In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-22-00157-CR ________________
JEFFREY MERRITT MCCUMBER JR., Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 411th District Court Polk County, Texas Trial Cause No. 28,302 ________________________________________________________________________
OPINION
This case is on remand to our Court from the Texas Court of Criminal
Appeals. A jury convicted Jeffrey Merritt McCumber Jr. of continuous sexual abuse
of a young child, “Angie,” and assessed punishment at sixty years of confinement. 1
1 We use pseudonyms to refer to the alleged victim, a minor child, and the child’s family members. See Tex. Const. art. 1, § 30(a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal judicial process”). 1 See Tex. Penal Code Ann. § 21.02. In two issues, McCumber complained the trial
court erred by: 1) allowing the outcry witness to testify remotely; and 2) denying his
Motion for Mistrial when two jurors were released by the bailiff and replaced by
alternate jurors. This Court reversed Appellant’s convictions in an unpublished
opinion on June 21, 2023. See McCumber v. State, No. 09-22-00157-CR, 2023 WL
4098960, at *10 (Tex. App.—Beaumont June 21, 2023) (mem. op., not designated
for publication) (McCumber I). The trial court overruled Appellant’s Confrontation
Clause objection and allowed the outcry witness to testify via Zoom. See id. at *3.
We held that “the trial court failed to make the required individualized findings on
necessity[,]” and “the State failed to show that allowing [the outcry witness] to
testify remotely was necessary to further an important public policy.” See id. at *8
(citations omitted). We did not reach McCumber’s second issue. See id. at *9.
The Court of Criminal Appeals granted discretionary review, and in a 4-3-2
decision, the plurality held that the trial court’s necessity finding was sufficient and
was justified by the witness’s fear of retaliation and reversed our judgment. See
McCumber v. State, 690 S.W.3d 686, 689 (Tex. 2024) (McCumber II). The Court
remanded the cause to this Court for further proceedings. See id. at 694. We now
address McCumber’s second issue.
2 I. BACKGROUND
We limit our background discussion to those facts necessary to resolve
McCumber’s second issue complaining that two regular jurors were improperly and
inadvertently released then replaced with two alternates.
Voir dire began with the trial court’s instructing the jury about the necessary
qualifications to serve as a juror, including being a United States citizen, a citizen of
Texas, and a citizen of Polk County. He also told them they must not be under
indictment, be at least eighteen years of age, and be able to read and write English.
He explained they “must be of sound mind and good moral character[,]” and “must
not have served on a jury for six days in the preceding three months in county court
or six days in the preceding six months in district court.” The trial court then asked
(1) if everyone met those qualifications, and (2) if anyone did not meet the
qualifications. No potential jurors suggested they were unqualified.
The parties exercised their challenges and strikes, including strikes from two
panels of potential alternates, after which the trial court seated a jury of twelve, plus
two alternates. The record suggests that the two alternates were numbers 41 and 50.
After closing arguments, the jury retired to deliberate guilt at 9:37 a.m. and
returned to the courtroom at 11:13 for the trial court to respond to three questions,
then the jury resumed deliberations at 11:15 a.m. At this time, the trial court learned
the bailiff had inadvertently excused two regular jurors who he mistakenly believed
3 were alternates, and thereafter the two who began the trial as alternates deliberated
with the other ten jurors. The bailiff explained that he excused the “two at the end,”
and that nobody told him who the alternates were. After a brief discussion, the trial
court stated, “So we dismissed two regular jurors and we’re left with the two
alternates[.]”
The State noted that the jurors themselves also did not know who the
alternates were. The State explained that the alternates had been there since
deliberations began. The State also asserted that both sides had “an opportunity to
exercise a peremptory strike on the alternates or to raise a challenge for cause as to
either of them. . . I don’t see where there is any harm for them being substituted in,
albeit inadvertently . . . to reach a decision.” The State reiterated there was no harm
since they were voir dired the same way as the other jurors, and both sides had
opportunities to raise challenges for cause or to use peremptory strikes on them. The
State further argued that the alternates participated in the deliberations from the
beginning, including presumably being involved in sending the notes out to the trial
court, and there would be no harm in allowing them to continue. The State continued,
“unless there is some showing that they are back there and in some respect bias[ed]
or prejudiced, disqualified, I don’t see how there can be any assertion that there is
any harm.” The trial court agreed “that the whole 12 have been deliberating the
whole time[.]”
