals
                                  __________

                               No. 11-18-00101-CR
                                   __________

                   LILLY ANN RODRIGUEZ, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 441st District Court
                            Midland County, Texas
                        Trial Court Cause No. CR45948


                     MEMORANDUM OPINION
      The jury convicted Lilly Ann Rodriguez of the offense of intentionally or
knowingly causing bodily injury to a child. The trial court assessed Appellant’s
punishment at confinement for three years and a fine of $500. The trial court
supended the imposition of the sentence and placed Appellant on community
supervision for a period of four years. We affirm.
      Appellant presents two issues on appeal. First, Appellant claims that the trial
court erred when it dismissed one of the jurors on the second day of the trial and
proceeded with eleven jurors.        Second, Appellant contends that she received
ineffective assistance of counsel.
      In August 2015, P.R., Appellant’s minor child, walked to her friend’s house.
When Daisy Lerma, her friend’s mother, answered the door, she asked P.R. what was
wrong. P.R. was crying and said that her mother had hit her; Lerma noticed marks
on P.R.’s body. Lerma gave P.R. an ice pack and called the police.
      Officer Zackary Owens of the Midland Police Department was dispatched to
Lerma’s home “in regards to an outcry for an assault.” Based on P.R.’s injuries and
statements, Officer Owens concluded that an assault had occurred. P.R. had bruises
and a scratch mark on the left side of her face, and she told Officer Owens that “her
mother got physical with her and had hit her in the face with a closed fist.”
      Appellant realized that P.R. was missing and eventually went to Lerma’s
house. When she arrived, Officer Owens noticed that one of her hands was red and
bore a scratch below a knuckle. He testified that the marks on Appellant’s hand were
consistent with the type of injury that a person would sustain from striking someone
and with P.R.’s statement that she had been struck with a closed fist. Based on all
the evidence, Officer Owens arrested Appellant for striking P.R. Prior to trial, P.R.
recanted the allegation against her mother; P.R. claimed that she made up the abuse
because she was mad that her mother had made her do chores.
      In Appellant’s first issue, she asserts that the trial court erred when it
proceeded to try the case after it had dismissed a juror who was angry about serving.
      At the end of the first day of trial, one of the jurors approached the bailiff and
expressed frustration and unhappiness with his service as a juror in the case. On the
second day of trial, the trial court addressed the issue with counsel:
            THE COURT: We reported yesterday afternoon that we -- after
      we adjourned that one of the jurors stopped . . . the bailiff[] and
      indicated that he thought we were wasting his time and that he didn’t
      think much of this case, didn’t have much merit, one way or the other.
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      I don’t know -- I don’t know which way he was leaning, but he
      apparently was not happy with his jury service yesterday.

             [The bailiff] tells me this morning he came in and he was
      friendly . . . so I don’t -- I don’t know what to do with him. I can excuse
      him from the jury. I can leave him on and we’ll just go on.

            [PROSECUTOR]: Your Honor, . . . 12 is the statutory minimum,
      so unless there’s some good reason to dismiss him, like tampering or
      something like that, then we have to leave him on, so --

             THE COURT: I was under the impression that we could go
      forward with 11 if I made a finding that the juror that I’m excusing was
      no longer able to perform his duties either mentally or physically as a
      juror and I get the consent of the Defendant.

             [DEFENSE COUNSEL]: Judge, if the Court would like to go
      with 11, you have our consent. We’ll waive any appellate objection. I
      now defer to the State. Whichever makes them more comfortable will
      be fine with us.

            THE COURT: I just don’t know how to -- I mean, how to deal
      with the juror, because [the bailiff] reported to me yesterday he -- he
      could be spewing poison in that jury room, either way. I don’t know
      which way he’s leaning. It could be for the State. It could be for the
      Defendant.

            [PROSECUTOR]: Your Honor, the State will defer to whatever
      decision that you make. If Defense is ready to go on with 11, we have
      no problem doing so.

After the trial court spoke with the juror, it excused him from jury service for the
remainder of the trial. The trial then continued with the remaining eleven jurors.
      Appellant now claims that the trial court abused its discretion because the
juror was not disabled and because Appellant did not consent to proceed with less
than twelve jurors. We cannot agree.



