Joe Luis Becerra v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0280-22

JOE LUIS BECERRA, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS
BRAZOS COUNTY

NEWELL, J., delivered the opinion of the Court in which
HERVEY, RICHARDSON, WALKER, and MCCLURE, JJ., joined. YEARY, J.,
filed a dissenting opinion. KEEL, J., filed a dissenting opinion in
which KELLER, P.J., and SLAUGHTER, J., joined.

In this case, the trial court inadvertently allowed an alternate juror

to go back into the jury deliberation room and participate in a vote on
 Becerra - 2

the issue of guilt with the jury. This raises several issues. Does this

violate constitutional and statutory provisions setting petit jury

composition in district courts to twelve people? How should courts

analyze the alternate juror’s participation in light of the statutory

provision prohibiting any “person” from being with the jury while it is

deliberating or conversing with the jury about the case on trial? Should

proof of the alternate juror’s presence or participation during

deliberations give rise to a presumption of harm? The court of appeals,

in addressing these issues, ultimately held there was no reversible error.

We hold that there was statutory error and remand the case for the

court of appeals to conduct a statutory harm analysis.

As we will explain in greater detail below, the presence of an

alternate juror during a petit jury’s deliberations does not violate the

constitutional or statutory limits placed upon the size of a jury. At the

time these provisions were enacted, there was no such thing as an

“alternate juror” so the constitutional and statutory provisions regarding

the size of a jury have never included the concept of alternate jurors as

members of the “petit jury.” An alternate juror does not become a

member of the jury until the trial court places the alternate on the jury.

However, the alternate juror’s presence during deliberations in this

case violated the statutory prohibitions against a “person” being with
 Becerra - 3

the jury while it is deliberating and conversing with the jury about the

case. To the extent the court of appeals concluded otherwise, it erred.

While we have previously held that such violations can give rise to a

presumption of harm, this presumption is, in practice, indistinguishable

from an ordinary harm analysis. Further, our reference to this

presumption for such violations pre-dated the promulgation of appellate

rules governing review for harm and are ultimately inconsistent with the

purpose of a harm analysis. To the extent that the court of appeals

failed to apply a presumption of harm when conducting its harm

analysis—it did not err.

However, the court of appeals does not appear to have conducted

a harm analysis regarding the alternate’s presence during deliberations

because it concluded that there was no error in allowing the alternate

to be present with the jury during deliberations. And, in conducting a

harm analysis regarding the alternate juror’s participation in jury

deliberations, the court of appeals appears to have conflated the

question of prejudice for purposes of determining admissibility of juror

affidavits with the question of statutory harm. Furthermore, the court

of appeals erroneously failed to consider the entirety of the juror’s

affidavit when it conducted its harm analysis because the court of

appeals erred to conclude that only a portion of the juror’s affidavit
 Becerra - 4

concerning the statutory violation was admissible. Consequently, we

will remand the case for the court of appeals to conduct a statutory harm

analysis regarding the statutory violations at issue in this case.

Background

This case arose from an altercation that allegedly resulted in

Appellant shooting and killing a man named Jose Guardado-Rivera in his

home. Although no firearm was ever recovered, there was some

evidence that Appellant asked his girlfriend to bring him a gun prior to

the shooting. Shortly before the shooting, three men were seen walking

into Guardado-Rivera’s home and then a gun shot was heard. Shortly

after the shooting, Appellant was detained while walking away from

Guardado-Rivera’s home. A forensic chemist tested Appellant’s hands

and found they contained gunshot residue.

The State charged Appellant with unlawful possession of a firearm

by a felon. 1 Additionally, the indictment alleged that during the

commission of the offense Appellant used or exhibited the firearm as a

deadly weapon by discharging it in the direction of Jose Guardado-

Rivera. 2 Appellant entered a plea of not guilty and proceeded to trial

1
Tex. Penal Code § 46.04.

2
Appellant was initially charged in count one of the indictment with the murder and
aggravated assault of Guardado-Rivera but the State proceeded to trial only on the unlawful
possession of a firearm by a felon charge in count two.
 Becerra - 5

before a jury. A petit jury of twelve was selected and sworn in as well

as one alternate juror.

Following closing arguments, the jury retired to deliberate. The

alternate juror retired to the jury room with the regular jury without any

party realizing the issue. Approximately forty-six minutes later, the

State realized there were thirteen people in the jury room and notified

the bailiff. The bailiff notified the trial court, and the court immediately

had the bailiff remove the alternate juror.

The court held a hearing regarding the alternate juror. 3 At the

hearing, the court and parties discussed the implications of this Court’s

holdings in Trinidad v. State. 4 The trial court concluded that Appellant

may have waived any error by failing to object when the alternate

retired to the jury room with the jury. The State requested that the trial

court instruct the jury to disregard anything said by the alternate juror

and to restart deliberations. The parties agreed in substance to the trial

court’s proposed instruction to the jurors, but Appellant requested a

mistrial based on the presence of the juror. Appellant conceded that he

3
A jury note seeking clarification on the deadly weapon special issue was received after the
alternate juror’s removal and was also briefly discussed at this hearing.

4
Trinidad v. State, 312 S.W.3d 23, 28 (Tex. Crim. App. 2010) (concluding that an alternate
juror’s presence in the jury room and participation in deliberations did not violate
constitutional and statutory requirement that juries be composed of twelve jurors).
 Becerra - 6

had no indication of harm at that time and did not seek to question the

alternate or jurors on the matter.

The trial court denied Appellant’s request for a mistrial. The jury

was then given the following instruction:

Members of the jury, jury deliberations began at 9:45 a.m.
At 10:31 a.m., the Court realized that the alternate juror,
[alternate juror], was allowed into the jury room by mistake
and [alternate juror] was at that time asked to separate from
the jury. [Alternate juror] has been placed in a separate
room over here and will continue to serve as the alternate
juror in this case. He simply cannot be present during
deliberations of the 12 jurors. You are to disregard any
participation during your deliberations of the alternate juror,
[alternate juror]. And following an instruction on this extra
note that the Court received, you should simply resume your
deliberations without [alternate juror] being present. 5

The jury resumed deliberations. The jury thereafter returned a verdict

of guilty, and each juror confirmed the verdict when polled individually.

Appellant filed a motion for new trial. Appellant alleged that his

constitutional right to a jury composed of twelve people was violated by

the alternate juror’s participation in deliberations and a preliminary vote

on Appellant’s guilt. Appellant also alleged the juror’s participation

violated Articles 33.01 and 33.011 of the Code of Criminal Procedure.

Appellant further alleged that the alternate juror’s presence in the jury

5
The trial court also advised the jury that it did not understand the issue raised in the jury’s
note, but the jury was free to clarify in a subsequent note.
 Becerra - 7

room and his improper participation in a preliminary vote on Appellant’s

guilt violated Article 36.22, which prohibits non-jurors from talking with

jurors about the case or being with the jury during deliberations.

As to harm, Appellant alleged that based on the alternate juror’s

level of participation the constitutional error was harmful. 6 Regarding

the statutory violations, Appellant acknowledged Rule 44.2 of the Rules

of Appellate Procedure 7 would ordinarily govern, but he argued that an

established violation of Article 36.22 shifted the burden to the State to

show lack of harm. In support of his motion for new trial, Appellant

attached an affidavit from one of the regularly seated jurors. In relevant

part, the affidavit stated:

I was a juror in State of Texas v. Joe Becerra . . . During the
jury deliberations in the case, the individual later identified
by the trial judge as the “alternate juror” voted on the verdict
of “guilty” ultimately returned by the jury. The alternate
juror’s presence in the jury room was not discovered until
after the verdict vote was taken on guilt by the jury. After
this vote, there was a question the jury had concerning the
special issue submitted to the jury by the trial judge and
when the bailiff appeared to collect the question, the bailiff
realized the alternate juror was present in the jury room.
Thereafter, alternate juror participated in the deliberation
until the court bailiff came and collected us and brought us

6
Tex. R. App. P. 44.2(a) (if record reveals constitutional error in a criminal case, judgment
must be reversed unless the error did not contribute to the conviction beyond a reasonable
doubt).

7
Tex. R. App. P. 44.2(b) (non-constitutional error that does not affect substantial rights must
be disregarded).
 Becerra - 8

into the courtroom. 8 After the alternate juror was excused
the remaining 12 jurors did not revote on the issue of guilt
as the verdict vote taken while the alternate juror was
present in the jury room was unanimous.

The State filed an objection to the admission of the juror’s affidavit

pursuant to Rule 606(b). 9 The trial court held a hearing on Appellant’s

motion for new trial. The trial court overruled the State’s objection

concluding the affidavit falls within an exception to the prohibition on

juror testimony concerning whether there was an outside influence upon

any juror. 10 The trial court ultimately denied Appellant’s motion for new

trial concluding that Appellant’s complaints about the alternate juror

were waived and that, even if preserved, any error was harmless.

Direct Appeal and Remand

On appeal, Appellant complained that his constitutional right to a

jury composed of twelve people under Article V, sec. 13 of the Texas

Constitution was violated, Articles 31.011, 33.011, and 36.22 of the

Code of Criminal Procedure were violated, and the trial court erred in

8
The reporter’s record establishes that the alternate juror was removed from the jury room
before the entire jury was brought into the courtroom and given the instruction detailed
above. Further, the State and trial court both stated on the record that the jury note was
received after the alternate juror was removed.

9
Tex. R. Evid. 606(b) (juror may not testify about jury deliberations unless there was an
improper outside influence on any juror or to rebut a claim that juror was unqualified to
serve).

