
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



ON MOTION FOR REHEARING



NO. 03-09-00371-CR


Adam Lee Castillo, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
NO. D-1-DC-07-204001, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING


O P I N I O N

		We withdraw our opinion and judgment dated August 13, 2010, and substitute the
following in its place.  We overrule Castillo's motion for rehearing.
		A jury convicted appellant Adam Lee Castillo of the offense of capital murder. 
See Tex. Penal Code Ann. § 19.03(a)(7)(A) (West Supp. 2009).  Punishment was assessed at
life imprisonment.  In a single point of error, Castillo asserts that the district court erred by
permitting alternate jurors to be present during deliberations.  We will affirm the judgment.

BACKGROUND
		Castillo was charged with murdering two individuals and brought to trial.  At the
conclusion of voir dire, twelve jurors were selected, plus two alternates.  The trial then began.  After
closing arguments, the jury, plus the two alternates, retired to deliberate.  At some point either prior
to or during deliberations, the jury had been given a supplemental instruction regarding the conduct
of the alternates.  The instruction stated:

LADIES AND GENTLEMEN OF THE JURY:

Your jury includes two alternate jurors.  In order of selection, they are jurors: [names
of alternate jurors].

The law requires that the alternate jurors remain through the entirety of the
trial process.  In this vein, the alternates cannot be selected as foreperson of the jury
and cannot actively participate in deliberations until they are used as a replacement
for a regular juror.  The alternates must attentively listen to all deliberations, as it is
always uncertain if and when we might need to utilize them in the process until the
trial is concluded.  Alternates serve quite a valuable purpose, and without them, much
time and dollars would be spent in the re-trial of cases.  Thus, our legislature has
enacted this provision providing for the above process for alternate jurors. (1) 


At some point after the jury had retired to deliberate, defense counsel approached the bench and
objected to the supplemental instruction and the presence of the alternate jurors in the jury room. (2) 
Counsel argued that the presence of the alternates in the jury room violated article 33.01 of the
code of criminal procedure, which provides that a jury in the district court "shall consist of
twelve qualified jurors," see Tex. Code Crim. Proc. Ann. art. 33.01 (West 2006), and article 36.22,
which provides, "No person shall be permitted to be with a jury while it is deliberating," see id.
art. 36.22 (West 2006).  Counsel also lodged a generic due process complaint.
		In response, the State argued that article 33.011 of the code of criminal procedure
required the alternates to be present and that article 36.22 was not referring to alternate jurors.  In
the State's view, "it would not seem to make too much sense that alternate jurors sit outside
and miss the deliberations.  In case something happens to one person, they have to come in and
everything starts fresh."  The State then asked to "go off record for one moment."
		Following an off-the-record discussion and a recess, defense counsel amended his
objection to include article 5, section 13 of the Texas Constitution, which requires that "juries in the
District Courts shall be composed of twelve persons."  See Tex. Const. art. V, § 13.  The State, after
acknowledging that a recent case out of the San Antonio Court of Appeals supported Castillo's
position, (3) maintained, "We're satisfied at this point with what has gone on, both from a statutory and
a constitutional basis . . . .  We will probably ask the Court as an additional potential safeguard just
to have them not communicate, not only in deliberations, but just not to anything at all."
		The district court acknowledged that article 33.011 required the alternate jurors "to
stay" until a verdict is reached, and proceeded to read into the record the supplemental instruction
that it had previously given to the jury.  After reading the instruction, the district court noted, "And
then I have signed and dated it and sent it to each individual juror as well as the alternates."  The
district court added,

In addition, I think what I'm going to do is call all of them, they've only been back
in the jury room for 30 minutes.  I'm going to call them in with everybody present
and instruct them orally as to their discussions and what they can and cannot say
while they are in the jury room as alternates and make them understand that they
cannot talk about anything having to do with Mr. Castillo's case until they become
an actual juror in the case.  And that will hopefully alleviate any misunderstanding
that they may have about their role as an alternate.


Once the members of the jury and the alternates returned to the courtroom, the district court orally
instructed them:

Ladies and gentlemen of the jury, excuse me for interrupting your deliberations, but
I wanted to place some emphasis on the instruction that I had earlier given you
regarding the jury alternates.

