      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-03-00451-CR



                                  Albert McClellan, Appellant

                                                 v.

                                  The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
        NO. 9034115, HONORABLE CHARLES F. CAMPBELL, JUDGE PRESIDING



                                          OPINION


               In this case, we are asked to decide whether a trial court may dismiss a veniremember

before the jury is sworn and proceed to trial, over a defendant’s objection, with only eleven jurors.

We hold that it may not do so and reverse and remand for a new trial.


                                  FACTUAL BACKGROUND

               In August 2002, Austin Police Officer Shillito stopped a vehicle for failing to observe

a stop sign. When the driver, appellant Albert McClellan, failed to produce proper identification,

he was arrested for multiple traffic violations, patted down, and handcuffed and secured in the

backseat of Shillito’s patrol car. Shillito and other officers on the scene then searched appellant’s

vehicle and found items commonly used in the production of methamphetamine. After finding those
items, Shillito performed a more thorough search of appellant’s person while another officer

searched the backseat of Shillito’s patrol car, where the officer found a plastic bag containing

methamphetamine under the backseat. Shillito testified that he had searched the backseat of his

patrol car at the beginning of his shift, including pulling out the seat to be sure that nothing was

hidden there, and that no one had been in the backseat except for appellant. Appellant was charged

with possession or transport of chemicals with intent to manufacture methamphetamine and

possession of methamphetamine, Tex. Health & Safety Code Ann. § 481.115 (West 2003),

§ 481.124 (West Supp. 2004), and the State also alleged prior felony convictions. Tex. Pen. Code

Ann. § 12.42 (West Supp. 2004). The parties later agreed to proceed on the first count only.

               On Monday of the first day of trial proceedings, during voir dire, venireperson

McMath informed the court that she had to go to a funeral on Thursday. Voir dire proceeded, and

twelve veniremembers were selected, including McMath. The court released the remaining

veniremembers, gave instructions to the twelve selected members, and recessed until the following

morning without administering the juror’s oath.

               The next day, before the jury was sworn, the court asked if the parties agreed that

McMath was “disabled” under article 36.29 of the code of criminal procedure. Tex. Code Crim.

Proc. Ann. art. 36.29 (West Supp. 2004).1 The State agreed. Appellant did not agree but stated that




       1
          Article 36.29 codifies a felony defendant’s constitutional right to a twelve-person jury and
provides that after a felony trial begins, if one juror dies or becomes disabled, the remaining eleven
jurors may render a verdict. Tex. Code Crim. Proc. Ann. art. 36.29 (West Supp. 2004); Chavez v.
State, 91 S.W.3d 797, 800 (Tex. Crim. App. 2002).

                                                  2
the parties had negotiated a plea agreement. However, after the district court rejected the negotiated

plea, appellant changed his plea to not guilty and again objected to excusing McMath. The State

agreed that “there must be twelve jurors present unless the trial has begun,” suggesting a possible

solution that because the jury had not yet been sworn, the court could identify and summon the next

available venireperson to replace McMath. The district court acknowledged that it could attempt to

replace McMath with a remaining veniremember from the jury pool, but said that it was “willing to

take that chance” and that it believed a “trial begins” when the jury has been impaneled. The court

then excused McMath under article 36.29 as a “disabled” juror.

               Appellant next objected that McMath was not “disabled” under article 36.29, arguing

that article 36.29 requires a physical or mental impairment that prevents a person from serving. The

court overruled appellant’s objection, finding McMath disabled because she was “very emotional

about [the funeral],” both during voir dire and after she was selected. The juror’s oath was then

administered to the remaining eleven jurors, and the trial proceeded. The eleven-person jury found

appellant guilty, and the court assessed seven years’ imprisonment. This appeal ensued.


                                            ANALYSIS

               That appellant has a constitutional right to be tried by a twelve-person jury is not

disputed, Tex. Const. art. V, § 13, nor is the fact that the district court swore in and conducted the

trial with only eleven jurors. Therefore, the question is whether appellant’s constitutional right was

violated when the district court dismissed McMath before the jury was sworn and proceeded to trial

with only eleven jurors.


                                                  3
               Issues of statutory interpretation are questions of law to be resolved by courts and are

subject to de novo review. Kuhn v. State, 45 S.W.3d 207, 209 (Tex. App.—Texarkana 2001, pet.

ref’d). Therefore, we will review de novo the question of whether appellant’s constitutional right

to a twelve-person jury was violated.