4 McCumber objected to the two alternates being on the panel without showing
that the two jurors seated among the original twelve, “that they were capable and
competent to continue to deliberate.”2 The trial court overruled the objection, then
McCumber moved for a mistrial, which the trial court denied.
The jury subsequently sent a note to the trial court conveying they disagreed
over certain testimony regarding the specifics of one of the sexual assaults and
requested certain testimony be read back to them. The trial court then had the
reporter read the testimony into the record where Angie described McCumber
forcing her to engage in a sex act. After reading the testimony, the judge sent the
jury back to continue deliberations, and they returned less than fifteen minutes later
with a guilty verdict. Neither side polled the jury.
II. ANALYSIS
On remand, we address McCumber’s second issue, in which he argues the
trial court committed reversible error by denying his Motion for Mistrial when two
regular jurors were inadvertently released by the bailiff and replaced by two alternate
jurors. Specifically, he argues that “[s]ince the two jurors were not properly found
to be disabled, the trial court committed constitutional error[.]” McCumber contends
2 It appears from the record that counsel misspoke, but the record shows the trial court understood the objection to be that there had not been a showing that the two original jurors were incapable or incompetent to continue deliberations. 5 the two regular jurors were released in violation of Texas Constitution Article 5,
section 13 and Texas Code of Criminal Procedure articles 33.011(b) and 36.29(c).
See Tex. Const. art. V, § 13; Tex. Code Crim. Proc. Ann. art. 33.011. The State
responds that absent a showing Appellant was deprived of a fair and impartial jury,
his point of error cannot be sustained.
Standard of Review
We review a trial court’s denial of a motion for mistrial under an abuse of
discretion standard. See Becerra v. State, 685 S.W.3d 120, 127 (Tex. Crim. App.
2024). Under an abuse of discretion standard, we do not substitute our judgment for
the trial court’s, instead we decide whether the trial court’s decision was arbitrary or
unreasonable. See id. A trial court abuses its discretion when no reasonable view of
the record could support his ruling. See id.
Law and Application
First, we address McCumber’s assertion the trial court violated Article V,
section 13 of the Texas Constitution, which guarantees that in all District Court
felony cases, petit juries “shall be composed of twelve persons[.]” Tex. Const. art.
V, § 13. With respect to this argument, Becerra controls our analysis. Becerra, 685
S.W.3d at 120. In Becerra, the trial court inadvertently allowed an alternate juror to
go into the jury deliberation room and participate in a vote on guilt with the twelve-
member regular jury. Id. at 122. When the mistake was discovered, the alternate
6 juror was removed from the deliberation room. Id. at 123. On appeal, Becerra
complained that the alternate juror’s participation in deliberations violated Article
V, section 13 of the Texas Constitution and articles 33.01, 33.011 and 36.22 of the
Texas Code of Criminal Procedure. See id. at 127. Holding that Article V, section
13 was not violated, the Court of Criminal Appeals explained:
Article V, sec. 13 of the Texas Constitution refers to the composition of the jury and uses the word ‘composed’ which refers to the formation of the jury. Article 33.01 is specifically titled ‘Jury Size.’ These provisions do not contain references to ‘alternate jurors,’ nor do they contain terms that suggest that an alternate juror becomes a member of the jury if he or she participates in a jury’s ‘ultimate verdict.’ A jury is necessarily composed before it retires to deliberate.
...
It is only when the alternate juror replaces a member of the jury that the alternate juror can be said to be a member of the regular jury. The only way a district court runs afoul of the constitutional and statutory provisions setting the number of jurors is to impanel a jury of greater or fewer than twelve jurors in a felony case.
Id. at 129-30, 132. Here, the jury was composed of twelve jurors when the trial court
impaneled twelve regular jurors and two alternate jurors. Later, when the jury retired
to deliberate, two of the regular jurors were mistakenly released and replaced by the
two alternate jurors, at which time the two alternate jurors “can be said to [have
become] member[s] of the regular jury.” Id. at 132. At that point, the jury was still
composed of twelve members: ten who began as regular jurors and two who began
as alternate jurors. It cannot be said that the original two continued to be members
7 of the jury after they were dismissed and replaced by the two alternates. Therefore,
based on the record, the jury was at all times composed of twelve members.