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      Article 36.29 of the Texas Code of Criminal Procedure provides, in relevant
part, “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 the
verdict.” TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (West Supp. 2019). To be
“disabled” under that provision, the juror must be physically, mentally, or
emotionally impaired in such a way that would hinder or inhibit the juror’s ability to
serve. Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012). We review a
trial court’s determination as to whether a juror is disabled for abuse of discretion.
Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999).
      Section 62.201 of the Texas Government Code provides: “The jury in a district
court is composed of 12 persons, except that the parties may agree to try a particular
case with fewer than 12 jurors.” TEX. GOV’T CODE ANN. § 62.201 (West 2013); see
also Hatch v. State, 958 S.W.2d 813 (Tex. Crim. App. 1997) (holding that
Section 62.201 applies both to criminal and to civil cases).
      Thus, a trial can proceed with eleven jurors in two instances. First, the trial
can continue if a juror dies or becomes disabled before the court’s charge is read to
the jury, regardless of whether the parties consent to proceed with the remaining
eleven jurors. See CRIM. PROC. art. 36.29(a). Second, the trial can continue if the
parties consent to proceed with less than twelve jurors, regardless of whether the
juror has died or has become disabled. See GOV’T § 62.201. Even if the trial court
was incorrect in its reasons for releasing the juror and in proceeding with eleven
jurors, we will uphold that ruling if it can be sustained under any applicable theory.
Flores v. State, No. 11-06-00348-CR, 2008 WL 2842098, at *2 (Tex. App.—
Eastland July 24, 2008, pet. ref’d) (mem. op., not designated for publication).
      Here, both parties state in their briefs that the dismissed juror was not disabled
as contemplated by Article 36.29. However, because both parties agreed to proceed
                                           4
with eleven jurors, whether the trial court dismissed the juror as disabled is of no
consequence; Section 62.201 authorized the action taken by the trial court. See Hill
v. State, 90 S.W.3d 308, 315 (Tex. Crim. App. 2002) (“[S]ince the juror was not
disabled, the only way the court could proceed with eleven jurors was under
§ 62.201, which requires the parties’ consent.”).
        Before it dismissed the juror, the trial court acknowledged the need for consent
to proceed with eleven jurors. To that, Appellant’s counsel responded: “[Y]ou have
our consent.” Appellant nevertheless maintains that, because she did not personally
consent to be tried by less than twelve jurors, the trial could not go forward with
eleven jurors. We have previously addressed this argument and found it to be
without merit. See Flores, 2008 WL 2842098, at *2 (citing Hatch, 958 S.W.2d at
816).
        The record affirmatively shows that both parties agreed to proceed with eleven
jurors. Therefore, because the requirements of Section 62.201 have been met, we
hold that the trial court did not abuse its discretion when it dismissed the juror and
proceeded with eleven jurors. We overrule Appellant’s first issue.
        In her second issue, Appellant claims that she received ineffective assistance
of counsel when trial counsel failed to object to the admission of P.R.’s prior
inconsistent statements.
        We review an ineffective-assistance-of-counsel claim under a two-part
standard. Strickland v. Washington, 466 U.S. 668, 687 (1984); Perez v. State, 310
S.W.3d 890, 892–93 (Tex. Crim. App. 2010). First, Appellant must show that
counsel’s performance was deficient in that it fell below an objective standard of
reasonableness. Perez, 310 S.W.3d at 892–93. Second, Appellant must show
prejudice to the defense as a result of counsel’s deficient performance. Id. at 893.
        At trial, the State called P.R. as a witness. P.R. stated that she went to Lerma’s
home that day “[b]ecause [she] had said that [her] mom had hit [her],” but she then
                                             5
testified that she did not really remember how she had been injured that day. She
also testified that she had hit herself and caused the injury to her face. The State
next called Lerma and Officer Owens. Without objection, both testified to P.R.’s
statements in which she claimed that her mother had hit her. Appellant asserts that,
because P.R. had previously recanted her story, the State was aware that P.R.’s
testimony would contradict the statements she made to Lerma and Officer Owens.
Therefore, according to Appellant, the State impermissibly called P.R. as a witness
to impeach her testimony with evidence of those prior inconsistent statements—
namely, that her mother had hit her. Because trial counsel did not object to this
testimony, Appellant asserts that counsel’s performance was deficient. We do not
agree.
         To establish deficient performance, a defendant must show that counsel’s
representation was objectively unreasonable based on “prevailing professional
norms.” Id. (quoting Strickland, 466 U.S. at 688). We assess counsel’s performance
in light of all of the circumstances and apply a strong presumption that counsel’s
representation fell within “the wide range of reasonable professional assistance.” Id.
(quoting Strickland, 466 U.S. at 688–89).          To overcome this presumption, a
defendant must establish that, under the circumstances, counsel’s action could not
be considered sound trial strategy. Strickland, 466 U.S. at 689.
         Generally, failure to object to “prejudicial and clearly inadmissible evidence”
carries no strategic value; however, counsel’s lack of objection to “prejudicial and
arguably inadmissible evidence may be strategic.” Ex parte Menchaca, 854 S.W.2d
128, 132 (Tex. Crim. App. 1993) (emphasis added) (quoting Lyons v. McCotter, 770
F.2d 529, 534 (5th Cir. 1985)). While the State generally may not impeach its own
witness “for the primary purpose of placing evidence before the jury that was
otherwise inadmissible,” the “State’s knowledge that its own witness will testify
unfavorably is a factor the trial court must consider when determining whether the
                                            6
[impeachment] evidence is admissible under Rule 403.” Hughes v. State, 4 S.W.3d
1, 5 (Tex. Crim. App. 1999); see TEX. R. EVID. 403.
        Based on the record, we cannot conclude that trial counsel’s failure to object
was unreasonable or without strategic value. When P.R. testified that she sustained
the injury to her face by hitting herself, the State did not question P.R. about her
previous statements that her mother had hit her. Because the State did not confront
P.R. with her prior inconsistent statements, the record does not support Appellant’s
contention that the State called P.R. as a witness to impeach her testimony with
evidence of those statements. See TEX. R. EVID. 613(a)(1). Furthermore, P.R.
acknowledged those prior statements in her testimony when she explained why she
had gone to Lerma’s house that day; therefore, trial counsel could have made a
strategic decision to not object to hearsay that was cumulative of other evidence.
Trial counsel could also have reasonably concluded that P.R.’s statements to Lerma
and Officer Owens were admissible as excited utterances in light of the testimony
that P.R. was crying and seemed frightened.
        Accordingly, because Appellant has failed to show that trial counsel’s
performance was deficient, we cannot conclude that Appellant received ineffective
assistance of counsel. We overrule Appellant’s second issue.
        We affirm the judgment of the trial court.


March 26, 2020                                                     JIM R. WRIGHT
Do not publish. See TEX. R. APP. P. 47.2(b).                       SENIOR CHIEF JUSTICE
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.

        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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