### NO. TO THE COURT OF CRIMINAL APPEALS OF THE STATE OF TEXAS

NO. 10-14-0347-CR

IN THE COURT OF APPEALS

FOR THE TENTH SUPREME JUDICIAL DISTRICT OF TEXAS

AT WACO, TEXAS
CLINTON DOUGLAS MILLS,

Appellant V. THE STATE OF TEXAS, Appellee

PETITION FOR DISCRETIONARY REVIEW

JOHN DONAHUE ATTORNEY FOR APPELLANT TBA #05968300 CLINTON DOUGLAS MILLS 204 N. 6 th 

### St. Waco, Texas 76701 (254) 752-9090 (254) 753-1232 FAX Texascriminalattorney@yahoo.com

ORAL ARGUMENT REQUESTED PD-1595-15 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 12/7/2015 5:53:10 PM Accepted 12/10/2015 5:16:42 PM

ABEL ACOSTA CLERKi 

### SUBJECT INDEX PAGE Identification of the parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii List of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv GROUND FOR REVIEW 1. Whether the Court of Appeals erred in failing to conduct an Almanza analysis of Mills’ claim that the prosecutor errone ously asked the jury to speculate as to Mills’ reasons for selecting the ju ry to assess punishment. 2. Whether the Trial Court erred in ruling a juror dis abled and discharging him from jury service. Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Procedural History of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of Facts Pertinent To Petitioner's Grounds for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Ground for Review Number One (Restated) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Reasons for Review as to Ground for Review Number O ne . . . . . . . . . . . . . . . . . 4 Arguments and Authorities in Support of Petitioner’ s Ground for Review Number One . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Ground for Review Number Two (Restated) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Reasons for Review as to Ground for Review Number T wo . . . . . . . . . . . . . . . . . 7 Arguments and Authorities in Support of Petitioner’ s Ground for Review Number Two . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7ii



### Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 APPENDIX - Opinion of 10 th 

### Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . endiii 

### STATEMENT REGARDING ORAL ARGUMENT Petitioner respectfully asserts that this Court wou ld be aided in the resolution of the matters which are the subject of this Petiti on for Discretionary Review if oral argument were granted. Therefore, Petitioner respe ctfully requests that this Court set this case for oral argument.

IDENTIFICATION OF THE PARTIES Pursuant to Tex.R.App. 68.4(a), a complete list of the names of all interested parties is provided below: Abelino “Abel” Reyna - District Attorney of McLenna n County, Texas Robert Moody, Amanda Dillon - Assistant District At torneys 219 N. 6 th 

### St., Waco, TX 76701 Clinton Douglas Mills - Appellant #01969510 McConnell Unit 3001 S. Emily Dr. Beeville, TX 78102 Sam Martinez - Counsel for Appellant in trial court 1105 Wooded Acres, Suite 200, Waco, TX 76710 John Donahue - Counsel for Appellant on appeal 204 N. 6 th 

### St., Waco, TX 76701 Hon. Ralph T. Strother - Presiding Judgeiv 

### LIST OF AUTHORITIES CASES PAGE Allen v. State , 867 S.W.2d 427 (Tex. App.--Beaumont 1993, no pet. ) . . . . . . . . . 9 Almanza v. State , 686 S.W.2d 157 (Tex.Crim.App. 1985) . . . . . . . . . . . . . . . . . 4,5 Boykin v. State , 818 S.W.2d 782 (Tex. Crim. App. 1991) . . . . . . . . . . . . . . . . . . . 8 Brooks v. State , 990 S.W.2d 278, 286 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . 7 Cockrell v. State , 933 S.W.2d 73, 89 (Tex. Crim. App.1996) . . . . . . . . . . . . . . . . 4 Dumesnil v. State, 2002 Tex.App.Lexis 344 (Tex.App.-- Houston [14 th 

