Jesus Corrdero Romero v. State , 396 S.W.3d 136 ( 2013 )

Affirmed and Opinion filed January 24, 2013.
In the
Fourteenth Court of Appeals
NO. 14-11-00927-CR
NO. 14-11-00928-CR
JESUS CORRDERO ROMERO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1281646 & 1313451
OPINION
Appellant Jesus Corrdero Romero was convicted of the felony offenses of
indecency with a child and aggravated sexual assault of a child. Appellant seeks
reversal of his convictions, complaining in four related issues that the trial court
abused its discretion by removing a juror as disabled, thereby depriving appellant
of his constitutional right to a unanimous jury verdict, and further abused its
discretion by refusing to grant a mistrial; and in two related issues that, by refusing
to unseal personal juror information, the trial court violated article 35.29 of the
Texas Code of Criminal Procedure and appellant’s right to due process. We
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged with the felony offenses of aggravated sexual assault
of a child and indecency with a child, alleged to have been committed on or about
June 9, 2006, and June 1, 2007, respectively.
At trial, the complainant D.L. testified that appellant is her stepfather, who
married her mother when D.L. was very young. D.L. testified that she has an older
sister, a younger sister, and one younger brother, and they all lived together
growing up.
According to D.L., the first instance of abuse occurred one weekend in 2006,
when she was in the sixth grade. D.L., her mother, and her siblings were living at
a house on Beaver Bend Road. Her mother and appellant were separated at the
time, but on weekends appellant would watch the children at the house. Appellant
entered D.L.’s bedroom and asked her what she was watching on TV. As appellant
was talking to D.L., he put his hand under the blanket she had over her legs, inside
her pants, and into her underwear. Appellant then started touching D.L. on her
vaginal lips and directed his fingers inward. D.L. tried squeezing her legs together,
but appellant managed to stick his fingers partway inside of her vaginal lips.
D.L. testified that another incident occurred at the house on Beaver Bend.
Appellant was sitting on the family nanny’s bed when D.L. came in to ask for his
help in fixing her desk. According to D.L., appellant then sat on top of her and
caressed her breast. He then touched her vagina over her clothes. D.L. managed to
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push herself away from appellant.
The final incident occurred the next summer when the family lived at a
house on Marlene Street. D.L. was watching TV, when around noon appellant
walked into her room and locked the door. He told her she looked tired and needed
a massage. D.L. testified that appellant started massaging her shoulders and then
moved downwards. He placed his hands on her buttocks beneath her underwear
and then attempted to insert his finger into her vagina from the back. After the
touching went on for five to ten minutes, appellant ejaculated on D.L.’s back.
In 2010, when D.L. was a junior in high school, her mother and two aunts
confronted her about missing school, and she eventually told them about the abuse.
D.L. and one of her aunts then reported the abuse to police.
At trial, appellant denied all the allegations against him. He acknowledged
that when his mother and D.L’s mother confronted him about whether he had ever
abused D.L., he stated that if he was going to abuse anyone he would have abused
D.L.’s older sister1 instead. This confrontation took place after D.L. told
appellant’s sister that D.L. caught appellant watching her while she was changing
clothes for school one morning during her freshman year, and appellant’s sister
told her mother and D.L.’s mother.
On the first afternoon of deliberations, the jury sent out two notes; one
requesting trial exhibits and another requesting a portion of D.L.’s testimony. On
the second day, the jury sent out additional notes: the first requesting a copy of
D.L.’s forensic interview; the second indicating they were at a point suggesting
they would be unable to reach a verdict, to which the court responded that they
continue deliberations; and then two more notes requesting portions of testimony.
1
D.L.’s older sister was twenty years old at the time.
3
The jury foreman then sent out a note indicating that “juror 31” had become ill,
was throwing up due to stress, and did not feel that she could render a clear
decision. The jury requested they be allowed to end deliberations early and resume
the next day. The trial court recessed for the day.
The next morning, the bailiff, Deputy Kaminski, received a phone call from
juror 31, who stated that she was still sick and did not think she could make it in to
court. Kaminski told juror 31 that if she could not appear, she needed a doctor’s
note. Juror 31 appeared in court at 9:15 a.m., and the jury continued deliberations.
About an hour later, the jury sent out a note indicating that juror 31 wanted to be
released because she did not feel she could make a decision based on the evidence
presented.
The trial court questioned Kaminski. According to Kaminski, the previous
afternoon, he had seen juror 31 leaving the bathroom covering her mouth and
holding her stomach. Then after the jury was released early, juror 31 returned to
the bathroom and threw up. That morning, when Kaminski asked juror 31 how she
was doing, she initially stated that she was doing okay. Later, when the jury
foreman and juror 31 stepped out to hand Kaminski the latest note, juror 31
informed him that she had not slept well, she was “so stressed” and “just could not
handle it,” and she was not feeling well.
Based on Kaminski’s testimony, the prosecutor requested that the trial court
exercise its discretion to add more to the record regarding juror 31’s disability and
that the court then find juror 31 disabled and replace her with the alternate juror.
Appellant moved for mistrial, arguing that juror 31 was not disabled but had stated
she could not make a decision based on the evidence presented, which indicated
the jury was hung. After the court denied appellant’s motion for mistrial, the
prosecutor requested that juror 31 be questioned about physical illness. Appellant
4
objected, but the trial court proceeded to question juror 31 in chambers.
