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Becerra v. State

Court of Appeals of Texas, Tenth District

June 12, 2019

JOE LUIS BECERRA, Appellant
v.
THE STATE OF TEXAS, Appellee

          From the 361st District Court Brazos County, Texas Trial Court No. 14-03925-CRF-361

          Before Chief Justice Gray, Justice Davis, and Justice Neill.

          OPINION

          TOM GRAY CHIEF JUSTICE.

         Joe Luis Becerra appeals from a conviction for possession of a firearm by a felon. Tex. Penal Code Ann. § 46.04 (West 2011).[1] 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.

         Thirteenth Juror

         In his 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.

         Article 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).

         In this 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 separate room.

         The 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.

         The 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.

         The 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.

         Becerra 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.

         The 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.

         However, 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).

         In this 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.[2] Further, because ...


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