                               Fourth Court of Appeals
                                      San Antonio, Texas

                                                 OPINION
                                         No. 04-12-00108-CV

                    IN THE INTEREST OF M.G.N. and A.C.N., Minor Children

                      From the 57th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008-CI-17947
                            Honorable Antonia Arteaga, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: April 24, 2013

REVERSED AND REMANDED

           The final decree of divorce dissolving the marriage of Appellant George Carl Noyes and

Appellee Monica Noyes appointed them as joint managing conservators of their two children.

Later, each party sought to be designated as sole managing conservator, and they agreed to have

the issue determined by the jury. An eleven-member jury returned a verdict denying both

parties’ requests for sole managing conservatorship.          On appeal, George asserts that his

constitutional right to trial by a twelve-member jury was violated when the trial court

erroneously dismissed a seated juror. We agree. We reverse the trial court’s order and remand

this cause to the trial court for further proceedings consistent with this opinion.
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                                                BACKGROUND

        Following voir dire, the trial court impaneled twelve jurors and an alternate juror. 1

During the course of the trial, the court dismissed two sitting jurors—Juror Turney and Juror

Park.

A. Juror Turney

        Both parties took the stand at trial.            During George’s cross-examination, Monica’s

counsel asked whether George’s former employer, Tim Smoot, had accused him of running his

business into the ground and whether Mr. Smoot’s attorney had been attempting to contact him

regarding a claim by Mr. Smoot that George had cheated him in the business. George testified

that Mr. Smoot had not made such accusations and that he had not been contacted regarding a

claim by Mr. Smoot.

        During the next recess, Juror Turney approached the bench and explained that he had

done business with Mr. Smoot for many years and did not agree with Monica’s counsel’s

insinuation that George was responsible for Mr. Smoot’s business troubles, and had personal

knowledge that Mr. Smoot was still in business. Juror Turney stated that he believed George.

The trial court asked Juror Turney whether he could still be a fair and impartial juror. Juror

Turney responded, somewhat indirectly, that he would like to explain his knowledge to other

jurors “unless you tell me I can’t bring up things that were not brought up between the lawyers,

but I would like to.” The trial court instructed Juror Turney not to share any of the information

with the other jurors.



1
  In one sentence, George complains that because the extra juror was appointed sua sponte by the trial court, and
“neither party knew of this appointment, the alternate was not subjected to the same voir dire screening, and the
parties were not afforded additional peremptory challenges.” George’s brief does not include a clear and concise
argument on this issue or appropriate citation to the record or authorities. See TEX. R. APP. P. 38.1(i); Mañon v.
Solis, 142 S.W.3d 380, 391 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). Therefore, any argument as to the
trial court’s sua sponte appointment of an additional juror has been waived. See Mañon, 142 S.W.3d at 391.

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        Monica’s counsel requested the court excuse Juror Turney. George’s counsel objected,

stating that the parties knew he was in the electrical business based on his juror information

sheet, and that he could have been questioned on the subject at voir dire, but he was not. The

court stated, “Maybe I’d be cautioned if we didn’t have an extra juror, but we have an extra

juror. There’s no reason to take the risk here of impartiality or not or of extra information going

into the jury room.” The court then dismissed Juror Turney, replaced him with an alternate juror,

and proceeded with trial.

B. Juror Park

        On the seventh day of trial, Juror Park called and left a message on the clerk’s answering

machine that he was ill and unable to attend trial due to a stomach ailment. The court held a

hearing outside the presence of the jury in which the parties presented argument and authorities

as to the propriety of proceeding with eleven jurors. The court called Juror Park and placed him

on speaker phone. Juror Park stated that he had been having diarrhea all night and was unable to

sleep. He vomited once that morning, took some ibuprofen, and slept a bit. He went on to say

that “Right now I’m talking to you feeling great. In five or ten minutes, I might not. It’s that

kind of thing.” The trial court dismissed Juror Park from the jury.

