Opinion
09-21-00211-CR
10-26-2022
JORDEN MICHAEL SPILLER, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Submitted on May 13, 2022
On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 19-33026
Before Golemon, C.J., Horton and Johnson, JJ.
MEMORANDUM OPINION
LEANNE JOHNSON Justice
A grand jury indicted Appellant Jorden Michael Spiller for aggravated robbery by using and exhibiting a deadly weapon, namely a firearm. See Tex. Penal Code Ann. § 29.03. Spiller pleaded "not guilty" to the offense, and the jury found him guilty and assessed punishment at eight years of confinement. Spiller raises two issues on appeal. We overrule his issues and affirm.
Evidence at the Guilt/Innocence Phase of the Trial
Avery Mims testified that at the time of trial he was being held for federal charges for "[g]uns and drug trafficking." According to Mims, in July 2019 he was dealing marijuana and would "smoke weed and drink with Spiller." Mims testified that on the morning of July 22, 2019, Spiller contacted him and they met on Lamar Street, and Spiller took pictures of "weed [and] edibles" that he was selling to "send[] it to a white girl[.]" Mims testified that while Spiller was there Mims saw a green, gray-looking Mazda with Caleb Broussard, Timothy Lewis, and a female in it, and the Mazda was circling and watching, which made Mims uncomfortable.
Mims stated that later that evening while he was under the influence of marijuana, he drove to his girlfriend's home where he lived, and he noticed the same Mazda on the other side of the bushes which seemed strange. Mims testified that no one was in the Mazda. According to Mims, he backed into where he parked, walked around the back of his car to go in the door, and "four people ran up on [him] with guns." Mims testified that they had on ski masks and black clothes. Mims testified they took his keys, unlocked the door to the townhome where he lived, yelled at him and threatened to shoot him, and, once inside, they pushed him to the ground and held him at gunpoint. According to Mims, they told him they wanted his "[m]oney, . . . chain, [and] edibles[,]" and two of them stayed on top of him with guns while the other two ran through the house searching. Mims testified that although he did not see Spiller's face, he recognized one of the voices as Spiller's, and that Spiller and the female were talking about shooting Mims. Mims testified the intruders were taking laptops and shoes, and they were looking for "jewelry, . . . edibles, [and] weed[.]" Mims testified that while he was on the ground, they took his nose ring, earrings, and chains off him and took money from his pocket. According to Mims, the female took off her mask, opened the door, saw the police, and ran out the back door with Spiller. Mims testified that he knew it was Spiller not just by recognizing his voice but also because he recognized Spiller's black, white, and brown leather shoes that Spiller always wore. Mims testified he saw one of the four, Caleb Broussard, run out the front and then the fourth person came downstairs and asked where everyone went. As soon as that person opened the door to leave, the police told him to get down, he dropped the gun he had in his hand, and the police took off his ski mask, and Mims testified that assailant was Timothy Lewis. According to Mims, he did not have a gun in the house so if any guns were found in the house, they were not his.
Mims explained that he cannot read or write so the night of the incident the police wrote his statement for him and read it to him before he signed it. Mims testified that the next day he signed a statement the police typed from the earlier statement, that the typed statement was not read to him, and he was not asked if he wanted to add anything to the typed statement. Mims also testified that when he saw Spiller's photograph on the news as one of the people at the crime scene, Mims "put everything together[]" that Spiller was one of the four people. According to Mims, initially he did not want to believe that Spiller was there that night because Mims had helped Spiller and given him things. In both of Mims's statements, he reported that three black males and one female were going through his house and took turns holding him at gunpoint. According to his written statements, the black female took the jewelry he was wearing, one of the black males took the necklace from around Mims's neck and approximately $500 from his pocket, and he was missing approximately $350 from a Crown Royal bag.
On cross-examination, Mims admitted he did not tell the police on the night of the incident or when he met with them the next day that he recognized Spiller's shoes, and that the first time he thought about the fact that he saw Spiller's shoes that night was during trial. He also admitted that he told the police the night of the incident that he saw three people, but he said then he clarified with the police and told them that there were three black males and one female in the house, which was a total of four people. According to Mims, he was traumatized after the incident and he was still traumatized when the police were getting a statement from him immediately after it happened.
