                                 Fourth Court of Appeals
                                       San Antonio, Texas
                                     CONCURRING OPINION
                                           No. 04-15-00361-CR

                                              Jimmy VERA,
                                                 Appellant

                                                    v.

                                          The STATE of Texas,
                                                Appellee

                        From the 187th Judicial District Court, Bexar County, Texas
                                      Trial Court No. 2014CR5369
                             Honorable Raymond Angelini, Judge Presiding 1

Opinion by:            Sandee Bryan Marion, Chief Justice
Concurring Opinion by: Luz Elena D. Chapa, Justice

Sitting:            Sandee Bryan Marion, Chief Justice
                    Marialyn Barnard, Justice
                    Luz Elena D. Chapa, Justice

Delivered and Filed: June 15, 2016

           I respectfully disagree that Jimmy Vera waived his sole issue on appeal. Vera’s issue is not

about the juror’s mere inability to read or write in English, but about the juror’s inability to speak

or understand English. A juror’s inability to read or write in English is a disqualification that is

forfeitable by inaction, but a juror’s inability to speak or understand English is a constitutional

disqualification that may only be waived affirmatively and with the State’s consent. I nevertheless




1
    Sitting by assignment
Concurring Opinion                                                                     04-15-00361-CR


concur in the judgment because the record does not demonstrate the trial court abused its discretion

by denying Vera’s motion for mistrial.

                     WAIVER OF THE RIGHT TO TRIAL BY TWELVE JURORS

        Vera’s sole issue is that the trial court erred by proceeding over his objection to a newly

sworn and empaneled juror who stated he did not “know” or “speak good English” and would have

a problem easily understanding everything. Vera contends “[a] juror who cannot understand the

proceedings is tantamount to no juror at all, resulting in a de facto jury of eleven” in violation of

article 5, section 13 of the Texas Constitution, and article 36.29 of the Texas Code of Criminal

Procedure. In essence, Vera posits that the trial court denied his constitutional right to a trial by

twelve jurors because the trial court permitted a juror to serve when the juror did not speak or

understand English and was unable to understand the proceedings.

        The Texas Constitution “provides that the right of trial by jury shall remain inviolate” and

that in district court, juries shall be composed of twelve persons. TEX. CONST. art. 1, § 15; art. 5,

§ 13. “[This right] cannot be considered as remaining inviolate when the jurors can neither speak

nor understand the language in which the proceedings are had.” Lyles v. State, 41 Tex. 172, 177

(1874) (reversing a felony conviction because the trial court permitted several people who did not

speak and understand English to serve on the jury).

        If the trial by jury is to remain a substantial fact and an important right, and is not
        to be substituted by a legal fiction bearing the name, but wanting in the most
        important qualification of a jury, namely, the capacity to understand what the
        pleadings contain, what is said by the counsel in their addresses to the jury, and
        utterly unable to comprehend the charge of the court, then it is necessary that jurors
        unable to speak or understand the English language should be excluded from the
        panel.




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Concurring Opinion                                                                      04-15-00361-CR


Lyles, 41 Tex. at 177. The Court of Criminal Appeals summarily adopted Lyles in Sullenger v.

State, 79 Tex. Crim. 98, 101-02, 182 S.W. 1140, 1142 (1916) (reversing judgment when one juror

who did not speak English served on the jury).

         A criminal defendant may waive his constitutional right to a trial by jury only if “the waiver

[is] made in person by the defendant in writing in open court with the consent and approval of the

court, and the attorney representing the state.” TEX. CODE CRIM. PROC. ANN. art. 1.13 (West Supp.

2015); accord TEX. CONST. art. 1, § 15 (authorizing the legislature to regulate the right to trial by

jury); Stillwell v. State, 466 S.W.3d 908, 911-12 (Tex. App.—Fort Worth 2015, no pet.). And a

trial of a felony offense may not proceed with less than twelve jurors unless a defendant

affirmatively consents to proceeding with less than twelve jurors and the State agrees. See TEX.

CONST. art V, § 13 (requiring twelve jurors); TEX. GOV’T CODE ANN. § 62.201 (West 2013)

(requiring the parties to agree to try the case with fewer than twelve jurors); Carrillo v. State, 597

S.W.2d 769, 771 (Tex. Crim. App. [Panel Op.] 1980) (noting mistrial is appropriate when juror is

disabled from sitting for any reason and defendant does not consent to proceeding); State v.

