In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00054-CR
JENNIFER JILL WHITEHEAD, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 3rd District Court
Anderson County, Texas
Trial Court No. 30256
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Carter
OPINION
Jennifer Jill Whitehead was tried and convicted by an Anderson County jury 1 for the
capital murder of Emma Whitehead, an individual under the age of six, 2 and for injury to a
child. 3 Whitehead was sentenced to life without parole on her capital murder conviction and to
fifteen years’ incarceration on her injury to a child conviction. Whitehead appeals her
convictions claiming (1) that the State’s closing argument referenced her failure to testify in
violation of the United States Constitution, the Texas Constitution, and the Texas Code of
Criminal Procedure and (2) that the trial court abused its discretion in disqualifying a juror
immediately prior to jury deliberations. 4 We affirm the judgment of the trial court.
I. The State’s Comment on Whitehead’s Failure to Testify
Whitehead contends that the trial court erred by overruling her objection to the State’s
comment on her failure to testify in the guilt/innocence phase. Whitehead’s complaint is
directed to the State’s jury argument:
Now, we’ve got the portion of the Charge that talks about what the lawyers call
manner and means, which is a blunt -- it says “blunt force trauma by the
defendant’s hand, foot, object, or manner or means unknown to the grand jury.”
And why is that important? Well, there’s no witnesses. There’s no witnesses to
the crime, other than the defendant --
1
Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to Section 73.001 of the Texas Government Code. See TEX. GOV’T CODE ANN. § 73.001 (West
2013). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on
any relevant issue. See TEX. R. APP. P. 41.3.
2
See TEX. PENAL CODE ANN. § 19.03(a)(8) (West Supp. 2013).
3
See TEX. PENAL CODE ANN. § 22.04 (West Supp. 2013).
4
Because these issues do not involve the underlying criminal allegations, we will limit our discussion of the facts to
those relevant to the issues raised by Whitehead.
2
Whitehead objected to the contention that there were no witnesses to the crime other than
the defendant as an impermissible comment on her right not to testify. The court withheld ruling
until the State finished its statement: “Your Honor, that the only people there are the defendant
and the child. So, we don’t know what exactly happened.” Whitehead again objected to the
State’s argument as a direct comment on her Fifth Amendment privilege against self-
incrimination. The trial court overruled Whitehead’s objection. The State went on to explain,
[W]e may not know exactly what was used to cause these various injuries. It
could have been an object. . . . It could have been some sort of cord, or rope, or
something like that, something flat . . . we don’t know exactly what caused those
injuries, and that language allows you to consider the different possibilities that
were used, different instruments to cause her death.
The State’s comment on a defendant’s failure to testify offends both the United States
and Texas Constitutions as well as Texas statutory law. See U.S. CONST. amend. V; TEX. CONST.
art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 38.08 (West 2005). To violate the right against
self-incrimination, the offending language must be viewed from the jury’s standpoint, and the
implication that the comment referred to the defendant’s failure to testify must be clear.
Bustamante v. State 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). The test is whether the
language used was manifestly intended or was of such a character that the jury would necessarily
and naturally take it as a comment on the defendant’s failure to testify. Id. It is not sufficient
that the comment might be construed as an implied or indirect allusion to the defendant’s failure
to testify. Id. “‘In applying this standard, the context in which the comment was made must be
analyzed to determine whether the language used was of such character.’” Cruz v. State, 225
S.W.3d 546, 548 (Tex. Crim. App. 2007) (quoting Bustamante, 48 S.W.3d at 765). Calling
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attention to the absence of evidence that only the defendant could produce will result in reversal
only if the remark can be construed to refer to appellant’s failure to testify and not to the
defense’s failure to produce evidence. Banks v. State, 643 S.W.2d 129, 134–35 (Tex. Crim. App.
1982); Searcy v. State, 231 S.W.3d 539, 549 (Tex. App.—Texarkana 2007, pet. ref’d).
