Government Code Section 62.201 and Article 36.29(A) of the Code of Criminal Procedure

Article 36.29(a) of the Code of Criminal Procedure states the general rule that "not less than twelve jurors can render and return a verdict in a felony case." It then sets forth an exception: "however, 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." Government Code 62.201 provides another exception: "The jury in a district court is composed of 12 persons, except that the parties may agree to try a particular case with fewer than 12 jurors." So our laws provide two instances in which a trial can proceed with eleven jurors: (1) when the parties consent under 62.201; (2) regardless of the parties' consent, when a juror dies or becomes disabled under Art. 36.29(a). In Ex parte Fierro, 79 S.W.3d 54, No. 00-1879-80, (Tex. Crim. App, 2002), one of the jurors was erroneously excused for cause because she was the defendant's cousin. Since she was not related to the defendant within the third degree of consanguinity, the trial judge erred in excusing her. In both cases, since the juror was not disabled, the only way the court could proceed with eleven jurors was under 62.201, which requires the parties' consent.