1

ORAL ARGUMENT REQUESTED

CAUSE NOS. 06-14-00241-CR

IN THE

COURT OF APPEALS

SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA

___________________________________________________________

KELLY WAYNE LAMON, Appellant

V.

THE STATE OF TEXAS, Appellee

___________________________________________________________

ON APPEAL FROM THE 102ND JUDICIAL DISTRICT COURT

RED RIVER COUNTY, TEXAS; HONORABLE BOBBY LOCKHART

TRIAL COURT NO. CR-02184

___________________________________________________________

APPELLEE’S (STATE’S) BRIEF

____________________________________________________________

Val J. Varley, County and District Attorney

Red River County and District Attorney’s Office

Red River County Courthouse

400 North Walnut Street

Clarksville, Texas 75426-4012

(903) 427-2009

(903) 427-5316 (Fax)

ATTORNEYS FOR THE STATE OF TEXAS

ACCEPTED

06-14-00241-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

4/9/2015 9:09:27 AM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 4/9/2015 9:09:27 AM DEBBIE AUTREY Clerk
2

IDENTITY OF PARTIES AND COUNSEL

Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and 

counsel is not required to supplement or correct the appellant’s list.
3

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL 2

TABLE OF CONTENTS 3

INDEX OF AUTHORITIES 4

STATEMENT OF THE CASE 7

STATEMENT REGARDING ORAL ARGUMENT 8

SOLE ISSUE PRESENTED IN REPLY 9

INTRODUCTION 10

STATEMENT OF FACTS 11

SUMMARY OF THE ARGUMENT 20

ARGUMENT AND AUTHORITIES 21

PRAYER 36

CERTIFICATE OF COMPLIANCE 37

CERTIFICATE OF SERVICE 37
4

INDEX OF AUTHORITIES

TEXAS CASES: PAGE(S):

Carrillo v. State, 

597 S.W.2d 569 (Tex. Crim. App. 1980). 23

Castro v. State,

233 S.W.3d 46 (Tex. App.--Houston [1st Dist.] 2007, no pet.). 25, 27

Chavez v. State, 

134 S.W.3d 244 (Tex. App.--Amarillo 2003, pet. ref’d). 32-33

Hegar v. State,

11 S.W.3d 290 (Tex. App.--Houston [1st Dist.] 1999, no pet.). 25

Hill v. State,

90 S.W.3d 308 (Tex. Crim. App. 2002). 24, 28-32

Kinslow v. State, No. 06-14-00083-CR,

2014 Tex. App. LEXIS 13619, 2014 WL 7204556

(Tex. App.--Texarkana December 14, 2014, no pet.)

(mem. op., not designated for publication). 12

Landrum v. State,

788 S.W.2d 577 (Tex. Crim. App. 1990). 23

Martel, Joseph M. v. The State of Texas,

No. 12-07-00034, 2008 WL 257367, 2008 Tex. App. LEXIS 652

(Tex. App.--Tyler January 31, 2008, no pet.)

(mem. op., not designated for publication). 30, 32

Ransom v. State,

920 S.W.2d 288 (Tex. Crim. App. 1996). 34

Ricketts v. State,

89 S.W.3d 312 (Tex. App.--Fort Worth 2002, pet. ref’d). 28

Romero v. State,
5

396 S.W.3d 136 (Tex. App.--Houston [14th Dist.] 2013, no pet.).25, 27

Sandoval v. State, 

409 S.W.3d 23 (Tex. App.--Austin 2013, no pet.). 23

Scales v. State,

380 S.W.3d 780 (Tex. Crim. App. 2012). 20, 33-34

Sneed v. State, 

209 S.W.3d 782 (Tex. App.--Texarkana 2006, pet. ref’d). 23

Thurman, Tracy Lee v. The State of Texas, No. 11-10-00086-CR,

2011 WL 3890564, 2011 Tex. App. LEXIS 7225

(Tex. App.--Eastland August 31, 2011, no pet.)

(mem. op., not designated for publication). 32

Whitehead v. State,

437 S.W.3d 547 (Tex. App.---Texarkana 2014, pet. ref’d).20, 31, 33

TEXAS CODE(S): PAGE(S):

Tex. Code Crim. Proc. Ann. art. 36.29(a) (West Supp. 2014). 21-23, 25

Tex. Code Crim. Proc. Ann. art. 36.29(c) (West Supp. 2014). 21-23,

25-27

Tex. Code Crim. Proc. Ann. art. 33.011(b) (West Supp. 2014). 22-23, 25

Tex. Penal Code Ann. § 22.01(a)(1), (b)(1) (West Supp. 2014). 7

TEXAS RULES OF APPELLATE PROCEDURE: PAGE(S):

Tex. R. App. P. 9.4(i)(3) 37

Tex. R. App. P. 9.5 37

Tex. R. App. P. 33.1(a) 23
6

Tex. R. App. P. 38.2 8, 10

Tex. R. App. P. 38.2(a)(1)(A) 2

Tex. R. App. P. 44.2(b) 33-35
7

STATEMENT OF THE CASE

After an incident at the jail on May 4, 2014, a Red River County 

grand jury returned an original indictment that charged Lamon with the 

felony offense of assault on a public servant. See Tex. Penal Code Ann. §

22.01(a)(1), (b)(1) (West Supp. 2014). During the course of a jury trial, the 

trial court ruled that one of the jurors “just can’t fully and fairly perform his 

functions as a juror, and I’m going to release him from service at this time.” 

See RR, Vol. 6, pg. 12. After arguments of counsel, the trial court 

proceeded to trial with eleven jurors. See CR, pg. 59.