The evidence at trial showed that Whitehead and Emma were the only two people present
when Emma received the injuries that ultimately resulted in her death. 5 In light of this evidence,
the State argued, “There’s no witnesses to the crime, other than the defendant. . . . [T]he only
people there are the defendant and the child. So, we don’t know exactly what happened.” When
this language is considered together with the fact that the State could not say with certainty how,
precisely, the child’s death was caused, this argument calls attention to the absence of evidence
that only the defendant could produce 6 and clearly implies that Whitehead failed to testify. See
Angel v. State, 627 S.W.2d 424, 426 (Tex. Crim. App. [Panel Op.] 1982) (where only witnesses
to offense were victim and defendant, argument that defendant’s exposure of genital organs to
victim was uncontested was reference to defendant’s failure to testify); Crocker v. State, 248
S.W.3d 299, 305 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (where only witnesses to
offense were defendant and victim, State’s argument that jury “‘heard from the State’s witnesses
as to who was there . . . [a]nd the State’s witnesses only,’” was indirect comment on defendant’s
failure to testify, as it drew attention to absence of evidence only defendant could supply); see
5
Jennifer Whitehead and Lance Whitehead, together with Emma, watched television in the master bedroom on the
morning Emma was critically injured. After Lance fell asleep, Jennifer and Emma left the master bedroom, leaving
Emma in Jennifer’s sole care.
6
The fact that this argument was made while discussing the court’s charge is of no consequence. A defendant’s
constitutional rights cannot be violated under the guise of discussing the charge. Morgan v. State, 816 S.W.2d 98,
102 (Tex. App.—Waco 1991, pet. ref’d).
4
also McDaniel v. State, 524 S.W.2d 68, 69 (Tex. Crim. App. 1975) (State’s argument there was
no competent witness other than defendant who could tell jury what really happened referred to
defendant’s failure to testify); 7 Dietz v. State, 692 S.W.2d 593, 595 (Tex. App.—Beaumont
1985, pet. ref’d) (where only witnesses to offense were defendant and victim, State’s argument
that only defendant could testify as to condition of her body immediately preceding attack on
deceased was comment on defendant’s failure to testify).
The State contends that the jury was unlikely to naturally and necessarily interpret its
argument as a comment on Whitehead’s failure to testify because the jury already heard
“[Whitehead’s] side of the story” from “other [unnamed] witnesses and from [Whitehead] herself
in videotaped interviews” played during trial. Two recorded statements Whitehead made to law
enforcement authorities were admitted into evidence and played to the jury. While this argument
may affect the potential gravity of the error, we cannot conclude that the jury would reasonably
interpret the State’s argument as simply referring to Whitehead’s statements to law enforcement.
A prosecutorial comment that impinges on the privilege against self-incrimination is an
error of constitutional magnitude and must be analyzed under Rule 44.2(a) of the Texas Rules of
Appellate Procedure. Snowden v. State, 353 S.W.3d 815, 818 (Tex. Crim. App. 2011); see TEX.
R. APP. P. 44.2(a). When confronted with such an error, we must reverse unless we conclude
beyond a reasonable doubt that the error did not contribute to the conviction. Id. at 818, 822
(citing TEX. R. APP. P. 44.2(a)). We focus not on the perceived accuracy of the conviction, but
7
In McDaniel, the prosecutor argued, “There were no eye witnesses. We know that. There were three people there
that could tell you what happened, possibly tell you, and Y__ and P__ are too young. They are not legally
competent to testify so we have to go with what we have got --[.]” McDaniel, 524 S.W.2d at 69.
5
instead on the error itself, in the context of the trial as a whole, to determine the likelihood that
the error “genuinely corrupted the fact-finding process.” Id. at 819. We consider the nature of
the error, the extent it was emphasized by the State, the probable implications of the error, and
the weight a juror would probably place on the error. Id. at 822. Our analysis should take into
account “any and every circumstance apparent in the record that logically informs” our
determination of whether the error contributed to the conviction beyond a reasonable doubt. Id.;
see also TEX. R. APP. P. 44.2(a).