10
Id.
 Becerra - 9

failing to grant a mistrial or new trial. The court of appeals concluded

that Appellant’s constitutional and statutory claims were not preserved

because the objection and motion for mistrial were not timely made

when the alternate retired to deliberate with the jury. 11 Appellant

petitioned this Court to review the lower court’s determination that

these claims were defaulted. We granted review and held that because

Appellant objected as soon as he became aware of the error, he had

preserved his constitutional and statutory claims for review. 12 We

reversed and remanded for the court of appeals to consider the merits

of Appellant’s complaints.

Upon remand, the court of appeals held that the trial court did not

abuse its discretion by denying Appellant’s request for a mistrial or

motion for new trial. At the time of the request for a mistrial, the court

reasoned there had been no showing that the alternate juror

participated in deliberations or communicated with the regular jurors

about the case. 13 Thus, while Article 36.22 prohibits persons from being

with the jury while it deliberates or conversing with jurors about the

11
Becerra v. State, No. 10-17-00143-CR, 2019 WL 2479957, at *2 (Tex. App.—Waco June
12, 2019, pet. granted).

12
Becerra v. State, 620 S.W.3d 745, 748-49 (Tex. Crim. App. 2021).

13
Becerra v. State, No. 10-17-00143-CR, 2022 WL 1177391, at *3 (Tex. App.—Waco April
20, 2022, pet. granted).
 Becerra - 10

case on trial (except in the presence and by permission of the court),

Appellant failed to meet his burden to raise a presumption of harm at

the time of the motion for mistrial. 14

In considering the juror’s affidavit attached to Appellant’s motion

for new trial, the court of appeals held that only a portion of it was

admissible under Rule 606(b). According to the court of appeals, the

portion of the affidavit regarding what transpired after the alternate was

removed from the jury room (e.g., that no revote was taken) was

inadmissible because “it did not involve evidence regarding the outside

influence or its impact on any juror or the deliberations.” 15 The court of

appeals also observed that nothing in the remainder of the affidavit

indicated whether the alternate juror participated in deliberations

beyond voting on guilt or innocence prior to his removal. 16

The court of appeals then held that Article V, sec. 13 of the Texas

Constitution and Article 33.01(a), both of which provide for a jury

composed of twelve persons in district courts, were not violated because

the “ultimate verdict” rendered was voted on by a panel of twelve

14
Id.

15
Id. at *4.

16
Id. (“However, there was nothing included [in the affidavit] about whether or not the
alternate juror otherwise participated in deliberations, such as whether the alternate juror
attempted to convince another juror of [Appellant’s] guilt or the effect of some other aspect
of the evidence.”).
 Becerra - 11

jurors. 17 In considering Appellant’s claim that Article 36.22 was

violated, the court of appeals found “no authority has established a hard

rule that the presence of the alternate jurors in the jury room during

deliberations is absolutely improper.” 18 Thus, the court of appeals

concluded that the trial court did not abuse its discretion in denying the

motion for new trial. According to the court of appeals, neither the

alternate juror’s presence nor his initial participation in voting was

sufficient to create a reasonable probability that the alternate juror’s

outside influence had a prejudicial effect. 19

Petition for Discretionary Review

Appellant filed a petition for discretionary review, asking this Court

to review the court of appeals’ decision and remand to the trial court for

a new trial or, alternatively, to remand to the court of appeals with

further instruction. We granted review on the following three issues:

1. Art[icle] 36.22 of the Code of Criminal Procedure provides no
person shall be permitted to be with a jury while it is deliberating.
The petit juror affidavit admitted in [Appellant’s] Motion for New
Trial hearing established the alternate juror was present and
participated in deliberations and voted on the verdict. What status,
if any, does Art. 33.011(b) confer on alternative juror service
permitting the presence and/or participation of the alternate

17
Id. at *5 (citing Trinidad, 312 S.W.3d at 28).

18
Id.

19
Id.
 Becerra - 12

during petit jury deliberations and did the alternate’s act in voting
violate Art. 36.22?

2. Rule 606(b) of the Texas Rules of Evidence prohibits evidence of
“incidents that occurred during the jury’s deliberations.” The
uncontroverted petit juror affidavit admitted at [Appellant’s]
Motion for New Trial hearing attested the alternate juror voted on
the verdict, and after removal and instruction no further vote was
taken. Is the evidence that no further vote was taken an incident
during deliberations admissible under Rule 606(b) and, if
excludable, must Rule 606(b) yield to the need to prove a violation
of Art. V, Sec. 13 of the Texas Constitution and Art. 33.01 of the
Texas Code of Criminal Procedure?

3. This Court has long held a rebuttable presumption of harm exists
if a facial violation of Art. 36.22 of the Texas Code of Criminal
Procedure is shown. The Court of Appeals acknowledged
[Appellant’s] admitted evidence that the alternate juror voted on
the verdict was admissible as outside evidence under Rule
606(b)(2)(A) of the Texas Rules of Evidence. Did the failure of that
Court to apply the presumption based on this evidence so far
deviate from accepted law so as to call for the exercise of this
Court’s jurisdiction?

Generally, Appellant maintains that he is entitled to a new trial

because the alternate juror’s participation in deliberations violated

Article V, sec. 13 of the Texas Constitution as well as Articles 33.01,

33.011 and 36.22 of the Code of Criminal Procedure. He also argues

that the court of appeals erred by failing to apply a presumption of harm

in relation to the alleged violation of Article 36.22. We review a trial
 Becerra - 13

court’s denial of a motion for a mistrial and a denial of a motion for new

trial under an abuse of discretion standard. 20

Standard of Review

Under the abuse of discretion standard, we do not substitute our

judgment for that of the trial court; rather, we decide whether the trial

court’s decision was arbitrary or unreasonable. 21 A trial judge abuses

his discretion when no reasonable view of the record could support his

ruling. 22 As we have recently reaffirmed, the trial court is the exclusive

judge of the credibility of the evidence presented in connection with a

motion for new trial. 23 Regardless of whether the evidence is

controverted, a trial court’s ruling will only be reversed for an abuse of

discretion, that is, if it is arbitrary or unsupported by any reasonable

view of the evidence. 24

Analysis

20
Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017) (motion for new trial); Hawkins
v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (motion for mistrial).

21
Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014); accord Burch, 541 S.W.3d
at 820 (trial court’s ruling on a motion for new trial must be upheld if it is within the zone of
reasonable disagreement).

22
Burch, 541 S.W.3d at 820.

23
Najar v. State, 618 S.W.3d 366, 372 (Tex. Crim. App. 2021).

24
Id.
 Becerra - 14

A defendant’s personal right to a jury trial, the composition of a

twelve-person jury, and the prohibition against outsiders interacting

with the jury are three legal concepts that have developed in different

ways in Texas. The right to a jury trial has evolved as a right personal

to the defendant, while the question of how large the jury should be was

originally set by statute. The prohibition against outsiders interacting

with the jury has always been a statutory prohibition, even as the right

to a jury trial developed as a personal constitutional right.

Right to A Jury, a Jury of Twelve, and Jury Secrecy

There is little in the history of the development of the trial by jury

in a criminal case to provide insight into how the jury came to be

generally fixed at twelve jurors. As the United States Supreme Court

has observed:

Some have suggested that the number 12 was fixed upon
simply because that was the number of the presentment jury
from the hundred from which the petit jury developed.
Other, less circular but more fanciful reasons for the number
12 have been given, ‘but they were all brought forward after
the number was fixed,’ and rest on little more than mystical
or superstitious insights into the significance of ’12.’ Lord
Coke’s explanation that the ‘number of twelve is much
respected in holy writ, as 12 apostles, 12 stones, 12 tribes,
etc.,’ is typical. In short, while sometime in the 14th century
the size of the jury at common law came to be fixed generally
at 12, that particular feature of the jury system appears to
 Becerra - 15

have been a historical accident, unrelated to the great
purposes which gave rise to the jury in the first place. 25

The Court noted that its earlier decisions had always assumed that a

jury of twelve, what it referred to as an “accidental feature of the jury,”

had been immutably codified into the federal constitution as part of the

right to a jury trial. 26 But according to the Court, “the fact that the jury

at common law was composed of precisely 12 is a historical accident,

unnecessary to effect the purposes of the jury system and wholly

without significance ‘except to mystics.’” 27 Even viewing the number

twelve as emanating from the penumbra of a personal right to a jury,

the common-law requirement of twelve jurors was an arbitrary limit with

no intrinsic value. 28

25
Williams v. Florida, 399 U.S. 78, 87-90 (1970) (internal citations omitted).

26
Id. at 90. Similarly, Texas has long recognized that a twelve-person jury originated in
common law. See, e.g., Bullard v. State, 38 Tex. 504, 505 (1873); Randel v. State, 219
S.W.2d 689, 692-93 (Tex. Crim. 1949) (“The right to a trial by jury arose in the common law
. . . [i]t has been held in practically all our different state courts that such a trial contemplated
that the jury must be composed of twelve men indifferent between the prisoner and the
sovereign; from the vicinage where the offense was supposed to have been committed; must
be unanimous and uninfluenced by aught save the testimony . . .”).

27
Id. at 102 (quoting Duncan v. Louisiana, 391 U.S. 145, 182 (1968) (Harlan, J. dissenting)).

28
Indeed, the Court rejected the suggestion that a twelve-person jury gives either the defense
or the State any particular advantage. As the Court explained, “[i]t might be suggested that
the 12-man jury gives a defendant a greater advantage since he has more ‘chances’ of finding
a juror who will insist on acquittal and thus prevent conviction. But the advantage might just
as easily belong to the State, which also needs only one juror out of twelve insisting on guilt
to prevent acquittal.” Id. at 101. In a footnote, the Court acknowledged that a significant
increase in the size of the jury, such as an increase from twelve jurors to one hundred, would
undoubtedly be more advantageous to a defendant, but it clarified that a small difference in
size, such as a decrease from twelve to six jurors, would be unlikely to afford any perceptible
advantage to either side. Id. at 101, n. 47.
 Becerra - 16

In Texas, the personal right to a jury trial was first recognized in

the Texas Constitution even as the size of the jury was left to statute.