At the conclusion of the guilt-innocence phase, the jury retired to 

begin its deliberations; and by its verdict, the jury found Lamon guilty of the 

felony offense of assault of a public servant, as charged in the indictment. 

See RR, Vol. 6, pgs. 142-143; CR, pg. 63. Later, the jury found a prior 

felony conviction to be “true” and assessed punishment at confinement for 

twelve (12) years in the Institutional Divison of the Texas Department of 

Criminal Justice. See RR, Vol. 8, pg. 48; CR, pgs. 71-72.

From the trial court’s final conviction (CR, pgs. 85-86), Lamon timely 

filed his notice of appeal. See CR, pgs. 94-95. By this appeal, Lamon 

brought a single issue/point of error that questioned the trial court’s decision 

to proceed with eleven jurors.
8

STATEMENT REGARDING ORAL ARGUMENT

The appellant, Lamon, requested oral argument because it might assist 

“by discussing the factual basis for the trial court’s decision.” See

Appellant’s Brief, pg. 8. 

The State will also request oral argument in the above-styled and 

numbered appellate cause. See Tex. R. App. P. 38.2(a). While the factual 

basis for the trial court’s decision in removing juror Yaross was important, 

oral argument might further assist this Court in clarifying when, and if, a 

trial court abuses its discretion in proceeding to trial with eleven jurors as a 

less drastic alternative to a requested mistrial.

Oral argument might further assist this Court in its harm analysis, if 

any.
9

ISSUE PRESENTED IN REPLY

SOLE ISSUE PRESENTED IN REPLY: THE TRIAL COURT DID 

NOT ABUSE ITS DISCRETION IN REMOVING JUROR YAROSS 

AND IN PROCEEDING TO TRIAL WITH ELEVEN JURORS AS A 

LESS DRASTIC ALTERNATIVE TO THE APPELLANT’S 

REQUESTED MISTRIAL; ALTERNATIVELY, THE RECORD DID 

NOT REVEAL HARM.
10

CAUSE NO. 06-14-00241-CR

IN THE

COURT OF APPEALS

SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA

___________________________________________________________

KELLY WAYNE LAMON, Appellant

V.

THE STATE OF TEXAS, Appellee

___________________________________________________________

ON APPEAL FROM THE 102ND JUDICIAL DISTRICT COURT

RED RIVER COUNTY, TEXAS; HONORABLE BOBBY LOCKHART;

TRIAL COURT NO. CR-02184

___________________________________________________________

APPELLEE’S (STATE’S) BRIEF

____________________________________________________________

COMES NOW, the State of Texas, by and through the elected County 

and District Attorney of Red River County, Val J. Varley, and the County and 

District Attorney’s Office of Red River County, files this Appellee’s Brief in 

accordance with Rule 38.2 of the Rules of Appellate Procedure.

Unless otherwise indicated, Kelly Wayne Lamon will be referred to as 

“Lamon” or “the appellant.” The State of Texas will be referred to as “the 

State” or “the appellee.”
11

STATEMENT OF FACTS

Factual Background.

On May 4, 2014, Sergeant Phyllis Owens (Owens), who was 

considered a “certified jailer and dispatch[er]” and had 27 years of 

experience with the Red River County Sheriff’s Department, was working at 

the jail. See RR, Vol. 6, pg. 28. Owens was a public servant. See RR, 

Vol. 6, pgs. 28, 41. Owens was wearing a jail uniform shirt that had the 

label, “Red River County Sheriff’s Department” on it. See RR, Vol. 6, pg. 

42.

On May 4th, Owens was acting as a dispatcher and was sitting in the 

Red River County jail dispatch office. See RR, Vol. 6, pgs. 29, 113-114. 

Owens was performing dispatch and telecommunication duties. See RR, 

Vol. 6, pg. 30. The dispatch office was located at 500 North Cedar in Red 

River County, Texas. See RR, Vol. 6, pgs. 29, 39, 44.

On May 4th, Owens saw Lamon when he came into the dispatch 

office. See RR, Vol. 6, pgs. 29, 51. Lamon came through a door, that was 

partially open to the dispatch office. See RR, Vol. 6, pg. 54.

Lamon “attacked” (RR, Vol. 6, pg. 29) and “assaulted” Owens. See

RR, Vol. 6, pgs. 39, 85. Owens began calling for other officers. See RR, 

Vol. 6, pg. 36. Lamon was choking her out. See RR, Vol. 6, pgs. 39, 65. 
12

Owens felt like she “wasn’t going to make it. . . . I just -- I felt -- I lost 

consciousness. I mean, I couldn’t breathe because pressure was applied to 

my throat. I was choking, and I just -- it was terrifying.” See RR, Vol. 6, 

pg. 35. It caused pain to her neck and pain to her throat. See RR, Vol. 6, 

pg. 39.

At about that time, the non-violent and minimum security inmates 

who were designated as “trusties,” were working in the kitchen at the time 

that the incident occurred. See RR, Vol. 6, pgs. 37-38. They were 

preparing supper. See RR, Vol. 6, pgs. 38, 49. 

On May 4th, Byron Ray Alford, Jr. (“Bubba”) was an inmate in the jail 

and had been a “trusty” for about 14 months. See RR, Vol. 6, pgs. 67, 69, 

78. Bubba, age 39, was in jail for drugs (methamphetamine) and had been 

indicted for a state-jail felony. See RR, Vol. 6, pgs. 75-76. Bubba was 

convicted of the felony before any of the May 4th events happened. See RR, 

Vol. 6, pg. 76. Later, Bubba served 2 months in the state jail. See RR, Vol. 

6, pg. 77.