The error in this case violates the constitutional right against self-incrimination, the
violation of which adversely affects the integrity of the process leading to a conviction. See Bell
v. State, 356 S.W.3d 528 (Tex. App.—Texarkana 2011), aff’d, 415 S.W.3d 278 (Tex. Crim. App.
2013). “Given the Snowden rationale, however, our harm analysis should assess just the effect of
the error on this particular verdict or result.” Id. at 538. Here, the trial court overruled
Whitehead’s objection to the State’s indirect comment on her failure to testify. Overruling the
objection conveyed to the jury that it was proper to infer guilt from Whitehead’s failure to
testify. See Snowden, 353 S.W.3d at 824–25. This factor weighs toward a finding of harm.
We find it particularly important that the presentation of Whitehead’s recorded
statements, in which she offered explanations of how Emma was injured, may have lessened the
potential gravity of the error. See Cantu v. State, 395 S.W.3d 202, 211 (Tex. App.—Houston
[1st Dist.] 2012, pet. ref’d) (Cantu’s attorney referred to Cantu’s statements, which were played
for jury, as “testimony”). To the extent that this evidence reduced the risk that the jury
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impermissibly inferred Whitehead’s guilt based on her failure to testify, it weighs in favor of
finding the error to be harmless.
We next examine the extent, if any, to which the State emphasized the error. See
Snowden, 353 S.W.3d at 822. We have been directed to nowhere in the record that the State
emphasized the error. Likewise, our own review of the record has disclosed no emphasis by the
State of the error. In the remainder of its closing argument, the State repeatedly referred to
information Whitehead disclosed in her statements to law enforcement. Because the State did
not emphasize the error or seek to benefit from it, this factor weighs in favor of a finding that the
error was not harmful. See Bell, 356 S.W.3d at 538.
Under the final Snowden factors, we consider the probable implications of the error and
the probable weight a juror would place on the error. Id. In this analysis, we review the
instructions and other relevant information the jury heard on the issue. Cantu, 395 S.W.3d at
211. The court’s charge instructed the jury as follows:
Our law provides that a defendant may testify on their own behalf if they elect to
do so. This is a right given to a defendant, and in the event they elect not to
testify, that fact cannot be taken as a circumstance against them. In this case, the
defendant has elected not to testify, and you are instructed that you cannot and
must not refer to or allude to the fact that the defendant has not testified
throughout your deliberations or take it into consideration for any purpose
whatsoever.
The jury is presumed to have followed this instruction. Colburn v. State, 966 S.W.2d 511, 520
(Tex. Crim. App. 1998); Graham v. State, 96 S.W.3d 658, 661 (Tex. App.—Texarkana 2003,
pet. ref’d). This instruction, therefore, mitigated the effect of the State’s argument. See Cantu,
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395 S.W.3d at 212. The record is devoid of any other relevant information heard by the jury on
this issue.
After careful consideration of the above factors, we conclude, beyond a reasonable doubt,
that any error in the trial court’s decision to overrule Whitehead’s objection to the prosecutor’s
improper comment was harmless and did not contribute to Whitehead’s conviction. See
Snowden, 353 S.W.3d at 822. Moreover, the error was not “reasonably likely to have caused
such prejudice as to distract the jury or divert it from its proper fact-finding role.” See id.
II. Removal of Juror
Prior to allowing the jury to retire for deliberations, the trial court announced that all cell
phones would be collected. At that point, a juror informed the court that he had recorded his
thoughts about the trial on his cell phone that morning because he “knew today was going to be
deliberation day.” The juror explained that he “just wanted to have something [he] could fall
back on” and denied recording any part of the trial or listening to anything at home. The State,
however, indicated that it believed the juror violated the court’s instructions by taking notes and
thereafter objected to the juror taking any further part in deliberations. The State surmised that
the juror “was going to take the phone in [the jury room] and use it to help him sway the other
jurors,” which the State claimed “violates the spirit of the Court’s instructions.” Following these
complaints, the juror was questioned by the court, at which time he denied playing the phone
recording to any of the other jurors. At the court’s request, the juror agreed to permit the court to
listen to the recording in camera. After listening to a portion of the thirteen-minute recording
describing the parties to the case, the trial court indicated, “I am going to let him go, and ask that
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he leave the courthouse.” The court then dismissed the juror over Whitehead’s objection and
seated an alternate. On appeal, Whitehead contends that the trial court erred in its decision to
release the juror and to substitute in his stead the first alternate juror.
