Ricketts v. State

• Citation: 89 S.W.3d 312
• Decision Date: 30 October 2002
• Docket Number: No. 2-01-151-CR.,2-01-151-CR.
• Parties: Jeremy Wade RICKETTS, Appellant, v. The STATE of Texas, State.
• Court: Court of Appeals of Texas

89 S.W.3d 312

Jeremy Wade RICKETTS, Appellant, v. The STATE of Texas, State.

No. 2-01-151-CR.

Court of Appeals of Texas, Fort Worth.

October 30, 2002.

Rehearing Overruled November 27, 2002.

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Earl E. Bates, Fort Worth, for Appellant.

Tim Curry, Criminal District Attorney, Charles Mallin, Chief, Appellate Division, Edward L. Wilkinson, Kevin Rousseau and Lisa Callaghan, Assistant District Attorneys of Tarrant County, for Appellee.

Panel B: DAY, LIVINGSTON, and GARDNER, JJ.

OPINION ON PETITION FOR DISCRETIONARY REVIEW

ANNE GARDNER, Justice.

I. INTRODUCTION

Appellant Jeremy Wade Ricketts appeals his murder conviction. On August 1, 2002 we issued an opinion and judgment affirming the judgment and conviction in this appeal. Appellant has filed a petition for discretionary review in the court of criminal appeals. Pursuant to Texas Rules of Appellate Procedure 50, we withdraw our opinion and judgment and substitute the following modified opinion and accompanying judgment again affirming the judgment of the trial court.

II. FACTUAL AND PROCEDURAL BACKGROUND

A unanimous jury found Appellant guilty of murder and assessed punishment at fifty years' confinement. In four points, Appellant contends the trial court erred by overruling his motions for continuance and mistrial; by dismissing a juror as emotionally disabled and continuing to trial with eleven jurors; by overruling Appellant's objections to a co-defendant's excited utterances; and by sustaining the State's objection to the testimony of two punishment witnesses that attempted to testify as to their opinion of Appellant's guilt.

On or about the early morning hours of August 10, 1999, the body of William Martin Klozik ("Marty") was discovered by Gerard Barwinkel, a courier at a twentyfour hour delivery service, in a field at Loop 820 and Trinity Boulevard in Fort Worth, Texas. Marty had died a few hours earlier as a result of a gunshot to the back of his head. Four days after his death, Marty's sister, Tammie Fleming, and her family visited the death scene after Marty's funeral and found a small shaving kit bag containing methamphetamine. Tammie called the police and informed them of her discovery. The police linked the bag and methamphetamine to Jason Truver.

Jason Truver, Shad Hocutt, and Appellant were friends. The night of Marty's death, Jason's fiancé, Jacqualine Smalley, was at home with Jason when Marty came to visit. While Jacqualine was bathing, Jason knocked on the bathroom door and told her Marty had stolen his bag of methamphetamine. Jason called Appellant at his house, told him about the situation, and left his apartment with Jacqualine. When Jason and Jacqualine arrived at Appellant's home, Jason met outside with Appellant and Shad, who was already at Appellant's home, while Jacqualine went into the house and stayed with Appellant's girlfriend, Shanon Slape.

While outside discussing what they should do about the situation, Jason, Shad, and Appellant decided to go to the store and purchase beer. In route to the store, Marty called Appellant on his mobile phone and the two agreed to meet to exchange the methamphetamine for $2,500. There is conflicting testimony as to whether Jason was going to buy back the methamphetamine. Jacqualine testified Jason was going to purchase the drugs from Marty for $2,500. Shad testified that he and Appellant were going with Jason to get the drugs back and beat up Marty if necessary.

Jason, Shad, and Appellant arrived at the meeting place early. When they arrived, Jason let Shad and Appellant out of the car and told them to hide. Jason drove away and returned to the meeting place at the same time as Marty. When Marty arrived, he got out of his car and went to his car's trunk. Appellant walked out of the darkness and called Marty's name. Marty ran away from his car and was tackled by Shad in a nearby ditch. Shad, realizing Marty did not have a gun, got up and heard someone yelling for him "to move, to look out." Shad ran towards Jason's car and heard a gunshot, and as he reached Jason's car, he heard another gunshot. Jason and Appellant returned to Jason's car and drove to Appellant's home. During the ride back to Appellant's home, Jason asked Appellant if Marty was "getting back up," Appellant replied, "No, I don't think so."

III. DISCUSSION

A. Facts Relevant to Points One and Two

On Wednesday April 4, 2001, the first day of trial, a juror called the trial court from Tyler, Texas, saying her father had died. The juror informed the judge that "it would cause [her] great mental distress to miss her father's funeral." The juror stated that she could concentrate after Monday, even though she would be exhausted after coming back from Tyler late on Sunday. The trial judge decided to have a hearing on whether to continue the trial on Monday or dismiss the juror as emotionally disabled and proceed to trial with eleven jurors.