The trial court asked juror 31 how she was feeling and if she believed that
she could continue deliberating. She responded, “I don’t believe I am able to go
on. I feel sick to my stomach, headaches, haven’t been able to sleep the past
couple of days. I feel stressed out. This is affecting me physically now.” She also
indicated that she was having “physical nausea” and had a headache. When
defense counsel asked juror 31 whether she was feeling sick “because of pressure
in the back,” meaning deliberations in the jury room, she responded, “Definitely
pressure but I just feel really sick. I’m stressed out.” Juror 31 indicated that she
just felt “overstressed out” because “just being back there deliberating is
stressing.” She stated that deliberations have stressed her “up to the point that it’s
becoming physically affected [sic] to my own well-being.” She agreed that she
“cannot make a decision based on deliberations.” She indicated that she had
vomited the day before during deliberations and stated, “I feel emotionally sick,
and that is carrying over to physical sickness.” Although juror 31 stated that she
was “not disabled,” when asked by the court—“Just so we’re clear, by the term
‘disabled,’ do you feel like you can continue?”—she answered, “I don’t think that I
can physically continue. It’s not letting me sleep. It’s not letting me live a normal
life. It’s affecting my family. It’s affecting my daughter. It’s affecting me
physically now, I can’t.” She continued, “Well, I am feeling too much pressure
back there to doing [sic] something that I’m not willing to do. And I can’t sleep at
night just thinking here—I am sick. I mean, I am physically sick at this point.”
Juror 31 indicated that she became physically ill the day before, was physically
sick the previous afternoon “[a]nd today,” and had called in physically ill that
morning. When the court asked her whether she physically was able to listen and
render a decision, juror 31 responded: “I think given that I am physically feeling
5
stuff right now, I don’t think that I am able to make a decision at all even after
deliberations. I just—no.”
After juror 31 exited chambers, the trial court noted for the record that juror
31 “appeared to be nauseous as she was sitting here in the chair. We did have, I
think, a trash can in front of her; but she was heaving several times. She was
tearful and appears to be— . . . [p]hysically distressed and also grabbed her head
and said that her head was hurting.” The court then decided to release juror 31 and
replace her with alternate juror 39. Appellant resubmitted his motion for mistrial.
The court met with juror 39—who had been told to remain available and had
returned to court that morning—and confirmed she had been given instructions the
previous day that she was still a juror and had continued to follow the admonitions
not to conduct any research about or discuss the case. The court ordered the jury to
restart deliberations with replacement juror 39. After the jury retired, the court
denied appellant’s motion for mistrial.
The jury found appellant guilty of both offenses. The jury sentenced him to
ten years’ confinement for the offense of indecency with a child and to twenty
years’ confinement for the offense of aggravated sexual assault of a child, the
sentences to run concurrently.
Appellant then filed a motion for new trial as well as three motions to unseal
the information sheets on the jurors who deliberated during the guilt-innocence
phase. The third motion to unseal included: (1) an affidavit from attorney Michael
McLane, who averred that a juror in appellant’s case told him that she was released
from jury service because she became physically ill due to intimidation by the
other jurors about her “not guilty” vote, and (2) an affidavit from a private
investigator, who stated that he could not locate the jurors based on their names
without additional personal information. The trial court denied all of appellant’s
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motions.
On appeal of both his convictions, appellant raises six issues. First,
appellant argues that the trial court’s removal of juror 31 was a structural error that
deprived him of his constitutional right to a unanimous jury verdict under the Sixth
and Fourteenth Amendments. Second, he argues the court’s removal of juror 31
was a structural error that violated his right to a unanimous jury verdict under
article V, section 13, of the Texas Constitution. Third, appellant contends that the
trial court abused its discretion in finding juror 31 disabled under article 36.29(a)
of the Texas Code of Criminal Procedure.2 Fourth, he argues that the court
violated section 35.29 of the Code of Criminal Procedure by refusing to unseal
juror information sheets upon a showing of good cause. Fifth, he contends that the
court’s refusal to unseal the jurors’ personal information violated his due process
rights under the Fifth and Fourteenth Amendments. Finally, appellant asserts that
the court abused its discretion by refusing to grant a mistrial.
II. STANDARD OF REVIEW
The trial court has discretion to determine whether a juror has become
2
Article 36.29(a) applies in cases where a juror “as determined by the judge, becomes
disabled from sitting at any time before the charge of the court is read to the jury.” TEX. CODE
CRIM. PROC. ANN. art. 36.29(a) (West 2012). In this case, subsection (c) applies:
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 in 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 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).
7
disabled under article 36.29 of the Code of Criminal Procedure and to seat an
alternate juror under article 33.011 of the Code of Criminal Procedure.3 Scales v.
State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012). “[T]he trial court is the sole
fact-finder and judge of the credibility of the testifying jurors,” and we review its
decision for an abuse of discretion. Id. at 784. Absent such an abuse of discretion,
we will not find reversible error. Id. (citing Brooks v. State, 990 S.W.2d 278, 286
(Tex. Crim. App. 1999)); Ponce v. State, 68 S.W.3d 718, 721 (Tex. App.—
Houston [14th Dist.] 2001, pet. ref’d) (same). Thus, the trial court must make a
sufficiently supported finding that the juror was disqualified or unable to perform
the duties of a juror. Scales, 380 S.W.3d at 784. It is not our role to substitute our
own judgment for that of the trial court, but rather to assess whether, after viewing
the evidence in the light most favorable to the trial court’s ruling, the ruling was
arbitrary or unreasonable. Id. (citing Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim.
App. 1995)). We must uphold the trial court’s ruling if it falls within the zone of
reasonable disagreement. Id. (citing Ocon v. State, 284 S.W.3d 880, 884 (Tex.
Crim. App. 2009)).
Similarly, we review a trial court’s denial of a mistrial for an abuse of
3
Article 33.011 provides:
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(b) (West 2012).
8
discretion, viewing the evidence in the light most favorable to the ruling, and
deferring to the court’s resolution of historical facts and its determinations
concerning credibility and demeanor. Benefield v. State, —S.W.3d—, No. 14-11-
00452-CR, 2012 WL 5450717, at *3 (Tex. App.—Houston [14th Dist.] Nov. 8,
2012, no. pet. h.) (citing Ocon 284 S.W.3d at 884–85). We must uphold the trial
court’s ruling if it is within the zone of reasonable disagreement. Id.