### Dist.] 2002, no pet.)(unpublished) . . . . . . . . . . . 4 Edwards v. State , 981 S.W.2d 359 (Tex. App.--Texarkana 1998, no pet .) . . . . . . 9 Freeman v. State , 838 S.W.2d 772 (Tex. App.--Corpus Christi 1992, p et. ref'd) . 9 Hill v. State, 90 S.W.3d 308 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . 7,8 Owens v. State , 202 S.W.3d 276 (Tex.App.–Amarillo 2006, pet. ref’ d) . . . . . . . . 8 Reyes v. State , 30 S.W.3d 409 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . 9 Sanchez v. State, 138 S.W.3d 324 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . 8 Villareal v. State , 453 S.W.3d 429 (Tex. Crim. App. 2015) . . . . . . . . . . . . . . . . . . 5 Wesbrook v. State , 29 S.W.3d 103 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . 6 STATUTES TEX. CODE CRIM. PROC. ANN. art. 36.29 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,81 

### STATEMENT OF THE CASE This is an appeal from a jury trial on punishment i n the 19 th 

### District Court, McLennan County, Texas, the Honorable Ralph T. Stro ther, presiding, Cause Number 2012-1455-C1. The State instituted proceedings aga inst the Appellant, Clinton Douglas Mills, for the offense of murder, a first d egree felony. Tex. Penal Code §19.02. Mills pleaded guilty to the Trial Court be fore trial and elected to have his punishment assessed by the jury. Punishment was as sessed by the jury at life in TDC. No fine was imposed. STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE On November 13, 2014, Mr. Mils timely filed his Not ice of Appeal. His brief was filed on September 9, 2015. The State’s reply brief was filed on October 8, 2015. On November 5, 2015, the Tenth Court of Appeals iss ued an opinion overruling Mills’ points of error and affirming his conviction and sentence. No motion for rehearing was filed. This petition f or discretionary review is being filed within 30 days of the Court of Appeal’s opinion. See Tex.R.App.Proc. 4.1.2 

### STATEMENT OF FACTS In July, 2012, Matthew Ray Easley was found at his house, unconscious. He had been beaten, suffering severe head injuries. H e later died from those injuries. Three individuals were later identified as the peop le responsible, Shane Sims, Joe Guitierrez, Jr., and Clinton Douglas Mills. Mills was the first to be tried. He pleaded guilty to the charge of murder and elected to have the jury assess his punishment. During the voir dire, the prosecutor asked the jury to speculate as to reasons why the defense would choose to have the jury asses s punishment as opposed to the jury. (R. 6, ppg. 70-72). The jurors answered w ith various different opinions, some of which were agreed to by the prosecutor. The pro secutor also, when speaking with a juror, also suggested some reasons, seeing if the panel agreed with that. These reasons included to wanting more emotion from the j ury; the judge seeing these cases on a daily basis. In response to a juror’s comment about appealing to emotion, the prosecutor mentioned that the judge might have seen too many of these and might be jaded. At the conclusion of the trial, after the defense h ad rested, Juror number 2 had a meeting with the judge. During the defense case, a photograph of Mills’ family was introduced into evidence. In the photograph were M ills’ son and the child’s mother. The juror stated that he lived four doors down from the mother but was not aware of3



### the relationship to Mills because she did not have the same last name as Mills. The juror said he socialized with the mother and saw th e child on a daily basis. The juror claimed to have been suffering some emotional distr ess and stated that he would be unable to reach a verdict sending defendant to pris on. The juror did not know Mills, nor Mills’ family, nor had the juror spoken to the mother about this case. In the end, the Trial Court declared the juror disabled and dis missed him. (R. 8, ppg. 75-86). The Trial Court asked the defense to agree to proce ed with 11 jurors. The defense declined and objected to the dismissal of the juror . This objection was overruled. (R. 8, pg. 83). Court of Appeals As to Mills’ first point of error, the Court of App eals held that the error was waived by the failure to object in the trial court. As to Mills’ second point of error, the Court of Ap peals held that the trial court did not abuse his discretion in declaring the juror disabled.4



### GROUND FOR REVIEW NUMBER ONE (RESTATED) Whether the Court of Appeals erred in failing to conduct an Almanza analysis of Mills’ claim that the prosecuto r erroneously asked the jury to speculate as to Mills’ reasons for sele cting the jury to assess punishment. REASONS FOR REVIEW AS TO GROUND FOR REVIEW

