Affirmed and Memorandum Opinion filed April 25 , 2023.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00588

- CR

JUSTIN ROBERT FLETCHER , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 212th District Court Galveston County, Texas Trial Co urt Cause No. 20

- CR

- 0745

MEMORANDUM OPINION
A jury found appellant guilty of unlawful p ossession of a f irearm by a felon and assessed punishment at eight years ’ confinement. In two issues, appellant complains about the replacement of a juror with an al tern ate juror and the
admission of evidence. We affirm.2 I. A LTERNATE J UROR In his first issue, appellant contends t hat the trial court erred by appointing an alternate juror to the duties of a juror who failed to appear. He contends further
that the trial c ourt erred b y “ pressurin g ” appellant to waive his right to a continuance to have the original juror hear and dec ide the case. He cites no ca ses in suppo rt of his argument s.
A. Background
On the day of trial, appellant was out of jail on bond. T he court anno unce d
that appellant was late for the trial

. The court recessed until appellant arrived over an hour late r

. The court announce d that one of the twelve original juror s had also

com municated to the court that she would be out of town on the trial date for a

sc hedu led vacation. 1 When the court indicated its i nt ent to replace the missing jur or with the alternate, appellant ’ s counsel initially objected that the jur or was not unable to serve or disqualified, c iting Article 33.011 of the Texas Code of Criminal
Proc edure. See T e x. Code. Crim

. Proc. a rt. 33.011. When the court asked counsel if he was requesting a continuance, counse l asked to “adj ourn the proceedings until we can get the proper 12 jurors in. ” After an off

- the

- record discussion, counsel
said tha t ap pellant wante d to “ withdraw that request and to go forward with the 12
that are here. ” But he premised this withdrawa l: “ Based upon the Court ’ s statement that he would go into custody at the end of today if the case is

co ntinue d. ”

A colloquy ensued

. The court explain ed, “So don ’t pu t this back

— b ased on my taking him into custody that that ’s somehow forcing him to waive his jury

— or

1 The jury was empaneled in July
, bu t t h e case was reset to September. Five days befo re the trial was to start, the Galves ton County Jury Administration office emailed jurors advising them of the trial date.3

waive the alternate. ” The court explained that it heard appellant decide to withdraw the request for a continuance “long befo re I said any thing about revoking
h is bond, just so the record is completely clear. ” Th e court said it would grant the continuance and issue a writ of attachment for the missing juror if appellant wanted
it. The court continued
, “But I ’m not going to let this proceed ing go forward if your client feels press ured that somehow

— that this Court is applying undue pressure to get you to waive it. So if this is a voluntary request on behalf of your client, I will entertain that. But it has to be voluntary. Oth erwise, he is going to
have his bond revoked. ”
After counsel spoke with appellant off the record, counsel reiterated a desire to go forward with the alternate juror:

Counsel: He has informed me that his voluntary request is to go

forward today. The Co urt : Okay. So yo u are withdrawing your objection

— that ’s my understanding

—

to use the alt ernate to complete the panel; correct? Counsel: Yes. The case proceeded to trial with the alternate juror

. B. Analysis
Assuming without deciding that the right to proceed to t rial with an original juror rather than an alternat e is a waivable

- o nly right under the Marin 2 framework
, 3 the record reflects that appellant voluntarily waived this right.

2 Ma r in v. State , 851 S.W. 2d 2 75 (Tex. Crim. App. 1993).

3 Cf. Trinidad v. Stat e , 3 1 2 S .W.3d 2 3, 27

– 28 (Tex. Crim. App. 2010) (assuming without deciding that right to twelve

- member j ury is waivable

- only under Marin framework)

. But see Payton v. State , No. 14

- 20

- 00175

- CR, 2021 WL 4472522, at *6 (Tex. App.

— Hou ston [14th Dist.] Sept. 3 0, 2 0 21
, no pet .) (mem. op.) (holding that error was not preserved when the4

Waiver is the intentional relinquishment or abandonment of a known right or

p rivi lege

. Garcia v. S t ate , 429 S.W.3d 604, 607 (Tex. Crim. App. 2014). Generally, a waiver of rights must be “ voluntary. ” See Joseph v. State , 309
S.W.3d 20, 2 5 (Tex. Crim. App. 2010) (noting that a waiver of Miranda 4 rights must be done knowingly, inte llig ently, and vo luntarily ); Kniatt v. State , 206
S.W.3d 657, 664 (Tex. Crim. App. 2006) ( noting that a guilty plea consti tutes a waiver of the right to a jury trial , so it must be entered knowingly, intelligently,
and voluntaril y) . Regarding the waiver o f Mi randa rights, courts have held that

“ vo luntary ” means , in part, the waiver was “ the product of a free and deliberate choice rather than intimidation, coercion, or decept ion. ” Joseph , 309 S.W.3d at 25 (quoting Moran v. Burbine , 475 U.S. 412, 421 (1986 ) ). In the c ontext of a gui lty plea, which involves the waiver of a jury trial, the waiver must be “ the expression
of the defendant ’ s own free will and mus t not be induced by threats, misrepresentations, or improper promises. ” K n i att , 206 S.W.3d at 6 64

. W e

as sume wit hout deciding t hat these principles apply to appellant ’ s waiver of his right to continue the trial with the original juror rather than the alternate.

