## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 19

- 00221

- CR

JACE MARTIN LAWS , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 48,106

- A

Before Morriss, C.J., Stevens and van Cleef , JJ. Memorandum Opinion by Justice Stevens2 

### ME MORANDUM OPINION
A Gregg County jury convicted Jace Martin Laws of assaulting p eace officer s Nathaniel Lemmon and Christopher Byrdsong. See T EX
. P ENAL C ODE A NN
. § 22 .01(b

- 2) (Supp.)

. In a prior opinion from Laws’s appeal, we overruled six points of error and affirmed the trial court’s judgment . After granting a petition for review on Laws ’s complaint that the trial court erred by allowing an alternate juror to be pr esent in the jury room during deliberations , t he Texas Court of Criminal Appeals remanded this case to us to “determine if Article 36.22 [of the Texas Code of Criminal Procedure ] was violated when the alternate juror retired with the jury while it delibera ted, and if so, whether [Laws] was harmed.” Laws v. State , 640 S.W.3d 227, 231 (Tex. Crim. App. 2022) . In addition to raising these issues, Laws also argues , for the first ti me after remand, that the trial court violated his constitutional right to have a jury “composed of twelve persons.” T EX
. C ONST
. art. V , § 13. Because we find that (1) Laws cannot raise a new constitutional complaint following remand and (2) Laws was unharmed by any assumed error,

we again affirm the trial court’s judgment.
I. Fact ual and Procedural Background At trial, Lemmon, an officer with the Longview Police Department (LPD), testified that he encountered Laws while investigating a call for a suspicious vehicle at an electrical substation. According to Lemmon, dispat chers rep orted that the vehicle Lemmon found was involved in another crime under investigation. Laws exited the driver’s si de of the vehicle and Byrdsong, a patrol officer with the LPD, arrived at the scene. After Byrdsong ’ s arrival, Laws began trying t o take off his coveralls, revealing what looked like a gun tucked underneath them. Although Laws y elled out that the gun was fake, a fact that was later confirmed, Byrdsong drew3

his weapon when he saw Laws grab “what appeared to be a handgun.” From there , efforts t o restrain Laws turned into an all

- out brawl, as shown by the digital recor ding of his arrest , which was played for the jury

. Testimony and video showed that, i nstead of complying with Lemmon and Byrdsong’s instructions, Laws fled and jumped o ve r a barr i cade but was quickly caught by Byrdsong. Byrdsong test ified that Laws struck him in several places, including his genitals, while he was trying to apprehend Laws. Laws was able to evade Byrdsong and jumped back over the barricade where Lemmon wa s waitin g . Lemmon’s effort to subdue Laws als o failed. Lemmon testified that Laws struck and clawed at his face, scratched his gums, injured his ankle, and tried grabbing his genitals. Even though Lemmon tased Laws, Laws continued fighting and tried t o get back into the car. Byrdsong intervened when he saw Laws strike Lemmon but was again over taken by Laws, who grabbed his gun during the fight. Although Byrdsong was able to quickly get Laws’s hand off his gun, Laws grabbed the mace held by Lemmon an d sp rayed both Byrdsong and Lemmon with the mace before other LPD backup officers arrived at the scene to subdue Laws.
P hotographs of Byrdsong’s injuries were shown to the jury

. Before the charge conference, the trial court provided the partie s with the pr op osed j u ry charge, which included the following instruction s for both the guilt/innocence and punishment phases of trial : Juror Number 50 , you are an alternate juror. As an alternate juror, you are to sit inside the jury room while your fellow jurors d el ib erate

. You are not to participate in the deliberations, discussion nor are you to vote on the verdict. You are to sit silent in observation of your fellow jurors.4 Please disregard any comment, statement [,] or opinion by the alternate juror

. They sh all n ot be u se d in your deliberations. Laws objected to that portion of the charge, arguing the following: On page 9, the next

- to

- the

- last statement where it ’ s allowing a juror, the alternate juror, to remain in the jury room.

