From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2008-CI-17947 Honorable Antonia Arteaga, Judge Presiding
The opinion of the court was delivered by: Patricia O. Alvarez, Justice
Opinion by: Patricia O. Alvarez, Justice
Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Patricia O. Alvarez, Justice
The final decree of divorce dissolving the marriage of Appellant George Carl Noyes and Appellee Monica Noyes appointed them as joint managing conservators of their two children. Later, each party sought to be designated as sole managing conservator, and they agreed to have the issue determined by the jury. An eleven-member jury returned a verdict denying both parties' requests for sole managing conservatorship. On appeal, George asserts that his constitutional right to trial by a twelve-member jury was violated when the trial court erroneously dismissed a seated juror. We agree. We reverse the trial court's order and remand this cause to the trial court for further proceedings consistent with this opinion.
Following voir dire, the trial court impaneled twelve jurors and an alternate juror.*fn1 During the course of the trial, the court dismissed two sitting jurors--Juror Turney and Juror Park.
Both parties took the stand at trial. During George's cross-examination, Monica's counsel asked whether George's former employer, Tim Smoot, had accused him of running his business into the ground and whether Mr. Smoot's attorney had been attempting to contact him regarding a claim by Mr. Smoot that George had cheated him in the business. George testified that Mr. Smoot had not made such accusations and that he had not been contacted regarding a claim by Mr. Smoot.
During the next recess, Juror Turney approached the bench and explained that he had done business with Mr. Smoot for many years and did not agree with Monica's counsel's insinuation that George was responsible for Mr. Smoot's business troubles, and had personal knowledge that Mr. Smoot was still in business. Juror Turney stated that he believed George. The trial court asked Juror Turney whether he could still be a fair and impartial juror. Juror Turney responded, somewhat indirectly, that he would like to explain his knowledge to other jurors "unless you tell me I can't bring up things that were not brought up between the lawyers, but I would like to." The trial court instructed Juror Turney not to share any of the information with the other jurors.
Monica's counsel requested the court excuse Juror Turney. George's counsel objected, stating that the parties knew he was in the electrical business based on his juror information sheet, and that he could have been questioned on the subject at voir dire, but he was not. The court stated, "Maybe I'd be cautioned if we didn't have an extra juror, but we have an extra juror. There's no reason to take the risk here of impartiality or not or of extra information going into the jury room." The court then dismissed Juror Turney, replaced him with an alternate juror, and proceeded with trial.
On the seventh day of trial, Juror Park called and left a message on the clerk's answering machine that he was ill and unable to attend trial due to a stomach ailment. The court held a hearing outside the presence of the jury in which the parties presented argument and authorities as to the propriety of proceeding with eleven jurors. The court called Juror Park and placed him on speaker phone. Juror Park stated that he had been having diarrhea all night and was unable to sleep. He vomited once that morning, took some ibuprofen, and slept a bit. He went on to say that "Right now ...