Starting in 1836, Texas has included a personal right to a jury trial in

every version of its constitution. 29 However, the rule that a felony jury

consist of twelve jurors started as a statutory requirement. 30 As a

constitutional requirement, the remedy for situations in which a trial

court impaneled a jury outside composition requirements was for

reviewing courts to render the entire proceedings void, a practice

consistent with the view that such violations deprive the jury of the

authority to act. 31 The prohibition against being with the jury or

29
Repub. Tex. Const. of 1836, Declaration of Rights 6, 9, reprinted in 1 H.P.N. Gammel, The
Laws of Texas 1822-1897, at 1083 (Austin, Gammel Book Co. 1898); Tex. Const. of 1845,
art. I, §§ 8, 12; Tex. Const. of 1861, art. I, §§ 8, 12; Tex. Const. of 1866, art. I, §§ 8, 12;
Tex. Const. of 1869, art. I, §§ 8, 12; but see Peak v. Swindle, 4 S.W. 478, 479-80 (Tex.
1887) (discussing the inquiry into the ratification of the Constitution of 1869); Tex. Const. of
1876, art. 1, §10. A criminal defendant also has a personal right to a jury trial under the
federal constitution. See U.S. CONST. amend. VI.

30
See Act approved August 26, 1856, 6th Leg., reprinted in 2 H.P.N. Gammel, The Laws of
Texas 1822-1897 (Austin, Gammel Book Co. 1898) (originally codified in Article 539 of the
Code of Criminal Procedure); see also Walker v. State, 42 Tex. 360, 374 (Tex. 1874) (“The
law of the State, as contained in the code, is as plain as it can be written in separating the
duties of the judge and of the jury, and in defining exactly the respective duties of each in a
criminal trial, all in harmony with and to carry out that provision of our Constitution which
declares ‘the right of trial by jury shall remain inviolate. The only mode of trial upon issues of
fact in the District Court is by a jury of twelve men, unless in cases specially excepted.’”)

31
See, e.g., Ogle v. State, 63 S.W. 1009, 1010 (Tex. Crim. App. 1901) (interpreting Article
V, sec. 13 of the Texas Constitution to hold that an indictment returned by a grand jury
composed of thirteen people was void so that a subsequent prosecution under a valid
indictment did not result in a double jeopardy violation).
 Becerra - 17

conversing with it about the case has always arisen from statutory

provisions starting with the first Code of Criminal Procedure in Texas. 32

To be sure, all these different provisions developed alongside and

informed each other. But that history does not imbue the formal

requirement of twelve jurors in felony cases with any talismanic

significance. If there were any such significance, there would not have

been any need for a statutory provision setting the jury composition at

twelve because the requirement would have already been regarded as

a necessary part of the personal right to a jury trial. 33

Alternate Jurors Are Not Part of the Composition of the Jury

Considering the text and history of the relevant constitutional and

statutory provisions as well as the common-law and statutory origins of

the twelve-person jury, Article V, sec. 13 of the Texas Constitution and

Article 33.01 of the Code of Criminal Procedure address exactly what

they appear to address—the size of the jury. Article V, sec. 13 of the

Texas Constitution refers to the composition of the jury and uses the

32
See Act approved August 26, 1856, 6th Leg., reprinted in 2 H.P.N. Gammel, The Laws of
Texas 1822-1897 (Austin, Gammel Book Co. 1898) (codified in Article 607 of the Code of
Criminal Procedure: “The Sheriff shall take care that no person converses with a juryman
after he has been impaneled to try a criminal action, except in the presence and by permission
of the Court.”)

33
Appellant did not argue at trial and does not argue on appeal that the alternate juror’s
participation in jury deliberations violated his right to a jury trial under the Sixth Amendment
of the federal Constitution or Article I, §. 10 of the Texas Constitution.
 Becerra - 18

word “composed” which refers to the formation of the jury. 34 Article

33.01 is specifically titled “Jury Size.” 35 These provisions do not contain

references to “alternate jurors,” nor do they contain terms that suggest

that an alternate juror becomes a member of the jury if he or she

participates in a jury’s “ultimate verdict.” A jury is necessarily composed

before it retires to deliberate.

Moreover, these constitutional provisions were enacted prior to the

statutory provisions authorizing a trial court’s selection and use of

alternate jurors. In light of the plain text and the historical context of

these provisions, an alternate juror’s participation in jury deliberations

does not convert a twelve-person jury into a thirteen-person jury in

violation of Article V, sec. 13 or Article 33.01. Participation in

deliberations by an alternate juror establishes an outside influence on

the jury not a change in the composition of the jury.

The Texas Constitution currently provides in relevant part:

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,

34
Tex. Const. art. V, Sec. 13. See Merriam-Webster’s Collegiate Dictionary 1095 (11th Ed.
2020) (defining compose as “to form by putting together”); Webster's II New College
Dictionary 230 (1999) (defining compose at "to create by putting together").
35
Tex. Code Crim. Proc. art. 33.01(a).
 Becerra - 19

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. 36

This provision was ratified in the Texas Constitution of 1876, which

remains in force today. 37 It refers only to the jury and its composition

without reference to the defendant. It was amended in 2001 to make

the text gender neutral, 38 and again in 2003 to provide that petit juries

in criminal cases below the grade of felony be composed of six persons

rather than nine. 39 None of these amendments alter the meaning of

“petit juries” contained in the text of the Texas Constitution.

Article 33.01 of the Code of Criminal Procedure codifies this

constitutional requirement as follows:

(a) Except as provided by subsection (b), in the district
court, the jury shall consist of twelve qualified jurors. In the
county court and inferior courts, the jury shall consist of six
qualified jurors.

36
Tex. Const. art. V, Sec. 13.

37
Tex. Const. art. V, § 13 interp. Commentary (West 2007) (noting prior to ratification, if a
juror was to die or become ill during trial, or for any other reason was unable to serve, it
necessitated a retrial and the ratification sought to prevent the delay and additional cost of a
retrial by allowing a trial to continue without the incapacitated juror).

38
Tex. Const. art. V, Sec. 13 (amended 2001).

39
Tex. Const. art. V, Sec. 13 (amended 2003).
 Becerra - 20

(b) In a trial involving a misdemeanor offense, a district
court jury shall consist of six qualified jurors. 40

This provision was originally enacted in 1965 and contained no reference

to the number of jurors required for a misdemeanor trial in district

court. 41 Article 33.01 was amended in 2003 to address those situations

by adding subsection (b). 42 As with Article V, sec. 13 of the Texas

Constitution, the amendment to the statute does not alter the meaning

of the word “jury” as originally drafted.

Both Article V, sec. 13 of the Texas Constitution and Article 33.01

of the Code of Criminal Procedure pre-date the enactment of Article

33.011 of the Code of Criminal Procedure, the statutory provision that

creates “alternate jurors.” First enacted in 1983, the text of the

alternate juror statute makes clear that an alternate juror exists “in

addition” to the “regular jury.” 43 Though this statute, entitled “Alternate

Jurors,” does refer to alternate jurors as “jurors,” the context of the

statute makes clear that the jurors are not considered part of the

40
Tex. Code Crim. Proc. art. 33.01(a).

41
Acts 1965, 59th Leg., ch. 722 § 1 (1966), amended by Acts 2003, 78th Leg., ch. 466, § 1
(eff. Jan 1, 2004).

42
Acts 2003, 78th Leg., ch. 466, § 1 (2004).

43
Tex. Code Crim. Proc. art. 33.011(a); Acts 1983, 68th Leg., ch. 775, § 2 (1983), amended
by Acts 2007, 80th Leg., ch. 846, § 1 (eff. Sept. 1, 2007).
 Becerra - 21

“regular jury.” 44 The statute clarifies that they sit “in addition” to the

regular jury and the statute specifically clarifies that they are “alternate

jurors.” 45 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 who becomes

unable to perform his or her duties with an alternate juror. 46 Article

33.011 provides in relevant part:

(a) In district courts, the judge may direct that not more
than four jurors in addition to the regular jury be called and
impaneled to sit as alternate jurors. In county courts, the
judge may direct that not more than two jurors in addition to
the regular jury be called and impaneled to sit as alternate
jurors.

(b) Alternate jurors in the order in which they are called
shall replace jurors who, prior to the time the jury renders a
verdict on the guilt or innocence of the defendant and, if
applicable, the amount of punishment, become or are found
to be unable or disqualified to perform their duties or are
found by the court on agreement of the parties to have good
cause for not performing their duties. Alternate jurors shall
be drawn and selected in the same manner, shall have the
same qualifications, shall be subject to the same examination
and challenges, shall take the same oath, and shall have the
same functions, powers, facilities, security, and privileges as
regular jurors. An alternate juror who does not replace a
regular juror shall be discharged after the jury has rendered

44
Id.

45
Id.

46
Tex. Code Crim Proc. arts. 33.011(b), 36.29; Scales v. State, 380 S.W.3d 780, 783 (Tex.
Crim. App. 2012) (“The trial court has discretion to determine whether a juror has become
disabled and to seat an alternate juror.”).
 Becerra - 22

a verdict on the guilt or innocence of the defendant and, if
applicable, the amount of punishment. 47

Prior to 2007, this statutory provision required alternate jurors to be

discharged after the jury retired to consider its verdict. 48 The statute

was amended in 2007 to require the discharge of alternate jurors after

the jury had rendered a verdict on guilt and, if applicable, the amount

of punishment. 49 This case presents an unintended consequence of that

amendment.

