Jack Wade, Jr. v. The State of Texas--Appeal from 145th District Court of Nacogdoches County

NO. 12-05-00066-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JACK WADE, JR., APPEAL FROM THE 145TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION

Jack Wade, Jr. appeals his conviction for deadly conduct. In his sole issue, Appellant contends that the jury s misconduct resulted in structural error requiring reversal. We affirm.

Background

Appellant was charged by indictment with deadly conduct. He pleaded not guilty and a jury trial began on January 19, 2005. Before the lunch break on the first day of trial, the trial court reminded the jury that they could not talk about the case. After the lunch break and outside the presence of the jury, the trial court informed counsel for the State and Appellant that he received a note from one of the jurors. He noted that they re not even suppose[d] to be discussing this case at this point in time. The note contained a few questions and the trial court observed that it did not know why the note [came] out. Neither the State nor Appellant made any observations or objections. When the jury returned, Appellant s counsel continued cross-examining a police officer and asked the officer questions that elicited answers to the juror s questions. At the conclusion of the trial, the jury found Appellant guilty of the offense of deadly conduct and assessed punishment at two years of imprisonment and a $1,000.00 fine. This appeal followed.

Jury Misconduct

In his sole issue, Appellant contends that jury began discussing the case prior to its submission to them for deliberation. He argues that this is misconduct, which resulted in structural error requiring reversal. The State contends that Appellant failed to preserve his jury misconduct complaint for appellate review. Notwithstanding Appellant s failure to preserve error, the State argues that the jury misconduct complained of does not fall within the limited class of cases involving structural error requiring reversal.

In order to present an issue for appellate review, the record must show that a complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1(a)(1). The request, objection, or motion must state the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a)(1)(A). The trial court must have ruled on the request, objection, or motion, either expressly or implicitly. Tex. R. App. P. 33.1(a)(2)(A). If the trial court refused to rule, the complaining party must have objected to the refusal. Tex. R. App. P. 33.1(a)(2)(B).

Assuming for purposes of argument that the jury prematurely discussed the case, the question is whether Appellant s complaint was one to which he was required to have made a timely, specific objection. Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003). Many constitutional rights may be waived by a failure to object. See id. at 894 (quoting Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002)). Appellant claims that the jury misconduct is structural error. Even when an error constitutes a violation of the federal constitution, the error is structural only if the Supreme Court has labeled it as such. Gray v. State, 159 S.W.3d 95, 97 (Tex. Crim. App. 2005). None of the errors listed as structural by the Supreme Court include jury misconduct or a complaint regarding a juror s note. Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246, 1265, 113 L. Ed. 2d 302 (1991). Because jury misconduct of the kind complained of by Appellant has not been labeled structural by the Supreme Court, this complaint may be waived by a failure to object. See Gray, 159 S.W.3d at 97; Aldrich, 104 S.W.3d at 894. The record does not reveal that Appellant timely objected to the juror s note or to the alleged jury misconduct. See Tex. R. App. P. 33.1. Therefore, he presents nothing for our review.

Disposition

The judgment of the trial court is affirmed.

JAMES T. WORTHEN

Chief Justice

Opinion delivered March 31, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)