Photographs of Mims's girlfriend's house after the robbery were admitted into evidence and the house appeared disheveled, as if someone had rummaged through it. Photographs showed a computer and shoes by the bushes outside, shoes and a computer game behind the front door that Mims said were not there prior to the robbery. Photographs were also admitted of the Mazda the police stopped in the parking lot, depicting the car and ski masks. Mims's two signed statements were also admitted into evidence.
Mims's girlfriend testified that on the night of the robbery, she was inside the house and she heard voices inside the home and heard Mims say, "You can take it all." She called 911, ran to the downstairs bathroom by the back door, and hid in the bathtub. She testified that while she was in the bathtub, she quit talking to the 911 dispatcher because she did not want the intruders to hear her and find her. She testified that from what she heard while hiding, she thought the intruders were going to kill Mims and that she did not come out of the bathroom until she heard the police. She testified about items that were found outside her home and explained those items had been taken from her home. She recognized Spiller's voice while she was in the bathtub hiding and she stated that she knew Spiller because her father married one of Spiller's relatives. She admitted she told police she heard four or five people in the house but did not tell them that she recognized Spiller's voice. She testified that after she saw Spiller on the news, she went to the police department and told them that she heard Spiller's voice on the night of the robbery. She agreed that her typed statement she signed for the police the day after the robbery did not state that she heard Spiller's voice during the robbery. She testified that in a prior trial against another defendant in a related case she did not tell the jury that she heard Spiller's voice because she only responded to the questions she was asked.
Sergeant Shannon Meaux with the City of Port Arthur Police Department testified that he was dispatched to the townhomes, and he saw a man leave the apartment reported in the 911 call, and the man took off running when he saw Sergeant Meaux. Another officer caught that man, who was later identified as Timothy Lewis. Sergeant Meaux testified that when he went back to the apartment, another male, later identified as Caleb, was leaving the unit, saw Meaux, and said an expletive. According to Meaux, that male was told to get on the ground and complied and two pistols were recovered near him. Sergeant Meaux testified that he found Mims lying on the ground inside the apartment and the female that called 911 was also inside. A recording from Sergeant Meaux's body camera was admitted into evidence and played for the jury. Sergeant Meaux testified that while he was taking the suspects into custody, he heard a dispatch about another suspect who had been apprehended while driving a vehicle. According to Sergeant Meaux, the female 911 caller had reported that there were four or five intruders and that one was a female, but Meaux testified three males were taken into custody and no female was ever found at the scene. Sergeant Meaux testified that the female 911 caller told him that she heard a female's voice but never volunteered that she recognized one of the other assailant's voices. After watching the dash cam video recording from Sergeant Meaux's patrol car admitted into evidence and played for the jury, Sergeant Meaux agreed that it would have been impossible for someone to leave the residence, even out the back door at the same time as Timothy and end up in the car depicted driving by the townhome in the video.
Officer George Clark with the Port Arthur Police Department testified that he responded to the scene and parked on the other side of the complex. According to Officer Clark, he started walking through the playground to the building in question and, about halfway there, he heard a radio transmission that the officers were on foot pursuing one suspect running in Officer Clark's direction. Officer Clark ran through the complex in case the suspect "tried to double back" and then Officer Clark testified that he saw a vehicle speeding out of the parking lot, and he notified dispatch that he had a vehicle trying to leave the parking complex at a high rate of speed. Once Officer Clark caught up with the vehicle, another officer had forced the driver, Spiller, to stop. Officer Clark testified that Spiller asked why they were handcuffing him and kept asking what was going on, which Officer Clark explained happens "[a]ll the time[]" when he arrests people. Spiller consented to a search of the vehicle and another officer did the search, but Officer Clark saw a revolver on the floorboard of the vehicle. Officer Clark testified that he believed that Spiller was the get-away driver because he was leaving the location of the robbery at a high rate of speed and Spiller told him he knew the subjects that were arrested and had given them a ride "up there." A recording of Officer Clark's body cam was admitted into evidence and played for the jury.
Officer Terry Tran with the Port Arthur Police Department testified he was responding to the scene and heard Officer Clark on the radio, and Clark said he was chasing a fleeing suspect in a gray Mazda, and Officer Tran, driving a marked patrol car, entered through the gate of the complex. Officer Tran saw the Mazda trying to leave, and he blocked the vehicle from exiting with his patrol car. Officer Tran took the driver, Spiller, into custody without incident and Spiller said that he was not involved and did not know what was going on. Officer Tran saw a silver revolver inside the car driven by Spiller, and the revolver was next to the driver's seat door pocket.
