Opinion
No. 05-16-00363-CR
06-27-2017
ALIREZA NIKMANESH, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 380th Judicial District Court Collin County, Texas
Trial Court Cause No. 380-80085-2015
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Evans
Opinion by Justice Evans
Appellant Alireza Nikmanesh appeals from his conviction for murder and his accompanying sentence of fifty years' confinement in prison. In six issues, appellant contends that the trial court erred by: (1) excluding appellant's psychiatric evidence during the guilt-innocence phase of the trial; (2) excluding appellant's recorded statement to the police for the limited purpose of showing appellant's state of mind during the guilt-innocence phase and punishment phase of the trial; (3) denying the appellant's requests for the lesser included charges of manslaughter and criminally negligent manslaughter; and (4) dismissing a juror during the trial. Finding no merit in appellant's arguments, we affirm the trial court's judgment.
BACKGROUND
In the fall of 2014, appellant worked as a part-time delivery driver at a north Dallas Pizza Hut store. On September 23, 2014, appellant and Natalie Jones, the store manager, had a confrontation. Jones testified that appellant came back from a delivery and went to her office yelling and screaming. Jones testified that she told him to clock out and go home and appellant replied that he was going to call Kevin Murray, an area coach who oversaw a number of different Pizza Hut stores. After appellant spoke with Murray, Jones testified that he came back inside and got in her face, pointed a finger at her and said "I'm going to get you." Jones testified that she felt threatened and reported the incident. Jones, appellant, and Murray had a meeting about the argument. Jones testified that the meeting did not go well and appellant stormed out.
In October 2014, appellant was called into another meeting with Murray, Jones and Murray's boss, Tom. Saeideh Shams, another store manager, also attended the meeting because Shams spoke appellant's first language, Farsi. They decided that appellant's language barrier might be part of the problem so they decided to transfer appellant to another store managed by Shams. On October 26, 2014 before the transfer took place, however, appellant was involved in another incident with an employee at the north Dallas store. Vladimir Usovich, a part-time delivery driver at Pizza Hut, testified that appellant ran at him, started yelling at him, and backed him into a corner. Following this last incident, a decision was made to terminate appellant's employment rather than transfer him to another store.
Shams testified that Murray called her on October 30, 2014 and asked her to call appellant and have him meet them at a Subway store in Plano. Shams testified that she assumed Murray wanted her to be present so that she could translate for him. At the meeting, Shams testified that she explained to appellant that he was being terminated and needed to sign paperwork regarding the complaints against him. Shams testified that appellant would not sign the paperwork. Murray gave appellant his last paycheck and Shams testified that appellant said "I don't want it" and got up to leave. Appellant left the paycheck on the table and they told him to take it as he was leaving. He refused to take the paycheck and went to his car. Shams testified that Murray asked her to take the paycheck to appellant so she walked out to appellant's car with the paycheck. Appellant again refused to take it. Shams testified that Murray came outside and tried to get appellant to take the paycheck. When appellant still refused, Murray and Shams turned and walked back to the restaurant to collect their papers. Shams testified that as they were walking, she heard gunshots and saw Murray sit down and then lay down on the ground. Shams testified that she was confused as to what was happening and she asked appellant "what you did?" After Shams saw the blood on Murray, she testified that she asked appellant "why did you do this?" and that appellant responded "they annoyed me, that's why." Shams testified that she saw appellant put something in the car and then he went and sat down outside the restaurant.
Matthew Eadler, a Plano police officer, testified that he received a call that a man in a red shirt had shot another man. Upon arrival at the crime scene, Officer Eadler testified that he saw a male lying on the ground receiving CPR from another man. Officer Eadler further testified that people at the scene were pointing to a man in a red shirt who was sitting on a parking curb watching the victim. Officer Eadler testified he ordered appellant on the ground and asked another officer to place appellant in handcuffs. Officer Eadler testified he followed the ambulance with Murray inside and was present at the hospital when doctor pronounced him dead. Dr. William Rohr, the Collin County medical examiner, testified he conducted the autopsy and appellant's cause of death was multiple gunshot wounds.
