The defendant’s substantial rights were violated by the improper removal of the dissenting juror and may not be disregarded. Scales v. State, No. PD-0442-11 (Tex.Crim.App. Oct 10, 2012).
The defendant was charged with aggravated robbery with a deadly weapon. During a recess in jury deliberations on the second day of trial, the jury foreman sent a note to the judge stating, “We have one juror who refuses to deliberate this case any further nor take the facts, testimony, of this case into account. I request she be removed from the jury.” After questioning the foreman about the juror’s actions, the trial judge indicated an intent to dismiss the juror, Regina Collins, and seat an alternate. Defense counsel requested that the judge question the recalcitrant juror directly, which the judge refused to do. Instead, the judge again questioned the foreman about Collins’ issues and, finding the foreman credible, dismissed Collins over defense counsel’s objection and seated an alternate. Within half an hour of replacing Collins, the jury reached a verdict. The jury later assessed defendant’s punishment at 20 years’ confinement. The Court of Appeals correctly held that Collins was not “disabled” as defined in Tex. Code Crim. Proc. art. 33.011. Using the standard in Tex. R. App. 44.2(b), the Court of Criminal Appeals found that the error is reversible and affirmed the Court of Appeals.