Alexis Leday, the mother of Spiller's daughter, testified for the defense. She testified that she had known Spiller since middle school and that they are friends and co-parent their daughter. Leday testified that on the day of the robbery, she picked Spiller up from his mother's house and went to their friends' apartment for a casual get together with their children. Spiller left the "get together" with Caleb, who Leday testified was a classmate of Spiller's and Caleb had recently been released from jail. Spiller told Leday he was going "up the street for somebody up the road." Leday testified that Spiller was giving Caleb a ride somewhere, but she did not know whose car they were taking because they did not take her car and Spiller did not have a car there. According to Leday, Spiller did not return, and she later learned that he had been arrested. Leday testified that Spiller knew Avery Mims, that in the past Spiller and Mims could have smoked weed together, and Spiller could have been with Mims earlier that day although she did not know for sure if he was with Mims earlier.
Spiller testified on his own behalf. He testified that on July 22, 2019, he was living at his mother's house, and later that day he went to Lamar Street in Beaumont where he and Avery Mims usually conducted drug transactions. That day Spiller was buying edibles from Avery for a girl. Spiller testified he was with Avery for ten or fifteen minutes and then Spiller went back to his mother's house. Spiller testified that around 6 or 7 p.m., Leday picked him up and they went to their friends' apartment for their children to play. Spiller testified that later he went outside to smoke a cigarette where people hang out at that apartment complex. According to Spiller, Caleb, a classmate of Spiller's and whom Spiller referred to as "Kewayne[,]" told Spiller that they had been drinking, the girl driving them was drunk and hit a curb, and he told Spiller he would pay Spiller to "bring them up the street[]" to "[g]et some smoke." Spiller testified he went back and told Leday he was "going to run Caleb up the street[,]" and that he would be right back, and then he went and got in the car with Caleb, Timothy, and a girl. Spiller testified that he had a gun "[o]n [his] hip" prior to Caleb picking him up, he had the gun with him because he always brought his gun, and he discretely slid the gun on the floor of the car when he got in so they would not see it because he had only been around Timothy twice and did not trust him, and he did not know the girl. Spiller testified that he purchased the gun from a pawn shop, the gun was "in [his] name[,]" and he had misdemeanor charges for drugs but no felonies. According to Spiller, Caleb had been released from jail a year prior to this incident after being incarcerated for "about three[]" aggravated robberies, but Spiller thought that Caleb had changed since his release and Caleb had not been in trouble.
Spiller explained that they told him to drive towards Walmart in Port Arthur. According to Spiller, in the car they did not talk much and just listened to the radio. They told him where to park in a complex in Port Arthur, he backed in, and they got out. According to Spiller, he did not know where they were going but knew they were doing a drug deal, and he never got out of the vehicle. Spiller testified that he saw a police car pass him, another police car arrived, and officers ran in the direction that Caleb, Timothy, and the girl had gone. Spiller testified he did not know what was going on, he got scared, and he attempted to leave. Spiller said he saw an officer shine his flashlight on him and Spiller put the vehicle in park, put his hands up, and the officer ordered him out of the vehicle. Spiller asked the officer what was going on, and when Spiller was asked if he had a gun, he told them that the gun was "in [his] name." According to Spiller, he kept trying to find out from the police at the scene what was going on, and when he got to the police department that night, he learned there had been a home invasion. He testified he was in shock and told the police that he had given Caleb, Kewayne, and a girl a ride there, but that he did not know that they were going to commit a robbery.
When Spiller was shown the recording of Officer Clark's body cam, Spiller testified that in the video his shoes were blue, and the bottom of his shoes were white. On cross-examination, Spiller admitted that underneath the white soles was a gold color that might be described as brown. According to Spiller, one of his prior misdemeanor marijuana charges was dismissed but he was awaiting a hearing on a motion to revoke his probation on the other two misdemeanor drug possession charges. Spiller testified that when he was interviewed, he stated he was willing to testify against the other defendants in the case, but that Spiller was never called to testify. The case was submitted to the jury and the jury found Spiller guilty as charged. Spiller elected to have the jury assess his punishment.
