Douglas Edwards Burns v. the State of Texas

Opinion filed January 24, 2025

In The

Eleventh Court of Appeals
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No. 11-23-00266-CR
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DOUGLAS EDWARD BURNS, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. 18058

MEMORANDUM OPINION
A jury convicted Appellant, Douglas Edward Burns, of the third-degree
felony offense of driving while intoxicated. See TEX. PENAL CODE ANN. § 49.09(b)
(West Supp. 2024). Based upon Appellant’s pleas of “true,” the jury found the
enhancement allegations to be “true” and assessed Appellant’s punishment at
imprisonment for life in the Institutional Division of the Texas Department of
Criminal Justice. The trial court sentenced him accordingly. In his sole issue,
Appellant argues that the trial court erred by excusing a juror for disability pursuant
to Article 36.29 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM.
PROC. ANN. art. 36.29 (West Supp. 2024). We affirm.
Background Facts
Because there is no challenge to the sufficiency of the evidence, we will
address only the facts relevant to the issue on appeal. On October 2, 2023, voir dire
began for Appellant’s trial and the record identifies J.V. as Juror No. 20. During
voir dire, Appellant’s trial counsel noted that J.V. was “pretty quiet.” After the
completion of the voir dire examination, there was no challenge to J.V. serving on
the jury. The jury was impaneled and sworn with J.V. being seated as a member of
the jury. The trial court then released the jury for the day with instructions to return
the following morning.
The following morning, the trial court informed the parties that J.V. had
shown up “very emotionally distraught over the prospect of continuing as a juror on
this case.” The trial court spoke with J.V. in chambers and found her to be “visibly
distraught, shaking uncontrollably at the prospect of being a juror in the case.” The
trial court advised the parties of its determination that J.V. had become disabled from
serving on the jury “because of her emotional state of mind.” The trial court stated
that the trial would proceed with eleven jurors as allowed under Article 36.29. See
id. There was no objection to the trial court’s finding that J.V. was disabled or to
the trial court’s decision to proceed with eleven jurors.
Discussion
Appellant argues in his sole issue that the trial court erred by finding that J.V.
was disabled without taking any testimony from J.V., and that the trial court failed
to proactively present Appellant with the option to proceed with eleven jurors or
request a mistrial. The State contends that Appellant has waived his argument for
review. We agree with the State.

