MHRN! and Opinion [iled this 26th day of March, 2013.



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No. 05-11-00312-CR No, 05-1 1-00313-CR No. 05-1 1-00314-CR 

### CARLOS MARIo DELAROSA, Appellant V. 

### THE STATE OF TEXAS, Appellee On Appeal from the4 16th Judicial DistrictCourt Collin County, Texas Trial Court Cause Nos. 416-80340-11, 416-81543-09, 416-81544-09 

### MEMORANDUM OPINION BeforeJustices Moseley, Francis, and Lang Opinionby Justice Lang Carlos Mario Delarosa appeals from convictions ofevading arrest, possession with the intentto delivercocaine, and three counts ofaggravated assault with adeadly weapon. In his sole issue on appeal, Delarosa contends the trial court erred by determining that ajurorwho was no longer a Collin County resident was disabled and replacing that jul-orwith the alternatejuror. We decide against Delarosa on this issue and affirm the trial court’s judgment. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See TEx. R. App. p. 47.4.I. FACTUAL AND PROCEDURAL BACKGROUND Afterthe close ofevidence, hut before the jury was charged, the trial court held a hearing outside the presence of the jury and informed the parties that a haili[1 in charge ofthe jury received information from one jurorthat another Juror, Joshua Roundy, no longer lived in Collin County, The juror information sheet reflected juror Roundy had a post office box in Collin County, but did not include aphysical address. The trialjudge then called injuror Roundy to ask him whether he was a resident ofCollin County. Juror Roundy informed the trial judge that he had left Collin County nine months prior to the trial, presently lived in Denton County, and had

no plans to return to Collin County. After askingjurorRoundy to waitoutside the courtroom, the trial court stated he was “disqualified, considering—from serving on this jury and fits the definition ofdisabled” in the Texas Code ofCriminal Procedure. The defense counsel objected

as follows. DEFENSE COUNSEL: I don’t think that’s the kind ofdisability that the Code is talking about. I think in terms ofsuchthings as mental orphysical disability, not— not circumstances that we now discoverhe’s disqualified, like, for example, what ifhe’s been convicted oftheft, for example, which would be a disqualification. I don’t think that—I don’t think it’s—I don’t think that’s the kind ofdisqualification we’re talking about, because he was never qualified. It’s not that he’s become disabled in some fashion. He was—hewas neverqualifiedto haveputon thejury. THE COURT: All right. Your objection is overruled. The Court is going to excusethejurorand seatthe alternatejuror. After the trial court excusedjuror Roundy and seated the alternatejuror, thejury found Delarosa guilty as charged on all charges and sentenced him to two years in a statejail facility and a $10,000 fine for evading arrest, sixty years’ imprisonment and a $100,000 fine for possession with intent to deliver cocaine, life imprisonment and a $10,000 fine each for two of the three counts ofaggravated assault, and twenty years’ imprisonment and a $10,000 fine forthe third count of aggravated assault. I)elarosa argues on appeal that the trial judge erred in findingjuror Roundy disabled and should nothave removed him. II. STANDARD OF REVIEW & APPlICABLE LAW A trial court’s error in discharging a luror involves the fihilure to follow a statutory scheme; it is not of constitutional dimension. See 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. A1p. P. 44.2(b); see aLco Sneed, 209 S.W.3d at 788: Ponee, 68 S.W.3d at 721-22. A defendant is not harmed by the trial court’s error in discharging ajuror 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 ofthe 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 dischargedjuror’s place. See Sneed, 209 S.W.3d at 788; Poiice, 68 S.W.3d at 722. Hi. APPLICATiON OF LAW TO FACTS Delarosa argues the trial court erred “by determining that ajuror who no longer lived in Collin County was disabled” and by replacing that juror with an alternate. He contends “[tjhe applicable statute dealing with issues surrounding removal ofa sittingjurorbecause ofdeath or disability” is article 36.29, which provides that ifajurorbecomes disabled from sitting afterthe jury is impaneled and sworn, the remaining elevenjurors have the power to render the verdict. See TEx. Conc. CRIM. Pioc. art. 36.29(a). According to Delarosa,juror Roundy was not dead or disabled within the meaning of article 36.29, “but would at most have been subject to