A. Standard of Review
The trial court has discretion to determine whether a juror has become disabled and to
seat an alternate juror. Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012). In
deciding to remove a juror, the trial court must make a finding, sufficiently supported by the
record, that the juror was disqualified or unable to perform the duties of a juror. Id.; see TEX.
CODE CRIM. PROC. ANN. art. 33.011(b) (West Supp. 2013). We may not substitute our own
judgment for that of the trial court. Instead, we are to assess whether, after viewing the evidence
in the light most favorable to the trial court’s ruling, the ruling was arbitrary or unreasonable.
Scales, 380 S.W.3d at 784. The ruling must be upheld if it is within the “zone of reasonable
disagreement.” Id. Absent an abuse of discretion, no reversible error will be found. Id.
B. Analysis
Although not explicitly stated in the record, we presume, based on the parties’ arguments
as presented in their briefs, that the trial court concluded the juror in question was unable or
disqualified to perform his duties under Article 33.011(b) of the Texas Code of Criminal
Procedure. See TEX. CODE CRIM. PROC. ANN. art. 33.011(b).
Article 33.011(b) of the Texas Code of Criminal Procedure states that, before a jury
renders a verdict regarding a defendant’s guilt or innocence, alternate jurors “shall replace jurors
who . . . become or are found to be unable or disqualified to perform their duties . . . .” TEX.
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CODE CRIM. PROC. ANN. art. 33.011(b). Although the statute does not define “unable to
perform,” appellate courts have concluded that “unable” as used in Article 33.011 is
indistinguishable from “disabled” as used in Article 36.29. See Scales, 380 S.W.3d at 783;
Sandoval v. State, 409 S.W.3d 259, 279 (Tex. App.—Austin 2013, no pet.); Sneed v. State, 209
S.W.3d 782, 786 (Tex. App.—Texarkana 2006, pet. ref’d) (“one must strain to recognize real
differences in the meaning of the two words in this context”).
The term “disability,” as utilized in Article 36.29, 8 has been interpreted to require that the
juror is suffering 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 [is] suffering
from a condition that inhibit[s] him from ‘fully and fairly performing the functions of a juror.’”
Scales, 380 S.W.3d at 783. To support its decision that a juror is disabled, the trial court must
make a finding, sufficiently supported by the record, that the juror was disqualified or unable to
perform the duties of a juror. Id. The trial court may not dismiss a juror for reasons related to
that juror’s evaluation of the sufficiency of the evidence. Id. at 783.
The State contends that the juror was disqualified because he violated the spirit of the
court’s instructions in making the recording and in his stated intention of playing it for the other
jurors. Although the State fails to identify the instruction(s) at issue, we presume, from the
context of the argument that the State is referring to the court’s instruction that the jury neither
“consider nor discuss any fact or circumstance not thus in evidence or reasonably deductible
8
Article 36.29 of the Texas Code of Criminal Procedure addresses juror death and/or disability. TEX. CODE CRIM.
PROC. ANN. art. 36.29 (West Supp. 2013).
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from the evidence.” At trial, the State complained that the juror took notes and talked about the
case after he left the courtroom. These complaints are not supported by the record.
Here, the record indicates that the juror recorded his impressions of the trial, but did not
record any part of the trial itself. The recording was made before the juror arrived at court, not
during the trial itself. The juror never discussed his recording or played it for any of the other
jurors, and the remaining jurors confirmed that they had heard nothing about the juror’s
recording. Even assuming the juror could legally be disqualified for the reasons on which the
State relies, there is no evidence that the juror violated any of the trial court’s instructions.