III. ANALYSIS
A. Removal of juror 31 as disabled
1. Appellant’s third issue
We initially address appellant’s third issue since issues one, two, and six
also rest upon his premise that juror 31 was not disabled and instead was able to
render a decision in the case. Appellant argues that there was insufficient evidence
for the trial court to conclude that juror 31 suffered from a disability pursuant to
article 36.29, and thus the trial court abused its discretion in removing her. We
disagree.
a. Applicable law
Article 36.29 requires that a disabled juror suffer from a “physical illness,
mental condition, or emotional state that would hinder or inhibit the juror from
performing his or her duties as a juror, or that the juror was suffering from a
condition that inhibited him from fully and fairly performing the functions of a
juror.” Scales, 380 S.W.3d at 783 (internal quotation marks omitted and citing
Valdez v. State, 952 S.W.2d 622, 624 (Tex. App.—Houston [14th Dist.] 1997, pet.
ref’d).
However, the trial court must not dismiss a juror for reasons related to that
juror’s evaluation of the sufficiency of the evidence. Id. (citing United States v.
9
Edwards, 303 F.3d 606, 633 (5th Cir. 2002)).
i. Nature of the disability
The trial court does not abuse its discretion in discharging a juror as disabled
per article 36.29 where there is sufficient evidence of physical illness. See Routier
v. State, 112 S.W.3d 554, 588 (Tex. Crim. App. 2003) (trial court received
information that juror was bedridden with influenza and later admitted doctor’s
note); Allen v. State, 536 S.W.2d 364, 366–67 (Tex. Crim. App. 1976) (juror
testified he had symptoms of influenza such as tightness in chest, fever, and trouble
sleeping); Maciel v. State, 517 S.W.2d 789, 790 (Tex. Crim. App. 1975) (trial court
received information that juror had been admitted to hospital with high blood
pressure); Lopez v. State, 316 S.W.3d 669, 679 (Tex. App.—Eastland 2010, no
pet.) (trial court received information that juror had stomach ailment rendering her
unable to come to court); Moore v. State, 82 S.W.3d 399, 406–07 (Tex. App.—
Austin 2002, pet. ref’d) (same), overruled on other grounds by Taylor v. State, 268
S.W.3d 571 (Tex. Crim. App. 2008); Hughes v. State, 787 S.W.2d 193, 195 (Tex.
App.—Corpus Christi 1990, pet. ref’d) (juror testified she felt queasy, had
headaches, and had vomited earlier, and trial court expressly stated for the record
that juror was exhibiting signs of physical illness).
The trial court also does not abuse its discretion in discharging a juror as
disabled in situations where emotional stress resulted or could result in physical
illness. Castro v. State, 233 S.W.3d 46, 48–49 (Tex. App.—Houston [1st Dist.]
2007, no pet.) (trial court discharged Jehovah’s Witness juror as disabled where
stress from thought of passing judgment on another person resulted in physical
illness, including repeated vomiting); Moffett v. State, 949 S.W.2d 778, 783 (Tex.
App.—Beaumont 1997, pet. ref’d) (trial court discharged juror as disabled where
stress from family problems was affecting her mental capacity and could result in
10
physical illness); see also Hill v. State, 90 S.W.3d 308, 310, 315 (Tex. Crim. App.
2002) (finding juror with generalized anxiety disorder who was suffering panic
attacks disabled per article 36.29).
ii. Duration of the disability
The trial court also does not abuse its discretion in discharging a juror as
disabled notwithstanding the temporary nature of the physical illness. Lopez, 316
S.W.3d at 679 (noting “courts have found that jurors who complained of other
temporary illnesses that impaired their ability to perform the functions of a juror
were properly determined by the trial court to be disabled” and citing Allen, 536
S.W.2d at 366–67, and Hughes, 787 S.W.2d at 195); Moore, 82 S.W.3d at 406–07
(same).
b. No abuse of discretion
We conclude that the trial court did not abuse its discretion in concluding
that juror 31 was disabled. Juror 31 suffered from a physical illness that prevented
her from continuing to perform her duties, and there is no indication that the trial
court removed the juror for her evaluation of the evidence.
i. Nature of the disability
Appellant first argues that the trial court's decision was based on insufficient
evidence of disability.
Here, after conducting a hearing, the trial court determined that juror 31 was
disabled due to physical illness, including nausea, vomiting, and headache, which
prevented her from continuing to perform her duties as a juror. See TEX. CODE
CRIM. PROC. ANN. art. 36.29(c) (West 2012). The record contains sufficient
evidence to support that conclusion. On the afternoon before the trial court
released juror 31, the jury sent out a note requesting that the court end deliberations
11
early because: “We currently have a juror 31 who has become ill and doesn’t feel
like she can continue today and render a clear decision. She is currently throwing
up due to the stress.” Kaminski testified that juror 31 called in “still sick” the
morning of the day she was released, and that the previous afternoon he had
observed juror 31 covering her mouth, holding her stomach in pain, and vomiting.
While after arriving at court juror 31 initially told Kaminski she was “doing okay,”
Kaminski testified that later when juror 31 and the foreman stepped out to give him
the jury’s note, she indicated that she had not slept and was not feeling well. Juror
31 expressly told the court herself that she felt nauseated and sick to her stomach,
had a headache, had not been sleeping, and felt “overstressed out” by deliberations.
She indicated that she felt “emotionally sick, and that is carrying over to physical
sickness.” With regard to her ability to continue performing the functions of a
juror, juror 31 informed the trial court: “I don’t believe I am able to go on. I feel
sick to my stomach, headaches, haven’t been able to sleep the past couple of days.
I feel stressed out. This is affecting me physically now.” She further indicated: “I
don’t think that I can physically continue.” In response to the court’s question as
to “whether or not physically [she was] able to listen or render a decision? If [she
was] physically disabled—” juror 31 answered, “I think given that I am physically
feeling stuff now, I don’t think I am able to make a decision at all even after
deliberations. I just—no.” Aside from the symptoms she verbally described, the
trial court noted for the record that juror 31 grabbed her head in pain and dry-
heaved several times while the court and the parties were questioning her about
whether she was physically ill.