In Ponce v. State, 68 S.W.3d 718 (Tex. App.—Houston [14th Dist.] 2001, pet.
ref’d), after the jury had reached a verdict, and while the jury was being polled, the
court discovered that “[o]ne juror who had been charged was absent, and it became
apparent the alternate juror had served in his place. After an off-record bench
conference, the court continued polling the jury, including the alternate, and then
excused the jury.” Id. at 720. On appeal, Ponce argued that replacing the regular
juror with the alternate after the jury was charged violated Article V, section 13 of
the Texas Constitution and articles 33.011 and 36.029 of the Texas Code of Criminal
Procedure and that the trial court erred in overruling his motions for mistrial and
new trial. Id. at 719. The Court of Appeals disagreed, explaining, “Since the trial
court in this case placed the alternate on the jury before the jury retired, the alternate
did not lose his ability to exercise the same functions and powers as any other juror.
The issue, therefore, is in failing to follow the method of constituting the jury set by
the legislature, not in failing to provide a twelve-person jury.” Id. at 721. See also
Hill v. State, 475 S.W.3d 407, 409 (Tex. App.—Houston [14th Dist.] 2015, pet.
ref’d) (“Even though it was error to dismiss the original juror, the jury was composed
of 12 properly selected members.”).
8 It is noteworthy that in Becerra, a total of thirteen people actually participated
in deliberations, at least for a time, and all thirteen participated in a vote on the
defendant’s guilt or innocence, yet the Court of Criminal Appeals held that Article
V, section 13 was not violated because the regular jury was always “composed” of
twelve members. Becerra, 685 S.W.3d at 134. At no time did the jury in this case
consist of more or less than twelve jurors, and at no time were there more or less
than twelve people participating in deliberations or voting on McCumber’s guilt or
innocence or punishment. Therefore, we hold the trial court did not violate the
twelve-juror requirement of Article V, section 13 of the Texas Constitution when it
overruled McCumber’s objection and motion for mistrial and allowed the jury to
continue its deliberations and reach its verdict with respect to guilt and punishment.
Next, we address McCumber’s assertion the trial court violated Texas Code
of Criminal Procedure article 33.011, which provides,
(a) In district courts, the judge may direct that not more than four jurors in addition to the regular jury be called and impaneled to sit as alternate jurors. In county courts, the judge may direct that not more than two jurors in addition to the regular jury be called and impaneled to sit as alternate jurors.
(b) Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury renders a verdict on the 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 or are found by the court on agreement of the parties to have good cause for not performing their duties. Alternate jurors shall be drawn and selected in the same manner, shall have the
9 same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, security, and privileges as regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury has rendered a verdict on the guilt or innocence of the defendant and, if applicable, the amount of punishment.
Tex. Code Crim. Proc. Ann. art. 33.011. Although the trial court complied with the
statute’s requirements regarding selection and qualification of alternate jurors, we
agree with McCumber that the trial court erred when it permitted two alternate jurors
to replace two regular jurors without making a finding, supported by the record, that
the regular jurors were unable or disqualified to perform their duties. Scales v. State,
380 S.W.3d 780, 784 (Tex. Crim. App. 2012).
The dissent asserts, “Absent a determination that the two sitting jurors the
bailiff dismissed were disabled or disqualified, then replacing them, the two
alternates did not become members of the regular jury in accordance with the process
set forth in Texas Code of Criminal Procedure article 33.011(b).” (Citing Becerra,
685 S.W.3d at 131). But no juror was dismissed in Becerra, so the court was not
faced with the question whether alternates become regular jurors when they take the
place of jurors who are dismissed without the requisite findings. Instead, the issue
was whether an alternate became a thirteenth juror by virtue of being present and
participating in deliberations with twelve regular jurors, none of whom was
dismissed at any time during the trial. In reaching the conclusion that the alternate
10 did not become a thirteenth juror, the Texas Court of Criminal Appeals held, “It is
only when the alternate juror replaces a member of the jury that the alternate juror
can be said to be a member of the regular jury.” Id. at 132. Applying this holding to
the facts of our case, we conclude the two alternates became members of the regular
jury when they replaced the two regular jurors who were dismissed.