The trial court indicated that it only listened to the first three minutes of the thirteen
minute recording, during which the juror described the parties to the case. Even if the juror’s
recorded impressions could be interpreted as his evaluation of the sufficiency of the evidence,
the trial court had no discretion to dismiss the juror for that reason. See id. Finally, there is no
evidence the juror suffered from any type of physical illness or emotional stress that could result
in physical illness. See Routier v. State, 112 S.W.3d 554, 558 (Tex. Crim. App. 2003) (no abuse
of discretion in discharging juror as disabled where there is sufficient evidence of physical
illness); Romero v. State, 396 S.W.3d 136, 143 (Tex. App.—Houston [14th Dist.] 2013, pet.
ref’d) (no abuse of discretion in discharging juror as disabled where emotional stress resulted or
could result in physical illness). 9
9
The juror’s recorded comments are rather bizarre including references to Satanism, demon possession, hope,
theatrics, and “a random act of chaos creating unity.” The juror also stated, “So, this was beautiful . . . real life . . . it
was happening.” Comments were also directed to the physical attractiveness of trial participants. The juror
intended to play these comments to the jury during deliberations, and the trial court properly intervened to avoid that
occurrence. We understand the trial court’s concern, but the record does not support a conclusion that the juror was
mentally or emotionally disabled to perform the duties of a juror. Once again, we call for an amendment to the
11
The record in this case does not support a finding that the juror was unable to perform his
duties as a juror. Under these circumstances, we conclude the trial court abused its discretion in
removing the juror from service and replacing him with the alternate juror.
The next step in our analysis is to determine whether the error resulted in harm. Because
Whitehead complains of a statutory violation and does not claim a violation of her constitutional
rights, our harm analysis is conducted pursuant to Rule 44.2(b) of the Texas Rules of Appellate
Procedure. See TEX. R. APP. P. 44.2(b); see also Scales, 380 S.W.3d at 786; Sneed, 209 S.W.3d
at 788. Rule 44.2(b) provides that an appellate court must disregard a nonconstitutional error
that does not affect a criminal defendant’s “substantial rights.” TEX. R. APP. P. 44.2(b). An error
affects a substantial right of the defendant when the error has a substantial and injurious effect or
influence in determining the jury’s verdict. Scales, 380 S.W.3d at 786. Reversible error has not
occurred if the appellate court, after examining the record as a whole, “has fair assurance that the
error did not influence the jury, or had but a slight effect.” Johnson v. State, 967 S.W.2d 410,
417 (Tex. Crim. App. 1998); see Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
Here, the record indicates that, when the juror’s recording was discovered, the jury had
not yet begun deliberations. Both the existence of the recording and its contents were unknown
to the other jurors. There is no evidence that the juror’s opinions (if any) about how the case
should be decided were disclosed to the other jurors. Moreover, the substituted juror was
subjected to the same selection process, was properly sworn, and heard all of the evidence. A
statute to grant a trial judge, upon a finding of good cause, the discretion to replace a juror with a duly selected
alternate juror. See TEX. CODE CRIM. PROC. ANN. art. 33.011 (amendment of Article 33.011 in 2007 allows such
only on “agreement of the parties”); see Sneed, 209 S.W.3d at 787.
12
defendant is not harmed by a trial court’s error in discharging a juror where the record shows the
alternate juror seated in the discharged juror’s place was subjected to the same selection process,
was properly sworn, heard all of the evidence, heard the trial court’s charge, and was seated
before deliberations. Sneed, 209 S.W.3d at 788. Further, the record shows no taint from the
alternate juror seated in the discharged juror’s place. See id.; Ponce v. State, 68 S.W.3d 718, 722
(Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). Whitehead has complained of no harm
suffered from the replacement of the juror with the alternate juror, and no harm is evident from
the record. Accordingly, we conclude that Whitehead was not harmed by the trial court’s error
because it did not affect her substantial rights.
III. Conclusion
We affirm the trial court’s judgment.
Jack Carter
Justice
Date Submitted: April 18, 2014
Date Decided: June 19, 2014
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