Joe Luis Becerra v. the State of Texas ( 2024 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0280-22
JOE LUIS BECERRA, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT=S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS
BRAZOS COUNTY
KEEL, J., filed a dissenting opinion in which KELLER, P.J., and
SLAUGHTER, J., joined.
DISSENTING OPINION
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. Since the Court does otherwise, I respectfully dissent.
I. No Error
Becerra dissent—Page 2
Appellant claims that the alternate juror’s presence and participation during
deliberations violated our twelve-person-jury requirements and our prohibitions against
outsiders attending deliberations or talking to jurors about the case on trial. See Tex.
Const. art. V, § 13; Tex. Code Crim. P. art. 33.01; Tex. Code Crim. P. art. 36.22. I
disagree.
A. No Violation of Twelve-Person-Jury Requirements
Our Constitution says that in felony cases “juries in the District Courts shall be
composed of twelve persons[.]” Tex. Const. art. V, § 13. Our criminal code says that
in felony cases in district court “the jury shall consist of twelve qualified jurors.” Tex.
Code Crim. P. art. 33.01(a). The twelve-member composition or consistency of the jury
does not change just because alternates are empaneled. Even if the alternates stand
ready in the jury room, the jury is still “composed” of twelve persons and consists of
twelve qualified jurors who will—unless replaced—deliberate on a verdict. The
presence and participation of an alternate during deliberations and even his purported
vote on the verdict would not violate our twelve-person-jury requirements if the twelve
regular jurors deliberated and voted on the verdict.
In this case, the twelve who mattered—the regular jurors who were never replaced
by an alternate—voted to convict. Appellant’s right to a twelve-person jury was
honored.
But what about group dynamics? That concern implies rights that a defendant
does not have. A defendant has no right “to a jury of any particular composition,”
Becerra dissent—Page 3
Taylor v. Louisiana, 419 U.S. 522, 538 (1975), and no right to “any particular individual”
on the jury. Colone v. State, 573 S.W.3d 249, 261 (Tex. Crim. App. 2019). His “only
substantial right is” to qualified jurors. Id. at 261. If he has no right to a particular juror
or jury, then the defendant has no right to a particular set of group dynamics, either.
If he did, the legitimacy of seating alternates would be in doubt because group
dynamics evolve over the course of a trial. See Sara Gordon, All Together Now: Using
Principles of Group Dynamics to Train Better Jurors, 48 Ind. L. Rev. 415, 425 (2015)
(discussing evolution of a jury’s group dynamics from empanelment to verdict). “Once
people are part of a group, they are powerfully influenced by other group members.” Id.
at 426. The mere availability of alternates could affect a regular juror’s commitment to
attending and critically evaluating evidence during its presentation. See id. (noting
"bystander effect" studies suggesting that as group size increases, “each individual
member will be less responsible for helping because others will take responsibility.”).
And during deliberations, “[a] lone juror who could not in good conscience vote for
conviction could be under great pressure to feign illness or other incapacity so as to place
the burden of decision on an alternate juror.” U.S. v. Lamb, 529 F2d. 1153, 1156 (9th
Cir. 1975). And what about the alternate who joins deliberations late in the game? On
the one hand, he may face a "substantial” and “inherent coercive effect” to go along with
the already-cohesive crowd. Id. On the other, maybe his post-submission substitution
“undermines the group dynamics involved in the deliberative process.” Jeffrey T. Baker,
Issues in the Third Circuit, Criminal Law - Post-Submission Juror Substitution in the
Becerra dissent—Page 4
Third Circuit: Serving Judicial Economy While Undermining a Defendant's Rights to an
Impartial Jury under Rule 24(c), 41 Vill. L. Rev. 1213, 1249 (1996). Who knows?
Group dynamics are inscrutable, especially in the jury context. See Tex. R. Evid.
606(b); see also Gordon, 48 Ind. L. Rev. at 417 (noting “jurors must work in groups, and
what happens when jurors deliberate can be hard to know.”).
Appellant was afforded a jury of twelve qualified people, and the alternate’s
presence, participation, and purported vote during deliberations did not undermine that
right. His complaint about the jury’s composition has no merit.
B. No Violation of Article 36.22’s Prohibition Against Outsiders
Article 36.22 says, “No person shall be permitted to be with a jury while it is
deliberating. No person shall be permitted to converse with a juror about the case on
trial except in the presence and by the permission of the court.” Tex. Code Crim. P. art.
36.22. Obviously, Article 36.22 does not apply to jurors, and alternates are jurors
according to two clauses of Article 33.011.
First, Article 33.011(a) refers to alternate jurors as “jurors”: “[i]n district courts,
the judge may direct that not more than four jurors in addition to the regular jury be
called and impaneled to sit as alternate jurors.” Tex. Code Crim. P. art. 33.011(a).
Second, Article 33.011(b) specifies that alternate jurors are to be treated as regular jurors;
they are not only selected and qualified in the same way as regular jurors, but they also
“shall have the same functions, powers, facilities, security, and privileges as regular
jurors.” Tex. Code Crim. P. art. 33.011(b). In short, Article 33.011 says alternates are
Becerra dissent—Page 5
jurors and requires that they be treated as such.
Since alternates are jurors and must be treated as such, Article 36.22 was not
violated in this case by the alternate’s presence, participation, and purported vote during
deliberations.
II. No Harm
Even if there was error, there was no harm. Appellant was convicted by a vote of
twelve of twelve jurors—not by eleven of twelve or twelve of thirteen. Cf. Scales v.
State, 380 S.W.3d 780, 786-87 (Tex. Crim. App. 2012) (holding that harmful error from
wrongful substitution of alternate for regular juror who dissented to guilty verdict was
demonstrated by return of guilty verdict immediately after the substitution).
Even assuming Appellant had a thirteenth juror who voted to find him guilty, he
was not harmed. A greater number of fact finders generally would benefit the defense
because a greater number makes it harder to achieve consensus. Thus, our Constitution
and criminal code require twelve jurors in felony cases but only six in misdemeanor
cases—greater risk commands greater protection. See Tex. Const. art. V, § 13; Tex.
Code Crim. P. art. 33.01. For the same reason, the code says, “Not less than twelve
jurors can render and return a verdict in a felony case.” Tex. Code Crim. P. art.
36.29(a). And in no circumstance may fewer than nine jurors render a verdict. Tex.
Const. art. V, § 13. The universal requirement of at least twelve jurors in death penalty
cases also “suggests implicit recognition of the value of the large body as a means of
legitimating society’s decision to impose the death penalty.” Williams v. Florida, 399
Becerra dissent—Page 6
U.S. 78, 103 (1970); but see id. at 101-02 (noting that “neither currently available
evidence nor theory suggests that the 12-man jury is necessarily more advantageous to
the defendant than a jury composed of fewer members). If twelve is good, thirteen is
better, and Appellant was not harmed by the alternate’s participation in deliberations,
even if he purported to vote on the verdict.
III. Conclusion
I would affirm the judgments of the courts below. Since the Court does
otherwise, I respectfully dissent.
Filed: February 7, 2024
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