MH RN! and Opinion [iled this 26th day of March, 2013.




                                              In i’he
                                     Qtnurt    tit Appeahi
                           fift1! Diitrirt nf         ixa    at i1zt1ta

                                       No. 05-11-00312-CR
                                       No, 05-1 1-00313-CR
                                       No. 05-1 1-00314-CR


                        CARLOS MARIo DELAROSA, Appellant
                                                 V.
                             THE STATE OF TEXAS, Appellee

                        On Appeal from the 4 16th Judicial District Court
                                     Collin County, Texas
                Trial Court Cause Nos. 416-80340-11, 416-81543-09, 416-81544-09

                                 MEMORANDUM OPINION
                             Before Justices Moseley, Francis, and Lang
                                      Opinion by Justice Lang

           Carlos Mario Delarosa appeals from convictions of evading arrest, possession with the

intent to deliver cocaine, and three counts of aggravated assault with a deadly weapon. In his sole

issue on appeal, Delarosa contends the trial court erred by determining that a juror who was no

longer a Collin County resident was disabled and replacing that   jul-or   with the alternate juror. We

decide against Delarosa on this issue and affirm the trial court’s judgment. Because all

dispositive issues are clearly settled in law, we issue this memorandum     opinion.   See TEx. R. App.

p. 47.4.
                        I. FACTUAL AND PROCEDURAL BACKGROUND

        After the close of evidence, hut before the jury was charged, the trial court held a hearing

outside the presence of the jury and informed the parties that a haili [1 in charge of the jury

received information from one juror that another Juror, Joshua Roundy, no longer lived in Collin

County, The juror information sheet reflected juror Roundy had a post office box in Collin

County, but did not include a physical address. The trial judge then called in juror Roundy to ask

him whether he was a resident of Collin County. Juror Roundy            informed   the trial judge that he

had left Collin County nine months prior to the trial, presently lived in Denton County, and had

no plans to return to Collin County. After asking juror Roundy     to   wait outside the courtroom, the

trial court stated he was “disqualified, considering—from serving on this jury and fits the

definition of disabled” in the Texas Code of Criminal Procedure. The defense counsel objected

as follows.

       DEFENSE COUNSEL: I don’t think that’s the kind of disability that the Code is
       talking about. I think in terms of such things as mental or physical disability, not—
       not circumstances that we now discover he’s disqualified, like, for example, what
       if he’s been convicted of theft, for example, which would be a disqualification. I
       don’t think that—I don’t think it’s—I don’t think that’s the kind of disqualification
       we’re talking about, because he was never qualified. It’s not that he’s become
       disabled in some fashion. He was—he was never qualified to have put on the jury.

       THE COURT: All right. Your objection is overruled. The Court is going to
       excuse the juror and seat the alternate juror.

       After the trial court excused juror Roundy and seated the alternate juror, the jury found

Delarosa guilty as charged on all charges and sentenced him to two years           in a   state jail facility

and a $10,000    fine   for evading arrest,   sixty years’   imprisonment and a $100,000 fine for

possession with intent to deliver cocaine, life imprisonment and a $10,000 fine each for two of

the three counts of aggravated assault, and twenty years’ imprisonment and a $10,000 fine for
the third count of aggravated assault. I)elarosa argues on appeal that the trial judge erred in

finding juror Roundy disabled and should not have removed him.

                    II. STANDARD OF REVIEW & APPlICABLE LAW

       A trial court’s error in discharging a luror involves the fihilure to follow a statutory

scheme; it is not of constitutional dimension. See Sneed v State, 209 S.W.3d 782, 788 (Tex.

App.-Texarkana 2006, pet. ref’d): Ponce v. State, 68 S.W.3d 718, 721-22 (Tex. App,—Houston

[14th Dist.] 2001, pet ref’d), Texas Rule of Appellate Procedure 44.2(b) provides that an

appellate court must disregard a non-constitutional error that does not affect a defendant’s

substantial rights, TEx. R. A1p. P. 44.2(b); see aLco Sneed, 209 S.W.3d at 788: Ponee, 68 S.W.3d

at 721-22. A defendant is not harmed by the trial court’s error in discharging a juror where: (1)

the record shows the alternate juror seated in the discharged juror’s place was subjected to the

same selection process, properly sworn, heard all of the evidence, heard the trial court’s charge,

and seated before the jury retired; and (2) the record does not show any taint from the alternate

juror seated in the discharged juror’s place. See Sneed, 209 S.W.3d at 788; Poiice, 68 S.W.3d at

722.