Although appellant asserts that juror 31 admitted she was not “disabled,”
upon clarification by the trial court—“by the term ‘disabled,’ do you feel like you
can continue?”—she then informed the court she could not “physically continue”
12
to serve as a juror. See Allen, 536 S.W.2d at 366 (juror “would not say he was
disabled” but “acknowledged, however, that serving would involve hard-ship and
be detrimental to his physical well-being”); Moffett, 949 S.W.2d at 783 (juror
admitted she was not a physically disabled person but “told the court in no
uncertain terms that she was so emotionally upset by her personal problems she
could not perform her service as a juror”).
The Texas Court of Criminal Appeals has emphasized the importance of the
trial court’s hearing from the juror herself to ensure that the court has sufficient
information from which to determine that the juror is unable to perform her duties.
Scales, 380 S.W.3d at 784 n.18, 786 (affirming reversal of trial court’s decision to
discharge juror where only evidence as to juror’s alleged refusal to deliberate came
from jury foreman); cf. Bass v. State, 622 S.W.2d 101, 107 (Tex. Crim. App. 1981)
(no abuse of discretion in not discharging juror as disabled where trial court at time
of hearing “had the opportunity to observe [juror’s] demeanor and listen to the tone
of her voice” instead of being provided with “nothing more than a cold record”).4
Here, the trial court not only observed juror 31’s tone and demeanor as she
testified, but also witnessed her physical symptoms and noted them for the record.
ii. Duration of the disability
Although appellant complains that the trial court should have considered the
likely duration of juror 31’s illness or allowed her to seek medical care and then
report back, courts do not abuse their discretion by discharging the juror without
doing so, nor did appellant request postponement. See Lopez, 316 S.W.3d at 679–
80 (no abuse of discretion in overruling request to postpone trial and removing
juror with stomach ailment, noting “[a]rticle 36.29 does not require the trial court
4
See also Valdez, 952 S.W.2d at 624 (“Had the trial court questioned the juror on the
record, we might have been able to make a proper determination.”).
13
to consider postponing the trial . . . in the event of a juror’s disability”); Moore, 82
S.W.3d at 406–07 (no abuse of discretion in overruling request to postpone trial
and removing juror with stomach ailment under article 36.29).
iii. No removal based on the juror’s evaluation of the evidence
We also consider the effect of the Court of Criminal Appeals’ recent
decision in Scales v. State on this case. The Scales court considered whether the
trial court abused its discretion in removing and replacing a juror based on her
refusal to deliberate. 380 S.W.3d at 781–82.
The error in Scales stemmed from the trial court’s removal and replacement
of the juror at issue without developing sufficient information to determine
whether the juror actually was “unable or disqualified to perform [her] duties”
under article 33.011(b)—or whether her refusal to deliberate was based on her
evaluation of the sufficiency of the evidence. When it decided to remove the juror
at issue, the trial court relied merely on the testimony of the jury foreman who
requested that the juror at issue be removed. Id. at 785–86. Further, the foreman’s
testimony tended to show that instead of the juror at issue being unable to continue
to serve due to her alleged complete refusal to deliberate, there was a possibility
that the reason the juror refused to continue to deliberate—and why the foreman
wanted her removed—was because she already had made up her mind about the
merits of the case. Id.
In contrast, here the trial court decided to remove juror 31 due to her
physical inability to continue deliberating after the trial court heard juror 31’s own
testimony and observed her tone and demeanor. See id. at 784 n.18 (noting best
practices indicate that trial judge speak with juror before determining she is
disabled). Juror 31 expressly told the trial court that she had been and currently
was physically sick, and that she could not physically continue. In addition, the
14
court heard from the bailiff about juror 31’s physical illness. Moreover, although
juror 31 stated that “[i]t is extremely hard for me to make a decision in this case”
and that she believed this difficulty was “based on the evidence provided,” she also
indicated that she felt emotionally distraught and physically ill “[n]ot as much
about the evidence . . . just being back there deliberating is stressing.” Ultimately,
she did not think she was “able to make a decision at all even after deliberations,”
given she was “physically feeling stuff now.” The record thus reflects that the trial
court conducted an investigation on the record into “whether or not Juror No. 31
[was] still ill and facing undue stress,” then discharged juror 31 based on her
physical illness, which rendered her physically unable to continue as a juror.
While juror 31 did state she was “feeling too much pressure back there to
doing [sic] something that [she was] not willing to do,” she did not indicate that the
“something” she was not willing to do was vote against her assessment of the
merits of the case. Instead, juror 31 indicated that physically she could not even
make a decision.
Even assuming that the hearing evidence tended to show that juror 31 had
become physically ill because she was feeling stress from being a holdout juror, as
opposed to feeling stress from the deliberations process itself, “hold-out jurors are
not immune from dismissal based upon just cause.” United States v. Edwards, 303
F.3d 606, 633–34 (5th Cir. 2002) (affirming district court’s dismissal of juror
under rule 23(b)5 based on his inability to follow court’s instructions and lack of
candor in dealing with the court), cited in Scales, 380 S.W.3d at 783 n.10. In
Edwards, the Fifth Circuit noted that the “great deal of discussion . . . about
5
Federal Rule of Criminal Procedure 23(b) governs juror removal during deliberations in
federal district court: “After the jury has retired to deliberate, the court may permit a jury of 11
persons to return a verdict, even without a stipulation by the parties, if the court finds good cause
to excuse a juror.” FED. R. CRIM. P. 23(b)(3).
15
whether Juror 68 was or was not a ‘hold-out’ juror” was inapposite; but even
assuming he was a holdout, the record did not indicate that the district court
dismissed the juror because of his view of the evidence. 303 F.3d at 634 (citing
U.S. v. Huntress, 956 F.2d 1309, 1312–13 (5th Cir. 1992) (affirming district
court’s removal of alleged holdout juror due to mental health disability)); see also
U.S. v. Leahy, 82 F.3d 624, 629 n.4 (5th Cir. 1996) (“Evidence that a juror was
holding out, however, does not alter the trial court’s discretion in removing the
juror.”).6
Likewise, there is no evidence here that the trial court was motivated to
dismiss juror 31 based on the juror’s evaluation of the sufficiency of the evidence.
