                                                                         PD-1595-15
                           PD-1595-15                  COURT OF CRIMINAL APPEALS
                                                                        AUSTIN, TEXAS
                                                       Transmitted 12/7/2015 5:53:10 PM
                                                        Accepted 12/10/2015 5:16:42 PM
                                                                         ABEL ACOSTA
                                 NO.                                             CLERK

                    TO THE COURT OF CRIMINAL APPEALS
                          OF THE STATE OF TEXAS


                             NO. 10-14-0347-CR


                        IN THE COURT OF APPEALS

                                FOR THE

            TENTH SUPREME JUDICIAL DISTRICT OF TEXAS

                            AT WACO, TEXAS


                        CLINTON DOUGLAS MILLS,
                                Appellant

                                    V.
December 10, 2015
                          THE STATE OF TEXAS,
                                Appellee


                PETITION FOR DISCRETIONARY REVIEW


 JOHN DONAHUE                    ATTORNEY FOR APPELLANT
 TBA #05968300                   CLINTON DOUGLAS MILLS
         th
 204 N. 6 St.
 Waco, Texas 76701
 (254) 752-9090
 (254) 753-1232 FAX
 Texascriminalattorney@yahoo.com

                       ORAL ARGUMENT REQUESTED
                                       SUBJECT INDEX                                                                   PAGE

Identification of the parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

List of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

                                          GROUND FOR REVIEW

         1. Whether the Court of Appeals erred in failing to conduct an Almanza
         analysis of Mills’ claim that the prosecutor erroneously asked the jury to
         speculate as to Mills’ reasons for selecting the jury to assess punishment.

         2. Whether the Trial Court erred in ruling a juror disabled and discharging
         him from jury service.

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Procedural History of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Facts Pertinent To Petitioner's
 Grounds for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Ground for Review Number One (Restated) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Reasons for Review as to Ground for Review Number One . . . . . . . . . . . . . . . . . 4

Arguments and Authorities in Support of Petitioner’s Ground for Review Number
One . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Ground for Review Number Two (Restated) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Reasons for Review as to Ground for Review Number Two . . . . . . . . . . . . . . . . . 7

Arguments and Authorities in Support of Petitioner’s Ground for Review Number
Two . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7



                                                               i
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

APPENDIX - Opinion of 10th Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . end




                                                             ii
              STATEMENT REGARDING ORAL ARGUMENT

      Petitioner respectfully asserts that this Court would be aided in the resolution

of the matters which are the subject of this Petition for Discretionary Review if oral

argument were granted. Therefore, Petitioner respectfully requests that this Court set

this case for oral argument.

                    IDENTIFICATION OF THE PARTIES

      Pursuant to Tex.R.App. 68.4(a), a complete list of the names of all interested

parties is provided below:

Abelino “Abel” Reyna - District Attorney of McLennan County, Texas
Robert Moody, Amanda Dillon - Assistant District Attorneys
219 N. 6th St., Waco, TX 76701

Clinton Douglas Mills - Appellant
#01969510
McConnell Unit
3001 S. Emily Dr.
Beeville, TX 78102

Sam Martinez - Counsel for Appellant in trial court
1105 Wooded Acres, Suite 200, Waco, TX 76710

John Donahue - Counsel for Appellant on appeal
204 N. 6th St., Waco, TX 76701

Hon. Ralph T. Strother - Presiding Judge




                                         iii
                                LIST OF AUTHORITIES

CASES                                                                                   PAGE

Allen v. State, 867 S.W.2d 427 (Tex. App.--Beaumont 1993, no pet.) . . . . . . . . . 9

Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985) . . . . . . . . . . . . . . . . . 4,5

Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991) . . . . . . . . . . . . . . . . . . . 8

Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . 7

Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.1996) . . . . . . . . . . . . . . . . 4

Dumesnil v. State, 2002 Tex.App.Lexis 344
    (Tex.App.-- Houston [14th Dist.] 2002, no pet.)(unpublished) . . . . . . . . . . . 4

Edwards v. State, 981 S.W.2d 359 (Tex. App.--Texarkana 1998, no pet.) . . . . . . 9

