Jennifer Jill Whitehead v. State, 437 S.W.3d 547

Jennifer Jill Whitehead was convicted of capital murder (victim under six) and injury to a child; sentenced to life without parole and 15 years respectively.
At trial, evidence showed only Whitehead and the child were present when the fatal injuries occurred; there were no eyewitnesses to the act. Two recorded statements by Whitehead to police were admitted and played for the jury.
During guilt/innocence closing, the State argued there were “no witnesses to the crime, other than the defendant,” prompting Whitehead’s objection that this was an impermissible comment on her failure to testify; the trial court overruled the objection.
Before deliberations a juror revealed he had recorded his impressions on his cell phone and intended to play them during deliberations; the trial court dismissed the juror over defense objection and seated an alternate.
Whitehead appealed, raising (1) that the prosecutor’s comment violated her Fifth Amendment right (and related Texas law) and (2) that the court abused discretion by discharging the juror. The Court of Appeals affirmed.

Issue	Whitehead's Argument	State's Argument	Held
Prosecutor’s closing comment referenced defendant’s failure to testify	Comment that only the defendant and child were present was an impermissible comment on Whitehead’s Fifth Amendment right not to testify and violated Texas law	Argument was not naturally or necessarily a comment on failure to testify because jury heard Whitehead’s recorded statements and other witnesses’ perspectives	Court found the remark was an indirect comment on failure to testify but, under constitutional harmless-error review (Tex. R. App. P. 44.2(a)), the error was harmless beyond a reasonable doubt and did not contribute to conviction
Removal of juror who recorded impressions on cell phone pre-deliberation	Removing the juror and substituting an alternate was error because record did not show the juror was disabled, disqualified, or had disclosed opinions to other jurors	Trial court had discretion; State argued juror violated court instructions and intended to use recording to influence others	Court held removal was an abuse of discretion because record did not support disability/disqualification, but the statutory error was nonconstitutional and harmless under Tex. R. App. P. 44.2(b) because alternate was properly selected, sworn, heard the evidence, and there was no evidence of taint

Bustamante v. State, 48 S.W.3d 761 (Tex. Crim. App. 2001) (test for whether argument is manifestly intended as comment on failure to testify)
Snowden v. State, 353 S.W.3d 815 (Tex. Crim. App. 2011) (constitutional prosecutorial error requires harmless-beyond-a-reasonable-doubt review under Tex. R. App. P. 44.2(a))
Banks v. State, 643 S.W.2d 129 (Tex. Crim. App. 1982) (distinguishes comments referring to defendant’s failure to testify from references to absence of evidence produced by defense)
Scales v. State, 380 S.W.3d 780 (Tex. Crim. App. 2012) (standard for trial court discretion in dismissing juror as disabled and replacing with alternate)
Sneed v. State, 209 S.W.3d 782 (Tex. App.—Texarkana 2006) (discusses harmlessness when alternate juror is properly selected, sworn, heard the evidence, and no taint is shown)