NUMBER ONE The Court of Appeals has decided an important quest ion of state or federal law that has not been, but should be, se ttled by the Court of Criminal Appeals. ARGUMENTS AND AUTHORITIES IN SUPPORT OF PETITIONER’S GROUND FOR REVIEW NUMBER ONE The Court of Appeals did not address the merits of Mr. Mills’ claim. The Court held simply that since there was no objection , the error was waived. Mills had argued, however, that the failure of trial counsel to object should be excused in this

case. Mills acknowledged the general rule that complain o n appeal an appellant must show he objected and pursued his objection to an ad verse ruling.” Cockrell v. State , 933 S.W.2d 73, 89 (Tex. Crim. App.1996). Otherwise, an appellant forfeits his right to complain. Id . However, in this case Mills urges that the Court adopt the reasoning of Almanza v. State , 686 S.W.2d 157 (Tex.Crim.App. 1985), as applied i n Dumesnil v. State, 2002 Tex.App.Lexis 344 (Tex.App.-- Houston [14 th 

### Dist.] 2002, no5



### pet.)(unpublished). By this, Mills means that in t hose instances where the prosecutor’s conduct (like an erroneous jury charge ) is so egregious as to deprive the accused of a fair trial, the failure to object shou ld be excused. The Court of Appeals’ opinion addressed Mr. Mills’ claim without conducting an analysis using the reasoning of Almanza

. Almanza has not been overruled or disavowed by the Court of Criminal Appeals. To the contrary, the Almanza analysis has been used recently in Villareal v. State , 453 S.W.3d 429 (Tex. Crim. App. 2015). Mills contends that when the record Is reviewed in its entirety, it becomes apparent that the error above was not harmless. Mi lls had never before been convicted of a felony. Two other people were invol ved in the offense. Yet Mills received a life sentence. The complainant was susp ected of being a daily user and drug dealer who was using methamphetamine to keep M ills around. The notion that the prosecutor’s actions had an impact was apparent during the voir dire of defense attorney. See R. 6, pg. 137). Parroting the prosecutor, Juror 3 3 asked Mr. Martinez why the defense had chosen to have the jury assess punishment as opposed to the judge: “...even though the judge is there and fair and balanced.” Once this issue was introduced by the prosecutor, the defense was unabl e to overcome the question in the jurors’ minds. By bringing up the issue during voir dire, the pros ecutor encouraged the jury6



### to speculate as to why a defendant would not want t he judge to assess punishment. The responses are mentioned above. In this manner , the prosecutor encouraged the jury to suggest that there may be evidence or reaso ns outside the record for the defendant’s decision. The actions of the prosecut or were a deliberate move on her part to deprive Mills of a fair trial. See Wesbrook v. State , 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Voir dire error affects the trial from the very beg inning. The prosecution goes first in the process and is able to infect the tria l from that point forward. The defense can attempt to ameliorate the error introduced by t he prosecution, but it is difficult to quantify its effect in voir dire. Mr. Mills conten ds that the Court of Appeals should have reviewed the error using the Almanza analysis and asks the Court to remand the case for that analysis.7



### GROUND FOR REVIEW NUMBER TWO (RESTATED) Whether the Trial Court erred in ruling a juror dis abled and discharging him from jury service. REASONS FOR REVIEW AS TO GROUND FOR REVIEW

NUMBER TWO The Court of Appeals has decided an important quest ion of state or federal law that has not been, but should be, se ttled by the Court of Criminal Appeals. ARGUMENTS AND AUTHORITIES IN SUPPORT OF PETITIONER’S GROUND FOR REVIEW NUMBER TWO If a juror becomes disabled after the beginning of a felony trial, the trial court may excuse the juror and proceed with the remaining eleven jurors. Art. 36.29 Tex.Code Crim. Proc. The language of Article 36.29 of the Texas Code of Criminal Procedure and the cases applying it make clear that the Legislature's intent was to limit the Article's application to those cases wher e the juror was physically or mentally impaired in some way which hindered his ab ility to perform his duty as a juror. Brooks v. State , 990 S.W.2d 278, 286 (Tex. Crim. App. 1999). A j uror is disabled if she has a "physical illness, mental con dition, or emotional state" which hinders her ability to perform her duties as a juro r. Hill v. State, 90 S.W.3d 308, 315 (Tex. Crim. App. 2002). The overall goal when interpreting a statute is to give effect to the collective8



