IN THE
TENTH COURT OF APPEALS
No. 10-17-00143-CR
JOE LUIS BECERRA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 361st District Court
Brazos County, Texas
Trial Court No. 14-03925-CRF-361
MEMORANDUM OPINION
Joe Luis Becerra appeals from a conviction for possession of a firearm by a felon.
TEX. PENAL CODE ANN. § 46.04. Becerra complains that his right to a twelve-person jury
pursuant to Article V, Section 13 of the Texas Constitution was violated because an
alternate juror was present during deliberations and that the presence of the alternate
juror during deliberations violated Articles 33.01, 33.011, and 36.22 of the Code of
Criminal Procedure. Because we find no reversible error, we affirm the judgment of the
trial court.
On original submission, this Court held that Becerra had failed to preserve his
complaints regarding the alternate juror because his objection was not made timely. See
Becerra v. State, No. 10-17-00143-CR, 2019 Tex. App. LEXIS 4850, 2019 WL 2479957 (Tex.
App.—Waco June 12, 2019). The Court of Criminal Appeals reversed, stating that the
objection was made timely because it was made when Becerra's trial counsel became
aware of the error. See Becerra v. State, 620 S.W.3d 745, 748 (Tex. Crim. App. 2021). The
Court of Criminal Appeals remanded the proceeding for us to consider the merits of
Becerra's issues.
THIRTEENTH JUROR
In his first issue, Becerra complains that his right to a jury composed of only twelve
persons pursuant to Article V, Section 13 of the Texas Constitution was violated because
an alternate juror was present during part of jury deliberations in the guilt-innocence
phase of the trial. In his second issue, Becerra complains that the presence of the alternate
juror during jury deliberations violated Articles 33.01, 33.011, and 36.22 of the Code of
Criminal Procedure.
Article V, Section 13 of the Texas Constitution and Article 33.01 of the Code of
Criminal Procedure direct that juries in district courts are to contain twelve members.
TEX. CONST. Art. V, Sec. 13; TEX. CODE CRIM. PROC. ANN. art. 33.01. Alternate jurors are
Becerra v. State Page 2
permitted to be selected and sworn in, and Article 33.011(b) of the Texas Code of Criminal
Procedure states that an alternate juror, if not called upon to replace a regular juror, shall
no longer be discharged at the time the jury retires to deliberate but shall be discharged
after the jury has rendered a verdict. TEX. CODE CRIM. PROC. ANN. art. 33.011(b). The
statute does not give direction as to the whereabouts of the alternate juror during
deliberations or if allowed to be in the jury room, the permitted extent, if any, of their role
in deliberations. However, Article 36.22 of the Texas Code of Criminal Procedure states
that "[n]o person shall be permitted to be with a jury while it is deliberating." TEX. CODE
CRIM. PROC. ANN. art. 36.22.
In this proceeding, voir dire was conducted by the elected judge of the district
court. An alternate juror was selected during voir dire. A visiting judge conducted the
rest of the trial after voir dire was completed. When the jury retired to begin its
deliberations as to guilt or innocence, the alternate juror went into the jury room with the
panel. Around forty-five minutes later, the State advised the bailiff that the alternate was
in the jury room with the jury, and the bailiff brought it to the attention of the trial court.
The trial court removed the alternate juror and placed him in a separate room.
The trial court then conducted a hearing regarding the alternate juror. The trial
court and the attorneys for the State and Becerra discussed the analysis and holding in
Trinidad v. State, 312 S.W.3d 23 (Tex. Crim. App. 2010) in order to determine how to
proceed. The State requested an instruction to be given to the jury to disregard any
Becerra v. State Page 3
participation by the alternate juror. The trial court agreed to give an instruction. Counsel
for Becerra agreed with the substance of the instruction but asked for a mistrial "based on
the presence of the juror, preserving any error, if any" even though he informed the trial
court he did not have any indication of harm at that point. Counsel for Becerra did not
seek to question the alternate juror or other jurors regarding what the alternate's
participation in deliberations had been or whether the alternate had impacted any juror's
vote. The trial court overruled Becerra's motion for mistrial and called the jury back to
give them an instruction.