. . . .

. . . . Now I kno w the r e ’ s - - an d you ’ re instructing him not to speak, but, I mean, I think there ’ s just too much of a risk and the danger for them to bring input. We can ’ t police that. We just have to trust that. I think out of an abundance of caution I th ink we need t o do l ike w e al ways do and ask them to maybe go downstairs and wait in the room. And I don ’ t think it ’ s really wasting that much time if

-- I don ’ t anticipate something happening to a juror; but if it does, I don ’ t think it ’ s going to take lo ng for him to catc h up. B ut I just think the danger of possible abuse of that is just too

-- it ’ s too high, Judge, and I am going to object to that. The trial court overruled counsel’s request. 1 The trial court read the instructions, includi ng the prohibition about c ommu n icati ng w ith the alternate juror, to the jury. After the trial court confirmed from the foreperson that the jury had reached a unanimous decision, the trial court read the verdict of guilt on both counts in the ind ictment. Laws’s counsel declined t h e op p ortun it y to question the jury. Laws pled true to the State’s punishment enhancement allegation, making his second

degree

- felony offenses punishable under the range applicable for first

- degre e fel on ies

. See T EX
. P ENAL C ODE A NN
. §§ 12.42(b), 22.01( b

- 2)

. After hea ring punishment evidence, including that
Laws had been previously convicted of aggravated robbery of a bank and state

- jail

- felony thef

t

1 Citing judicial economy, the trial court reason ed : You know, I gues s I’ll take judicial notice of who breaks the law. This is just the new way be cause wh a t happens i s if one of the juror s was sick, one of them can’t serve, then the jury has to basically start all over. And I understand your

-- you m ak e a good valid poin t about the danger. I’ve done this several times before, it’s never been an is sue.5

and that he had to be extradited from Belize, t he jury assessed a sentence of thirty years’ impri sonment f

or the a ss ault o f Lemmon and fort y years’ imprisonment for the assault of Byrdsong

. II. Laws Cannot Raise a New Constitutional Complaint F ollowing Remand Laws argues that the alternate juror’s presence in the jury room violat ed Article V, Section 13 , of the Texas Constitution, which stat es th at “Grand and petit juries in the District Courts shall be composed of twelve persons.” T EX
. C ONST
. a rt. V , § 13. We conclude that Laws is not permitted to raise this issue for the first time after remand. In 2010, the Texas Court of Crim inal A ppea ls he ld that allowing an alternate juror into the deliberation room does not violate Article V , Section 13 , because “[a] s long as only the twelve regular jurors voted on the verdicts that the a ppellants received, it cannot be said t hat they were j udged by a jury of more than the constitutionally requisite number .” Trinidad v. State , 312 S.W.3d 23 , 28 (Tex. Crim. App. 2010)

. In other words, the fact “[t] hat the alternate jurors were present in the jury rooms during deliber ations, an d may even have parti cipa ted i n a ll but the voting, does not mean that the jury was ‘ composed ’ of more than twelve members for purposes of Article V, Section 13. ” Id. Citing to Trinidad , Law s ’s original briefing to this Court acknowledged that “the
pres ence of an alte rnate juro r in the room during deliberations [d id] not violate Article V, Section 13 of the Texas Constitution.” Because “ Rule 38.1 [of the Texas Rules of Appellate
P rocedure] requires that an app ellant designate all issues for re view in th e original brief ,” and
bec ause Laws’s original brief conc eded the lack of a constitutional issue, he is not permitted to6

now raise a new constitutional issue

. Garrett v. State , 220 S.W.3d 926, 928 (Tex. Crim. Ap p. 2007)

. In fact, t he only new issues tha t an appellant m ay bri ef o n rem and are those issues raised by the decision of the Texas Court of Criminal Appeals or necessary to its application on remand. Ex parte Chamberlain , 352 S.W. 3d 121, 123 n

. 3 (Tex. App.