John Ellett, a witness to the crime, also testified at the trial. Ellett testified he attended a martial arts class at a studio above Subway. As he was pulling into the parking lot for his class, he saw a man shoot another man three or four times. Ellett testified the shooter stopped and turned as if he was going to get into his car and then turned back and returned to the victim and continued shooting six or seven more times. Ellett identified appellant as the shooter. Two other witnesses, Sherri Virden and Angel Valerio, also identified appellant as the shooter at the trial.
Neil Carnes, a crime scene investigator with the Plano police department, testified he recovered a firearm from the front passenger side of a silver Dodge Caliber. The firearm was a 0.22 caliber pistol that could hold twelve bullets although the magazine was empty when he recovered it. Carnes also testified that he collected eleven 0.22 caliber shell casings outside of the car and one unfired bullet on the passenger floorboard of the car.
Appellant was indicted and tried for murder. Appellant plead not guilty. The jury found appellant guilty and sentenced him to fifty years' imprisonment. Appellant then filed this appeal.
ANALYSIS
A. Exclusion of Evidence
In his first issue, appellant asserts the trial court erred in excluding psychiatric evidence regarding appellant during the guilt-innocence phase of trial. In appellant's second and third issues, he asserts the trial court erred in excluding his recorded statement to the police during the guilt-innocence phase as well as the punishment phase. We disagree.
1. Standard of review
A trial court's decision to admit or exclude evidence is viewed under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996).
2. Psychiatric evidence
i) Additional facts
Prior to the trial, the trial court held a preliminary hearing to determine if Dr. Jason Clay Miller, a psychiatrist, could testify during the guilt-innocence phase of trial. Dr. Miller testified that he met with appellant on six different occasions and diagnosed him with major depressive disorder and an obsessive compulsive personality disorder. During Dr. Miller's testimony, the following exchanges took place between him and the State:
[State]: You would agree that a mental illness or mental disorder such as Major Depressive Disorder or Obsessive Compulsive Personality Disorder doesn't mean that someone couldn't commit a crime, correct?
[Dr. Miller]: That is correct.
[State]: That someone can still form the intent to commit a crime?
[Dr. Miller]: Somebody could, yes.
[State]: And you also know that diminished capacity is not a recognized defense in the state of Texas, correct?
[Dr. Miller]: Correct.
***
[State]: At the time he shot Kevin, he wasn't -- the Major Depressive Disorder, the Obsessive-Compulsive Personality Disorder didn't make him shoot Kevin, correct?
[Dr. Miller]: That's correct.
***
[State]: He was able to acknowledge that he shot Kevin, that he knew he was firing the weapon, correct?
[Dr. Miller]: That is correct.
[State]: Did he tell you he was angry?
[Dr. Miller]: No, he said he was just scared.
[State]: So he wasn't even angry, he was just scared, scared of what?
[Dr. Miller]: In the moment, people with Obsessive-Compulsive Personality Disorder, especially as in him, he perceives himself as a rule follower, so being fired would be particularly painful for him and particularly threatening to him.
[State]: Because he was fired?
[Dr. Miller]: Yes.
[State]: And he felt psychologically threatened?
[Dr. Miller]: Correct.
[State]: But certainly wouldn't negate his intent to commit the crime of murder, correct?
[Dr. Miller]: Correct.
***
[State]: Basically, what you're arguing is he had some sort of diminished capacity at the time he committed the crime?
[Dr. Miller]: Just that he was under the influence of those.
[State]: He acted under the influence of Major Depressive Disorder and the Obsessive-Compulsive Personality Disorder?
[Dr. Miller]: Correct, but again that they're not causative of these actions.
[State]: Right, they didn't cause him to commit the crime of murder, correct?
[Dr. Miller]: Correct.
[State]: Didn't negate his intent to fire a weapon at another human being?
[Dr. Miller]: Correct.
