No. 05-07-00313-CR
Opinion Filed June 17, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-21910-Q.
Before Justices MORRIS, FITZGERALD, and LANG.
Opinion By Justice LANG.
George Washington Hicks appeals the trial court's judgment convicting him of murder. The jury found Hicks guilty and assessed his punishment at life imprisonment. Hicks raises two issues on appeal arguing the trial judge erred when she: (1) discharged a juror on the third day of trial without an adequate showing of disability pursuant to Texas Rule of Criminal Procedure 36.29; and (2) seated, in place of the discharged juror, an alternate juror who had been peremptorily challenged by defense counsel. We conclude the trial judge did not err when she seated the alternate juror in place of the discharged juror. Also, assuming, without deciding, the trial judge erred when she discharged the juror, we conclude the record does not show Hicks was harmed by the trial judge's error. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1981, Roxann Jeeves and her son Kristopher, who was five years of age, were murdered. In 1999, after seeing the murder depicted on a television show, a witness provided a description of a man she had seen walking from the area of the murder and identified Hicks from a photograph line-up. Hicks was also connected to the murder of Jeeves by DNA evidence. In 2001, the police arrested Hicks. In 2003, Hicks was indicted for the murder of Jeeves. After voir dire, the trial court seated twelve jurors and an alternate juror. On the first day of testimony, juror Jennifer McBride arrived late. She was admonished by the trial judge and informed that late jurors could be found in contempt and jailed to ensure their attendance. The next day, juror McBride was late again. The trial judge found juror McBride in contempt and fined her $500. Also, over Hicks's objection, the trial judge found that juror McBride had a "mental or emotional condition that prevent[ed] her from performing her duties of being present when she is ordered to do so by the Court" and discharged her from the jury. In juror McBride's place, the trial judge seated alternate juror Mitchell McCrea. After the trial, the jury found Hicks guilty and assessed his punishment at life imprisonment. II. ALTERNATE JUROR
In issue two, Hicks argues the trial judge erred when she seated alternate juror McCrea in place of discharged juror McBride because alternate juror McCrea had been peremptorily challenged by defense counsel. Also, Hicks argues alternate juror McCrea was an undesirable juror because he was an attorney and he peremptorily challenged another venire member who was an attorney, which shows he was careful not to seat an attorney as a juror. He claims he was prejudiced because an undesirable juror was seated on the jury. The State responds that Hicks did not object when McCrea was seated and sworn as an alternate juror or when the trial court seated alternate juror McCrea in place of discharged juror McBride. Also, the State argues Hicks did not argue there was error with regard to the jury in a motion for new trial. Further the State asserts Hicks was not prejudiced because the record does not show the other venire member who was an attorney was peremptorily challenged on the basis that he was an attorney or that alternate juror McCrea was biased or prejudiced against Hicks. A. Applicable Law
A peremptory challenge is made to a juror without assigning any reason therefore. Tex. Code Crim. Proc. Ann. art. 35.14 (Vernon 2006). In non-capital, felony cases, the State and the defendant shall each be entitled to ten peremptory challenges. Id. art. 35.15(b). If one or two alternate jurors are to be impaneled, the State and the defendant shall each be entitled to one peremptory challenge in addition to those otherwise allowed by law. Id. art. 35.15(d). It is the duty of the parties to ensure that a juror who has been peremptorily challenged is not impaneled. See Miller v. State, 692 S.W.2d 88, 93 n. 10 (Tex.Crim.App. 1985); Anderson v. State, 142 Tex. Crim. 384, 386-87, 154 S.W.2d 482, 483 (Tex.Crim.App. 1941); see also Harkey v. State, 785 S.W.2d 876, 881 (Tex.App.-Austin 1990, no pet.); Truong v. State, 782 S.W.2d 904, 905 (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd). A party should object to a peremptorily challenged juror being seated on the jury, before the jury panel is sworn. See Miller, 692 S.W.2d at 93 n. 10; Anderson, 142 Tex. Crim. at 387, 154 S.W.2d at 483; Munson v. State, 34 Tex. Crim. 498, 499, 31 S.W. 387, 387-88 (Tex.Crim.App. 1895); see also Harkey, 785 S.W.2d at 881; Truong, 782 S.W.2d at 905. An objection that a juror who was peremptorily challenged was impaneled is too late, if it was made after the jury was sworn, instructed, and excused for the day, and after the balance of the jury panel was discharged. Harkey, 785 S.W.2d at 881. Also, an objection that a juror who was peremptorily challenged served on the jury is too late, if it was made for the first time in a motion for new trial. West v. State, 54 Tex. Crim. 597, 598, 114 S.W. 142, 143 (Tex.Crim.App. 1908). B. Application of the Law to the Facts
