the 361st District Court Brazos County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Neill.
GRAY CHIEF JUSTICE.
Luis Becerra appeals from a conviction for possession of a
firearm by a felon. Tex. Penal Code Ann. § 46.04 (West
2011). Becerra complains that his right to a
twelve-person jury pursuant to the Texas Constitution was
violated because an alternate juror was present during
deliberations, that the presence of the alternate juror
during deliberations violated Articles 33.01, 33.011, and
36.22 of the Code of Criminal Procedure, that the evidence
was legally insufficient, and that the admission of
impeachment testimony violated the Confrontation Clause of
the United States Constitution. Because we find no reversible
error, we affirm the judgment of the trial court.
first issue, Becerra complains that his right to a jury
composed of only twelve persons pursuant to Article V,
Section 13 of the Texas Constitution was violated because an
alternate juror was present during part of jury deliberations
in the guilt-innocence phase of the trial. In his second
issue, Becerra complains that the presence of the alternate
juror during jury deliberations violated Articles 33.01,
33.011, and 36.22 of the Code of Criminal Procedure.
V, Section 13 of the Texas Constitution and Article 33.01 of
the Code of Criminal Procedure direct that juries in district
courts are to contain twelve members. Tex. Const. Art. V,
Sec. 13; Tex. Code Crim. Proc. Ann. art. 33.01 (West 2006).
Alternate jurors are permitted to be selected and sworn in,
and Article 33.011(b) of the Texas Code of Criminal Procedure
states that an alternate juror, if not called upon to replace
a regular juror, shall no longer be discharged at the time
the jury retires to deliberate and shall be discharged after
the jury has rendered a verdict. Tex. Code Crim. Proc. Ann.
art. 33.011(b) (West Supp. 2018). The statute does not give
direction as to the whereabouts of the alternate juror during
deliberations. However, Article 36.22 of the Texas Code of
Criminal Procedure states that "[n]o person shall be
permitted to be with a jury while it is deliberating."
Tex. Code Crim. Proc. Ann. art. 36.22 (West 2006).
proceeding, voir dire was conducted by the elected judge of
the district court. An alternate juror was selected during
voir dire. A visiting judge conducted the rest of the trial
after voir dire was completed. When the jury retired to begin
its deliberations as to guilt or innocence, the alternate
juror went into the jury room with the panel. Around
forty-five minutes later, the State advised the bailiff that
the alternate was in the jury room with the jury, and the
bailiff brought it to the attention of the trial court. The
trial court removed the alternate juror and placed him in a
trial court then conducted a hearing regarding the alternate
juror. The trial court and the attorneys for the State and
Becerra discussed the holdings in Trinidad v. State,
312 S.W.3d 23 (Tex. Crim. App. 2010) in order to determine
how to proceed. The State requested an instruction to be
given to the jury to disregard any participation by the
alternate juror. The trial court agreed to give an
instruction. Counsel for Becerra agreed with the substance of
the instruction, but asked for a mistrial "based on the
presence of the juror, preserving any error, if any"
even though he informed the trial court he did not have any
indication of harm at that point. Counsel for Becerra did not
seek to question the alternate juror or other jurors
regarding what the alternate's participation in
deliberations had been or whether the alternate had impacted
any juror's vote. The trial court overruled Becerra's
motion for mistrial and called the jury back to give them an
instruction given to the jury was as follows:
Members of the jury, jury deliberations began at 9:45 a.m. At
10:31 a.m., the Court realized that the alternate juror,
[alternate juror], was allowed into the jury room by mistake
and [alternate juror] was at that time asked to separate from
the jury. [Alternate juror] has been placed in a separate
room over here and he will continue to serve as the alternate
juror in this case. He simply cannot be present during the
deliberations of the 12 jurors.
You are to disregard any participation during your
deliberations of the alternate juror, [alternate juror]. And
following an instruction on this extra note that the Court
received, you should simply resume your deliberations without
[alternate juror] being present.
jury was then sent back into the jury room to resume
deliberations and returned a verdict of guilty, which was
confirmed when the jury was polled individually.
filed a motion for new trial, alleging violations of Texas
Constitution Article V, Section 15 and Articles 33.01,
33.011, and 36.22 of the Code of Criminal Procedure with an
affidavit from one of the jurors (not the alternate)
attached. In the affidavit, the juror stated that the
alternate juror voted on the verdict of guilty prior to the
bailiff discovering the alternate juror's presence and
that the remaining panel did not vote again on the issue of
guilt or innocence after the alternate was removed.
State argues that Becerra's motion for mistrial was not
preserved because he did not state the specific legal grounds
for his motion at the time that it was made. While
Becerra's motion was not in and of itself specific, the
dialogue between the trial court and the attorneys
demonstrates that the legal theories upon which the motion
was based were those set forth in Trinidad and were
apparent from the context. See Tex. R. App. P.
33.1(a). We do not agree with the State that the issues
raised in the motion were not adequately preserved due to the
lack of specificity.
we must also determine whether or not the objection and
motion for mistrial were timely. In order to preserve a
complaint for appellate review, a party must timely object,
stating the specific legal basis for the objection if it is
not apparent from the context of the objection. Tex.R.App.P.
33.1(a)(1); Clark v. State, 365 S.W.3d 333, 339
(Tex. Crim. App. 2012). An objection is timely if made at the
earliest opportunity or as soon as the grounds for the
objection become apparent and made at a time when the judge
is in the proper position to do something about it. Pena
v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009).
This gives the trial judge an opportunity to correct, or in
this case, prevent the error. Even most constitutional errors
can be forfeited at trial if a party fails to properly
object. Briggs v. State, 789 S.W.2d 918, 924 (Tex.
Crim. App. 1990).
instance, the grounds for Becerra's objection to the
alternate juror being sent into the jury room were apparent
at the time it happened, which was when the jury began
deliberations. Becerra's counsel was aware that there was
an alternate juror selected and that the alternate juror sat
with the jury during the trial. There is nothing in the
record to indicate that Becerra's counsel was not present
or was in some other way unable to observe the jury panel at
the time the jury panel was sent to begin deliberations.
Because Becerra did not object at the time the jury was sent
to deliberate, his objection and motion for mistrial were not
made at the time the trial court was in the proper position
to prevent the error, and therefore were not
timely. Further, because ...