Following this testimony, the State objected to Dr. Miller testifying at the guilt-innocence phase of the trial because his testimony was not relevant to whether appellant intended to commit the crime of murder. The trial court sustained the State's objection and did not allow Dr. Miller to testify during the guilt-innocence phase of the trial.
ii) Analysis
Appellant presents two arguments as to why the trial court erred in excluding psychiatric evidence during the guilt-innocence phase of trial. Appellant first argues that the evidence was relevant and, without it, appellant could not present a viable defense. In support of this argument, appellant relies upon Jackson v. State, 160 S.W.3d 568 (Tex. Crim. App. 2005) and Ruffin v. State, 270 S.W.3d 586 (Tex. Crim. App. 2008). These cases both hold that, other than insanity, Texas does not recognize a diminished mental-state affirmative defense that a mental disorder or disease renders a defendant less culpable of an offense. Jackson, 160 S.W.3d at 573; Ruffin, 270 S.W.3d at 591-92. Courts, however, will admit evidence of a mental disease or defect offered to rebut or disprove the defendant's culpable mens rea. Jackson, 160 S.W.3d at 574; Ruffin, 270 S.W.3d at 594. In this case, Dr. Miller's testimony concerning appellant's major depressive disorder or obsessive-compulsive personality disorder could only offer an explanation or motive for appellant's actions but could not negate intent. Dr. Miller's testimony did not rebut or negate appellant's mens rea for murder because Dr. Miller repeatedly testified at the preliminary hearing that appellant's mental disorders did not cause him to commit the crime of murder or negate his intent to fire a weapon. Accordingly, we find appellant's argument unpersuasive.
Appellant also asserts he was entitled to Dr. Miller's testimony pursuant to article 38.36 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.36 (West 2005) ("In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense."). Evidence under article 38.36 must still meet the admissibility requirements for admission of evidence such as rules of evidence 403 and 703-705. See Jackson, 160 S.W.3d at 574; Ruffin, 270 S.W.3d at 595-96. This evidence may also be excluded if it does not truly negate the mens rea. Ruffin, 270 S.W.3d at 596. As stated above, in this case, Dr. Miller's testimony did not negate the required culpable mental state for murder.
For all the reasons described above, we conclude that the trial court did not abuse its discretion in excluding Dr. Miller's testimony during the guilt-innocence phase of trial and we overrule appellant's first issue.
3. Appellant's recorded statement
i) Additional facts
Detective Brian Pfahning, a criminal investigator with the Plano police department, interviewed appellant at the police station. Prior to trial, appellant moved to suppress the recorded interview. Following a hearing, the trial court denied the motion to suppress and made the following findings: (1) the Plano Police Department legally arrested appellant under the authority of Article 14.03(a)(l) of the Texas Code of Criminal Procedure; (2) the oral statements made by appellant while in the custody of the Plano police department were freely and voluntarily given; (3) the oral statements made by the appellant while in the custody of the Plano police department were given without compulsion; and (4) the oral statements made by appellant while in the custody of the Plano police department were obtained in compliance with Section 3 of Article 38.22 of the Texas Code of Criminal Procedure.
During Detective Pfahning's testimony at trial, appellant's attorney moved to introduce the audio tape of appellant's confession to demonstrate appellant's state of mind. Appellant also offered the evidence under article 38.36 of the code of criminal procedure. The State objected on the basis of hearsay. Appellant argued that he was not seeking to admit the recording for truth of the matter asserted but as evidence of his state of mind. The trial court ruled as follows:
I do believe that the statement, the statements contained in the recording are self-serving hearsay. There might be some mitigation evidence in there with respect to punishment, but I don't recall anything in the statements that would be exculpatory in nature, and I don't think that any of the hearsay exception is applied to the statement. They weren't made spontaneously and they weren't -- they're not necessary to rebut or explain any assertions by the State, and the State hasn't offered any other portion of the statement. And I don't think that 38.36 has any application because it refers to testimony, and the case law pretty well establishes that 38.36 does not make otherwise inadmissible hearsay admissible, so I will sustain the State's objection to the offer.
The appellant asked the trial court to reconsider because the recording was only being offered for appellant's state of mind. The trial court then responded:
I'm sustaining the objection. It's just that there may be portions of that recording where there are perhaps statements of the Defendant's state of mind that aren't assertions of fact, but the recording, as I recall it, it's just, it's filled with assertions of fact, and I don't see how you can -- unless you were to go through the entire recording and try to pull out specific statements contained in there that you think aren't assertions of fact and are evidence of his state of mind. If we're talking about the recording as a whole, there are so many assertions of fact made by the Defendant, made by the detective, that I don't think any sort of limiting instruction would prevent the jury from considering the evidence in a way that's prohibited by the hearsay rules. So I am going to maintain the ruling that the State's objection is sustained and the recording is not going to come in as it's been offered.