### intent or purpose of the Legislature that enacted t he statute. Boykin v. State , 818 S.W.2d 782,785 (Tex. Crim. App. 1991). To do so, on e must focus on the literal text of the statute and try to discern the fair, objecti ve meaning of that text. Id . If the meaning of the text is clear and unambiguous, the c ourt should give effect to that meaning. Sanchez v. State, 138 S.W.3d 324, 325 (Tex. Crim. App. 2004). If however, the statute is ambiguous or the plain mean ing of the statute would lead to absurd consequences that the Legislature could not possibly have intended, extratextual sources may "then and only then, out o f absolute necessity," be consulted. Id

. Mills contends that article 36.29, and the cases in terpreting it, demonstrate that the trial court erred in excusing the juror in this case. In Hill v. State, supra , the Court of Criminal Appeals affirmed the district cou rt’s declaration of disability since the juror was unable to perform her duties due to “ debilitating panic attacks”. Id . In Owens v. State, 202 S.W.3d 276 (Tex.App.–Amarillo 2006, pet. ref’d ), the excused juror informed the trial court that she was unable to obtain care and transportation for her special needs child. The juror was a single pa rent whose only relative was a 94 year old mother in a nursing home. Because of the problems with her child, she was unable to focus her attention on the trial. The dismissal of jurors as "disabled from sitting" have been upheld for varied9



### reasons beyond physical illness. See e.g., Edwards v. State , 981 S.W.2d 359, 366-7 (Tex. App.--Texarkana 1998, no pet.) (juror's inabi lity to find child care for son led trial judge to believe that she could not be fair j uror or impartially deliberate upon evidence); Allen v. State , 867 S.W.2d 427, 429-30 (Tex. App.--Beaumont 1993, no pet.) (juror distraught over two family deaths with in twenty-four hour period); Freeman v. State , 838 S.W.2d 772 (Tex. App.--Corpus Christi 1992, p et. ref'd) (juror who provided sole financial support for his family so concerned about absence from job that he did not feel that he could be attentive during trial). Reyes v. State , 30 S.W.3d 409, 411 (Tex. Crim. App. 2000). Mills contends, however, that a fundamental differe nce exists between the impairment of a juror’s ability to perform her func tions and the mere desire to avoid having to do them. The cases cited above deal with situations where the juror’s ability to perform their duties would be impaired w hether the trial proceeded or was delayed. In the instant case, however, the juror’s “disability” was simply a desire to avoid having to perform his duties. Defense counse l made an effort to keep the juror on the panel. When the trial court declared the ju ror disabled, defense counsel objected, thus preserving error. The Court of Appeals cited to Reyes v. State , supra , for the proposition that the trial court properly considered the juror disabled. However, in Reyes , the Court of10



### Criminal Appeals held that knowledge of the defendant may result in rendering the juror disabled. None of the cases cited by the Cou rt of Appeals supported the notion that knowledge of a child with a girl to whom Mills was not married constituted such a disability. In summary, Mills contends that the trial court err ed in excusing the juror for a condition that, at most, was simply an effort on the juror’s part to avoid having to make a difficult decision. However, this kind of d ecision is one that jurors are called upon to make every day. To allow this ‘disability ’ to stand begs the question of where to draw the line between being able to perfor m the duties as a juror and not being able to do so. Therefore, Mills contends tha t his sentence should be reversed and a new trial ordered on punishment. Conclusion Mr. Mills, based on either or both of the above gro unds of review, contends that his sentence should be vacated and the case re manded to the trial court for a new trial on punishment. PRAYER WHEREFORE, PREMISES CONSIDERED, Mr. Mills respectfully requests that this Honorable Court review the transcript of the proceedings in this case, and after such review, determine that the Court of Appe als improperly decided his points11