We acknowledge Becerra also includes language, relied on by the dissent, that
“[a]n alternate juror is not a member of the regular jury until a trial court makes the
determination that a sitting juror is disabled or disqualified and the trial court then
replaces a sitting juror who becomes unable to perform his or her duties with an
alternate juror.” Id. at 131. But, for the reasons above, we conclude the additional
language included in this expanded formulation of Becerra’s actual holding is dicta.
We also acknowledge the trial court did not make the requisite findings to
replace jurors in this case, and we agree this was error. But to conclude that the
alternates did not replace the regular jurors in this case would be to ignore the record
before us which shows that at the conclusion of closing arguments two jurors were
released and two alternates took their place. It would also change the issue before us
because McCumber does not assert the two alternates never became regular jurors.
Rather, McCumber’s second issue asserts, “The trial court committed reversible
error by denying Appellant’s motion for mistrial when two jurors had been released
by the bailiff and replaced by alternate jurors.” (Emphasis added). We agree with
11 McCumber the replacement was error in the absence of the required findings, but as
discussed below, we hold such error was harmless.
Next, we address McCumber’s assertion that the trial court’s error in this case
amounted to constitutional error, requiring reversal “unless the court determines
beyond a reasonable doubt that the error did not contribute to the conviction or
punishment.” Tex. R. App. P. 44.2(a). The Sixth Amendment to the United States
Constitution provides the right of the accused to an impartial jury. See Duncan v.
Louisiana, 391 U.S. 145, 152-53 (1968) (“Objections to the Constitution because of
the absence of a bill of rights were met by the immediate submission and adoption
of the Bill of Rights. Included was the Sixth Amendment which, among other things,
provided: ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the crime shall
have been committed.’”) (internal citations omitted). Id. “The right embodied in this
clause of the Sixth Amendment is one that, under the Due Process Clause of the
Fourteenth Amendment, states may not deny. But the constitutional right to trial by
an impartial jury is not violated by every error in the selection of a jury.” Jones v.
State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998) (citing Duncan, 391 U.S. 145).
When a trial court fails to follow the statutory procedures for replacing a
regular juror with an alternate juror, the error is “not of constitutional dimension.”
Hill, 475 S.W.3d at 408; Sneed v. State, 209 S.W.3d 782, 788 (Tex. App.—
12 Texarkana 2006, pet. ref’d); Ponce, 68 S.W.3d at 721. Because this case does not
involve constitutional error, we apply the standard set forth in Texas Rule of
Appellate Procedure 44.2(b) and must disregard the error unless it affected
McCumber’s substantial rights. Tex. R. App. P. 44.2(b); see Scales, 380 S.W.3d at
787 (applying Rule 44.2(b) when reviewing a violation of article 33.011). “An error
affects substantial rights only if it has a substantial or injurious effect in determining
the jury’s verdict.” Becerra, 685 S.W.3d at 144 (citations omitted). If, after
examining the whole record, a court has “fair assurance that the error did not
influence the jury, or had but a slight effect, a reviewing court should not overturn
the conviction.” Id. (citation omitted). Neither party has the burden to demonstrate
whether the appellant was harmed; rather, it is the appellate court’s responsibility to
assess harm based on a review of the record. See id. at 139 (citation omitted).
We begin our harm analysis with the observation that “a defendant has no
right that any particular individual serve on the jury. The defendant’s only
substantial right is that the jurors who do serve be qualified.” Jones, 982 S.W.2d at
393. Appellate courts, including this Court, have held that erroneous substitution of
jurors is harmless and does not affect a defendant’s substantial rights “where: (1) the
record shows the alternate juror seated in the discharged juror’s place was subjected
to the same selection process, properly sworn, heard all of the evidence, heard the
trial court’s charge, and seated before the jury retired; and (2) the record does not
13 show any taint from the alternate juror seated in the discharged juror’s place.”
