            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
              NOS. PD-1218-08, PD-1219-08, PD-1220-08 & PD-1221-08



              FRANK TRINIDAD & JOHNNY ADAMS, JR., Appellants

                                                 v.

                                 THE STATE OF TEXAS



           ON STATE’S PETITIONS FOR DISCRETIONARY REVIEW
                 FROM THE FOURTH COURT OF APPEALS
                    ATASCOSA & WILSON COUNTIES

      P RICE, J., delivered the opinion of the court in which K ELLER, P.J., and M EYERS,
W OMACK, K EASLER, HERVEY, H OLCOMB and C OCHRAN, JJ., joined. J OHNSON, J., filed
a concurring opinion.

                                       OPINION

       In 2007, the Texas Legislature amended Article 33.011(b) of the Code of Criminal

Procedure.1 According to the amendment, an alternate juror in a criminal case tried in the

district court, if not called upon to replace a regular juror, shall no longer be discharged at


       1

       TEX . CODE CRIM . PROC. art. 33.011(b).
                                                                               Trinidad & Adams — 2


the time that the jury retires to deliberate, but shall now be discharged after the jury has

rendered a verdict.2 Unfortunately, the amended statute does not indicate whether the

alternate juror should be allowed to be present for, and to participate in, the jury’s

deliberations or, instead, whether he should be sequestered from the regular jury during its

deliberations until such time as the alternate’s services might be required by the disability of

a regular juror. In the instant cases, the trial court opted for the former contingency.3 The

court of appeals held in each case that, in doing so, the trial court violated the constitutional

requirement of a jury composed of twelve persons, or, alternatively, that the trial court

violated the statutory prohibition against permitting any person not a juror into the jury

deliberation room.4       We granted the State’s petitions for discretionary review, and

        2

         Prior to the amendment, Article 33.011(b) provided that “[a]n alternate juror who does not
replace a regular juror shall be discharged after the jury retires to consider its verdict.” The 2007
amendment altered the provision so that it now reads: “An alternate juror who does not replace a
regular juror 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.” Acts 2007, 80th Leg., ch. 846, p. 1774, §
1, eff. Sept. 1, 2007. See also TEX . CODE CRIM . PROC. art. 36.29(d), as also amended by Acts 2007,
80th Leg., ch. 846, p. 1774, § 2, eff. Sept. 1, 2007 (“After the jury has rendered a verdict on the guilt
or innocence of the defendant, and, if applicable, the amount of punishment, the courts shall
discharge an alternate juror who has not replaced a juror.”).
        3

        The appellants were tried approximately one month apart in adjacent counties but by the
same trial judge. Both trials commenced shortly after the effective date of the amendments to
Articles 33.011(b) and 36.29(d).
        4

         Trinidad v. State, 275 S.W.3d 52, 60 (Tex. App.—San Antonio 2008) (“We conclude that
the Texas Constitution precludes the deliberation of more than twelve jurors. TEX . CONST . art. V,
§ 13. If the alternate is not considered a juror, then the participation of the alternate in deliberations
violates article 36.22's prohibition against outside influence. TEX . CODE CRIM . PROC. ANN . art.
36.22 (Vernon 2006).”); Adams v. State, 275 S.W.3d 61, 67 (Tex. App.—San Antonio 2008)
                                                                          Trinidad & Adams — 3


consolidated the cases, in order to address the State’s contentions that the court of appeals

erred to hold (1) that the appellants did not forfeit any complaint on appeal by failing to

object when the jury retired to deliberate, and (2) that the alternate jurors’ participation in

deliberations violated either the constitution or the statute. We now hold that there was no

constitutional violation and that any complaint about a statutory violation was forfeited by

the appellants’ failure to invoke the statute in a timely manner. We therefore reverse the

judgments of the court of appeals and reinstate the judgments of the trial courts.

                          FACTS AND PROCEDURAL POSTURE

                                             Trinidad

          Trinidad was convicted of murder and the jury assessed his punishment at a life

sentence. At the conclusion of the presentation of evidence at the guilt phase of trial, but

before the jury charge was read and the parties presented closing argument, the trial judge

gave the following instruction in open court in the presence of the jury:5

          Let me make explanation before I begin reading the charge of the Court to Ms.
          Coward who is the alternate juror. We’ve recently had a change in the law
          prior to September 1 st. The alternate juror is excused at this point in time but
          there’s been a change in the law so now you will actually go into the jury room
          and be part of the deliberation process and only thing that you will not do is,
          you will not vote with the jury. If anyone of the jury members were to become
          disabled during deliberation process then you would step in and serve and vote
          at that time but at this time we have twelve and you do not vote.


