1. “Art. 36.22 of the Code of Criminal Procedure provides no person shall be permitted to be with a jury while it is deliberating. The petit juror affidavit admitted in Becerra’s Motion for New Trial hearing established the alternate juror was present and participated in deliberations and voted on the verdict. What status, if any, does Art. 33.011(b) confer on alternate juror service permitting the presence and/or participation of the alternate during petit jury deliberations and did the alternate’s act in voting violate Art. 36.22?”
2. “Rule 606(b) of the Texas Rules of Evidence prohibits evidence of “incidents that occurred during the jury’s deliberations.” The uncontroverted petit juror affidavit admitted at Becerra’s Motion for New Trial hearing attested the alternate juror voted on the verdict, and after removal and instruction no further vote was taken. Is the evidence that no further vote was taken an incident during deliberations under Rule 606(b) and, if excludable, must Rule 606(b) yield to the need to prove a violation of Art. V, Sec. 13 of the Texas Constitution and Art. 33.01 of the Texas Code of Criminal Procedure?”
3. “This Court has long held a rebuttable presumption of harm exists if a facial violation of Art. 36.22 of the Texas Code of Criminal Procedure is shown. The Court of Appeals acknowledged Becerra’s admitted evidence that the alternate juror voted on the verdict was admissible as outside evidence under Rule 606(b)(2)(A) of the Texas Rules of Evidence. Did the failure of that Court to apply the presumption based on this evidence so far deviate from accepted law so as to call for the exercise of this Court’s jurisdiction?”
During Becerra’s trial, an alternate juror participated in deliberations for about forty-five minutes before he was removed. The trial court instructed the rest of the jurors to disregard the alternate’s participation and resume deliberations. After conviction, Becerra urged a new trial based on a sitting juror’s affidavit that the alternate participated in a vote to convict and that, after he was removed, the jury did not re-vote since the vote for guilt was unanimous. The trial court admitted the affidavit over the State’s Rule 606(b) objection but denied the motion for new trial, finding Becerra had not been harmed.
On appeal, Becerra argued the alternate’s presence violated (1) the constitutional and statutory provisions that juries be composed of twelve people and (2) Article 36.22’s prohibition on non-jurors’ presence during deliberations. The court of appeals affirmed. It held that the juror’s affidavit relating events after the alternate was removed (i.e., when only the properly constituted jury was present) could not fit within Rule 606(b)’s “outside influence” exception to the general rule excluding juror testimony. It concluded that Becerra’s ultimate verdict had been by a panel of 12 and thus did not violate the constitutional or statutory 12-juror provisions. No authority makes it “absolutely improper” for an alternate to be present during deliberations. Although a violation of Art. 36.22 is presumed harmful, there was no “reasonable probability” that the alternate’s outside influence had a prejudicial effect on the hypothetical average juror given that the verdict was unanimous.
Becerra argues that Art. 36.22 is the authority that makes the presence of alternates improper; alternate jurors qualify as the “No person” in Art. 36.22’s prohibition “No person shall be permitted to be with a jury while it is deliberating.” Regarding Rule 606(b), he contends the court of appeals wants it both ways. He argues that alternates are either (1) an outside influence because they are not part of the jury or (2) they are part of the jury (or allowed to be present under Art. 33.011(b)) and are not an outside influence. Viewed properly, he argues, Rule 606(b)’s prohibition on testimony about “incidents” occurring during deliberation does not include the fact that the jurors did not re-vote, which he contends is the opposite of an incident. He also argues that the Rule should not extend to the jury’s ultimate verdict because this effectively denies his ability to prove a violation of the constitutional provision on 12 jurors. He suggests an exception akin to Pena-Rodriguez v. Colorado, 137 S.Ct. 855 (2017), which recognized a Sixth Amendment right to juror testimony about verdicts relying on racial prejudice.
As for harm, he argues that the court of appeals cited, but then failed to apply, the presumption that Art. 36.22 violations are harmful. He also insists that the standard for harm under McQuarrie v. State, 380 S.W.3d 145 (Tex. Crim. App. 2012), requires only a reasonable “possibility,” not a reasonable “probability” that the alternate had a prejudicial effect on the average juror.