Kelly Wayne Lamon v. State, 06-14-00241-CR

Defendant Kelley Wayne Lamon was convicted by a jury of assaulting a public servant and sentenced to 12 years' imprisonment.
After the jury was empaneled and sworn, a seated juror (Juror Yaross) stated he had a "bad problem with any man attacking a woman" and expressed uncertainty he could be fair, particularly about sentencing.
The trial court, sua sponte, excused that juror during trial and the parties discussed proceeding with an eleven-person jury; defense counsel objected and later moved for a mistrial, which was denied.
Appellant preserved the complaint about juror removal and contends the excusal was improper because the juror's stated bias amounted to prejudice, not a mental or physical disability under article 36.29.
Appellant argues the removal was fundamental or, at minimum, harmful error because it resulted in trial by eleven jurors rather than twelve and no alternate was seated.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a juror's statement that he has a strong problem with "any man attacking a woman" justified excusal under the statute permitting removal of a juror who is "disabled" (physically or mentally) so as to hinder performance of juror duties	State: juror's expressed inability to predict his reactions and possible unwillingness to consider minimum punishment showed he could not perform impartially, supporting excusal	Lamon: juror expressed bias/prejudice, which is challengeable for cause during voir dire, but does not amount to a mental impairment under art. 36.29; removal after empanelment was an abuse and produced harmful/fundamental error (11-person jury)	Trial court excused the juror; defense objection and mistrial motion were denied. Appellant argues on appeal that excusal was improper and harmful/fundamental error (appellate decision not included in brief)

Brooks v. State, 990 S.W.2d 278 (Tex. Crim. App. 1999) (disability under art. 36.29 requires impairment that hinders performance of juror duties)
Landrum v. State, 788 S.W.2d 577 (Tex. Crim. App. 1990) (bias does not equal disability under art. 36.29)
Ex Parte Hernandez, 906 S.W.2d 931 (Tex. Crim. App. 1995) (prejudice or bias is not a statutory "disability" warranting removal after empanelment)
Marin v. State, 851 S.W.2d 275 (Tex. Crim. App. 1993) (discussing preservation and types of rights related to appellate review)
Ransom v. State, 920 S.W.2d 288 (Tex. Crim. App. 1994) (erroneous grant of challenge for cause in criminal trial is generally harmful error)
Schutz v. State, 63 S.W.3d 442 (Tex. Crim. App. 2001) (appellate court's role in assessing harm under Rule 44.2(b))