“In Trinidad v. State, 312 S.W.3d 23 (Tex. Crim. App. 2010) this Court held Article V, Section 13 of the Texas Constitution was not implicated unless evidence that a number other than exactly twelve jurors voted on a verdict received by the trial court. The uncontroverted evidence from Appellant’s Motion for New Trial was a non-petit juror deliberated and voted on Appellant’s verdict. Did the Court of Appeals commit error in holding Appellant’s Article V, Section 13 and statutory claims under 33.01 and 36.22 of the Texas Code of Criminal Procedure were procedurally defaulted?”
At the guilt-phase of Becerra’s trial, the bailiff reported to the trial court that an alternate juror was present during the jury’s deliberations. At a hearing on the matter, Becerra moved for a mistrial but did not ask to question the alternate or the jury about the alternate’s participation or whether the alternate impacted any juror’s vote. The State requested that the trial court instruct the jury to disregard any participation by the alternate. The trial court overruled Becerra’s motion and granted the State’s request. Becerra filed a motion for new trial, claiming that the alternate’s presence violated Article V, Section 13 of the Texas Constitution and Tex. Code Crim. Proc. arts. 33.01, 33.011, 36.22. In support, Becerra submitted an affidavit from a juror stating that the alternate had voted and that the jury did not re-vote after the alternate was removed. His motion was denied.
Becerra appealed. The court of appeals held that his statutory and constitutional claims were not preserved because he failed to timely object. Observing that nothing in the record showed that defense counsel was not able to see the alternate leaving with the panel to deliberate, the court determined that the error was apparent at that time.
Becerra contends that the court of appeals’ procedural default ruling is erroneous. Unlike Trinidad v. State, where the constitution and statutes were not implicated because there was no evidence that the alternate voted, the alternate here voted. Having established a violation, Becerra argues that his motion for new trial with the affidavit providing information not available at trial preserved his claim. Further, he contends his claim also concerns juror misconduct involving outside influence and such claims are typically preserved through a new trial motion. He contends that the triggering event for a timely objection, according to the lower court, overlooks the fact that the judge and prosecutor did not say anything about the alternate retiring with the jury. Finally, regarding his constitutional claim, Becerra asserts that it should be categorized as a waiver-only right and not subject to forfeiture.