                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 MIGUEL DELGADO,                                §
                                                                No. 08-05-00391-CR
                   Appellant,                   §
                                                                   Appeal from the
 v.                                             §
                                                             243rd Judicial District Court
                                                §
 THE STATE OF TEXAS,                                          of El Paso County, Texas
                                                §
                   Appellee.                                    (TC# 20030D05472)
                                                §


                                          OPINION

       Appellant was found guilty by a jury of two counts of indecency with a child and one

count of aggravated sexual assault of a child. During punishment deliberations, the jury

requested to adjourn for the day and resume deliberations the next day to give them ample time

to consider all the evidence presented during the punishment phase. Defense counsel moved to

have the jury sequestered. The trial judge overruled the motion, and permitted the jury to

separate for the night.

       Appellant was sentenced to 10 years’ community supervision for the indecency with a

child counts and 20 years’ in prison for the aggravated sexual assault, with the sentences to run

concurrently. Appellant contests the trial court’s decision in denying defense counsel’s motion to

sequester. We affirm.

       Appellant’s sole issue on appeal is whether the court erred by allowing the jury to

separate over defense counsel’s motion. Article 35.23 states:

               The court may adjourn veniremen to any day of the term. When jurors
       have been sworn in a felony case, the court may, at its discretion, permit the jurors
       to separate until the court has given its charge to the jury. The court on its own
       motion may and on the motion of either party shall, after having given its charge
       to the jury, order that the jury not be allowed to separate, after which the jury shall
       be kept together, and not permitted to separate except to the extent of housing
       female jurors separate and apart from male jurors, until a verdict has been
       rendered or the jury finally discharged.

TEX .CODE CRIM .PROC.ANN . art. 35.23 (Vernon 2006). The defendant must either timely file a

motion to sequester or timely object to a request to separate to preserve for appeal a complaint

that the trial court deprived the defendant of the right to have the jury sequestered. Sanchez v.

State, 906 S.W.2d 176, 178 (Tex.App--Fort Worth 1995, pet. ref’d). A timely request is one

made at the earliest possible opportunity. Id. at 178, citing Gregg v. State, 881 S.W.2d 946, 950

(Tex.App.--Corpus Christi 1994, pet. ref’d); Hood v. State, 828 S.W.2d 87, 91-6 (Tex.App.--

Austin 1992, no pet.).

       Here, the defense counsel moved to sequester the jury immediately after the request to

separate for the day was made. It was the first time the separation issue arose at trial. We find

the motion to sequester was timely made. Having made a timely motion to sequester the jury

after the charge was given to the jury, the trial court was required to grant the motion. See

TEX .CODE CRIM .PROC.ANN . art. 35.23. We hold the trial court erred in failing to grant the

motion to sequester the jury.

       The error in failing to sequester a jury is a violation of a statute not a constitutional

mandate. Campbell v. State, 189 S.W.3d 822, 826 (Tex.App.--Houston [1st Dist.] 2006, no pet.).

Appellant argues that the error is reversible, but cites to cases that applied former Texas Rule of

Appellate Procedure 81(b)(2). Rule 44.2, which replaced Rule 81(b)(2) in 1997, has two harm

standards: one for constitutional errors and one for other errors. See Campbell, 189 S.W.3d at


                                                 -2-
826; TEX .R.APP .P. 44.2. Violating a statutory mandate to sequester a jury is governed by Rule

44.2(b) of the Texas Rules of Appellate Procedure. Campbell, 189 S.W.3d at 826, citing Rojas v.

State, 986 S.W.2d 241, 252 (Tex.Crim.App. 1998)(Keller, J., concurring). Any error, defect,

irregularity, or variance, other than constitutional error, that does not affect substantial rights

must be disregarded. See TEX .R.APP .P. 44.2(b).

        The record shows the trial judge stated to the jury that he “must emphatically remind”

them about the instructions not to discuss the case with anyone or listen to any comment or read

any report about the case. There is nothing in the record showing the jury did not follow the

instructions or of any other harm occurring from allowing the jurors to separate. The trial court’s

error in allowing the jury to separate during deliberations did not affect a substantial right and

was harmless error. See Campbell, 189 S.W.3d 826, citing Rojas, 986 S.W.2d at 252 (Keller, J.,

concurring); see also TEX .R.APP .P. 44.2(b). Appellant’s sole issue is overruled.

        Having overruled Appellant’s sole issue, we affirm the judgment of the trial court.




June 12, 2008
                                                DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Carr, JJ.

(Do Not Publish)




                                                  -3-
