AFFIRMED; Opinion Filed April 20, 2016.




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-15-00365-CR
                                      No. 05-15-01302-CR

                          MARK ANGELO GUAJARDO, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                     On Appeal from the 291st Judicial District Court
                                   Dallas County, Texas
                    Trial Court Cause Nos. F-1372357-U & F-1471086-U

                             MEMORANDUM OPINION
                         Before Justices Fillmore, Stoddart, and Schenck
                                   Opinion by Justice Stoddart
       Mark Angelo Guajardo was convicted of five offenses in a single proceeding. Two of

those cases, both convictions for aggravated robbery with a deadly weapon, are the subject of

this appeal. In one case, the jury sentenced Guajardo to twenty years’ incarceration and a fine; in

the other case, he was sentenced to twenty-seven years’ incarceration and a fine. The sentences

run concurrently. In two issues, Guajardo argues the trial court violated the double jeopardy

clause of the United States Constitution and the trial court erred by seating an alternate juror

without determining on the record that a seated juror was disabled. We affirm the trial court’s

judgments.

       On February 4, 2015, Guajardo appeared before the trial court. The court reviewed the

charges against him in all five cause numbers and told Guajardo that each case carried a range of
punishment between five and ninety-nine years’ incarceration or life in prison. The court also

told him that he had an “absolute right to a jury trial, and it’s my understanding that you want to

waive and give up the right to a jury trial in the guilt/innocence portion but proceed with a jury

as far as your sentence goes.” Guajardo confirmed this process was correct. Guajardo’s counsel

informed the court that appellant was pleading guilty, which Guajardo confirmed. The trial court

admitted a written judicial confession for each offense. Near the end of the proceeding, the trial

judge said:

               Mr. Guajardo, I will accept your plea in each of these cases of guilty. We
       will withhold sentencing for a slow plea on March the 2nd to a jury. So the
       evidence is sufficient to find you guilty of the offense of burglary of a habitation,
       three counts of aggravated robbery, and one count of aggravated kidnapping, and
       we’ll do sentencing to the jury on March 2nd.

       On the first day of trial, the State read the five indictments and Guajardo pleaded guilty to

each. The court’s jury charges informed the jury that Guajardo pleaded guilty and instructed the

jury to find him guilty as charged. Guajardo’s counsel did not object to the charges, and the jury

found appellant guilty on all five counts. The trial court’s judgments reflect that a jury convicted

Guajardo after he entered guilty pleas. The proceedings moved to the punishment phase and the

jury assessed punishment for each offense.

       In his first issue, Guajardo asserts the trial court erred by impaneling a jury to determine

punishment because jeopardy attached at the February hearing. He states the “district court did

not find appellant guilty but found the evidence sufficient to prove his guilt. Under Texas law,

jeopardy attached when appellant entered his plea.” Therefore, he argues, the judge should have

received evidence relevant to punishment and the “subsequent impaneling of a jury to assess his

penalty was a double jeopardy violation.” In response, the State argues Guajardo failed to

preserve the issue for appeal and, even if he had, the proceedings did not violate the double

jeopardy clause. Guajardo did not raise his double jeopardy objection at the trial court.

                                                –2–
       A double jeopardy claim may be raised for the first time on appeal if the undisputed facts

show the double-jeopardy violation is clearly apparent from the face of the record and when

enforcement of the usual rules of procedural default serves no legitimate state interest. Ex parte

Denton, 399 S.W.3d 540, 544 (Tex. Crim. App. 2013); Rowe v. State, No. 05-02-01516-CR,

2004 WL 1050693, at *1 (Tex. App.—Dallas May 11, 2004, no pet.) (not designated for

publication). A double-jeopardy claim is apparent on the face of the trial record if we can

resolve the claim without further evidentiary proceedings. See Ex parte Denton, 399 S.W.3d at

544. Because Guajardo brought a complete record on appeal, we can resolve his double-

jeopardy argument without any further evidentiary proceedings. See id.

       There are three types of double jeopardy claims: (1) a second prosecution for the same

offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3)

multiple punishments for the same offense. Id. at 545; Langs v. State, 183 S.W.3d 680, 685

(Tex. Crim. App. 2006). Guajardo asserts he was subject to a second prosecution for the same

offenses after conviction. For Guajardo to have been placed in double jeopardy at the March

proceeding, he must have been put in jeopardy at an earlier proceeding.