### of error; reverse the decision of the Court of Appe als, and remand to the Court of Appeals with instructions to conduct an analysis un der Almanza as to ground for review number one. As to ground for review number two, the punishment should be vacated and the case remanded to the trial court fo r a new punishment trial. Respectfully submitted, /S/ John Donahue JOHN DONAHUE TBA #05968300 204N. 6 th 

### St. Waco, Texas 76701 (254) 752-9090 Fax (254) 753-1232 Texascriminalattorney@yahoo.com

CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing Corrected Petition for Discretionary Review was forwarded to the following on December 7, 2015 /S/ John Donahue JOHN DONAHUE Sterling Harmon Clinton Douglas Mills, #01969510 Ass’t District Attorney McConnell Unit McLennan County, Texas 3001 S. Emily Dr. Waco, TX 76701 Beeville, TX 78102 (254) 757-5084 (254) 757- 5021 Sterling.Harmon@co.mclennan.tx.us12



### CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4 Certificate of Compliance with Type-Volume Limitati on, Typeface Requirements, and Type Style Requirements 1. This brief complies with the type-volume limitat ion of T EX


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### . R. A PP


### . P. 9.4(i)(1), or, G this brief uses a monospaced typeface and contains _____ lines of text, excluding the parts of the brief exempted by T EX


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### . P. 9.4(i)(1). 2. This brief complies with the typeface requiremen ts and the type style requirements of T EX


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### . P. 9.4(e) because: O this brief has been produced on a computer in conv entional typeface using Corel Wordperfect 8.0 in Times New Roman 14 p oint font in the body of the brief and Times New Roman 12 point font in the footnotes. G this brief is a typewritten document printed in st andard 10 character per inch monospaced typeface.

/S/ John Donahue JOHN DONAHUE Attorney for Appellant Dated: December 7, 2015

### IN THE TENTH COURT OF APPEALS
No. 10 - 14 - 00347 - CR CLINTON DOUGLAS MILL S , Appellant v. THE STATE OF TEXAS , Appellee

From the 19th District Court McLennan County, Texas Trial Court No. 2012
- 1455 - C1

MEMORANDUM OPINION
In two issues, appellant, Clinton Douglas Mills, challenges the punishment
assessed in this murder case. See T EX
. P ENAL C ODE A NN
. § 19.02 (West 2011). Specifically, Mills contends that: (1) during voir dire, the prosecutor improperly asked the jury to

s peculate as to why he elected for the jury, rather than the judge, to assess punishment; and (2) the trial court committed reversible error in determining that a juror was disabled
under article 36.29 of the Code of Criminal Procedure

. See T EX
. C ODE C RIM
. P ROC
. A NN
.Mills v. State Page 2

art. 36.29 (West Supp. 2014). Because we overrule both of Mills’s arguments, we affirm the judgment of the trial court.
I. B ACKGROUND Here, Mills was charged for the murder of Matthew Ray Easley. See T EX
. P ENAL
C ODE A NN
. § 19.02. The record re flects that Mills was one of three co

- conspirators in the murder and that Mills was the first of the three to be tried. Prior to trial, Mills pleaded guilty to the charged offense and elected for a jury to assess his punishment. The trial court accepted Mills’s guilty plea and found him guilty of the charged offense. The case proceeded to the punishment phase. At the conclusion of the punishment phase, the jury assessed punishment Mills to life imprisonment in the Institutional Division of the Texas Dep artment of Criminal Justice. The trial court certified Mills’s right of appeal, and this appeal followed.
II. V OIR D IRE In his first issue, Mills argues that the prosecutor improperly asked the jury during voir dire to speculate as to why Mills elected to have a jury, rather than the judge, assess punishment.
A. Facts In his introductory remarks to the venire panel, the tri al judge noted that: This trial is going to be a little different because the Defendant in this case yesterday waived his right to a trial by jury at the guilt/innocence phase of the trial, pled guilty to the offense of murder and was found guilty ofMills v. State Page 3

murd er by the Court, so what the jury is going to be asked to determine in this case, “What is the proper punishment for the offense of murder?” Thereafter, during the State’s portion of voir dire, the following exchange
occurred: [The State]: Now the judge has told you that the

