                                                                                     PD-1260-15
                                                                   COURT OF CRIMINAL APPEALS
                                                                                    AUSTIN, TEXAS
                                                                   Transmitted 11/2/2015 1:34:58 PM
                                                                     Accepted 11/2/2015 3:47:15 PM
                               NO. PD-1260-15                                        ABEL ACOSTA
                                                                                             CLERK

                   IN THE COURT OF CRIMINAL APPEALS
                        OF THE STATE OF TEXAS


                          REGINALD TURON HILL
                                Appellant

                                      v.

                            THE STATE OF TEXAS
                                  Appellee


        On Petition for Discretionary Review of Cause No. 14-14-00376-CR
In the Fourteenth Court of Appeals, affirming Judgment in Cause Number 1416500
              From the 177th District Court of Harris County, Texas
                        Hon. Ryan Patrick, Judge Presiding


                   PETITION FOR DISCRETIONARY REVIEW




ORAL ARGUMENT REQUESTED                    ALEXANDER BUNIN
                                           Chief Public Defender
                                           Harris County, Texas

                                           CHERI DUNCAN
                                           Assistant Public Defender
                                           Harris County, Texas
                                           Texas Bar No. 06210500
                                           1201 Franklin, 13th floor
                                           Houston, Texas 77002
                                           Phone: (713) 368-0016
       November 2, 2015
                                           Fax: (713) 368-9278
                                           cheri.duncan@pdo.hctx.net
                                           COUNSEL FOR APPELLANT
               IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                            Reginald Turon Hill
                                      TDCJ# 01930777
                                      McConnell Unit, TDCJ
                                      3001 S Emily Dr
                                      Beeville, TX 78102

TRIAL PROSECUTOR:                     Farnaz Faiaz
                                      Brad Means
                                      Assistant District Attorneys
                                      Harris County, Texas
                                      1201 Franklin, Suite 6th Fl
                                      Houston, TX 77002

DEFENSE COUNSEL AT TRIAL:             Jacquelyn R. Carpenter
                                      Eric J. Davis
                                      Assistant Public Defenders
                                      1201 Franklin, 13th Fl
                                      Houston, Texas 77002

PRESIDING JUDGE:                      Hon. Ryan Patrick
                                      177th District Court
                                      Harris County, TX
                                      1201 Franklin, 19th Fl
                                      Houston, TX 77002

COUNSEL ON APPEAL:                    Cheri Duncan
                                      Assistant Public Defender
                                      Harris County, TX
                                      1201 Franklin, 13th Fl
                                      Houston, TX 77002




                              ii
                                                   TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ...................................................................................ii

TABLE OF CONTENTS .............................................................................................................iii

INDEX OF AUTHORITIES ....................................................................................................... iv

STATEMENT REGARDING ORAL ARGUMENT ...................................................................... 1

STATEMENT OF THE CASE ..................................................................................................... 1

PROCEDURAL HISTORY .......................................................................................................... 2

QUESTION PRESENTED .......................................................................................................... 2

          THE  TRIAL COURT, SUA SPONTE, REPLACED A JUROR DURING
          DELIBERATIONS. DID THIS VIOLATE APPELLANT’S RIGHT: 1) UNDER
          THE TEXAS CONSTITUTION, TO A 12-PERSON JURY; AND 2) UNDER
          THE U.S. AND TEXAS CONSTITUTIONS TO NOT FACE DOUBLE
          JEOPARDY; AND WAS THE COURT OF APPEALS WRONG WHEN IT HELD
          THAT THE TRIAL COURT’S ERROR WAS HARMLESS?