(same).
          5

       The court of appeals mistakenly asserted that this instruction came after the closing
arguments. Trinidad, supra, at 56.
                                                                          Trinidad & Adams — 4


Trinidad made no objection on the record to the trial court’s permitting the alternate juror to

“be part of the deliberation process[,]” either at this point in time or at any other. Thus, as

far as the record reveals, alternate juror Coward retired with the jury at the guilt phase of its

deliberations and was at least present during all the jury’s deliberations, and Trinidad

interposed no legal complaint of any character.

                                             Adams

       In a consolidated trial, Adams was convicted of three instances of aggravated sexual

assault and sentenced by the jury to concurrent twenty-five-year prison terms.6 At the close

of evidence at the guilt phase of trial, just before the trial court read the charge to the jury,

the trial court announced in open court in the jury’s presence:

       Ms. Hurt, as the alternate juror prior to September 1 st your duties would have
       been complete but we’ve had a change in the law that took effect beginning
       after September 1 st that says you are to continue with the jury until a verdict is
       reached. So you will go with the twelve members of the jury into the jury
       room for the deliberations but you will not be voting on the verdict unless one
       of the jurors were to become disabled during the deliberations.

Adams failed to object to this instruction on the record, and alternate juror Hurt was

apparently present during both the guilt phase and the punishment phase of the jury’s

deliberations.


       6

         The court of appeals’s assertion that Adams was “indicted on three counts” of aggravated
sexual assault gives the inaccurate impression that the charges were contained as separate counts of
a single indictment. Adams, supra, at 63. In fact, the record reveals that the grand jury indicted
Adams separately for each of three instances of aggravated sexual assault allegedly perpetrated on
the same day but against three different victims.
                                                                                Trinidad & Adams — 5


                                               On Appeal

        On appeal, both appellants argued that, in allowing the alternate jurors to be present

during jury deliberations, the trial court violated Article V, Section 13 of the Texas

Constitution,7 and Articles 33.01, 33.011, 36.22, and 36.29 of the Code of Criminal

Procedure.8 The State countered that the appellants procedurally defaulted these claims by

failing to assert them at trial. Even if the appellants did not forfeit them, the State further

asserted, the claims have no merit because the trial court properly and constitutionally

implemented the amendment to Article 33.011(b).

        The court of appeals reversed both convictions.9 With respect to the forfeiture issue,

the court of appeals held that Article V, Section 13’s guarantee of a twelve-member jury is

a “waiver-only” right, under the rubric of Marin v. State.10 While such a right can be


        7

       TEX . CONST . art. V, § 13 (“ . . . petit juries in the District Court shall be composed of twelve
persons[.]”).
        8

        TEX . CODE CRIM . PROC. arts. 33.01 (“ . . . in the district court, the jury shall consist of twelve
qualified jurors.”), 33.011(b) (“Alternate jurors . . . shall replace jurors who, prior to the time the jury
renders a verdict on the guilt or innocence of the defendant, and, if applicable, the amount of
punishment, become or are found to be unable or disqualified to perform their duties or are found
by the on agreement of the parties to have good cause for not performing their services.”), 36.22
(“No person shall be permitted to be with a jury while it is deliberating.”), and 36.29(a) (“Not less
than twelve jurors can render and return a verdict in a felony case” unless a regular juror dies or
becomes disabled, in which case “the remainder of the jury shall have the power to render the
verdict[.]”).
        9

        Trinidad, supra, at 61; Adams, supra, at 68.
        10

        851 S.W.2d 275, 280 (Tex. Crim. App. 1993).
                                                                         Trinidad & Adams — 6


affirmatively waived, it can never be forfeited by inaction. Because the appellants did not

affirmatively waive the right to a twelve-member jury, the court of appeals concluded, it

could reach the merits of their claims though raised for the first time on appeal.11 On the

merits, the court of appeals concluded that allowing the alternate jurors to participate in

deliberations violated Article V, Section 13,12 and that this constitutional error was not

harmless beyond a reasonable doubt.13

       Alternatively, the court of appeals seems to have held that, even if the alternate juror

in each case should not be considered an extra juror in violation of Article V, Section 13, the

alternate jurors constituted “an outside influence” in contemplation of Article 36.22’s

prohibition against non-jurors in the jury room during deliberations.14 With respect to this

alternative, statutorily based holding, the court of appeals did not ask whether this claim also

invokes an absolute prohibition or a waiver-only right under the Marin rubric, such that it

was appropriate for the court of appeals to address it on the merits. Nor did the court of

appeals undertake an analysis of whether its alternative, statutory basis for finding that the

trial court erred was harmful under the standard that governs the reversibility of statutory