The instruction given to the jury was as follows:
Members of the jury, jury deliberations began at 9:45 a.m. At 10:31 a.m., the
Court realized that the alternate juror, [alternate juror], was allowed into
the jury room by mistake and [alternate juror] was at that time asked to
separate from the jury. [Alternate juror] has been placed in a separate room
over here and he will continue to serve as the alternate juror in this case. He
simply cannot be present during the deliberations of the 12 jurors.
You are to disregard any participation during your deliberations of the
alternate juror, [alternate juror]. And following an instruction on this extra
note that the Court received, you should simply resume your deliberations
without [alternate juror] being present.
The jury was then sent back into the jury room to resume deliberations and it
returned a verdict of guilty, which was confirmed when the members of the jury panel
were polled individually.
After trial, Becerra filed a motion for new trial in which he alleged violations of
Texas Constitution Article V, Section 13 and Articles 33.01, 33.011, and 36.22 of the Code
Becerra v. State Page 4
of Criminal Procedure. Becerra attached an affidavit to the motion. One of the original
twelve jurors signed the affidavit. In the affidavit, the juror stated that the alternate juror
voted on the verdict of guilty prior to the time that the bailiff discovered the alternate
juror's presence; the remaining panel did not vote again on the issue of guilt or innocence
after the alternate was removed.
At the hearing on the motion for new trial, the State objected, under Texas Rule of
Evidence 606(b), to the admission of the affidavit. The trial court admitted the affidavit
but overruled the motion for new trial.
Becerra's issues are framed as a constitutional violation pursuant to the Texas
constitution and statutory violations pursuant to the Code of Criminal Procedure.
However, in this proceeding as to these complaints, Becerra alleges two separate alleged
errors by the trial court: the denial of his motion for mistrial and the denial of his motion
for new trial. The alleged constitutional and statutory violations serve as the basis for the
trial court's complained-of errors. We will address the issues within the framework of the
motion for mistrial and the motion for new trial.
MOTION FOR MISTRIAL
Becerra argues that the trial court erred by failing to grant his motion for mistrial
due to the alleged violations of the Texas Constitution and the Code of Criminal
Procedure. In Trinidad v. State, the Texas Court of Criminal Appeals held that allowing
alternate jurors to be present in the jury room during deliberations did not violate the
Becerra v. State Page 5
constitutional prohibition against deliberation by more than twelve jurors. Trinidad v.
State, 312 S.W.3d 23, 28 (Tex. Crim. App. 2010). The court declined, however, to determine
whether the presence of an alternate juror during deliberations violated article 36.22 and
has recently again declined to answer this question even after granting a petition for
discretionary review on its own motion on this very issue. Id. at 29-30; Laws v. State, No.
PD-1124-20, 2022 Tex. Crim. App. LEXIS 83 at *8 (Tex. Crim. App. Feb. 2, 2022).
Article 36.22 provides that no person is permitted to be with a jury while it is
deliberating, or to converse with a juror about the case on trial except in the presence and
by the permission of the trial court. TEX. CODE CRIM. PROC. art. 36.22. Harm to the accused
is presumed when a juror converses with an unauthorized person about the case. See
Quinn v. State, 958 S.W.2d 395, 401 (Tex. Crim. App. 1997); Castillo v. State, 319 S.W.3d
966, 973 (Tex. App.—Austin 2010, pet. ref'd); Stults v. State, 23 S.W.3d 198, 206 (Tex.