                           Hi. APPLICATiON OF LAW TO FACTS

       Delarosa argues the trial court erred “by determining that a juror who no longer lived in

Collin County was disabled” and by replacing that juror with an alternate. He contends “[tjhe

applicable statute dealing with issues surrounding removal of a sitting juror because of death or

disability” is article 36.29, which provides that if a juror becomes disabled from sitting after the

jury is impaneled and sworn, the remaining eleven jurors have the power to render the verdict.

See TEx. Conc. CRIM. Pioc. art. 36.29(a). According to Delarosa, juror Roundy was not dead or

disabled within the meaning of article 36.29, “but would at most have been subject to
disqualification for not being a f ohm County resident” and should not have been removed over

I)elarosas objection.

        The State responds that the trial court properly found juror Roundy was disqualified to

serve on the jury because he did not meet the residency requirement       iii   article 35. 16. See TEX,

( ODE C RIM Piux art ‘5 I 6(a)( 1) Mayo v State 4 S W 3d 9, II I cx ( rim App 1999)

(holding that article 35. 16(a)(l ) “provides that a venireperson who does not live in the county is

subject to challenge” and that “county citizenship is a part of the Article 35.16 requirement that a

person be a qualified voter in the county under the constitution and laws of this state in order to

be fit to serve as a juror.”) (citations omitted). The State contends the procedure in article 36.29

relied upon by Delarosa “does not address the situation faced by the trial court here, that of

replacing a disqualified juror with an alternate.” According to the State, artic Ic 33.011 “contains

the procedure for removal of both a disabled and a disqualified juror and authorizes substitution

with a qualified alternate.” See TEX. CODE CR1M. PROC. art. 33.011.

        The record shows the alternate juror was subjected to the same selection process as the

other jurors, was properly sworn, and heard all of the evidence and the trial court’s charge. The

alternate juror was seated in place of the discharged juror after the close of evidence, but before

the jury retired. The record does not show any taint from the alternate juror. Even assuming,

without deciding, the trial court erred by removing juror Roundy, Delarosa has not complained

of any harm suffered from the replacement of the disqualified juror with the alternate juror, and

no harm is evident from the record. Accordingly, we conclude Delarosa was not harmed by the

trial judge’s alleged error because it did not affect Delarosa’s substantial rights. See TEx. R. App.

P. 44.2(b); Sneed, 209 S.W.3d at 788; Ponce, 68 S.W.3d at 722. We decide against Delarosa on

his sole issue.




                                                 4
                                     IV. CONCLUSION

      The trial court’s judgment is affirmed.




                                                    JUSTI
Do Not Publish
Ta It. Ape. P.47
1103 12F.U05




                                                5
                                  (Lniirt i1         Tt1ij1
                        Fif1Ii Jitrirt nf rxa at JaI1ai
                                       JUDGMENT

CARLOS MARIO DELAROSA, Appellant                     On Appeal from the 416th Judicial District
                                                     Court, Collin County, Texas
No. 05 11 003 I 2CR                                  Trial Court Cause No. 41 6-0340- 11.
                                                     Opinion delivered by Justice Lang Justices
TIlL STATE (.0’ TEXAS. Appellee                      Moselev and Francis participating.

       Based on the Court’s opinion of this date, the judment ol the trial court is AFFIRMED.


Judgment entered this 26th day of March, 2013.




                                                                  LANG
                                                 J
                                    Lnitrt   ppiat
                                              Lif

                          fiftli Iitrict nf Lrxzta at Dn11a;
                                         JUDGMENT

CARLOS MARIO DELAROSA, Appellant                    On Appeal from the 4 16th Judicial District
                                                    Court, Collin County. Texas
No, 05-11-003 13-CR        V.                       Trial Court Cause No. 416-81 543-09.
                                                    Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                        Moseley and Francis participating.

       Based on the Court’s opinion of this date, the udgrnent ot the trial court is AFH RNIEI).


Judgment entered this 26th day of March. 2() 13.




                                                                 LANG
                                   tiitrt ijf       iprj{

                         Fifth   Jitrirt    uf ixa at Ja1La%
                                        JUDGMENT

(ARI.()S MARIo DELAR()SA. Appellant                ( )n Appeal tiom the 4 16th Judicial District
                                                   Court. Collin County. Texas
No. 05—11—003 Il-CR        V.                      Trial Court Cause No. 416-81 544-09.
                                                   Opimon delivered by Justice Lang. Justices
[HE STATE 01- TEXAS, Appellee                      Moseley and Francis participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRNIED.


Judgment entered this 26th day ot March, 2013.




                                                 IDOUGI$SS. LKNCI
                                                  JUSTE