Rhodes, 966 S.W.2d 610, 613 (Tex. App.—San Antonio 1998, no pet.) (holding state must agree

to defendant’s waiver of the required number of jurors); Bates v. State, 843 S.W.2d 101, 104 (Tex.

App.—Texarkana 1992, no pet.) (holding “some affirmative act of waiver” is required); see also

Trinidad v. State, 275 S.W.3d 52, 58 (Tex. App.—San Antonio 2008) (“The Constitutional right

to a twelve person jury appears to be the type of right that requires special protection. It cannot be

denied absent an express waiver.”), rev’d on other grounds, 312 S.W.3d 23 (Tex. Crim. App.

2010).

         The majority appears to suggest Vera waived his issue because he did not make a challenge

for cause and instead moved only for a mistrial. However, article 35.16 defines “[a] challenge for



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Concurring Opinion                                                                    04-15-00361-CR


cause” as “an objection made to a particular juror, alleging some fact which renders the juror

incapable or unfit to serve on the jury.” TEX. CODE CRIM. PROC. ANN. art. 35.16 (West 2006). A

party is not required to say magic words or recite a specific statute to preserve an issue. Bryant v.

State, 391 S.W.3d 86, 92 (Tex. Crim. App. 2012). Although Vera did not use the words “challenge

for cause,” Vera’s motion for a mistrial was based on the juror’s suggestion that he could not speak

or understand English well enough to understand the proceedings. Thus, Vera made a “challenge

for cause” as article 35.16 defines that term. See art. 35.16; see also Carrillo, 597 S.W.2d at 771

(noting mistrial is appropriate when juror is disabled from sitting and defendant does not consent

to having less than twelve jurors). After the juror stated he had a problem understanding English,

the trial court excused the jurors. Immediately after the jury left the courtroom, Vera moved for a

mistrial due to the juror’s inability to understand English.

        The majority holds Vera waived his issue because he failed to inquire during voir dire

whether anyone on the jury could not speak or understand English. The majority reasons that under

article 35.16 of the Code of Criminal Procedure, a juror’s inability to read or write in English is

not an absolute disqualification. Article 35.16 enumerates several grounds for challenging jurors

for cause. TEX. CODE CRIM. PROC. ANN. art. 35.16. Article 35.16 provides that some grounds may

be waived, and others may not. Id. Although one of the waivable grounds is “[t]hat the juror cannot

read or write,” no part of article 35.16 addresses jurors who cannot speak or understand English.

See id. When it had jurisdiction over criminal appeals, the Supreme Court of Texas explained why:

        The code does not, in express terms, make [the inability to speak or understand
        English] one of the disabilities of a juror; and the reason would seem to be, that
        neither the framers of the code nor the Legislature which approved and adopted it
        supposed it possible that jurors would be forced on a party to try a cause when they
        could neither speak nor understand the language in which the trial was had—the
        only language recognized in this State as the language to be used in the district or
        other courts, save the exceptions cited in this opinion.



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Concurring Opinion                                                                                   04-15-00361-CR


Lyles, 41 Tex. at 177; see Sullenger, 79 Tex. Crim. at 102, 182 S.W. at 1142 (adopting Lyles). If a

juror who does not speak or understand English is selected for a jury, the defendant’s constitutional

right to trial by twelve jurors is violated. See Lyles, 41 Tex. at 177; Sullenger, 79 Tex. Crim. at

102, 182 S.W. at 1142. Although the legislature may regulate the right to a trial by twelve jurors,

article 35.16’s “read or write” provision, which courts construe as an English literacy requirement,

does not provide that a defendant’s inability to speak or understand English may be waived by

failing to raise a for-cause challenge during voir dire. See TEX. CONST. art. 1, § 15; art. 35.16;

Pineda v. State, 2 S.W.3d 1, 8 & n.6 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d).

         Lower courts have strayed from Lyles and Sullenger by conflating English literacy (the

ability to read and write in English) with English comprehension (the ability to understand

English). See, e.g., Stillwell, 466 S.W.3d at 913; Van Dalen v. State, 789 S.W.2d 334, 336 (Tex.

App.—Houston [14th Dist.] 1990, no pet.); Guzman v. State, 649 S.W.2d 77, 79 (Tex. App.—

Corpus Christi 1982, no pet.). In Guzman v. State, the court of appeals noted article 35.16’s

“literacy requirement may be waived,” and then proceeded to hold—without citing any additional

authority—that a juror’s inability to understand English may also be waived. 649 S.W.2d at 79.