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To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that articulates with sufficient
specificity the grounds, if not apparent from the context, for the desired ruling.
TEX. R. APP. P. 33.1(a)(1); Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim.
App. 2021). Appellant’s trial counsel did not object to the trial court’s finding that
J.V. was disabled, nor did he move to question J.V. on the record concerning her
disability. Further, Appellant did not object to the trial proceeding with eleven
jurors, nor did he request a mistrial. Thus, he has not preserved his complaint for
review. See Hernandez. v. State, 416 S.W.3d 522, 525 (Tex. App.—Eastland 2013,
pet. ref’d); White v. State, No. 06-19-00200-CR, 2020 WL 3116366, at *1 (Tex.
App—Texarkana June 12, 2020, pet. ref’d) (mem. op., not designated for
publication).
Nevertheless, even if we assumed that Appellant’s complaint is properly
before us, the trial court did not abuse its discretion in proceeding to trial with eleven
jurors. We review a trial court’s determination of a juror’s disability for an abuse of
discretion. Scales v. State, 380 S.W.3d 780, 783–84 (Tex. Crim. App. 2012). The
determination must be upheld if it is within the zone of reasonable disagreement. Id.
at 784.
Article 36.29 of the Texas Code of Criminal Procedure provides that a juror
may be excused after the trial of any felony case begins if the juror, as determined
by the trial court, “becomes disabled from sitting at any time before the charge of
the court is read to the jury.” CRIM. PROC. art. 36.29(a). Texas courts have held that
for purposes of Article 36.29(a), trial “begins” once the jury is impaneled and sworn.
Garner v. State, 523 S.W.3d 266, 275 (Tex. App.—Dallas 2017, no pet.); Castro v.
State, 233 S.W.3d 46, 48 n.1 (Tex. App.—Houston [1st Dist.] 2007, no pet). The
record is clear that the jury was impaneled and sworn before the trial court excused
J.V.
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A juror is disabled when the juror is physically, emotionally, or mentally
impaired in some way that hinders his or her ability to perform the duty of a juror.
Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999). Disability is not
limited to physical disease but includes “any condition that inhibits a juror from fully
and fairly performing the functions of a juror.” Reyes v. State, 30 S.W.3d 409, 411
(Tex. Crim. App. 2000) (quoting Griffin v. State, 486 S.W.2d 948, 951 (Tex. Crim.
App. 1972)).
“[I]n order to support its judgment, the trial court must make a finding,
sufficiently supported by the record, that the juror was disqualified or unable to
perform the duties of a juror.” Scales, 380 S.W.3d at 784. The record shows that
the trial court spoke with J.V. in chambers and observed that J.V. was “visibly
distraught” and “shaking uncontrollably at the prospect of being a juror in the case.”
Although J.V. indicated to the trial court that she could “try to stick through it,” the
trial court, after observing J.V., specifically found that “her emotional state of mind”
caused her to be disabled to the extent that she could not serve as a juror in this case.
It is not the role of an appellate court to substitute its own judgment for that of the
trial court, but rather, to assess whether, after viewing the evidence in the light most
favorable to the trial court's ruling, the ruling was arbitrary or unreasonable. Id. And,
as we have said, the ruling must be upheld if it is within the zone of reasonable
disagreement. See id. Based upon the record before us, we cannot conclude that the
trial court abused its discretion in finding J.V. was disabled from sitting on the jury
based upon her emotional state.
Appellant argues that the trial court erred by not taking any testimony from
J.V. as to the disability. We note that the record does reflect the trial court’s
description of the emotional state of J.V. and the accompanying physical
manifestations that he observed of that condition. In Scales, the Court of Criminal
Appeals noted that the “[b]est practices indicate that such a conversation on the
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record assists appellate courts in reviewing the sufficiency of the evidence
supporting the dismissal, but the failure to do so—even when the juror is available
to testify—is not a per se abuse of discretion.” Id. at 784 n.18. Therefore, the trial
court was not required to take testimony from J.V.
Citing Garza v. State, Appellant also argues that the trial court was required
to ask him whether he chose to proceed with eleven jurors or if he chose to ask for a
mistrial. 276 S.W.3d 646, 651 (Tex. App.—Houston [1st Dist.] 2008), aff’d, Ex
parte Garza, 337 S.W.3d 903 (Tex. Crim. App. 2011). In Garza, a jury was
impaneled and sworn to hear the case against the defendant for the misdemeanor
offense of driving while intoxicated. Id. at 649. Before any evidence was presented,
the trial court was informed that one of the jurors had a “cardiac event,” and the trial
court reset the case for two days later. Id. After two days had passed, the juror was
still not available, and, after discussion with the parties and contacting the other
jurors, the trial court sua sponte declared a mistrial for manifest necessity. Id. at
649–50. The defendant objected to the mistrial and requested that the “one day trial”
instead be continued for approximately two weeks with the empaneled jury,
“[a]nd/or, in the alternative . . . to proceed through trial with the five remaining
jurors.” Id. at 650 (emphasis omitted).
The defendant in Garza argued on appeal that the trial court erred by sua
sponte declaring a mistrial and by denying his application for writ of habeas corpus
based upon double jeopardy grounds. Id. at 649. The court of appeals concluded
that the dismissed juror was disabled under Article 36.29 but that the trial court erred
by failing to consider the less drastic alternative of proceeding to trial with the
remaining five jurors, as had been requested in the alternative by the defendant’s
trial counsel. Id. at 652. The court in Garza did not hold that the trial court was
required to proactively ask whether a defendant wished to proceed with fewer jurors,
but rather, it concluded that the trial court should have considered proceeding with
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fewer jurors as a less drastic alternative to a mistrial. Id. Here, the trial court did
just that. It considered a less drastic alternative to a mistrial and proceeded to trial
with the eleven jurors remaining—consistent with Article 36.29(a).
As a result, Garza does not support Appellant’s argument that the trial court
was required to ask him whether he chose to proceed with eleven jurors or if he
chose to ask for a mistrial. Moreover, Article 36.29 contains no requirement set
forth by the legislature that the trial court ask a defendant whether a mistrial
is requested before proceeding with eleven jurors. See CRIM. PROC. art. 36.29(a);
Hill v. State, 90 S.W.3d 308, 315 (Tex. Crim. App. 2002) (Because the statute
states that “the remainder of the jury shall have the power to render the verdict,”
Article 36.29(a) does not require that the trial court obtain any party’s consent to
proceed when one juror becomes disabled.). Absent the legislature creating such a
requirement, neither shall we.
Having concluded that Appellant did not preserve his complaint for our
review but that, nevertheless, the trial court did not abuse its discretion in finding
that J.V. was disabled pursuant to Article 36.29(a) and proceeding with eleven
jurors, we overrule Appellant’s sole issue.
This Court’s Ruling
We affirm the judgment of the trial court.

W. BRUCE WILLIAMS
JUSTICE
January 24, 2025
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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