T he record reflects that the trial court intended to revoke appellant ’ s bond
because he did n o t sh ow up for trial , not because appellant initially objected to replacing the missing juror with the alternate juror. Appellant does not contend
that the court would have erred by revoking the bond due to appellant ’ s failure to appear on time for tria l. S ee generally T ex. Code Crim. Proc. A rt. 17.09, § 3

. The
mere fact that appellant learned his bond would be revoked does not demonstrate that appell ant ’ s acquiescence to the alternate juror was involuntary. Cf. K n iatt , 206
S.W.3d at 66 2

– 65 (holding t h a t tr ia l court cou ld have reasonably concluded that

appellant waited until after deliberations to complain about the second alternate rather than the first alternate having assumed the duties of a juror under Article 33. 011).

4 Mira nd a v

. A rizona , 384 U.S. 4 36 (1966).5

the appellant entered a guilty plea volun tarily, despite the fact that the trial court

“ admitted in its findings of fact that it had ‘ sanction ed ’ [the defendant] , by revoking his bond, for his decisions t o r en eg e on the pl ea bargain and replace h is
counsel ” ; noting that although the defendant testified he subjectively felt pressured to change his plea to guilty because he did not want to “ sit in jail without a bond for who knows how long, ” there was n o ev id en ce t hat at the time he pled gu ilty he

was “ so gripped by fear of incarceration that, even with the assistance of counsel, he could not rationally weigh the advantages of pleading guilty against the
disadv antages of going to trial ” ) ; Lee v. State , 3 9 S. W. 3d 3 73 , 376 (Tex. App.

— Houston [1st Dist.] 200 1, no pet.) (holding that the defendant ’ s plea of no contest

was voluntary because there was no evidence that the defendant was pressured into the plea because her bail was revoked for an invalid reason ).

Aft er t he i nitial objection
, appellant repeated ly informed the court of a desire

to proceed with the alternate juror. When asked by the trial court to conf irm that this decision was voluntary and not the result of “ pressure ” from the court, appellant again m ad e a “ v oluntary request

. . . to go forward today ” with the alternate j uror.

T he record shows that appellant waived his right to proceed with the original juror and that this wa iver was not induced by any undue pressure, threat, intimidation, or coer cion

. A cc or dingly, the waiver was voluntary. Appellant ’ s first issue is overruled.

II. A DMISSION OF E VIDENCE In his second issue, appellant contends the trial court erred by allowing a witness to testify that a shotgun found in appellant ’ s tru ck had a “ silen cer ” o n it

. He co ntends that the evidence was irrelevant, it was impr oper character evidence,
and the probative value of the evidence was substantially outweighed by the6

danger of unfair prejudice, confusing the issues, or misleading the jury. He cites

o nl y Ru le s 40 1 to 404 of the Texas Rules of Evidence. He cites no cases.
At trial, appellant did not argue that the evidence was irrelevant
, improper character evidence, or prejudicial. He argued only that the witness did not have scientific knowledge about s il en c er s

. 5

As a prerequisite to presenting a complaint for appellate review, the record
must sho w that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling sought from the trial
court wi th s u ff

i cie nt s pecificity to make the trial court aware of the complaint. See Tex. R. App. P. 33 .1 ; see also Tex. R. Evid. 103( a)(1). A complaint on appeal must comport with the specific complaint that the d efendant timely lodge d in the

5 Appellant made the following objections:
Counsel: Your Honor, I ’m going to object. There ’s not

— there ’s insufficient foundation that h e has scientific knowledge to determine what is and what is not a silencer.
The C ou rt : O bjectio n for scientific knowledge is overruled.

. . . . Counse l: The same objection, Judge. They haven ’t established that he has

any scientific knowledge about silencers. Actually, the correct term is a suppresser, not a silencer. So I object t o la y in g an imp roper foundation.
The Court: Overruled. Appellant asked to take the witness on voir dire, which the trial court allowed . Appellant questioned the witness about his scientific knowledge relating to how silencers operate. Appellant again ob

j e ct e d t o the w itness’s testimony based on lack of scientific knowledge:
Counsel: I guess before the jury comes in, I would object to him testifying

that it is a

— what they call a silencer. It’s really a suppressor. It’s a muzzle device at best, but witho u t h i m b eing ab le to explain the scientific change s in the sound waves out and without doing an inspection to confirm there is actually the baffling he was talking about, I would object to calling it a silencer or suppressor.
The Court: Overruled.7

trial court

. Ble im ey e r v . S t ate , 616 S.W.3d 234, 250 (Tex. App.

— Houston [14th Dist.] 20 21, no pet.) ; see Pena v. S t ate , 2 85 S.W.3d 459, 464 (Tex. Crim. App. 2009). The appellant must have conveyed to the trial court the particular compl aint raised on appeal, including th e pr e ci s e and p roper application of law as well as the underlying rationale. Bleime yer , 616 S.W.3d at 25 0; Penton v. State , 48 9 S.W.3d 578, 5 80 (Tex. App.

— Houston [14th Dist.] 2016, pet. ref ’d).
Because appellant ’ s arguments on appeal do not comport wi th hi s o bj e cti on s during trial , he failed to preserve any error regarding the admissibility of the
evidence under Rules 401 to 40 4 of the Texas Rules of Evidence. Appellant ’ s second issue is overruled.

III. C ONCLUSION Having overruled both of appellan t ’ s issues, we a f fi r m the t ria l court ’ s judgment.

/s/ K en Wi se J ustice

Panel con sists of Chief Ju stice C hristopher and Justices Wise and Hass an

. Do Not Publish

— Tex

. R. App. P. 47 .2( b)