In the Court of Criminal
Appeals of Texas
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No. PD-0280-22
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JOE LUIS BECERRA,
Appellant
v.
THE STATE OF TEXAS
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On Appellant’s Petition for Discretionary Review
From the Tenth Court of Appeals
Brazos County
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YEARY, J., filed a dissenting opinion.
Today the Court holds that the presence and participation of an
alternate juror during jury deliberations in this case, in which the
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alternate formally voted along with the jurors on the question of the
defendant’s guilt, violated neither Article 5, Section 13, of the Texas
Constitution, nor Article 33.01(a) of the Texas Code of Criminal
Procedure. TEX. CONST. art. V, § 13; TEX. CODE CRIM. PROC. art. 33.01(a).
For several reasons I disagree. I also cannot conclude that it was
harmless beyond a reasonable doubt. TEX. R. APP. P. 44.2(a). I would
therefore reverse the judgment of the court of appeals on that basis
alone.
I do agree with the Court that the alternate juror’s presence and
participation during jury deliberations constituted a violation of Article
36.22 of the Code of Criminal Procedure, in addition to the constitutional
violation. But in addressing the question of harm under Rule 44.2(b) of
the Rules of Appellate Procedure, governing statutory error, the Court—
without warning—seizes the opportunity in this case to disown the
presumption of harm that our cases have heretofore interposed in such
cases. TEX. R. APP. P. 44.2(b). While that might be an appropriate course
of action for the Court to take at some point in time, that question is not
before us today. So I do not see why the Court undertakes this endeavor.
I would simply not address it.
I. CONSTITUTIONAL ERROR: ART. V, § 13
The Court holds that an alternate juror cannot become a “juror”
for purposes of either Article 5, Section 13, or Article 33.01(a), unless
and until the trial court declares the alternate to be so. 1 See Majority
1 Along the way, the Court takes issue with the rationale of Trinidad v.
State, 312 S.W.3d 23 (Tex. Crim. App. 2010). There the Court held that the
presence of an alternate juror during deliberations did not violate the
constitutional (or the statutory) requirement of a jury of exactly twelve
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Opinion at 21 (“An 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
members because the alternate juror, while engaging in deliberations with the
actual jurors, did not participate in the “ultimate verdict.” Id. at 28. The Court
held that the jury could not be said to have been “composed” of more than
twelve members when the alternate juror did not “vote on the verdicts” that
Trinidad received. Id. Now the Court says this holding was “dicta.” Majority
Opinion at 26–27. I do not believe that is an accurate characterization. This
reasoning was essential to the Court’s conclusion that Trinidad’s jury was not
“composed” of more than “twelve persons” in violation of Article 5, Section 13.
The Court’s holding today is broader than Trinidad’s holding. That is
appropriate, I think, because the alternate juror’s participation in this case
was more extensive than that of the alternate juror in Trinidad, and a broader
approach is necessary to the Court’s desired disposition. Even when the
alternate juror participates in voting for the “ultimate verdict,” as the alternate
juror in this case arguably did, the Court now concludes that this greater
degree of participation still does not transform the alternate into a bona fide
“juror” for purposes of the absolute limitation on the number of jurors of which
a jury may be “composed” for purposes of Article 5, Section 13 (and of Article
33.02(a)). Majority Opinion at 26−27. The Court’s reasoning today more or less
subsumes the reasoning it engaged in in Trinidad. And it would have resolved
that case as well. But that does not mean the Court’s narrower holding in
Trinidad constituted dicta that must be disavowed—and certainly not because
it was “unnecessary to our disposition of the case” there. Majority Opinion at
27. It was necessary to our disposition even if a broader rationale might also
have led to the same result.
