Scales v. Texas (Original)
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The state filed a motion for rehearing in this case; the Supreme Court withdrew its opinion on original submission, substituted this opinion, and denied the state's motion for rehearing. Appellant was charged with aggravated robbery with a deadly weapon. During a recess in jury deliberations on the second day of appellant's trial, the jury foreman sent a note to the trial 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 and to seat an alternate. Defense counsel requested that the trial judge question the juror directly, which the trial judge refused to do. Instead, the trial judge again questioned the foreman about the juror's issues and, finding the foreman credible, dismissed that juror over defense counsel's objection and seated an alternate. Within half an hour of replacing the juror, the jury reached a verdict. It later assessed appellant's punishment at 20 years' confinement. Appellant appealed, arguing that the trial court abused its discretion in removing the complaining juror and that appellant was denied effective assistance of counsel because trial counsel failed to question the dismissed juror or move for a mistrial after the dismissal. The court of appeals reversed the judgment of the trial judge and remanded the case for a new trial. The court of appeals withdrew its original opinion pursuant to Texas Rule of Appellate Procedure 50 and issued a revised memorandum opinion with the same results as its original opinion. The state then filed a second petition for discretionary review, and the Supreme Court granted two of the state's three grounds for review. After review, the Court found that the court of appeals correctly held that the juror was not "disabled" as defined in Art. 33.011. Even using the standard set out in Rule 44.2(b), the Court found that the error was reversible and affirmed the court of appeals.
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