        George’s counsel suggested the court recess until the next day, and absolutely did not

agree to proceed with eleven jurors. The trial court stated that eleven jurors remained and it had

made a promise to those eleven jurors that they would be done with trial that day, and it was “not

going to break that promise to the jury.” The court explained that “[f]or those reasons, as well as

others,” the trial would continue with eleven jurors. George’s counsel argued that twelve jurors

were required and, given his testimony, Juror Park did not meet the constitutional test of

disability.   He asserted that Juror Park was suffering only from a very temporary illness.

George’s counsel repeatedly informed the court that he would move for mistrial in the event that
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the court chose to proceed with eleven jurors. The trial court denied George’s motion for

mistrial and proceeded with an eleven-member jury.

                                        JUROR DISMISSAL

       During the course of the trial, the court dismissed two sitting jurors—Juror Turney and

Juror Park—resulting in an eleven-member jury. George argues that the trial court erred in

dismissing Juror Turney because he was not “disabled from sitting,” and that this error was

compounded when the trial court later dismissed Juror Park, who suffered from a stomach

ailment. George asserts that dismissal of these jurors violated his right to trial by a twelve-

member jury.

A. Standard of Review and Applicable Law

       The Texas Constitution provides that “[t]he right of trial by jury shall remain inviolate.”

TEX. CONST. art. I, § 15. This right “is one of our most precious rights, holding ‘a sacred place

in English and American history,’” Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex.

1997), and we “closely scrutinize[]” its denial, City of Garland v. Dall. Morning News, 969

S.W.2d 548, 558 (Tex. App.—Dallas 1998), aff’d, 22 S.W.3d 351 (Tex. 2000).

       A district court jury must consist of twelve jurors, unless not more than three of them die

or become “disabled from sitting.” See TEX. CONST. art. V, § 13; TEX. R. CIV. P. 292; McDaniel

v. Yarbrough, 898 S.W.2d 251, 252 (Tex. 1995). In McDaniel v. Yarbrough, the Texas Supreme

Court explained that “[w]hile trial courts have broad discretion in determining whether a juror is

‘disabled from sitting’ when there is evidence of constitutional disqualification, a trial court may

not ignore the constraints established in Waller.” 898 S.W.2d at 253. In Houston & Texas

Central Railway Co. v. Waller, the court stated that the

       causes which disable the juror from sitting, and justify the extreme course of
       allowing, over a party’s objection, a verdict to be rendered by the remainder of the
       jury, must be of a nature more directly showing his physical or mental incapacity
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       than mere mental distress occasioned by the sickness of others, and the feeling
       that duty to the sick demanded his presence elsewhere.

56 Tex. 331, 337–38 (1882); accord Yañes v. Sowards, 996 S.W.2d 849, 850 (Tex. 1999) (“But

not just any inconvenience or delay is a disability. A constitutional disability must be in the

nature of ‘an actual physical or mental incapacity.’”); see McDaniel, 898 S.W.2d at 252. “[A]

juror’s bias or prejudice cannot be equated with a total loss of mental powers such that a trial

court would be justified in dismissing a juror and proceeding with a trial without the parties’

permission.” City of Jersey Vill. v. Campbell, 920 S.W.2d 694, 698 (Tex. App.—Houston [1st

Dist.] 1996, writ denied). A trial court commits reversible error when it denies the constitutional

right to trial by jury. McDaniel, 898 S.W.2d at 253.

B. Analysis

       The Texas Supreme Court addressed a similar situation in McDaniel v. Yarbrough. See

McDaniel, 898 S.W.2d at 252. There, as here, the trial court removed a juror who was not

constitutionally disabled. See id. (reviewing a trial court’s decision to dismiss a juror because

she was unable to return to the court due to heavy flooding). In the current case, the trial court

dismissed Juror Turney because, at least in its view, in light of his statements with regard to Mr.

