Here's the deal: Jury just sworn in, one juror stands up and announces that he is refusing to serve because he's angry at the judge for reasons unrelated to the case. Juror also indicates that his feelings toward the judge might influence how he's going to view the evidence. Juror is possibly incompetent. Judge finds the juror disabled and excuses him and then seats the next unstruck juror on the panel. For what it's worth, both sides used strikes beyond the next juror that was added. Defendant objected to excusing the juror and adding the new one. Any thoughts? Error? Mistrial? Harmless error?

Arguably the juror was, in fact, "disabled" within the meaning of 36.29 since that term has been said to mean any condition that inhibits a juror from fully and fairly performing the functions of a juror. But, just because your panel was apparently still present does not mean a 12th juror should be selected therefrom (if not originally designated and chosen as an alternate juror in accordance with 33.011). I would have to say your jury has been illegally constituted. But, the original 11 should have the power to render the verdict, so I guess so long as the unauthorized interloper's vote is not counted you are ok. But, it looks like you are headed for a violation of 36.22 if my analysis is accurate.

Guess the voir dire examination must include questions about bias as a result of who is the judge.

Martin, we thought about asking the judge to add an alternate and perhaps granting each side an additional peremptory strike. But then we checked and the juror that was added was within the original strike range, so I'm not sure how the defendant can articulate any real harm. This was really bizarre where this juror was literally bailing out of the jury box and getting ready to leave when the rest of the panel was getting up to go. And then he started rambling on about how he would not serve and didn't say anything because he didn't think he would get picked, etc.... No evidence has been presented yet. I'm wondering if we would be better served in asking the judge to just go with 11, or maybe at least get them all to sign the verdict form as Art. 36.29 provides.

For what it's worth, I think Martin is right again. If your jury of 12 was sworn and then this citizen revealed his inability to be fair and impartial, the remedy is for the court to find him disabled (and make specific findings as to how and why he is disabeld) and finish with eleven. When eleven jurors reach a verdict, all eleven must sign the verdict form.