Courtney Jay Scales v. State

Opinion to: SJR TGT TJ EVK ERA GCH LCH JB JS

Opinion issued December 20, 2010.

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00932-CR

COURTNEY JAY SCALES , Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1145246

MEMORANDUM OPINION

Accused of aggravated robbery,

Courtney Jay Scales was found guilty by a jury and sentenced to 20 years

confinement. [1]

In two points of error, appellant asserts that the trial court abused

its discretion when it dismissed a juror during deliberations, and that he

received ineffective assistance of counsel.

We reverse and remand for a new trial.

Facts

During a brief recess at

guilt/innocence deliberations, the judge received a note from the jury foreman which

read: “We have one juror who refuses to deliberate [in] this case any further

nor take the facts, testimony, of this case into account. I request she be removed from the jury.” Outside the presence of the jury, the foreman

was sworn and questioned by the judge regarding the “one juror.”

After the jury foreman left the

courtroom, defense counsel requested that the judge take the juror, later

determined to be Regina Collins, on voir dire to make his own first-person

inquiry as to the foreman’s claim. The

judge refused to do so, but then summoned the jury foreman back for additional

questioning.

Following this second exchange with

the jury foreman, and with no first-person examination of juror Collins

herself, the judge dismissed Collins and seated an alternate juror. After seating the alternate juror, the judge

summoned Collins and had some sort of discussion with her, the substance of

which is unknown because the court made no record of it. Once Collins departed from the courtroom, the

judge dictated a statement on the record that

noted his dismissal of juror Collins was “because she was unable to

deliberate.”

Within thirty-minutes of seating the

alternate juror, the jury returned a guilty verdict for appellant. No motion for new trial was filed.

Improper

Dismissal of a Juror

Appellant’s first point of error contends that the trial

court abused its discretion in dismissing Collins and replacing her with an

alternate juror because Collins had participated in deliberations and reached a

decision contrary to her fellow jurors.

Under Texas Code of Criminal Procedure article 33.011 ,

a trial court may seat an alternate juror to “replace jurors who, prior to the

time the jury renders a verdict on guilt or innocence of the defendant and, if

applicable, the amount of punishment, become or are found to be unable or

disqualified to perform their duties.” Tex. Code

Crim. Proc. Ann. art.

33.011(b) (Vernon Supp. 2010). A trial

court, however, may not dismiss a juror under this provision without a finding—supported

by the evidence—that the juror was either unable to serve or disqualified from

serving. See id. ; see also Beaumont

Bank, N.A. v. Buller ,

806 S.W.2d 223, 226 (Tex. 1991) (trial court abuses its discretion if it rules

without supporting evidence ). There is no presumption from a

silent record that a juror was properly dismissed. See Valdez v. State , 952

S.W.2d 622, 624 (Tex. App.—Houston [14th Dist.] 1997, writ ref’d) .

As it comes to us, the record contains both a fairly labored

two-part voir dire by the judge of the jury foreman and, subsequent to an

unrecorded conversation with the dismissed juror, a statement by the judge

documenting his action to dismiss juror Collins and seat an alternate

juror. The record demonstrates that

the evidence before the trial court was not sufficiently developed for the

trial court to have been able to determine that Collins was either unable or

disqualified from serving on the jury.

The only testimony presented to the trial court was that of the jury

foreman—the person requesting Collins’ removal.

Although she was present at the courthouse and available to testify,

Collins—the person in the best position to explain her conduct to the court—was

never questioned prior to her dismissal.

Had the trial court questioned Collins on the record prior to her

dismissal, as appellant’s counsel suggested, the judge likely would have been

able to gather a sufficient amount of evidence which would have enabled him to

determine whether Collins was actually unable to serve or disqualified from

serving under the statute. Cf. Hodge v. State , 896 S.W.2d 340 , 342–43

(Tex. App.—Amarillo 1995, pet. ref’d) (trial court’s questioning of juror who

was concerned about his mastery of English language showed juror was not

subject to disqualification under literacy requirements). Under these circumstances, we cannot say that the trial court

was within its discretion to remove Collins based upon such an insufficient

record.