It is true, as the Court points out, that the Court also observed in
Trinidad that the error was “more usefully conceived of as an error in allowing
an outside influence to be brought to bear on the appellant’s constitutionally
composed twelve member jury.” Majority Opinion at 25 (quoting Trinidad, 312
S.W.3d at 28). But the Court only made this observation in Trinidad because
it had already concluded that the extent of the alternate juror’s participation
in that case was not enough to render him a thirteenth juror for purposes of
Article 5, Section 13. This observation was not, therefore, “the actual holding”
of Trinidad, as the Court today mistakenly characterizes it. Id. Instead, our
conclusion that the alternate juror’s participation was not extensive enough to
make him a thirteenth juror was the controlling rationale—flawed though the
Court may now find it to be.
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who becomes unable to perform his or her duties with an alternate
juror.”); TEX. CONST. art. V, § 13; TEX. CODE CRIM. PROC. art. 33.01(a). I
disagree with that conclusion.
It seems to me that anytime a thirteenth person is allowed to
actively participate—to any extent—in deliberations in the jury room,
as if he were a full-fledged member of the jury, the accused has suffered
a violation of Article 5, Section 13. It should not matter whether the
thirteenth person also actually participated in a vote upon the “ultimate
verdict.” Trinidad v. State, 312 S.W.3d 23, 28 (Tex. Crim. App. 2010). It
should not even matter that—as in this case—after the anomaly was
discovered, the thirteenth juror was removed before a verdict was
returned, and the jury was instructed to disregard his input. As far as I
am concerned, the constitutional damage has been done to the sanctity
of the system. 2 The bell cannot be unrung. 3
All that is left, then, is the question of harm. Under Rule 44.2(a),
I cannot find it harmless beyond a reasonable doubt. This Court has said
“that certain types of error may defy proper [harm] analysis or the data
may be insufficient to conduct a meaningful harm analysis.” Gonzales v.
2 In those cases that we have seen in which an alternate juror was
allowed to be present in the jury room but was expressly instructed simply to
observe and not participate in any way, and the record shows that he abided
by that instruction, I am open to the argument that he did not constitute a
thirteenth juror for purposes of Article 5, Section 13. Those are not the facts
before us today.
3 Thus, while I would not characterize the holding of Trinidad as dicta,
see note 1, ante, I would regard it as underinclusive of what constitutes a
violation of Article 5, Section 13. I do not view it as necessary that the intruder
participate in the “ultimate verdict” before it may be said that his presence and
participation in the deliberative process was extensive enough to make him an
impermissible thirteenth juror for constitutional purposes.
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State, 994 S.W.2d 170, 172 (Tex. Crim. App. 1999) (emphasis added).
When that is the case, reversal is appropriate under Rule 44.2(a), which
requires that a reviewing court “must reverse” unless it finds beyond a
reasonable doubt that the error did not contribute to the conviction. TEX.
R. APP. P. 44.2(a). In this case, what the record plainly does show is that
the alternate juror was present in the jury room and participated in
early deliberations as well as in an initial vote to find Appellant guilty.
Beyond that, the data are simply insufficient for us to determine what
impact the alternate juror’s substantial participation had. Ascertaining
that harm or no harm ensued from the alternate juror’s participation in
jury deliberations and his vote on the question of Appellant’s guilt would
necessarily involve an intricate examination and analysis of the group
dynamics that existed within the unique combination of people who
participated in the deliberations in this case. 4 Under these
4 Judge Keel seems to take the almost-categorical position that the
presence of a thirteenth juror during deliberations can never operate adversly
to a defendant because it simply increases the likelihood that he can be, if not
acquitted, then at least the beneficiary of a hung jury. Dissenting Opinion of
Judge Keel at 5–6. With respect, I disagree.
In a so-called Allen (or “dynamite”) charge, juries that appear to be
hopelessly deadlocked are explicitly told that, e.g., “[d]uring your deliberations,
you should not hesitate to reexamine your own views and change your opinion
if you become persuaded that it is wrong.” See Instruction—Allen Charge,
State Bar of Tex., Texas Criminal Jury Charges: General, Evidentiary, and
Ancillary Instructions CPJC 10.1, at 245 (2018); id. Commentary (noting that
one of the elements of a proper Allen charge is to inform jurors that “they
should listen, with a disposition to be convinced, to each other’s arguments”).