— it’s the

Defendant’s right to pick a judge or a jury to assess punishment, okay? He can say, “Judge, I want you to do it, or, no, I want twelve people of this county to do it.” Let’s see. Where did we stop when we were going throug h? I think we jumped over here, didn’t we? Thirty

- four, okay, Ms. White

— or, no, Mr. White, 34, why would someone, you think pick a jury instead of a judge to assess their punishment?
VENIREPERSON: Well, that becomes more of the

— the peers. The Judge

dea ls with it on a daily basis

— [The State]: Uh

- huh.
VENIREPERSON:

— and the

— the community doesn’t

— [The State]: Uh

- huh.
VENIREPERSON:

— so
— so they’ll look at it probably in a different

— [The State]: A different set of glasses?
VENIREPERSON: Yes. [The State]: Okay, what about Juror 35? Why do you think

someone would choose a jury over a judge to assess punishment?
VENIREPERSON: Hoping to appeal to emotion maybe. [The State]: Sure. Something maybe the Judge has seen too many

of these. He

— he’s jaded . Thirty

- six, why wouldMills v. State Page 4 someone pick a jury over a judge to assess punishment?
VENIREPERSON: You have more people involved in the process who can

argue together and bring out points you may have missed. Someone else will say, “Well, we missed this,” and you talk about it, and sometimes it takes a group. [The State]: “Sometimes it takes a group,” sure. Thirty

- seven, can

you think of any other reasons?
VENIREPERSON: No. I agree with all of those

— [The State]: Okay.
VENIREPERSON:

— that, you know, it’ s just better to have different

opinions

— [The State]: Uh

- huh.
VENIREPERSON:

— rather than the one. [The State]: Sure. I guess more people to convince?
VENIREPERSON: Yes. [The State]: Thirty

- eight.
VENIREPERSON: The same, twelve different emotions , twelve different

mindsets just going through it. [The State]: Does everybody kind of agree with that? Does

anybody have any other viewpoints on that?
THE VENIRE: (No response). Mills did not object to the aforementioned exchange; however, it is this exchange that forms the basis of his complaint in this issue.Mills v. State Page 5

B. Discussion Contentions that the State asked an improper question during voir dire require a timely and specific objection from the defendant at the earliest possible opportunity to
preserve err or. See T EX
. R. A PP
. P. 33.1(a); Penry v. State , 903 S.W.2d 715, 741, 764 (Tex. Crim. App. 1995); Ross v. State , 154 S.W.3d 804, 807 (Tex. App.

— Houston [14th Dist.] 2004, pet. ref’d); see also Wampler v. State , No. 11

- 13

- 00374

- CR, ___ S.W.3d ___, 2015 Tex . App. LEXIS 10155, at **4

- 5 (Tex. App.

— Eastland Sept. 30, 2015, no pet. h.). Because Mills failed to timely object to the complained

- of exchange, he has waived this complaint on appeal.
See T EX
. R. A PP
. P. 33.1(a); Penry , 903 S.W.2d at 764; Ross , 154 S. W.3d at 807; see also Wampler , 2015 Tex. App. LEXIS 10155, at **4

- 5. Nevertheless, despite the general rule regarding preservation, Mills urges this Court to apply the Almanza egregious

- harm standard to this issue. See generally Almanza
v. State , 686 S.W .2d 157 (Tex. Crim. App. 1985). This is essentially a fundamental

- error argument, which can be waived by failure to object in the trial court. See Mays v. State , 318 S.W.3d 368, 393

- 94 (Tex. Crim. App. 2010) (concluding that appellant failed to
preserve his complaints about “a series of egregiously improper remarks” by not objecting to those arguments at trial); Morris v. State , 460 S.W.3d 190, 197 (Tex. App.