During the punishment phase of the trial, appellant re-offered the recorded interview and the State renewed its objection on the basis of hearsay. The trial court sustained the hearsay objection.
ii) Analysis
Appellant argues that the trial court should have allowed the recording to be admitted because it demonstrated appellant's state of mind. For example, in the recording appellant states that he did not know that Murray was dead and breaks down when he finds out that he died. Appellant argues that the recording demonstrates his "lack of awareness as to what happened" and provides evidence that the crime was not committed intentionally or knowingly because of his reaction to being told Murray was dead.
Hearsay is a statement, other than one made by the declarant while testifying at trial, that is offered to prove the truth of the matter asserted. TEX. R. EVID. 801(d). Although hearsay statements are generally inadmissible, there are also a number of exceptions. TEX. R. EVID. 802, 803. Under the "state of mind exception," as argued by the appellant, a statement is not excluded by the hearsay rule if it is:
[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.TEX. R. EVID. 803(3). In order to be admissible under this exception, however, the statement may only describe the appellant's state of mind and not any reasons or events that caused the state of mind. See Delapaz v. State, 228 S.W.3d 183, 206-7 (Tex. App.—Dallas 2007, pet. ref'd) ("Thus, a statement that would otherwise be admissible under the state of mind exception to the hearsay rule is inadmissible if it is a "a statement of memory or belief" offered to "prove the fact remembered or believed.") (quoting Gibbs v. State, 819 S.W.2d 821, 837 (Tex. Crim. App. 1991)).
Here, appellant offered the entire recording and not just the sentences that related to appellant's state of mind. The trial court clearly noted that the recording may have contained "statements of the Defendant's state of mind that aren't assertions of fact" but it also noted that the recording was "filled with assertions of fact." When a trial judge is presented with a proffer of evidence containing both admissible and inadmissible statement and the proponent of the evidence fails to segregate and specifically offer the admissible statements, the trial court may properly exclude all the statements. Willover v. State, 70 S.W.3d 841, 847 (Tex. Crim. App. 2002). For these reasons, the trial court did not abuse its discretion in excluding the recording on the basis of hearsay in either the guilt-innocence phase or the punishment phase of trial.
Appellant also asserts that the recording should have been admitted pursuant to article 38.36 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.36. As stated above, however, any evidence under article 38.36 must still meet the admissibility requirements for admission of evidence such as rules of evidence 403 and 703-705. See Jackson, 160 S.W.3d at 574; Ruffin, 270 S.W.3d at 595-96. As we have concluded that the recording failed to meet the admissibility requirements, it cannot be offered under article 38.36.
For all the reasons described above, we overrule appellant's second and third issues.
B. Lesser Included Charges
In two separate issues, appellant asserts that the trial court erred by denying appellant's request for the lesser included charges of manslaughter and criminally negligent homicide. We disagree.
1. Standard of review
When we review claims of jury charge errors, we first decide whether there was error in the charge. Ferguson v. State, 335 S.W.3d 676, 684 (Tex. App.—Houston [14th Dist.] 2011, no pet.). If there was error and appellant objected to the error at trial—as in this case—then only "some harm" is necessary to reverse the trial court's judgment. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).
2. Additional facts
Prior to the trial court reading the charge of the court to the jury, appellant requested instructions for the lesser-included offenses of manslaughter/reckless homicide and criminal negligence homicide. The State opposed the inclusion of lesser included offenses being added to the charge because there was no evidence to support a reckless intent. The trial court denied the request as follows:
The requests for lesser included offenses, including manslaughter and criminally negligent homicide, are denied. Technically, those are lesser offenses of murder,
however, I have not heard any evidence on the record that would lead a rational fact finder to believe or find that if the Defendant is guilty of an offense, he is going to be guilty of one of those two lessers. I don't believe any evidence has been presented to the jury that could support the conviction of either of those two lessers.