On that evening, Bubba was in the kitchen, making dinner trays. See

RR, Vol. 6, pg. 70. “It was right before dinner, about five o’clock.” See

RR, Vol. 6, pg. 70.

At some point, Bubba heard Ms. Marsha Reed (Reed) holler get back. 
13

See RR, Vol. 6, pgs. 70-71. Reed was hollering to get back and pointing to 

2 other inmates, Dylan Childers and Shane Kinslow.1

 Bubba ran around the corner to see what was happening. See RR, 

Vol. 6, pg. 70. Bubba was telling other inmates to get back as they were 

coming out of the library after church. See RR, Vol. 6, pgs. 71-72. When 

he did, Reed said, “go help Ms. Phyllis, two of them got by her.” See RR, 

Vol. 6, pgs. 71-72.

Bubba went around to dispatch. See RR, Vol. 6, pg. 72. When 

Bubba rounded the corner, he was the first one through the door. See RR, 

Vol. 6, pgs. 72-73. Bubba saw Gary Field was knocking over stuff and 

trying to hit “the button” to open the door to get out. See RR, Vol. 6, pgs. 

72-73.

Bubba saw “Ms. Phyllis” being choked. See RR, Vol. 6, pg. 73. 

“She was down on one knee about choked out.” See RR, Vol. 6, pg. 73. 

Bubba saw her eyes, and “[t]hey was bugged out, and she was rolling back.” 

See RR, Vol. 6, pg. 75.

Bubba grabbed his arm and pried them away. See RR, Vol. 6, pg. 73. 

It was not easy to get Lamon off of her. See RR, Vol. 6, pg. 73.

 

1

See Kinslow v. State, No. 06-14-00083-CR, 2014 Tex. App. LEXIS 13619, 2014 WL 

7204556 (Tex. App.--Texarkana December 14, 2014, no pet.) (mem. op., not designated 

for publication).
14

In addition to Bubba, Brice Franks and Tracy Morgan were the 

“trusties” that were holding Lamon down. See RR, Vol. 6, pgs. 37, 74. 

“They’re holding him securely.” See RR, Vol. 6, pg. 57. Finally, Lamon 

said, “he had enough, and there wasn’t no -- he said he give up.” See RR, 

Vol. 6, pg. 74. “Ms. Phyllis” was “real shook up.” See RR, Vol. 6, pg. 74.

Lamon was later escorted out by police, who took him down the 

hallway and into the detox secured area. See RR, Vol. 6, pgs. 38-39, 60. 

The Clarksville Police Department was dealing with Lamon, not the sheriff’s 

department. See RR, Vol. 6, pg. 59.

Later, Owens went to the emergency room, East Texas Medical 

Center. See RR, Vol. 6, pg. 56. They made an assessment and prescribed 

medication for pain. See RR, Vol. 6, pg. 56.

That evening, Owens had “lots of soreness around her neck and 

shoulder.” See RR, Vol. 6, pg. 40. Her right arm was bruised. It was 

medically determined that she had a strained shoulder and neck. See RR, 

Vol. 6, pg. 40.

Indictment and Jury Trial.

On June 19, 2014, a grand jury in Red River County returned an 

original indictment that charged Lamon with the third-degree felony offense 

of assault on a public servant. See CR, pgs. 6-7. In due course, the trial 
15

court proceeded with a jury trial on December 15, 2014 beginning with voir 

dire examination. See RR, Vol. 5, pgs. 1, 4.

After voir dire, the trial court impaneled a twelve-member jury: 

William Crock, Susan Leddy, Vicki Reep, Julia Clifton, Donna Miller, Lillie 

Rhea, Linda Dilbeck, Ellen Bristow, Marilyn Storey, Joan Winchell, Vickie 

Glass and Michael Yaross. See RR, Vol. 5, pgs. 59-60; CR, pg. 59. The 

jury was sworn in by the trial court and dismissed for the day. See RR, Vol. 

5, pgs. 60-61.

Removal of Juror.

Within twenty minutes after leaving the courthouse (RR, Vol. 6, pg. 

6), one of the jurors came back into the courtroom and addressed the district 

clerk. See RR, Vol. 6, pg. 5. Apparently, the juror told her that he felt like 

he may be unable to serve on the jury. See RR, Vol. 6, pg. 5. The district 

clerk brought the juror over to the trial judge, who basically told him to be 

back in the morning. See RR, Vol. 6, pgs. 5-6.

On the following morning of December 16, 2014 (RR, Vol. 6, pg. 1), 

the trial court called juror Y-A-R-O-S-S and asked, “tell me why you think 

you can’t serve on this jury.” See RR, Vol. 6, pg. 7. After an exchange 

between juror Yaross and the prosecutor and defense counsel (RR, Vol. 6, 

pgs. 7-11), the trial court ruled that “he just can’t fully and fairly perform his 
16

functions as a juror, and I’m going to release him from service at this time.” 

See RR, Vol. 6, pg. 12. The trial judge “removed” juror number 12, 

Michael Yaross, “after examining by Atty’s and Judge.” See CR, pg. 59.

After further discussion (RR, Vol. 6, pgs. 12-18), the trial judge 

decided, “we’re going to go ahead.” See RR, Vol. 6, pg. 18. Subsequently, 

the State arraigned the defendant by reading the indictment. See RR, Vol. 6, 

pgs. 23-24. Lamon entered a plea of “not guilty.” See RR, Vol. 6, pg. 24.

During the guilt-innocence phase of the trial, the State called two (2) 

witnesses, “Ms. Phyllis” Owens and Bubba. Following their testimony, the 

State rested. See RR, Vol. 6, pg. 81.