— Houston [14th Dist.] 2015, no pet.) (“Appellant, however, argues that the jury argument
is incura ble fundamental error. Even if the State’s arguments were incurable and rose to the level that it deprived appellant of his right to due process of law, appellant waivedMills v. State Page 6

this complaint by failing to object in the trial court.”); see also Harvey v. State , No. 10

- 15

- 00067

- CR, 2015 Tex. App. LEXIS 9757, at **8

- 9 (Tex. App.

— Waco Sept. 17, 2015, no pet. h.) (mem. op., not designated for publication) (same). Because Mills did not object to the complained

- of exchange in the trial court, we are not persuaded by M ills’s reliance on Almanza in this issue. We overrule Mills’s first issue.
III. J UROR D ISABILITY In his second issue, Mills asserts that the trial court erred in ruling that a juror was disabled and thereby discharged him from service on the jury.
A. Applicable Law If a juror becomes disabled after the trial of a felony begins, the remaining members of the jury may render a verdict. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 36.29(a); see also Hill v. State , 90 S.W.3d 308, 315 (Tex. Crim. App. 2002). In ot her words, article 36.29(a) mandates that the trial court proceed with the remaining eleven jurors. See Hill , 90 S.W.3d at 315. A juror is considered disabled when he has a physical illness, mental conditions, or emotional state that renders him unable t o perform his duties. See Hill , 90 S.W.3d at 315; see also Owens v. State , 202 S.W.3d 276, 277 (Tex. App.

— Amarillo 2006, pet. ref’d). A trial court’s decision to declare a juror disabled and subsequently excuse the juror is reviewed for an abuse of discr etion. Owens , 202 S.W.3d at 277 (citing Brooks v.
State , 990 S.W.2d 278, 286 (Tex. Crim. App. 1999); see Landrum v. State , 788 S.W.2d 577, 579 (Tex. Crim. App. 1990).Mills v. State Page 7

B. Discussion At the close of evidence, the trial court went into recess to prepare the ch arge. During the recess, a juror approached the bailiff to report an issue he was having with the case. The juror explained that when a photo of Mills’s family was shown to the jury, he realized that he knew Mills’s child and the child’s mother, but not Mills himself. The juror also noted that Mills’s family has been to his house on numerous occasions and that he waves to Mills’s child every morning. Furthermore, the juror asserted that: You know, like I said, I see [Mills’s child] on a daily basis. I mean he’s always riding his bike around the neighborhood. If I’m outside, he comes up and talks to me. You know, like I said, he’s always standing outside waiting on the bus. We wave at each other every morning. Just I don’t think I could

— I don’t think I could do that. When asked what he could not do, the juror clarified that he could not reach a verdict in
this case. Later, the juror stated that, because of his relationship with Mills’s family, he “can’t sentence that kid’s father. You know, I mean
— I mean I deal with them” and that he did not feel like he could render a fair and impartial verdict in this matter. When questioning the juror about the situation, the trial judge noted that the juror seemed “emotionally distraught now as we’re sitti ng here.” The trial judge also recounted that the juror’s “voice is quavering now, and you’re pretty distraught about this.” After the juror left the courtroom, the trial judge stated the following on the record: The juror was quite emotional about this situation, and he had no way of knowing until now that he knew anything about this case, or it just wasn’tMills v. State Page 8

an issue that had come up, but he was very emotional. He was about to cry in here, and he says there is no way that he could be fair and impartial i n this matter. There’s no way he could reach a verdict that would send the father of that child to the penitentiary for any period of time, life or any other sentence, and that he just could not do it, and he was