       11

        Trinidad, supra, at 58; Adams, supra, at 65.
       12

        Trinidad, supra, at 60; Adams, supra, at 67.
       13

       Trinidad, supra, at 60-1 (applying TEX . R. APP . P. 44.2(a)); Adams, supra, at 67-8 (same).
       14

        Trinidad, supra, at 60; Adams, supra, at 67. See TEX . CODE CRIM . PROC. art. 36.22 (“No
person shall be permitted to be with a jury while it is deliberating.”).
                                                                                Trinidad & Adams — 7


error.15

                                           ARTICLE V, § 13

           From its inception in the Texas Constitution of 1876, Article V, Section 13, has

plainly required that “petit juries in the District Court shall be composed of twelve”

members.16 Trial by jury in a felony case in Texas has long been thought to mean a verdict

returned by exactly twelve jurors—no more and (unless up to three jurors should die or

become disabled, subject to statutory regulation) no fewer. At least at the beginning, a

felony conviction premised upon the verdict of a jury comprised of any number but twelve

(at least where none of the twelve has died or become disabled during the course of the trial)

was considered to be error of a fundamental nature in Texas, which could be vindicated even

when raised for the first time on appeal.17 Soon after we decided Marin, we reiterated that

           15

           TEX . R. APP . P. 44.2(b).
           16

         TEX . CONST . art. V, § 13. This provision has always also provided that a petit jury,
originally composed of twelve members, may render a verdict with fewer than the original twelve,
subject to legislative regulation, “[w]hen, pending the trial of any case, one or more jurors not
exceeding three, may die, or be disabled[.]” Id. In 2001, it was amended to read “twelve persons”
in place of the original “twelve men.” Acts 2001, 77th Leg., H.J.R. 75, § 2.09, adopted Nov. 6, 2001.
           17

           For example, in Ogle v. State, 43 Tex. Crim. 219, 63 S.W. 1009 (1901), we observed:

           With respect to petit juries it is well settled that it must consist of the exact number
           prescribed by the constitution. In Stell v. State, 14 Tex. App. 59 [(1883)], it is said:
           ‘The record must show that the jury was a legal one, and if it does not the error is a
           radical one, which will be considered on appeal, whether properly availed of in the
           court below, or not, because “due course of the law of the land” demands a legal
           conviction by a legal jury.’
                                                                               Trinidad & Adams — 8


Article V, Section 13’s requirement of a jury composed of twelve members “has been held

to be non-waivable even with the consent of the State and the defendant.” 18 But two years

later, in Hatch v. State,19 we revisited the issue and overruled Hernandez, essentially holding

that, because the right to a jury trial is itself subject to express waiver, both constitutionally

and statutorily,20 a defendant may also waive his statutory right, under Article 36.29(a) of the


Id., Tex. Crim. at 230, S.W. at 1011. See Lott v. State, 18 Tex. App. 627, 629-30 (1884) (also
quoting Stell to the effect that a petit jury of fewer than twelve constitutes error that can be raised
for the first time on appeal); see also Rich v. State, 1 Tex. App. 458, 464 (1876) (petit jury
consisting of fewer than constitutionally required number presents unassigned reversible error even
in the absence of a trial objection); Huebner v. State, 3 Tex. App. 206, 210 (1878) (same); Marks
v. State, 10 Tex. App. 334 (1881) (same); Jester v. State, 26 Tex. App. 369, 9 S.W. 616-7 (1888)
(same); Jones v. State, 52 Tex. Crim. 303, 305-7, 106 S.W. 345, 347 (1907) (opinion on reh’g) (trial
by a jury of fewer than twelve members could be challenged for the first time on rehearing in this
Court); Dunn v. State, 88 Tex. Crim 21, 22, 224 S.W. 893 (1920) (defendant cannot even consent
to be tried by a jury of fewer than twelve); Clark v. State, 276 S.W.2d 819, 820 (Tex. Crim. App.
1955) (same).
        18

       Ex parte Hernandez, 906 S.W.2d 931, 932 (Tex. Crim. App. 1995). In Marin we had
observed:

        Finally, absolute requirements and prohibitions, like rights which are waivable only,
        are to be observed even without partisan request. But unlike waivable rights, they
        can’t lawfully be avoided even with partisan consent. Accordingly, any party entitled
        to appeal is authorized to complain that an absolute requirement or prohibition was
        violated, and the merits of his complaint on appeal are not affected by the existence
        of a waiver or a forfeiture at trial.

