Texas Court of Criminal Appeals
Becerra v. State
No. PD-0280-22 2-7-24
Issue:
Does the presence of an alternate juror who retires with the jury, is present during deliberations, and participates in a vote on guilt violate Texas Constitution Art. V, §13 or Code of Criminal Procedure Articles 33.01, 33.011, or 36.22?
Holding:
It violates Article 36.22. While the presence of an alternate juror does not violate the constitutional or statutory limits placed on the size of the jury, Article 36.22 prohibits a “person” being with the jury while it is deliberating and conversing with the jury about the case and is therefore subject to a statutory harm analysis on appeal. “The inadvertent presence and participation of the alternate juror in the jury’s initial deliberations did not implicate [the defendant’s] constitutional right to a jury of twelve people, or the statutory codification of that right in Article 33.01. Likewise, the alternate juror’s presence and participation in a portion of jury deliberations did not run afoul of Article 33.011 because the alternate juror was properly discharged after the jury rendered its verdict. However, the alternate juror’s participation and presence during a portion of jury deliberations did violate Article 36.22’s prohibition on unauthorized persons being present with the jury while the jury is deliberating, as well as Article 36.22’s prohibition against conversing with the jury about the case.” The Court remanded the case for the lower appeals court to “analyze whether this non-constitutional error affected [the defendant’s] substantial rights. Read opinion.
Dissent (Yeary, J.):
“[I]n addressing the question of harm under Rule 44.2(b) of the Rules of Appellate Procedure, governing statutory error, the Court—without warning—seizes the opportunity in this case to disown the presumption of harm that our cases have heretofore interposed in such cases. While that might be an appropriate course of action for the Court to take at some point in time, that question is not before us today. So I do not see why the Court undertakes this endeavor.” Read dissent.
Dissent (Keel, J., joined by Keller, P.J. and Slaughter, J.):
“An alternate juror participated in jury deliberations before a verdict was returned and might have voted for conviction along with the other twelve jurors. Was this harmful? No; it wasn’t even error. We should affirm the judgment of the court of appeals.” Read dissent.
Commentary:
The majority opinion says a great deal about the defendant’s right to a jury, the right to a jury of 12 people, and the proper selection of an alternate juror. There is a great deal to be read concerning those three issues, but the analysis does not get to the real meat of the opinion. As to the error that was actually found in this case—a violation of Article 36.22—the majority did not begin writing about that until page 28 of the opinion. If a court had not so held in the past, the majority opinion in this case makes it clear that the participation of an alternate juror in jury deliberations constitutes a violation of Article 36.22. The majority opinion has rejected the conclusion in Judge Keel’s dissenting opinion that an “alternate juror” is a “juror.” The finding of that error leads to two conclusions in the majority opinion: (1) the applicability of a harm analysis, and (2) the treatment of an alternate juror’s participation in jury deliberations as an “outside influence” for the purposes of Rule 606(b) of the Rules of Evidence.
As to the first question, the majority has issued a very helpful opinion for appellate prosecutors. The majority makes it clear that the court no longer likes “presumptions” of harm, and that holding brings Article 36.22 violations more in line with the court’s jurisprudence on the analysis of harm on appeal. Now, if an examination of the entire record reveals that the alternate juror’s participation in jury deliberations had a substantial or injurious effect in determining the jury’s verdict, then the error has affected the defendant’s substantial rights and cannot be disregarded as harmless, under the harm analysis for statutory error in Rule 44.2(b) of the Rules of Appellate Procedure. In most cases, the error should be harmless. And appellate prosecutors will not have write about rebutting presumptions of harm any longer.
As to the second question—the application of Rule 606(b)—the majority’s holding could be more helpful, but it is still not an insurmountable obstacle to prevailing on appeal. Trial judges will have to consider affidavits regarding an alternate juror’s outside influence, but these affidavits generally should not lead to a finding of harm. Prosecutors should watch closely how the court of appeals treats this case on remand.
2024 Penal Code Changes
2024 Penal Code Changes
In its 3rd Special Session of 2023, the 88th Legislature passed SB 4, “relating to the punishment for certain criminal conduct involving the smuggling of persons or the operation of a stash house; increasing criminal penalties,” which amended 10 statutes in the Texas Penal Code and enacted one new statute, effective 2/6/24. The changes to those 11 statutes are included in the PDF posted here. The changes will also be incorporated into the next edition of TDCAA’s code books in summer 2025, along with any other changes made in the 89th Session. Find the free PDF here.