The Guzman court held that if a party does not ask the veniremembers about their ability to speak

and understand English, then any complaint raised after voir dire that a juror cannot speak or

understand English is waived. Id. Guzman’s holding, and cases relying on Guzman’s holding (such

as Stillwell 2 and Van Dalen), is problematic because literacy and comprehension are different.

Literacy can be forfeited by inaction; comprehension requires an affirmative waiver. See Saldano



2
  The Stillwell court also cited Montoya v. State, 810 S.W.2d 160, 170 (Tex. Crim. App. 1989), for the proposition
that “encompassed in [English literacy] challenge is a juror’s inability to understand English.” 466 S.W.3d at 912. But
the Montoya court held a trial court does not err by excluding a juror who is unable to comprehend English because
the juror cannot read and write in English and is excludable under article 35.16. 810 S.W.2d at 170. Thus, Montoya
did not overrule Lyles or Sullenger and does not treat English comprehension and English literacy the same for waiver
purposes.

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Concurring Opinion                                                                     04-15-00361-CR


v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002) (noting the right to trial by jury is a waivable-

only right that may not be forfeited by inaction). Guzman’s holding also assumes veniremembers

who are unable to understand English are nevertheless able to understand and honestly respond to

a question about their ability to understand English.

        The majority also relies upon Webb v. State, 232 S.W.3d 109 (Tex. Crim. App. 2007), in

which the Court of Criminal Appeals held the appellant waived a for-cause challenge of a juror

who had served on the grand jury because appellant did not ask if any veniremember had served

on the grand jury in the case. Id. at 113. The Court of Criminal Appeals in Webb did not overrule

Lyles or Sullenger and held only that a non-absolute disqualification may be forfeited. See id. And

unlike a juror who served on the grand jury that indicted the defendant, and unlike a juror who

merely cannot read or write in English, a juror who is unable to speak or understand English will

be unable “to understand what the pleadings contain, what is said by the counsel in their addresses

to the jury, and utterly unable to comprehend the charge of the court.” See Lyles, 41 Tex. at 177.

This is “the most important qualification of a jury.” Id.

        Because a juror’s inability to speak or understand English is a waivable constitutional

disqualification, and not merely a forfeitable statutory ground to challenge for cause, Vera could

waive the issue only by (1) waiving his right to a trial by jury in writing in open court; or (2)

affirmatively consenting and the State agreed. See TEX. CONST. art V, § 13; TEX. GOV’T CODE

ANN. § 62.201; Carrillo, 597 S.W.2d at 771; Rhodes, 966 S.W.2d at 613; Bates, 843 S.W.2d at

104. Vera did not waive his constitutional right to a trial by jury in writing in open court. Vera did

not affirmatively consent, and the State did not agree, to proceeding with a juror who could not

speak or understand English or to proceeding with fewer than twelve jurors. Vera’s failure to ask




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Concurring Opinion                                                                     04-15-00361-CR


the veniremembers about their ability to speak and understand English did not waive his issue for

appeal.

                                       ABUSE OF DISCRETION

          Although I disagree that Vera waived his sole issue on appeal, the record does not

demonstrate the trial court erred by allowing the juror to serve. “The determination as to whether

a juror is disabled is within the discretion of the trial court. Absent an abuse of that discretion, no

reversible error will be found.” Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999).

“We review a trial court’s ruling on a challenge for cause with considerable deference because the

trial judge is in the best position to evaluate a veniremember’s demeanor and responses.” Gardner

v. State, 306 S.W.3d 274, 295-96 (Tex. Crim. App. 2009). “When a veniremember’s answers are

ambiguous, vacillating, unclear, or contradictory, we give particular deference to the trial court’s

decision.” Id. at 296.

          The only indication that the challenged juror could not speak or understand English was

the juror’s statement that he “[had] a problem because I don’t know – I no speak good English.”

Vera did not further inquire into the juror’s ability to understand what was being said. The trial

court briefly conversed with the juror in English about the juror’s citizenship, and the juror was

able to understand and respond in English. The juror also stated, “I can talk like just, I don't

understand easily everything.” Because the trial court was able to observe the juror’s demeanor

and responses, and some of the juror’s responses indicated he could speak and understand English,

we defer to the trial court’s determination. Therefore, the trial court did not abuse its discretion

and Vera’s conviction must be affirmed.

                                                   Luz Elena D. Chapa, Justice

PUBLISH



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