— Fort Worth 2011, pet. ref ’ d) (o p. on rema nd) (stating that iss ues on rem and ar e limited to those raised by the opinion of the Texas Court of Criminal Appeals or its application on remand); Wooldridge v. State , 319 S.W.3d 747, 75 0 (Tex. App.

— E astland 2009, pet. ref ’ d) (op. on remand ) (sa me); Lopez v. State , 57 S.W.3d 625, 62 9 ( Tex. A pp.

— Corpus Christi 2001, pet. ref ’ d) (op. on remand) (same). In discussing the facts of our case, the Texas Court of Criminal Appeals specifically noted that, at
t rial, “[n]o one mention ed Article V of the Te xas Consti tution or whether the pre sence of a n alternate juror violated Appellant’s right to a twelve

- perso n jury.” Laws , 640 S.W.3d at 231

. Since no constitutional issue was either before this Court or the Te xas Court of Criminal Appeals, the case was r emanded to us to address only w heth er the alt er nate juror’s presence constituted a statutory violation and whether Laws was harmed by any statutory error

. Id. Also ,
we limited the additional briefing to a harm analysis and did not grant leave to address an entirel y new constitutional iss ue . 2 See Ex parte Chamberlain , 352 S.W.3d at 123 n. 3

.

2 In o ur letter inviting further brie fing on the issue of harm, we wrote the following: The Texas Court of Criminal Appeals has remanded this case to us t o “determine if Art icle 36.22 was violated when the alternate juror retired with the jury while it deliber a t ed, and, i f so, whether [Laws] was h armed.” Laws v. State , --- S.W.3d

--- , 2022 WL 302536 (Tex. Crim. App. Feb.2, 2022). While the issue of whethe r Article 36.22 was v iolated has already been fully briefed, we previously explained that Laws’s “br ief did n o t address the issue of how he w as ha rmed by the alternate juror’s presence in the d eliberation room.” Laws v State , 629 S.W.3d 350, 363 (Tex. App

. — Texarkana 2020), re v’d , 2022 WL 302536 (Tex. Crim. App. Feb. 2, 2022). As a result, we7

W e find that Laws conceded the lack of a constitutional issue in his opening br ief and
cannot now raise a new constitut ional complaint after remand from the Texas Co urt of Cri minal Appeals . As a re sult, w e o ver rule this point of error.
III. Laws Was Unharmed by A ny Assumed Error Article 36.22 of the Texas Code of Criminal Procedure , titled “Conversing with jury,”
has tw o provisions. The first provision states, “ No person sh all be permitted to be with a jur y

w hile it is deliberating. ” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 36.22. The second provision states,

“ No person shall be permitted to converse with a juror about the cas e on trial except in the presence and by the p ermission of the court. ” Id

. “ T he prim ary go al of Article 36.22 is to insu late jurors from outside influence. ” Ocon v. State , 284 S.W.3d 880, 884 (Tex. Crim. App. 2009)

. Laws argues that the trial court vio lated Article 36.22 when it permitted the alte rnate juro r to enter the jury roo m durin g d eli berations. Assuming error, we find that Laws was unharmed by the alternate juror’s presence in the deliberation room. A. We Assume Error Article 33.011 discusses t he procedures applicable to alternate jurors. Prior to 2007, an alternate j uro r was p roh ibi ted from entering the jury d eliberation room because of Article 33.011( b) , which formerly “ provided that ‘ [a]n alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider i ts verdict.” Trinid ad , 312 S. W.3 d a t 24 n. 2 (quoting Act of May 30, 1983, 68th Leg., R.S., ch. 77 5 , § 2 , 1983 Tex. Gen. Laws 459 3 , 4594 , amended by Act of May 24, 2007, 80th Leg., R.S., ch. 8 46, § 1, 2007 Tex. Gen. Laws request bri efing so l e ly related to the issue of harm. Thi s is not an invitation for additional briefing on any other issue. ( E mpha sis added)

