                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-16-00329-CR
                               NO. 09-16-00330-CR
                            ____________________

                     CURTIS RAY HARRISON, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee


                     On Appeal from the 9th District Court
                         Montgomery County, Texas
               Trial Cause No. 15-10-10947-CR (Counts 1 and 2)


                          MEMORANDUM OPINION

      Curtis Ray Harrison was indicted for aggravated assault with a deadly weapon

and for unlawful possession of a firearm by a felon, with the charges enhanced for a

prior felony conviction. See Tex. Penal Code Ann. §§ 22.02, 46.04 (West 2011).

Harrison pleaded not guilty to the charges, and he stipulated to the prior conviction.

A jury found Harrison guilty on both counts, and the trial court sentenced Harrison

to thirty years’ confinement on the count of aggravated assault with a deadly weapon


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and twenty years’ confinement on the count of unlawful possession of a firearm by

a felon, with the sentences to run concurrently. Harrison timely filed notices of

appeal. In a single issue, Harrison challenges his convictions. We affirm.

                                 DISMISSAL OF A JUROR

      After the court had given the jury charge to the jury and jury deliberations had

begun, the presiding juror sent a note from juror J.V. to the court. The note stated as

follows:

      Judge,

      I’ve come to the conclusion [] it has become hard for me to decide if
      the defensor [sic] is guilty yes or no. I cannot come to a conclusion
      because my judgment is strongly influenced by bible principles. If I was
      to make a decision of this impact on a jury my conscience would not be
      at peace.

      I understand there is an alternate juror, and if the judge may find it
      acceptable I would prefer if the alternate juror took my place.

The note was signed by juror J.V. and by the presiding juror. The court had the bailiff

bring J.V. to the courtroom and the following exchange occurred:

      THE COURT: . . .[J.V.], are you saying that you absolutely cannot
      perform the role of a juror at this point because of your religious
      convictions?

      [J.V.]: I cannot, Judge.

      THE COURT: So you just absolutely cannot determine yes or no,
      whether or not this defendant is guilty?


                                          2
      [J.V.]: I cannot, Judge. My conscious [sic] wouldn’t allow me to make
      that decision.

      THE COURT: So do you believe that even though I’m instructing you
      to go back there and follow the law because of your strongly influenced
      bible principles you cannot perform that duty?

      [J.V.]: I believe it would violate my conscious [sic] that would have an
      impact on my life.

      THE COURT: You’re not willing to do that?

      [J.V.]: I’m not.

Following this direct questioning of J.V., the court ruled as follows:

      THE COURT: . . . It’s the ruling of this Court based on my
      conversations with [J.V.] as well as the note she sent out that she suffers
      from [an] emotional state[] [t]hat is based on her deeply held religious
      convictions that prevents her from even deliberating in this case and not
      that she has a problem with finding somebody guilty in a criminal
      matter. Based on her statements she has -- she is not able to even
      deliberate which, I believe, inhibits her condition, inhibits her ability
      from performing her basic duties as a juror which is deliberation. So I
      am finding that she is disabled.

The trial court seated the alternate juror as a member of the jury, and jury

deliberations continued. The defense objected to the dismissal of J.V. arguing that

the requisite level of disability had not been shown.

                                  APPLICABLE LAW

      Before a jury renders its verdict, alternate jurors “shall replace jurors who . . .

become or are found to be unable or disqualified to perform their duties or are found


                                           3
by the court on agreement of the parties to have good cause for not performing their

duties.” Tex. Code Crim. Proc. Ann. art. 33.011(b) (West Supp. 2016). “The trial

court has discretion to determine whether a juror has become disabled and to seat an

alternate juror.” Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012) (citing

Tex. Code Crim. Proc. Ann. art. 36.29 (West Supp. 2016) (“If a Juror Dies or

Becomes Disabled”)); Whitehead v. State, 437 S.W.3d 547, 554 (Tex. App.—

Texarkana 2014, pet. ref’d); Romero v. State, 396 S.W.3d 136, 142 (Tex. App.—

Houston [14th Dist.] 2013, pet. ref’d).1 The Court of Criminal Appeals has

interpreted article 36.29 to require that a disabled juror suffer from a “‘physical

illness, mental condition, or emotional state that would hinder or inhibit the juror

from performing his or her duties as a juror,’ or that the juror was suffering from a

condition that inhibited him from ‘fully and fairly performing the functions of a

juror.’” Scales, 380 S.W.3d at 783 (quoting Valdez v. State, 952 S.W.2d 622, 624

(Tex. App.—Houston [14th Dist.] 1997, writ ref’d) and citing Ramos v. State, 934

S.W.2d 358, 369 (Tex. Crim. App. 1996)). When dismissing a juror, the trial court

must not dismiss a juror for reasons related to that juror’s evaluation of the




      1
       Harrison’s issue on appeal addresses article 33.011 of the Code of Criminal
Procedure, and he makes no argument concerning article 36.29. See Tex. Code Crim.
Proc. Ann. arts. 33.011, 36.29 (West Supp. 2016).

