In Dempsey v. Beaumont Hosp., Inc., 38 S.W.3d 287, 289-91 (Tex. App.--Beaumont 2001, pet. dism'd), a juror failed to appear after the jury retired for deliberations. Dempsey, 38 S.W.3d at 289.
It was discovered the juror was disqualified to serve because he had prior felony convictions. Id.
The trial judge denied a mistrial motion and the deliberations proceeded with eleven jurors. Id.
The court of appeals held the action of the trial court deprived Dempsey of his constitutional right to a twelve-person jury. Id. at 291.