— as I said, he was emotional. Over Mills’s objection, the trial court determined the juror to be disabled, excused the juror from service on the jury, and ordered that the trial proceed with eleven jurors. With respect to a juror’s disability, the Court of Criminal Appeals has mentioned:
In inte rpreting the language concerning "disability" as it relates to the various provisions of art. 36.29 , we have recognized that a disability is not limited to physi cal disease, but also includes “ any condition that inhibits a juror from fully and fairly perfo r ming the functions of a juror.” Griffin v. State , 486 S.W.2d 948, 951 (Tex. Crim. App. 1975). See also, Ramos v. State , 934 S.W.2d 358, 369 (Tex. Crim. App. 1996), cert. denied , 520 U.S. 1198, 117 S. Ct. 1556, 137 L. Ed. 2d 704 (1997); Bass v. State , 622 S.W.2d 101, 106 (Tex. Crim. App. 1981), cert. denied , 456 U.S. 965, 102 S. Ct. 2046, 72 L. Ed. 2d 491 (1982). We have further held that this condition may result from physical illness, mental condition, or emotional state. See, e.g., Brooks v. State , 990 S.W.2d 278, 286 (Tex. Crim. App. 1999), cert. denied , 528 U.S. 956, 120 S. Ct. 384, 145 L. Ed. 2d 300 (1999); Landrum v. State , 788 S.W.2d 577, 579 (Tex. Crim. App. 1990); Carrillo v. State , 597 S.W.2d 769, 771 (Tex. Crim. App. 1980). Th us, the dism issal of jurors as “disabled from sitting” have been upheld for varied reasons beyond physical illness. See, e.g., Edwards v. State , 98 1 S.W.2d 359, 366

- 7 (Tex. App.

— Texarkana 1998, no pet.) (juror's inability to find child care for son led trial judge to believe that she could not be fair juror or impartially deliberate upon evidence); Allen v. State , 867 S.W.2d 427, 429

- 30 (Tex. App.

— Beaumont 1993, no pet.) (juror distraught over two family deaths within twenty

- four hour period); Freeman v. State , 838 S. W.2d 772 (Tex. App.

— Corpus Christi 1992, pet. ref'd) (juror who provided sole financial support for his family so concerned about absence from job that he did not feel that he could be attentive during trial). We have also held that a juror's bias or prej udice for or against a defendant does not r ender a juror “disabled.” Ex parte Hernandez , 906 S.W.2d 931, 932 (Tex. Crim. App. 1995), overruled on other grounds by HatchMills v. State Page 9

v. State , 958 S.W.2d 813, 816 (Tex. Crim. App. 1997); Carrillo , 597 S.W.2d at 769

- 71. However, in each of these cases, the juror merely had some knowledge of the defendant; nothing in the record indicates that there was any evidence that such knowledge resulte d in inhibiting the juror from “fully and fairly” perfo rming his functions as a j uror. See Hernandez , 906 S.W.2d at 931

- 2; Carrillo , 597 S.W.2d at 770. Thus, these cases do not foreclose t he possibility that a juror is “disabled,” as that term has been construed with regard to art. 36.29, through knowledge of a defendant when such kn owledge “ inhibits [him] from fully and fairly perfor ming the functions of a juror.” Griffin , 486 S.W.2d at 948. That is, while mere knowledge of a defendant cannot, in and of itself, render a juror “disabled,” the effect of such knowledge on a juror's me ntal condition or emotional state may result i n rendering the juror “disabled” as that term has been construed with regard to art. 36.29. Reyes v. State , 30 S.W.3d 409, 411

- 12 (Tex. Crim. App. 2000). As stated earlier, the trial judge noted on the rec ord that the juror was emotionally distraught, had a “quavering voice” when describing his relationship with Mills’s family, and was about to cry about the prospect of having to sentence Mills. Additionally, the juror informed the trial court that he was emotionally incapable of rendering a fair and impartial verdict in this case. Based on this information, we cannot say that the trial court abused its discretion in concluding that the juror was disabled on account of his
emotional state. See Reyes , 30 S .W.3d at 411

- 12; Brooks , 990 S.W.2d at 286; Landrum , 788 S.W.2d at 579; see also Owens , 202 S.W.3d at 277. We overrule Mills’s second issue.Mills v. State Page 10 IV. C ONCLUSION Having overruled both of Mills’s issues on appeal, we affirm the judgment of the
trial court.

AL SCOGGINS Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed November 5, 2015 Do not publish [CRPM]