AFFIRM; Opinion Filed July 6, 2018.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-00218-CR

                            ADAM GABRIEL QUIROS, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 282nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F15-21740-S

                              MEMORANDUM OPINION
                         Before Justices Lang-Miers, Evans, and Schenck
                                   Opinion by Justice Schenck
       Adam Gabriel Quiros appeals his conviction for the second degree felony offense of

intoxication manslaughter. In a single issue, appellant urges the trial court erred by dismissing a

sworn and impaneled juror and replacing the dismissed juror with an alternate juror. We affirm

the trial court’s judgment. TEX. R. APP. P. 47.4.

                                          BACKGROUND

       Late in the evening of March 20, 2015, appellant was driving a car that was involved in a

collision that resulted in the death of a passenger in the second car. Appellant was indicted for the

second degree felony offense of intoxication manslaughter. The indictment also alleged that

appellant used a deadly weapon, to wit: a motor vehicle during the commission of the offense.

Appellant entered a plea of not guilty, and his case proceeded to trial. The jury found appellant
guilty of the offense charged, made an affirmative finding of the use of a deadly weapon, and

assessed appellant’s punishment at four year’s confinement in the penitentiary.

                                            DISCUSSION

       In his sole issue on appeal, appellant urges the trial court erred by dismissing a juror and

replacing the dismissed juror with an alternate juror.

       The trial court has the discretion to determine whether a juror has become “disabled” and

to seat an alternative juror. See TEX. CODE CRIM. PROC. ANN. art. 36.29; Scales v. State, 380

S.W.3d 780, 783 (Tex. Crim. App. 2012). The code of criminal procedure provides for the seating

of alternate jurors, before the jury renders a verdict regarding a defendant’s guilt or innocence,

where original jurors have “become or are found to be unable or disqualified to perform their

duties.” TEX. CODE CRIM. PROC. ANN. art. 33.011(b). We review the trial court’s decision to

replace a juror for abuse of discretion. Scales, 380 S.W.3d at 784.

       The trial court conducted voir dire on February 7, 2017. That same day, the court seated

and swore in twelve jurors and two alternate jurors and instructed them to return to court the

following Monday, February 13, 2017. That Monday, before opening statements or any witness

testimony, the court advised the parties:

       THE COURT: This morning Juror No. 43 called in and stated that they had a family
       emergency. So Juror No. 43 will not be present. And Juror No. 59 will now take
       a seat over in the juror box. That’s the first alternate.

       ....

       THE COURT: Okay. Counsel, did you have any questions based on that?

       [DEFENSE COUNSEL]: Just as to whether, uh, Juror 43 is now, uh, been
       determined to be excluded from all further proceedings?

       THE COURT: Yes, because they can’t miss a day of testimony. And that’s why
       we picked two alternates, ‘cause you just never know when somebody’s gonna have
       a family emergency.

       [DEFENSE COUNSEL]: A much better practice than going with 12 and the
       defense having to potentially accept the verdict of 11.
                                               –2–
        On appeal, appellant argues the trial court erred in finding the juror was disabled because

of “an unspecified family emergency,” by making this determination outside the presence of

appellant, and by failing to set forth the factual basis for making this determination. Appellant

further complains the trial court did not elaborate on the way the emergency would impact the

ability of the juror to attend trial or engage in full and fair participation in listening to the evidence

and in participating in the jury’s deliberations. Appellant also urges that even if the trial court

properly determined the juror was disabled, the proper statutory remedy pursuant to the code of

criminal procedure was to proceed with eleven jurors, instead of replacing the dismissed juror with

an alternate juror. See TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (providing that not less than

twelve jurors can render and return a verdict in a felony case, but that if after the trial begins, a

juror becomes disabled before the charge of the court is read to the jury, the remainder of the jury

shall have the power to render the verdict).

        To preserve this complaint for appeal, appellant was required to make a timely objection.

See TEX. R. APP. P. 33.1; Guajardo v. State, 05-15-00365-CR, 2016 WL 1615609, at *4 (Tex.

App.—Dallas Apr. 20, 2016, no pet.) (mem. op., not designated for publication) (appellant failed

to timely object when on second day of trial, court began proceedings announcing alternate juror

took place of original juror who “was feeling under the weather this morning”). As noted above,

appellant failed to object to the trial court’s actions in discharging a juror and seating an alternate

juror at the time of trial, so he may not complain of them on appeal. See id. As for his complaint

regarding article 36.29, appellant’s defense counsel specifically stated that it was preferable to

proceed with the alternate juror than “the defense having to potentially accept the verdict of 11.”

Thus, appellant not only failed to preserve this issue for appeal, but he affirmatively waived it. See

TEX. R. APP. P. 33.1; Webber v. State, Nos. 05-03-00482-CR, 05-03-00483-CR, 05-03-01001-CR,

2004 WL 1232922, at *2 (Tex. App.—Dallas June 4, 2004, pet. ref’d) (mem. op., not designated

                                                  –3–
for publication) (holding appellant failed to preserve any error regarding trial court’s determination

juror was disabled where appellant failed to object at trial); see also Holloway v. State, 01-02-

00646-CR, 2003 WL 1343214, at *2 (Tex. App.—Houston [1st Dist.] Mar. 20, 2003, no pet.)

(holding appellant affirmatively waived any error after consenting to a trial with less than 12

jurors).

                                             CONCLUSION

           We affirm the trial court’s judgment.




                                                     /David J. Schenck/
                                                     DAVID J. SCHENCK
                                                     JUSTICE


DO NOT PUBLISH
Tex. R. App. P. 47
170218F.U05




                                                   –4–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 ADAM GABRIEL QUIROS, Appellant                      On Appeal from the 282nd Judicial District
                                                     Court, Dallas County, Texas
 No. 05-17-00218-CR         V.                       Trial Court Cause No. F15-21740-S.
                                                     Opinion delivered by Justice Schenck,
 THE STATE OF TEXAS, Appellee                        Justices Lang-Miers and Evans
                                                     participating.

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


Judgment entered this 6th day of July, 2018.




                                               –5–