3. Analysis
When a reviewing court is asked to determine whether a lesser included offense charge should have been given, it must consider all of the evidence presented by the State and the defendant. Johnson v. State, 915 S.W.2d 653, 657 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd). Entitlement to a jury instruction on a lesser included offense must be made on a case-by-case basis according to the particular facts. Id. There is a two-pronged test to determine whether a jury must be charged on a lesser included offense. Id. This test has become known as the "Royster" or "Royster-Aguilar" test. Id.; Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985); Royster v. State, 622 S.W.2d 442, 447 (Tex. Crim. App. 1981). The first step in this analysis is to determine whether an offense is a lesser-included offense of the alleged offense. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). This is a question of law and does not depend on evidence to be introduced at trial. Id. To satisfy the second prong, there must be some evidence that if the defendant is guilty, he is guilty only of the lesser included offense. Johnson, 915 S.W.2d at 657.
Here, appellant requested the lesser included charges of manslaughter and criminally negligent homicide. Both of the offenses requested by appellant are lesser included offenses of murder. Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002) ("We have recognized that manslaughter is a lesser-included offense of capital murder."); Thomas v. State, 699 S.W.2d 845, 847 (Tex. Crim. App. 1985) ("Criminally negligent homicide is a lesser included offense of murder."). Therefore, appellant has satisfied the first prong of the Royster test for both charges.
The second step requires an analysis of whether there is evidence to support giving the instruction to the jury. Hall, 225 S.W.3d at 536. In this case, such an analysis requires an examination of the distinct culpable mental states required for murder, manslaughter, and criminally negligent homicide. See TEX. PENAL CODE. ANN. §§ 19.02, 19.04, and 19.05 (West 2011) (culpable mental state for murder is "intentional" or "knowing;" culpable mental state for involuntary manslaughter is "recklessness;" culpable mental state for criminally negligent homicide is "negligence").
The Texas Penal Code defines "reckless" and acting with "criminal negligence" as follows:
(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.See TEX. PENAL CODE. ANN. § 6.03(c), (d) (West 2011). Appellant requested an instruction on manslaughter based on the testimony at trial that appellant's work behavior was irrational and that appellant sat down after shooting the victim instead of fleeing. Appellant also notes that the "most salient piece of evidence that mandated a lesser charge of manslaughter and criminally negligent homicide" is Shams's testimony that she asked appellant if his gun was real or fake and he replied that he did not know. Appellant argues that if he did not know if the gun was fake or real, then he could not have committed the crime intentionally or knowingly. We disagree.
(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.
As appellant refers to the same facts for both manslaughter and criminally negligent homicide, we analyze his arguments together.
Here, there is no evidence that appellant acted recklessly or with criminal negligence. To the contrary, the undisputed evidence establishes that appellant shot Murray eleven times from behind: four times and then stopped and then turned back and continued shooting seven more times. The crime scene investigator testified that appellant's firearm could fire twelve bullets and the magazine was empty when he recovered it. The crime scene investigator also testified that he collected one unfired bullet on the passenger floorboard of appellant's car indicating that appellant had racked the slide in order to load a round into the chamber which ejected a round that was already loaded in the chamber.
The facts asserted by appellant—such as his irrational work behavior or his failure to flee after the shooting—do not negate the intentional acts which caused Murray's death. Further, Shams's testimony that appellant did not know if his gun was real or fake cannot be considered in a vacuum. To the contrary, a reviewing court must consider all of the evidence presented when determining whether a lesser included offense charge should have been given. Johnson, 915 S.W.2d at 657. Shams further testified that she then asked appellant "why did you do this?" and that appellant responded "they annoyed me, that's why." This second statement enforces the fact that appellant acted intentionally or knowingly, and not recklessly or with criminal negligence.
As we conclude that the trial court did not err by denying appellant's request for the lesser included charges of manslaughter and criminally negligent homicide to be included in the jury charge, we decline to conduct an Almanza harm analysis. See Posey v. State, 966 S.W.2d 57, 60 (Tex. Crim. App. 1998) ("Neither 'harm' standard set out in Article 36.19 as construed by Almanza applies unless an appellate court first finds 'error' in the jury charge."). For all the reasons described above, we overrule appellant's fourth and fifth issues.