Lamon moved the trial court for an instructed or directed verdict. See

RR, Vol. 6, pgs. 82-83. The trial court denied the motion. See RR, Vol. 6, 

pg. 83.

The defense called Michael Childers as a witness; and following his 

testimony (RR, Vol. 6, pgs. 84-87), Lamon took the stand and began his 

testimony. See RR, Vol. 6, pgs. 91-102. The State cross-examined Lamon. 

See RR, Vol. 6, pgs. 102-112. Upon the conclusion of this testimony, 

Lamon rested. See RR, Vol. 6, pg. 112.

The State called Owens as a rebuttal witness. See RR, Vol. 6, pg. 

113. After brief testimony from Owens, the State rested and closed. See
17

RR, Vol. 6, pg. 116. The defense rested and closed. See RR, Vol. 6, pg. 

116.

Following a charge conference (RR, Vol. 6, pgs. 116-125), the trial 

court heard no objections to its jury charge. See RR, Vol. 6, pgs. 125-126. 

The trial court then read its charge to the jury. See RR, Vol. 6, pgs. 

127-133; CR, pgs. 60-62. 

After closing arguments (RR, Vol. 6, pgs. 133-139), the jury retired to 

begin its deliberations. See RR, Vol. 6, pg. 139. Upon the conclusion of its 

deliberations, the jury returned a unanimous verdict. See RR, Vol. 6, pg. 

142. By its verdict, the jury found Lamon guilty of assault of a public 

servant, as charged in the indictment. See RR, Vol. 6, pgs. 142-143; CR, pg. 

63.

Punishment Phase.

Afterwards, the State proceeded with the punishment phase of the trial 

by waiving opening argument and by reading a notice of intent to seek 

enhanced sentence as a repeat offender. See RR, Vol. 7, pgs. 6-7. Lamon 

entered a plea of “not true.” See RR, Vol. 7, pg. 7.

As its first witness, the State called Chris Brooks, an investigator with 

the Lamar County District Attorney’s office and a fingerprint expert. See

RR, Vol. 7, pg. 7. Over objection, the trial court later admitted State’s 
18

Exhibits 1 and 2. See RR, Vol. 7, pg. 11. See also RR, Vol. 9 (exhibits). 

As its next witness, the State called Shania Lamon. See RR, Vol. 7, 

pg. 20. Following her testimony (RR, Vol. 7, pgs. 20-35), the State called 

Michael Pace, an investigator with the Sheriff’s Office. See RR, Vol. 7, 

pgs. 35-36. Following his testimony, the State rested and closed. See RR, 

Vol. 7, pg. 43.

On the following day of December 17, 2014 (RR, Vol. 8, pg. 1), the 

defense called James Lee, the grandfather of Lamon. See RR, Vol. 8, pg. 5. 

Following his testimony (RR, Vol. 8, pgs. 5-12), the defense called Kim 

Stribling. See RR, Vol. 8, pg. 12. After her testimony, the trial court heard 

no objections to its punishment charge. See RR, Vol. 8, pgs. 20-21.

The trial court then read its punishment charge to the jury. See RR, 

Vol. 8, pgs. 22-29; CR, pgs. 66-70. Following closing arguments (RR, Vol. 

8, pgs. 29-38, the jury retired to begin its deliberations. See RR, Vol. 8, pg. 

38. Upon the conclusion of its deliberations, the jury returned a unanimous 

verdict. See RR, Vol. 8, pg. 45. By its verdict, the jury found the prior 

conviction to have been proved “true” and assessed his punishment at twelve 

(12) years confinement in the Institutional Division of the Texas Department 

of Criminal Justice. See RR, Vol. 8, pg. 48; CR, pgs. 71-72.

On December 17, 2014, the trial court signed its final judgment of 
19

conviction. See CR, pgs. 85-86. On January 5, 2015, Lamon timely filed 

his notice of appeal. See CR, pgs. 94-95.

Proceedings in this Court of Appeals.

On or about December 30, 2014, Lamon filed his notice of appeal in 

this Court. On the same day, Lamon filed the docketing statement.

On or about February 17, 2015, the official court reporter filed the 

Reporter’s Record. The District Clerk of Red River County filed the 

Clerk’s Record on or about February 20, 2015.

On or about March 11, 2015, Lamon filed his brief. The State will be 

filing its brief on or before the current due date of April 10, 2015.
20

SUMMARY OF THE ARGUMENT

By this appeal, Lamon brought a single issue, in which, he questioned 

whether a juror’s issue regarding men attacking women made him mentally 

impaired to the level that it hindered his ability to perform his duties as a 

juror. Regardless of the factual basis underlying this question, the trial 

court removed juror Yaross and proceeded to trial with eleven jurors. That 

decision by the trial court should not be an abuse of discretion.

In the present case, the trial court did not abuse its discretion in 

removing juror Yaross and in proceeding to trial with eleven jurors because 

that option was available to the trial court, and that option was a less drastic 

alternative to the appellant’s, Lamon’s, requested mistrial. Because the trial 

court exercised its sound discretion in proceeding to trial with eleven jurors, 

this Court should overrule Lamon’s sole issue/point of error on appeal.

Even assuming the trial court abused its discretion in removing juror 

Yaross and/or erred in finding that juror Yaross was “disabled” or “unable to 

perform,” the State will argue, in the alternative, that this appellate record 

should not reveal any harm.
21

ARGUMENT AND AUTHORITIES

SOLE ISSUE PRESENTED IN REPLY: THE TRIAL COURT DID 

NOT ABUSE ITS DISCRETION IN REMOVING JUROR YAROSS 

AND IN PROCEEDING TO TRIAL WITH ELEVEN JURORS AS A 

LESS DRASTIC ALTERNATIVE TO THE APPELLANT’S 

REQUESTED MISTRIAL; ALTERNATIVELY, THE RECORD DID 

NOT REVEAL HARM.