Freeman v. State, 838 S.W.2d 772 (Tex. App.--Corpus Christi 1992, pet. ref'd) . 9

Hill v. State, 90 S.W.3d 308 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . 7,8

Owens v. State, 202 S.W.3d 276 (Tex.App.–Amarillo 2006, pet. ref’d) . . . . . . . . 8

Reyes v. State, 30 S.W.3d 409 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . 9

Sanchez v. State, 138 S.W.3d 324 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . 8

Villareal v. State, 453 S.W.3d 429 (Tex. Crim. App. 2015) . . . . . . . . . . . . . . . . . . 5

Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . 6

STATUTES

TEX. CODE CRIM. PROC. ANN. art. 36.29 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,8


                                               iv
                         STATEMENT OF THE CASE

       This is an appeal from a jury trial on punishment in the 19th District Court,

McLennan County, Texas, the Honorable Ralph T. Strother, presiding, Cause Number

2012-1455-C1. The State instituted proceedings against the Appellant, Clinton

Douglas Mills, for the offense of murder, a first degree felony. Tex. Penal Code

§19.02. Mills pleaded guilty to the Trial Court before trial and elected to have his

punishment assessed by the jury. Punishment was assessed by the jury at life in TDC.

No fine was imposed.

       STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

       On November 13, 2014, Mr. Mils timely filed his Notice of Appeal. His brief

was filed on September 9, 2015. The State’s reply brief was filed on October 8, 2015.

On November 5, 2015, the Tenth Court of Appeals issued an opinion overruling

Mills’ points of error and affirming his conviction and sentence.

       No motion for rehearing was filed. This petition for discretionary review is

being filed within 30 days of the Court of Appeal’s opinion. See Tex.R.App.Proc.

4.1.




                                         1
                              STATEMENT OF FACTS

         In July, 2012, Matthew Ray Easley was found at his house, unconscious. He

had been beaten, suffering severe head injuries. He later died from those injuries.

Three individuals were later identified as the people responsible, Shane Sims, Joe

Guitierrez, Jr., and Clinton Douglas Mills. Mills was the first to be tried. He pleaded

guilty to the charge of murder and elected to have the jury assess his punishment.

         During the voir dire, the prosecutor asked the jury to speculate as to reasons

why the defense would choose to have the jury assess punishment as opposed to the

jury. (R. 6, ppg. 70-72). The jurors answered with various different opinions, some

of which were agreed to by the prosecutor. The prosecutor also, when speaking with

a juror, also suggested some reasons, seeing if the panel agreed with that. These

reasons included to wanting more emotion from the jury; the judge seeing these cases

on a daily basis. In response to a juror’s comment about appealing to emotion, the

prosecutor mentioned that the judge might have seen too many of these and might be

jaded.

         At the conclusion of the trial, after the defense had rested, Juror number 2 had

a meeting with the judge. During the defense case, a photograph of Mills’ family was

introduced into evidence. In the photograph were Mills’ son and the child’s mother.

The juror stated that he lived four doors down from the mother but was not aware of

                                             2
the relationship to Mills because she did not have the same last name as Mills. The

juror said he socialized with the mother and saw the child on a daily basis. The juror

claimed to have been suffering some emotional distress and stated that he would be

unable to reach a verdict sending defendant to prison. The juror did not know Mills,

nor Mills’ family, nor had the juror spoken to the mother about this case. In the end,

the Trial Court declared the juror disabled and dismissed him. (R. 8, ppg. 75-86).

The Trial Court asked the defense to agree to proceed with 11 jurors. The defense

declined and objected to the dismissal of the juror. This objection was overruled. (R.

8, pg. 83).

Court of Appeals

      As to Mills’ first point of error, the Court of Appeals held that the error was

waived by the failure to object in the trial court.

      As to Mills’ second point of error, the Court of Appeals held that the trial court

did not abuse his discretion in declaring the juror disabled.




