IN THE

TENTH COURT OF APPEALS

No. 10-12-00073-CR

JAIME RODRIGUEZ, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court No. 11-00633-CRF-272

MEMORANDUM OPINION

Jaime Rodriguez, Jr. appeals from a conviction for evading arrest in a motor 

vehicle with a deadly weapon finding for which he was sentenced to ten years in 

prison, a $10,000 fine, and ordered to pay restitution of $11,170. TEX. PEN. CODE ANN. §§ 

38.04, 12.35(c) (West 2011). Rodriguez complains that the trial court abused its 

discretion by dismissing a juror and ordering him to pay restitution for unrelated 

offenses. Because we find that the trial court did not abuse its discretion by dismissing 
Rodriguez v. State Page 2

the juror but that the restitution was improperly assessed, we modify the judgment to 

delete the restitution order and otherwise affirm the judgment of the trial court.

Dismissal of Juror

In his first issue, Rodriguez complains that the trial court abused its discretion by 

dismissing a juror due to a "disability." On the second day of the evidentiary portion of 

the jury trial, a juror informed a bailiff that a co-worker had confronted him the 

previous day and informed the juror that the co-worker thought he knew Rodriguez. 

The trial court brought the juror into the courtroom twice for questioning regarding the 

incident. The juror stated that the conversation took between 40 seconds to one minute. 

The juror had known the co-worker for approximately four to five years and was not 

afraid of the co-worker. The co-worker had a reputation for playing games and joking 

around. The juror was unsure if the co-worker was serious, but stated that the coworker spoke to him in a "serious threatening voice" and told him that he thought he 

knew Rodriguez because he was supposed to be in the same court at the same time as 

the juror. 

The first time he was questioned, the juror indicated that he was "kind of scared" 

that he might be harmed in some way by someone "behind" the co-worker. The second 

time he was questioned the juror indicated that he was fearful that people might come 

to his house and harm his family if he found Rodriguez guilty. 

After the juror returned to the jury room, the attorneys and trial court discussed 

the juror's demeanor. The record reflects that the juror spoke in a very low voice and 
Rodriguez v. State Page 3

placed himself where his back was to Rodriguez and Rodriguez could not see or hear 

what he was saying. His voice was quivering and the State's attorneys felt that he 

looked very shaken up.

The trial court found that the juror was disabled and not able to perform his 

duties as a juror and dismissed him. The trial court stated that it made the decision 

based on the juror's testimony and demeanor that showed that the juror was "highly 

concerned for the safety of his family" and was "emotionally distraught as a result of 

this communication" and that the juror would be "forced to violate his conscience and 

not render a proper verdict because he's concerned about future ramifications that if he 

finds the Defendant guilty there would be reprisal against his family."

Rodriguez complains that his right to a jury comprised of twelve members as 

required by the Code of Criminal Procedure was violated because the juror was not 

"disabled" as contemplated by article 36.29(a). See TEX. CODE CRIM. PROC. ANN. art. 

36.29 (West Supp. 2012). 

If "a juror dies or, as determined by the judge, becomes disabled from sitting" 

during a felony trial before the charge has been read to the jury, then the trial may

proceed to verdict without that juror. TEX. CODE CRIM. PROC. ANN. art. 36.29(a). A juror 

is considered "disabled" if he has a "physical illness, mental condition, or emotional 

state" which hinders his ability to perform his duties as a juror. Hill v. State, 90 S.W.3d 

308, 315 (Tex. Crim. App. 2002) (quoting Landrum v. State, 788 S.W.2d 577, 579 (Tex. 

Crim. App. 1990)). A juror may also be considered "disabled" if he has "any condition 
Rodriguez v. State Page 4

that inhibits [him] from fully and fairly performing the functions of a juror." Routier v. 

State, 112 S.W.3d 554, 588 (Tex. Crim. App. 2003) (quoting Reyes v. State, 30 S.W.3d 409, 

411 (Tex. Crim. App. 2000)). 

We review a trial court's determination that a juror is disabled under an abuseof-discretion standard. Id. A trial court abuses its discretion when its decision lies 

outside the zone of reasonable disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex. 

Crim. App. 2007). In other words, an abuse of discretion occurs only if we can say with 

confidence that no reasonable perception of the matter under consideration could have 

yielded the decision made by the trial court. See Montgomery v. State, 810 S.W.2d 372, 

391 (Tex. Crim. App. 1991) (op. on reh'g).

It is well established that a bias or prejudice in favor of or against the defendant 

does not constitute a disability within the meaning of article 36.29(a). Ex parte 

Hernandez, 906 S.W.2d 931, 932 (Tex. Crim. App. 1995), overruled on other grounds by 

Hatch v. State, 958 S.W.2d 813 (Tex. Crim. App. 1997); Carrillo v. State, 597 S.W.2d 769, 

771 (Tex. Crim. App. 1980). However, we cannot conclude from the record that the trial 

court abused its discretion in finding that the pressure and fear the juror was 

experiencing were more than mere bias or prejudice from a fear of retaliation. A bias or 

prejudice that puts the juror in an emotional state such that it prevents the juror from 

fully and fairly performing the duties of a juror may render the juror disabled. See Reyes 

v. State, 30 S.W.3d 409, 412 (Tex. Crim. App. 2000). The trial court did not abuse its 

discretion by dismissing the juror. We overrule issue one. 
Rodriguez v. State Page 5

Restitution

Rodriguez complains in his second issue that the trial court abused its discretion 

in ordering him to pay restitution to various victims of thefts that were presented to the 

trial court at sentencing as extraneous offenses but for which Rodriguez was not 

convicted. The State agrees that the restitution was improperly imposed. Restitution is 

intended to compensate the victim of an offense in the course of punishing the criminal 

offender. See Campbell v. State, 5 S.W.3d 693, 696-97 (Tex. Crim. App. 1999). The 

restitution awarded was for offenses entirely unrelated to the evading arrest offense of 

which he was convicted. We agree that the trial court abused its discretion. We sustain 

issue two.

Conclusion

The trial court did not abuse its discretion by dismissing a juror. However, the 

inclusion of the restitution in the judgment was an abuse of discretion. Therefore, we 

modify the judgment of the trial court to delete the $11,170.00 restitution award, and 

affirm the judgment as modified.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Modified, and Affirmed as Modified

Opinion delivered and filed March 7, 2013

Do not publish

[CR25]