A. Introduction.

With his sole issue, Lamon questioned whether a juror’s issue 

regarding men attacking women made him mentally impaired to the level 

that it hindered his ability to perform his duties as a juror. See Appellant’s 

Brief, pgs. 7, 10, 11. In this case, the trial court removed juror Yaross.

B. Standard of Review: Abuse of Discretion.

The trial court has discretion to determine whether a juror has become 

disabled and to seat an alternate juror. See Whitehead v. State, 437 S.W.3d 

547, 554 (Tex. App.---Texarkana 2014, pet. ref’d) (citing Scales v. State, 380 

S.W.3d 780, 783 (Tex. Crim. App. 2012). In deciding to remove a juror, 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. See id. 

This Court may not substitute its judgment for that of the trial court. See id. 

Instead, this Court should assess whether, after viewing the evidence in the 

light most favorable to the trial court’s ruling, the ruling was arbitrary or 

unreasonable. See Whitehead, 437 S.W.3d at 554 (citing Scales, 380 
22

S.W.3d at 784. The ruling must be upheld if it within the “zone of 

reasonable disagreement.” See id. Absent an abuse of discretion, no 

reversible error will be found. See id.

C. Law Regarding Removal of a Juror: Article 36.29 and 

Article 33.011(b) of the Texas Code of Criminal Procedure.

Article 36.29 of the Texas Code of Criminal Procedure provided in 

pertinent part:

Art. 36.29. If a Juror Dies or Becomes Disabled

(a) Not less than twelve jurors can render and return a 

verdict in a felony case. It must be concurred in by each juror 

and signed by the foreman. Except as provided in Subsection 

(b), however, after the trial of any felony case begins and a 

juror dies or, as determined by the judge, becomes disabled 

from sitting 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; but when the verdict shall be rendered by 

less than the whole number, it shall be signed by every member 

of the jury concurring in it.

* * *

(c) After the charge of the court is read to the jury, if a 

juror becomes so sick as to prevent the continuance of the 

juror's duty and an alternate juror is not available, or if any 

accident of circumstance occurs to prevent the jury from being 

kept together under circumstances under which the law or the 

instructions of the court requires that the jury be kept together, 

the jury shall be discharged, except that on agreement on the 

record by the defendant, the defendant's counsel, and the 

attorney representing the state 11 members of a jury may render 

a verdict and, if punishment is to be assessed by the jury, assess 

punishment. If a verdict is rendered by less than the whole 

number of the jury, each member of the jury shall sign the 
23

verdict. 

See Tex. Code Crim. Proc. Ann. art. 36.29(a), (c) (West Supp. 2014).

In addition, article 33.011(b) of the Texas Code of Criminal Procedure 

provided the following:

Alternate jurors in the order in which they are called shall 

replace jurors who, prior to the time the jury renders a verdict 

on the guilt or innocence of the defendant and, if applicable, the 

amount of punishment, become or are found to be unable or 

disqualified to perform their duties or are found by the court on 

agreement of the parties to have good cause for not performing 

their duties. Alternate jurors shall be drawn and selected in the 

same manner, shall have the same qualifications, shall be 

subject to the same examination and challenges, shall take the 

same oath, and shall have the same functions, powers, facilities, 

security, and privileges as regular jurors. An alternate juror who 

does not replace a regular juror shall be discharged after the 

jury has rendered a verdict on the guilt or innocence of the 

defendant and, if applicable, the amount of punishment. 

See Tex. Code Crim. Proc. Ann. art. 33.011(b) (West Supp. 2014).

Although the statute does not define “unable to perform,” this Court 

held in Whitehead that appellate courts have concluded that “unable” as used 

in Article 33.011 is indistinguishable from “disabled” as used in Article 

36.29. See Whitehead, 437 S.W.3d at 554 (citing Scales, 380 S.W.3d at 

783; Sandoval v. State, 409 S.W.3d 239, 279 (Tex. App.--Austin 2013, no 

pet.); Sneed v. State, 209 S.W.3d 782, 786 (Tex. App.--Texarkana 2006, pet. 

ref’d) (“one must strain to recognize real differences in the meaning of the 

two words in this context”)). “Bias for or against any of the law applicable 
24

to the case, while an appropriate basis on which to challenge a member of 

the venire for cause, does not render a member of the sworn jury panel 

mentally impaired such that he is disabled as envisioned by Art. 36.29(a).” 

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

Carrillo v. State, 597 S.W.2d 569 (Tex. Crim. App. 1980)).

D. Application of Law to the Present Facts and Circumstances.

1. The Trial Court Did Not Abuse its Discretion in Proceeding 

to Trial with Eleven Jurors.

In the present case, the trial court made a finding on the record that 

the juror (i.e. Juror Yaross) “can’t fully and fairly perform his functions as a 

juror, and I’m going to release him from service at this time.” See RR, Vol. 

6, pg. 12. To this ruling, Lamon presented no objection. See Tex. R. App. 

P. 33.1(a). Yet, on appeal, Lamon questioned the factual basis for this 

ruling.

By this ruling, the trial court essentially found that the juror was 

“unable to perform” under article 33.011(b), as opposed to “disabled” under 

article 36.29. Compare Tex. Code Crim. Proc. Ann. art. 33.011(b) (West 

Supp. 2014) with Tex. Code Crim. Proc. Ann. art. 36.29(a) (West Supp. 