                                           3
            GROUND FOR REVIEW NUMBER ONE (RESTATED)

               Whether the Court of Appeals erred in failing to conduct an
        Almanza analysis of Mills’ claim that the prosecutor erroneously asked
        the jury to speculate as to Mills’ reasons for selecting the jury to assess
        punishment.

          REASONS FOR REVIEW AS TO GROUND FOR REVIEW
                          NUMBER ONE

              The Court of Appeals has decided an important question of state
              or federal law that has not been, but should be, settled by the
              Court of Criminal Appeals.

             ARGUMENTS AND AUTHORITIES IN SUPPORT
         OF PETITIONER’S GROUND FOR REVIEW NUMBER ONE

        The Court of Appeals did not address the merits of Mr. Mills’ claim. The

Court held simply that since there was no objection, the error was waived. Mills had

argued, however, that the failure of trial counsel to object should be excused in this

case.

        Mills acknowledged the general rule that complain on appeal an appellant must

show he objected and pursued his objection to an adverse ruling.” Cockrell v. State,

933 S.W.2d 73, 89 (Tex. Crim. App.1996). Otherwise, an appellant forfeits his right

to complain. Id. However, in this case Mills urges that the Court adopt the reasoning

of Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985), as applied in Dumesnil

v. State, 2002 Tex.App.Lexis 344 (Tex.App.-- Houston [14th Dist.] 2002, no


                                            4
pet.)(unpublished).    By this, Mills means that in those instances where the

prosecutor’s conduct (like an erroneous jury charge) is so egregious as to deprive the

accused of a fair trial, the failure to object should be excused.

      The Court of Appeals’ opinion addressed Mr. Mills’ claim without conducting

an analysis using the reasoning of Almanza . Almanza has not been overruled or

disavowed by the Court of Criminal Appeals. To the contrary, the Almanza analysis

has been used recently in Villareal v. State, 453 S.W.3d 429 (Tex. Crim. App. 2015).

      Mills contends that when the record Is reviewed in its entirety, it becomes

apparent that the error above was not harmless. Mills had never before been

convicted of a felony. Two other people were involved in the offense. Yet Mills

received a life sentence. The complainant was suspected of being a daily user and

drug dealer who was using methamphetamine to keep Mills around. The notion that

the prosecutor’s actions had an impact was apparent during the voir dire of defense

attorney. See R. 6, pg. 137). Parroting the prosecutor, Juror 33 asked Mr. Martinez

why the defense had chosen to have the jury assess punishment as opposed to the

judge: “...even though the judge is there and fair and balanced.” Once this issue was

introduced by the prosecutor, the defense was unable to overcome the question in the

jurors’ minds.

      By bringing up the issue during voir dire, the prosecutor encouraged the jury

                                           5
to speculate as to why a defendant would not want the judge to assess punishment.

The responses are mentioned above. In this manner, the prosecutor encouraged the

jury to suggest that there may be evidence or reasons outside the record for the

defendant’s decision. The actions of the prosecutor were a deliberate move on her

part to deprive Mills of a fair trial. See Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.

Crim. App. 2000).

      Voir dire error affects the trial from the very beginning. The prosecution goes

first in the process and is able to infect the trial from that point forward. The defense

can attempt to ameliorate the error introduced by the prosecution, but it is difficult to

quantify its effect in voir dire. Mr. Mills contends that the Court of Appeals should

have reviewed the error using the Almanza analysis and asks the Court to remand the

case for that analysis.




                                           6
           GROUND FOR REVIEW NUMBER TWO (RESTATED)

             Whether the Trial Court erred in ruling a juror disabled and
      discharging him from jury service.

         REASONS FOR REVIEW AS TO GROUND FOR REVIEW
                        NUMBER TWO

             The Court of Appeals has decided an important question of state
             or federal law that has not been, but should be, settled by the
             Court of Criminal Appeals.

