Opinion filed October 3 , 20 2 4



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 2 1

- 00 290

- CR

__________
JOHNNY BRYAN HERNANDEZ , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 244th District Court Ector County , Texas Trial Court Cause No. C

- 20

- 0425

- CR

M E M O R A N D U M O P I N I O N A jury found Appellant, Johnny Bryan Hernandez , guilty of murder, a first

degree felony, and aggravated assault with a deadly weapon , a second

- degree felony

. See T EX

. P ENAL C ODE A NN

. § § 19.02 (b), (c) , 22

. 02 (a)(2) , (b) (West Supp. 2023 ). In
accordance with the jury’s punishment verdict , the trial court sentence d Appellant

to confinement in the Institutional Division of the Texas Department of Criminal
Justice for fifty years for the murder conviction, and twenty years for the aggravated

assault conviction . The trial court ordered the sentences to run concurrently

.2 Appellant raises two issues on appeal, asserting that the trial court erroneously : (1) dismiss ed Juror No. 18 after the jury had been i mpaneled , and then impanel ed the first alternate juror ; and (2) permitted the State’s investigator

— a person other than the bailiff

— to be alone with the jury in the courtroom. We affirm.

Factual Background Appellant does not challenge the sufficiency of the evidence to support his convictions, only that the trial court erred in decisions related to the jury in two
instances. Consequently, we limit the recitation of facts to those necessary to resolve the issues raised on appeal.
T he twelve

- person jury and two alternates were selected and sworn on Friday, December 10, 2021 , and reconvened for trial the following Monday. P rior to start
of trial , Juror No. 18 requested that he be excused because his mother had been admitted to the hospital with COVID

- 19 , and he could not “ help but continuously
think of the what

- ifs [ of ] her situation

. ” The juror expressed that he “want[ed] to

serve, ” but his mother’s illness came to mind “very, very frequently , ” and he “[felt]
it would be a distraction.” Following the trial court’s questioning of Juror No. 18, the trial court recess ed so that the attorneys could consider whether to discharge the juror and replace him
with an alternate. After Appellant and his trial counsel were given time to confer , the parties jointly agreed to release Juror No. 18 and replace him with the first
alternate. The trial court f ound good cause to excuse Juror No. 18 from jury service
in that he would be unable to per f orm his duties as a juror , and the trial court added
the first alternate, Juror No. 35, as a member of the jury

. D uring its guilt/innocence deliberation s , the jury requested to re view three
admitted videos. After identifying which exhibits the jury’s note described, the jury was brought back into the courtroom to view “ the m on the equipment . . . in the
courtroom.” Due to the format of the videos and the device on which they were3 stored, the parties agreed to permit a State’s investigator to play them for the jury. 1
But before the State, Appellant, and the trial judge left the courtroom, the trial court admonished the jurors and invest igator that they were not to communicate other than with respect to playing the videos. The trial court instructed the jury that they were not permitted to communicate with each other except to request that the investigator play a particular excerpt or to pause or rewind the same. Further, only the foreperson was permitted to forward such requests to the investigator. The jury was additionally
instructed th at they were not to deliberate during that time, nor to communicate with each other for any purpose unrelated to request s to view p ortion s of the video
exhibits. The foreperson confirmed that the jur y understood the procedure , and both
the State and Appellant agreed that the outlined procedure was acceptable.
Issue One In Appellant’s first issue, he contends that the trial court erred by discharging
Juror No. 18 and replacing him with an alternate. Appellant acknowledges that he
and his trial counsel expressly agreed to and did not object to the substitution

. The
State responds that Appellant has waived this issue for appellate review

. To preserve a complaint for appellate review, a defendant must make a

“ timely request, objection, or motion” stating grounds for the desired ruling and the trial court must either rule or refuse to rule on the request, objection, or motion

. T EX

. R. A PP

. P. 33.1(a) (1) , (2) ; Winfrey v. State , 104 S.W.3d 282, 283 (Tex. App.

— Eastland 2003, pet. ref’d ) ( Where the a ppellant did not object to the replacement of a dismissed juror and affirmatively approved of the method used by the trial court to seat the twelfth juror

— by not objecting, the appellant waived the issue on appeal. ). Here, Appellant did not object or request a mistrial. Rather, he affirmatively agreed
that it was appropriate for the alternate juror t o be empaneled when good cause was

1 The prosecutor could only play the videos on her personal device and did not want the jury to have access to any additional information.4 shown to release Juror No. 18. By failing to object and by willing ly agreeing to
release Juror No. 18 and seat the alternate juror, Appellant has waived this issue on appeal. See Winfrey , 104 S.W.3d at 283. Even if Appellant preserved this issue for appellate review , replacing Juror
No. 18 with an alternate was within the discretion of the trial court under
A rticle 33.011 of the Texas Code of Criminal Procedure

. See T EX

. C ODE

. C RIM

. P ROC

. A NN

. art. 33.011 (West Supp. 2023 ). Pursuant to A rticle 33.011(b), before a verdict is rendered on the guilt or innocence of the defendant and before one is rendered on punishment (if applicable), alternate jurors shall replace jurors who have become, or are found to be , unable or disqualified to perform their duties