2014). Under article 33.011(b), however, an alternate juror was not 

available to the trial court, as evidenced by the following exchange:

THE COURT: Well, I think one of the things, and it’s 
25

probably maybe just easier stated on the record, I think there 

was maybe 124 people summoned yesterday. I think right at 

40 showed up. I took excuses on seven or eight, but any way, 

the point being, we had 34 --

MR. TURNER: We had 36 jurors.

See RR, Vol. 6, pg. 13; CR, pg. 53. The trial judge then continued:

THE COURT: We had 36 prospective jurors. Four of 

them I struck for cause. So we were down to 32. Now, it did 

cross the Court’s mind to reduce the amount of strikes to give 

the State, but both sides have kind of hinted this trial they think 

was going to take maybe one day. So I didn’t do that. Like I 

said, I was telling Mel this morning, the only law I can ever 

quote in Murphy’s law, and I forgot it for just a moment 

yesterday. And that’s why we’re in the shape we’re in. But 

give me just a minute to read through this Hill case,2 and I’d 

rather acquiesce to the defense’s request for a continuance. I 

can try it in January, and I’ve already called Bowie County. 

I’ve got a week available in January.

MR. TURNER: And my client prefers, and I don’t 

guess he can insist, but he would urge the Court to --

THE COURT: The word insist don’t bother me. I don’t 

mind. Val, what’s the State’s position?

MR. VARLEY: Well, Judge, if we need to go forward, if 

that Hill case says we shall go forward, then I think we better 

go forward.

THE COURT: Give me just a few minutes to look at it.

MR. TURNER: Well, it occurs to me that my client can 

waive any error on the record and that we can’t -- if we cannot 

-- if we can waive it and can’t raise it on appeal, then --

 

2 Hill v. State, 90 S.W.3d 308 (Tex. Crim. App. 2002).
26

RR, Vol. 6, pgs. 13-14. An alternate juror was not be chosen. CR, pg. 59.

a. An Alternate Juror Was Not Available.

As set forth above, an alternate juror was not available to the trial 

court. See RR, Vol. 6, pgs. 13-14. So, the present case was not governed 

by article 33.011(b) and article 36.29(c). See Romero v. State, 396 S.W.3d 

136, 149-50 (Tex. App.--Houston [14th Dist.] 2013, no pet.). Further, article 

36.29(c) did not govern this situation because the charge of the court had not 

yet been read to the jury. See Tex. Code Crim. Proc. Ann. art. 36.29(c) 

(West Supp. 2014) (“[a]fter the charge of the court is read to the jury, . . .”).

b. A Previously-Dismissed Venire Member Was Not Available.

Also, a previously-dismissed venire member was not available to the 

trial court, so the present case was not governed by Hegar v. State, 11 

S.W.3d 290 (Tex. App.--Houston [1st Dist.] 1999, no pet.). Under Hegar, 

the trial court was required to give the defendant the choice between eleven 

jurors or a mistrial when a disabled juror was dismissed and the trial court 

sought to empanel a previously dismissed venire member. See Castro v. 

State, 233 S.W.3d 46, 50 (Tex. App.--Houston [1st Dist.] 2007, no pet.) 

(citing Hegar, 11 S.W.3d at 294).

c. The Trial Court Did Not Abuse its Discretion by Proceeding 

with a Less Drastic Alternative to a Mistrial.

In the present case, the trial court heard and considered Lamon’s 
27

argument for a mistrial, as follows:

MR. TURNER: It occurs to me, Judge, that the Court 

has wide latitude in granting a mistrial during the course of a 

case. It would seem to me that with my client’s consent and 

urging that the Court can simply declare a mistrial and retry the 

case in January. I cannot -- it does not seem reasonable to me 

that an appellate Court can take all the discretion from a Trial 

Court in a matter like this. I do not see, on reflection, that this 

is any kind of reversible error, particularly since my client and I 

will be happy to put him on the stand and testify under oath that 

this is what he wants. I do not see that there is any error in the 

Court granting a mistrial because of what happened and letting 

us retry this case in January. We wouldn’t be here today if Mr. 

Yaross had respond (sic?) -- I asked on voir dire is there any 

reason that you should not -- somebody cannot be fair or could 

not serve on this jury. Had he acknowledged that with the 

other strikes for cause, we would not have had sufficient 

number of people to select a jury. So I understand, but it just 

occurs to me that there is nothing improper.

THE COURT: Dave, and I think when I first thought 

about what happened yesterday afternoon on the drive back to 

Bowie County yesterday, I was thinking along the same lines. 

Let me read you just two sentences out of this opinion, those 

which I think require me. It says, in this case, and they’re 

talking about this Hill case, proceeding to trial with 11 jurors 

would not have been -- it would not have been impossible to 

arrive at a fair verdict or continue with trial because Article 

36.29(a) required it. Likewise, it would not present automatic 

reversible error on appeal. This is the part that I’m paying 

attention to, because the procedure is not just authorized but 

compelled by the statute. So I read that as telling me I have to 

proceed.

See RR, Vol. 6, pgs. 15-17. 

From the exchange above, the trial court was obviously concerned 

with the granting of a mistrial because it would “present automatic reversible 
28

error on appeal.” See RR, Vol. 6, pg. 16. That was why the trial court, in 

the exercise of its discretion, proceeded with eleven jurors as a less drastic 

alternative to a mistrial and denied Lamon’s oral motion over his “exception 

on the record, [and] [his] objection to continuing the case . . . over to another 

date.” See RR, Vol. 6, pg. 18. As explained above, the trial court had no 

alternate juror and no previously-dismissed venire member to replace juror 

Yaross. See Romero, 396 S.W.3d at 149-50; Tex. Code Crim. Proc. Ann. 

art. 36.29(c); Castro, 233 S.W.3d at 50. So, the trial judge denied Lamon’s 

oral motion for mistrial and proceeded with eleven jurors because “the 

procedure [was] not just authorized but compelled by statute.” See RR, Vol. 

