Texas courts have reached a similar conclusion in addressing complaints concerning civil trials proceeding with fewer than twelve jurors. See Guardianship of Lynch, 35 S.W.3d 162, 164 (Tex.App.-Texarkana 2000, no pet.) (holding that right to twelve-person jury was waived when jury of six was impaneled without objection); Dickson v. J. Weingarten, Inc., 498 S.W.2d 388, 391 (Tex.Civ.App.-Houston [1st Dist.] 1973, no writ) (holding that because appellant failed to object to trial proceeding with eleven jurors, he waived right to raise issue on appeal); see also McDaniel v. Yarbrough, 898 S.W.2d 251, 252 (Tex. 1995) (holding that appellant preserved error by raising objection to improper dismissal of twelfth juror with trial court upon dismissal and that grounds for objection were apparent from record before reviewing merits of issue). To preserve a state constitutional challenge to a six-person jury, then, a party, whether pro se or represented by counsel, must timely object to the numerical composition of the jury.
Since the record does not disclose that Billie objected to the trial court's decision to continue with only 11 jurors, she neither complied with Rule 33.1(a)(1)(A) nor preserved the complaint for review. See In re Lynch, 35 S.W.3d 162, 166 (Tex.App.-Texarkana 2000, no pet.) (holding that the right to a 12-person jury was waived when a jury of six was impaneled without objection); Dickson v. J. Weingarten, Inc., 498 S.W.2d 388, 391 (Tex.Civ.App.-Houston [1st Dist.] 1973, no writ) (holding that because the appellant did not object to the trial proceeding with 11 jurors, the plaintiff waived his right to object on appeal). Issue 3 — Failure to Join the Estate
In determining whether the trial court erred in refusing to submit appellant's requested jury question, the appellate court reviews the ruling for an abuse of discretion. In re Lynch, 35 S.W.3d 162, 165 (Tex.App.-Texarkana 2000, no pet.). The trial court is obliged to submit a jury charge that fairly presents the disputed issues to the jury for determination. Tex.R.Civ.P. 277; Blonstein v. Blonstein, 831 S.W.2d 468, 471 (Tex.App.-Houston [14th Dist.] 1992), writ denied, 848 S.W.2d 82 (Tex. 1992) (per curiam).