Looking at the text of the constitutional and statutory provisions,

an “alternate juror” does not alter the composition of the petit jury even

if the alternate erroneously participates in jury deliberations. 50 The

Texas Constitution limits the size of the petit jury to twelve people and

provides that a jury of less than twelve may render a verdict if one or

more (but no more than three) jurors are unable to carry out a juror’s

duty. That’s it. Statutes allowing a juror to be replaced by an alternate

juror were enacted later, but the statutory provision authorizing the use

of alternate jurors still does not transform an alternate juror into a

47
Tex. Code Crim. Proc. art. 33.011.

48
Tex. Code Crim. Proc. art. 33.011 (1983), amended by Acts 2007, 80th Leg., ch. 846, § 1
(eff. Sept. 1, 2007).

49
Acts 2007, 80th Leg., ch. 846, § 1 (2007).; see also House Comm. on Crim. Jurisprudence,
Bill Analysis, Tex. H.B. 1086, 80th Leg., R.S. (2007).

50
Trinidad, 312 S.W.3d at 28.
 Becerra - 23

member of the regular jury. It is only when the alternate juror replaces

a member of the jury that the alternate juror can be said to be a member

of the regular jury. The only way a district court runs afoul of the

constitutional and statutory provisions setting the number of jurors is to

impanel a jury of greater or fewer than twelve jurors in a felony case.

That the district judge chooses to qualify alternate jurors does not alter

the composition of the regular jury.

We have previously stated that the presence of an alternate juror

in the jury room during deliberations, even when the alternate juror

participates in those deliberations, does not violate the constitutional

and statutory twelve-person jury requirement as long as only the twelve

members of the petit jury voted on the ultimate verdict received. 51 In

Trinidad v. State, we considered two consolidated cases in which trial

courts allowed an alternate juror to be present for, and to participate in,

jury deliberations. 52 In each case, the trial court knowingly retired the

jury, including the alternate, to begin deliberations, instructing the jury

51
Id.

52
Id. at 24.
 Becerra - 24

that the alternate juror would be a part of their deliberations but would

not vote on the verdict unless a regular juror became disabled. 53

In Trinidad, we held no constitutional violation occurred under

these circumstances because the alternate jurors were not allowed to

vote on the “ultimate verdict” even though the alternate jurors were

allowed to participate in jury deliberations. 54 We did not explain what

constitutes the “ultimate verdict” as it was not necessary to the

disposition of the case. 55 We supported this language by citing to cases

involving juries that had been impaneled with less than twelve jurors. 56

Appellant now relies upon this aspect of Trinidad to argue that, although

twelve jurors “were in the box” when the verdict was received, the

alternate juror in this case participated in the only vote that apparently

occurred in this case. Appellant essentially argues that there is a

53
Id. at 24-25 (in both cases, the trial court, in instructing the jury, referenced the 2007
amendment to Article 33.011, which provided that alternate jurors shall not be discharged
until after the verdict is received).

54
Id. at 28.

55
Id. (“As long as only the twelve regular jurors voted on the verdicts that the appellants
received, it cannot be said that they were judged by a jury of more than the constitutionally
requisite number.”).
56
Id.; see, e.g., Hatch v. State, 958 S.W.2d 813, 815 (Tex. Crim. App. 1997) (concluding a
defendant, who agreed to proceed on a jury of eleven, can waive his constitutional right to a
jury of twelve); Roberts v. State, 957 S.W.2d 80, 81 (Tex. Crim. App. 1997) (remanding for
reconsideration in light of Hatch where court of appeals held that requirement of jury
composed of twelve members could not be waived); Harrell v. State, 980 S.W.2d 661 (Tex.
Crim. App. 1998) (requirement of jury composed of twelve members can be, and was,
expressly waived).
 Becerra - 25

constitutional violation in this case because the alternate juror

participated in a vote regarding Appellant’s guilt during jury

deliberations and that vote became the jury’s “ultimate verdict.”

But Appellant’s focus on our reference in Trinidad to the jury’s

“ultimate verdict” is a distraction from the actual holding of that case.

As we noted in Trinidad, the error in allowing alternates to be present

with the regular jurors during their deliberations “is more usefully

conceived of as an error in allowing an outside influence to be brought

to bear on the appellants’ constitutionally composed twelve-member

juries.” 57 We went on to agree with the court of appeals that such error,

if any, “would be controlled by Article 36.22, which is the statute that

expressly prohibits any outside ‘person’ from being ‘with a jury while it

is deliberating.’” 58 Yet, Appellant’s arguments and proof mistakenly

focus on whether the alternate participated in the “ultimate verdict.”

The relevant issue, however, was whether that alternate juror’s

participation in the jury’s deliberations was an outside influence on the

jury. The only time an alternate juror can be said to participate in the

57
Id. at 28.

58
Id.
 Becerra - 26

“ultimate verdict” is as an actual member of the jury, not as an

alternate.

In Trinidad, the alternate jurors’ participation in jury deliberations

did not result in a constitutional or statutory violation of the requirement

that a petit jury be composed of twelve people. 59 That is because the

alternate juror was never a member of the petit jury. Nothing in the

text of Article V, sec. 13 of the Texas Constitution or Article 33.01

mentions participation in the petit jury’s “ultimate verdict” or suggests

that an alternate juror becomes a member of that jury when he or she

participates in the “ultimate verdict.” Suggesting that an alternate juror

becomes a member of the petit jury through participation and

deliberation is akin to saying that this Court consists of more than nine

judges because staff attorneys assist in drafting opinions. 60

As far as the text of the Texas Constitution and Code of Criminal

Procedure are concerned, an alternate juror’s participation in a jury’s

preliminary vote during deliberations has nothing to do with whether the

trial court composed a petit jury of twelve people. Our suggestion in

59
Id.; see also United States v. Olano, 507 U.S. 725, 737 (1993) (presence of alternates in
jury deliberations, with instructions not to participate, did not affect substantial rights of
defendants).

60
See, e.g., Tex. Const. Art. 5 §4(a) (“The Court of Criminal Appeals shall consist of eight
Judges and one Presiding Judge.”)
 Becerra - 27

Trinidad that there might be a constitutional or statutory violation of the

twelve-person jury requirement if an alternate juror participates in the

jury’s “ultimate verdict” was unsupported dicta. It was unnecessary to

our disposition of the case, and we now expressly disavow it.

Given this understanding of the relevant constitutional and

statutory provisions, we hold that the trial court did not violate Article

V, sec. 13 of the Texas Constitution because the trial court

unquestionably composed the petit jury of twelve people. Likewise, we

hold that Article 33.01(a), which codifies Article V, sec. 13’s requirement

for a jury of twelve persons, was not violated. And finally, we hold that

there was no violation of Article 33.011 as there does not appear to be

any dispute that the selection of the alternate juror was made in

accordance with Article 33.011.

In this case, the trial court impaneled a jury of twelve people

consistent with the constitutional and statutory requirement that petit

juries be composed of twelve people. The trial court exercised its

discretion to qualify an alternate juror consistent with Article 33.011(b).

Each of these provisions appears to have been properly applied

according to their terms. We agree with the court of appeals that no

constitutional or statutory violation of the twelve-person jury

requirement occurred.
 Becerra - 28

Article 36.22 and Outside Influence

Our holding that the alternate juror’s participation in deliberations

does not rise to the level of a constitutional violation should not be taken

as a suggestion that the alternate juror’s presence with the jury during

deliberations and participation in those deliberations was permissible.

It was not. It violated Article 36.22 of the Code of Criminal Procedure.

Article 36.22 provides that:

No person shall be permitted to be with a jury while it is
deliberating. No person shall be permitted to converse with
a juror about the case on trial except in the presence and by
the permission of the court. 61

Article 36.22 has two prohibitions, the first disallows any person from

being with a jury while it is deliberating and the second prohibits any

person from conversing with a juror about the case on trial except in

the presence and by permission of the court. 62 Both parts of the statute

were violated in this case.

In Trinidad, we left open the question of whether alternate jurors

constituted an outside person for purposes of Article 36.22’s first

prohibition provision. 63 We noted that, as amended, Article 33.011

61
Tex. Code Crim. Proc. art. 36.22.

62
Id.

63
Trinidad, 312 S.W.3d at 28 n. 24 (concluding that the defendant forfeited the 36.22
statutory claim).
 Becerra - 29

“does not indicate whether the alternate juror should be allowed to be

present for, and to participate in, the jury’s deliberations, or instead,

whether he should be sequestered from the regular jury during its

deliberations until such time as the alternate’s services might be

required.” 64 To date, the question of whether an alternate juror’s

presence violates the first provision of Article 36.22 has not been

definitively answered. 65 As we noted above, nothing in the statutory

provision governing the use of alternate jurors transforms an alternate

juror into a member of the regular jury prior to an alternate juror’s

replacement of a regular juror. Only then does an alternate juror

become a member of the regular jury. If we were to regard alternate

jurors as members of the regular jury, then statutory provisions that

govern how an alternate juror “replaces” a disabled juror would be

rendered meaningless. 66

64
Id. at 24; see also Becerra, 2022 WL 1177391, at *5 (declining to find the trial court abused
its discretion absent an explicit rule that an alternate juror’s presence in the jury room is
“absolutely improper”).

65
But see Laws v. State, 640 S.W.3d 227, 231 (Tex. Crim. App. 2022) (“A claim that the
presence of an alternate juror while the jury deliberates violates Article 36.22 is not the same
sort of claim as an allegation of juror misconduct during deliberations.”); Becerra, 2022 WL
1177391, at *2 (noting the Court in Trinidad declined to determine whether the presence of
an alternate juror during deliberations violated Article 36.22).