It's very important that the alternates not actively speak and participate in the
deliberations regarding the case at this point.  They will only be able to talk about any
of the evidence or any of the facts and circumstances surrounding this offense and
this case if and when they become jurors in the case.  However, it is just as important
that they be able to sit there and listen so, if needed, they will be aware of everything
that has taken place as far as what you have done in this case.  But it is critical that
they not speak in this regard.

I wanted to personally bring each of you out here so that you will all know that and
for the security of the case in the future to let you know how important that is that the
alternates not participate until called upon to be a regular juror.  Do each of you
understand?


The record reflects that the jury members replied, "Yes."  The district court then concluded,
"Thank you.  You can go back and continue your deliberations." The jury then retired to resume
deliberations.  Defense counsel never objected to the district court's oral instruction.
		Later, the jury returned its verdict of guilty.  Defense counsel requested that the jury
be polled, and each of the twelve individual members of the jury affirmed that the verdict represented
his or her individual verdict in the case.  Immediately thereafter, Castillo was assessed a mandatory
sentence of life imprisonment.  The jury was then excused.  This appeal followed.

ANALYSIS
		In his sole point of error, Castillo carries forward the arguments he made at trial,
namely that the presence of the two alternates in the jury room violated his constitutional and
statutory rights to have a jury composed of no more than twelve jurors and the statutory prohibition
against outside influence.  While acknowledging the district court's instructions to the jury that the
alternates not participate in the deliberations, Castillo claims--for the first time on appeal--that
the district court's instructions were insufficient.  According to Castillo, prejudice should be
presumed from the alternates' presence in the jury room during deliberations, and, in his view, it was
incumbent upon the State to make an offer of proof demonstrating that the alternates did not
participate in deliberations.  As no such offer of proof was made in this case, Castillo asserts, harm
should be presumed and the cause reversed for a new trial.
		In response, the State makes three arguments.  First, the State contends that Castillo
failed to preserve error by not objecting until after deliberations had begun.  Second, the State
asserts that there was no constitutional or statutory error in allowing the alternates to be present in
the jury room during deliberations.  Finally, the State argues that any error was harmless because of
the district court's instructions to the jury regarding the alternates and that Castillo failed to show
that the jury conversed with the alternates in violation of the court's instructions.
		This case concerns the 2007 amendment to article 33.011(b) of the code of criminal
procedure.  Prior to September 1, 2007, article 33.011(b) required alternate jurors to be discharged
"after the jury retires to consider its verdict."  See Act of May 30, 1983, 68th Leg., R.S., ch. 775, § 2,
1983 Tex. Gen. Laws 4593, 4594 (amended 2007) (current version at Tex. Code Crim. Proc. Ann.
art. 33.011(b)).  However, as the statute is currently written, alternate jurors "shall be discharged
after the jury has rendered a verdict on the guilt or innocence of the defendant and, if applicable, the
amount of punishment."  Tex. Code Crim. Proc. Ann. art. 33.011(b) (West Supp. 2009).  The statute
does not address what trial courts should do with alternate jurors during deliberations but prior to
the jury rendering its verdict--sequester them until such time as their services might be needed, or
allow them to be present in the jury room during deliberations even if their services are not needed. 
The district court in this case chose the latter option.
		In two opinions decided in 2008, the San Antonio Court of Appeals took issue
with the practice of permitting alternate jurors to be present during deliberations.  See Adams
v. State, 275 S.W.3d 61 (Tex. App.--San Antonio 2008), rev'd, 312 S.W.3d 23 (Tex. Crim. App.
2010); Trinidad v. State, 275 S.W.3d 52 (Tex. App.--San Antonio 2008), rev'd, 312 S.W.3d 23
(Tex. Crim. App. 2010).  In these opinions, the court held that the practice violates either the
constitutional prohibition against more than twelve jurors deliberating, or, if the alternate is not
considered a juror, article 36.22's prohibition against outside influence.  See Adams, 275 S.W.3d.
at 67; Trinidad, 275 S.W.3d at 60.  Additionally, in each opinion, the court held that the right to a
twelve-member jury is a "waivable-only right" and that the defendant is not required to comply with
rule 33.1 in order to preserve error on appeal.  See Adams, 275 S.W.3d at 65; Trinidad, 275 S.W.3d
at 58.  Castillo cites to both of these opinions in his brief.
		After this case was briefed by the parties, the court of criminal appeals reversed
both Adams and Trinidad.  See Trinidad v. State, 312 S.W.3d 23 (Tex. Crim. App. 2010).  The court
held that allowing the alternate jurors to be present in the jury room during deliberations did not
violate the constitutional prohibition against deliberation by more than twelve jurors.  See id. at 28.
The court declined to address the merits of the alleged violation of article 36.22, but held that any
complaint about a statutory violation was forfeited by the appellants' failure to invoke the statute in
a timely manner.  See id. at 24.
		With the above considerations in mind, we turn to the case before us.  We first
address the State's contention that Castillo failed to preserve error.  As a prerequisite to presenting
a complaint for appellate review, the record must show that the complaint was made to the trial court
by a timely and specific request, objection, or motion.  See Tex. R. App. P. 33.1.  Here, the record
shows that, when Castillo objected, he cited to the specific constitutional and statutory provisions
that he claimed were being violated by allowing the alternate jurors to be present during
deliberations.  However, regarding his objection to the supplemental instruction, Castillo never
indicated why he believed the instruction was erroneous.  He complains on appeal that "neither the
written or verbal instruction included an admonition to recommence deliberation or disregard any
possible statements made by the outside alternate jurors," but this complaint was never made to the
district court.  Nor did Castillo raise any objection to the court's subsequent oral instruction to the
jury. (4)  Additionally, to the extent Castillo is alleging a violation of article 36.22, he is essentially
arguing juror misconduct.  See Ocon v. State, 284 S.W.3d 880, 885 (Tex. Crim. App. 2009)
(characterizing violation of article 36.22 as complaint of juror misconduct); Hughes v. State,
24 S.W.3d 833, 842 (Tex. Crim. App. 2000) (same).  To preserve error caused by juror misconduct,
the defendant must either move for a mistrial or file a motion for new trial supported by affidavits
of a juror or other person in a position to know the facts alleging misconduct.  See Trout v. State,
702 S.W.2d 618, 620 (Tex. Crim. App. 1985); Menard v. State, 193 S.W.3d 55, 59
(Tex. App.--Houston [1st Dist.] 2006, pet. ref'd).  Castillo did neither. (5)
		However, even assuming Castillo had preserved error, we could not conclude on this
record that Castillo was entitled to reversal and a new trial.  The court of criminal appeals has held
that the presence of alternate jurors in the jury room does not violate article 5, section 13 of the
Texas Constitution.  Trinidad, 312 S.W.3d at 28.  There is no error, according to the court, so long
as the alternate jurors are not "allowed to vote on the ultimate verdict in the case, at either stage of
trial."  Id.  The court explained,