Delarosa v. State, Nos. 05-11-00312-CR, 05-11-00313-CR, 05-11-00314-CR, 2013
Tex. App. LEXIS 3532, at *4 (Tex. App.—Dallas Mar. 26, 2013, no pet.) (mem.
op., not designated for publication); Harrison v. State, Nos. 09-16-00329-CR, 09-
16-00330-CR, 2017 Tex. App. LEXIS 7238, at *6 (Tex. App.—Beaumont Aug. 2,
2017, no pet.) (mem. op., not designated for publication); Hill, 475 S.W.3d at 409;
Whitehead v. State, 437 S.W.3d 547, 556 (Tex. App.—Texarkana 2014, pet. ref’d);
Sneed, 209 S.W.3d at 788; Ponce, 68 S.W.3d at 722; Guajardo v. State, Nos. 05-15-
00365-CR, 05-15-01302-CR, 2016 Tex. App. LEXIS 4124, at *10 (Tex. App.—
Dallas Apr. 20, 2016, no pet.) (mem. op., not designated for publication); Bina v.
State, No. 01-06-00557-CR, 2008 Tex. App. LEXIS 667, at *7 (Tex. App.—
Houston [1st Dist.] Jan. 31, 2008, pet. ref’d) (mem. op., not designated for
publication).
The record in this case indicates the two alternate jurors were examined and
selected in the same way as the regular jurors. At the conclusion of voir dire, each
side was allowed two additional peremptory strikes for the purpose of selecting
alternate jurors, one strike for each of the two groups of three panel members from
whom the potential alternate jurors would be selected. After the attorneys exercised
their strikes, the clerk called fourteen names without indicating which twelve were
regular jurors and which two were alternate jurors. All fourteen then took the same
14 oath, received the same admonitory instructions, heard the same evidence, received
the same charge from the court, and heard the same arguments of counsel. Pursuant
to article 33.011(b), the two jurors who began as alternates had “the same functions,
powers, facilities, security, and privileges as regular jurors.” Tex. Code Crim. Proc.
Ann. art. 33.011(b). Throughout the trial the alternate jurors were indistinguishable
from the regular jurors. See U.S. v. Olano, 507 U.S. 725, 740 (1993) (finding two
alternate jurors were “indistinguishable” from twelve regular jurors under similar
circumstances).
The record does not indicate any taint from the two jurors who began the trial
as alternate jurors and finished the trial as regular jurors. Therefore, we conclude
McCumber’s substantial rights were not affected, and the trial court’s error in
replacing the two regular jurors with the two alternates without satisfying the
requirements of article 33.011(b) was harmless and must be disregarded. Tex. R.
App. P. 44.2(b).
Lastly, we address McCumber’s assertion the trial court violated Texas Code
of Criminal Procedure article 36.29(c), which provides,
After the charge of the court is read to the jury, if a juror becomes so sick as to prevent the continuance of the juror’s duty and an alternate juror is not available, or if any accident of circumstance occurs to prevent the jury from being kept together under circumstances under which the law or the instructions of the court requires that the jury be kept together, the jury shall be discharged, except that on agreement on the record by the defendant, the defendant’s counsel, and the attorney
15 representing the state 11 members of a jury may render a verdict and, if punishment is to be assessed by the jury, assess punishment. If a verdict is rendered by less than the whole number of the jury, each member of the jury shall sign the verdict.
Tex. Code Crim. Proc. Ann. art. 36.29(c). In the absence of an agreement between
the defendant and the State, article 36.29(c) requires a trial court to discharge a jury
when either of two conditions occur after the charge is read to the jury: (1) a juror
becomes too sick to continue and no alternates are available, or (2) circumstances
prevent the jury from being kept together when the law or the court’s instructions
require the jury to be kept together. Neither condition occurred in this case. No juror
became sick. After the charge was read, the twelve original jurors (and two
alternates) were kept together during closing arguments. At the conclusion of the
arguments, although the membership of the jury changed, the jury (as it was then
composed) was kept together throughout deliberations resulting in the rendition of a
guilty verdict, followed the punishment stage, further deliberations, and ultimately
rendition of a verdict on punishment. Because article 36.29(c) was never triggered,
it was not necessary for the trial court to discharge the jury.
III. CONCLUSION
We conclude that, although the trial court erred in allowing two regular jurors
to be replaced by two alternates without a showing of inability or disqualification,
the error was harmless because the record indicates the alternates were functionally
16 indistinguishable from the original jurors they replaced. Therefore, the trial court did
not abuse its discretion when it denied McCumber’s motion for mistrial. We overrule
McCumber’s second issue.