851 S.W.2d at 280.
        19

        958 S.W.2d 813 (Tex. Crim. App. 1997).
        20

         The logic of Hatch runs essentially as follows: Article I, Section 15 of the Texas
Constitution ensures that the right to jury trial “shall remain inviolate.” TEX . CONST . art. I, § 15.
But that same provision requires the Legislature to “pass such laws as may be needed to regulate the
same[.]” Id. Pursuant to this constitutional authority to regulate the right to trial by jury, in the 1965
                                                                             Trinidad & Adams — 9


Code of Criminal Procedure, to a jury verdict rendered by a jury composed of twelve

members.21 The court of appeals found in these cases that the constitutional requirement of

a jury composed of exactly twelve members is a waiver-only provision in contemplation of

Marin, which a defendant must expressly waive in the trial court before it can be said that

he has lost it for appeal.

        But we need not resolve that question today. Assuming that the court of appeals was

correct to address the merits of the appellants’ constitutional complaints, we hold that it erred

to conclude that the appellants suffered the verdict of a jury of more than twelve members

in violation of Article V, Section 13. In neither of the appellants’ cases was the alternate

juror allowed to vote on the ultimate verdict in the case, at either stage of trial. As long as

only the twelve regular jurors voted on the verdicts that the appellants received, it cannot be



Code of Criminal Procedure, the Legislature for the first time provided by statute that a felony
defendant could waive his right to a jury trial even when he intended to plead not guilty. Acts 1965,
59th Leg., ch. 722, p. 322, eff. Jan. 1, 1966. If a defendant who pleads not guilty in a felony case can
constitutionally waive his right to a jury trial altogether, see McMillan v. State, 122 Tex. Crim. 583,
585, 57 S.W.2d 125 (1933) (Article I, Section 15 authorizes Legislature to provide for waiver of jury
trial: “[T]he Legislature is without power to deny the right of trial by jury, but is not without power
to provide for the waiving of such right.”), then he should also be able to waive his right to a jury
that consists of the exact constitutional complement of twelve, cf. Mackey v. State, 68 Tex. Crim.
539, 540, 151 S.W. 802, 803 (1912) (“Our statute provides that an appellant in a misdemeanor case
can waive a jury altogether. This would carry with it the further right to agree to a trial by a jury
composed of less than six men.”), notwithstanding Article V, Section 13 and Article 33.01 of the
Code of Criminal Procedure.
       21

        Id. at 815. See also Roberts v. State, 957 S.W.2d 80, 81 (Tex. Crim. App. 1997) (remanding
for reconsideration in light of Hatch where court of appeals held that requirement of jury composed
of twelve members could not be waived); Harrell v. State, 980 S.W.2d 661 (Tex. Crim. App. 1998)
(requirement of jury composed of twelve members can be, and was, expressly waived).
                                                                               Trinidad & Adams — 10


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 13.22 The error in these cases, if any,23

in allowing the alternates to be present with the regular jurors during their deliberations is

more usefully conceived of as an error in allowing an outside influence to be brought to bear

on the appellants’ constitutionally composed twelve-member juries. As the court of appeals

recognized, such error, if any, would be controlled by Article 36.22, which is the statute that

expressly prohibits any outside “person” from being “with a jury while it is deliberating.” 24


        22

         The court of appeals did not address whether any error occurred under Article 33.01 (a) of
the Code of Criminal Procedure, the statute that codifies Article V, Section 13’s requirement of a
petit jury of exactly twelve members. See TEX . CODE CRIM . PROC. art. 33.01(a) (“[i]n the district
court, the jury shall consist of twelve qualified jurors.”). Even assuming the appellants need not
have preserved this alleged statutory error either, under Marin, 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.
        23