                                         4
sufficiency of the evidence. Id. (citing United States v. Edwards, 303 F.3d 606, 633

(5th Cir. 2002)).

      Absent an abuse of discretion by the trial court, no reversible error will be

found. See id. at 784; Routier v. State, 112 S.W.3d 554, 588 (Tex. Crim. App. 2003)

(citing Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999)); Romero, 396

S.W.3d at 142. The trial court is the sole fact-finder and judge of the credibility of

testifying jurors. See Romero, 396 S.W.3d at 142 (quoting Scales, 380 S.W.3d at

784). We do not substitute our judgment for that of the trial court, but rather we

determine whether the trial court’s ruling was arbitrary or unreasonable, viewing the

evidence in the light most favorable to the court’s ruling. See Scales, 380 S.W.3d at

784. We uphold a trial court’s ruling provided it is within the zone of reasonable

disagreement. Id.

                                     ANALYSIS

      Harrison argues on appeal that the evidence is insufficient to determine

whether J.V. was disqualified or disabled. According to Harrison, “the record is

unclear that the excused juror was disabled or unable to perform her duties as a

juror.” Harrison also argues that J.V.’s note was not clear regarding why J.V. would

not be able to come to a decision, why participation in the verdict would violate




                                          5
J.V.’s conscience, or whether J.V. was being “pressured into a specific verdict by

the other jurors.”

      We find Harrison’s arguments unavailing, and we find no abuse of discretion

by the trial court. See id. We distinguish the case at bar from Scales, in which the

Court of Criminal Appeals determined that, relying solely on the testimony of the

jury foreperson, it was impossible to tell from the record whether the trial court had

sufficient information from which to determine that a dismissed juror was not able

to perform her duties as a juror. Id. at 785-86. In the instant case, however, the trial

court considered J.V.’s note and also directly questioned J.V. on the record. The trial

court specifically asked J.V. whether she “absolutely cannot determine” if the

defendant was guilty and whether she was willing to participate in deliberations, to

which J.V. answered that she could not. The trial court then concluded on the record

that J.V. had an “emotional state [] based on her deeply held religious convictions”

that rendered her unable to deliberate or to perform her basic duties as a juror.

Therefore, we find no abuse of discretion by the trial court in concluding that J.V.

was disabled. The trial court’s ruling that J.V. suffered from an emotional state that

prevented her from continuing to perform her duties is supported by the record and

is within the zone of reasonable disagreement, and there is no indication that the trial




                                           6
court removed the juror for her evaluation of the evidence. See id. at 783-84;

Romero, 396 S.W.3d at 144.

      Moreover, the record lacks any evidence of taint resulting from the seating of

an alternate juror. See Sneed v. State, 209 S.W.3d 782, 788 (Tex. App.—Texarkana

2006, pet. ref’d); Ponce v. State, 68 S.W.3d 718, 722 (Tex. App.—Houston [14th

Dist.] 2001, pet. ref’d). Where the record shows no taint from a substituted juror or

that seating an alternate juror deprived a defendant of a lawfully constituted jury,

even the erroneous replacement of a juror is harmless. See, e.g., Hill v. State, 475

S.W.3d 407, 409 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d); Sneed, 209

S.W.3d at 788. It is the appellant’s burden to show that his substantial rights have

been affected. See Merritt v. State, 982 S.W.2d 634, 637 (Tex. App.—Houston [1st

Dist.] 1998, pet. ref’d, untimely filed). Harrison has not argued, and the record does

not show, that he was deprived of a lawfully constituted jury or that any of his

substantial rights were affected.2 See Hill, 475 S.W.3d at 409. The alternate juror

heard the case and the court’s charge, was placed on the jury prior to a verdict being

reached, and had the same functions and powers as any other juror. Accordingly, the

record does not support a showing of harm. See Whitehead, 437 S.W.3d at 556;


      2
        Harrison did not argue any harm from the substitution of a juror in his motion
for new trial. On appeal he makes only the conclusory argument that the guilty
verdict “clearly” demonstrated harm resulting from the substitution.

                                          7
Ponce, 68 S.W.3d at 722; see also Tex. R. App. P. 44.2(b) (any non-constitutional

error, defect, irregularity, or variance that does not affect substantial rights must be

disregarded).

      We overrule Harrison’s issue, and we affirm the judgments of the trial court.

      AFFIRMED.



                                                      _________________________
                                                         LEANNE JOHNSON
                                                               Justice


Submitted on July 11, 2017
Opinion Delivered August 2, 2017
Do Not Publish

Before Kreger, Horton, and Johnson, JJ.




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