Having overruled McCumber’s second issue, we affirm the trial court’s
judgment.
AFFIRMED.
KENT CHAMBERS Justice
Submitted on August 8, 2024 Opinion Delivered December 11, 2024 Publish
Before Golemon, C.J., Wright and Chambers, JJ.
17 DISSENTING OPINION
The Majority holds the trial court did not abuse its discretion when it denied
McCumber’s motion for mistrial. Because I would hold that the trial court
committed harmful non-constitutional error, I respectfully dissent.
The Texas Constitution guarantees that in all District Court felony cases, petit
juries “shall be composed of twelve persons[.]” Tex. Const. art. V, § 13. Texas Code
of Criminal Procedure article 33.011 provides,
(a) In district courts, the judge may direct that not more than four jurors in addition to the regular jury be called and impaneled to sit as alternate jurors. In county courts, the judge may direct that not more than two jurors in addition to the regular jury be called and impaneled to sit as alternate jurors.
(b) Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury renders a verdict on the 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 or are found by the court on agreement of the parties to have good cause for not performing their duties. Alternate jurors shall be drawn and selected in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, security, and privileges as regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury has rendered a verdict on the guilt or innocence of the defendant and, if applicable, the amount of punishment.
Tex. Code Crim. Proc. Ann. art. 33.011. Further article 36.29(c) instructs,
After the charge of the court is read to the jury, if a juror becomes so sick as to prevent the continuance of the juror’s duty and an alternate juror is not available, or if any accident of circumstance occurs to
1 prevent the jury from being kept together under circumstances under which the law or the instructions of the court requires that the jury be kept together, the jury shall be discharged, except that on agreement on the record by the defendant, the defendant’s counsel, and the attorney representing the state 11 members of a jury may render a verdict and, if punishment is to be assessed by the jury, assess punishment. If a verdict is rendered by less than the whole number of the jury, each member of the jury shall sign the verdict.
Id. art. 36.29(c).
The Court of Criminal Appeals recently decided Becerra v. State, which the
Majority agrees controls our disposition of this matter. See 685 S.W.3d 120, 127
(Tex. Crim. App. 2024). In Becerra, the Court of Criminal Appeals held that sending
the alternate juror back to deliberate with the twelve jurors constituted a statutory
error and remanded the case for a statutory harm analysis. See id. at 122.
The Court explained that “composed” used in Texas Constitution Article V,
section 13 “refers to the formation of the jury.” Id. at 129. The Court added that “[a]
jury is necessarily composed before it retires to deliberate.” Id. at 130. In discussing
article 33.011 entitled “Alternate Jurors,” the Court explained that “the context of
the statute makes clear that the jurors are not considered part of the ‘regular jury.’”
Id. at 131 (quoting Tex. Code Crim. Proc. Ann. art. 33.011(a)). The Court noted that
the alternates sit “‘in addition’ to the regular jury” and the statute “clarifies that they
are ‘alternate jurors.’” Id. (quoting Tex. Code Crim. Proc. Ann. art. 33.011(a)). The
Court in Becerra determined, “An alternate juror is not a member of the regular jury
2 until a trial court makes the determination that a sitting juror is disabled or
disqualified and the trial court then replaces a sitting juror who becomes unable to
perform his or her duties with an alternate juror.” Id. (citing Scales v. State, 380
S.W.3d 780, 783 (Tex. Crim. App. 2012)) (other citations omitted). This seemingly
reflects a two-step process: (1) the trial court must determine a sitting juror is
disabled or disqualified; and (2) then, the trial court will then replace the sitting juror
who becomes unable to perform his or her duties with an alternate. See id.
The record before us demonstrates that when the jury was empaneled, it was
“composed” of twelve jurors, thus satisfying Article V, section 13. See Tex. Const.
art. V, § 13; Becerra, 685 S.W.3d at 129–30. Later, the bailiff mistakenly released
the two regular jurors when the jury retired to deliberate. At that juncture, the jury
of twelve had already been composed. See Becerra, 685 S.W.3d at 129–30. Even so,
the trial court did not first determine that the two sitting jurors were disabled or
disqualified, then replace them with alternate jurors. See id. at 131; see also Tex.
