                                   NO. 07-08-0026-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                   JANUARY 26, 2010

                          ______________________________

                            DONALD F. DAVIS, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

            FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY;

             NO. 1034587D; HONORABLE MOLLEE WESTFALL, JUDGE
                      _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                 DISSENTING OPINION


       I agree with the majority=s disposition of Appellant=s points of error one and five

through ten; however, I write separately to express my opinion that the trial court erred

in its determination that juror Chatha was disabled. See Tex. Code Crim. Proc. Ann.

art. 36.29(a) (Vernon Supp. 2009).


       As stated in the majority opinion, for purposes of art. 36.29(a), a juror is

“disabled” if he or she is unable to fully and fairly perform the functions of a juror due to
an inhibiting condition. Griffin v. State, 486 S.W.2d 948, 951 (Tex.Crim.App. 1972).

While an inhibiting condition can be physical, mental or emotional, Hill v. State, 90

S.W.3d 308, 315 (Tex.Crim.App. 2002), that condition must be something more than

reluctance on the part of the juror to render a verdict in accordance with the law and the

evidence.       Landrum v. State, 788 S.W.2d 577, 579 (Tex.Crim.App. 1990) (juror

expressing misgivings regarding his willingness to consider the full range of punishment

was not “disabled” for purposes of art. 36.29(a)).


          Here, juror Chatha had already fully participated in the jury’s decision to render a

guilty verdict and had sat through the presentation of evidence during the punishment

phase of the trial. However, when it came time to participate in jury deliberations at

punishment, expressing a “religious preference” not to “hold an individual’s life in my

hands,” after two rounds of questioning by the court and the attorneys, and after having

just stated, “I just don’t want to be involved,” affirmatively answered the court’s question

as to whether the process had caused him “distress.” When questioned further as to

whether the distress was of such a degree that it impaired his ability to function as a

juror, juror Chatha, rather than answering affirmatively, stated, “I don’t think I’m a good

juror.”


          Under the facts of this case, juror Chatha’s “disability” amounted to nothing more

than misgivings on his part regarding his willingness to participate in the punishment

phase of trial. If such minimal reluctance amounts to disability, I dare say the entire jury



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process is in jeopardy of collapse. Therefore, I disagree with the majority’s conclusion

that the trial court did not err in discharging this particular juror.




                                                      Patrick A. Pirtle
                                                          Justice



Do not publish.




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