6, pg. 17. Further, the trial judge didn’t “think the juror [Yaross] was 

excused erroneously.”

3

 See RR, Vol. 6, pg. 17.

Under these circumstances, the trial judge decided to proceed with 

eleven jurors (RR, Vol. 6, pg. 81), and that ruling should not be disturbed for 

an abuse of discretion because it was within the zone of reasonable 

disagreement as a less drastic alternative to Lamon’s oral motion for 

mistrial. See Ricketts v. State, 89 S.W.3d 312, 318 (Tex. App.--Fort Worth 

2002, pet. ref’d) (“Notably, it is within the trial court’s sound discretion to 

 

3 To this finding by the trial court, the appellant, Lamon, presented no objection to the 

trial court’s determination of the juror being “disabled” or “unable to serve.” See Tex. 

R. App. P. 33.1(a). Rather, the appellant, Lamon, moved for a mistrial.
29

consider less drastic alternatives to a mistrial.”). When a trial judge grants 

a mistrial despite the available option of less drastic alternatives, there is no 

“manifest necessity” prompting a mistrial and an appellate court will find an 

abuse of discretion. See id.

As applied here, no abuse of discretion occurred because the trial 

judge had the available option of a less drastic alternative (i.e. proceed with 

eleven jurors), and it was within the zone of reasonable disagreement to 

proceed with that available option. Further, the trial judge felt “compelled 

by statute” (RR, Vol. 6, pg. 17) to proceed with eleven jurors because “it 

would not have been impossible to arrive at a fair verdict or continue with 

trial.” See RR, Vol. 6, pg. 16. The trial judge said, “they’re talking about 

this Hill case.” See RR, Vol. 6, pg. 16.

(1) Hill v. State, 90 S.W.3d 308 (Tex. Crim. App. 2002).

In Hill, the case upon which the trial judge relied, voir dire began in a 

capital murder case on a Tuesday morning and concluded the following 

morning. See Hill, 90 S.W.3d at 310. The jury was sworn in on 

Wednesday and told to return the next day for the trial to begin. See id. 

On Wednesday afternoon, one of the jurors called the court “hysterical,”

saying she couldn’t continue.” See id. This juror explained that she 

suffered from “debilitating panic attacks when placed under stressful 
30

situations” and should not “participate in jury decision-making due to the 

emotional stress.” See id. A physician’s note stated that the juror suffered 

from “generalized anxiety disorder and possible panic disorder with stressful 

situations.” See id.

After a brief hearing, the trial court, on its own motion, declared a 

mistrial. See id. Both the State and the defendant objected, and the trial 

court overruled the objections. See id. Subsequently, the defendant filed a 

motion to dismiss on the basis of double jeopardy, which the trial court 

denied. See id at 310-11. A second voir dire began, with a second jury 

being sworn in, and the trial commenced. See id at 311. The defendant, 

Hill, was convicted of capital murder and sentenced to life in prison. See

id.

On appeal, the appellant, Hill, argued that the second prosecution 

violated double jeopardy. See id. In an unpublished opinion, the court of 

appeals agreed and reversed the conviction. See id. The court of appeals 

held that the record did not reflect that the judge had considered less drastic 

alternatives to a mistrial, such as proceeding to trial with eleven jurors. See

id. The Texas Court of Criminal Appeals granted the State’s petition for 

review. See id.

In Hill, the Court of Criminal Appeals held that the State could not 
31

satisfy its burden of proving manifest necessity for the mistrial because the 

record did not reflect that the trial court considered less drastic alternatives. 

See id. at 314. In Hill, the Court of Criminal Appeals concluded that the 

record did not demonstrate manifest necessity for a mistrial. See id.

In Hill, the Court reasoned that to show manifest necessity for the 

mistrial, the State would have to show that there was no less drastic 

alternative available. See id. In Hill, the Court concluded that “proceeding 

to trial with eleven jurors was not just an available alternative in this case[;] 

[i]t was a mandatory alternative under our constitutional, statutory, and case 

law.” See id. at 315. Regardless of consent, the judge was required to 

proceed to trial with eleven jurors. See id.

(2) Subsequent Cases to Hill, 90 S.W.3d at 315.

In an unpublished opinion, the Tyler Court of Appeals has held that 

“[o]ne example of a less drastic alternative to a mistrial when a juror 

becomes unable to serve is to continue with less than twelve jurors.” See

Joseph M. Martel v. The State of Texas, No. 12-07-00034, 2008 WL 257367, 

2008 Tex. App. LEXIS 652, at * 6 (Tex. App.--Tyler January 31, 2008, no 

pet.) (mem. op., not designated for publication). In Martel, the Court held 

that “[i]n fact, it is reversible error for a trial court not to continue with 

eleven jurors in such a situation.” See id (citing Hill, 90 S.W.3d at 315). 
32

In another unpublished opinion, the Eastland Court of Appeals held 

that “[w]here, 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.” See Tracy Lee 

Thurman v. The State of Texas, No. 11-10-00086-CR, 2011 WL 3890564, 

2011 Tex. App. LEXIS 7225, at * 5 (Tex. App.--Eastland August 31, 2011, 

no pet.) (mem. op., not designated for publication) (citing Article 36.29(a)). 

In Thurman, the Court held that “the trial court did not err by proceeding 

with the trial with the remaining eleven jurors.” See Thurman, 2011 Tex. 