C. Dismissal of Juror
In his last issue, appellant asserts that the trial court erred in dismissing a juror during the trial. We disagree.
1. Standard of review
The trial court has discretion to determine whether a juror has become disabled and to seat an alternate juror. Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012). The trial court's decision is subject to a review for abuse of discretion and, absent such an abuse, no reversible error will be found. Id. at 784. When reviewing the dismissal of a juror, an appellate court may not presume from a silent record that the dismissal was proper but it is also not the role of the appellate court to substitute its own judgment for that of the trial court. Id. Thus, the appellate court must view the evidence in the light most favorable to the trial court's ruling and uphold the ruling if it is within the zone of reasonable disagreement. Id.
2. Additional facts
Following the testimony of the State's first witness at trial, Mr. Foroodi, one of the impaneled jurors, requested to speak with the judge. During the break, Foroodi advised the judge that when he saw the witnesses at the table, he realized that he knew one of the witnesses, Shams, and had had one or more discussions about this case with her. Outside the presence of the jury, the judge then advised counsel as follows:
I admonished him that that did not disqualify him, in my opinion, but that he could not in any manner discuss the matter with the other jurors, either now or when they are deliberating, and that it would not be appropriate for him to mention to the jurors that he knows one of the witnesses and that he learned about the case. If either side would like to make any additional requests or make any objections, now is the time.The State objected to Foroodi continuing as a juror because he had obtained information that was not provided in the courtroom and asked that he be disqualified. Appellant stated that he wanted to keep Foroodi as a juror. Foroodi then testified that his discussions with Shams might influence his deliberations and that knowing the witness would give her greater credibility than other witnesses. Following this testimony, appellant wanted to the keep Foroodi and the State maintained that he should be excused. The judge then concluded as follows:
I think that the juror has pretty unequivocally indicated inability to be impartial. He indicated that he may well have an inability to be impartial with respect to the trial as a whole, and specifically he has indicated an inability to be impartial with respect to evaluating the credibility of his friend's testimony. I understand that Mr. Nikmanesh wants to keep the juror, however, given the circumstances, I don't believe it would be appropriate for this juror to continue, so I am going to excuse Mr. Foroodi and declare him as disqualified, or disabled, whichever term you'd like to use and seat Mr. Galley in his place.
3. Analysis
Appellant argues that article 36.29 provides the court authority only to remove a juror who becomes "disabled" and the juror in this instance was not disabled. See TEX. CODE CRIM. PROC. ANN. art. 36.29 (West Supp. 2016). This case, however, is not subject to the limitations of article 36.29 because the article only addresses (1) the limited circumstances in which less than twelve jurors can render or return a verdict in felony cases and (2) capital cases in which the state seeks the death penalty and a juror dies or becomes disabled. Neither of these unique instances occurred in this case.
Instead, article 33.011 governs in this instance because it addresses when alternate jurors can replace seated jurors. See TEX. CODE CRIM. PROC. ANN. art. 33.011 (West Supp. 2016). This article provides that alternate jurors can replace jurors who have "become or are found to be unable or disqualified to perform their duties or are found by the court on agreement of the parties to have good cause for not performing their duties" before a jury renders a verdict regarding a defendant's guilt or innocence, or assesses a punishment when applicable. See id. at art. 33.011(b). One basis for disqualification under article 33.011(b) is that the juror has a bias or prejudice in favor or against the defendant. See Brown v. State, 183 S.W.3d 728, 739 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd). Here, the juror testified that he was unable to be impartial because he would give his friend greater credibility than other witnesses and his discussions would influence his deliberations in the case. The trial court then concluded on the record that the juror should be disqualified based on this testimony. Based on this record, we cannot conclude that the trial court abused its discretion in excusing the juror and we overrule appellant's sixth issue.
CONCLUSION
We resolve appellant's issues against him and affirm the trial court's judgment.
/David W. Evans/
DAVID EVANS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
160363F.U05
JUDGMENT
On Appeal from the 380th Judicial District Court, Collin County, Texas
Trial Court Cause No. 380-80085-2015.
Opinion delivered by Justice Evans. Justices Bridges and Lang-Miers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 27th day of June, 2017.