REASONS FOR GRANTING REVIEW ....................................................................................... 2

        A. FACTS RELEVANT TO THE QUESTION ................................................................... 2

        B. ARGUMENT: TWELVE-MEMBER JURY ................................................................... 3

        C. ARGUMENT: DOUBLE JEOPARDY .......................................................................... 4

        D. ARGUMENT: HARM ANALYSIS ............................................................................... 5

PRAYER .................................................................................................................................... 6

CERTIFICATE OF SERVICE ...................................................................................................... 7

CERTIFICATE OF COMPLIANCE ............................................................................................. 7

APPENDIX

                                                                     iii
                                                 INDEX OF AUTHORITIES
Cases

Crist v. Bretz, 437 U.S. 28 (1978) ........................................................................................... 5

Hill v. State, __ S.W.3d __, 2015 WL 5025476 (Tex. App. – Houston [14th Dist.] Aug. 25,
 2015)...................................................................................................................................... 2

Mayo v. State, 4 S.W.3d 9 (Tex. Crim. App. 1999) ................................................................ 4

Scales v. State, 380 S.W.3d 780 (Tex. Crim. App. 2012) ............................................. 1,4, 5, 6



Rules

TEX. R. APP. PROC. 9.2 ........................................................................................................... 7

TEX. R. APP. PROC. 44.2 ......................................................................................................... 1

TEX. R. APP. PROC. 44.2 (a) ................................................................................................... 6

TEX. R. APP. PROC. 66.3(c)..................................................................................................... 1

TEX. R. APP. PROC. 66.3 (f) .................................................................................................... 1


Constitutional Provisions

TEX. CONST. ................................................................................................................... 1, 2, 3

TEX. CONST. ART. 1 § 14 ........................................................................................................ 6

TEX. CONST. ART. V, § 13 ................................................................................................... 3, 6

U.S. CONST. ...................................................................................................................... 1, 2, 4

U.S. CONST. AMEND. V ........................................................................................................... 6

U.S. CONST. AMEND. XIV .............................................................................................. 1, 2, 4

                                                                     iv
TO THE COURT OF CRIMINAL APPEALS:

      Reginald Turon Hill, the appellant, petitions this Court to reverse the judgment

of the Fourteenth Court of Appeals.

                    STATEMENT REGARDING ORAL ARGUMENT

      Oral argument would be helpful to the Court because the case presents

important questions of federal and state law that have yet to be answered directly by

the Court: whether a trial court’s decision to sua sponte replace a juror during

deliberations violates the Texas Constitution’s guarantee of a 12-member jury in felony

cases, and violates the U.S. and Texas Constitutions’ prohibition against double

jeopardy, and whether the court of appeals erred in holding that such action is merely

statutory error. See TEX. R. APP. PROC. 44.2. These questions were left open in Scales v.

State, 380 S.W.3d 780 (Tex. Crim. App. 2012), which affirmed a lower court’s reversal

in a case that also addressed the substitution of a juror during deliberations. The Court

should provide answers to these questions to prevent further confusion in the courts

of appeal. See TEX. R. APP. PROC. 66.3(c) and (f).

                              STATEMENT OF THE CASE

      A Harris County jury found Mr. Hill guilty of aggravated sexual assault on May

2, 2014, and assessed punishment at 50 years in the Texas Department of Criminal

Justice – Institutional Division. The trial court entered judgment on May 8, 2014.




                                           1
                               PROCEDURAL HISTORY

       Notice of appeal was filed on May 2, 2014. In a published opinion, the

Fourteenth Court of Appeals affirmed Mr. Hill’s conviction on August 25, 2015. See

Appendix, slip op. for Hill v. State, __ S.W.3d __, 2015 WL 5025476 (Tex. App. –

Houston [14th Dist.] Aug. 25, 2015). No motion for rehearing was filed. This Court

granted a motion to extend time to file petition for discretionary review, making the

petition due on October 26, 2015. Appellant is filing a second motion to extend with

this petition.

                               QUESTION PRESENTED

       The trial court, sua sponte, replaced a juror during deliberations.
       Did this violate Appellant’s right: 1) under the Texas Constitution,
       to a 12-person jury; and 2) under the U.S. and Texas Constitutions
       to not face double jeopardy; and was the court of appeals wrong
       when it held that the trial court’s error was harmless?


                         REASONS FOR GRANTING REVIEW

A.     Facts Relevant to the Question

       After a four-day trial on guilt or innocence, the jury began its deliberations on

April 30, 2914. The two alternate jurors were instructed to remain, but were not allowed

into the jury room. That same day, the jury sent out four notes requesting exhibits or

transcripts of testimony. At the end of the day, the judge instructed jurors to return at

9:30 a.m. on May 1, 2014.