    (i) Preservation of Error

               The State first argues that appellant did not preserve his complaint because the

objection he made at trial does not comport with the complaint he makes on appeal. The State urges

that appellant failed to mention article V, section 13 of the Texas Constitution or state that article

36.29 did not apply. On appeal, appellant argues that the Texas Constitution entitles him to a

twelve-person jury and that article 36.29 did not apply to McMath, whereas at trial, he stated that he

did not agree to McMath’s dismissal and objected that McMath was not “disabled” under article

36.29.

               A complaint must be properly preserved before it can be presented on appeal. Tex.

R. App. P. 33.1. The record must show that the complaint was timely presented to the trial court,

that the defendant stated the grounds for the objection with sufficient specificity to make the trial

court aware of the complaint or that the specific grounds were apparent from context, and that the

trial court ruled on the objection. Id. A general or insufficiently specific objection does not preserve

an error for appeal. Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990). However, if the

grounds for the objection are obvious to the court and opposing counsel, then error is preserved for

appeal. Id. (objection must be sufficiently specific to inform trial court of basis and allow opposing



                                                   4
counsel to “remove the objection or supply other testimony”); Zillender v. State, 557 S.W.2d 515,

517 (Tex. Crim. App. 1977). What would normally be considered an inadequate objection may be

sufficient to preserve error if the grounds were apparent from context in the record. Long, 800

S.W.2d at 548; Mack v. State, 928 S.W.2d 219, 225 (Tex. App.—Austin 1996, pet. ref’d); see also

Eisenhauer v. State, 754 S.W.2d 159, 161 (Tex. Crim. App. 1988), overruled on other grounds,

Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991) (to preserve error, defendant need

not cite specific constitutional provision in his objection).

               Appellant stated three times that he disagreed with the district court’s decision to

dismiss McMath. These objections were made in the midst of a discussion in which the district

court, the State, and appellant participated. To its credit, the State, too, was so concerned about

swearing in only eleven jurors that it raised the issue several times. The relationship of article V,

section 13 of the Texas Constitution to article 36.29 was the essence of the discussion. The grounds

for appellant’s objection were obvious to the district court and the State in this context. See

Eisenhauer, 754 S.W.2d at 161; Mack, 928 S.W.2d at 225. We conclude that appellant’s complaint

is preserved for appeal.2




       2
          The State further claims that appellant did not properly preserve error because he did not
move for a mistrial. The general rule is that a defendant must object, and if the objection is
sustained, move for mistrial. Nethery v. State, 692 S.W.2d 686, 701 (Tex. Crim. App. 1985);
Barletta v. State, 994 S.W.2d 708, 714 (Tex. App.—Texarkana 1999, pet. ref’d). In other words,
the defendant must pursue his objection to an adverse ruling. Tex. R. App. P. 33.1; Ramirez v. State,
815 S.W.2d 636, 643 (Tex. Crim. App. 1991); Nethery, 692 S.W.2d at 701; Barletta, 994 S.W.2d
at 714. Here, the district court overruled appellant’s objection.

                                                  5
    (ii) Application of Article 36.29

               Article V, section 13 of the Texas Constitution grants a defendant in a felony trial the

right to be tried by a jury composed of twelve people. Tex. Const. art. V, § 13. This section also

provides that “[w]hen, pending the trial of any case,” if no more than three jurors die or become

disabled, the remaining members of the jury may render a verdict, and that the legislature may

modify this rule. Id. Pursuant to that authority, the legislature enacted article 36.29 of the code of

criminal procedure.3 Chavez v. State, 91 S.W.3d 797, 800 (Tex. Crim. App. 2002).

               Article 36.29 of the code of criminal procedure allows fewer than twelve jurors to

render a verdict if, “after the trial . . . begins,” a juror dies or becomes disabled. Tex. Code Crim.