Evidence at the Punishment Phase of the Trial
A pastor testified that he has known Spiller since Spiller was a baby. According to the pastor, Spiller's family was very involved in the church and Spiller was involved with the church's youth ministry. The pastor testified he believed Spiller had "a good heart" and that if Spiller was ordered to be supervised for a long time, Spiller would take it seriously, and the pastor and others would do their best to help him. The pastor testified that he did not think Spiller needed to be in prison and the pastor had never seen anything about Spiller that the pastor considered dangerous. On cross-examination, the pastor acknowledged that he did not know all the details of the crime for which Spiller was being tried.
Spiller's father testified that he is actively involved in Spiller's life. According to Spiller's father, Spiller had a good childhood with loving parents. Spiller's father described him as kind-hearted and helpful. Spiller's father testified that he knew Spiller had three misdemeanor drug cases, but he was disappointed and surprised that Spiller was involved with this aggravated robbery. He did not believe Spiller was dangerous.
Spiller's mother testified that he is a loving son and great father. Spiller's mother was aware of his prior misdemeanor drug cases. When asked about "some talk about [Spiller] going back to jail in February[,]" Spiller's mother testified that she was aware of the situation because Spiller "came to court and he tested dirty and they sent him back to jail[,]" and that he tested "dirty" for marijuana and he was on probation for marijuana. According to his mother, Spiller was not a violent person and he did not steal. She testified that if he was given probation for this offense, she would help him.
Leday testified that she and Spiller co-parent their daughter and that, if Spiller was gone for a long time, it would affect her daughter because Spiller has always been involved in her daughter's life. Leday testified that Spiller was working towards selling food seasonings and starting a business cooking for others. She stated that she and Spiller were no longer together, but she wanted the jury to consider allowing him to stay home and help her take care of their daughter. She explained that the aggravated robbery was out of character for Spiller, and she did not believe Spiller could hold anyone at gunpoint. She agreed she was aware that he had tested positive for drugs. According to her, it was no secret that Spiller had a drug problem and used marijuana.
Spiller's aunt testified that he has never been a violent person and she believed he deserved a second chance. She believed Spiller would be successful this time if given probation again, and that she and her husband would do their best to "keep [Spiller] on the straight and narrow[.]"
The State offered three deferred adjudication orders showing that Spiller had received deferred adjudication in two cases for possession of a controlled substance and deferred adjudication in one case for possession of marijuana.
The jury assessed Spiller's punishment at eight years confinement in the Institutional Division of the Texas Department of Criminal Justice. The trial court entered a Judgment of Conviction of Spiller for Aggravated Robbery. Spiller timely filed a notice of appeal.
On appeal he raises two issues. First, he contends the trial court committed reversible error when it sua sponte excused a juror. Second, he argues the trial court committed reversible error in allowing the prosecutor to "argue matters outside the record." We overrule both issues and affirm the conviction for the reasons explained below.
Dismissal of Juror #20
In his first appellate issue, Spiller argues the trial court committed reversible error in "excusing Juror #20 sua sponte." According to Spiller, Juror #20 was not disqualified to serve, and her removal denied Spiller due process of law and a fair trial. The State responds that the trial court acted within its discretion in dismissing Juror #20 and substituting an alternate juror in her place. The State also contends that any error in the trial court's decision is harmless.
The record indicates that after voir dire but before Spiller entered a plea and opening arguments began, the trial court noted that the bailiff had indicated that Juror #20, who had been chosen for the jury, had brought to the court's attention that she knew the defendant and his family.
The trial court brought Juror #20 into the courtroom outside the presence of the other jurors, with a court reporter and the parties present in the courtroom. According to the juror, she knew Spiller, "not personally, but [she] kn[e]w him and his family[,]" and they attended the same church. The trial court asked the juror if she would be "up to the task[]" to be fair and impartial in both the guilt/innocence and punishment phases, the juror responded, "Yes and no, if I'm being honest[.]" She testified that she could be fair and impartial to Spiller and the State regardless of any prior relationship and that, if Spiller was found guilty, she could consider life imprisonment as punishment if appropriate. She testified that she had raised her hand when asked during voir dire if anyone knew Spiller but that she did not think anyone saw her raise her hand. She demonstrated to the trial court how she raised her hand and the trial court said that if she raised it that way, "a raise that's next to your body when your hand is not raised[,]" that "nobody would have seen that[.]" The trial court asked Juror #20 if she felt compelled to bring it the court's attention that no one noticed her raised hand, and Juror #20 responded that she did feel compelled to do so but she was nervous about it and "didn't want to just disrupt anything[]" so she had not said anything during selection and just left.
