Courtney Jay Scales v. State

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

Opinion issued April 14, 2011.

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

In light of the petition for discretionary

review filed by appellee , we withdraw our previous

opinion of December 20, 2010. Our judgment

of the same date remains unchanged. We

substitute the following opinion in its stead.

See Tex. R. App. P. 50.

A jury found appellant, Courtney Jay

Scales, guilty of aggravated robbery and assessed his punishment at 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 jury foreman Jim

O’Neil which read: “We have one juror who refuses to deliberate 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

because Collins had participated in deliberations and reached a decision

contrary to her fellow jurors. Appellant

further contends that because Collins’ dismissal apparently stemmed from her

view of the sufficiency of the

evidence, her dismissal deprived him of his constitutional right to a unanimous

jury verdict. 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); see generally United States v. Thomas , 116 F.3d 606 ,

621 (2nd Cir. 1997) (“to remove a juror because he is unpersuaded

by the Government’s case is to deny the defendant his right to a unanimous

verdict”).

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. 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 into 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 to, at least in part, her views

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

“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, 1087 (9th Cir. 1999); Thomas ,

116 F.3d at 622–23; United States v. Brown , 823 F.2d 591, 596 (D.C. Cir.

1987)). Not only did the trial court’s

dismissal of Collins fail to comply with the statutory requirements of article

33.011, but, more importantly, Collins’ dismissal also deprived appellant of his constitutional right to a unanimous jury

verdict.

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). Since Collins’ dismissal deprived appellant of his constitutional

right to a unanimous jury verdict, the error in this case is constitutional in

nature and therefore, subject to analysis under Texas Rule of Appellate

Procedure 44.2(a). See McClellan v. State , 143 S.W.3d 395 ,

400–01 (Tex. App.—Austin 2004, no pet.) (applying constitutional harm analysis

to trial court’s erroneous dismissal of juror; stating “[t] hat

the legislature codified [the right to a twelve-person jury] does not transform

it into a statutory, non-constitutional right, and the issue here is not a

violation of [ Texas

Code of Criminal Procedure Article 36.29], but rather of the Texas Constitution”);

Rivera v. State , 12 S.W.3d 572, 579 (Tex. App.—San Antonio 2000,

no pet.) ( applying constitutional harm analysis to

trial court’s erroneous dismissal of juror when dismissal violated appellant’s

constitutional right). The State cites

to several cases for the proposition that the error in this case is

non-constitutional and therefore, subject to analysis under Texas Rule of Appellate Procedure 44.2(b). See

Chavez v. State , 91 S.W.3d 797

(Tex. Crim. App. 2002); Sneed v. State , 209 S.W.3d 782 (Tex.

App.—Texarkana 2006, pet. ref’d ); Ponce v. State , 68 S.W.3d 718 (Tex.

App.—Houston [14th Dist.] 2001, pet. ref’d ); Bina v. State , No. 01-06-00557-CR, 2008 WL

256897 (Tex. App.—Houston [1st Dist.] Aug. 20, 2008, pet.

ref’d ) ( mem .

op.).

Chavez , Sneed , Ponce , and Bina [2] are,

however, distinguishable from the present case because in each of those cases, the reviewing court determined that the

error involved the violation of a purely

statutory right , not a constitutional one. See Chavez , 91 S.W.3d at 801 (applying non-constitutional harm

analysis because appellant complained of violation of statute detailing juror

replacement procedure, not violation of his constitutional rights;

distinguishing Rivera on this basis).

Because the error in this case is

constitutional, 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).

[2] Although this Court included a harm analysis in Bina , that portion of the opinion is not binding

precedent. See Bina v. State , No. 01-06-00557-CR, 2008 WL

256897 , *3 (Tex. App.—Houston [1st Dist.] Aug. 20, 2008, pet.

ref’d ) ( mem .

op.) ( finding no error in trial court’s dismissal of

juror under Texas Code of Criminal Procedure Article 36.29; stating in dicta

that error in application of article 36.29 is non-constitutional error).