       To resolve Guajardo’s first issue we must determine whether jeopardy attached during

the February proceeding such that empaneling a jury in March could have subjected him to

double jeopardy. To make that determination, we must establish who, the judge or the jury,

acted as the finder of fact and had the authority to find Guajardo guilty of the offenses charged.

       In the absence of an effective jury waiver, a defendant in a felony case can only be

convicted on a jury’s verdict. The code of criminal procedure states that “No person can be

convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless the

defendant, upon entering a plea, has in open court in person waived his right of trial by jury in

writing in accordance with Articles 1.13 and 1.14.” TEX. CODE CRIM. PROC. ANN. art. 1.15; see

                                                –3–
also TEX. CODE CRIM. PROC. ANN. art. 1.13(a) (the waiver of the right of trial by jury “must be

made in person by the defendant in writing in open court with the consent and approval of the

court, and the attorney representing the state.”). A trial court in a felony case cannot serve as the

fact finder unless the procedures of article 1.13 have been satisfied. See TEX. CODE CRIM. PROC.

ANN. art. 1.13(a); see also State ex rel. Curry v. Carr, 847 S.W.2d 561, 562 (Tex. Crim. App.

1993) (per curiuam) (court lacks discretion to serve as fact finder in trial of misdemeanor case

absent consent and approval of the State to defendant’s waiver of jury trial as prescribed by

article 1.13(a)).

           In a jury trial where the jury acts as the fact finder, jeopardy attaches when the jury is

empaneled and sworn. See Pierson v. State, 426 S.W.3d 763, 769 (Tex. Crim. App. 2014) (“In

cases tried before a jury, a defendant is placed in jeopardy when the jury is empaneled and

sworn. . .”). However, in a bench trial where the judge acts as the finder of fact, jeopardy

attaches when a defendant pleads to the charging instrument and the trial court accepts the plea.

See Ortiz v. State, 933 S.W.2d 102, 105 (Tex. Crim. App. 1996); Ex parte Ueno, 971 S.W.2d

560, 562 (Tex. App.—Dallas 1998, pet. ref’d). The rational for these points of attachment is that

jeopardy does not attach until a defendant is “put to trial before the trier of fact, whether the trier

be a jury or a judge.” Ortiz, 933 S.W.2d at 105 (citing Serfass v. United States, 420 U.S. 377,

388 (1975)). Guajardo’s argument that he was subjected to double jeopardy requires that we

conclude the trial court conducted a bench trial in February and, acting as the finder of fact,

accepted his plea of guilty.

           It is uncontested that our appellate record does not include an effective jury waiver. 1

Therefore, Guajardo could only be convicted on a jury’s verdict. See TEX. CODE CRIM. PROC.



     1
       We acknowledge the judge told Guajardo in the February hearing that Guajardo had an “absolute right to a jury trial, and it’s my
understanding that you want to waive and give up the right to a jury trial in the guilt/innocence portion but proceed with a jury as far as your


                                                                     –4–
ANN. art. 1.15. This case could not have been a bench trial and the trial court could not have

acted as the fact finder because Guajardo did not waive his right to a jury in accordance with the

code of criminal procedure. See State v. Fisher, 212 S.W.3d 378, 380-82 (Tex. App.—Austin

2006, pet. ref’d) (because State did not agree to jury waiver, court lacked authority to adjudicate

defendant’s guilt). Therefore, Guajardo was not put to jeopardy at the February hearing.

          Although Guajardo argues he pleaded guilty before the trial court and the trial court

accepted his plea, he also acknowledges the trial court did not find him guilty. The trial court

lacked the authority to do so because without a valid jury waiver, only a jury had the authority to

find him guilty. And the jury did so during Guajardo’s trial in March. The trial court’s

judgments in the record support this conclusion by reflecting that a jury convicted Guajardo after

he entered guilty pleas.

          We also note that when, as here, a defendant pleads guilty to a felony and the punishment

is not absolutely fixed by law, “a jury shall be impaneled to assess the punishment and evidence

may be heard to enable them to decide thereupon. . .” unless the defendant waives his right to a

jury trial.     TEX. CODE CRIM. PROC. ANN. art. 26.14.                          “This statute makes a jury trial on

punishment the default option for a defendant who pleads guilty in a felony case.” See In re

State ex rel. Tharp, 393 S.W.3d 751, 754-55 (Tex. Crim. App. 2012).