The trial court heard arguments from the attorneys about Juror #20. The State argued that it only used eight strikes when making peremptory strikes and that if the State had known that Juror #20 knew the defendant, the State would have used nine peremptory strikes. The State objected to Juror #20 being on the jury because she did not bring to the State's attention that she knew the defendant and his family and attended the same church and because she stated she did not feel comfortable being on the jury which would have caused the State to have a reason to strike her as a juror.
The defense argued that the juror should not be relieved from jury duty because it was not Spiller's fault no one noticed her hand or that she was not asked follow-up questions, and that the juror stated she could follow the law despite her "vague knowledge" of Spiller and that she would not have any bias or prejudice. The defense argued that if the State was going to be allowed to reopen voir dire and issue more strikes, then the defense wanted a new jury panel and to do voir dire over again.
The trial court addressed the uniqueness of the situation:
[S]ince we're all in a difficult situation having to handle voir dire under COVID protocols in a rather large auditor room and separated and Juror No. 20 would have been kind of somewhere in the front third or so of that large jury impaneling room[.] She said she raised her hand and her indication was a raised hand, . . . I could see the hand did not get above her neck. And then it was obvious that no one caught the raised hand that she claims she had raised and if it was at the level as she was seating [sic] to what she claims, nobody could have ever seen it from our vantage point.
. . . .
She raised her hand and her hand didn't get above her neckline . . . and she would be somewhere in the middle of a seated audience. . . . None of us caught that because it was . . . as to conform what she expressed, a hand that wasn't really raised.
And then the next part that bothers this Court greater is sometimes we don't catch hands but people interrupt us and get our attention. She did not. . . .
Does anybody know the defendant? She did not answer that. Is that not an untrue statement? Does that not conflict with the oath that is given and does that not, according to the State, in due respect to the State and in all fairness, the State says, we would have used an
. . . [T]his Court knows that it is normal and customary for a lawyer on one side or the other to strike venireman, prospective jurors, when they say they know a party or a complainant or attorneys. . . .
On the other side of the coin, she states that she can be fair and impartial and that she can consider the full range of punishment. This Court's only problem it boils down, though, back to the oath that the Court gave all jurors, including this lady, Juror No. 20, . . . and we're not saying that . . . she grievously violated the oath.
. . . . [I]t would be reasonable for somebody to know that if we didn't recognize the hand raised, like none of us did, we all failed to recognize, as we proceeded, . . . a reasonable person would have corrected the misimpression[.]
. . . .
But what propelled her this morning to come forward - - and it doesn't go without notice - - that she says she's not comfortable doing this.
. . . .
Yes and no. It just puts us - - that's not clarity; and we have to have clear responses to make informed decisions, the Judge, as well as the parties on voir dire. . . .
The court then released Juror #20 from jury duty, brought in the first alternate juror and notified him that he would now be seated on the jury as a regular juror because one of the other jurors was released.
The following day during the trial and after the State rested and the defense offered into evidence the juror seating list for appellate purposes, and the trial court made the following statements on the record regarding Juror #20 after it admitted the exhibit:
The one thing that we did not include[,] and I want to make sure that that's included is at 1:05 yesterday, according to the record, [Juror #20] stated, generally, that she discovered last night that she knew defendant and his family from church. She stated she didn't recognize him until after she left.
Then we proceeding [sic] with some questioning about that and at 1:09, she was asked, I believe, by me, "Why didn't you tell us before? If you knew him, why didn't you recognize him before? Why didn't you tell use before?"
Then she said, well, I did raise my hand and then she indicated she had raised and her fingers about where her neck [] I mean, it was like not a hand raised but a hand up against as though the elbow was up against her rib and it was a low hand raise. We are voir diring in the jury impaneling room[.]
. . . .
. . . And at [Juror #] 20, she's not in the front row. She's going to be several rows and behind people. So, the Court was on the raised portion of the platform, which can see a little higher than other lawyers seated and there is always someone standing, generally, at the podium or the lect[e]rn speaking but no one saw the woman raise her hand as she claimed and she says but I did raise my hand yesterday.