App.—Houston [14th Dist.] 2000, pet. ref'd). If the presumption of harm arises, the State
has the burden to rebut the presumption by showing no injury or prejudice to the
accused. Stults, 23 S.W.3d at 206 (citing Quinn, 958 S.W.2d at 401). However, the
defendant has the initial burden to show that some discussion about the case on trial
occurred between a juror and an unauthorized person. Chambliss v. State, 647 S.W.2d 257,
265-66 (Tex. Crim. App. 1983); Castillo, 319 S.W.3d at 973; Stults, 23 S.W.3d at 206-07. This
would ostensibly include whether or not the alternate juror participated in any facet of
Becerra v. State Page 6
the voting. The defendant's burden is not satisfied if there is no showing what a reported
conversation was about. Stults, 23 S.W.3d at 207.
In relation to the motion for mistrial, it is undisputed that the alternate juror was
with the jury for approximately forty-five minutes before he was discovered and
removed, however, Becerra did not attempt to question any member of the jury or the
alternate juror regarding what had taken place. Without a showing at the time of the
motion for mistrial that the alternate juror had actually participated in deliberations or
communicated with the regular jurors about the case, Becerra had not at that time met
his initial burden to raise a presumption of harm. See Castillo, 319 S.W.3d at 973
(presumption of harm did not arise because defendant presented no evidence that the
alternate jurors conversed with the regular jurors). Because of this, the trial court did not
abuse its discretion by denying the motion for mistrial based on the information it had
before it at the time of its ruling.
MOTION FOR NEW TRIAL
Becerra also filed a motion for new trial based on the alleged violations of the Texas
constitution and Code of Criminal Procedure and attached an affidavit by one of the
jurors in support of the motion. The juror's affidavit stated:
My name is [juror]. I was a juror in State of Texas v. Joe Becerra, cause number
14-03925-CRF-361. During the jury deliberations in the case, the individual
later identified by the trial judge as the "alternate juror" voted on the verdict
of "guilty" ultimately returned by the jury. The alternate juror's presence in
the jury room was not discovered until after the verdict vote was taken on
guilt by the jury. After this vote, there was a question the jury had
Becerra v. State Page 7
concerning the special issue submitted to the jury by the trial judge and
when the bailiff appeared to collect the question, the bailiff realized the
alternate juror was present in the jury room. Thereafter, alternate juror
participated in the deliberation until the court bailiff came and collected us
and brought us into the courtroom. After the alternate juror was excused
the remaining 12 jurors did not revote on the issue of guilt as the verdict
vote taken while the alternate juror was present in the jury room was
unanimous.
The State objected to the admission of the affidavit pursuant to Rule 606(b) of the
Rules of Evidence at the hearing on the motion for new trial, but the trial court overruled
its objection and admitted the affidavit. After hearing the arguments of counsel and
considering the evidence before it, the trial court denied Becerra's motion for new trial
because it found that Becerra had not been harmed by the alleged errors.
The Court of Criminal Appeals stated in its opinion in this proceeding that:
[i]n Trinidad, we stated that violations of Article V, Section 13 are jury
misconduct claims and, as such, should be preserved as jury misconduct
claims. [Trinidad, 312 S.W.3d] at 28-29. A motion for new trial, supported by
an affidavit, is the proper method for preserving a jury misconduct error.
Trout v. State, 702 S.W.2d 618, 620 (Tex. Crim. App. 1985).
Becerra v. State, 620 S.W.3d 745, 749 (Tex. Crim. App. 2021).
We review a trial court's denial of a motion for new trial under an abuse of
discretion standard. Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013). A trial
court abuses its discretion in denying a motion for new trial only when no reasonable
view of the record could support the trial court's ruling. McQuarrie v. State, 380 S.W.3d
145, 150 (Tex. Crim. App. 2012). A defendant will be granted a new trial "when the jury
has engaged in such misconduct that the defendant did not receive a fair and impartial
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trial." TEX. R. APP. P. 21.3(g). "To warrant a new trial based on jury misconduct, the
movant must establish not only that jury misconduct occurred, but also that it was
material and probably caused injury." Ryser v. State, 453 S.W.3d 17, 39 (Tex. App.—
Houston [1st Dist.] 2014, pet. ref'd) (citing Bogue v. State, 204 S.W.3d 828, 829 (Tex. App.—
Texarkana 2006, pet. ref'd).