66
Tex. Code Crim. Proc. art. 33.011(b) (“Alternate jurors in the order in which they are called
shall replace jurors who, prior to the time the jury renders a verdict on the guilt or innocence
of the defendant and, if applicable, the amount of punishment, become or are found to be
unable or disqualified to perform their duties. . .”)(emphasis added); see also Tex. Code Crim.
Proc. art. 36.29(b) (“If alternate jurors have been selected in a capital case . . . and a juror
 Becerra - 30

Notably, at the time Article 36.22 was enacted in 1965, there was

no statutory provision allowing for the selection and use of alternate

jurors. In its original form, Article 36.22’s use of the terms “jury” and

“juror” necessarily contemplated the regular jury and regular jurors, not

alternates. 67 When the statute used the word “jury” it was referring to

the regular jury of twelve people. When the statute used the word

“juror” it was referring to a member of the regular jury. The statute’s

use of the word “juror” could not have been a reference to an alternate

juror because the statute allowing for the use of alternate jurors did not

exist. Even after Article 33.011 was enacted in 1983, this understanding

of the terms held true because alternate jurors were specifically

discharged before deliberations. It was only after the amendment to

33.011 in 2007 that the danger of an alternate juror deliberating with

dies or becomes disabled from sitting at any time before the charge of the court is read to
the jury, the alternate whose named was called first . . . shall replace the dead or disabled
juror”); Tex. Gov’t Code § 62.020(d) (“In the order in which they are called, alternate jurors
shall replace jurors . . .”); Mahaffey v. State, 364 S.W.3d 908, 913 (Tex. Crim. App. 2012)
(“In interpreting statutes, we presume that the Legislature intended for the entire statutory
scheme to be effective.”); Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim. App. 2011) (“we
read words and phrases in context and construe them according to the rules of grammar and
usage”). Therefore, we must read the statute to give effect to the word “replace” in context
of the entire statutory scheme. See New Oxford Dictionary (3rd Ed. 2010) (defining "remove"
as "eliminate or get rid of" and defining "replace" as "fill the role of (someone or something)
with a substitute").

67
Tex. Code Crim. Proc. art. 33.011 (1983), amended by Acts 2007, 80th Leg., ch. 846, § 1
(eff. Sept. 1, 2007).
 Becerra - 31

the regular jury arose. 68 Even then, the statute’s silence regarding what

trial courts should do with alternate jurors while the jury is deliberating

does not suggest that the amendments to article 33.011 altered the

meaning of the statutory terms, “jury” or “juror.” 69 More importantly,

Article 33.011 and its subsequent amendment do not include an

exception to Article 36.22’s prohibition on persons being with a jury

while it is deliberating to allow alternate jurors to participate in those

deliberations. We now hold that the presence of an alternate juror with

the jury while it is deliberating violates the first provision of Article

36.22.

Turning to Article 36.22’s second prohibition provision, we have

recognized that “[t]he primary goal of Article 36.22 is to insulate jurors

from outside influence.” 70 Outside influence cases under Article 36.22

68
Id.

69
See Shapiro v. United States, 335 U.S. 1, 31 (1948) (statute susceptible of either of two
opposed interpretations must be read in the manner which effectuates rather than frustrates
the major purpose of the legislative draftsmen); see also State v. Brent, 634 S.W.3d 911,
913 (Tex. Crim. App. 2021) (“Prolonged inaction by the Legislature in the face of a judicial
interpretation of a statute implies approval of that interpretation. Its re-enactment of a law
without change in its verbiage is regarded as a legislative adoption of prior judicial
interpretations of said law. We generally give little weight to later legislative enactments when
interpreting a prior law.”) (internal quotations removed).

70
Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) (citing Chambliss v. State, 647
S.W.2d 257, 266 (Tex. Crim. App. 1983) (considering the second provision and concluding
Article 36.22’s “main purpose is to prevent an outsider from saying anything that might
influence a juror”) (emphasis in the original)).
 Becerra - 32

often involve jurors discussing the case with unauthorized people

outside of the jury room. 71 Having concluded that an alternate juror is

an outside person for purposes of Article 36.22, we have little trouble

concluding that the participation of the alternate juror in this case,

including casting a vote during the initial deliberations, constituted an

impermissible conversation with the jurors about the case on trial, which

did not occur in the presence of the court.

This is not to suggest that outside individuals are free to speak

with alternate jurors about the case on trial or that a trial court cannot

prohibit communications with alternate jurors about the case on trial.

Under the statute, alternate jurors are qualified just as regular jurors

are. 72 So, as with regular jurors, a citizen may be unable to serve as

an alternate juror if he or she has outside knowledge of the case that

might give rise to a valid challenge for cause. 73 Additionally, the

71
See Chambliss, 647 S.W.2d at 263-66 (considering a juror’s conversation with one of the
victim’s sisters during break in the trial but finding no error where the record did not show
the conversation concerned the case on trial); Ocon, 284 S.W.3d at 885 (juror’s telephone
conversation with an unknown person regarding the case on trial, which was overheard by
defense counsel and occurred in the presence of another juror likely violated Article 36.22’s
prohibition on conversing with a juror).

72
Tex. Code Crim. Proc. art. 33.011(b) (“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.”).

73
Tex. Code Crim. Proc. art. 35.16 (“A challenge for cause is an objection made to a particular
juror, alleging some fact which renders the juror incapable or unfit to serve on the jury.”).
 Becerra - 33

statutory prohibition against conversing with a juror still applies in a

situation in which someone converses with an alternate juror who later

replaces a member of the jury. In that situation, the juror still had a

conversation about the case on trial without the trial court’s permission

and outside the court’s presence even though the conversation took

place when the juror was simply an alternate juror. And nothing in this

opinion should be construed to prevent a trial court from holding a

person in contempt for violating an order not to speak with jurors or

alternates about the case on trial. 74

We have recognized that a violation of Article 36.22’s prohibition

on conversing with a juror about the case on trial, once proven by the

defendant, raises a rebuttable presumption of injury that may warrant

a mistrial. 75 Appellant asks us to consider the propriety of the court of

appeals’ failure to apply that presumption. Having determined that both

74
Tex. Code Crim. Proc. Art. 36.23 (“Any juror or other person violating the preceding Article
shall be punished for contempt of court by confinement in jail not to exceed three days or by
fine not to exceed one hundred dollars, or by both such fine and imprisonment.”); Tex. Gov’t
Code Ann. § 21.002.

75
Chambliss, 647 S.W.2d at 265-66 (“Although it is ‘generally presumed that a defendant is
injured whenever an empaneled juror converses with an unauthorized person about the case,’
the defendant has the burden ‘to establish that if a conversation did occur . . . the discussion
involved matters concerning the specific case at trial.’”) (emphasis in the original); Ocon, 284
S.W.3d at 885 (reporting violating conversation raised rebuttable presumption of injury);
Jenkins v. State, 493 S.W.3d 583, 612 (Tex. Crim. App. 2016) (“Once proven, a violation of
Article 36.22 triggers a rebuttal presumption of injury to the accused, and a mistrial may be
warranted.”).
 Becerra - 34

provisions of Article 36.22 were violated, we turn now to the issue of

the rebuttable presumption of harm.

Rebuttable Presumption of Harm

The court of appeals concluded that any violation of Article 36.22

was harmless because the alternate juror’s presence and participation

in initial voting with the jury was not sufficient to create a “reasonable

probability that the alternate’s outside influence had a prejudicial effect

on the ‘hypothetical average juror.’” 76 Appellant alleges in his third

issue that the court of appeals erred by failing to apply a rebuttable

presumption of harm as a result of the Article 36.22 violation. The State

argues that if a rebuttable presumption of harm was triggered by an

Article 36.22 violation, the record establishes that the presumption is

rebutted and the error was harmless.

Ultimately, we disagree that the court of appeals was required to

couch its analysis in terms of a rebuttable presumption of harm. To the

extent that the rebuttable presumption of harm for a violation of Article

36.22 has ever been applied in practice, this case provides a good

example of why it is misleading to cast the harm analysis for violations

of Article 36.22 in terms of a rebuttable presumption of harm. In 1919,

76
Becerra, 2022 WL 1177391, at *5.
 Becerra - 35

this Court first recognized this presumption of harm in Mauney v. State

stating:

We think the rule in cases of a violation of the provisions of
article 748 [which “forbid any one from being with the jury
while they are deliberating on a case and from
communicating with a juror after he has been impaneled,
except in the presence and by permission of the court”]
ought to be that injury in such a case is presumed unless the
contrary is made to appear to the satisfaction of the court,
the trial court primarily, and ultimately this court. Any
presumption can be overcome by evidence, and in such case
of presumptive injury the burden ought to be on the state to
satisfy the court that no injury has resulted from such
violation of the statute. 77

The Court in Mauney appears to have been concerned with assuring a

fair trial, avoiding the appearance of impropriety by strict observance of

the rule, and authorizing a juror to remain on a case even when the

juror may fail to accurately recall improper conversations with a non-

juror “by virtue of a convenient memory.” 78 These are all significant

concerns, to be sure. But our reference in Mauney to a rebuttable

presumption was otherwise unsupported.

In a later case, we noted the presumption “is rebuttable; and on

motion for new trial, if the State negates this presumption by showing

77
Mauney v. State, 210 S.W. 959, 963 (Tex. Crim. 1919) (concluding that the presumption
of injury was overcome “by the evidence showing what the conversations were, and that no
fact bearing on the case was discussed between the juror and his wife”).