Smoot, he posed a risk of impartiality and of extra information going to the jury room. As

discussed in Campbell, any bias or prejudice Juror Turney may have had against the arguments

of Monica’s counsel was not a constitutional disability requiring dismissal. See id. Moreover,

the record contains no evidence that Juror Turney suffered from any physical or mental

impairment that would render him disabled from sitting.           See Yañes, 996 S.W.2d at 850;

McDaniel, 898 S.W.2d at 253; Waller, 56 Tex. at 337–38. Therefore, he was not disabled from

sitting on a jury within the meaning of the Texas Constitution.




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         Also as in McDaniel, the verdict in this case was reached by less than twelve jurors. See

McDaniel, 898 S.W.2d at 252. After dismissing Juror Turney, the trial court promptly replaced

him with an alternate juror, bringing the number of members on the jury back to twelve. 2 On the

final day of trial, the trial court dismissed Juror Park. The record is clear that Juror Park was

physically ill. He had diarrhea, had vomited, and had difficulty sleeping, and did not know how

long he would be sick. Thus, assuming without deciding that the trial court acted within its

discretion in dismissing Juror Park as constitutionally disabled due to physical impairment, it is

undisputed that Juror Park’s dismissal reduced the number of members on the jury from twelve

to eleven. See Yañes, 996 S.W.2d at 850; McDaniel, 898 S.W.2d at 253; Waller, 56 Tex. at 337–

38. George objected to proceeding with eleven jurors and made a timely motion for mistrial,

which the trial court overruled.

         But for the trial court’s dismissal of Juror Turney, the jury would have consisted of

twelve members. By dismissing Juror Turney when he was not “disabled from sitting,” the trial

court deprived George of a full, twelve-member jury and denied him the right to jury trial

guaranteed by the Texas Constitution. See McDaniel, 898 S.W.2d at 253. Therefore, the trial

court abused its discretion in dismissing Juror Turney and overruling George’s timely motion for

mistrial.




2
  In his brief, George asserts that the trial court “deprived him of a fair trial regardless of the number of jurors
because [the court] removed a juror who [was not disabled from sitting].” Cf. Schlafly v. Schlafly, 33 S.W.3d 863,
868 & n.2 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (recognizing that the question of when a trial court
could replace a juror who was not disabled from sitting was one of first impression for that court, but not addressing
the question because the appellant failed to properly brief it). Because we conclude that the jury was reduced to
eleven members where one juror was excused without being disabled from sitting, we do not reach the question of
when the trial court may replace a juror who is not disabled from sitting. However, such a question would impinge
on constitutional protections to a trial by jury and, answered improvidently, could invite jury manipulation mischief.
See generally TEX. CONST. art. I, § 15 (“The right of trial by jury shall remain inviolate.”); Scales v. State, 380
S.W.3d 780, 786 (Tex. Crim. App. 2012) (reversing the trial court’s judgment because it removed a juror when “the
trial court had insufficient information from which to determine that [a juror] was not able to perform her duties as a
juror”).

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C. Conclusion

       We conclude that the trial court abused its discretion in dismissing Juror Turney and

overruling George’s timely motion for mistrial. Because the “[d]enial of the constitutional right

to trial by jury constitutes reversible error,” no showing of harm is necessary.            See id.

Accordingly, we sustain George’s first point of error.

                                       REMAINING ISSUES

       Because we have concluded that George’s constitutional right to a trial by jury was

violated, and the appropriate remedy is to reverse the order and remand the cause for a new trial,

we need not address George’s other issues. See TEX. R. APP. P. 47.1. We overrule George’s

remaining issues as moot.

                                          CONCLUSION

       By dismissing Juror Turney who was not “disabled from sitting,” and overruling

George’s motion for mistrial after Juror Park’s dismissal reduced the number of jurors to eleven,

the trial court violated George’s constitutional right to a trial by jury. Therefore, we reverse the

trial court’s Order in Suit to Modify Parent Child Relationship and remand this cause to the trial

court for further proceedings consistent with this opinion.



                                                  Patricia O. Alvarez, Justice




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