Rather, the focus of the court’s inquiry was whether juror 31 was “physically able
to listen or render a decision,” and she indicated that she physically could not
continue. Moreover, as in Edwards, the trial court expressly disavowed that its
dismissal of juror 31 had anything to do with whether she could be a holdout. See
303 F.3d at 634. When defense counsel suggested that juror 31’s physical illness
was brought on by the emotional stress of holding out,7 the trial court indicated that
it had “given the juror an opportunity to place on the record how she’s feeling in
her own words” and that “[defense counsel’s] interpretation of what’s going on in
the jury room, not being a party to what’s going on in the jury room, really is
outside our purpose in being back here at this time.” Thus, the trial court here did
not dismiss juror 31 based on her evaluation of the sufficiency of the evidence.
6
See also Perez v. Marshall, 119 F.3d 1422, 1427–28 (9th Cir. 1997) (dismissal
permissible under California juror substitution procedure where trial court knew that juror at
issue was sole holdout for acquittal because juror’s emotional instability that made her unable to
continue deliberating provided good cause for her dismissal, and no evidence suggested court’s
decision was motivated by juror’s views on merits of case).
7
Specifically, defense counsel indicated that juror 31 did not “feel like going the
direction that the other jurors wanted to go.”
16
See Scales, 380 S.W.3d at 783.
Reviewing the evidence in the light most favorable to the trial court’s ruling,
and considering that the trial court is the sole fact-finder and judge of credibility,
and had the opportunity to observe juror 31’s demeanor and tone as she testified,
we cannot say that the court’s ruling was arbitrary or unreasonable, or outside the
zone of reasonable disagreement. Therefore, the trial court did not abuse its
discretion in removing juror 31, and we overrule appellant’s third issue.
2. Appellant’s first and second issues
Appellant also contends that juror 31’s removal and replacement violated
appellant’s right to a unanimous jury verdict under the Sixth and Fourteenth
Amendments and under article V, section 13, of the Texas Constitution.
a. Sixth and Fourteenth Amendments
Although we recognize that the Sixth Amendment is applicable to the states
by virtue of the Fourteenth Amendment,8 “[t]he United States Constitution clearly
does not grant a right to a unanimous verdict.” Phillips v. State, 130 S.W.3d 343,
351 n.6 (Tex. App.—Houston [14th Dist.] 2004) (citing Apodaca v. Oregon, 406
U.S. 404, 410–12 (1972)), aff’d, 193 S.W.3d 904 (Tex. Crim. App. 2006); see also
McDonald v. City of Chicago, Ill., —U.S.—, 130 S. Ct. 3020, 3035 n.14 (2010)
(“The Court has held that although the Sixth Amendment right to trial by jury
requires a unanimous jury verdict in federal criminal trials, it does not require a
unanimous jury verdict in state criminal trials.”); Schad v. Arizona, 501 U.S. 624,
634 n.5 (1991) (“[A] state criminal defendant, at least in noncapital cases, has no
federal right to a unanimous jury verdict.”). Accordingly, we conclude appellant’s
federal contention is without merit and we will proceed to examine appellant’s
8
See Duncan v. Louisiana, 391 U.S. 145, 149 (1968).
17
claimed right to unanimity of the jury verdict under Texas law only.
b. Article V, Section 13
Our state constitution requires that a jury verdict in a felony case be
unanimous, and under our state statutes, unanimity is required in all criminal cases.
TEX. CONST. art. V, § 139; TEX. CODE CRIM. PROC. ANN. art. 36.29; Stuhler v.
State, 218 S.W.3d 706, 716 (Tex. Crim. App. 2007). From its inception in 1876,
article V, section 13, has required that “petit juries in the District Court shall be
composed of twelve” members. Trinidad v. State, 312 S.W.3d 23, 26 & n.16 (Tex.
Crim. App. 2010) (citing TEX. CONST. art. V, § 13). But this provision also always
has provided that a petit jury, originally composed of twelve members, may render
a verdict with fewer than the original twelve, subject to legislative regulation,
“[w]hen, pending the trial of any case, one or more jurors not exceeding three, may
die, or be disabled[.]” Id. at 26 n.16 (citing TEX. CONST. art. V, § 13); see TEX.
CODE CRIM. PROC. ANN. art. 36.29. That is, “[t]he constitution leaves the manner
in which juries are selected to the legislature.” Ponce, 68 S.W.3d at 720.
Article 33.011 of the Texas Code of Criminal Procedure states that, in a
district court, a judge may impanel up to four additional jurors to sit as alternates.
9
Article V, section 13, provides:
Sec. 13. NUMBER OF GRAND AND PETIT JURORS; NUMBER
CONCURRING. Grand and petit juries in the District Courts shall be composed
of twelve persons, except that petit juries in a criminal case below the grade of
felony shall be composed of six persons; but nine members of a grand jury shall
be a quorum to transact business and present bills. In trials of civil cases in the
District Courts, nine members of the jury, concurring, may render a verdict, but
when the verdict shall be rendered by less than the whole number, it shall be
signed by every member of the jury concurring in it. When, pending the trial of
any case, 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;
provided, that the Legislature may change or modify the rule authorizing less than
the whole number of the jury to render a verdict.
TEX. CONST. art. V, § 13.
18
TEX. CODE CRIM. PROC. ANN. art. 33.011(a) (West 2012); Scales, 380 S.W.3d at
783. Article 33.011 further provides that “[a]lternate jurors . . . 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[.]” TEX. CODE CRIM. PROC. ANN. art.
33.011(b); Scales, 380 S.W.3d at 783. Thus, when a regular juror becomes unable
or disqualified to perform his duties, i.e., becomes disabled per article 36.29, Texas
law requires that the juror be replaced with the first alternate juror. TEX. CODE
CRIM. PROC. ANN. art. 33.011(b); Scales, 380 S.W.3d at 783; cf. Sneed v. State, 209
S.W.3d 782, 786–87 (Tex. App.—Texarkana 2006, pet. ref’d) (concluding that
“unable” as used in article 33.011 is indistinguishable from “disabled” as used in
article 36.29).