78
Id. at 962-63.
 Becerra - 36

that either the case was not discussed or that nothing prejudicial to the

accused was said, then the verdict should be upheld.” 79 In this way, the

presumption of harm appears to only apply to a violation of Article

36.22’s prohibition on conversing with a juror about the case on trial

and not to an unauthorized person simply being present with the jury. 80

More importantly, the ultimate question in considering whether the

presumption has been rebutted appears to boil down to whether the

statutory violation had an injurious effect on the jury. In practice, our

reference to a presumption of harm appears no different than a mere

recognition that error occurred, and the rebuttable nature of the

presumption describes the necessity of conducting a harm analysis

regarding that error.

Given the circumstances in which we have held that the

presumption has been rebutted, casting a harm analysis in terms of a

rebuttable presumption of harm is unnecessary. That is because the

inquiry ultimately focuses on whether the alternate juror’s intrusion into

79
Williams v. State, 463 S.W.2d 436, 440 (Tex. Crim. App. 1971).

80
See, e.g., Ocon, 284 S.W.3d at 885 (reporting the conversation with a juror, which took
place in violation of Article 36.22’s second provision, raised a rebuttable presumption); Laws
v. State, No. 06-19-00221-CR, 2022 WL 2811958, at *5-6 (Tex. App. —Texarkana July 19,
2022) (not designated for publication) (citing Ocon and Hughes to conclude that the
presumption applies only to the second provision of Article 36.22).
 Becerra - 37

jury deliberations affected those deliberations and thereby the verdict. 81

For example, in Quinn v. State, a juror had a phone conversation with

a co-worker mid-trial, that was recorded, in which he discussed the case

on trial. 82 The defendant filed a motion for a new trial, which was

ultimately denied after a hearing. 83 We noted that “[w]hen a juror

converses with an unauthorized person about the case, ‘injury to the

accused is presumed’ and a new trial may be warranted. However, the

State may rebut this presumption of harm.” 84 Ultimately, we affirmed

the denial of the motion for new trial because the evidence established

that the juror did not relay the conversation with his co-worker to any

other members of the jury, and that the conversation did not otherwise

impact the juror’s deliberations. 85 Put in terms of a traditional harm

analysis, we appear to have recognized in Quinn that error occurred in

the form of a conversation between a juror and an unauthorized person,

81
The United States Supreme Court made essentially the same observation in United States
v. Olano, when it rejected the contention that there should be a presumption of prejudice
arising from an alternate juror’s presence during jury deliberations. Olano, 507 U.S. at 739.
As the Court noted, “[A] presumption of prejudice as opposed to a specific analysis does not
change the ultimate inquiry: Did the intrusion affect the jury’s deliberations and thereby its
verdict?” Id.

82
Quinn v. State, 958 S.W.2d 395, 397 (Tex. Crim. App. 1997).

83
Id. at 399.

84
Id. at 401.

85
Id. at 402.
 Becerra - 38

but we effectively held that the error was harmless because we had fair

assurance from the record that the conversation did not affect the jury’s

verdict. 86

In the context of a motion for mistrial, we have held that the State

rebutted the presumption of harm by submitting that the account of the

improper conversation could not be verified and that the jury had been

instructed not to talk about the case. 87 In that case, defense counsel

overheard one side of a juror’s telephone conversation while defense

counsel was in the restroom with another juror; defense counsel

reported the conversation, in which the juror spoke negatively about the

trial, to the judge and requested a mistrial. 88 Although we found that

reporting the conversation to the judge raised a rebuttable presumption

of harm, we also noted that the defense had not presented evidence

that either juror received any new or outside information as a result of

the phone conversation. 89 We concluded that “the paramount issue is

86
Id.; Stredic v. State, 663 S.W.3d 646, 655 (Tex. Crim. App. 2022) (“Because the error at
issue is solely a statutory violation, the Rule 44.2(b) standard of harm for nonconstitutional
errors governs the analysis. Under that standard, an error that does not affect substantial
rights must be disregarded . . . an error does not affect substantial rights if an appellate court
has fair assurance from an examination of the record as a whole that the error did not
influence the jury, or had but a slight effect.”).

87
Ocon, 284 S.W.3d at 885.

88
Id. at 882.

89
Id. at 887.
 Becerra - 39

whether Appellant received a fair and impartial trial, and therefore the

analysis must focus on whether the juror was biased as a result of the

improper conversation.” 90 We held that the trial court did not abuse its

discretion in denying the motion for mistrial even though the State never

presented any evidence to rebut the presumption of harm from the

unauthorized communication with the juror. 91

Further, the rebuttable presumption’s placement of “burdens”

upon the parties appears at odds with our later promulgation and

application of Rule 44.2(b). Rule 44.2 separates, for purposes of a harm

analysis, the standard for constitutional and non-constitutional errors. 92

We have held that “it is the responsibility of the appellate court to assess

harm after reviewing the record and that the burden to demonstrate

whether the appellant was harmed by a trial court error does not rest

on the appellant or the State.” 93 In assessing harm, there is no burden

90
Id.

91
Id. at 885-88 (concluding the presumption of harm was rebutted by the fact that the jurors
had been instructed not to discuss the case, the conversation could not be verified, and noting
questioning of the jurors should have been at the defense’s behest).

92
Tex. R. App. P. 44.2.

93
Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim. App. 2001) (adopting the Supreme Court’s
reasoning in O’Neal v. McAninch, 513 U.S. 432, 437 (1995) (“it is still the responsibility of the
… court, once it concludes there was error, to determine whether the error affected the
judgment. It must do so without benefit of such aids as presumptions or allocated burdens or
proof that expedite fact-finding at the trial”) and noting Rule 44.2(b) is based on Federal Rule
of Criminal Procedure 52(a)).
 Becerra - 40

on either party to prove harm or harmlessness resulting from the

error. 94

That neither party bears a burden in assessing harm is particularly

appropriate here given that neither party bears responsibility for the

error of allowing the alternate juror to participate in part of the jury

deliberations. Rather, an established violation of Article 36.22 should

be reviewed for harm by the appellate court based upon a review of the

record to determine whether the error had a substantial and injurious

effect in determining the jury’s verdict. 95 Neither party bears a burden

because it is the duty of the courts to determine whether the record as

a whole shows the outcome of the proceeding was influenced by the

error. 96 Given that a harm analysis is more of a systemic requirement

that ensures the reliability of the verdict based upon a review of the

entire record, burdens of persuasion are not appropriate. 97

94
VanNortick v. State, 227 S.W.3d 706, 709 (Tex. Crim. App. 2007).

95
Maciel v. State, 631 S.W.3d 720, 726 (Tex. Crim. App. 2021) (Newell, J., concurring) (“the
Court should recognize that an evaluation for harm flowing from error is as much a systemic
requirement as determining whether that error has been preserved”).

96
Burnett v. State, 88 S.W.3d 633, 638 (Tex. Crim. App. 2002) (“Neither the appellant nor
the State have any formal burden to show harm or harmlessness under Rule 44.2(b).”).

97
We note that harm analysis on direct review differs in this respect from the burden to
establish prejudice upon collateral review in a writ of habeas corpus. See Ovalle v. State, 13
S.W.3d 774, 787 (Tex. Crim. App. 2000); Ex parte Parrott, 396 S.W.3d 531, 534 n. 6 (Tex.
Crim. App. 2013); Cf. Maciel, 631 S.W.3d at 726 (Newell, J., concurring) (noting, on direct
appeal, the reviewing court makes its own assessment of harm independently of the
arguments of the parties).
 Becerra - 41

Discontinuing reference to a rebuttable presumption is also

consistent with the harm analysis applicable to other species of outside

influence claims. We have recognized, for example, that an outside

influence is problematic only if it has the effect of improperly affecting

a jury’s verdict in a particular manner for or against a particular party. 98

And we have held that courts conduct an objective analysis to determine

whether there is a reasonable possibility that the outside influence had

a prejudicial effect on the hypothetical average juror in order to

determine whether a juror affidavit regarding the outside influence is

admissible under Rule 606(b). 99 Notably, we have not couched our

harm analysis in these types of outside influence cases in terms of the

creation and rebuttal of a presumption of harm.

Likewise, in considering a statutory violation of the right to have a

verdict returned by a jury of twelve, we have analyzed the question of

harm without resort to a rebuttable presumption. 100 In Chavez v. State,

98
Colyer, 428 S.W.3d at 129 (outside pressures on jury were neutral when “they were not
intended to persuade a juror to decide this case in any particular manner even if they might
have influenced the jury to reach a verdict more quickly”).

99
McQuarrie v. State, 380 S.W.3d 145, 154 (Tex. Crim. App. 2012). We note that it is
pursuant to this standard that the court of appeals concluded that a violation of Article 36.22,
if any, was harmless. Becerra, 2022 WL 1177391, at *5. It appears the court of appeals
conflated the standard for admissibility under Rule 606(b) with the harm analysis for a
violation of Article 36.22.

100
See Chavez v. State, 91 S.W.3d 797, 801 (Tex. Crim. App. 2002).
 Becerra - 42

a juror became disabled from service after the jury reached a verdict

but before it was announced in court. 101 Over the defendant’s objection,

the trial court received the verdict from the eleven remaining jurors in

violation of Article 36.29’s requirement that, after the jury charge is

read to the jury, if a juror becomes disabled the jury must be discharged

except by agreement of the parties to have the remaining eleven

members render a verdict. 102 Concluding that the decision to proceed

with the trial over the defendant’s objection did not implicate the

constitutional right to a jury of twelve, we held that a pure statutory

violation of Article 36.29 was subject to harm analysis under Rule

44.2(b). 103

We now conclude the same harm standard applies to a violation of

Article 36.22 and referring to that analysis in terms of a rebuttable

presumption of harm is inappropriate. Our description of this

presumption was unnecessary and unsupported at the time and pre-

dates our promulgation of rules regarding harmless error. Further, it

has led to inconsistent application across related types of error. In

101
Id. at 798.

102
Id. at 800; Tex. Code Crim. Proc. art. 36.29(c).

103
Id. at 801; Tex. R. App. P. 44.2(b) (“[a]ny other error, defect, irregularity, or variance
that does not affect substantial rights must be disregarded”).
 Becerra - 43

short, the justification for this language was poorly reasoned and has

proven unworkable. 104 To the extent it is necessary, we expressly

disavow the language in Mauney and its progeny purporting to apply a

rebuttable presumption of harm to violations of Article 36.22.