In determining whether to continue the trial on Monday, the record reflects that the trial court considered that one juror was a physician whose partner was having surgery and was required to be back at work the following week to run his office. Another juror did payroll at her office and had to be back to work on Tuesday, or "nobody gets paid." Another juror had her mother in town to watch her children and would have no childcare the next week. The record also reveals that the trial court's docket was going to be busy for the next two weeks. Finally, the trial court noted that the defendant had been incarcerated for one-and-one-half years. Based on the above facts, the trial court concluded it was "inappropriate to postpone the case further." The trial court found the juror emotionally disabled and decided to proceed to trial with eleven jurors.

Defense counsel objected to the trial court's decision to proceed, contending the relevant juror fit defense counsel's juror profile and her absence would change "our strategy somewhat." Further, defense counsel argued the jurors' economic reasons should not take priority over the Defendant's due process and effective assistance of counsel rights. Defense counsel then asked the court to "reconsider and start the trial Monday, talking about three days." After defense counsel was overruled, he asked for a mistrial on due process and effective assistance of counsel grounds. The trial court overruled his motion for mistrial.

B. Motion for Continuance

Appellant's first point contends that the trial court erred by denying his motion for continuance based on the trial court's dismissal of a juror. Appellant argues that, because he had no knowledge of the absent juror until the day of trial, he was surprised and his due process rights suffered as a result. The State responds that Appellant's use of an unsworn, oral motion for continuance waived error. Appellant contends that we should follow O'Rarden v. State and allow an oral motion for continuance based on equitable principles to preserve error. 777 S.W.2d 455, 459 (Tex. App.-Dallas 1989, pet. ref'd) (op. on reh'g).

Articles 29.03 and 29.08 of the Texas Code of Criminal Procedure require written and sworn motions for continuance. TEX.CODE CRIM. PROC. ANN. arts. 29.03, 29.08 (Vernon Supp.2002); see Felan v. State, 44 S.W.3d 249, 255 (Tex.App.-Fort Worth 2001, pet. ref'd). "A motion for continuance not in writing and not sworn preserves nothing for review." Dewberry v. State, 4 S.W.3d 735, 755 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). The language in Dewberry does not permit equitable review of an oral motion for continuance; therefore, we decline to follow O'Rarden. See Dixon v. State, 64 S.W.3d 469, 473 (Tex.App.-Amarillo 2001, no pet.); Legate v. State, 52 S.W.3d 797, 806 (Tex. App.-San Antonio 2001, pet. ref'd); Felan, 44 S.W.3d at 255; Munoz v. State, 24 S.W.3d 427, 430 (Tex.App.-Corpus Christi 2000, no pet.); see also Woodall v. State, 77 S.W.3d 388, 401 (Tex.App.-Fort Worth, no pet.) (declining to follow O'Rarden, and other cases allowing for oral motions for continuance based on equitable principles). Because Appellant offered an unwritten, unsworn motion for continuance, he preserved nothing for review. Consequently, we overrule his first point. Cf. State v. Balderas, 915 S.W.2d 913, 917 (Tex.App.-Houston [1st Dist.] 1996, no pet.) (noting that because trial court found juror properly disabled and proceeded properly with eleven jurors, continuance was unnecessary).

C. Motion for Mistrial

In Appellant's second point, he complains the trial court erred by failing to grant a motion for mistrial after it dismissed the juror as emotionally disabled. The Texas Constitution requires a jury in a felony criminal trial to be composed of twelve members. TEX. CONST. art. V, § 13; Rivera v. State, 12 S.W.3d 572, 578 (Tex.App.-San Antonio 2000, no pet.). The Texas Constitution and article 36.29 of the Texas Code of Criminal Procedure both provide, however, that if a juror dies or becomes "disabled" from sitting, the remaining empaneled jury has the power to render the verdict. TEX. CONST. art. V, § 13; TEX.CODE CRIM. PROC. ANN. art. 36.29(a). A juror is disabled only when the juror is physically, emotionally, or mentally impaired in some way that hinders his or her ability to perform the duty of a juror. Brooks v. State, 990 S.W.2d 278, 286 (Tex.Crim.App.), cert. denied, 528 U.S. 956, 120 S.Ct. 384, 145 L.Ed.2d 300 (1999); Ponce v. State, 68 S.W.3d 718, 721 (Tex.App.-Houston [14th Dist.] 2002, no pet.). The determination as to whether a juror is disabled is within the discretion of the trial court. Brooks, 990 S.W.2d at 286. Absent an abuse of that discretion, we will not find reversible error. Id.

The initial question before us is whether the juror was disabled within the context of article 36.29(a). Disability is not limited to physical disease, but includes "any condition that inhibits a juror from...