.8

1774 ( eff. Sept. 1, 2007 ) ). Under the prior version of Articl e 33.011 , if a ju ror becam e sick or otherwise unable to continue deliberations, a mistrial would be required if the parties disagreed on whether to proceed with a n eleven

- person jury. House Research Org., Bill Analysis , Tex.
H.B . 1086, 80th Leg., R.S. (20 07).
To re me dy th is issue, i n 2007, the Texas Legislature amended Article 33.011(b) , which gives alternate jurors the “same functions, powers, facilities, securit y, and p rivileges as regular jurors.” T EX
. C ODE C RIM
. P R OC
. A NN
. a rt. 33.011(b) (Supp.)

. As a result o f the a mendment, an alte rnate juror is “ no longer

. . . discharged at the time that the jury retires to deliberate, but [ is ]

now . . . discharged after th e jury has rendered a verdict. ” Trinidad , 312 S.W.3d a t 24 (citi ng T EX
. C ODE C RIM
. P ROC
. A N N
. art. 33 .0 11(b) ). The 2007 amendment (1) “ allow [ed] qualified jurors to step in if a juror had a health issue or was guilty of misconduct and was dismissed aft er d eliberations beg [an],” (2) removed the need for a mis trial if t he parties could not agree to proceed w ith a n eleven

- person jury, a nd (3) saved “[t] he time and cost involved in starting the trial anew. ” House Research Org., Bill Analysis, Tex. H.B. 108 6, 8 0th Leg., R.S. As the Texas Court of Criminal Appeals has lamen ted , U nfortunately , the amended st at ute d oes not indicate whether the alternate juror should be allowed to be present for, and to participate in, the jury ’ s deliberations or, instead , w he ther he should be sequestered from the regular jury during its delib erations until such time as the alt er nate ’ s services might be required by the disability of a regular juror. Trinidad , 312 S.W.3d at 24. 3 To date, the question of what to do with an al ternate juror during deliberations has not been expressly resolved a nd has led to varie d prac tices in t he tria l courts. 4

3 The issue was contemplated during the legislat ive amendment, as shown by the Bill Analysis, which stated,9

As recently noted by the Waco c ourt, the Texas Court of Criminal Appeals in Trinidad

“ declined

. . . to determine whether the p rese nc e of an alternate juror during deliberations violated arti cle 36.22. ” Becerra v. State , No. 10

- 17

- 0014 3

- CR, 2 022 WL 1177391, at *2 (Tex. App.

— Waco Apr. 20, 2022 , pet. filed ) (mem. op., not designated fo r publication) (citing Trinidad , 312 S.W.3d a t 29

– 3 0 )

. Yet, it appeared to bless the procedure in Gonzales v. State , 616 S.W.3d 585 (Tex. Crim. A pp. 202 0 ) , w hich involved the question of whether the Sixth Amendment required the trial court to instruct the jury to begin its deliberations anew when a n alter na te juror replaced a regular juror. In describing the fact s of the c ase, the Texas Court of
C riminal A p pe als c haracterized the following instruction , allowing the alternate jurors to enter

It is u nclear wha t the a lternate jurors wou ld do while the jury is in deliberations and how having them outside of the deliberations w ould affec t jury verdicts. If called to fill in for another juror during deliberations, alternative jurors would have missed j ur ies’ analy sis a n d discussions up to that point, something that could put them at a disadvantage and have them make decisions wh en they we re less than fully informed. House Research Org., Bill Analysis, Tex. H.B. 1086, 80th Leg., R.S.