Rule 44.2(b)

We also disagree that we should adopt a categorical approach to

the assessment of harm rather than a specific inquiry into whether the

record reveals harm. We disagree that an alternate juror’s participation

in jury deliberations results in structural error depending on the degree

of the alternate juror’s participation. 105 We also disagree with the

suggestion that an alternate juror’s participation in jury deliberations

always inures to the benefit of the defense. Instead, we hold that the

appropriate standard for evaluating harm when an alternate juror

participates in jury deliberations in violation of Article 36.22 is the

standard for non-constitutional error found in Rule 44.2(b).

We held in Cain v. State that no error, whether it relates to

jurisdiction, voluntariness of a plea, or any other mandatory

104
See Paulson v. State, 28 S.W.3d 570, 571-72 (Tex. Crim. App. 2000) (citing Proctor v.
State, 967 S.W.2d 840, 845 (Tex. Crim. App. 1998) (“when governing decisions of this Court
are unworkable or badly reasoned, we are not constrained to follow precedent”)).

105
See Lake v. State, 532 S.W.3d 408, 411 (Tex. Crim. App. 2017) (recognizing that only
federal constitutional errors labeled structural from the United States Supreme Court are
immune to a harmless error analysis); see also Olano, 507 U.S. at 739.
 Becerra - 44

requirement, is categorically immune from a harm analysis unless it

amounts to federal constitutional error that has been labeled as

structural by the United States Supreme Court. 106 The United States

Supreme Court has affirmatively rejected the argument that a violation

of a rule prohibiting an alternate juror from being with the jury during

jury deliberations is structural error. We reach the same conclusion.

In United States v. Olano, the Court considered a case in which

two alternate jurors had retired to deliberate with the jury though they

did not participate in jury deliberations. 107 In deciding that an

evaluation for harm was appropriate, the Court noted that cases in

which significant intrusions upon the jury’s deliberative process were

evaluated for the prejudicial effect of those intrusions. 108 Given that

precedent, the Court reasoned that an evaluation for harm was

appropriate for an alternate juror’s presence during jury

106
Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997).

107
Olano, 507 U.S. at 727-30.

108
Id. at 739. As the Supreme Court observed, “[w]e cannot imagine why egregious
comments by a bailiff to a juror (Parker) or an apparent bribe followed by an official
investigation (Remmer) should be evaluated in terms of “prejudice,” while the mere presence
of alternate jurors during jury deliberations should not.” Id.; see also Parker v. Gladden, 385
U.S. 363, 365 (1966) (holding that bailiff’s comments to a juror that the defendant was a
“wicked fellow” who was “guilty” materially affected the rights of the defendant because the
comments were overheard by at least one juror or an alternate); Remmer v. United States,
347 U.S. 227, 229-30 (1954) (holding that defendant was entitled to a hearing to determine
effect of F.B.I. investigation in to allegation that someone had attempted to bribe a juror in a
criminal case).
 Becerra - 45

deliberations. 109 Moreover, the Court rejected the suggestion that

prejudice should be presumed, noting that “a presumption of prejudice

as opposed to a specific analysis does not change the ultimate inquiry:

Did the intrusion affect the jury’s deliberations and thereby its

verdict?” 110

Notably, Justice Stevens authored a dissenting opinion to argue

that the error should be treated as affecting the system as a whole based

in part upon his view that it was difficult to measure the effect of the

error on jury deliberations. 111 According to Justice Stevens, allowing

alternate jurors into the jury room violated the cardinal principle that

the deliberations of the jury shall remain private and secret in every

case. 112 Further, he argued that this type of error affected the structural

integrity of the criminal tribunal itself. 113 But the Court rejected these

arguments, quoting Smith v. Phillips to explain the Court’s “intrusion”

jurisprudence:

“[D]ue process does not require a new trial every time a juror
has been placed in a potentially compromising situation.
Were that the rule, few trials would be constitutionally

109
Olano, 507 U.S. at 739.

110
Id.

111
Id. at 743-44 (Stevens, J., dissenting).

112
Id.

113
Id.
 Becerra - 46

acceptable . . . [I]t is virtually impossible to shield jurors from
every contact or influence that might theoretically affect their
vote. Due process means a jury capable and willing to decide
the case solely on the evidence before it, and a trial judge
ever watchful to prevent prejudicial occurrences and to
determine the effect of such occurrences when they
happen.” 114

Ultimately, in Olano, the Supreme Court did not treat the presence of

an alternate, or even the specter of some chilling conduct by the

alternate juror’s presence, as “structural error” that defies a harm

analysis. 115 Instead, the Court determined that the error was the type

of error that is susceptible to a harm analysis that can be undertaken to

determine the effect of the error upon the jury’s verdict. We agree.

That some errors may involve a greater intrusion upon the jury’s

deliberative process only suggests the error may be harmful, not that

the error is categorically immune from a harm analysis.

Conversely, we also disagree that allowing an alternate juror to

participate in jury deliberations would always inure to the benefit of the

defense. To be sure, the Supreme Court in Olano noted when analyzing

harm that the alternate jurors in that case were essentially

indistinguishable from the regular jurors. 116 The Court also noted that

114
Id. at 738 (majority opinion) (quoting Smith v. Phillips, 455 U.S. 209, 217 (1982)).

115
Id. at 740.

116
Id.
 Becerra - 47

the alternates received the same initial admonishments not to consider

the case on evidence outside the record. 117 The Court relied upon these

facts among others when making its determination in Olano that the

alternate’s presence during jury deliberations was harmless. 118

However, the Court also noted that the alternate jurors had been

instructed not to participate in jury deliberations. 119 And the Court held

that the court of appeals erred to speculate that the alternate jurors

contravened that instruction. 120 In so holding, the Court implies that a

greater degree of involvement by the alternate jurors in the jury’s

deliberative process might not be so easily dismissed as harmless

error. 121

While we have not considered a violation of Article 36.22 with a

comparable degree of involvement by an alternate juror, we have

117
Id.

118
Id. at 741.

119
Id. at 740.

120
Id.

121
In Olano, the Court noted that theoretically an alternate juror’s presence during jury
deliberations might prejudice a defendant in two different ways, namely participating in
deliberations verbally or through body language or by exerting a “chilling” effect on regular
jurors by virtue of the alternate juror’s presence. Id. at 739. The Court cited to two federal
cases as support for this conclusion, both of which observed that an alternate’s participation
in jury deliberations could be deemed prejudicial to a defendant under a harm analysis for
non-constitutional error. Id. (citing United States v. Watson, 669 F.2d 1374, 1391 (11th Cir.
1982) and United States v. Allison, 481 F.2d 468, 472 (5th Cir. 1973)).
 Becerra - 48

considered a case which at least illustrates how a single person in the

jury room can impact jury deliberations to the detriment of the defense.

In Scales v. State, we considered a case in which the trial court removed

a member of the regular jury as disabled because that juror refused to

deliberate with the rest of the jury because she believed the State had

not proven its case beyond a reasonable doubt. 122 We held that

removing that juror and replacing her with an alternate juror was a

statutory error that affected the defendant’s substantial rights. 123 We

specifically noted that as soon as the judge erroneously replaced the

hold-out-juror, the jury returned a guilty verdict, clearly demonstrating

that the erroneous removal had a substantial and injurious influence in

determining the jury’s verdict. 124 Indeed, in that situation a single

alternate juror’s participation resulted in harm to the defendant because

the removal of a member of the regular jury who was not disabled

affected the defendant’s substantial rights. 125

122
Scales, 380 S.W.3d at 781-82.

123
Id. at 786-87.

124
Id.

125
Id.; see also Williams, 399 U.S. at 101 (“It might be suggested that the 12-man jury gives
a defendant a greater advantage since he has more ‘chances’ of finding a juror who will insist
on acquittal and thus prevent conviction. But the advantage might just as easily belong to
the State, which also needs only one juror out of twelve insisting on guilt to prevent
acquittal.”).
 Becerra - 49

Ultimately, harm in a case in which an alternate juror participates

in jury deliberations with a lawfully composed jury of twelve depends

upon what the record reveals about the alternate juror’s involvement in

jury deliberations. 126 There is no question that the trial court impaneled

a “legal jury” of twelve jurors. 127 Rather, the question is how the

alternate juror’s participation in deliberations with that lawfully

composed jury affected the proceedings. If an examination of the entire

record reveals that the alternate juror’s participation in jury

deliberations had a substantial or injurious effect in determining the

jury’s verdict, then it can be said that the error affected the defendant’s

substantial rights and cannot be disregarded. But the Court cannot

recast the error at issue to require the application of a particular harm

standard (or the abandonment of a harm analysis altogether) to reach

a desired outcome.

126
Other jurisdictions have analyzed an alternate juror’s participation in jury deliberations for
harm further suggesting that such an analysis is appropriate in these circumstances. See,
e.g., James v. People, 426 P.3d 336, 341 (Colo. 2018) (“Like all errors in the trial process
that do not amount to structural error, whether an intrusion or outside influence on jury
deliberations should be disregarded as harmless must depend upon an evaluation of the
likelihood that the outcome of the proceedings in question was adversely affected by the
error.”); McAdams v. State, 75 P.3d 665, 668 (Wyo. 2003) (“We evaluate whether the
alternate juror's presence in the jury room during the jury's deliberations prejudiced the
defendant, and also whether the court acted or utilized sufficient procedural safeguards to
‘obviate the danger of prejudice to the defendant.’”) (quoting Alcalde v. State, 74 P.3d 1253,
1258 (Wyo. 2003)); Sanchez v. State, 794 N.E.2d 488, 491 (Ind. Ct. App. 2003) (mistrial
may be warranted based on alternate deliberating with the jury if the conduct was “both error
and had a probable persuasive effect on the jury’s decision”).