            ARGUMENTS AND AUTHORITIES IN SUPPORT
       OF PETITIONER’S GROUND FOR REVIEW NUMBER TWO

      If a juror becomes disabled after the beginning of a felony trial, the trial court

may excuse the juror and proceed with the remaining eleven jurors. Art. 36.29

Tex.Code Crim. Proc. The language of Article 36.29 of the Texas Code of Criminal

Procedure and the cases applying it make clear that the Legislature's intent was to

limit the Article's application to those cases where the juror was physically or

mentally impaired in some way which hindered his ability to perform his duty as a

juror. Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999). A juror is

disabled if she has a "physical illness, mental condition, or emotional state" which

hinders her ability to perform her duties as a juror. Hill v. State, 90 S.W.3d 308, 315

(Tex. Crim. App. 2002).

      The overall goal when interpreting a statute is to give effect to the collective


                                          7
intent or purpose of the Legislature that enacted the statute. Boykin v. State, 818

S.W.2d 782,785 (Tex. Crim. App. 1991). To do so, one must focus on the literal text

of the statute and try to discern the fair, objective meaning of that text. Id. If the

meaning of the text is clear and unambiguous, the court should give effect to that

meaning. Sanchez v. State, 138 S.W.3d 324, 325 (Tex. Crim. App. 2004).                If

however, the statute is ambiguous or the plain meaning of the statute would lead to

absurd consequences that the Legislature could not possibly have intended,

extratextual sources may "then and only then, out of absolute necessity," be

consulted. Id.

      Mills contends that article 36.29, and the cases interpreting it, demonstrate that

the trial court erred in excusing the juror in this case.   In Hill v. State, supra, the

Court of Criminal Appeals affirmed the district court’s declaration of disability since

the juror was unable to perform her duties due to “debilitating panic attacks”. Id. In

Owens v. State, 202 S.W.3d 276 (Tex.App.–Amarillo 2006, pet. ref’d), the excused

juror informed the trial court that she was unable to obtain care and transportation for

her special needs child. The juror was a single parent whose only relative was a 94

year old mother in a nursing home. Because of the problems with her child, she was

unable to focus her attention on the trial.

      The dismissal of jurors as "disabled from sitting" have been upheld for varied

                                              8
reasons beyond physical illness. See e.g., Edwards v. State, 981 S.W.2d 359, 366-7

(Tex. App.--Texarkana 1998, no pet.) (juror's inability to find child care for son led

trial judge to believe that she could not be fair juror or impartially deliberate upon

evidence); Allen v. State, 867 S.W.2d 427, 429-30 (Tex. App.--Beaumont 1993, no

pet.) (juror distraught over two family deaths within twenty-four hour period);

Freeman v. State, 838 S.W.2d 772 (Tex. App.--Corpus Christi 1992, pet. ref'd) (juror

who provided sole financial support for his family so concerned about absence from

job that he did not feel that he could be attentive during trial). Reyes v. State, 30

S.W.3d 409, 411 (Tex. Crim. App. 2000).

      Mills contends, however, that a fundamental difference exists between the

impairment of a juror’s ability to perform her functions and the mere desire to avoid

having to do them. The cases cited above deal with situations where the juror’s

ability to perform their duties would be impaired whether the trial proceeded or was

delayed. In the instant case, however, the juror’s “disability” was simply a desire to

avoid having to perform his duties. Defense counsel made an effort to keep the juror

on the panel. When the trial court declared the juror disabled, defense counsel

objected, thus preserving error.

      The Court of Appeals cited to Reyes v. State, supra, for the proposition that the

trial court properly considered the juror disabled. However, in Reyes, the Court of

                                          9
Criminal Appeals held that knowledge of the defendant may result in rendering the

juror disabled. None of the cases cited by the Court of Appeals supported the notion

that knowledge of a child with a girl to whom Mills was not married constituted such

a disability.

       In summary, Mills contends that the trial court erred in excusing the juror for

a condition that, at most, was simply an effort on the juror’s part to avoid having to

make a difficult decision. However, this kind of decision is one that jurors are called

upon to make every day. To allow this ‘disability’ to stand begs the question of

where to draw the line between being able to perform the duties as a juror and not

being able to do so. Therefore, Mills contends that his sentence should be reversed

and a new trial ordered on punishment.

Conclusion

       Mr. Mills, based on either or both of the above grounds of review, contends

that his sentence should be vacated and the case remanded to the trial court for a new

trial on punishment.