Proc. Ann. art. 36.29(a). A trial begins when the jury is sworn.4 See Maten v. State, 962 S.W.2d

226, 227 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d); Williams v. State, 631 S.W.2d 955, 957

(Tex. App.—Austin 1982, no pet.). Thus, if a venireperson is dismissed before the jury is sworn,




       3
          Pursuant to a 2001 amendment, the language “after the trial of any felony case begins” in
article 36.29(a) replaced “when pending the trial of any felony case.” See Act of May 31, 1981, 67th
Leg., R.S., ch. 545, § 2, 1981 Tex. Gen. Laws 2264, 2264 (since amended) (current version at Tex.
Code Crim. Proc. Ann. art. 36.29 (West Supp. 2004)) (emphasis added). The courts have given both
versions the same effect. Compare Winfrey v. State, 104 S.W.3d 282, 283 (Tex. App.—Eastland
2003, pet. ref’d), with Williams v. State, 631 S.W.2d 955, 957 (Tex. App.—Austin 1982, no pet.).
       4
           Even if the district court had waited to dismiss McMath until after the jury had been sworn,
it is not entirely clear from the record that McMath was “disabled” under article 36.29. Jurors are
properly deemed disabled when they are so physically or mentally impaired that they cannot perform
their duties as jurors. Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999); Moore v. State,
82 S.W.3d 399, 406 (Tex. App.—Austin 2002, pet. ref’d). Although we recognize that whether a
juror is disabled is within a trial court’s discretion, Brooks, 990 S.W.2d at 286, there is nothing in
the record regarding McMath’s emotional state except for the brief statement made by the district
court when McMath was dismissed.

                                                  6
it is error to proceed under article 36.29. Maten, 962 S.W.2d at 227; Williams, 631 S.W.2d at 957;

see Broussard v. State, 910 S.W.2d 952, 957 (Tex. Crim. App. 1995). In such circumstances, a trial

court need not dismiss the remaining eleven-person panel and select twelve new veniremembers, but

the court is required to complete the jury.5 Broussard, 910 S.W.2d at 957-58; Juarez v. State, 890

S.W.2d 184, 186 (Tex. App.—Corpus Christi 1994, no pet.); Williams, 631 S.W.2d at 957.

               Here, the district court made no attempt to replace McMath before the jury was

sworn. The State concedes that the court erred by dismissing McMath before the jury was sworn and

proceeding to trial without replacing her. Aside from article 36.29, the only time a felony defendant

may be tried by fewer than twelve jurors is when both the State and the defendant agree to waive the

constitutional right to a twelve-person jury. Hill v. State, 90 S.W.3d 308, 314 (Tex. Crim. App.

2002); see Tex. Gov’t Code Ann. § 62.201 (West 1998). Neither party agreed to such a waiver, and

thus the district court erred when it excused McMath under article 36.29 and proceeded to trial with

eleven jurors over appellant’s objection.


    (iii) Harmless Error Analysis

               Appellant urges that the district court committed reversible constitutional error when

it excused McMath and proceeded to trial with eleven jurors, but the State argues that the error was

harmless. All errors except for the very limited class of federal “structural” errors are subject to




       5
         A trial court has the authority and indeed must replace a venireperson dismissed after jury
members have been selected but before the jury has been sworn, but no statute details how a court
should do so. Juarez v. State, 890 S.W.2d 184, 186 (Tex. App.—Corpus Christi 1994, no pet.);
Williams, 631 S.W.2d at 957.

                                                 7
harm analysis. Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). The federal constitution

does not grant the right to a twelve-member jury, Williams v. Florida, 399 U.S. 78, 86, 99-100

(1970), and therefore, proceeding to trial with eleven jurors is not federal structural error. See

Johnson v. United States, 520 U.S. 461, 468-69 (1997); Chavez, 91 S.W.3d at 800.6

               To determine the standard used to evaluate an error subject to harm analysis, we must

classify the error as either constitutional (but non-structural) or non-constitutional error. Tex. R.

App. P. 44.2. Constitutional error offends either the United States or Texas Constitution. Tate v.

State, 988 S.W.2d 887, 890 (Tex. App.—Austin 1999, pet. ref’d). One commentator has used the

term “origin test” to describe the method used by Texas courts to determine whether an error is

constitutional or non-constitutional. Andrew Murr, Texas Attempts to See the Light Through Its Own

Muddied Jurisprudential Waters: The Difficulties In Choosing the Applicability of Constitutional

Versus Non-Constitutional Reversible Error, 34 Tex. Tech L. Rev. 297, 323 (2003) (citing Carranza

v. State, 980 S.W.2d 653, 656-58 (Tex. Crim. App. 1998)). The right to a twelve-person jury is

granted explicitly in the Texas Constitution and was codified by the legislature in article 36.29.

Castaneda v. State, 28 S.W.3d 685, 696 (Tex. App.—Corpus Christi 2000, no pet.); Rivera v. State,

12 S.W.3d 572, 579 (Tex. App.—San Antonio 2000, no pet.). That the legislature codified this




       6
         But see Ballew v. Georgia, 435 U.S. 223, 236 (1978) (“[T]he data suggest that the verdicts
of jury deliberation in criminal cases will vary as juries become smaller, and that the variance
amounts to an imbalance to the detriment of one side, the defense.”).
                                                                                                  .