The problem with all of that was that that is - - as the Court was concerned with, when the oath to prospective jurors [is] given, that oath is something that's in the statute and it requires truthfulness and we've got a sincere problem. She can't have it both ways. She either raised her hand like she says at 1:09 on the day the question was asked if anybody knew the defendant and nobody recognized her hand. And then, thereafter, when that was passed and nobody acknowledged her, she didn't go forward and try to get somebody's attention to answer the question, to show that she had an answer, which would infer an incorrect response. But it cannot square with her earlier statement at 1:05 that she didn't recognize the defendant until she went home. That's a problem.
So, the Court deemed that those statements go toward the accuracy and the honesty of answering, which put the parties, most importantly, the State of Texas, who stated they would have used one of their peremptories for her, which would not be abnormal for either party to strike prospective jurors who know the defendant or the complaining party in a criminal case.
The Court felt like that would - - if she was unable to follow the oath for venire - - for selecting jurors that prospective jurors or veniremen are given, how would she be able to honor the oath that is given to the jurors to render a true and accurate verdict based on the evidence?
Article 36.29 applies to the discharge of a juror who dies or becomes disabled from sitting on the jury after the jury has been sworn. Tex. Code Crim. Proc. Ann. art. 36.29. Article 36.29(a) addresses the discharge of such juror in felony cases after the jury has been sworn, and Article 36.29(b) addresses the discharge of a juror in capital murder cases after the jury has been sworn, and the statute does not define the phrase "disabled from sitting." See id. Here, the trial court dismissed Juror #20 before the jury was sworn, and the trial court replaced Juror #20 with the alternate juror before the jury was sworn. We conclude that Article 36.29 does not govern this situation. See Davis v. State, No. AP-77,031, 2016 Tex.Crim.App. Unpub. LEXIS 1154, at **58-60 (Tex. Crim. App. Nov. 2, 2016) (not designated for publication) (no statutorily detailed procedure for discharging a juror who stated he could not be attentive at trial because of his emotional state due to missing work because of jury duty, and he was replaced by an alternate juror prior to jury being sworn in) (citing Broussard v. State, 910 S.W.2d 952, 957 (Tex. Crim. App. 1975)). Despite the lack of a statutory procedure which would be applicable here, a trial court does not err in following the process set forth in Article 36.29 and replacing a juror with a duly-selected alternate juror. See id. (citing Broussard, 910 S.W.2d at 958).
Under Article 36.29, a trial judge has discretion to determine whether a juror has become disabled and to replace that juror with an alternate juror. Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012). The Court of Criminal Appeals in Scales explained a trial court's discretion in determining whether a juror is unable or disqualified from serving on the jury and in seating an alternate juror, as well as the applicable standard of review:
Article 33.011(a) of the Texas Code of Criminal Procedure states that, in a district court, a judge may impanel up to four additional jurors to sit as alternates. Section (b) states that, before a jury renders a verdict regarding a defendant's guilt or innocence, or assesses a punishment when applicable, alternate jurors "shall replace jurors who . . . become or are found to be unable or disqualified to perform their duties or are found by the court on agreement of the parties to have good cause for not performing their duties." Tex. Code Crim. Proc. art. 33.011(b). The trial court has discretion to determine whether a juror has become disabled and to seat an alternate juror. This Court has interpreted Article 36.29 to require that a disabled juror suffer from a "'physical illness, mental condition, or emotional state that would hinder or inhibit the juror from performing his or her duties as a juror,' or that the juror was suffering from a condition that inhibited him from 'fully and fairly performing the functions of a juror.'" When dismissing a juror, the trial court must not dismiss a juror for reasons related to that juror's evaluation of the sufficiency of the evidence.
While the trial court is the sole fact-finder and judge of the credibility of the testifying jurors, the trial court's decision is subject to a review for abuse of discretion. Absent such an abuse, no reversible error will be found. Therefore, in order to support its judgment, the trial court must make a finding, sufficiently supported by the record, that the juror was disqualified or unable to perform the duties of a juror. When reviewing the dismissal of a juror, an appellate court may not presume from a silent record that the dismissal was proper. However, neither is it the role of an appellate court to substitute its own judgment for that of the trial court, but rather, to assess whether, after viewing the evidence in the light most favorable to the trial court's ruling, the ruling was arbitrary or unreasonable. The ruling must be upheld if it is within the zone of reasonable disagreement.Id. at 783-84 (citations omitted).