                                      PRAYER

       WHEREFORE, PREMISES CONSIDERED, Mr. Mills respectfully requests

that this Honorable Court review the transcript of the proceedings in this case, and

after such review, determine that the Court of Appeals improperly decided his points

                                          10
of error; reverse the decision of the Court of Appeals, and remand to the Court of

Appeals with instructions to conduct an analysis under Almanza as to ground for

review number one. As to ground for review number two, the punishment should be

vacated and the case remanded to the trial court for a new punishment trial.

                                             Respectfully submitted,

                                              /S/ John Donahue
                                             JOHN DONAHUE
                                             TBA #05968300
                                             204N. 6th St.
                                             Waco, Texas 76701
                                             (254) 752-9090
                                             Fax (254) 753-1232
                                             Texascriminalattorney@yahoo.com



                          CERTIFICATE OF SERVICE

       This is to certify that a true and correct copy of the foregoing Corrected
Petition for Discretionary Review was forwarded to the following on December 7,
2015

                                              /S/ John Donahue
                                             JOHN DONAHUE

Sterling Harmon                              Clinton Douglas Mills, #01969510
Ass’t District Attorney                      McConnell Unit
McLennan County, Texas                       3001 S. Emily Dr.
Waco, TX 76701                               Beeville, TX 78102
(254) 757-5084
(254) 757- 5021
Sterling.Harmon@co.mclennan.tx.us

                                        11
CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4
Certificate of Compliance with Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements

1.   This brief complies with the type-volume limitation of TEX. R. APP. P. 9.4(i)
     because:

     O     this brief contains 2994 words, including the parts of the brief exempted
           by TEX. R. APP. P. 9.4(i)(1), or,

     G     this brief uses a monospaced typeface and contains _____ lines of text,
           excluding the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(1).

2.   This brief complies with the typeface requirements and the type style
     requirements of TEX. R. APP. P. 9.4(e) because:

     O     this brief has been produced on a computer in conventional typeface
           using Corel Wordperfect 8.0 in Times New Roman 14 point font in the
           body of the brief and Times New Roman 12 point font in the footnotes.

     G     this brief is a typewritten document printed in standard 10 character per
           inch monospaced typeface.



 /S/ John Donahue
JOHN DONAHUE
Attorney for Appellant
Dated: December 7, 2015




                                       12
                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00347-CR

CLINTON DOUGLAS MILLS,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2012-1455-C1


                          MEMORANDUM OPINION


       In two issues, appellant, Clinton Douglas Mills, challenges the punishment

assessed in this murder case. See TEX. PENAL CODE ANN. § 19.02 (West 2011). Specifically,

Mills contends that: (1) during voir dire, the prosecutor improperly asked the jury to

speculate as to why he elected for the jury, rather than the judge, to assess punishment;

and (2) the trial court committed reversible error in determining that a juror was disabled

under article 36.29 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN.
art. 36.29 (West Supp. 2014). Because we overrule both of Mills’s arguments, we affirm

the judgment of the trial court.

                                      I.         BACKGROUND

        Here, Mills was charged for the murder of Matthew Ray Easley. See TEX. PENAL

CODE ANN. § 19.02. The record reflects that Mills was one of three co-conspirators in the

murder and that Mills was the first of the three to be tried. Prior to trial, Mills pleaded

guilty to the charged offense and elected for a jury to assess his punishment. The trial

court accepted Mills’s guilty plea and found him guilty of the charged offense. The case

proceeded to the punishment phase. At the conclusion of the punishment phase, the jury

assessed punishment Mills to life imprisonment in the Institutional Division of the Texas

Department of Criminal Justice. The trial court certified Mills’s right of appeal, and this

appeal followed.

                                           II.    VOIR DIRE

        In his first issue, Mills argues that the prosecutor improperly asked the jury during

voir dire to speculate as to why Mills elected to have a jury, rather than the judge, assess

punishment.