Furthermore,

although the evidence in the record is insufficient to establish whether

Collins was subject to dismissal under the statute, the foreman’s testimony was

sufficient to demonstrate that there was—at the very least—a reasonable

possibility that his request to remove Collins was due to Collins’ view of the

merits of the case. The foreman admitted that Collins,

who had “taken the facts and law in to account and made up her mind,” was

impeding the deliberative process by refusing to “talk about her side of the case” and refusing to

take the testimony relied upon by the other jurors into consideration. Thus, at a minimum, the foreman’s testimony

suggests that Collins’ alleged refusal to deliberate could have stemmed from her

view of the sufficiency of the evidence .

Under these circumstances, we cannot

say that the trial court was within its discretion to remove Collins based upon

such an insufficient record, particularly in light of the foreman’s testimony which suggested that

Collins may have been targeted for removal due, at least in part, to her views

of the evidence. Cf. United States v. Edwards, 303 F.3d 606, 631 (5th Cir. 2002) (stating

that “a court may not dismiss a juror based upon its conclusion that

the juror is failing to

participate in the deliberative process in accordance with law unless there is

no possibility that the juror’s

problem stems from his view of the sufficiency

of the evidence”) (citing United States v. Symington, 195 F.3d

1080 (9th Cir. 1999); United States v.

Thomas , 116 F.3d 606 (2nd Cir. 1997); United States v. Brown , 823

F.2d 591, 596 (D.C. Cir. 1987)).

Having

determined that the court abused its discretion in dismissing Collins and

replacing her with an alternate juror, we must now consider whether the error

requires reversal of this trial. See Cain v. State , 947 S.W.2d 262, 264 (Tex. Crim.

App. 1997) (holding that all errors, except certain federal constitutional

errors labeled as “ structural ” by United States Supreme

Court, are subject to harm analysis). Although errors arising from the application of statutory

schemes are usually considered nonconstitutional

error , see Sneed v. State ,

209 S.W.3d 782, 788 (Tex. App.—Texarkana 2006, pet. ref’d), when the error

implicates a constitutional right, the error is more appropriately

characterized as constitutional and therefore, subject to analysis under Texas

Rule of Appellate Procedure 44.2(a). See Hernandez v. State , 60 S.W.3d 106,

108 (Tex. Crim. App. 2001) (reviewing error in application of Texas Code of

Criminal Procedure article 38.23 for constitutional error); cf. Phillips v. State , 193 S.W.3d 904 ,

913–14 (Tex. Crim. App. 2006) (holding that election errors should be analyzed

under harm standard applicable to constitutional errors, at least insofar as

error implicates notice and jury unanimity).

Although the error in the

present case arises from the application of article 33.011, the error is

nonetheless constitutional in nature because it implicates a criminal

defendant’s constitutional right to a unanimous verdict in felony cases. See

Tex. Const. art. V, § 13; see also Ngo v. State , 175 S.W.3d 738, 745

(Tex. Crim. App. 2005) (stating Texas Constitution requires jury unanimity in

felony cases). Thus, we must reverse

unless we determine beyond a reasonable doubt that the error did not contribute

to the conviction . Tex. R. App. P. 44.2(a); McQuarters

v. State , 58 S.W.3d 250, 258 (Tex. App.—Fort Worth 2001, pet. ref’d). Given the fact that the evidence in the

record indicates that there is a reasonable possibility that the jury foreman’s

request to remove Collins stemmed from Collins’ view of the sufficiency

of the evidence , we simply cannot determine—much less beyond a

reasonable doubt—that Collins’ erroneous removal did not contribute to

appellant’s conviction.

Accordingly, we sustain appellant’s

first point of error. Having done so, we

need not address appellant’s second point of error.

CONCLUSION

We reverse the judgment of the trial court, and

remand the case for a new trial.

Jim

Sharp

Justice

Panel

consists of Chief Justice Radack and Justices Bland and Sharp.

Do not publish. Tex.

R. App. P. 47.2 (b) .

[1] Tex. Penal Code Ann . § 29.03(a)(2), (b)

(Vernon 2003).