                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00296-CR

WILLIAM MCKINLEY HAMMOND,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee


                         From the 272nd District Court
                              Brazos County, Texas
                        Trial Court No. 10-02887-CRF-272


                          MEMORANDUM OPINION


      The jury convicted William Hammond of the offense of aggravated assault and

assessed his punishment at 20 years confinement. We reverse and remand.

      In his sole issue on appeal, Hammond argues that the trial court erred by

denying him the right to a twelve member jury as afforded by Article V § 13 of the

Texas Constitution. After voir dire, a jury of twelve members was chosen to hear the

case. Before the jury had been sworn, one of the jurors informed the trial court that he

would not be able to serve on the jury. The trial court initially told the juror he would
have to serve, but after a discussion agreed to dismiss the juror. Hammond’s trial

counsel objected to proceeding with eleven jurors. The remaining eleven jurors were

released for the day, but still not sworn. The following day the jury was sworn, and the

trial proceeded with eleven jurors.

      Article 36.29 (a) of the Texas Code of Criminal Procedure provides:

      Not less than twelve jurors can render and return a verdict in a felony
      case. It must be concurred in by each juror and signed by the foreman.
      Except as provided by Subsection (b), however, after the trial of a felony
      case begins and a juror dies or, as determined by the judge, becomes
      disabled from sitting at any time before the charge of the court is read to
      the jury, the remainder of the jury shall have the power to render the
      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.

TEX. CODE CRIM. PRO. ANN. art. 36.29(a) (West Supp. 2013). The State concedes that

Article 36.29(a) is applicable only after the jury is sworn. Broussard v. State, 910 S.W.2d

952, 957 (Tex. Crim. App. 1995). The State further concedes that the trial court erred in

proceeding with eleven jurors, that the error was harmful, and that the cause should be

remanded. We sustain Hammond’s sole issue on appeal.

      We reverse the trial court’s judgment and remand for further proceedings

consistent with this opinion.




                                         AL SCOGGINS
                                         Justice




Hammond v. State                                                                     Page 2
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and Remanded
Opinion delivered and filed May 8, 2014
Do not publish
[CR25]




Hammond v. State                          Page 3
