You would think that this issue would be long settled - Texas courts have been around for quite a while, as has the requirement of a 12-person (and only 12-person) jury. However, in 2007, the Texas legislature amended the Code of Criminal Procedure (Article 33.011(b)) to provide that:
an alternatee juror in a criminal case tried in the district court, if not called upon to replace a regular juror, shall no longer be discharged at the time that the jury retires to deliberate, but shall now be discharged after the jury has rendered a verdict.The problem with this amendment, the CCA notes, is that the legislature was silent regarding whether the alternate juror should be allowed to be present for, and participate in, the jury's deliberations.
In both Trinidad and Adams, the trial judge allowed the alternate juror to be join the jury during deliberations, and in both cases, the defendant did not object to this practice. On appeal, however, the 4th District Court of Appeals (San Antonio) reversed the convictions, holding that it was constitutional error for the trial court to allow the alternate juror to be present during deliberations. The 4th Court further held that the Appellants could not forfeit the right to a 12-person only jury, as that right is a "waiver-only" right. See Trinidad v. State, 275 S.W. 3d 52 (Tex. App.--San Antonio 2008) and Adams v. State, 275 S.W. 3d 61 (Tex. App.--San Antonio 2008).
"Not so fast, my friend," said the CCA today. Reversing the judgments of the Court of Appeals in both cases, the CCA held:
In neither of the appellants' cases was the alternate juror allowed to vote on the ultimate verdict in the case, at either stage of trial. As long as only the twelve regular jurors voted on the verdicts that the appellants received, it cannot be said that they were, judged by a jury of more than the constitutionally requisite number.On the issue of waiver/forfeiture, the CCA also disagreed with the 4th Court.
The appellants had every opportunity to object that the trial court's attempts to comply with the recent amendment to Article 33.011(b) of the Code of Criminal Procedure, would run afoul of Article 36.22, but they did not do so. Under these circumstances, we sustain the State's assertion that these appellants have procedurally defaulted their statutory arguments on appeal, and we hold accordingly that the court of appeals erred to reach the merits of their statutorily based claims.So where does this leave us on the alternate-juror-in-the-deliberation-room fiasco. From reading this opinion (between the lines in some places), it appears to me that, had the appellants objected at trial that by allowing the alternate juror in the deliberation room the trial court would be "allowing an outside influence to be brought to bear on the constitutionally-composed 12-member jury," the CCA would have come down on the other side and affirmed the reversal of their convictions.
Takeaway: OBJECT at trial (and on appeal) under Article 36.22 of the Texas Code of Criminal Procedure, if any outside person (alternate juror or otherwise) is allowed to enter or remain in the deliberation room with the 12 jurors. At least you will have preserved error if the trial judge allows this to happen.
Judge Johnson concurred, admonishing that "having the alternate juror remain outside [the deliberation room] would avoid just the situation we address here."