Delarosa, Carlos Mario v. The State of TexasAppeal from 416th Judicial District Court of Collin County (memorandum opinion )

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MH RN! and Opinion [iled this 26th day of March, 2013. In i he Qtnurt tit Appeahi fift1! Diitrirt nf ixa at i1zt1ta No. 05-11-00312-CR No, 05-1 1-00313-CR No. 05-1 1-00314-CR CARLOS MARIo DELAROSA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 4 16th Judicial District Court Collin County, Texas Trial Court Cause Nos. 416-80340-11, 416-81543-09, 416-81544-09 MEMORANDUM OPINION Before Justices Moseley, Francis, and Lang Opinion by Justice Lang Carlos Mario Delarosa appeals from convictions of evading arrest, possession with the intent to deliver cocaine, and three counts of aggravated assault with a deadly weapon. In his sole issue on appeal, Delarosa contends the trial court erred by determining that a juror who was no longer a Collin County resident was disabled and replacing that jul-or with the alternate juror. We decide against Delarosa on this issue and affirm the trial court s judgment. Because all dispositive issues are clearly settled in law, we issue this memorandum p. 47.4. opinion. See TEx. R. App. I. FACTUAL AND PROCEDURAL BACKGROUND After the close of evidence, hut before the jury was charged, the trial court held a hearing outside the presence of the jury and informed the parties that a haili [1 in charge of the jury received information from one juror that another Juror, Joshua Roundy, no longer lived in Collin County, The juror information sheet reflected juror Roundy had a post office box in Collin County, but did not include a physical address. The trial judge then called in juror Roundy to ask him whether he was a resident of Collin County. Juror Roundy informed the trial judge that he had left Collin County nine months prior to the trial, presently lived in Denton County, and had no plans to return to Collin County. After asking juror Roundy to wait outside the courtroom, the trial court stated he was disqualified, considering from serving on this jury and fits the definition of disabled in the Texas Code of Criminal Procedure. The defense counsel objected as follows. DEFENSE COUNSEL: I don t think that s the kind of disability that the Code is talking about. I think in terms of such things as mental or physical disability, not not circumstances that we now discover he s disqualified, like, for example, what if he s been convicted of theft, for example, which would be a disqualification. I don t think that I don t think it s I don t think that s the kind of disqualification we re talking about, because he was never qualified. It s not that he s become disabled in some fashion. He was he was never qualified to have put on the jury. THE COURT: All right. Your objection is overruled. The Court is going to excuse the juror and seat the alternate juror. After the trial court excused juror Roundy and seated the alternate juror, the jury found Delarosa guilty as charged on all charges and sentenced him to two years and a $10,000 fine for evading arrest, sixty years in a state jail facility imprisonment and a $100,000 fine for possession with intent to deliver cocaine, life imprisonment and a $10,000 fine each for two of the three counts of aggravated assault, and twenty years imprisonment and a $10,000 fine for the third count of aggravated assault. I)elarosa argues on appeal that the trial judge erred in finding juror Roundy disabled and should not have removed him. II. STANDARD OF REVIEW & APPlICABLE LAW A trial court s error in discharging a luror involves the fihilure to follow a statutory scheme; it is not of constitutional dimension. See Sneed v State, 209 S.W.3d 782, 788 (Tex. App.-Texarkana 2006, pet. ref d): Ponce v. State, 68 S.W.3d 718, 721-22 (Tex. App, Houston [14th Dist.] 2001, pet ref d), Texas Rule of Appellate Procedure 44.2(b) provides that an appellate court must disregard a non-constitutional error that does not affect a defendant s substantial rights, TEx. R. A1p. P. 44.2(b); see aLco Sneed, 209 S.W.3d at 788: Ponee, 68 S.W.3d at 721-22. A defendant is not harmed by the trial court s error in discharging a juror where: (1) the record shows the alternate juror seated in the discharged juror s place was subjected to the same selection process, properly sworn, heard all of the evidence, heard the trial court s charge, and seated before the jury retired; and (2) the