                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-09-00033-CR
         ______________________________


          ERIC LAMOND DAVIS, Appellant

                          V.

          THE STATE OF TEXAS, Appellee



    On Appeal from the 349th Judicial District Court
                Houston County, Texas
             Trial Court No. 08-CR-123




     Before Morriss, C.J., Carter and Moseley, JJ.
    Memorandum Opinion by Chief Justice Morriss
                                    MEMORANDUM OPINION

       Eric Lamond Davis was on trial in Houston County1 for murder. After the first day of

testimony, one of the jurors serving in Davis' trial was arrested on a hot-check charge pending in

another county. Over Davis' objection, the trial court released the arrested juror from further service

in this case, seated one of the two alternate jurors that had previously been selected, and overruled

Davis' motion for mistrial.

       From a murder conviction and a life sentence, Davis appeals, asserting that the trial court erred

in denying his motion for mistrial. We affirm the judgment, because by statute an alternate juror may

replace a disqualified juror.

       In his sole point of error, Davis argues that "statutes do not allow an alternate juror to serve

in place of a disqualified juror." We disagree.

       Article 33.011 allows a trial court to select up to four alternate jurors to "replace jurors who,

prior to the time the jury renders a verdict on the guilt or innocence of the defendant . . . become or

are found to be unable or disqualified to perform their duties . . . ." TEX . CODE CRIM . PROC. ANN .

art 33.011(b) (Vernon Supp. 2008) (emphasis added).

       A person is disqualified from serving as a juror if he or she is under indictment or other legal

accusation for misdemeanor theft or a felony. TEX . CODE CRIM . PROC. ANN . arts. 35.16, 35.19

        1
          This case was transferred to this Court from the Twelfth District Court of Appeals in Tyler
 as part of the Texas Supreme Court's docket equalization program. See TEX . GOV 'T CODE ANN .
 § 73.001 (Vernon 2005). We are not aware of any conflict between the precedent of the Tyler Court
 and the precedent of this Court on any issue relevant in this appeal. See TEX . R. APP . P. 41.3.

                                                  2
(Vernon 2006). In this case, no one disputes that the disqualified juror was "under indictment or other

legal accusation for misdemeanor theft or felony" or that the alternate juror replaced the disqualified

juror before the verdict. Accordingly, once the arrested juror was "found to be" disqualified, the trial

court was required to, and did, excuse her from the jury. See TEX . CODE CRIM . PROC ANN . arts.

35.16, 35.19. The court then appropriately replaced her with an alternate juror. See TEX . CODE CRIM .

PROC. ANN . art. 33.011(b). The trial court did not err.

       We overrule Davis' point of error and affirm the judgment of the trial court.




                                                       Josh R. Morriss, III
                                                       Chief Justice

Date Submitted:        September 15, 2009
Date Decided:          September 18, 2009

Do Not Publish




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