Opinion filed October 3, 2024

In The

Eleventh Court of Appeals __________

No. 11-21-00290-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 firstdegree felony, and aggravated assault with a deadly weapon, a second-degree felony. 

See TEX. PENAL CODE ANN. §§ 19.02(b), (c), 22.02(a)(2), (b) (West Supp. 2023). In 

accordance with the jury’s punishment verdict, the trial court sentenced 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 aggravatedassault conviction. The trial court ordered the sentences to run concurrently. 
2

Appellant raises two issues on appeal, asserting that the trial court 

erroneously: (1) dismissed Juror No. 18 after the jury had been impaneled, and then 

impaneled 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.

The twelve-person jury and two alternates were selected and sworn on Friday, 

December 10, 2021, and reconvened for trial the following Monday. Prior 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 recessed

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 found good cause to excuse Juror No. 18 from jury service 

in that he would be unable to perform his duties as a juror, and the trial court added

the first alternate, Juror No. 35, as a member of the jury.

During its guilt/innocence deliberations, the jury requested to review three 

admitted videos. After identifying which exhibits the jury’s note described, the jury 

was brought back into the courtroom to view “them on the equipment . . . in the 

courtroom.” Due to the format of the videos and the device on which they were 
3

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 investigator 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 that they were not to deliberate during that time, nor to communicate with 

each other for any purpose unrelated to requests to view portions of the video 

exhibits. The foreperson confirmed that the jury 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. 

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

Eastland 2003, pet. ref’d) (Where the appellant 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 to 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 willingly 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 

Article 33.011 of the Texas Code of Criminal Procedure. See TEX. CODE. CRIM.

PROC. ANN. art. 33.011 (West Supp. 2023). Pursuant to Article 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 CRIM. PROC. 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. 

The 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, had 

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.” CRIM. PROC. art. 33.011(b).
5

there been error as Appellant argues, “[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, 

556 (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,

Juror No. 35, affected his substantial rights.

3

 See TEX. R. APP. 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 investigator 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 Article 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.” 

CRIM. PROC. art. 36.22 (West 2006). 

To preserve an Article 36.22 claim for appellate review, the party must object 

as soon as the issue becomes apparent. See TEX. R. APP. P. 33.1(a)(1), (2); Laws v. 

State, 640 S.W.3d 227, 229 (Tex. Crim. App. 2022) (citing Becerra 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 TEX. R.

APP. 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.” There 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.

Even if the issue were preserved and the trial court had erred, any error was

harmless. See TEX. R. APP. 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 CRIM. PROC.

art. 36.25 (“There shall be furnished to the jury upon its request any exhibits 

admitted as evidence in the case.”). The parties agreed that the investigator could 

show the videos. The trial court thoroughly admonished the State’s investigator and 

the jury about limiting any communications to only the playing and reviewing of the 

subject exhibits and prohibited any other conversation. On appeal, we presume that 

the jury followed the trial court’s instructions. See Thrift v. State, 176 S.W.3d 221, 

224 (Tex. Crim. App. 2005). That 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 judgments of the trial court.

W. BRUCE WILLIAMS

JUSTICE

October 3, 2024

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.