Salazar, Reyes

5/7/26

PD-0019-26

On Court’s Own Motion 

  1. “Did the court of appeals err to conclude that having ten regular jurors and two alternate jurors participate in the deliberation of Appellant’s guilt or innocence, when all twelve regular jurors were present and able and apparently willing to participate in deliberations, did not violate Article V, Section 13, of the Texas Constitution?”
  2. “Did the court of appeals err to conclude that any error in having two alternate jurors inside the jury room and actively participating in deliberations, in violation of Article 36.22 of the Texas Code of Criminal Procedure, was harmless under Rule 44.2(b) of the Texas Rules of Appellate Procedure?”

Two alternate jurors mistakenly deliberated on guilt in place of two sitting jurors, who were excused. When the error was discovered mid-deliberation, the alternates were permitted to continue as sitting jurors. The formerly sitting jurors were designated as alternates and remained present for the remainder of deliberations. The new alternates were admonished not to discuss anything they may have learned outside the courtroom or from other jurors. The trial judge also noted that none of the fourteen jurors had been told which ones were the alternates prior to this point. The jury found Salazar guilty.

On appeal, Salazar claimed that the presence of the alternate jurors violated his right to a twelve-person jury under Tex. Const. Art. V, § 13.  The court of appeals determined that the mix-up was erroneous under Tex. Code Crim. Proc. art. 33.011(b) because a trial court cannot replace alternates without the trial court first finding that they are disabled or disqualified.   The court relied on Becerra v. State, which stated, “[i]t is only when the alternate juror replaces a member of the jury that the alternate juror can be said to be a member of the regular jury.”  685 S.W.3d 120 (Tex. Crim. App. 2024).   Assuming that Salazar’s constitutional challenge was preserved, the court held that his constitutional right to a twelve-person jury was not violated because the alternate jurors, who did not know they were alternates, were qualified and were treated the same as regular jurors.

Salazar also claimed that the original alternates and former sitting jurors’ presence during deliberations constituted outside influences in violation of Tex. Code Crim. Proc. art. 36.22.  Art. 36.22 states: “No person shall be permitted to be with a jury while it is deliberating. No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court.”  The court assumed, without deciding, that the arrangement violated Art. 36.22.  It then held that Salazar was not harmed.  The original alternates had been treated as sitting jurors, and the record does not show that the new alternates were exposed to outside information or that they conveyed such information to other jurors during the deliberations.