Here, once the trial court exercised its discretion in determining that juror 31
was unable to continue performing her juror duties because she had become
disabled due to physical illness per article 36.29, it then seated the available,
alternate juror 39 in her place.10 See TEX. CODE CRIM. PROC. ANN. art. 33.011(b);
Scales, 380 S.W.3d at 783. The record indicates that alternate juror 39 had been
given specific instructions about still being, and remaining available as, a juror,
and admonitions about not doing any independent research or talking with anyone
about the case; and that she was available at court as an alternate juror on the
morning the trial court determined that juror 31 was no longer able to perform her
duties as a juror. In accordance with article 33.011(b), the trial court replaced juror
31, whom the court found to be unable to perform her duties as a juror, with
alternate juror 39, prior to the jury’s rendering its verdict on appellant’s guilt or
innocence.
10
Appellant does not argue on appeal that alternate juror 39 was unavailable or unfit to
serve.
19
Appellant, citing Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005),
argues that the removal of juror 31 as the sole holdout for acquittal amounted to
structural error.11 However, the Court of Criminal Appeals has not decided
whether a violation of article 33.011 implicates a constitutional error or a
nonconstitutional or statutory error. See Scales, 380 S.W.3d at 786 (analyzing
violation of article 33.011 as a nonconstitutional error under Texas Rule of
Appellate Procedure 44.2(b)).
But even assuming for purposes of our analysis that appellant is correct that
the evidence shows that juror 31 was holding out, the record reflects that the trial
court explicitly dismissed her based on its determination that juror 31was disabled
and physically unable to continue her duties as a juror, and not for any reason
related to what juror 31 already may have decided with regard to the merits of the
case. See Edwards, 303 F.3d at 633–34.12 In fact, the trial court expressly
indicated that “what’s going on in the jury room” with regard to any possible
holdout situation was not a part of the hearing nor did it influence its ruling that
juror 31 physically was unable to continue.13
We already have determined that sufficient evidence supports the trial
court’s finding that juror 31 was disabled due to physical illness based on its first-
11
Ngo dealt with potential charge error and juror unanimity. 175 S.W.3d at 748–50.
12
See also Perez, 119 F.3d at 1428.
13
Further, each of appellant’s cited Second Circuit cases is distinguishable. In U.S. v.
Thomas, the stated basis for the district court’s dismissal was the juror’s purposeful refusal to
apply the law. 116 F.3d 606, 617–18 (2d Cir. 1997). In such a “jury nullification” dismissal, the
Thomas court determined that it would apply a higher evidentiary standard, considering whether
the evidence revealed a “substantial possibility” that the juror was motivated not by a desire to
nullify, but by legitimate concerns about the sufficiency of the evidence. Edwards, 303 F.3d at
632–33 (discussing Thomas, 116 F.3d at 623). In U.S. v. Hernandez, the grounds for the juror’s
dismissal were unclear—“it is not clear in the record that the removal was because of mental
incompetence rather than to avoid a hung jury.” 862 F.2d 17, 23 (2d Cir. 1988).
20
person interview with her, during which the court was in a superior position to
observe her physical appearance and demeanor, and thereby to determine her
ability to continue deliberating. See Scales, 380 S.W.3d at 784 n.18. Because we
find no abuse of discretion in the trial court’s determination that juror 31’s physical
illness rendered her disabled per article 36.29 and the trial court properly replaced
her with the available, alternate juror pursuant to article 33.011, we overrule
appellant’s second issue. See Moore, 82 S.W.3d at 406–07 (overruling appellant’s
related article V, section 13, constitutional challenge where trial court had not
abused its discretion by removing juror as disabled per article 36.29 due to
physical illness).
3. Appellant’s sixth issue
Appellant further asserts that the trial court abused its discretion by denying
his motion for mistrial. Appellant moved for a mistrial after Kaminski testified
and resubmitted his motion after juror 31 testified. The trial court denied
appellant’s motion, and instead determined that juror 31 was unable to continue as
a juror due to physical illness and replaced juror 31 with the alternate juror.
The procedures of article 36.29 apply when a juror becomes disabled and
unable to continue performing her duties. Scales, 380 S.W.3d at 783; Hill, 90
S.W.3d at 315 (holding article 36.29(a) required trial court to proceed with 11
jurors instead of granting mistrial where court dismissed juror as disabled for
debilitating panic attacks). Where an alternate juror is available to replace the
disabled juror, the procedures of article 33.011 also apply. Scales, 380 S.W.3d at
783. Article 33.011 expressly provides that an alternate juror “shall” replace a
juror found to be unable to perform her duties, prior to the time the jury renders a
verdict on the guilt or innocence of the defendant. TEX. CODE CRIM. PROC. ANN.
art. 33.011(b). Thus, after the charge is read to the jury, where a juror is found to
21
be disabled and an alternate juror is available to replace her, she must be replaced
pursuant to articles 33.011(b) and 36.29(c). Id. art. 33.011(b) & art. 36.29(c);
Scales, 380 S.W.3d at 783. Thus, in an article 36.29(c) situation, such as here, the
trial court is only required to discharge the jury where “an alternate juror is not
available” to replace the disabled juror. TEX. CODE CRIM. PROC. ANN. art.
36.29(c). Alternatively, where no alternate juror is available to replace the
disabled juror, the case can proceed to verdict with the remaining eleven jurors if
the defendant, his counsel, and the State agree to that option on the record. Id.
Reviewing the evidence in the light most favorable to the trial court’s ruling
and granting due deference to its resolution of historical facts and credibility and
demeanor determinations, including that juror 31was disabled per article 36.29,
and an alternate juror was available to replace her per article 33.011, there was no
cause to discharge the jury. Indeed, under these circumstances, the trial court
proceeded under its statutorily sanctioned, and only, option.14 See Scales, 380
S.W.3d at 783. Therefore, we cannot say that the trial court abused its discretion in
refusing to grant appellant a mistrial, and we overrule his sixth issue.