Here, when making its ruling, the trial judge pointed out that the State had not used all its peremptory strikes and that, based on the trial judge's experience, opposing counsel would routinely strike a venire member that acknowledged that they knew the other party, and that the prosecutor stated that he would have used a peremptory strike on Juror #20 had he known she knew the defendant and the defendant's family. The trial judge explained that during voir dire he did not see Juror #20's hand raised when the panel was asked if anyone knew the defendant and that he was at a better vantage point than the attorneys for the parties. He explained that he was bothered by the fact that, despite her oath as a potential juror to answer voir dire questions truthfully, she failed to bring to anyone's attention that she raised her hand or that she knew the defendant and his family. The trial court also explained that Juror #20 did indicate a "yes and no" ambivalent response to whether she could be fair and impartial in both the guilt/innocence and punishment phases, and her testimony that she raised her hand during voir dire in response to the question of whether any of the voir dire panel members knew the defendant conflicted with her testimony that after she got home from voir dire she realized that she knew the defendant and decided to tell the bailiff the next day. And Juror #20's testimony conflicted with what the trial judge stated he saw in the courtroom. The trial court expressed concern that if Juror #20 was unable to follow the simple oath for voir dire that she would also be unable to follow the juror's oath.
On this record and viewing the evidence in the light most favorable to the trial court's ruling, we cannot say the trial court's removal of Juror #20 and the decision to replace her with an alternate juror was outside the zone of reasonable disagreement. And Spiller made no complaint about the alternate juror. Accordingly, we conclude the trial court did not err in excusing Juror #20.
That said, even if we had concluded the trial court erred in removing Juror #20, Spiller must still show how he was harmed by the trial court's action. See Ponce v. State, 68 S.W.3d 718, 721-22 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd) (such error does not automatically mandate reversal, and the appellant must show his substantial rights have been affected). Neither the United States nor the Texas Constitution prescribes the way juries should be selected. Hill v. State, 475 S.W.3d 407, 408 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd); Sneed v. State, 209 S.W.3d 782, 788 (Tex. App.-Texarkana 2006, pet. ref'd). Even if a trial court errs in failing to follow the applicable statutory scheme for dismissing and replacing a juror with an alternate, the erroneous dismissal of a juror is non-constitutional error. Hill, 475 S.W.3d at 408 (citing Ponce, 68 S.W.3d at 722); see also Harrison v. State, Nos. 09-16-00329-CR & 09-16-00330-CR, 2017 Tex.App. LEXIS 7238, at *7 (Tex. App.-Beaumont Aug. 2, 2017, no pet.) (mem. op., not designated for publication) (erroneous dismissal of a juror is non-constitutional error) (citing Tex.R.App.P. 44.2(b)).
Here, the defendant has failed to specify any basis in fact to support his general allegation that he was harmed. The record lacks any evidence of taint resulting from the dismissal of Juror #20 or the seating of the alternate juror. See Harrison, 2017 Tex.App. LEXIS 7238, at *6 (citing Sneed, 209 S.W.3d at 788; Ponce, 68 S.W.3d at 722). "Where the record shows no taint from a substituted juror or that seating an alternate juror deprived a defendant of a lawfully constituted jury, even the erroneous replacement of a juror is harmless." Id. It is the appellant's burden to demonstrate that his substantial rights have been affected. Id. Spiller has not made such a showing and the record does not show that Spiller was deprived of a lawfully constituted jury or that any of his substantial rights were affected. See id. The alternate juror was sworn in with the other jurors and prior to the case, the alternate juror heard the case and the court's charge, and the alternate juror had the same functions and powers as any other juror. Accordingly, the record does not support a showing of harm. See id. at *7. We overrule issue one.
Closing Argument during Punishment Phase
In his second appellate issue, Spiller argues that the trial court committed reversible error when it allowed the prosecution "to argue matters outside the record[]" during closing argument of the punishment phase of his trial. According to Spiller, the State argued that Spiller had appeared in court "high" or intoxicated, an allegation which Spiller says was not supported by the record. Spiller contends that he was eligible for probation, but the jury sentenced him to prison time because of the improper argument.
The State argues that the objection Spiller now raises on appeal does not comport with his objection at trial and was not properly preserved, the prosecutor's statement during closing was permissible as a summation of the evidence, as a reasonable deduction from the evidence, and as a response to an argument of opposing counsel. According to the State, the prosecutor's comment was not unduly prejudicial, was not overly emphasized by the State, and ultimately was not influential considering the State's punishment case.
