In the American criminal justice system, certain rights are so fundamental that their violation cannot be ignored, regardless of the nature of the accusation. Yesterday, the Fifth Court of Appeals in Dallas reaffirmed one of these bedrock principles: the constitutional right to a twelve-person jury.

In Richard Eric Leal v. The State of Texas, Ordiway PLLC successfully argued that our client’s conviction for a first-degree felony drug offense was constitutionally infirm. The appellate court agreed, reversing the conviction and the thirty-year prison sentence, and remanding the case for a new trial.

While the underlying charge involved fentanyl—a serious subject that commands public attention—this appellate victory highlights a critical procedural failure that, if left unaddressed, would undermine the integrity of the jury system for all defendants.

The Case of the Missing Juror

The error in this case was as stark as it was unusual. The record of the trial reflected that the district court called the names of eleven jurors to be seated in the box. The trial proceeded, evidence was heard, and a verdict was rendered.

The record remained entirely silent, however, regarding a twelfth juror. There was no mention of a twelfth name, no indication of a waiver by the defense, and no explanation for the absence.

Under Article V, Section 13 of the Texas Constitution and Article 36.29 of the Code of Criminal Procedure, a felony jury must be composed of twelve members. While this right can be waived under specific circumstances, such a waiver cannot be presumed from a silent record.

“The Record Matters”

In a memorandum opinion authored by Justice Mike Lee, the Fifth Court of Appeals accepted our argument that proceeding with eleven jurors constituted constitutional error.

The State attempted to argue that the error was waived because no objection was made at trial. However, as we argued in our briefs, the right to a twelve-person jury is a fundamental right that must be implemented unless expressly waived.

Justice Lee’s opinion emphasized the necessity of an accurate record:

“At oral argument, the absurdity of this scenario was discussed… It defies logic that neither the trial judge, nor the bailiff, nor the court reporter, nor either party noticed throughout the entire trial that the jury box was missing a twelfth juror. Yet, the record demonstrates exactly that… The bottom line is that we can only adjudicate this appeal based on the record presented.” 

The Court held that because the record showed only eleven jurors and contained no affirmative waiver from Mr. Leal, the conviction could not stand.

Why This Victory is Important

It is easy to overlook procedural errors in cases involving serious narcotics charges. However, the appellate courts exist to ensure that the State meets its burden not just in evidence, but in procedure.

As the Court noted, a trial with fewer than twelve jurors is a “structural error”—it affects the very framework within which the trial proceeds. By successfully challenging this error, Ordiway PLLC ensured that the Constitutional requirements of the Texas judicial system were upheld.

We are proud of the diligent appellate work that uncovered this error. This result serves as a reminder that in a court of law, details matter, the record matters, and the Constitution applies to everyone.

Read more about the case: https://www.keranews.org/criminal-justice/2025-11-20/dallas-county-district-attorney-first-fentanyl-dealing-conviction-missing-juror