As long as only the twelve regular jurors voted on the verdicts that the appellants
received, it cannot be said that they were judged by a jury of more than the
constitutionally requisite number. That the alternate jurors were present in the jury
rooms during deliberations, and may even have participated in all but the voting, does
not mean that the jury was "composed" of more than twelve members for purposes
of Article V, Section 13. 


Id.  In this case, there is no indication in the record that the alternate jurors voted on the verdict.
Thus, we cannot conclude on this record that there was a constitutional violation.  For the same
reason, we cannot conclude that there was a violation of article 33.01(a) of the code of criminal
procedure, the statute that codifies the constitutional requirement of no more than twelve jurors.  See
id. at 29 n.22 ("Article 33.01(a) was not violated any more than Article V, Section 13 was.  Because
only twelve regular jurors ultimately voted on the appellants' verdicts, their juries did 'consist' of
twelve jurors for purposes of the statute.").  Nor can we agree with Castillo's contention  that the
procedure for replacing regular jurors with alternate jurors as specified in article 33.011(b) was
violated.  See Tex. Code Crim. Proc. Ann. art. 33.011(b) ("Alternate jurors in the order in which they
are called shall replace jurors who, prior to the time the jury renders a verdict . . . become or are
found to be unable or disqualified to perform their duties . . . .").  There is no indication in the record
that the alternate jurors improperly took the place of the regular jurors during deliberations.
		Thus, all that remains is the issue left unresolved by the court of criminal
appeals--whether the practice of allowing alternate jurors in the jury room violates the requirement
in article 36.22 that "[n]o person shall be permitted to be with a jury while it is deliberating."
However, we need not address that question today.  Even if the district court's practice violated
the statute, we could not conclude on this record that Castillo was harmed by the violation.  As the
court of criminal appeals noted in Trinidad, harm from statutory error is governed by rule of
appellate procedure 44.2(b).  See Trinidad, 312 S.W.3d at 27 & n.15.  Thus, unless the error affected
Castillo's substantial rights, it must be disregarded.  See Tex. R. App. P. 44.2(b).  A substantial right
is affected when the error had a substantial and injurious effect or influence in determining the jury's
verdict.  King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997).
		Here, the district court instructed the jury in writing who the alternates were and
informed the jury that "the alternates cannot be selected as foreperson of the jury and cannot actively
participate in deliberations until they are used as a replacement for a regular juror."  Then, after the
jury had been deliberating for approximately thirty minutes, the district court decided to call the jury
back into the courtroom and "place some emphasis on the instruction that I had earlier given you
regarding the jury alternates."  The district court then orally instructed the jury: 

It's very important that the alternates not actively speak and participate in the
deliberations regarding the case at this point.  They will only be able to talk about any
of the evidence or any of the facts and circumstances surrounding this offense and
this case if and when they become jurors in the case.  However, it is just as important
that they be able to sit there and listen so, if needed, they will be aware of everything
that has taken place as far as what you have done in this case.  But it is critical that
they not speak in this regard.

I wanted to personally bring each of you out here so that you will all know that and
for the security of the case in the future to let you know how important that is that the
alternates not participate until called upon to be a regular juror. . . .


We find no error in the district court's instructions, and there is no indication in the record that the
jury or the alternates disregarded the instructions in any manner.  To the contrary, when asked if they
understood the court's instructions, the jury members replied, "Yes."
		Castillo claims that because the alternate jurors were present in the jury room,