Code Crim. Proc. Ann. art. 33.011(b). Rather, the bailiff inadvertently dismissed the
two sitting jurors without the trial court realizing it happened until after deliberations
were almost concluded. Absent a determination that the two sitting jurors the bailiff
dismissed were disabled or disqualified, then replacing them, the two alternates did
not become members of the regular jury in accordance with the process set forth in
Texas Code of Criminal Procedure article 33.011(b). See Becerra, 685 S.W.3d at
3 131. When the trial court empaneled the jury, there were twelve regular sitting jurors,
thus the petit jury was “composed” of the constitutionally required twelve members.
See id. at 129–30; see also Tex. Const. art. V, § 13.
“When . . . one or more jurors not exceeding three, may die, or be disabled
from sitting, the remainder of the jury shall have the power to render the verdict[.]”
Tex. Const. art. V, § 13. That provision does not set forth any procedures that “must
be adhered to following the dismissal.” Chavez v. State, 91 S.W.3d 797, 801 (Tex.
Crim. App. 2002). The statutes violated in this case are meant to protect a
constitutional right to a twelve-member jury by providing procedures for dismissing
jurors and replacing them with alternates. See id. at 800 (“The failure of a trial court
to adhere to a statutory procedure related to a constitutional provision is a violation
of the statute, not a violation of the constitutional provision itself.”).
Article 36.29 requires that “if any accident of circumstance occurs to prevent
the jury from being kept together under circumstances under which the law or the
instructions of the court requires that the jury be kept together, the jury shall be
discharged[.]” See Tex. Code Crim. Proc. Ann. art. 36.29. That provision allows for
an exception and a verdict to be rendered by eleven jurors if the defendant, defense
counsel, and counsel for the State agree on the record in some cases. See id. The
record here shows that there were only ten regular jury members present, and the
4 record further shows that the parties did not agree. See id. Therefore, the jury should
have been discharged. See id.
Since the jury when empaneled was “composed” of twelve sitting jurors, it
did not violate Article V, section 13, and thus did not constitute constitutional error.
See Tex. Const. art. V, § 13; Becerra, 685 S.W.3d at 129–30. But this record reveals
the trial court committed non-constitutional error in two respects by: (1) failing to
determine two sitting jurors were disabled or disqualified, then failing to replace
them with alternate jurors in violation of article 33.011; and (2) failing to discharge
a jury where accident or circumstances prevent them from being kept together. See
id. arts. 33.011(b), 36.29.
When the record reveals non-constitutional errors, we must conduct a harm
analysis under Rule 44.2(b). See Tex. R. App. P. 44.2(b); Becerra, 685 S.W.3d at
140 (explaining that a statutory violation of article 36.29 is subject to a 44.2(b) harm
analysis). Rule 44.2(b) requires us to disregard any error “that does not affect
substantial rights.” Tex. R. App. P. 44.2(a); see Becerra, 685 S.W.3d at 144. “An
error affects substantial rights only if it has a substantial or injurious effect in
determining the jury’s verdict.” Becerra, 685 S.W.3d at 144 (citations omitted). If,
after examining the whole record, a court has “fair assurance that the error did not
influence the jury, or had but a slight effect, a reviewing court should not overturn
the conviction.” Id. (citation omitted). It is the appellate court’s responsibility to
5 assess harm after reviewing the record, and neither party has the burden to
demonstrate whether the appellant was harmed. See id. at 139 (citation omitted).
The record before us shows that there were disagreements among the jurors
about the victim’s testimony and whether a specific type of sexual assault occurred.
This disagreement required that certain testimony be read back to the jury. The jury
was not polled. The record does not reveal what role the alternate jurors might have
played in the deliberations, although they retired with the ten sitting jurors when
deliberations began. Based on our examination of this record as a whole, it is
impossible for us to have fair assurance that the error did not influence the sitting
members of the regular jury or only had but slight effect. See id. at 144; see also
Tex. R. App. P. 44.2(b). Without this assurance, I would hold that the error affected
McCumber’s substantial rights. See Tex. R. App. P. 44.2(b). Because the Majority
finds no harmful error, I respectfully dissent.
W. SCOTT GOLEMON Chief Justice
Dissent Delivered December 11, 2024