No. 13-04-620-CR
Memorandum Opinion Delivered and Filed June 22, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 130th District Court of Matagorda County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.
Memorandum Opinion by Justice RODRIGUEZ.
Appellant, Johnnie Jones, was charged with delivery of a controlled substance in a drug-free zone. See Tex. Health Safety Code § 481.112(d), 481.134 (Vernon 2005). A jury found appellant guilty and assessed punishment at confinement for ninety-nine years in the Texas Department of Criminal Justice-Institutional Division and a fine of $20,000. The trial court has certified that this case "is not a plea bargain case, and the defendant has the right of appeal." See TEX. R. APP. P. 25.2(a)(2). By two points of error, appellant contends that the trial court erred (1) in denying his motion for continuance, and (2) by finding a juror disabled and proceeding to trial with an eleven member jury. We affirm.
I. Background
All issues of law presented by this case are well-settled, and the parties are familiar with the facts. Therefore, we will not recite the law or the facts except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex.R.App.P. 47.4. II. Continuance
By his first point of error, appellant asserts that the trial court abused its discretion in denying his motion for continuance. The State argues, however, that appellant failed to preserve this complaint for review. We agree. Article 29.03 of the Texas Code of Criminal Procedure requires that a motion for continuance be in writing. See TEX. CODE CRIM. PROC. ANN. art. 29.03 (Vernon 2005). In addition, article 29.08 requires that all motions for continuance be sworn to by a person having personal knowledge of the facts relied on for the continuance. Id. art. 29.08. Moreover, the Texas Court of Criminal Appeals has held that "a motion for continuance not in writing and not sworn to preserves nothing for review." Dewberry v. State, 4 S.W.3d 735, 755 (1999) (citing Matamoros v. State, 901 S.W.2d 470, 478 (Tex.Crim.App. 1995); Montoya v. State, 810 S.W.2d 160, 176 (Tex.Crim.App. 1989)). Here, appellant presented an unsworn oral motion for continuance. Because this motion was oral, instead of written, and not sworn to, appellant failed to preserve error with respect to the motion. Id. Therefore, we overrule appellant's first point of error. III. Absent Juror
In his second point of error, appellant contends that the trial court erred by finding a juror disabled and proceeding to trial with an eleven member jury. Article 36.29 of the Texas Code of Criminal Procedure provides that "after the trial of any felony case begins and a juror . . ., 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." TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (Vernon Supp. 2005) (emphasis added). Disabled, as used herein, means "any condition that inhibits the juror from fully and fairly performing the functions of a juror." Clark v. State, 500 S.W.2d 107, 108-09 (Tex.Crim.App. 1973). The disabling condition may result from a physical illness, mental condition, or an emotional state. Reyes v. State, 30 S.W.3d 409, 411 (Tex.Crim.App. 2000). The determination as to whether a juror is disabled lies within the sound discretion of the trial court. Brooks v. State, 990 S.W.2d 278, 286 (Tex.Crim.App. 1999). Absent an abuse of that discretion, no reversible error will be found. Id. In the underlying case, a jury had been empaneled and sworn in by the trial court. The following day, one of the jurors reported to the trial court that she was no longer able to serve in the capacity of a juror because her father-in-law had passed away the previous night. After asking the juror questions regarding her emotional state and role as a juror, the trial court found the juror to be disabled and permitted the trial to proceed with only eleven jurors. Although appellant asserts the trial court abused its discretion in finding the juror disabled, the record does not support appellant's assertion. Based on the facts of this case, we conclude the trial court acted within its discretion in finding the juror disabled because of her emotional state. See Reyes, 30 S.W.3d at 411 (providing that a juror's disabling condition may result from an emotional state); Clark, 500 S.W.2d at 108-09 (holding that a trial court's determination that a juror was disabled because she was emotionally upset by the death of her father-in-law was proper). Furthermore, because the juror was found to be disabled, the trial court was permitted to proceed to trial with an eleven member jury. See Tex. Code Crim. Proc. Ann. art. 36.29(a); Williams v. State, 631 S.W.2d 955, 957 (Tex.App.-Austin 1982, no pet.). Thus, we overrule appellant's second point of error. IV. Conclusion
Accordingly, we affirm the judgment of the trial court.