MH RN! 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 the 4 16th Judicial District Court

Collin County, Texas

Trial Court Cause Nos. 416-80340-11, 416-81543-09, 416-81544-09

MEMORANDUM OPINION

Before Justices Moseley, Francis, and Lang

Opinion by Justice Lang

Carlos Mario Delarosa appeals from convictions of evading arrest, possession with the

intent to deliver cocaine, and three counts of aggravated assault with a deadly weapon. In his sole

issue on appeal, Delarosa contends the trial court erred by determining that a juror who was no

longer a Collin County resident was disabled and replacing that jul-or with the alternate juror. 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

After the close of evidence, 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 of the jury

received information from one juror that 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 a physical address. The trial judge then called in juror Roundy to ask

him whether he was a resident of Collin 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 asking juror Roundy to wait outside the courtroom, the

trial court stated he was “disqualified, considering—from serving on this jury and fits the

definition of disabled” in the Texas Code of Criminal Procedure. The defense counsel objected

as follows.

DEFENSE COUNSEL: I don’t think that’s the kind of disability that the Code is

talking about. I think in terms of such things as mental or physical disability, not—

not circumstances that we now discover he’s disqualified, like, for example, what

if he’s been convicted of theft, 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 of disqualification

we’re talking about, because he was never qualified. It’s not that he’s become

disabled in some fashion. He was—he was never qualified to have put on the jury.

THE COURT: All right. Your objection is overruled. The Court is going to

excuse the juror and seat the alternate juror.

After the trial court excused juror Roundy and seated the alternate juror, the jury found

Delarosa guilty as charged on all charges and sentenced him to two years in a state jail 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 of aggravated assault, and twenty years’ imprisonment and a $10,000 fine for
the third count of aggravated assault. I)elarosa argues on appeal that the trial judge erred in

finding juror Roundy disabled and should not have 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 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. 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 a juror 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 of a sitting juror because of death or

disability” is article 36.29, which provides that if a juror becomes disabled from sitting after the

jury is impaneled and sworn, the remaining eleven jurors 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 f ohm 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 I 6(a)( 1) Mayo v State 4 S W 3d 9, II I cx ( 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 “county citizenship is a part of the Article 35.16 requirement that a

person be a qualified voter in the county under the constitution and laws of this state in order to

be fit to serve as a juror.”) (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 disqualified juror with an alternate.” According to the State, artic Ic 33.011 “contains

the procedure for removal of both a disabled and a disqualified juror and authorizes substitution

with a qualified alternate.” See TEX. CODE CR1M. PROC. art. 33.011.

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 after the close of evidence, but 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 juror Roundy, Delarosa 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 Delarosa was not harmed by the

trial judge’s alleged error because it did not affect Delarosa’s substantial rights. See TEx. 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.

4
IV. CONCLUSION

The trial court’sjudgment is affirmed.

Do Not Publish

JUSTI

Ta It. Ape. P.47

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JUDGMENT

CARLOS MARIO DELAROSA, Appellant

No. 05 11 003 I 2CR

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 of this date, the judment ol the trial court is AFFIRMED.

Judgment entered this 26th day of March, 2013.

LANG

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JUDGMENT

CARLOS MARIO DELAROSA, Appellant On Appeal from the 4 16th Judicial District

Court, Collin County. Texas

No, 05-11-003 13-CR V. Trial Court Cause No. 416-81 543-09.

Opinion delivered by Justice Lang. Justices

THE STATE OF TEXAS, Appellee Moseley and Francis participating.

Based on the Court’s opinion of this date, the udgrnent ot the trial court is AFH RNIEI).

Judgment entered this 26th day of March. 2() 13.

LANG
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JUDGMENT

(ARI.()S MARIo DELAR()SA. Appellant

No. 05—11—003 Il-CR V.

[HE STATE 01- TEXAS, Appellee

( )n Appeal tiom the 4 16th Judicial District

Court. Collin County. Texas

Trial Court Cause No. 416-81 544-09.

Opimon delivered by Justice Lang. Justices

Moseley and Francis participating.

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

Judgment entered this 26th day ot March, 2013.

IDOUGI$SS. LKNCI

JUSTE