A.      Facts

        In his introductory remarks to the venire panel, the trial judge noted that:

        This trial is going to be a little different because the Defendant in this case
        yesterday waived his right to a trial by jury at the guilt/innocence phase of
        the trial, pled guilty to the offense of murder and was found guilty of


Mills v. State                                                                            Page 2
        murder by the Court, so what the jury is going to be asked to determine in
        this case, “What is the proper punishment for the offense of murder?”

        Thereafter, during the State’s portion of voir dire, the following exchange

occurred:

        [The State]:        Now the judge has told you that the—it’s the
                            Defendant’s right to pick a judge or a jury to assess
                            punishment, okay? He can say, “Judge, I want you to
                            do it, or, no, I want twelve people of this county to do
                            it.” Let’s see. Where did we stop when we were going
                            through? I think we jumped over here, didn’t we?
                            Thirty-four, okay, Ms. White—or, no, Mr. White, 34,
                            why would someone, you think pick a jury instead of
                            a judge to assess their punishment?

        VENIREPERSON: Well, that becomes more of the—the peers. The Judge
                      deals with it on a daily basis—

        [The State]:        Uh-huh.

        VENIREPERSON: —and the—the community doesn’t—

        [The State]:        Uh-huh.

        VENIREPERSON: —so—so they’ll look at it probably in a different—

        [The State]:        A different set of glasses?

        VENIREPERSON: Yes.

        [The State]:        Okay, what about Juror 35? Why do you think
                            someone would choose a jury over a judge to assess
                            punishment?

        VENIREPERSON: Hoping to appeal to emotion maybe.

        [The State]:        Sure. Something maybe the Judge has seen too many
                            of these. He—he’s jaded. Thirty-six, why would
Mills v. State                                                                         Page 3
                            someone pick a jury over a judge to assess
                            punishment?

        VENIREPERSON: You have more people involved in the process who can
                      argue together and bring out points you may have
                      missed. Someone else will say, “Well, we missed this,”
                      and you talk about it, and sometimes it takes a group.

        [The State]:        “Sometimes it takes a group,” sure. Thirty-seven, can
                            you think of any other reasons?

        VENIREPERSON: No. I agree with all of those—

        [The State]:        Okay.

        VENIREPERSON: —that, you know, it’s just better to have different
                      opinions—

        [The State]:        Uh-huh.

        VENIREPERSON: —rather than the one.

        [The State]:        Sure. I guess more people to convince?

        VENIREPERSON: Yes.

        [The State]:        Thirty-eight.

        VENIREPERSON: The same, twelve different emotions, twelve different
                      mindsets just going through it.

        [The State]:        Does everybody kind of agree with that?         Does
                            anybody have any other viewpoints on that?

        THE VENIRE:         (No response).

Mills did not object to the aforementioned exchange; however, it is this exchange that

forms the basis of his complaint in this issue.


Mills v. State                                                                      Page 4
B.      Discussion

        Contentions that the State asked an improper question during voir dire require a

timely and specific objection from the defendant at the earliest possible opportunity to

preserve error. See TEX. R. APP. P. 33.1(a); Penry v. State, 903 S.W.2d 715, 741, 764 (Tex.

Crim. App. 1995); Ross v. State, 154 S.W.3d 804, 807 (Tex. App.—Houston [14th Dist.] 2004,

pet. ref’d); see also Wampler v. State, No. 11-13-00374-CR, ___ S.W.3d ___, 2015 Tex. App.

LEXIS 10155, at **4-5 (Tex. App.—Eastland Sept. 30, 2015, no pet. h.). Because Mills failed

to timely object to the complained-of exchange, he has waived this complaint on appeal.

See TEX. R. APP. P. 33.1(a); Penry, 903 S.W.2d at 764; Ross, 154 S.W.3d at 807; see also

Wampler, 2015 Tex. App. LEXIS 10155, at **4-5.