harm should be presumed and that the State has the burden to rebut the presumption of harm.  We
disagree.  A similar issue was previously addressed by this Court in Klapesky v. State, 256 S.W.3d
442 (Tex. App.--Austin 2008, pet. ref'd), a case cited by Castillo.  In that case (involving a trial that
had occurred prior to the 2007 amendment to article 33.011(b)), the trial court selected two alternate
jurors but explained that the alternate jurors would be excused at the beginning of deliberations
if they were not needed.  Id. at 451-52.  At the beginning of deliberations, however, the trial court
forgot to discharge the alternates and they proceeded to the jury room.  Id. at 452.  Approximately
five minutes later, the trial court returned the jury to the courtroom, discharged the alternates,
instructed the jury to disregard anything said in the presence of the alternate jurors and to begin
deliberations, and asked the jury if deliberations had commenced.  Id.  The jury replied that they had
not.  Id.  On appeal, the appellant claimed that the presence of the alternate jurors in the jury room
violated article 36.22.
		In overruling the appellant's point of error, this Court explained that harm to the
accused is presumed when a juror converses with an unauthorized person about the case and that,
if the presumption of harm arises, the State has the burden to rebut the presumption by showing
no injury or prejudice to the accused.  Id.  "However," this Court added, "the defendant has the initial
burden to show that a conversation about the case on trial occurred between a juror and an
unauthorized person.  The defendant's burden is not satisfied if there is no showing what a reported
conversation was about."  Id. (internal citations omitted).  In that case, "there [was] no showing of
any conversation about the case between the two alternate jurors and the regular jurors during the
time period involved."  Id.  Similarly, in this case, Castillo made no showing that the alternate jurors
conversed with the regular jurors regarding the case in violation of the district court's instructions.
Thus, Castillo failed to meet his initial burden.
		The other cases cited by Castillo are distinguishable.  In Quinn v. State, 958 S.W.2d
395 (Tex. Crim. App. 1997), Alba v. State, 905 S.W.2d 581 (Tex. Crim. App. 1995), and Green
v. State, 840 S.W.2d 394 (Tex. Crim. App. 1992), the defendant first presented evidence that jurors
had actual conversations and contact with outside influences (none of whom were alternate jurors). 
In each case, the State was required to rebut the presumption of harm.  In this case, in contrast,
the defendant presented no evidence that the alternate jurors conversed with the regular jurors.  Thus,
the presumption of harm does not arise here.  Similarly, in Rojas v. State, 171 S.W.3d 442
(Tex. App.--Houston [14th Dist.] 2005, pet. ref'd), a case decided prior to the 2007 amendment to
article 33.011(b), there was evidence presented that an alternate juror may have asked at the
beginning of deliberations "whether anyone wanted to volunteer" to be foreperson, and the State was
required to rebut the presumption of harm.  Id. at 450 & n.1.  Again, in this case, Castillo made no
showing of a conversation involving the alternate jurors.
		In his motion for rehearing, Castillo suggests that requiring the appellant to obtain
information from jurors regarding whether the alternates participated in deliberations violates the
prohibition against inquiring into jurors' "mental processes" during deliberations. (6) See Tex. R. Evid.
606(b).  However, the rule expressly allows jurors to testify regarding "whether any outside influence
was improperly brought to bear upon any juror."  See id.  Moreover, the court of criminal appeals
has recognized the questioning of jurors as a permissible method to inquire into potential
article 36.22 violations and that the party alleging such a violation, "not the State nor the court,
should initiate juror questioning."  See Ocon, 284 S.W.3d at 885-87.  Because Castillo failed to do
so, we cannot conclude on this record that the district court's procedure had a substantial and
injurious effect or influence in determining the jury's verdict.
		We overrule Castillo's sole point of error.