4 Judge Johnson’s c oncurrence in T r i nidad read : These c ases are before the Court because of a missing piece in the statutory amendments to Article 33.011(b) ; what is the trial judge to do with the retained a lternate jurors? The trial judge in this case apparently consider ed judicial econo m y and decided to hav e the alternate juror retire with the “real” jurors; if a juror became disabled aft er deliberations b eg an and the alternate juror was not privy to the d iscussions up to that point, the jury would have to begin again so a s to acqua int t h e alternate j uror wi th the current status of the discussions. The later in deliberations that the disa bility of a juror oc curred, the longer the catching

- up would take.
A n equally valid argument could be made that an alternate juror sho ul d remain o utsid e of the jury room du ring deliberations unless, and until, a juror became disabled. The disability of a juror is an uncom mo n event, and having the alternate juror remain ou tside would avoid just the situation we address here. In any even t, we are le ft to d iscern, if we can, what the legislature intended. More concise language about what to do with the ret ained alternate ju ro r would be most helpful. Trinidad , 312 S.W.3d at 30 (Johnson, J. , concurring).10

the jury room during deliberations, as “in accord with the [post

- 20 07] version of Article 33.011(b) ” : The law now requires th at the alt ernate jurors remain thro ugh the e n ti rety of the trial process. The alternate jurors will accompany the jurors into the jury room. The alternate jurors will not participate in a ny deli be rations or in any voting unless they are instructed to do so by this Court. The alternate ju rors must a t tenti vely listen to all deliberations as it is always uncertain if and when we might need to utilize one or both of them. Id. at 588. The c o urt con cl uded that , “even if the Sixth Amendment required the trial court to instruct the reconstitute d jury to de liber ate anew, the error in failing to do so was harmless beyond a reasonable doubt un der the circumstances of this case in which the alternat es atte nd ed deliberation before the substitution.” Id. at 593. In other wor ds, because “the alternat e jurors

. . . ha d the benefit of having attended the pre

- substitution deliberations,” the need to instruct the jury to deliberate anew was obviated. Id. at 594

. A fter Gonzales , the Waco c ourt in Becerra simply presume d statutor y error after noting that it had “ f

ou nd no authority that ha [d] established a hard rule that the presence of the alternate jurors in the jury room during deliberations [was] absolute l y improper ” and that the “ Court of Criminal Appeals [had not] d etermine [d ] otherwise

. ” Becerra , 202 2 WL 11773 91 , at *5. Out of an abundance of caution, we also assume, without deciding, that the alternate juror’s presence in
the jury room during delibe r at ion violated Article 36.22’s language prohibiting a “person

. . . to be with a jury while it is del iberating. ” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 36.22.11

B. Laws Was Not Harmed by the Assumed Error Laws argues that any Article 36.22 error creates a presumpt i on of harm that the State must rebut. We believe that Laws’s ar gument is based on a misreading of Oc on v. Stat e , 284 S.W.3d 880, 884 (Tex. Crim. App. 2009)

. As previously mentioned, Article 36.22 has two distinct parts. The first provision states , “ No pe rson shall be permitted to be with a jury while it is deliberat ing. ” The second provision s tates , “ No person shal l be pe rmitted to converse with a juror about the case on trial except in the presence and by the permission of the court. ” T EX
. C OD E C RIM
. P RO C
. A NN
. art. 36.22. Because a violation of the second provis ion consti tutes jury miscondu ct and str ikes at Articl e 36. 22’s goal of preventing outside influence , a violation of the second provision is serious and punishable by contempt. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 36.23. As a result, violations of the seco nd provisi on raise a rebuttab le presumpti on of harm.
I n ad dressing only the second provision of Article 36.22 following defense counsel’s allegation that he had heard a juror speakin g on the phone wi th an unknown person about the

case , the Texas Court of Criminal Appeals wrote that , “ if a violation is shown, the effec tiveness of possible remedies will be determined in part by whether the conversation influenced the juror. A violation o f Article 36.22, once proven by the defendant, triggers a rebuttable p r esumption of injury to the accus ed, and a mi strial may be w arran ted. ” Ocon , 284 S.W.3d at 884 (citing Hughes v. State , 24 S.W.3d 833, 842 (Tex. Crim. App. 2000) ). The “violation” as c ontemplated
in O con , was “convers[ing ] with a juror.” I d