. 2 Id. The trial court has discretion to determine whether a juror has become disabled and to seat an alternate juror. See C RIM

. P ROC

. art. 36.29; Scales v. State , 380 S.W.3d 780, 783 (Tex. Crim. App. 2012). We review the trial court’s determination for an abuse
of discretion. Scales , 380 S.W.3d at 784. We may not substitute our own judgment
for that of the trial court. Instead, we are to assess whether, after viewing the evidence in the light most favorable to the trial court ’ s ruling, the ruling was arbitrary
or unreasonable. Id

. The ruling must be upheld if it is within the “zone of reasonable disagreement.” Id

. Absent an abuse of discretion, no reversible error will be found.
Id

. T he trial court, finding good cause that Juror No. 18 would be unable to perform his duties as a juror, acted within its discretion to dismiss said juror and replace him with the alternate juror. See id

. at 783

– 84; see also Foyt v. State , 602 S.W.3d 23, 49

– 50 (Tex. App.

— Houston [14th Dist.] 2020, pet. ref ’ d). Further, h ad

2 Article 33.011(a) states that, in a district court, a judge may impanel up to four additional jurors to sit as alternates. Section (b) states that, before a jury renders a verdict regarding a defendant ’ s guilt or innocence, or assesses a punishment when applicable, alternate jurors “shall replace jurors who

. . . become or are found to be unable or disqualified to perform their duties or are found by the court on agreement of the parties to have good cause for not performing their duties.” C RIM

. P ROC

. art. 33.011(b).5 there been erro r as Appellant argue s , “ [ t ] he next step in our analysis [would be ] to determine whether the error resulted in harm. ” Whitehead v. State , 437 S.W.3d 547,
55 6 (Tex. App.

— Texarkana 2014, pet. ref ’ d) . But Appellant has neither briefed the
issue of harm nor has he shown that substituting Juror No. 18 with the first alternate , J uror No. 35 , affected his substantial rights

. 3 See T EX

. R

. A PP

. P . 44.2(b). We
overrule Appellant’s first issue

. Issue Two Appellant contends in his second issue that the trial court erred by permitting

an investigato r with the Ector County District Attorney’s Office to be in the jury’s presence after deliberations began. Appellant likewise failed to object and agreed,
as he did with the substitution of Juror No. 18, to the State’s investigator being alone with the jury to play the requested videos

. Despite this failure, Appellant claims that
the trial court violated A rticle 36.22 of the Texas Code of Criminal Procedure by allowing the jurors to view evidence “ during deliberations ” in the presence of the State’s investigator. Article 36.22 prohibits any person from being with a jury during deliberations , and also prohibits any person from conversing with a juror about the case on trial, “ except in the presence and by the permission of the court.”
C RIM

. P ROC

. art. 36.22 (West 2006 ).
To preserve an A rticle 36.22 claim for appellate review, the party must object as soon as the issue becomes appar ent. See T EX

. R. A PP

. P

. 33 .1(a) (1), (2); Laws v.
State , 640 S.W.3d 227, 229 (Tex. Crim. App. 2022) (citing B ecerra v. State , 620 S.W.3d 745, 747 (Tex. Crim. App. 2021 ) ). Here, Appellant again failed to preserve this issue for appellate review. When asked if he had any objections to the proposed plan to have the State’s investigator play the videos , Appellant’s trial counsel

3 To present an issue for appeal, an appellant ’ s brief must contain, among other things, clear and concise argument for its contentions with appropriate citations to authorities and the record. See T EX

. R. A PP

. P. 38.1(i). When a party fails to brief a complaint adequately, it waives the issue on appeal. See Arevalo v. State , 675 S.W.3d 833, 847 (Tex. App.

— Eastland 2023, no pet.) (failure to brief harm).6 answered , “No, sir, I don’t .” T here was additionally no allegation of jury
deliberations during the time that the State’s investigator was present in the courtroom and played the videos. Thus, the second issue was also waived on appeal.
E ven if the issue were preserved and the trial court had erred , any error was harmless. See T EX

. R. A PP

. P. 44.2(b). The trial court was required , upon the jury’s request, to make requested videos available to the jury for viewing

. See C RIM

. P ROC

. art. 3 6.25 (“There shall be furnished to the jury upon its request any exhibits admitted as evidence in the case.”). T he parties agreed that the investigator could
show the videos . T he trial court t horoughly admonished the State’s investigator and the jury about limiting any communications to only the playing and re viewing of the subject exhibits and prohibited any other conversation. On appeal, we presume that the jury follow ed the trial court’s instructions. See Thrift v. State , 176 S.W.3d 221, 224 (Tex. Cr im. App. 2005). Th at presumption is rebuttable, but to do so, the appellant must point to evidence that the jury failed to follow the trial court’s
instructions. Id. Appellant points to no such evidence on appeal. We overrule Appellant’s second issue. This Court’s Ruling We affirm the judgment s of the trial court.

W. BRUCE WILLIAMS
JUSTICE

October 3 , 20 2 4 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: Bailey , C.J., Trotter, J., and Williams, J.