                                           2
       On May 1, the jury resumed deliberations. During the course of the day, jurors

sent out three more requests for portions of witnesses’ testimony. After the judge read

back the requested testimony in response, jurors retired again for further deliberations.

       Later that day, the judge called one juror out of the jury room and placed her

under oath to question her about her home address, saying that some confusion had

arisen about whether she was a resident of Harris County or Galveston County. After

a colloquy with the juror, the judge released her from further service because “… I

believe there is [sic] some credibility issues as to what [sic] may or may not be able to

fully substantiate what your home residence is.” (7 RR at 24).

       Defense counsel objected and asked that the juror remain. The judge overruled

counsel’s objections and called the first alternate to deliberate with the rest of the jury.

He instructed the remaining jurors to resume their deliberations “at the point needed

to bring her up to speed.” (7 RR at 32). Defense counsel again objected, and the judge

again overruled the objection (7 RR at 33). Though it was after 5 p.m., the judge read

back one more portion of testimony to the new jury and allowed it to deliberate about

10 minutes before recessing for the day (7 RR at 34). The next day, the new jury began

deliberating shortly after 9:00 a.m. and announced they had reached a verdict at 10:05

a.m. (8 RR at 7).

B.     Argument: Twelve-Member Jury

       A Texas felony defendant has a right to have a 12-member jury weigh the

evidence against him and decide his fate. See TEX. CONSTIT. ART. V, § 13. In this case,
                                             3
the court of appeals concluded that the error in replacing one of 12 jurors during

deliberations was harmless because after the trial court seated the alternate, Appellant,

still was convicted by a 12-member jury. However, our state constitution’s guarantee of

a 12-person jury is not like the rules of basketball, where a coach can substitute

individual players multiple times, as long as the team always has five players on the

court. On this basis alone, the trial court’s action was a constitutional error. Even if it

were not, it still affected Appellant’s substantial rights and should result in a reversal of

his conviction.

C.     Argument: Double Jeopardy

       Even if the original juror in this case had not been a Harris County resident, as

the judge suspected, that fact would not have disqualified her during deliberations. A

juror’s county of residence is not an absolute disqualification or disability from jury

service. It is merely a waivable disqualification, as this Court held in Mayo v. State, 4

S.W.3d 9, 11-12 (Tex. Crim. App. 1999). In the court of appeals, the state conceded

that the trial court erred in discharging the juror on its own motion. The lower court

agreed that the sua sponte discharge was error, but ruled that the error was harmless,

contrary to this Court’s opinion in Scales v. State, 380 S.W.3d 780, 786 (Tex. Crim. App.

2012). Slip op. at 4.

       The trial court instructed the new jury to begin its deliberations “at the point

needed to bring [the alternate juror] up to speed,” not to start over from the beginning.

It is telling that the new jury deliberated only a little more than an hour before finding
                                             4
Appellant guilty, with no questions or requests for exhibits or testimony. This is a stark

contrast to the original jury, which deliberated for more than a day with numerous

questions to the court and requests for read-backs of testimony.

       By calling this error harmless, the court of appeals ignored the importance of the

deliberative process in our system of trial by jury. In this case, the alternate jurors sat in

the courtroom, not the jury room, during deliberations. The alternate who replaced the

discharged juror did not hear the discussions among the original twelve, and did not

experience the care with which the jury conducted the first round of deliberations, as

evidenced by the extended time they deliberated and the number of questions they

asked the trial judge. Instead, heeding the judge’s instructions to get the alternate “up

to speed,” the new jury made haste to do just that and return a verdict of guilty.

D.     Argument: Harm Analysis

       In Scales, this Court said that a trial court’s error in replacing a qualified juror

during deliberations was reversible whether or not the error was of constitutional

dimensions, because it affected the defendant’s substantial rights. The Fourteenth

Court disagreed, noting that the alternate juror in this case was subjected to the same

selection process, was properly sworn, and heard all of the evidence. This ignores the

fact that this would have been equally true for the alternate juror in Scales.

