concurring.
I concur in the result reached by the majority.
In her first ground of error appellant complains that a juror was excused and the trial court erroneously permitted the trial to continue to a verdict with only eleven jurors. During the cross-examination of the undercover narcotics officer, a juror made known to the court that she had been a member of the grand jury that indicted appellant. The trial court disqualified and excused the juror and continued the proceedings with eleven jurors.
Article 36.29(a) of the Texas Code of Criminal Procedure provides that when a juror dies or is disabled from sitting before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict. The determination as to whether a juror is disqualified, within the meaning of the article, is within the discretion of the trial court. Bass v. State, 622 S.W.2d 101, 106 (Tex.Crim.App.1981), cert. denied, 456 U.S. 965, 102 S.Ct. 2046, 72 L.Ed.2d 491 (1982). Appellant’s first ground of error should be overruled.
The controlling question concerns the trial court’s restriction of jury argument, over objection, to ten minutes. Specifically, the asserted contention in this ground of error is that the trial court, by limiting jury argument to ten minutes, effectively denied appellant a fair trial as guaranteed by the United States Constitution and the Texas Constitution.
The analysis of this question could be limited to the Texas Bill of Rights and we would still reach the same conclusion. Article I, section 10, of the Texas Constitution guarantees that the accused “shall have the right of being heard by himself or counsel, or both.” This has been interpreted as a right of the accused to be heard in argument on the law and facts of the case. Anselin v. State, 72 Tex.Crim. 17, 160 S.W. 713 (1913). Texas courts have consistently ruled that the constitutional guarantee to an accused of the right to be heard by himself or counsel includes the right to make jury argument. Christoph v. State, 166 Tex.Cr.R. 453, 314 S.W.2d 840, 840 (Tex.Crim.App.1958). In the early case of McLean v. State, 24 S.W. 898 (Tex.Crim.App.1894), the court in an undisturbed ruling held that where there were several witnesses and conflicting evidence, limiting counsel to seventeen minutes for jury argument was reversible error. Thus, it would seem that limiting appellant to ten minutes for jury argument in this case is tantamount to a complete denial of the right to make jury argument.
The purpose and objective of the Bill of Rights was to limit government by recognizing certain rights of the individual which may not be infringed upon or denied. Bra-den, Article 1, Introduction, in 1 THE CONSTITUTION OF THE STATE OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 2 (1977). Any claim of infringement or denial of rights on constitutional ground requires close scrutiny. In the instant case appellant was tried for an-offense which carries a penalty of five years to ninety-nine years confinement. See Controlled Substances Act, § 401(b)(1). There were four defense witnesses, several defense motions and conflicting testimony. Article I, section 10 of the state constitution encompasses a greater protection for the accused in this regard than does the sixth amendment of the United States Con*67stitution, which is directed to the right to assistance of counsel for the defense.
The right to closing jury argument was addressed by the United States Supreme Court in Herring v. New York, 422 U.S. 853, 859, 95 S.Ct. 2550, 2553, 45 L.Ed.2d 593, 598 (1975), wherein the court stated:
[T]he right to the assistance of counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary fact-finding process that has been constitutionalized in the Sixth and Fourteenth Amendments.
* * * * * *
There can be no doubt that closing argument for the defense is a basic element of the adversary fact-finding process in a criminal trial.
Herring v. New York, 422 U.S. at 859, 95 S.Ct. at 2553.
It is inconceivable that an allocation of ten minutes can be considered sufficient to argue a case where the accused faces a penalty of up to ninety-nine years confinement. Obviously, appellant did not have ample time to exercise his basic right to adequately argue the conflicts and inconsistencies in the testimony, the credibility of the defense witnesses, and the application of the law to the facts. Appellant’s second ground of' error should be sustained.
I would therefore reverse the judgment and remand the cause on the second ground of error.