Generally, "a juror may not testify as to any matter or statement occurring during
the jury's deliberations, the effect the matter had on any juror's mind or mental process,
or how the matter influenced the juror's decision-making." Ryser, 453 S.W.3d at 40.
However, when there is an allegation of juror misconduct, Rule of Evidence 606(b) allows
a juror to testify on whether "an outside influence was improperly brought to bear on any
juror." TEX. R. EVID. 606(b); see McQuarrie, 380 S.W.3d at 154. Then, without delving into
the jury's deliberations, the trial court must conduct an objective analysis to determine
whether there is a reasonable probability that the outside influence had a prejudicial
effect on the "hypothetical average juror." Colyer v. State, 428 S.W.3d 117, 129 (Tex. Crim.
App. 2014). The existence of an outside influence does not result in an automatic reversal,
however. Ryser, 453 S.W.3d at 41. An outside influence is only problematic "if it has the
effect of improperly affecting a juror's verdict in a particular manner—for or against a
particular party." Id. (quoting Colyer, 428 S.W.3d at 129).
The juror's affidavit indicated that the alternate juror voted during deliberations
during guilt-innocence but was removed from the jury room prior to the return of the
Becerra v. State Page 9
ultimate verdict. However, there was nothing included about whether or not the alternate
juror otherwise participated in the deliberations, such as whether the alternate juror
attempted to convince another juror of Becerra's guilt or the effect of some other aspect
of the evidence. Such evidence would have been admissible pursuant to Rule 606(b).
However, the part of the juror's affidavit that related to what transpired after the "outside
influence" of the alternate juror was removed, alleging that a subsequent vote was not
taken was not properly admissible pursuant to Rule 606(b), because it did not involve
evidence regarding the outside influence or its impact on any juror or the deliberations.
In Trinidad, the Court of Criminal Appeals stated that "[a]s 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." Trinidad,
312 S.W.3d at 28. That court referred to the verdict that was received as the "ultimate
verdict." See id. The ultimate verdict received by Becerra was voted on by a panel of
twelve jurors, and therefore, we find that in this proceeding there was no violation of
Article V, Section 13 of the Texas Constitution. Additionally, because we have found that
Article V, Section 13 was not violated, we do not find that Article 33.01(a) of the Code of
Criminal Procedure, which codifies Article V, Section 13's requirement of a petit jury of
exactly twelve members, was violated either because only twelve regular jurors voted on
the ultimate verdict that Becerra received, and thus, his jury did "consist" of twelve jurors
Becerra v. State Page 10
for purposes of the statute. See TEX. CODE CRIM. PROC. art. 33.01(a) ("[i]n the district court,
the jury shall consist of twelve qualified jurors.").
As to the other alleged statutory violations, primarily article 36.22 regarding the
presence of outsiders with the jury during deliberations, we have found no authority that
has established a hard rule that the presence of the alternate jurors in the jury room
during deliberations is absolutely improper. Until the Court of Criminal Appeals
determines otherwise, we find that the evidence of the alternate juror's presence and even
initial participation in voting with the jury during deliberations as presented in this
proceeding is not sufficient to constitute a reasonable probability that the alternate juror's
outside influence had a prejudicial effect on the "hypothetical average juror." The verdict
was unanimous on the ultimate verdict received by Becerra by the twelve members of
the jury, and there is nothing in the record to indicate otherwise.
We do not find that the trial court's denial of the motion for new trial was outside
of the zone of reasonable disagreement, and therefore, there was no abuse of discretion
by the trial court. We overrule Becerra's issues one and two.
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
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Before Chief Justice Gray,
Justice Johnson, and
Justice Wright 1
Affirmed
Do not publish
Opinion delivered and filed April 20, 2022
[CRPM]
1
The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by
assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.
Becerra v. State Page 12