        See note 24, infra.
        24

          TEX . CODE CRIM . PROC . art. 36.22. Whether the alternate jurors constituted outside
“persons” in contemplation of Article 36.22 depends, at least in part, upon the Legislature’s intention
when it amended Article 33.011(b). The State argued on appeal that Article 36.22 was not violated
because amended Article 33.011(b) renders an alternate juror a part of the regular “jury” during its
deliberations, so that the alternate juror would not constitute an outside “person” in contemplation
of Article 36.22’s prohibition. The court of appeals found the text of Article 33.011 to be ambiguous,
however, with respect to this question. Trinidad, supra, at 59; Adams, supra, at 66-7. Resorting,
therefore, to legislative history, the court of appeals determined that the Legislature did not intend
that alternate jurors should actually participate in jury deliberations prior to any disability of a regular
juror, but should instead be separated until such time as they might be needed. Id. Given our
ultimate holding, infra, that the appellants forfeited their statutory claims, we leave resolution of this
                                                                         Trinidad & Adams — 11


As we have already noted, however, the court of appeals did not expressly address whether

this statutory error was subject to forfeiture, consistent with Marin.

                                        ARTICLE 36.22

       Article 36.22 is couched in mandatory terms (“No person shall be permitted to be with

the jury while it is deliberating . . .”). 25 But this does not necessarily mean that the statute

identifies an absolute prohibition or a waiver-only right that can be invoked for the first time

on appeal under the Marin categories.26 Nothing else about Article 36.22 suggests that the

Legislature regarded the requirement of a jury completely free of outside influence to be so

indispensable to the fairness of trial that the system simply will not tolerate any conviction

obtained under those circumstances, regardless of the will of the parties or how trivial the

outside influence might be. The right to a jury verdict entirely untainted by any potential

outside influence strikes us as properly categorized among the “[a]ll but the most

fundamental rights [that] are thought to be forfeited if not insisted upon by the party to whom




issue for another day.
       25

        Id. (emphasis added).
       26

         See Ex parte Douthit, 232 S.W.3d 69, 76 (Tex. Crim. App. 2007) (Price, J., dissenting)
(“This is not to say that any and every mandatory criminal procedural statute will invariably set up
an absolute or fundamental feature of the system, not optional with the parties . . . .”); Ex parte
McCain, 67 S.W.3d 204, 210 (Tex. Crim. App. 2002) (“To say that a statute is ‘mandatory’ is simply
to say that the law prescribes the manner in which a particular action should or shall be taken.”).
                                                                          Trinidad & Adams — 12


they belong.” 27 We perceive no reason that a defendant should not be deemed to have

forfeited the protections of Article 36.22 in the event that he becomes aware of its breach

during the course of the trial but fails to call the transgression to the trial court’s attention so

that the error may be rectified or, barring that, so that the defendant can make a timely record

for appeal. For these reasons, we agree with former Presiding Judge Onion that a violation

of Article 36.22 is subject to the contemporaneous objection rule 28 —at least so long as the

violation comes to the attention of the defendant, as it did in these cases, in time for him to

make an objection on the record.

       In each of the instant cases, the trial court announced in open court on the record that

it would permit the alternate juror to remain “with the jury while it is deliberating.” The

appellants had every opportunity to object that the trial court’s attempts to comply with the

recent amendment to Article 33.011(b) of the Code of Criminal Procedure,29 would run afoul

of Article 36.22, but they did not do so. Under these circumstances, we sustain the State’s

assertion that these appellants have procedurally defaulted their statutory arguments on



       27

        Marin, supra, at 279. In State v. Morales, 253 S.W.3d 686, 697 & n.41 (Tex. Crim. App.
2008), we observed that the right to trial by an impartial jury is subject to forfeiture.
       28

        See Klapesky v. State, 256 S.W.3d 442, 452 (Tex. App.—Austin 2008, pet. ref’d) (when trial
court inadvertently allowed alternate jurors to retire along with regular jurors to deliberate, then
recalled jury after five minutes and released the alternates, appellant forfeited appellate complaint
under Article 36.22 by failing to timely object as required by TEX . R. APP . P. 33.1(a)).
       29

        TEX . CODE CRIM . PROC. art. 33.011(b).
                                                                      Trinidad & Adams — 13


appeal, and we hold accordingly that the court of appeals erred to reach the merits of their

statutorily based claims.

                                      CONCLUSION

       We conclude that the court of appeals in these cases (1) erred to conclude that the trial

court subjected each appellant to trial by a jury of more than twelve members, in violation

of Article V, Section 13, and (2) erred to address the merits of each appellant’s argument that

the presence of the alternate juror during deliberations violated Article 36.22. The judgments

of the court of appeals are reversed, and the judgments of the trial court are reinstated.


Delivered:    June 9, 2010
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