        Nevertheless, despite the general rule regarding preservation, Mills urges this

Court to apply the Almanza egregious-harm standard to this issue. See generally Almanza

v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985). This is essentially a fundamental-error

argument, which can be waived by failure to object in the trial court. See Mays v. State,

318 S.W.3d 368, 393-94 (Tex. Crim. App. 2010) (concluding that appellant failed to

preserve his complaints about “a series of egregiously improper remarks” by not

objecting to those arguments at trial); Morris v. State, 460 S.W.3d 190, 197 (Tex. App.—

Houston [14th Dist.] 2015, no pet.) (“Appellant, however, argues that the jury argument

is incurable fundamental error. Even if the State’s arguments were incurable and rose to

the level that it deprived appellant of his right to due process of law, appellant waived


Mills v. State                                                                       Page 5
this complaint by failing to object in the trial court.”); see also Harvey v. State, No. 10-15-

00067-CR, 2015 Tex. App. LEXIS 9757, at **8-9 (Tex. App.—Waco Sept. 17, 2015, no pet.

h.) (mem. op., not designated for publication) (same). Because Mills did not object to the

complained-of exchange in the trial court, we are not persuaded by Mills’s reliance on

Almanza in this issue. We overrule Mills’s first issue.

                                    III.    JUROR DISABILITY

        In his second issue, Mills asserts that the trial court erred in ruling that a juror was

disabled and thereby discharged him from service on the jury.

A.      Applicable Law

        If a juror becomes disabled after the trial of a felony begins, the remaining

members of the jury may render a verdict. See TEX. CODE CRIM. PROC. ANN. art. 36.29(a);

see also Hill v. State, 90 S.W.3d 308, 315 (Tex. Crim. App. 2002). In other words, article

36.29(a) mandates that the trial court proceed with the remaining eleven jurors. See Hill,

90 S.W.3d at 315. A juror is considered disabled when he has a physical illness, mental

conditions, or emotional state that renders him unable to perform his duties. See Hill, 90

S.W.3d at 315; see also Owens v. State, 202 S.W.3d 276, 277 (Tex. App.—Amarillo 2006, pet.

ref’d). A trial court’s decision to declare a juror disabled and subsequently excuse the

juror is reviewed for an abuse of discretion. Owens, 202 S.W.3d at 277 (citing Brooks v.

State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999); see Landrum v. State, 788 S.W.2d 577,

579 (Tex. Crim. App. 1990).


Mills v. State                                                                            Page 6
B.      Discussion

        At the close of evidence, the trial court went into recess to prepare the charge.

During the recess, a juror approached the bailiff to report an issue he was having with

the case. The juror explained that when a photo of Mills’s family was shown to the jury,

he realized that he knew Mills’s child and the child’s mother, but not Mills himself. The

juror also noted that Mills’s family has been to his house on numerous occasions and that

he waves to Mills’s child every morning. Furthermore, the juror asserted that:

        You know, like I said, I see [Mills’s child] on a daily basis. I mean he’s
        always riding his bike around the neighborhood. If I’m outside, he comes
        up and talks to me. You know, like I said, he’s always standing outside
        waiting on the bus. We wave at each other every morning. Just I don’t
        think I could—I don’t think I could do that.

When asked what he could not do, the juror clarified that he could not reach a verdict in

this case.

        Later, the juror stated that, because of his relationship with Mills’s family, he “can’t

sentence that kid’s father. You know, I mean—I mean I deal with them” and that he did

not feel like he could render a fair and impartial verdict in this matter. When questioning

the juror about the situation, the trial judge noted that the juror seemed “emotionally

distraught now as we’re sitting here.” The trial judge also recounted that the juror’s

“voice is quavering now, and you’re pretty distraught about this.” After the juror left the

courtroom, the trial judge stated the following on the record:

        The juror was quite emotional about this situation, and he had no way of
        knowing until now that he knew anything about this case, or it just wasn’t
Mills v. State                                                                            Page 7
        an issue that had come up, but he was very emotional. He was about to cry
        in here, and he says there is no way that he could be fair and impartial in
        this matter. There’s no way he could reach a verdict that would send the
        father of that child to the penitentiary for any period of time, life or any
        other sentence, and that he just could not do it, and he was—as I said, he
        was emotional.

Over Mills’s objection, the trial court determined the juror to be disabled, excused the

juror from service on the jury, and ordered that the trial proceed with eleven jurors.