. In our vi ew, Ocon ’ s application of its rul e indicates both that it wa s not intended to apply to the first provision of Article 36.22 and that the presumption of harm is not automatic. The appl ic ation in Ocon st ates ,12

The communicati on at issue may have constituted juror misc onduct in violation of Article 36. 22, which prohib its c onversing with a juror about the case on trial. However, a violation of Article 36.22 does not automatically warrant a mistrial. Report ing the conversation to the trial judge raised the reb uttable pr esumption of injury to Appellant. Id. at 885 (emphasis added) ( footnotes omitted) (citations omitted)

. The language in Ocon stating that a violation of Ar ticle 36.22 triggers a presumption of harm derives from Hughes v.
State , in which the T exas Court of Cr iminal Appea ls wrote that , “[w] hen a juror converses with an unauthorized person about the case, injury to the accused is presu med, and a new trial may b e warranted. ” Hughe s v. State , 24 S.W.3d 833, 842 (Tex. Crim. App. 2000)

. Hughes also clarified that an “appellan t has the burden of prov ing the allegation of jury misconduct.” Id. Because this case does not involve the secon d provision of Article 3 6. 22 or any complaint about communication with the jury, we do not believe Laws is entitl ed to any
Ocon /H ughes presum ption

. 5 This is be cause the “ defendant ’ s burden is not satisfied if there is no showing what a reported conversat ion was about. ” Hendrix v. State , No. 05

- 18

- 00 822

- CR, 2020 WL 3424915, at *4 (Tex. App.

— Dallas June 23, 2020 , no pet. ) (mem . op., not designa ted for publication ) 6 (c iting Stults v. State , 23 S.W.3d 198 , 207 ( Tex. App.

— Houston [14th Dist.] 2000, pet. ref ’ d) )

. I n other words, “ t he m ere presence of the alternate juror in the jury room during deliberations ” does not sat isfy the d efend ant’s initia l burden. I d. “ Wi thout a showing

5 Although Ocon clearly applied th e presumptio n of h a rm to t he second pr ovision of Article 36.22 only, we previously applied it to the first provision in D uke v. State , 365 S. W.3d 772 (Tex. App.

— Texarkana 2012, pet. ref’d), which is heavily cited by Laws. Our opinion in Duke relied on Oco n and Robins on v. S tate , 8 51 S.W.2d 21 6, 230 (Tex. Crim. App. 1991), but Ocon and Robinson were both cases involving the second provision o f Article 36.22 and questions of jury misconduct.

6 “Although unpublished cases have no precedential value, we may t ake guidan ce fr o m them ‘as an aid in developing reasoning that may be employed.’” Rhymes v. State , 536 S.W.3d 85, 99 n .9 (Tex. App.

— Texa rk ana 2017, pet. ref’d) (quoting Carrillo v. State , 98 S.W.3d 789, 794 (Tex. App.

— Amarillo 2003, pet. ref’d)).13

that the alternate juror actually participated in deliberations or communicated with the regular jurors ab out the case, [Appel lant] has not met his initial burden to raise a presumption of harm. ” Id. ; se e Cas tillo v. Sta te , 319 S.W.3d 966, 973 (Tex. App.

— Austin 2010, pet. ref ’ d) ( “ presumption of harm did not arise because defendant presented no evidence tha t the alternate jurors conversed with the regular jurors ” ); Patino v. State , No. 12

- 18

- 003 27

- CR, 201 9 WL 4197057, at *2 (Tex. App.

— Tyler Sept . 4, 2019, no pet.) (mem. op., not des ignated for publication) ( “ appellant did not meet his initial burden where he m ade no showing of an y conversation about the case between the alternate juror and the re gular juro rs du ring the tim e period involved ” ) ; Jon es v. State , No. 09

- 15

- 00092

- CR, 2015 WL 6998971, at *5

– 6 (Tex. App.