127
Stell, 14 Tex. App. 59, 60 (1883).
 Becerra - 50

Rule 44.2(b) of the Rules of Appellate Procedure sets out the

proper standard for analyzing whether non-constitutional error resulted

in harm. 128 Under this standard, any non-constitutional error that does

not affect substantial rights must be disregarded. 129 An error affects

substantial rights only if it has a substantial or injurious effect in

determining the jury’s verdict. 130 If, on the other hand, after an

examination of the record as a whole we have a fair assurance that the

error did not influence the jury, or had but a slight effect, a reviewing

court should not overturn the conviction. 131 To the extent that Appellant

argues that a reviewing court should consider whether the alternate

juror improperly participated in the jury’s ultimate verdict, that is a

factor that should be considered when evaluating whether the violation

of Article 36.22 affected Appellant’s substantial rights. 132

128
Tex. R. App. P. 44.2(b).

129
Id.; accord Gray v. State, 159 S.W.3d 95, 98 (Tex. Crim. App. 2005) (“In summary, when
only a statutory violation is claimed, the error must be treated as non-constitutional for the
purpose of conducting a harm analysis . . .”).

130
Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018) (citing Taylor v. State,
268 S.W.3d 571, 592 (Tex. Crim. App. 2008)).

131
Id.

132
Trinidad, 312 S.W.3d at 28 (noting that an alternate juror’s participation in jury
deliberations is more usefully considered as a claim that the alternate juror brought an outside
influence to bear on the jury).
 Becerra - 51

In this case, the court of appeals does not appear to have done a

complete harm analysis having concluded that the alternate’s presence

during jury deliberations was not error. 133 It also did not have the

benefit of our discussion regarding the applicable harm standard.

Moreover, it appears to have addressed the issue of harm in the context

of the alternate juror’s prejudicial effect on a “hypothetical average

juror.” 134 In doing so, it seems to have conflated the inquiry into

whether there was an outside influence, for purposes of determining

admissibility of juror affidavits regarding an outside influence, with the

inquiry into whether there was harm from the violation of Article

36.22. 135 Instead, the court of appeals should have examined the

record as a whole to determine whether the error affected Appellant’s

substantial rights. Because it did not, we will remand the case for the

court of appeals to conduct a harm analysis pursuant to Rule 44.2(b).

As this standard requires examination of the record as a whole, we must

address Appellant’s claim regarding the admissibility of the juror

133
Becerra, 2022 WL 1177391, at *5 (“As to the other alleged statutory violations, primarily
article 36.22 regarding the presence of outsiders with the jury during deliberations, we have
found no authority that has established a hard rule that the presence of the alternate jurors
in the jury room during deliberations is absolutely improper.”).

134
Becerra, 2022 WL 1177391, at *5.

135
Id.
 Becerra - 52

affidavit under Rule 606(b) of the Rules of Evidence to determine if the

entire affidavit can be considered by the court of appeals.

Rule 606(b)

As the United States Supreme Court has recognized, the near-

universal and firmly established common-law rule in the United States

flatly prohibits the admission of juror testimony to impeach a jury

verdict. 136 However, Rule 606(b) of the Rules of Evidence permits juror

testimony relating to improper outside influence. Rule 606(b) states:

(b) During an Inquiry into the Validity of a Verdict or
Indictment.

(1) Prohibited Testimony or Other Evidence.
During an inquiry into the validity of a verdict or
indictment, a juror may not testify about any statement
made or incident that occurred during the jury's
deliberations; the effect of anything on that juror's or
another juror's vote; or any juror's mental processes
concerning the verdict or indictment. The court may
not receive a juror's affidavit or evidence of a juror's
statement on these matters.

(2) Exceptions. A juror may testify:

(A) about whether an outside influence was
improperly brought to bear on any juror; or

(B) to rebut a claim that the juror was not
qualified to serve. 137

136
Tanner v. United States, 483 U.S. 107, 117 (1987) (holding that an evidentiary hearing in
which jurors would testify on juror alcohol and drug use during trial was barred by rule of
evidence prohibiting juror impeachment of jury verdict).

137
Tex. R. Evid. 606(b).
 Becerra - 53

The court of appeals upheld the admissibility of the portion of the

affidavit indicating that the alternate juror voted during deliberations

but was removed from the jury room before the ultimate verdict. 138

However, it held that the portion of the juror's affidavit indicating that a

subsequent vote was not taken once the court removed the alternate

juror was not admissible pursuant to Rule 606(b). 139 The court of

appeals reasoned that this portion did not involve evidence regarding

the outside influence or its impact on any juror or the deliberations. 140

Whether an affidavit is admissible pursuant to Rule 606(b) is reviewed

under an abuse of discretion standard like other evidentiary rulings. 141

We do not agree with the court of appeals’ conclusion that only a

part of the affidavit is admissible because the admissibility of the entire

affidavit falls within the zone of reasonable disagreement. In McQuarrie

v. State, we considered what constituted an “outside influence” for

purposes of admissibility under Rule 606(b). 142 McQuarrie was a sexual

138
Becerra, 2022 WL 1177391, at *4.

139
Id.

140
Id.

McQuarrie, 380 S.W.3d at 155; Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App.
141

2000) (“An appellate court reviewing a trial court’s ruling on the admissibility of evidence
must utilize an abuse-of-discretion standard of review.”).

142
McQuarrie, 380 S.W.3d at 150-55.
 Becerra - 54

assault case in which a trial court relied upon Rule 606(b) to exclude

juror affidavits regarding internet research that a juror shared with the

rest of the jury. 143 Specifically, two jurors submitted affidavits that a

third juror had conducted internet research into the effects of a date

rape drug and shared it with other jurors the next morning. 144 We held

that the juror affidavits were admissible because the content included

an inquiry into how the internet research affected the jury’s verdict

without delving into its deliberations. 145 In reaching our conclusion, we

explained that the 606(b) inquiry is limited to that which occurs outside

the jury room and outside of the juror’s personal knowledge and

experience. 146

In this case, the second part of the affidavit seems to have dealt

with jury deliberations. The affidavit avers that the jury did not take a

subsequent internal vote after the alternate juror was removed from the

143
Id. at 148.

144
Id.

145
Id. at 154 (“[A] trial court should be able to inquire as to whether jurors received such
outside information and the impact it had on their verdict without delving into their actual
deliberations. This can be done by making an objective determination as to whether the
outside influence likely resulted in injury to the complaining party—that is, by limiting the
questions asked of the jurors to the nature of the unauthorized information or communication
and then conducting an objective analysis to determine whether there is a reasonable
possibility that it had a prejudicial effect on the ‘hypothetical average juror.’”).

146
Id. (“[T]he plain language of Rule 606(b) indicates that an outside influence is something
outside of both the jury room and the juror.”) (citing White v. State, 225 S.W.3d 571, 574
(Tex. Crim. App. 2007)).
 Becerra - 55

jury room and the trial court had instructed the jury to disregard the

alternate juror’s participation. 147 However, the fact that no subsequent

vote was taken after the alternate juror was removed from the jury

room could have some bearing on whether the alternate juror’s

erroneous participation in jury deliberations had some effect on the

jurors. Like the affidavits at issue in McQuarrie, the affidavit in this case

could have provided a small nudge to show that either the jury was

affected by the alternate juror’s previous participation or that the jurors

followed the trial court’s instructions to disregard the alternate juror’s

participation. 148 Consequently, the court of appeals erred because the

trial court’s ruling admitting the entirety of the affidavit was not outside

of the zone of reasonable disagreement. 149 On remand, the court of

appeals should consider the entire affidavit when evaluating whether

the alternate juror’s presence and participation during deliberations

affected Appellant’s substantial rights.

Conclusion

147
There is no indication in the affidavit, for example, that the alternate juror actively swayed
the other jurors to a particular conclusion like Henry Fonda in the movie 12 Angry Men or was
largely ignored as a distraction like actor James Marsden in the recent Amazon Freevee series
Jury Duty. 12 ANGRY MEN (Orion-Nova Productions 1957); Jury Duty: Deliberations (Amazon
Studios April 21, 2023).

148
Montgomery v. State, 810 S.W.2d 372, 376 (Tex. Crim. App. 1990) (evidence need not by
itself prove or disprove a particular fact to be relevant; it need only provide a small nudge).

149
McQuarrie, 380 S.W.3d at 155.
 Becerra - 56

The inadvertent presence and participation of the alternate juror

in the jury’s initial deliberations did not implicate Appellant’s

constitutional right to a jury of twelve people, or the statutory

codification of that right in Article 33.01. Likewise, the alternate juror’s

presence and participation in a portion of jury deliberations did not run

afoul of Article 33.011 because the alternate juror was properly

discharged after the jury rendered its verdict.

However, the alternate juror’s participation and presence during a

portion of jury deliberations did violate Article 36.22’s prohibition on

unauthorized persons being present with the jury while the jury is

deliberating, as well as Article 36.22’s prohibition against conversing

with the jury about the case. We remand this case for the court of

appeals to analyze whether this non-constitutional error affected

Appellant’s substantial rights. On remand, the court of appeals should

consider the entirety of the juror affidavit regarding the jury

deliberations after the alternate juror had been excluded from the jury

room to determine whether Appellant was harmed by the statutory

violation.

Delivered: February 7, 2024

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