B. Refusal to unseal personal juror records
1. Appellant’s fourth issue
In his fourth issue, appellant contends that the trial court violated article
35.29 of the Texas Code of Criminal Procedure by refusing his requests to unseal
the juror information sheets so that he could investigate and present juror
testimony about the circumstances of juror 31’s “harassment” and “intimidation”
to support appellant’s motion for new trial based on alleged jury misconduct. We
14
In contrast, the trial court abuses its discretion in failing to give an appellant an
opportunity to choose between continuing with eleven jurors or seeking a mistrial before it
discharges a juror who is later found not to be disabled per article 36.29. Carrillo v. State, 597
S.W.2d 769, 771 (Tex. Crim. App. 1980).
22
conclude that appellant failed to show good cause to unseal the jurors’ personal
information.
Article 35.29 protects personal information about jurors, creating a
presumption that such information may not be disclosed absent a showing of good
cause by a party in the trial or a bona fide member of the news media. TEX. CODE
CRIM. PROC. ANN. art. 35.29 (West 2012); Valle v. State, 109 S.W.3d 500, 509 &
n.37 (Tex. Crim. App. 2003) (concluding that need to determine whether to file
motion for new trial did not constitute good cause); Taylor v. State, —S.W.3d—,
No. 01-11-00210-CR, 2012 WL 5986449, at *6 (Tex. App.—Houston [1st Dist.]
Nov. 29, 2012, no. pet. h.) (“[R]equesting juror cards to decide whether there is a
basis for filing a motion for new trial is not a showing of good cause.”); Esparza v.
State, 31 S.W.3d 338, 340 (Tex. App.—San Antonio 2000, no pet.) (concluding
that “desire to probe for possible, but unspecific, issues that might give rise to
allegations of jury misconduct” amounted to mere conjecture and did not constitute
good cause); Hooker v. State, 932 S.W.2d 712, 716–17 (Tex. App.—Beaumont
1996, no pet.) (concluding that defense counsel’s belief that jury misconduct had
occurred and his desire for an opportunity to talk to jury regarding “a couple of
thoughts” about trial did not constitute good cause). Thus, a trial court does not
abuse its discretion in denying a request for disclosure of the juror information
cards where the defendant fails to show good cause. Taylor, 2012 WL 5986449, at
*5–6 (citing Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App. 2001);
Montgomery v. State, 810 S.W.2d 372, 380, 391 (Tex. Crim. App. 1990)). “What
constitutes good cause must be based upon more than a mere possibility that jury
misconduct might have occurred; it must have a firm foundation.” Cyr v. State,
308 S.W.3d 19, 30 (Tex. App.—San Antonio 2009, no pet.) (citing Esparza, 31
S.W.3d at 340 (“Good cause must be based on more than mere conjecture; it must
23
have a firm foundation.”)).
In Cyr, the San Antonio court of appeals upheld the trial court’s denial of the
appellant’s motion to unseal personal juror information. The appellant’s trial
counsel provided an affidavit stating he had been informed that a juror had
approached the media indicating that she was uncomfortable with the verdict, and
that the juror believed the appellant was not guilty but then changed her mind for
an unknown reason, thus necessitating counsel’s communication with the jurors to
determine whether that reason was contrary to the trial court’s instructions or the
law. 308 S.W.3d at 29. However, the Cyr court concluded the appellant had not
shown good cause—“that a juror was ‘uncomfortable’ with her verdict does not
constitute a firm foundation that jury misconduct occurred.” Id. at 30.
When a defendant alleges jury misconduct in an effort to impeach a verdict,
rule 606(b) of the Texas Rules of Evidence prohibits a juror from testifying about
“any matter or statement occurring during the jury’s deliberations, or to the effect
of anything on any juror’s mind or emotions or mental process, as influencing any
juror’s assent to or dissent from the verdict.” TEX. R. EVID. 606(b).15 However, a
juror may testify about “whether any outside influence was improperly brought to
bear upon any juror.” Id. Alleged coercive activity in the jury room, allegedly
15
Rule 606(b) provides:
(b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the
validity of a verdict or indictment, a juror may not testify as to any matter or
statement occurring during the jury's deliberations, or to the effect of anything on
any juror’s mind or emotions or mental processes, as influencing any juror’s
assent to or dissent from the verdict or indictment. Nor may a juror’s affidavit or
any statement by a juror concerning any matter about which the juror would be
precluded from testifying be admitted in evidence for any of these purposes.
However, a juror may testify: (1) whether any outside influence was improperly
brought to bear upon any juror; or (2) to rebut a claim that the juror was not
qualified to serve.
TEX. R. EVID. 606(b).
24
occurring during deliberations, has been held to not constitute proof of an
impermissible “outside influence” for purposes of showing jury misconduct
pursuant to rule 606(b). Franks v. State, 90 S.W.3d 771, 800 (Tex. App.—Fort
Worth 2002, no pet.) (affirming denial of motion for mistrial for jury misconduct
and refusing to consider per rule 606(b) juror’s affidavit that she was “coerced”
into voting guilty and “finally just gave up and changed her vote” because the
other jurors “told her she was being unreasonable and was crazy”); Hart v. State,
15 S.W.3d 117, 121–22, 124 (Tex. App.—Texarkana 2000, pet. ref’d) (affirming
denial of motion for new trial and refusal to allow juror to testify at hearing per
rule 606(b) where juror contended he had been “coerced” into voting guilty by the
other jurors); see also Perry v. Safeco Ins. Co., 821 S.W.2d 279, 281 (Tex. App.—
Houston [1st Dist.] 1991, writ denied) (“Proof of coercive statements and their
effect on the jury is barred by [rule 606(b)].”); Daniels v. Melton Truck Lines, Inc.,
704 S.W.2d 142, 144–45 (Tex. App.—Eastland 1986, writ ref'd n.r.e.) (concluding
that trial court properly refused to consider per rule 606(b) jurors’ affidavits
concerning juror who used her position as a peace officer to “intimidate” and
“shouted down those who disagreed with her”); cf. Garza v. State, 695 S.W.2d 58,
59, 61 (Tex. App.—Corpus Christi 1985, no pet.) (affirming denial of motion for
new trial based on jury misconduct where juror testified that the other jurors
“coerced” and “forced” her “guilty” vote by intimating that she was “less than
human” because of her “not guilty” stance).16
16
Also, the Fifth Circuit consistently had held that testimony regarding “pressure from
other jurors” and “coercion” is not considered an “outside influence” for purposes of, and is
inadmissible under, rule 606(b) of the Federal Rules of Evidence. U.S. v. Brito, 136 F.3d 397,
413–14 (5th Cir. 1998) (affirming denial of motion for new trial based on jury misconduct and
refusal to admit juror allegation that “her verdict was coerced through threats and insults that she
received from other jurors”); U.S. v. Straach, 987 F.2d 232, 241–42 (5th Cir. 1993) (“Although
two jurors came forward after the verdicts had been returned and recorded, stating that they had
maintained throughout the jury’s deliberations that defendant was not guilty on all counts, but
25
The Texas Court of Criminal Appeals recently interpreted the plain meaning
of “outside influence” in rule 606(b) as “something originating from a source
outside of the jury room and other than from the jurors themselves.” McQuarrie v.