record does not show any taint from the alternate juror seated in the discharged juror s place. See Sneed, 209 S.W.3d at 788; Poiice, 68 S.W.3d at 722. Hi. APPLICATiON OF LAW TO FACTS Delarosa argues the trial court erred by determining that a juror who no longer lived in Collin County was disabled and by replacing that juror with an alternate. He contends [tjhe applicable statute dealing with issues surrounding removal of a sitting juror because of death or disability is article 36.29, which provides that if a juror becomes disabled from sitting after the jury is impaneled and sworn, the remaining eleven jurors have the power to render the verdict. See TEx. Conc. CRIM. Pioc. art. 36.29(a). According to Delarosa, juror Roundy was not dead or disabled within the meaning of article 36.29, but would at most have been subject to disqualification for not being a f ohm County resident and should not have been removed over I)elarosas objection. The State responds that the trial court properly found juror Roundy was disqualified to serve on the jury because he did not meet the residency requirement iii article 35. 16. See TEX, ( ODE C RIM Piux art 5 I 6(a)( 1) Mayo v State 4 S W 3d 9, II I cx ( rim App 1999) (holding that article 35. 16(a)(l ) provides that a venireperson who does not live in the county is subject to challenge and that county citizenship is a part of the Article 35.16 requirement that a person be a qualified voter in the county under the constitution and laws of this state in order to be fit to serve as a juror. ) (citations omitted). The State contends the procedure in article 36.29 relied upon by Delarosa does not address the situation faced by the trial court here, that of replacing a disqualified juror with an alternate. According to the State, artic Ic 33.011 contains the procedure for removal of both a disabled and a disqualified juror and authorizes substitution with a qualified alternate. See TEX. CODE CR1M. PROC. art. 33.011. The record shows the alternate juror was subjected to the same selection process as the other jurors, was properly sworn, and heard all of the evidence and the trial court s charge. The alternate juror was seated in place of the discharged juror after the close of evidence, but before the jury retired. The record does not show any taint from the alternate juror. Even assuming, without deciding, the trial court erred by removing juror Roundy, Delarosa has not complained of any harm suffered from the replacement of the disqualified juror with the alternate juror, and no harm is evident from the record. Accordingly, we conclude Delarosa was not harmed by the trial judge s alleged error because it did not affect Delarosa s substantial rights. See TEx. R. App. P. 44.2(b); Sneed, 209 S.W.3d at 788; Ponce, 68 S.W.3d at 722. We decide against Delarosa on his sole issue. 4 IV. CONCLUSION The trial court s judgment is affirmed. JUSTI Do Not Publish Ta It. Ape. P.47 1103 12F.U05 5 (Lniirt i1 Tt1ij1 Fif1Ii Jitrirt nf rxa at JaI1ai JUDGMENT CARLOS MARIO DELAROSA, Appellant On Appeal from the 416th Judicial District Court, Collin County, Texas Trial Court Cause No. 41 6-0340- 11. Opinion delivered by Justice Lang Justices Moselev and Francis participating. No. 05 11 003 I 2CR TIlL STATE (.0 TEXAS. Appellee Based on the Court s opinion of this date, the judment ol the trial court is AFFIRMED. Judgment entered this 26th day of March, 2013. LANG J Lnitrt ppiat fiftli Iitrict nf Lrxzta at Dn11a; Lif JUDGMENT CARLOS MARIO DELAROSA, Appellant No, 05-11-003 13-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 4 16th Judicial District Court, Collin County. Texas Trial Court Cause No. 416-81 543-09. Opinion delivered by Justice Lang. Justices Moseley and Francis participating. Based on the Court s opinion of this date, the udgrnent ot the trial court is AFH RNIEI). Judgment entered this 26th day of March. 2() 13. LANG tiitrt ijf Fifth Jitrirt iprj{ uf ixa at Ja1La% JUDGMENT (ARI.()S MARIo DELAR()SA. Appellant No. 05 11 003 Il-CR V. [HE STATE 01- TEXAS, Appellee ( )n Appeal tiom the 4 16th Judicial District Court. Collin County. Texas Trial Court Cause No. 416-81 544-09. Opimon delivered by Justice Lang. Justices Moseley and Francis participating. Based on the Court s opinion of this date, the judgment of the trial court is AFFIRNIED. Judgment entered this 26th day ot March, 2013. IDOUGI$SS. LKNCI JUSTE

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