CONCLUSION
 	We affirm the judgment of the district court.


						__________________________________________
						Bob Pemberton, Justice
Before Chief Justice Jones, Justices Pemberton and Waldrop
Affirmed on Motion for Rehearing
Filed:   September 10, 2010
Publish




 

1.   The instruction is referring to article 33.011(b) of the code of criminal procedure.  See
Tex. Code Crim. Proc. Ann. art. 33.011(b) (West Supp. 2009). 
2.   It is unclear from the record exactly when during deliberations the objection was made. 
The record reflects that the following occurred after closing arguments:

The Court: 		You may retire to the jury room.

(Jury deliberations)

(Open court, no defendant, no jury)

(At the Bench, on the record)





[Defense counsel]:	Your Honor, I understand the Court is sending back an
instruction regarding alternate jurors which allows the
alternate jurors to remain in the jury room but not participate
in the deliberations until they replace an active juror.  We
would object to sending that order back and object to their
presence in the jury room . . . .

The record does not reflect how long the jury had been deliberating when counsel approached
the bench, although a later comment by the district court suggests that it was no more than
approximately thirty minutes after the jury had retired.
3.   See Trinidad v. State, 275 S.W.3d 52, 61 (Tex. App.--San Antonio 2008), rev'd,
312 S.W.3d 23 (Tex. Crim. App. 2010).
4.   In his motion for rehearing, Castillo asserts that he "objected to any instructions" regarding
alternate jurors.  On the contrary, the record reflects that Castillo objected only to the district court's
written instruction, and even then, he did not ask the district court to include in the written
instruction an admonition to recommence deliberation or disregard any possible statements made
by the outside alternate jurors.
5.   While Castillo did file an amended motion for new trial, he did not include in the motion
the complaints he now raises on appeal, much less affidavits from the jurors or alternate jurors who
were in a position to know if the facts alleging a violation of article 36.22 had occurred.
6.   Castillo also asserts in his motion for rehearing that requiring such a procedure is
"impractical."  Castillo's counsel cites to no authority on this point, other than his "personal
experience that jurors generally do not want to talk about their service."  However, jurors may be
questioned during trial about alleged article 36.22 violations, thus alleviating the need to depose or
subpoena jurors after they have been excused from service.  In this case, when the district court
brought the jury into the courtroom during a break in deliberations and orally instructed the jurors
that the alternates should not participate in deliberations, Castillo could have requested permission
from the district court to question the jurors about whether the alternates had already participated in
deliberations contrary to the district court's instructions.  Castillo did not do so.