       A defendant has a double-jeopardy right to have his trial completed by a

particular tribunal, according to Crist v. Bretz, 437 U.S. 28, 35-6 (1978). See U.S. CONSTIT.

AMENDS.   V, XIV. See, also, TEX. CONSTIT. ART. 1 § 14. A defendant also has a right
                                              5
under TEX. CONSTIT. ART. V, § 13, to have a single 12-member jury weigh the evidence

against him and decide his fate together, unanimously. The court of appeals, therefore,

erred when it held that the trial court’s action in this case was not constitutional error.

This Court needs to answer the questions it left open in Scales, and clarify that a trial

court’s sua sponte decision to replace a deliberating juror with an alternate is

constitutional error nature and must be reversed unless the reviewing court determines

beyond a reasonable doubt that the error did not contribute to the conviction or

punishment. See TEX. R. APP. PROC. 44.2(a). Alternatively, the Court should grant the

petition because the court of appeals failed to correctly apply Scales and hold that the

error in this case affected Appellant’s substantial rights.

                                         PRAYER
       For these reasons, Mr. Hill asks this Court to grant his petition, and upon review,

to reverse and remand to the trial court for a new trial.

                                                 Respectfully submitted,

                                                 ALEXANDER BUNIN
                                                 Chief Public Defender
                                                 Harris County Texas

                                                 /s/ Cheri Duncan
                                                 _________________________
                                                 CHERI DUNCAN
                                                 Assistant Public Defender
                                                 Harris County Texas
                                                 Texas Bar No. 06210500
                                                 1201 Franklin, 13th floor
                                                 Houston Texas 77002
                                                 Phone: (713) 368-0016

                                             6
                                               Fax: (713) 368-9278
                                               cheri.duncan@pdo.hctx.net



                              CERTIFICATE OF SERVICE

        I certify that a copy of this petition was served on the Harris County District

Attorney and the State Prosecuting Attorney by electronic service on November 2,

2015.

                                               /s/ Cheri Duncan
                                               _________________________
                                               CHERI DUNcan




                            CERTIFICATE OF COMPLIANCE

I certify that this petition complies with Rule 9.2, TEX. R. APP. PROC. It was prepared

on a computer using 14-point Garamond type. It contains 1,435 words.

                                               /s/ Cheri Duncan
                                               _____________________________
                                               CHERI DUNCAN




                                           7
Affirmed and Opinion filed August 25, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00376-CR

                    REGINALD TURON HILL, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 177th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1416500

                                OPINION


      A jury convicted appellant Reginald Turon Hill of aggravated sexual assault
and sentenced him to confinement for 50 years in the Institutional Division of the
Texas Department of Criminal Justice. In his sole issue on appeal, appellant argues
the trial court abused its discretion when it sua sponte discharged a juror during
deliberations and replaced her with an alternate. Appellant asserts the error was




                                APPENDIX
reversible under either a constitutional, or non-constitutional, harm analysis. We
affirm.

      The record reflects appellant objected to removal of the juror but the State
did not. The trial court dismissed the juror on the grounds that she was not
qualified for service because she was not a citizen of Harris County. See Tex. Code
Crim. Proc. art. 33.011(b) (allowing the trial court to replace a juror who is found
to be disqualified with an alternate juror); and Tex. Gov’t Code § 62.102(2) (a
qualification for jury service is that the juror be a citizen of the county in which the
person is to serve as a juror). The requirement that a juror be a citizen of the county
of service can be waived. Mayo v. State, 4 S.W.3d 9, 11 (Tex. Crim. App. 1999).
In this case, neither party objected to the juror’s continued service. Accordingly,
we agree with the State’s concession that the trial court erred in discharging the
juror here on its own motion. See Whitehead v. State, 437 S.W.3d 547, 555–56
(Tex. App.—Texarkana 2014, pet. ref’d) (concluding the trial court abused its
discretion in removing a juror from service and replacing him with an alternate
when the original juror was not unable or disqualified to perform his duty).

