the County Court at Law Hill County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Scoggins
GRAY Chief Justice
Jo Almanza appeals from a conviction for the offense of
driving while intoxicated. Tex. Penal Code Ann. § 49.04
(West 2011). Almanza complains that her Sixth Amendment right
to a jury trial was violated because one of the jurors was
not the actual juror that was summoned. Because the wrong
individual appeared, Almanza contends that the trial court
did not have jurisdiction over that juror and the juror had
no authority to serve as a juror. In her sole issue, Almanza
argues that the judgment is void because only five of the
jurors were properly on the jury panel, which is less than
the constitutionally-required minimum of six jurors.
See U.S. Const. Amend. VI; Ballew v.
Georgia, 434 U.S. 223, 245 (1978).
summons for jury duty addressed to "Oralia
Alvarado" was sent to an address in Hill County. Oralia
G. Alvarado and her daughter, Oralia (nmi) Alvarado, both
resided at that address. To avoid the confusion that caused
the issue which is the subject of this appeal, we will refer
to them as "Mother" and "Daughter" as if
that is their name, in essence as proper nouns. Daughter
appeared for jury duty, believing that she was the person
called because no middle initial appeared in the name of the
addressee on the juror summons. There was nothing else on the
summons to demonstrate which one of them was being summoned.
When the names were called at the beginning of jury
selection, only the first and last names were called, so the
mistake was not discovered prior to or during the trial.
Daughter took the various panel and juror oaths, participated
in voir dire, and was ultimately selected and served
on the six-member panel that found Almanza guilty. When the
check for serving on the jury panel was issued to
"Oralia G. Alvarado, " Daughter contacted the
court. It was then discovered by review of the list of the
venire panel prepared by the clerk that the jury summons was
intended for Mother, "Oralia Garcia Alvarado, "
with her date of birth also included on that list as well.
filed a motion for new trial, alleging that her conviction
should be set aside because of this alleged error. The trial
court heard evidence, including Daughter's testimony, and
denied the motion. It was shown both during voir
dire and at the motion for new trial hearing that
Daughter was not legally disqualified from serving on the
panel pursuant to Article 35.16 of the Code of Criminal
Procedure. See Tex. Code Crim. Proc. Ann. art. 35.16
(West 2006) ("Reasons for challenge for cause").
argues that because Daughter was not actually summoned for
jury duty, the trial court did not have jurisdiction over
Daughter and therefore, Daughter did not have any authority
to serve in Almanza's trial as a member of the jury to
return a verdict. Because of this, Almanza contends that she
was tried before a jury of five persons, which violates her
right to a trial by jury pursuant to the Sixth Amendment. The
United States Supreme Court has held that in order to satisfy
the Sixth Amendment, a jury must consist of at least six
jurors in the absence of the agreement of the defendant.
See Ballew v. Georgia, 435 U.S. 223, 245 (1978)
(panel must consist of six members); Ex parte Garza,
337 S.W.3d 903, 915 (Tex. Crim. App. 2011) (defendant can
affirmatively waive requirement of six-member panel).
conceded at the motion for new trial hearing that there was
no juror misconduct and does not argue that there was any
impropriety or undue influence during the proceedings by
Daughter in her capacity as a juror. Almanza has not cited to
any authority and we have found no authority to support her
argument that she was deprived of her right to a fair and
impartial jury pursuant to the Sixth Amendment because the
trial court did not have jurisdiction over a juror.
sole issue is stated as follows: "Defendant was denied
her Sixth Amendment right to a jury trial and, therefore, her
conviction and sentence are void as a matter of law." To
clarify the issue Almanza states in her brief that
"[f]or the record, Appellant is not complaining of the
trial court's denial of her motion for new trial. Rather,
Appellant's complaint is that she was denied her right to
a jury trial." It may be important to note, for our
purposes and disposition, that the issue is limited to a
complaint under the Sixth Amendment to the United States
Constitution and not the Texas Constitution or Texas
much has been written about the right to a jury trial, the
voir dire or juror selection process, disqualified
jurors, strikes for cause, and juror commitment questions, we
have been cited to no authority on point and our research has
not yielded any closely analogous cases. In fact, much of the
recent case authority on juror selection arises out of the
equal protection clause and the use of preemptory challenges
to strike constitutionally protected classifications from the
jury without a protected-class-neutral reason. See Batson
v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
State's argument in response to Almanza's issue is
based in part on precisely what Almanza disclaimed as the
issue. The State argues, in part, that the trial court did
not err in denying Almanza's motion for new trial. As
quoted above, Almanza expressly foreclosed this argument by
affirmatively stating that was not her complaint. Accordingly
the State's effort to focus on the ruling on the motion
for new trial is not helpful to the disposition of this
State's only remaining argument is that by not raising
the issue until the motion for new trial, Almanza failed to
preserve the issue. However, the State does not address the
larger issue of whether Almanza was required to preserve the
issue before it could be raised on appeal. The Fort Worth
Court of Appeals has held that a defendant may raise the
issue of whether it is error to allow a disqualified juror to
serve on the jury for the first time on appeal. Mayo v.
State, 971 S.W.2d 464 (Tex. App.-Fort Worth, 1998).
Although the merit of the issue is somewhat different in this
appeal, we agree that the traditional preservation
requirement does not apply under these facts. Tex.R.App.P.
33.1(a). To be tried by a jury is a category two right under
Marin. Marin v. State, 851 S.W.2d 275, 280 (Tex.
Crim. App. 1998). It is categorized as such because it is a
right that must be implemented by the trial court unless
affirmatively waived. As such, preservation at the trial
court is not required. Id. We hold that the issue,
as raised by Almanza in this appeal, is properly before the
issue purports to attack the trial court's judgment for
lack of jurisdiction. But this is not jurisdiction in the
traditional sense. When jurisdiction is attacked in the
more-or-less traditional sense the defendant argues that due
to some fact or omission the trial court lacked the authority
to proceed to judgment over the defendant. Typically there
are two types of these "jurisdictional" arguments;
subject matter jurisdiction over the particular controversy,
or personal jurisdiction over the party. This is not,
however, Almanza's argument, at least not directly.
Rather, Almanza argues that the trial court lacked
jurisdiction over a person that served as a juror.
argument is thus very different from those cases like
Mayo, in which the juror is statutorily disqualified
from serving as a juror. In this proceeding Almanza is
arguing the trial court had no jurisdiction over a person