— Beaumont Nov. 12, 2015, pet. ref ’ d) (mem. op., n ot designated for pu blication) ( “ rejecting appellant ’ s claim that alternate juror ’ s pres ence durin g del iberations r aised presumption o f har m where appellant presented no evidence t hat the alternate juror ‘ participated ’ through verbal or non

- verbal means wi th the jurors and, therefore, did not meet his initial burden of showing harm ” ) ); see al so Martz v . Sta te , No. 13

- 1 7

- 00382

- CR, 2018 WL 3655 437, at *3 (Tex. App.

— Corpus Christi Aug. 2, 20 18, no pet.) (mem. op., not designated for publication);
Bo gu e v. State , 204 S.W.3d 828 , 829 (Tex. App.

— Texarkana 2006, pet. ref’d). In any event, the Texas Court of Criminal Appeals has directed us to a nalyze whether the assumed error “was harm ful under the standard that governs the reversibility of statutory e rr or,” which requires a d efendant to show that the error “affected substantial rights.” Trinidad , 312
S. W.3d 26 n. 15 (citing T EX
. R. A PP
. P. 44.2 (b)). An error does not affect substant ial rights if the appellate court has “a fair assurance from an examin at ion of the record as a whole that the error14

did not influence the jury, or had but a slight effec t. ” G onza lez v. S tate , 544 S.W.3d 363, 37 3 (Te x. Crim. App. 2018). In this case, the State’s evidence against Laws was strong. Byrdsong and Lemmon testif ie d about Laws’s assault s , which the jury watched on video. Before entering the deliberation room, the al ter nate juro r was instructed to sit silen t and not participate in the deliberations, and the jury was likewise instructed to disregard any comment, st at ement, or opinion by th e alternate juror. “ W e generally presume the jury follows the trial court ’ s inst ruc tions in the manner presented , ” a nd no thing in the record shows tha t the alternate juror communicated with other jurors through verbal or non

- verba l means or that any of th e other jurors were influenced by the alternate juror’s presence during de liberat ion

. Garcia v. State , 614 S.W.3d 74 9, 75 7 (Tex. Crim. App. 2019) (quo ting Colburn v. State , 966 S.W.2d 511, 520 (Tex. Crim. App. 1998)) ; see Ocon , 28 4 S.W.3d at 885 ( Even whe re defense counsel meets the initial burden , the State “ rebut [s] the presu mption of harm by

. . . reminding the judge that the jurors had been instructed not to talk about the case. ”) ; Hendrix , 2020 WL 342915 , at *5 ; Jones , 2015
WL 6 998971, at *5

– 6 ( conclu ding that allowing an alternate juror in the jury room during deliberation s was h arm less beca use t here was “ no eviden ce th at the alternate ‘ participated ’ through verbal or non - verbal means with the jurors” ) ; Bogue , 204 S.W.3d at 83 0 ( “ The testimony of t he alternate juror and of the foreman does nothing to show that the alternate ’ s
pres enc e in the jury room

. . . influenc ed th e jury ’ s verdict in any way

. . . . [N] o harm is apparent from the record. ” )

. After the verdict was read, the j ury confirmed that t heir decision was unanimous , and Laws’s counsel declined the opportunity to q uestion th em . At pu nishment,15

Laws pled true to t he State’s enhancement allegation , and the jury ’s assessment for each offense was less than half of the poss ib le range applicable to first

- degree felonies. Based on the record before us, we have a fair ass urance th a t t he assum ed statutory error did n ot in fluence the jury and conclude that Laws was not harmed by any alleged violation of Article 36.22. As a res ul t, we overrule his las t point of error. IV. Conclusion We affirm the trial court’s judgment.

Scott E

. Ste vens Justice Date Sub mitte d: June 2 2 , 2022 Date Decided: July 19 , 2022 Do Not Publish