      We must therefore determine whether the error was reversible. Citing Crist
v. Bretz, 437 U.S. 28, 35–36, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), appellant
asserts that he had a right to have his trial completed by the “particular tribunal”
that was empaneled and sworn; therefore the error violated his federal
constitutional guarantee against double jeopardy. Appellant cites the Texas
Constitution in support of his complaint that only 11 jurors comprised the jury
weighing the evidence during all of the deliberations thus his state constitutional
right to a 12-person jury was violated. See Tex. Const. art. V, § 13. Appellant
argues the error was reversible under either a constitutional or non-constitutional
harm analysis.

                                           2
       In support of his argument that the error was constitutional, appellant relies
upon Scales v. State, 380 S.W.3d 780, 786 n. 25, (Tex. Crim. App. 2012). Scales
cites United States v. Scott, 437 U.S. 82, 94, 98 S. Ct. 2187, 2195, 57 L. Ed. 2d 65
(1978), for the proposition that there is a right in federal law to a verdict from the
“first trier of fact.” However Scott involved double jeopardy, not replacement of a
juror. The Court’s reference to the “first trier of fact” must be taken in that context
and as opposed to a second trier of fact, i.e. a second jury. Moreover, as appellant
concedes, the court in Scales did not find the error was constitutional. Rather, the
Court assumed, without deciding, that the trial court’s erroneous removal of a juror
constituted statutory error and must therefore be analyzed under Rule 44.2(b). Id.
at 786. Subsequently, the Court did the same in Sandoval v. State, 409 S.W.3d 259,
280 (Tex. Crim. App. 2013). We are therefore not persuaded that under Scales the
error is constitutional.

       To characterize it as a constitutional violation, the trial court’s error would
have to produce a biased jury. Sneed v. State, 209 S.W.3d 782, 788 (Tex. App.—
Texarkana 2006, pet. ref’d). The manner in which juries are selected is determined
by the legislature and is not prescribed by either the United States or Texas
Constitutions. Id. The error involved the trial court’s failure to follow the statutory
scheme for replacing a juror with an alternate and is therefore not of constitutional
dimension. See Ponce v. State, 68 S.W.3d 718, 722 (Tex. App.—Houston [14th
Dist.] 2001, pet. ref’d). Any non-constitutional error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded. Tex. R. App. P.
44.2(b). A substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury’s verdict. See King v. State,
953 S.W.2d 266, 271 (Tex. Crim. App. App. 1997).



                                          3
      The trial court’s replacement of the juror with an alternate did not deprive
appellant of a 12-person jury. Even though it was error to dismiss the original
juror, the jury was composed of 12 properly selected members. The alternate juror
was subjected to the same selection process, was properly sworn, and heard all of
the evidence. The court admonished the jury, upon the seating of the alternate, to
“start over with your deliberations . . . to the point where it is necessary to bring
[alternate] up to speed where she can make a clear and informed vote and decision
in this case.” In an analogous situation, if the trial court were to erroneously grant
the State’s challenge for cause during voir dire, reversal would only occur if the
defendant showed that he or she was deprived of a lawfully constituted jury. Sneed,
209 S.W.3d at 788 (citing Feldman v. State, 71 S.W.3d 738 (Tex. Crim. App.
2002) and Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998)). Appellant
was not deprived of a lawfully constituted jury and the record does not reflect any
taint from the alternate juror. Because no harm is evident from the record, we
conclude the trial court’s error did not affect appellant’s substantial rights. See Tex.
R. App. P. 44.2(b); Sneed, 209 S.W.3d at 788; and Ponce, 68 S.W.3d at 722.

      Accordingly, appellant’s issue is overruled and the judgment of the trial
court is affirmed.



                                             /s/       Martha Hill Jamison
                                                       Justice



Panel consists of Chief Justice Frost and Justices Jamison and Yates.1
Publish — Tex. R. App. P. 47.2(b).

      1
          Senior Justice Leslie Brock Yates sitting by assignment.

                                                   4