                                                 8
constitutional right does not transform it into a statutory, non-constitutional right, and the issue here

is not a violation of article 36.29, but rather of the Texas Constitution. Rivera, 12 S.W.3d at 579;

see also Chavez, 91 S.W.3d at 800-01 (defendant complained of violation of statute detailing juror

replacement procedure, not violation of his constitutional rights; “failure of a trial court to adhere

to a statutory procedure related to a constitutional provision is a violation of the statute, not a

violation of the constitutional provision itself”). We conclude that in denying appellant his right to

a twelve-person jury, the district court committed constitutional error.7

                Unless the record shows beyond a reasonable doubt that a constitutional error did not

contribute to a conviction or punishment, we must reverse. Tex. R. App. P. 44.2(a); Ex parte

Russell, 738 S.W.2d 644, 646 (Tex. Crim. App. 1986); Tate, 988 S.W.2d at 889; see Wesbrook v.

State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000). By improperly excusing McMath, the trial court

lessened the State’s burden to prove appellant guilty beyond a reasonable doubt. Rivera, 12 S.W.3d

at 579. Instead of having to convince twelve jurors that conviction was warranted, the State was only

required to convince eleven. Id.; see Ballew v. Georgia, 435 U.S. 223, 236 (1978). Moreover, in

its attempt to show that the court’s error was harmless, the State largely argues that appellant has not




        7
          Rule 44.2(b) of the rules of appellate procedure, which outlines the standard for reversible,
non-constitutional error in criminal trials, was modeled on rule 52(a) of the federal rules of criminal
procedure. Carranza v. State, 980 S.W.2d 653, 657 (Tex. Crim. App. 1998); see Fed. R. Crim. P.
52(a); Tex. R. App. P. 44.2(b). The purpose of rule 52(a) of the federal rules is to prevent criminal
cases from being overturned due to technical errors. Fed. R. Crim. P. 52(a); Kotteakos v. United
States, 328 U.S. 750, 760 (1946). Labeling the error in this case as non-constitutional equates the
error with technical or procedural errors and belittles the importance of the right to a twelve-person
jury under the Texas Constitution.

                                                   9
shown that he was harmed, which is an attempt to shift the burden to appellant. We cannot speculate

as to how a twelfth juror would have voted or might have influenced the verdict, and under these

circumstances, we cannot conclude beyond a reasonable doubt that the error did not affect the jury’s

verdict. See Cain, 947 S.W.2d at 264; Rivera, 12 S.W.3d at 579-80.8

                Even if we were to accept the State’s argument that proceeding to trial with eleven

jurors was non-constitutional error, the error would require reversal under the lower standard

providing that an error not affecting substantial rights should be disregarded. Tex. R. App. 44.2(b).

A defendant’s substantial rights are affected if an error substantially or injuriously influences a jury’s

verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). When an error is non-

constitutional and it is impossible to measure whether the error harmed substantial rights, the error

cannot be disregarded as harmless, and a conviction should be reversed. Kotteakos v. United States,

328 U.S. 750, 765 (1946) (applying rule 52(a) of federal rules of criminal procedure); Cain, 947

S.W.2d at 264. We cannot determine whether this error affected the jury’s verdict, and therefore it

is impossible to determine whether the error was harmless.9 We sustain appellant’s issue on appeal.




        8
          The State suggests we should conduct a harm analysis as we would in a case of jury-pool
error. However, such cases involve the effect and impartiality of an identifiable juror. In this case
we do not know which venireperson would have been chosen had the district court attempted to
select a twelfth juror.
        9
          The State argues that “had the trial court simply decided to take up this issue a few minutes
later and made the decision to excuse this juror after swearing in the jury, the result would have been
completely different.” In this case, the court’s decision made the difference between following
established law and making an error to the detriment of the appellant’s state constitutional rights.

                                                   10
                                         CONCLUSION

               The district court made a constitutional error when it swore in and proceeded to trial

with eleven, rather than twelve, jurors. Because we cannot conclude beyond a reasonable doubt that

this error was harmless, we reverse the judgment of conviction and remand the cause for a new trial.




                                              __________________________________________

                                              Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Reversed and Remanded

Filed: August 12, 2004

Publish




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