On 13 August 2010, the 3rd District Court of Appeals (Austin) released another case dealing with this exact issue. In Castillo v. State, the Court cited that CCA precedent in Trinidad and Adams and, as lower courts are expected to do, held accordingly. The Court explained that, because "there is no indication in the record that the alternate jurors voted on the verdict" it could not "conclude...that there was a constitutional violation." Further, like the CCA opinions, the 3rd Court also declined to address the question of whether article 36.22 of the Code of Criminal Procedure, which provides that “[n]o person shall be permitted to be with a jury while it is deliberating,” was violated.
The Court handled the article 36.22 question by stating that
even if the district court’s practice violated the statute, we could not conclude on this record that Castillo was harmed by the violation. As the court of criminal appeals noted in Trinidad, harm from statutory error is governed by rule of appellate procedure 44.2(b). Thus, unless the error affected Castillo’s substantial rights, it must be disregarded.So, in short, nothing has changed on the alternate-jurors-in-the-jury-room-during-deliberations front. Maybe I should have simply stated that up front and then you wouldn't have wasted your time reading this entire post. Oh well - sorry. As you can probably tell, the cases (at least the published cases) are not too sexy right now. I’ll try to dig up some good stuff to post about, but I’m just writing about what the Courts give me.