It is also generally presumed that juries will follow instructions given by the
trial court. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). So,
we must presume that any one juror (even an extra one) could be the one to
sway the rest of the jurors to vote either to convict or acquit.
There is, therefore, always the possibility that the presence of a
thirteenth juror during deliberations could lead to a conviction that might not
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circumstances, I cannot conclude that the error was harmless beyond a
reasonable doubt. On that basis, I would reverse the conviction.
II. STATUTORY ERROR: ARTICLE 36.22
The Court also concludes today that the alternate juror’s presence
and participation during jury deliberations did violate Article 36.22 of
the Code. Majority Opinion at 28−33. The Court reasons that, because
the alternate juror was never made an actual member of the twelve-
member jury, notwithstanding his participation in deliberations, he did
constitute an outside “person” for purposes of Article 36.22—one who
was unlawfully “permitted” both to “be with” the jury during its
deliberations, and to “converse with a juror about the case on trial[,]” in
violation of its provisions. Id. In my view, the alternate juror in this case
was both an impermissible thirteenth juror and an outside “person” who
was impermissibly permitted to “be with” and “converse” with the
“regular” jurors. 5
otherwise have occurred. An unauthorized thirteenth juror who was convinced
of a defendant’s guilt could put incremental pressure on a regular juror who is
holding out for an acquittal to change his or her vote, and that incremental
pressure could be the tipping point that makes all the difference to the
outcome.
5 Thus, in my view, the alternate juror’s participation during
deliberations in this case violated both the constitutional and statutory
proscriptions against more than twelve jurors in a case, under Article 5, § 13
of the Texas Constitution and Article 33.01 of the Code, and the statutory
prohibition against having an unauthorized “person” in the presence of and in
conversation with the jurors during their deliberations, under Article 36.22 of
the Code. The Court seems to view these two categories of violation as mutually
exclusive, as if an impermissible thirteenth juror could not also constitute an
unauthorized “person” who is impermissibly in the presence of, and conversing
with, the “regular” jury during its deliberations for purposes of Article 36.22.
If that is what the Court believes, I disagree.
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The Court then remands the case for the court of appeals to
reconsider whether this statutory violation is harmless under Rule
44.2(b). Id. at 56. Along the way, the Court rejects the presumption of
harm that our cases have sometimes applied in the context of so-called
“outside influence” scenarios. Id. at 42. But I do not believe it is
appropriate for the Court to address the validity of the presumption of
harm announced in the cases when that is an issue that was neither
decided by the court of appeals on direct appeal, raised in the Appellant’s
petition for discretionary review, nor briefed to any extent by either of
the parties.
Article 36.22 prohibits any “person” “to be with a jury while it is
deliberating” or “to converse with a juror about the case on trial[.]” TEX.
CODE CRIM. PROC. art. 36.22. The Court points to Mauney v. State, 85
Tex. Crim. 184, 210 S.W. 959 (1919), as the source of a presumption that
any violation of at least the second part of this provision will be deemed
injurious on appeal unless rebutted by the State. Majority Opinion at
34–35. The Court next points to a later case in which we observed that
this presumption is rebuttable by evidence from the State to show that
either 1) the case was not discussed (in which case there is no violation
of the statute in the first place, so the question of harm is moot), or 2)
“nothing prejudicial to the accused was said[.]” Majority Opinion at 35
(quoting Williams v. State, 463 S.W.2d 436, 440 (Tex. Crim. App. 1971)).
On discretionary review, Appellant complains that the court of
appeals failed to honor this presumption in its analysis. In the course of
these discretionary review proceedings, the State has consistently
conceded that there is such an appellate presumption in the law. State’s
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Reply to Appellant’s Petition for Discretionary Review at 8; State’s Brief
on the Merits at 16. Neither party has asked the Court to abandon the
presumption today; nor have the parties briefed the question whether
we should do so. The court of appeals did not weigh in on the propriety
of the presumption. Neither should we—at least not in this case.
III. CONCLUSION
For these reasons, I respectfully dissent.
FILED: February 7, 2024
PUBLISH