Opinion filed July 15, 2010

In The

Eleventh Court of Appeals 

__________

No. 11-08-00312-CR

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VERNON LEE WILLIS, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 104th District Court

Taylor County, Texas

Trial Court Cause No. 16695B

O P I N I O N

The grand jury indicted Vernon Lee Willis on one count of possession with intent to 

deliver cocaine in an amount of more than 4 grams and less than 200 grams. The second count 

of the indictment charged the offense of possession of the same cocaine in an amount of more 

than 4 grams and less than 200 grams, but omitted the charge that Willis intended to deliver it. 

The jury found Vernon Lee Willis guilty of the offense of possession of cocaine in an amount of 

more than 4 grams and less than 200 grams as charged in the second count. The offense was 

enhanced by a prior conviction for burglary of a habitation. Willis pleaded true to the 

enhancement allegation, and the trial court assessed Willis’s punishment at confinement for 

twenty years. We affirm.
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There is no challenge to the sufficiency of the evidence, and there is no need to detail it. 

Suffice it to say, the evidence shows that Willis was personally in possession of the cocaine 

when approached by law enforcement officers.

Willis presents two points of error. First, he claims that the trial court erred when it 

proceeded to try him before a jury of eleven members. In his second issue, Willis maintains that 

the trial court erred when it submitted a jury charge on the law of parties without limiting it to 

the offense of possession with intent to deliver.

On the morning after the jury was seated and sworn, and opening statements had been 

made, the bailiff notified the trial court that one of the jurors had informed him that he had been 

convicted of a felony. The conviction occurred some twenty years earlier. The juror had 

received probation and had forgotten about it.

When the matter was brought to the attention of the trial court, it asked the prosecutor 

how the State wanted to proceed. The prosecutor responded that the juror was disqualified but

that they should proceed with eleven jurors. The prosecutor also told the court that a mistrial 

would not be appropriate because the trial court was obligated first to take less drastic measures. 

It was the State’s position that the law allowed them, by agreement, to continue the trial with 

eleven jurors and that was a less drastic way in which to proceed.

When the trial court asked Willis’s attorney to respond, he said, “Judge, I think I’m in 

agreement [with] Joel [the State’s attorney]. I mean, just for judicial economy. Instead of 

bringing 48, 50 more people down here, you know, requesting a mistrial, reseating them, the 

Code does provide to proceed with 11, and so.” At that point, the trial court interrupted, “Okay. 

All right.”

TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (Vernon Supp. 2009) provides in relevant 

part: “Not less than twelve jurors can render and return a verdict in a felony case.” There are 

exceptions to that provision. The exception here is contained in TEX. GOV’T CODE ANN.

§ 62.201 (Vernon 2005). That provision contains the following language: “The jury in a district 

court is composed of 12 persons, except that the parties may agree to try a particular case with 

fewer than 12 jurors” (emphasis added).

The plain language of Section 62.201 draws no distinction between civil and criminal 

cases. Hatch v. State, 958 S.W.2d 813, 816 (Tex. Crim. App. 1997). Section 62.201 applies to 

criminal cases. Id. at 817.
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However, there is a distinction between the complete waiver of a jury trial and an

agreement to be tried by a jury of less than twelve persons. Id. at 816. In the latter instance, the 

defendant is still claiming his right to a jury trial, albeit with less than twelve members. Id. The 

various requirements for waiver of a jury trial set out in TEX. CODE CRIM. PROC. ANN. arts. 1.13, 

1.14, 1.15 (Vernon 2005), do not apply to situations in which there is an agreement by the 

parties to try the case before a jury of less than twelve persons, as opposed to a complete waiver 

of a jury. Butler v. State, 119 S.W.3d 404, 407 Tex. App.—Waco 2003, pet. ref’d). What is 

required under Section 62.201 is a record that affirmatively establishes the agreement of the 

parties to try the case with less than twelve jurors. Hatch, 958 S.W.2d at 815-16; Roberts v. 

State, 987 S.W.2d 160, 163 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d).

Here, after the juror’s disqualification became known, the trial court asked the prosecutor 

to comment upon the State’s position on whether to proceed. The prosecutor advised the trial 

court that they should proceed with eleven jurors as a less drastic measure than a mistrial. 

Willis’s attorney agreed with him. After the trial court dismissed the juror, both attorneys were 

asked if they were ready for the jury to be brought in. They both responded that they were, and 

the testimony began.

We hold that this record affirmatively establishes the agreement of the parties to try the 

case before a jury of less than twelve members in accordance with Section 62.201 of the Texas 

Government Code. Willis’s first point of error is overruled.

 In his second point, Willis contends that the trial court erred when it instructed the jury 

on the law of parties and did not limit the application of the law of parties to the offense of 

possession with intent to deliver. The trial court gave the jury an abstract instruction on the law 

of parties. However, the court did not, directly or indirectly, include the law of parties either in 

the application paragraph for count one or in the application paragraph for count two.

When an abstract charge is given on a theory of law not raised by the evidence, without 

specific application to the facts of the case, the trial court does not err when it overrules an 

objection to the abstract charge. Hughes v. State, 897 S.W.2d 285, 297 (Tex. Crim. App. 1994).

The court of appeals addressed an issue similar to the one before us in Wappler v. State, 

104 S.W.3d 661 (Tex. App.—Houston [1st Dist.] 2003), rev’d on other grounds, 138 S.W.3d 

331 (Tex. Crim. App. 2004). Wappler contended that the trial court erred when it submitted the 

following charge to the jury: “Nothing in the law prohibits the admission of a statement made by 

the accused that is the res geste [sic] of the arrest or of the offense.” Wappler, 104 S.W.3d at 
4

669. The State agreed with Wappler that the instruction was not raised by the evidence. 

However, the State also argued that no reversible error was shown because the charge was a 

correct statement of the law, was given to the jury only in the abstract jury instructions, and was 

not applied to the specific facts of the case. Relying on Hughes, the court of appeals agreed and 

held that the trial court did not err when it overruled Wappler’s objection to the charge. 

Wappler, 104 S.W.3d at 669.

The situations in Hughes, in Wappler, and in this case are to be distinguished from those 

situations where the charge contains an abstract instruction on the theory of law on which the 

accused is prosecuted but does not contain an application paragraph applying that law to the 

facts. In those situations, such failure deprives an accused of a fair trial. Jones v. State, 815 

S.W.2d 667, 670 (Tex. Crim. App. 1991). 

We hold that, when an abstract charge is given on a theory of law not raised by the 

evidence, in which the law is correctly stated, without specific application to the facts of the 

case, the trial court does not err when it overrules an objection to the abstract charge. Here, the 

trial court correctly stated the law of parties in an abstract instruction and did not apply the 

abstract instruction on the law of parties to the facts of this case as to either charge in the 

indictment. Accordingly, the jury was not authorized to convict Willis by applying the law of 

parties. Hughes, 897 S.W.2d at 297. The trial court did not err when it overruled Willis’s 

objection to the court’s charge. The second point of error is overruled.

We affirm the judgment of the trial court.

JIM R. WRIGHT

CHIEF JUSTICE

July 15, 2010

Publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange. J.