During the defense's closing argument, the defense attorney asked the jury to give Spiller a lighter sentence, to consider his family and his history, and to give him another chance. The defense attorney admitted Spiller used marijuana, that he had previously been arrested and then he was released on bond and that he came to court and tested positive for marijuana, and that his bond was revoked, and then he went to prison for five months, and that he had no problems following the rules of his bond while waiting for trial.
The State then responded in its closing argument during the punishment phase. The prosecutor made the following statements:
And you know how they don't get it? Because they've had a family that loves them that raised them that taught them the right thing, a pastor that tried to teach them the right thing, a church that tried to show them the right way with all the youth groups and everything, had a probation 25 officer that tried to get him to follow the rules, had a judge that looked over him and asked him to follow these simple little rules and you could take them back there and look at them. He had people that supported him. Even when he got these probations, had a child while he's on probation and should have given up everything for that child that he's supposed to love so much; but now he's using that child as a shield from prison -- oh, feel sorry for my child so I can't go to prison. What did he do that night, July 22nd, 2019? He's there with his child. All he had to do was stay there. This child that he loves so much, that he's there for everything for them, no, that's a lie. You know how I know that's a lie? Because he was in jail for 5 months. He wasn't there for all that time because he was in jail and then he gets out and he can spend time with his child and what does he do? He goes back into jail again because he can't pass a simple drug test. His lawyer said it best a while ago when he said, you know what? If he can't complete a probation, he needs to go to prison and he can't complete a probation, not even an 18-month probation and it makes you sick that his family has to go through all this. I'm telling you that what you got to do is not just get his attention. You've got to punish him because he don't get it. It's sad because there are simple little rules, and you can look at them. There are simple little rules. Like the first one is don't commit a crime. We follow those rules ourselves every day without somebody having to watch us. The other one is don't get intoxicated. Oh my gosh, how many times? You come to court high -
It was at this point that the defense then objected stating "[a] urinalysis does not mean you are high in court." The trial court overruled the objection.
Proper jury argument generally falls within one of four general areas: (1) a summation of the evidence, (2) a reasonable deduction from the evidence, (3) an answer to argument of opposing counsel, or (4) a plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008). Even assuming without deciding that Spiller's issue on appeal comports with his objection at trial, we conclude the prosecution's argument was proper. During the punishment phase, Leday testified that she was aware that when Spiller was out on bond that he tested positive for drugs and he went back to jail. Spiller's mother testified that she was aware of Spiller going back to jail "because he came to court and he tested dirty and they sent him back to jail[,]" and that he tested "dirty" for marijuana use. During closing argument of the punishment phase, defense counsel also stated as follows:
Two years ago, he was arrested for this offense, and he served about 5 months in the county jail. He sat in there for 5 months thinking about what had happened. He got out, made bond as pointed out by the government and in February, he came to this courtroom and you heard evidence that he took a drug test and he failed for marijuana. He did. He failed for marijuana, and marijuana is illegal. It might be legal in most of the country, but it's not legal in Texas. So, he was held accountable for that. The judge revoked his bond for that. He had to pay for money to a bondsman because of that. He got out, and he hasn't been revoked again. So he's been out on bond ever since February.
It's not an excuse, but I ask that you consider the circumstances in that. When you say he failed a drug test, it could have been a variety of things. Luckily for him, it wasn't one of the harder drugs because I think there would be less argument here that he could still do probation if he was using crack cocaine or methamphetamines or PCP or some of those drugs that we all know people really don't come back from.
We conclude that the prosecutor's argument that Spiller says was improper-i.e., that Spiller came to court high-represents a reasonable deduction and summation from the evidence, and it was a response to the argument of opposing counsel. See id. The trial court did not err in overruling Spiller's objection to the State's closing argument. See id.
Additionally, even if the trial court had erred by overruling Spiller's objection, Spiller has not demonstrated that the error affected his substantial rights. See Tex. R. App. P. 44.2(b); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (holding that improper jury argument is not a constitutional violation and is therefore governed by Rule 44.2(b) of the Texas Rules of Appellate Procedure). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). On this record, we conclude that the complained-of argument did not have a substantial and injurious effect or influence upon the jury in determining its verdict. See id. Accordingly, we overrule issue two.
Having overruled Appellant's issues on appeal, we affirm the trial court's judgment.
AFFIRMED.