          The punishment for each offense to which Guajardo pleaded guilty was not absolutely

fixed by law, and Guajardo did not waive his right to a jury trial. Therefore, the trial court was

required to empanel a jury to assess Guajardo’s punishment, which it did. Yet on appeal,

Guajardo argues the judge should have determined his punishment and he requests that we




sentence goes,” and Guajardo confirmed this process was correct. However, this exchange between the trial judge and Guajardo did not
effectuate a proper waiver of Guajardo’s right to a jury. See TEX. CODE CRIM. PROC. ANN. art. 1.13, 1.15.



                                                               –5–
remand these cases to the trial court for new punishment proceedings. Guajardo does not explain

how the judge could assess his punishment in the absence of a jury waiver.

       Based on this record, it is apparent that jeopardy did not attach when the trial court heard

Guajardo’s plea. Because Guajardo was not put in jeopardy in February, he did not face double

jeopardy when the proceedings resumed in March. Accordingly, we cannot conclude Guajardo

met his burden to show a double jeopardy violation is clearly apparent on the face of this record.

We overrule Guajardo’s first issue.

       In his second issue, appellant argues the trial court erred by seating an alternate juror

without determining on the record that a seated juror was disabled. Appellant asserts the trial

court failed to comply with article 33.011(b) of the code of criminal procedure. See TEX. CODE

CRIM. PROC. ANN. art. 33.011(b).       On the second day of trial, the trial court began the

proceedings by stating: “Mr. Hicks, as you can see you are now part of the jury. Welcome. Ms.

Ritchie was feeling under the weather this morning.”

       Guajardo did not object to an alternate juror being seated or to the trial court’s failure to

explain the original juror’s absence on the record beyond that she “was feeling under the weather

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

objection. See TEX. R. APP. P. 33.1(a); see generally Trinidad v. State, 312 S.W.3d 23, 29 (Tex.

Crim. App. 2010) (because appellants had an opportunity to object to the trial court’s failure to

comply with mandatory procedural requirement, but failed to object, appellants “procedurally

defaulted their statutory arguments on appeal”); Bolton v. State, No. 06-11-00268-CR, 2012 WL

5507404, at *5 (Tex. App.—Texarkana Nov. 14, 2012, pet. ref’d) (mem. op., not designated for

publication). Because appellant did not timely object, we conclude he has not preserved his

second issue for review.




                                               –6–
       Even if Guajardo had preserved his second issue, we would conclude he was not harmed.

A trial court’s error in discharging a juror involves the failure to follow a statutory scheme; it is

not of constitutional dimension. Delarosa v. State, No. 05-1 1-00313-CR, 2013 WL 1838643, at

*1 (Tex. App.—Dallas Mar. 26, 2013, no pet.) (mem. op., not designated for publication) (citing

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. APP. P. 44.2(b); see also

Delarosa, 2013 WL 1838643, at *1 (citing Sneed, 209 S.W.3d at 788; Ponce, 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. Delarosa, 2013 WL 1838643, at *1 (citing Sneed, 209

S.W.3d at 788; Ponce, 68 S.W.3d at 722).

       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 on the second day of the proceedings

and 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 the juror who was “under the

weather,” appellant 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 Guajardo was not harmed by the trial judge’s alleged error because it did not affect




                                                –7–
his substantial rights. See TEX. R. APP. P. 44.2(b); Delarosa, 2013 WL 1838643, at *1 (citing

Sneed, 209 S.W.3d at 788; Ponce, 68 S.W.3d at 722). We overrule appellant’s second issue.

       We affirm the trial court’s judgments.



                                                      /Craig Stoddart/
                                                      CRAIG STODDART
                                                      JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
150365F.U05




                                                –8–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

MARK ANGELO GUAJARDO, Appellant                        On Appeal from the 291st Judicial District
                                                       Court, Dallas County, Texas
No. 05-15-00365-CR         V.                          Trial Court Cause No. F-1372357-U.
                                                       Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee                           Justices Fillmore and Schenck participating.

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


Judgment entered this 20th day of April, 2016.




                                                 –9–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

MARK ANGELO GUAJARDO, Appellant                     On Appeal from the 291st Judicial District
                                                    Court, Dallas County, Texas
No. 05-15-01302-CR         V.                       Trial Court Cause No. F-1471086-U.
                                                    Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee                        Justices Fillmore and Schenck participating.

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


Judgment entered this 20th day of April, 2016.




                                             –10–