### disqualification for not being a fohm County resident” and should not have been removed over I)elarosas objection. The State responds that the trial court properly found juror Roundy 

### was disqualified to
serve on the jury because he did not meet the residency requirement iii article 35. 16. See TEX, ( ODE C RIM Piux art ‘5 I6(a)( 1) Mayo v State 4 S W 3d 9, II Icx ( rim App 1999) (holding that article 35. 16(a)(l) “provides that a venireperson who does not live in the county is subject to challenge” and that “countycitizenship is a part ofthe Article 35.16 requirementthat a person be a qualified voter in the county underthe constitution and laws ofthis state in order to be fit to serve as ajuror.”) (citations omitted). The State contends the procedure in article 36.29 relied upon by Delarosa “does not address the situation faced by the trial court here, that of replacing a disqualifiedjurorwith an alternate.” According to the State, articIc 33.011 “contains the procedure for removal ofboth a disabled and a disqualifiedjuror and authorizes substitution with aqualified alternate.” See TEX. CODE CR1M. PROC. art. 33.011. The record shows 

### the alternatejuror 

### was subjected to the same selection process as the otherjurors, was properly sworn, and heard all ofthe evidence and the trial court’s charge. The alternatejuror was seated in place ofthe dischargedjuror afterthe close ofevidence, but before thejury retired. The record does not show any taint from the alternatejuror. Even assuming, without deciding, the trial court erred by removing juror Roundy, Delarosa has not complained ofany harm suffered from the replacement ofthe disqualifiedjurorwith the alternatejuror, and

no harm is evident from the record. Accordingly, we conclude Delarosa was not harmed by the trialjudge’s alleged errorbecause it didnotaffect Delarosa’s substantial rights. SeeTEx. R. App. P. 44.2(b); Sneed, 209 S.W.3d at 788; Ponce, 68 S.W.3d at 722. We decide against Delarosa on his sole issue.

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### IV.CONCLUSION Thetrialcourt’sjudgmentisaffirmed.

DoNotPublish JUSTI TaIt.Ape.P.47 

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## JaI1ai JUDGMENT CARLOS MARIO DELAROSA, Appellant No. 05 11 003 I2CR TIlL STATE (.0’ TEXAS. Appellee On Appeal from the 416th Judicial District Court, Collin County, Texas Trial Court Cause No. 41 6-0340- 11. Opinion delivered by Justice Lang Justices Moselev and Francis participating. Based on the Court’s opinion ofthis date, the judment ol the trial court is AFFIRMED. Judgment entered this 26th day ofMarch, 2013.

LANG J

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## nf Lrxzta at Dn11a; JUDGMENT CARLOS MARIO DELAROSA, Appellant On Appeal fromthe 4 16th Judicial District Court, Collin County. Texas No, 05-11-003 13-CR V. Trial Court

### Cause No. 416-81 543-09. Opinion deliveredby Justice Lang. Justices THE STATE OF TEXAS, Appellee Moseleyand Francis participating. Based on the Court’s opinion ofthis date, the udgrnent ot the trial court is AFHRNIEI). Judgment entered this 26th day ofMarch. 2() 13.

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## uf ixa at Ja1La% JUDGMENT (ARI.()S MARIo DELAR()SA. Appellant No. 05—11—003 Il-CR V. [HE STATE 01- TEXAS, Appellee ()n Appeal tiom the 4 16thJudicial District Court. Collin County. Texas Trial Court Cause No. 416-81 544-09. Opimon deliveredby Justice Lang. Justices Moseley and Francis participating. Based on the Court’s opinion ofthis date, thejudgment ofthe trial court is AFFIRNIED. Judgment entered this 26th day ot March, 2013.

IDOUGI$SS. LKNCI JUSTE