Affirmed and Opinion filed August 25 , 2015

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 14

- 00376

- CR

REGINALD TURON HILL , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 177th District Court

Harris County, Texas Trial Court Cause No. 1416500

O P I N I O N

A jury convicted appellant Reginald Turon Hill of aggravated sexual assault and sentenced him to confinement for 50 years in the Institutional Division of the Texas Depar

tment of Criminal Justice. In his sole issue on appeal, appellant argues the trial court abused its discretion when it sua sponte discharged a juror during deliberations and replaced her with an alternate. Appellant asserts the error was2

reversible under e ither a constitutional, or non

- constitutional, harm analysis. We affirm.

T he record reflects appellant objected to removal of the juror but the State did not. The trial court dismissed the juror on the grounds that she was not qualified for service because she was not a citizen of Harris County. See Tex. Code Crim. Proc. a rt. 33.011(b) (allowing the trial court to replace a juror who is found to be disqualified with an alternate juror); and Tex. Gov’t Code § 62.102(2) (a qualification for jury service is th at the juror be a citizen of the county in which the person is to serve as a juror). The requirement that a juror be a citizen of the county of service can be waived. Mayo v. State , 4 S.W.3d 9, 11 (Tex. Crim. App. 1999)

. In this case, neither party objected to the juror ’s continued service

. Accordingly, we agree with the State’s concession that the trial court erred in discharging the juror here on its own motion

. See Whitehead v. State , 437 S.W.3d 547, 555

– 56 ( Tex. App.

— Tex arkana 2014 , pet. ref’d ) ( concluding the trial court abused its discretion in removing a juror from service and replacing him with an alternate when the original juror was not unable or disqualified to perform his duty).

We must therefore determine whether the error was reversibl e

. Citing Crist
v. Bretz , 437 U.S. 28, 3 5

– 3 6 , 98 S .Ct. 2156, 57 L.Ed.2d 24 (1978), appellant asserts that he had a right to have his trial completed by the “particular tribunal” that was empaneled and sworn ; therefore t he error violat ed his federal constit utional guarantee against double jeopardy . Appellant cites the Texas Constitution in support of his complaint that only 11 jurors comprised the jury weighing the evidence during all of the deliberations thus his state con stitutional right to a 12

- person jury was violated. See Tex. Const. art. V, § 13

. Appellant
argues the error was reversible under either a constitutional or non

- constitutional harm analysis

.3

In support of his argument that the error was constitutional, a ppellant relie s
upon Scales v. State, 380 S.W.3d 780, 786 n. 25, (Tex. Crim. App. 2012)

. Scales cite s United States v. Scott , 437 U.S. 82, 94, 98 S. Ct. 2187, 2195, 57 L. Ed. 2d 65 (1978) , for th e proposition that there is a right in federal law to a verdict from the “f irst trier of fact.” However Scott involved double jeopardy, not replacement of a juror. The Court’s reference to the “first trier of fact” must be taken in that context and as opposed to a second trier of fact, i.e. a second jury. Moreover, a s appellant

c oncedes , the court in Scales did not find the error was constitutional. Rather, the C ourt assumed, without deciding, that the trial court’s erroneous removal of a juror constituted statutory error and must therefore be analyzed under Rule 44.2(b). Id.
at 7 86. Subsequently, the Court did the same in Sandoval v. State , 409 S.W.3d 259, 280 (Tex. Crim. App. 2013). We are therefore not persuaded that under Scales the

error is constitutional.

To characterize it as a constitutional violation , t he trial court ’ s error would have to produce a biased jury. Sneed v. State , 209 S.W.3d 782, 788 (Tex. App.

— Texarkana 2006, pet. ref ’ d) . The manner in which juries are selected is determined by the legislature and is not prescribed by either the United States or Texas Con stitution s

. Id. The error involved the trial court’s failure to follow the statutory scheme for replacing a juror with an alternate and is therefore not of constitutional dimension. See Ponce v. State , 68 S.W.3d 718, 722 (Tex. App.

— Hous ton [14th Dist.] 200 1, pet. ref’ d)

. Any non
- constitutional error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or i nfluence in determining the jury’s verdict. See King v. State , 953 S.W.2d 266, 271 (Tex. Crim. App. App. 1997).4

The trial court’s replacement of the juror with an alternate did not deprive appellant of a 12

- person jury. Even though it was error to dismiss the original juror, the jury was composed o f 12 properly selected members. T he alternate juror was subjected to the same selection process, was properly sworn, and heard all of the evidence. The court admonished the jury, upon the seating of the alternate, to “start over with your deliberations

. . . to the point where it is necessary to bring [alternate] up to speed where she can make a clear and informed vote and decision in this case.” In an analogous situation, if the trial court were to erroneously grant the State’s challenge for cause during voir dire , reversal would only occur if the defendant show ed that he or she was deprived of a lawfully constituted jury. Sneed , 209 S.W.3d at 788 (citing Feldman v. State , 71 S.W.3d 738 (Tex. Crim. A pp. 2002) and Jones v. State , 982 S.W.2d 386, 394 (Tex. Crim. App. 1998 ) ). Appellant
was not deprived of a lawfully constituted jury and the record does not reflect any taint from the alternate juror. Because no harm is eviden t from the record, we conclude the trial court’s error did not affect appellant’s substantial rights. See Tex. R. App. P. 44.2(b); Sneed , 2 0 9 S.W.3d at 788; and Ponce , 68 S.W.3d at 722. Accordingly, a ppellant’s issue is overruled and the judgment of the trial court is affirmed.

/s/ Martha Hill Jamison Justice

Panel consists of Chief Justice Frost and Justices Jamison and Yates

. 1 Publish

— Tex. R. App. P. 47.2(b).

1 Senior Justice Leslie Brock Yate s sitting by assignment.