State, 380 S.W.3d 145, 154 (Tex. Crim. App. 2012). The McQuarrie court
acknowledged that courts may not “delve into deliberations” because “[j]ury
deliberations must be kept private to encourage jurors to candidly discuss the law
and facts.” Id. at 153 (citing Tanner v. United States, 483 U.S. 107, 117 (1987)
(warning against pervasive post-verdict inquiries into jury misconduct)). Courts
“may not inquire as to the subjective thought processes and reactions of the jury, so
jurors should continue to feel free to raise and discuss differing viewpoints without
the fear of later public scrutiny.” Id.; see also Garza, 695 S.W.2d at 61 (noting
that “jury deliberations often involve heated and emotional discussions into which
[courts of appeals] will not intrude”). Therefore, “[a] Rule 606(b) inquiry is
limited to that which occurs outside of the jury room and outside of the juror’s
personal knowledge and experience.” McQuarrie, 380 S.W.3d at 153. The
McQuarrie court went on to hold that the trial court abused its discretion in
excluding juror affidavits and testimony pursuant to rule 606(b) where the
evidence concerned internet research that one juror conducted at her home during
an overnight break. Id. at 154 (“The internet resource constituted an ‘outside
influence.’”).
We conclude that appellant’s allegation that “during deliberations [juror 31]
was ‘intimidated and harassed’ by the other jurors to the point she became stressed
out” is insufficient to show good cause to unseal personal juror information. See
Cyr, 308 S.W.3d at 30. Appellant does not point to anything in the record
presenting a firm foundation that any jury misconduct occurred. See id. Even
had been pressured into compromising their verdicts . . ., this pressure cannot count as an
“outside influence.”).
26
assuming that the other jurors intimidated and harassed juror 31 because of her
vote, the juror testimony sought by appellant in an attempt to prove jury
misconduct does not meet rule 606(b)’s admissibility requirements because it
concerns matters and statements occurring during deliberations, and their effect
and influence on juror 31, rather than an outside influence “originating from a
source outside of the jury room and other than from the jurors themselves.’ See
McQuarrie, 380 S.W.3d at 154. Appellant has not met his burden to show good
cause; therefore, the trial court did not abuse its discretion in refusing to disclose
personal juror information per article 35.29. Accordingly, we overrule appellant’s
fourth issue.
2. Appellant’s fifth issue
In his fifth issue, appellant argues that the improper denial of his requests to
unseal personal juror information on juror 31 deprived him of his constitutional
right to due process.
Due process includes the right to a fair opportunity to defend against the
State’s accusations, including presenting, confronting, and cross-examining
witnesses. See Chambers v. Mississippi, 410 U.S. 284, 294 (1973). However,
courts recognize the “weighty government interest in insulating the jury’s
deliberative process.” Tanner, 483 U.S. at 120, cited in Hicks v. State, 15 S.W.3d
626, 630–31 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (“The limitation
on juror testimony in post-trial proceedings is intended to encourage open
discussion among jurors during deliberations, to promote the finality of judgments,
and to protect jurors from harassment by unhappy litigants seeking grounds for a
new trial.”). “[T]he jury should be protected from post-trial harassment or
tampering.” McQuarrie, 380 S.W.3d at 153 (citing Golden Eagle Archery, Inc. v.
Jackson, 24 S.W.3d 362, 367 (Tex. 2000)). Thus, “[t]he integrity of jury
27
proceedings must not be jeopardized by unauthorized invasions,” such as when a
defendant seeks to make a post-verdict inquiry “into the internal processes of the
jury.” Tanner, 483 U.S. at 120 (internal quotation marks and citation omitted).
Appellant’s right to due process does not permit delving into matters and
statements occurring during deliberations in contravention of rule 606(b). See
Golden Eagle, 24 S.W.3d at 374–75 (holding no due process concern with rule
606(b), which is “designed to balance concerns about the threat of jury misconduct
with the threat from post-verdict juror investigation and impeachment of
verdicts”); Hicks, 15 S.W.3d at 630 (recognizing no due process concern with rule
606(b)’s general prohibition against jurors testifying as to matters and statements
occurring during deliberations, and upholding trial court’s refusal to admit juror’s
affidavit, in case of potential jury misconduct). Here, the trial court’s denial of
appellant’s request to unseal personal juror records, to be used to obtain
information about jury deliberations, did not violate due process.
IV. CONCLUSION
Because the trial court did not abuse its discretion in removing juror 31 as
disabled due to physical illness and replacing her with an alternate juror under
articles 33.011 and 36.29, and in then refusing to grant appellant a mistrial, and
because the trial court did not abuse its discretion in refusing to unseal personal
juror information under article 35.29, we affirm the judgments of the trial court.
/s/ Tracy Christopher
Justice
Panel consists of Justices Frost, Christopher, and Jamison.
Publish — TEX. R. APP. P. 47.2(b).
28