1. “Did the Court of Appeals err in concluding that Appellant failed to preserve error?”
2. “Did the trial court violate Art. 36.22?”
3. “Is harm presumed when a trial court violates the first sentence of Art. 36.22?”
4. “Was Appellant harmed by the violation of the first sentence of Art. 36.22?”
Texas Code of Criminal Procedure Article 36.22 is short: “No person shall be permitted to be with a jury while it is deliberating. No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court.” The Court of Criminal Appeals has held that the presence of alternate jurors in the deliberation room does not violate the Texas Constitution’s requirement of twelve jurors in a felony case. Trinidad v. State, 312 S.W.3d 23, 28 (Tex. Crim. App. 2010). It has not decided whether it violates Art. 36.22. This case might require it to.
Laws was charged with two counts of assault of a peace officer, a felony. Before deliberations, the alternate juror was directed to accompany the jury into the deliberation room but admonished not to speak or participate. The regular jurors were also instructed to disregard anything the alternate might say. Defense counsel objected. Admonishments notwithstanding, he argued “there’s just too much of a risk and the danger for them (sic) to bring input. We can’t police that. . . . I think out of an abundance of caution I think we need to do like we always do and ask them (sic) to maybe go
downstairs and wait in the room.” He never mentioned Art. 36.22. The trial court overruled the objection, and Laws was convicted on both counts.
Laws appealed. He argued that, because his objection embraced both the alternate’s presence and the inadequacy of the instruction not to deliberate, he fairly raised an Art. 36.22 complaint. Further, he said requiring a harm analysis when a timely objection was made would be “odd” because defense counsel would have no way of knowing what might happen—that is the point of forbidding the alternate’s presence. The court of appeals affirmed. It held the argument was not preserved because Art. 36.22 was not invoked. It further held that Laws inadequately briefed the harm issue by not attempting to deal with the trial court’s admonishments.
Laws filed a pro se petition. The Court refused it but granted review on the above questions.