The record shows that on Hicks's peremptory challenge sheet, defense counsel listed alternate juror McCrea. The trial judge named the jurors in the case and the last name called was McCrea. Both the State and defense counsel stated they had no objections. Then, the State called to the trial court's attention that another venire member should have been called before McCrea. The trial court made the necessary correction. Defense counsel commented that an alternate was not named and the defense would like an alternate. The State commented that the alternate would be McCrea. The venire members were returned to the courtroom. The twelve jurors and alternate juror McCrea were seated. After seating the jury and the alternate juror, the trial judge asked if there were any objections and both the State and defense counsel stated they did not object. After the jurors were seated, the trial court excused the remaining venire members, admonished the jury panel, and stated it would swear in the jury panel the following morning. Defense counsel did not object to alternate juror McCrea. Again, the next morning, defense counsel did not object to the presence of alternate juror McCrea and, after juror McBride arrived, the jury panel was sworn. On the third day of trial, juror McBride was discharged from the jury. Although defense counsel objected to juror McBride's discharge from the jury, he did not object to the trial judge seating alternate juror McCrea in discharged juror McBride's place or object to the presence of alternate juror McCrea's presence on the jury panel on the basis that he had been peremptorily challenged. We conclude Hicks's failure to object to alternate juror McCrea being seated and sworn on the basis that he had peremptorily challenged him waived any error. Because Hicks did not object to alternate juror McCrea's presence on the jury and the record does not show the responsibility for alternate juror McCrea's presence on the jury panel despite defense counsel's peremptory challenge lay with the trial court, Hicks must affirmatively show alternate juror McCrea was prejudiced. See Anderson, 142 Tex. Crim. at 387, 154 S.W.2d at 483; Harkey, 785 S.W.2d at 881; Truong, 553 S.W.2d at 369. Hicks argues alternate juror McCrea was an undesirable juror because he was an attorney. He claims he was prejudiced because an undesirable juror was seated on the jury. Hicks does not claim alternate juror McCrea was prejudiced or biased. During voir dire, alternate juror McCrea stated he could keep an open mind, start all police officers off on equal footing regardless of any personal contact he may have had with them, and convict the defendant if the State proved its case beyond a reasonable doubt regardless of whether he knew why the defendant committed the crime. Also, defense counsel questioned alternate juror McCrea regarding the type of law he practiced. Alternate juror McCrea stated his law practice was predominantly mediation. Defense counsel did not question McCrea any further and the record does not show defense counsel challenged McCrea for cause. There is nothing in the record showing alternate juror McCrea knew Hicks, any of the witnesses, or the attorneys, and it does not show he knew anything about the case prior to trial. See Harkey, 785 S.W.2d at 881. The record does not affirmatively show that alternate juror McCrea was unfair, prejudiced, or biased. We conclude the trial judge did not err when she seated alternate juror McCrea in place of discharged juror McBride. Issue two is decided against Hicks. III. DISMISSAL OF JUROR
In issue one, Hicks argues the trial judge erred when she discharged juror McBride on the third day of trial without an adequate showing of disability pursuant to Texas Rule of Criminal Procedure 36.29. Hicks argues juror McBride was discharged because she failed to report to court in a timely manner and the record is silent as to any mental, physical, or emotional disability juror McBride may have had. Assuming, without deciding, the trial judge erred when she discharged juror McBride, we must analyze whether that error harmed Hicks. A trial court's error in discharging a juror involves the failure to follow a statutory scheme; it is not of a constitutional dimension. See Sneed v. State, 209 S.W.3d 782, 788 (Tex.App.-Texarkana 2006, pet. ref'd), cert. denied, 128 S.Ct. 537 (2007); Ponce v. State, 68 S.W.3d 718, 721-22 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). Texas Rule of Appellate Procedure 44.2(b) provides that an appellate court must disregard a non-constitutional error that does not affect a defendant's substantial rights. Tex. R. App. P. 44.2(b); see also Sneed, 209 S.W.3d at 788; Ponce, 68 S.W.3d at 721-22. A defendant is not harmed by the trial court's error in discharging a juror where: (1) the record shows the alternate juror seated in the discharged juror's place was subjected to the same selection process, properly sworn, heard all of the evidence, heard the trial court's charge, and seated before the jury retired; and (2) the record does not show any taint from the alternate juror seated in the discharged juror's place. See Sneed, 209 S.W.3d at 782, 788; Ponce, 68 S.W.3d at 722; see also Hegar v. State, 11 S.W.3d 290, 295 (Tex.App.-Houston [1st Dist.] 1999, no pet.). The record shows alternate juror McCrea was subjected to the same selection process, properly sworn, and heard all of the evidence and the trial court's charge. Alternate juror McCrea was seated in place of discharged juror McBride on the second day of testimony and before the jury retired. The record does not show any taint from alternate juror McCrea. Assuming, without deciding, the trial judge erred when she discharged juror McBride, we conclude Hicks was not harmed by the trial judge's error because the error did not affect Hicks's substantial rights. Issue one is decided against Hicks. III. CONCLUSION
The trial judge did not err when she seated alternate juror McCrea in place of discharged juror McBride. Assuming, without deciding, the trial judge erred when she discharged juror McBride, the record does not show Hicks was harmed by the trial judge's error. The trial court's judgment is affirmed.