App. LEXIS 7225, at * 6.

Under Hill and subsequent cases, the trial court did not abuse its 

discretion in proceeding with eleven jurors as a less drastic alternative to the 

appellant’s requested mistrial. See Hill, 90 S.W.3d at 315; Martel, 2008 

Tex. App. LEXIS 652, at * 6; Thurman, 2011 Tex. App. LEXIS 7225, at * 5. 

This Court should hold accordingly. Because the trial court did not abuse 

its discretion, Lamon’s sole issue/point of error should be overruled.

2. Even if the Trial Court Erred in Removing Juror Yaross, the 

Record Did Not Reveal Harm.

Even assuming the trial court abused its discretion in removing juror 

Yaross and/or erred in finding that juror Yaross was “disabled” or “unable to 
33

perform,” the next step would be to determine whether the error resulted in 

harm. See Whitehead, 437 S.W.3d at 556; Chavez v. State, 134 S.W.3d 244, 

245 (Tex. App.--Amarillo 2003, pet. ref’d) (on remand). The burden to 

demonstrate whether appellant was harmed by trial court error did not rest 

on appellant or the State. See Chavez, 134 S.W.3d at 245.

Because Lamon complained of a statutory violation and did not claim 

a violation of his constitutional rights, any harm analysis should be 

conducted pursuant to Rule 44.2(b) of the Texas Rules of Appellate 

Procedure. See Whitehead, 437 S.W.3d at 556. Rule 44.2(b) provided that 

an appellate court must disregard a nonconstitutional error that does not 

affect a criminal defendant’s “substantial rights.” See id; Chavez, 134 

S.W.3d at 245. An error affects a substantial right of the defendant when 

the error has a substantial and injurious effect or influence in determining 

the jury’s verdict. See Whitehead, 437 S.W.3d at 556 (citing Scales, 380 

S.W.3d at 786).

To support his contention of harmful error, Lamon likened the 

erroneous removal of a juror to the erroneous grant of a challenge for cause. 

See Appellant’s Brief, pg. 17 (citing Ransom v. State, 920 S.W.2d 288 (Tex. 

Crim. App. 1996)). Beyond that in his brief, Lamon provided no further 

argument or authorities, but a review of this record should not reveal any 
34

harm. 

This record should not reveal any harm because the trial court 

removed juror Yaross before he could have any effect or influence on the 

jury’s verdict. In the present case, the trial court removed juror Yaross 

before the remaining eleven members of the jury heard any testimony, or 

considered any evidence. So, juror Yaross could not have had any effect or 

influence on the jury’s verdict during the trial. See Tex. R. App. P. 44.2(b).

Here, unlike Scales, the jury was not seemingly deadlocked and did 

not return a guilty verdict until after the trial court removed the “disabled”

juror. See Scales, 380 S.W.3d at 786-87. Here, the trial court removed 

juror Yaross before the jury commenced any deliberations.

Further, a review of this record disclosed that juror Yaross was 

concerned about the punishment phase (RR, Vol. 6, pgs. 9, 10) and “if we 

do find that the evidence is against him, what will I feel then.” See RR, Vol. 

6, pg. 9. As juror Yaross responded to questions from Lamon’s trial 

counsel, he said, “I got a strike against you.” See RR, Vol. 6, pg. 11. In 

essence, juror Yaross seemed unable to consider a minimum range of 

punishment. See RR, Vol. 6, pg. 10. Thus, the trial court’s removal of 

juror Yaross might have been beneficial to Lamon, and not harmful, because 

juror Yaross did not participate in the punishment phase and did not 
35

deliberate with the other jurors in assessing Lamon’s punishment at twelve 

(12) years. So, the removal of juror Yaross did not have any effect or 

influence on the jury’s assessment of punishment. As a final consideration, 

the jury’s assessment of punishment was within the applicable range of 

punishment (2 to 20 years) and twelve (12) years of confinement was 

certainly not the maximum punishment.

In conclusion, a review of this record should not reveal any harm. 

See Tex. R. App. P. 44.2(b). Accordingly, the appellant’s, Lamon’s, sole 

issue/point of error should be overruled and the final judgment of conviction 

should be affirmed.
36

PRAYER

WHEREFORE, PREMISES CONSIDERED, the State of Texas prays 

that upon final submission upon oral argument, this Court should affirm the 

trial court’s final judgment of conviction in all respects; adjudge court costs 

against the appellant and for such other and further relief, both at law and in 

equity, to which the State may be justly and legally entitled.

Respectfully submitted,

Val J. Varley, County and District Attorney

Red River County Courthouse

400 North Walnut Street

Clarksville, Texas 75426-4012

(903) 427-2009

(903) 427-5316 (fax)

valvarley@valornet.com

By: /s/ Val Varley 

 Val J. Varley, County-District Attorney

 SBN# 20496580

ATTORNEYS FOR THE STATE OF TEXAS
37

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, 

the “State’s Brief” was a computer-generated document and contained 7,107

words--not including the Appendix (not applicable here). The undersigned 

attorney certified that he relied on the word count of the computer program, 

which was used to prepare this document.

/s/ Val Varley 

Val J. Varley

valvarley@valornet.com

CERTIFICATE OF SERVICE

This is to certify that in accordance with Tex. R. App. P. 9.5, a true 

copy of the “Appellee’s (State’s) Brief” has been served on the 9

TH day of 

April, 2015 upon the following:

Troy Hornsby

Miller, James, Miller & Hornsby, L.L.P.

1725 Galleria Oaks Drive

Texarkana, TX 75503

troy.hornsby@gmail.com

/s/Val Varley 

Val J. Varley

valvarley@valornet.com