        With respect to a juror’s disability, the Court of Criminal Appeals has mentioned:

        In interpreting the language concerning "disability" as it relates to the
        various provisions of art. 36.29, we have recognized that a 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.” Griffin v.
        State, 486 S.W.2d 948, 951 (Tex. Crim. App. 1975). See also, Ramos v. State,
        934 S.W.2d 358, 369 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1198, 117
        S. Ct. 1556, 137 L. Ed. 2d 704 (1997); Bass v. State, 622 S.W.2d 101, 106 (Tex.
        Crim. App. 1981), cert. denied, 456 U.S. 965, 102 S. Ct. 2046, 72 L. Ed. 2d 491
        (1982). We have further held that this condition may result from physical
        illness, mental condition, or emotional state. See, e.g., 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); Landrum v. State, 788 S.W.2d 577, 579 (Tex.
        Crim. App. 1990); Carrillo v. State, 597 S.W.2d 769, 771 (Tex. Crim. App.
        1980). Thus, the dismissal of jurors as “disabled from sitting” have been
        upheld for varied reasons beyond physical illness. See, e.g., Edwards v. State,
        981 S.W.2d 359, 366-7 (Tex. App.—Texarkana 1998, no pet.) (juror's inability
        to find child care for son led trial judge to believe that she could not be fair
        juror or impartially deliberate upon evidence); Allen v. State, 867 S.W.2d
        427, 429-30 (Tex. App.—Beaumont 1993, no pet.) (juror distraught over two
        family deaths within twenty-four hour period); Freeman v. State, 838 S.W.2d
        772 (Tex. App.—Corpus Christi 1992, pet. ref'd) (juror who provided sole
        financial support for his family so concerned about absence from job that
        he did not feel that he could be attentive during trial).

              We have also held that a juror's bias or prejudice for or against a
        defendant does not render a juror “disabled.” Ex parte Hernandez, 906
        S.W.2d 931, 932 (Tex. Crim. App. 1995), overruled on other grounds by Hatch
Mills v. State                                                                             Page 8
        v. State, 958 S.W.2d 813, 816 (Tex. Crim. App. 1997); Carrillo, 597 S.W.2d at
        769-71. However, in each of these cases, the juror merely had some
        knowledge of the defendant; nothing in the record indicates that there was
        any evidence that such knowledge resulted in inhibiting the juror from
        “fully and fairly” performing his functions as a juror. See Hernandez, 906
        S.W.2d at 931-2; Carrillo, 597 S.W.2d at 770. Thus, these cases do not
        foreclose the possibility that a juror is “disabled,” as that term has been
        construed with regard to art. 36.29, through knowledge of a defendant
        when such knowledge “inhibits [him] from fully and fairly performing the
        functions of a juror.” Griffin, 486 S.W.2d at 948. That is, while mere
        knowledge of a defendant cannot, in and of itself, render a juror “disabled,”
        the effect of such knowledge on a juror's mental condition or emotional
        state may result in rendering the juror “disabled” as that term has been
        construed with regard to art. 36.29.

Reyes v. State, 30 S.W.3d 409, 411-12 (Tex. Crim. App. 2000).

        As stated earlier, the trial judge noted on the record that the juror was emotionally

distraught, had a “quavering voice” when describing his relationship with Mills’s family,

and was about to cry about the prospect of having to sentence Mills. Additionally, the

juror informed the trial court that he was emotionally incapable of rendering a fair and

impartial verdict in this case. Based on this information, we cannot say that the trial court

abused its discretion in concluding that the juror was disabled on account of his

emotional state. See Reyes, 30 S.W.3d at 411-12; Brooks, 990 S.W.2d at 286; Landrum, 788

S.W.2d at 579; see also Owens, 202 S.W.3d at 277. We overrule Mills’s second issue.




Mills v. State                                                                          Page 9
                                    IV.    CONCLUSION

        Having overruled both of Mills’s issues on appeal, we affirm the judgment of the

trial court.




                                                AL SCOGGINS
                                                Justice



Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed November 5, 2015
Do not publish
[CRPM]




Mills v. State                                                                   Page 10
