William Green Biggs Jr. v. State

William Green Biggs Jr. v. State

  IN THE

TENTH COURT OF APPEALS

No. 10-02-048-CR

     WILLIAM GREEN BIGGS, JR.,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 401st District Court

Collin County, Texas

Trial Court # 401-80537-01

MEMORANDUM OPINION

      William Green Biggs, Jr. pleaded guilty to possession of less than one gram of cocaine and true to enhancement allegations. Pursuant to the State’s plea recommendation, the court assessed Biggs’s punishment at two years’ imprisonment. Biggs filed a general notice of appeal. To properly invoke the jurisdiction of this Court over an appeal from a negotiated guilty plea, an appellant must file a notice of appeal which complies with Rule of Appellate Procedure 25.2(b)(3). See White v. State, 61 S.W.3d 424, 429 (Tex. Crim. App. 2001); Tex. R. App. P. 25.2(b)(3). Biggs’s general notice of appeal does not. Accordingly, we dismiss Biggs’s appeal for want of jurisdiction.

                                                                               PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeal dismissed for want of jurisdiction

Opinion delivered and filed March 13, 2002

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[CR25]

89in; text-indent: -2.1in; margin-left: 2.1in; margin-right: 2.1in">      DEFENSE COUNSEL:   Sure.

      THE COURT:    Why don't you just pick the next one on the list and let's call and see if we can get them back up here.

(Here, an off-the-record discussion, after which the following proceeding occurred).

      THE COURT:    One of the jurors has made it known to the bailiff that he speaks no English. He does not speak or understand English. I'm going to excuse that juror and all counsel have agreed they will continue with eleven jurors. Is that correct, gentlemen?

      DEFENSE COUNSEL:   Yes, sir.

      PROSECUTOR:       That's correct.

      THE COURT:    I'll ask you [Appellant], do you agree to eleven jurors instead of twelve?

      [APPELLANT]:       Yes.

      THE COURT:    Let the record reflect [Appellant] agrees in open court.

      Article 36.29(a) provides:

Not less than twelve jurors can render and return a verdict in a felony case. It must be concurred in by each juror and signed by the foreman . . . when pending the trial of any felony case one juror may die or be 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; but when the verdict shall be rendered by less than the whole number, it shall be signed by every member of the jury concurring in it.

The language of article 36.29 and the cases which have applied it hold that its intent was to limit application to those cases where the juror was physically or mentally impaired in some way, or the parties consented to trying the case with just eleven jurors. Carrillo v. State, 597 S.W.2d 769, 771 (Tex. Crim. App. 1980).

      Because the parties agreed and Appellant's consent is on the record, the juror was "disabled" as contemplated by article 36.29. In any event, Appellant waived any error by expressly agreeing to continue with eleven jurors. Buck v. State, 599 S.W.2d 810 (Tex. Crim. App. 1980); Somudio v. State, 648 S.W.2d 312, 314 (Tex. Crim. App. 1983).

      A trial court's alleged failure to comply with the statutory requirements for selection of jury panels is not reversible error absent a showing of injury, which is not present here. Cooks v. State, 844 S.W.2d 697, 725 (Tex. Crim. App. 1992).

      Appellant's point is overruled. The judgment is affirmed.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Chief Justice Thomas,

      Justice Cummings, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed October 4, 1995

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