Opinion filed August 31, 2011

In The

Eleventh Court of Appeals 

__________

No. 11-10-00086-CR

__________

TRACY LEE THURMAN, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 266th District Court

Erath County, Texas

Trial Court Cause No. CR13273

M E M O R A N D U M O P I N I O N

Tracy Lee Thurman appeals his conviction by a jury of the offense of delivery of a 

controlled substance, methamphetamine, in an amount of one gram or more but less than four 

grams. Finding an enhancement paragraph to be true, the jury assessed Thurman’s punishment 

at ninety-nine years in the Texas Department of Corrections, Institutional Division. In three 

issues, Thurman urges that the trial court erred or abused its discretion by dismissing a juror, 

after the jury had been selected, for a reason not authorized by Article 36.29(a) of the Texas 

Code of Criminal Procedure and by denying his motion for mistrial in which he asked for a new 
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jury of twelve to be selected. TEX. CODE CRIM PROC. ANN. art. 36.29 (Vernon Supp. 2010). We 

affirm.

Thurman contends in Issues One and Two that the trial court committed constitutional 

error in dismissing a juror for reasons not authorized by Article 36.29(a) and that the trial court 

abused its discretion in dismissing the juror after the trial began, depriving him of his right to 

have a jury of twelve render verdicts at the guilt/innocence and the punishment phases of his 

trial. 

Prior to the testimony beginning, a juror informed the court through the court bailiff that 

he had a problem regarding a witness in the case. Questioning of the juror revealed that he had 

knowledge of one of the State’s witnesses. He indicated that, in November 2008, his wife did 

not come home and he found out that she spent the night at the witness’s house. The juror 

related, “I just don’t feel good about that, we’ve been separated since then, and, you know, I just 

think something took place.” The juror also indicated that he would have difficulty in believing 

the witness. When asked whether he could judge the witness like he could anyone else or if he 

would have such a strong and overriding dislike for the witness that he could not believe what 

the witness says, he responded, “Unfortunately I have such a strong dislike for the matter that 

I’m -- here again I apologize, but”-- He subsequently finished his answer by saying that he 

would have a very difficult time. He acknowledged that, during voir dire, he had made a 

notation on the jury questionnaire that indicated he had some knowledge about the case and was 

told that he would be given another opportunity to talk about it later. He insisted, however, that 

he did not know about the witness at that time.

Later, in response to questioning by the court, the juror testified that the knowledge he 

had of the relationship between the witness and his wife would have such an effect on his mental 

condition or emotional state that it would keep him from being a fair and impartial juror in the 

case. The court, finding that he would be disabled as a juror, released him from the case. We 

hold that the trial court did not abuse its discretion in finding the juror to be disabled and 

dismissing him from service. 

Thurman contends that the term “disability” contained in Article 36.29(a), which

authorizes the remainder of the jury to render a verdict where a jury becomes disabled before the 

charge is read to the jury, does not include mere bias or prejudice. Thurman concludes that,

because the juror in this cause was biased or prejudiced against a State’s witness, the juror was 
3

not disabled within the meaning of Article 36.29(a). In Reyes v. State, 30 S.W.3d 409, 412 (Tex. 

Crim. App. 2000), the court held that, while mere knowledge of a defendant cannot, in and of 

itself, render a juror “disabled” within the meaning of Article 36.29(a), 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 Article 36.29. 

In this case, as we have previously noted, the juror, in response to a question asked by the 

trial court, stated that the knowledge he had of the relationship between the witness and the 

juror’s wife would have such an effect on his mental condition or emotional state that it would 

keep him from being a fair and impartial juror in the case. Consequently, the trial court could 

reasonably have found that the circumstance of the juror’s knowledge that his wife had left him 

because of a State’s witness would have had such an effect on his mental condition or emotional

state that it would keep him from being a fair and impartial juror in the case. Therefore, the trial 

court did not abuse its discretion in finding that the juror was disabled within the meaning of 

Articke 36.29(a). 

Thurman primarily relies upon the opinions of Landrum v. State, 788 S.W.2d 577 (Tex. 

Crim. App. 1990), and Carrillo v. State, 597 S.W.2d 769 (Tex. Crim. App. 1980). We find both 

of those cases to be distinguishable. Counsel for Thurman made no objection to the court’s 

ruling concerning the juror’s disability nor to the court’s ruling dismissing the juror, but counsel

did move for a mistrial after the juror had been dismissed, asking the court to cause a new venire

panel to be selected and rebegin jury selection because Thurman was entitled to a jury of twelve 

members of the community. Subsequently, the trial court announced that the trial would proceed 

with the remaining eleven members of the jury, specifically finding that the juror was rendered 

disabled by virtue of the information that he had and his response to that information relative to a 

witness in the case.

 Where, as here, no alternate jurors have been selected, if a juror dies or, as determined 

by the trial court, becomes disabled from sitting as a juror at any time before the charge of the 

court is read to the jury, the remainder of the jury shall have the power to render the verdict. 

Article 36.29(a). The determination of whether to excuse a juror pursuant to Article 36.29(a) is 

within the sound discretion of the trial court. Landrum, 788 S.W.2d at 579. 

In order for an issue to be preserved on appeal, there must be a timely objection that

specifically states the legal basis for the objection. Rezac v. State, 782 S.W.2d 869, 870 (Tex. 
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Crim. App. 1990). Thurman presented no objection with respect to the trial court’s determination 

of the juror’s disability or the trial court’s dismissal of the juror. Therefore, as to these two 

issues, nothing is presented for review. Consequently, we overrule Issues One and Two. 

Thurman insists in Issue Three that the trial court erred in denying his motion for mistrial 

following dismissal of the juror. After the juror was discharged, Thurman moved for a mistrial, 

asking the court to cause a new venire panel to be selected and rebegin jury selection, so that 

Thurman could have a twelve-member jury. The trial court effectively denied the mistrial and 

continued the trial with the eleven remaining jurors. Inasmuch as the trial court had, without 

objection, dismissed the juror on the basis of disability, the trial court did not err by proceeding 

with the trial with the remaining eleven jurors. Article 36.29(a). Thurman’s argument on appeal 

is directed only to the trial court’s dismissal of the juror on the basis of disability, not to the trial 

court’s denial of his mistrial after the trial court had dismissed a juror without objection on the 

basis of disability. We overrule Issue Three. 

The judgment of the trial court is affirmed.

PER CURIAM

August 31, 2011

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Hill, J.1

 

1

John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.