Opinion
Nos. 05-03-00482-CR, 05-03-00483-CR, 05-03-01001-CR
Opinion issued June 4, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause Nos. F02-25229-UH, F02-25279-H, F02-01608-IH. Affirmed.
Before Justices MORRIS, WHITTINGTON, and JAMES.
OPINION
In these appeals, William Ray Webber, Jr. challenges his convictions for one charge of aggravated robbery and two charges of aggravated assault of a public servant. He contends in three issues that the trial court abused its discretion by discharging a juror and proceeding with eleven jurors without his consent and that his trial counsel was ineffective because he failed to challenge the trial court's decision to proceed with eleven jurors or consult with appellant on the matter. Concluding appellant's arguments are without merit, we affirm the trial court's judgments. During the guilt-innocence phase of appellant's trial, one of the jurors left the state because he had received a phone call from his sister informing him that his father was in "very critical condition" and that if he "wanted to say goodbye," he "would have to come immediately." The juror told the trial judge, with attorneys for appellant and the State listening on headsets, that — due to his emotional condition caused by his father's health — he would not be able to give his full attention to the cases. He stated that, in his opinion, he was inhibited from fully and fairly performing as a juror. When trial resumed the next day, the trial judge stated the following on the record, out of the presence of the jury:
. . . [Y]esterday we got in contact with Juror No. 8, Melvin Dawson, who was in Charlotte, North Carolina at the time. He had taken an overnight flight or early morning flight yesterday to try to get to his father's bedside. He did arrive. His father was still living. At the time I talked to him yesterday he believed that it would probably be a matter of hours or possibly a couple of days that his father could live.I talked to him before he left for North Carolina and did observe his emotional condition. And it was very consistent with any person who was about ready to lose his father. Certainly he was shaken. He just didn't think time was that short. And he certainly — when he took the seat on the Jury he thought that he would be able to be here long enough to try this case. His father had just been released from the hospital to hospice care the week before, I believe he said on Thursday. And they at that time thought it would be at least a couple of weeks. And here he was just five days later getting a call saying he better hurry or he may not make it to tell your [sic] father goodbye. And so I — after I talked to him before he left, and then we made contact again. Once I made contact with him again and learned what the situation was, and learned that he certainly did not want to come back here to Dallas County, because he needed to be with his father, because he felt like it was a matter of hours, I got the attorneys together with Mr. Jones was on one phone, Mr. Robinson on another phone, the Court Reporter on another phone and me on the fourth phone. Our technology around here is not the best. We couldn't make the speaker phone work. But we did fix it so everybody got to hear the conversation. The Court Reporter as she listened took a record of it, and it has been included in the record. At this time the court finds that Melvin Dawson is disabled from service as a juror and we will continue with eleven jurors. The law requires that if eleven jurors proceed with the trial that all eleven jurors must sign the verdict sheet. And the Court will submit a verdict sheet in this case that includes eleven for all eleven jurors. Defense counsel agreed to the dismissal of the juror. Appellant argues in his first two issues that the trial court abused its discretion by discharging a juror without his consent and proceeding with the guilt-innocence stage of trial. After the trial of any felony case begins if, as determined by the judge, a juror 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 (Vernon Supp. 2004). For purposes of article 36.29(a), "disabled" includes any condition that inhibits a juror from fully and fairly performing the functions of a juror. The condition can be physical, mental, or emotional. Timmons v. State, 952 S.W.2d 891, 893 (Tex. App.-Dallas 1997, no pet.). Determining whether a juror is disabled is within the discretion of the trial court, and absent an abuse of that discretion, we will find no reversible error. See Routier v. State, 112 S.W.3d 554, 588 (Tex.Crim.App. 2003), cert. denied, 2004 WL 1085493 (U.S. 2004). The trial court did not need appellant's approval to discharge the juror. Moreover, appellant did not object to the trial court's actions at the time of trial, so he may not complain of them on appeal. See Tex.R.App.P. 33.1(a). We resolve appellant's first two issues against him. In his third issue, appellant complains he received ineffective assistance of counsel. He specifically argues his attorney failed to cross-examine the discharged juror to determine his disability and failed to get appellant's consent to proceed with eleven jurors. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim. App. 1999). To prevail on an ineffective assistance claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim. App. 1999). Moreover, if the record is silent regarding counsel's reasons for his conduct and there is "at least the possibility that the conduct could have been legitimate trial strategy," we will defer to counsel's decisions and deny relief on direct appeal. See Ortiz v. State, 93 S.W.3d 79, 89 (Tex.Crim. App. 2002), cert. denied, 538 U.S. 998 (2003). The record in these cases is silent about why trial counsel handled the juror's claimed disability as he did. As discussed above, it was within the trial court's discretion to discharge the complained-of juror; the trial court did not need appellant's consent. Moreover, as the State points out in its brief, counsel may have been exercising trial strategy in not questioning the juror since "a juror kept from his father's deathbed by the questioning of defense counsel is unlikely to have a favorable disposition" toward the defense. Based on the record before us, we conclude appellant has failed to show he received ineffective assistance of trial counsel. We resolve his third issue against him. We affirm the trial court's judgments.