*24 OPINION

delivered the opinion of the court in which

In 2007, the Texas Legislature amended Article 33.011(b) of the Code of Criminal Procedure.1 According to the amendment, an alternate juror in a criminal case tried in the district court, if not called upon to replace a regular juror, shall no longer be discharged at the time that the jury retires to deliberate, but shall now be discharged after the jury has rendered a verdict.2 Unfortunately, the amended statute does not indicate whether the alternate juror should be allowed to be present for, and to participate in, the jury’s deliberations or, instead, whether he should be sequestered from the regular jury during its deliberations until such time as the alternate’s services might be required by the disability of a regular juror. In the instant cases, the trial court opted for the former contingency.3 The court of appeals held in each case that, in doing so, the trial court violated the constitutional requirement of a jury composed of twelve persons, or, alternatively, that the trial court violated the statutory prohibition against permitting any person not a juror into the jury deliberation room.4 We granted the State’s petitions for discretionary review, and consolidated the cases, in order to address the State’s contentions that the court of appeals erred to hold (1) that the appellants did not forfeit any complaint on appeal by failing to object when the jury retired to deliberate, and (2) that the alternate jurors’ participation in deliberations violated either the constitution or the statute. We now hold that there was no constitutional violation and that any complaint about a statutory violation was forfeited by the appellants’ failure to invoke the statute in a timely manner. We therefore reverse the judgments of the court of appeals and reinstate the judgments of the trial courts.

FACTS AND PROCEDURAL POSTURE

Trinidad

Trinidad was convicted of murder and the jury assessed his punishment at a life sentence. At the conclusion of the presentation of evidence at the guilt phase of *25trial, but before the jury charge was read and the parties presented closing argument, the trial judge gave the following instruction in open court in the presence of the jury:5

Let me make explanation before I begin reading the charge of the Court to Ms. Coward who is the alternate juror. We’ve recently had a change in the law prior to September 1st. The alternate juror is excused at this point in time but there’s been a change in the law so now you will actually go into the jury room and be part of the deliberation process and only thing that you will not do is, you will not vote with the jury. If anyone of the jury members were to become disabled during deliberation process then you would step in and serve and vote at that time but at this time we have twelve and you do not vote.

Trinidad made no objection on the record to the trial court’s permitting the alternate juror to “be part of the deliberation process!,]” either at this point in time or at any other. Thus, as far as the record reveals, alternate juror Coward retired ■with the jury at the guilt phase of its deliberations and was at least present during all the jury’s deliberations, and Trinidad interposed no legal complaint of any character.

Adams

In a consolidated trial, Adams was convicted of three instances of aggravated sexual assault and sentenced by the jury to concurrent twenty-five-year prison terms.6 At the close of evidence at the guilt phase of trial, just before the trial court read the charge to the jury, the trial court announced in open court in the jury’s presence:

Ms. Hurt, as the alternate juror prior to September 1st your duties would have been complete but we’ve had a change in the law that took effect beginning after September 1st that says you are to continue with the jury until a verdict is reached. So you will go with the twelve members of the jury into the jury room for the deliberations but you will not be voting on the verdict unless one of the jurors were to become disabled during the deliberations.

Adams failed to object to this instruction on the record, and alternate juror Hurt was apparently present during both the guilt phase and the punishment phase of the jury’s deliberations.

On Appeal

On appeal, both appellants argued that, in allowing the alternate jurors to be present during jury deliberations, the trial court violated Article V, Section 13 of the Texas Constitution,7 and Articles 33.01, 33.011, 36.22, and 36.29 of the Code of Criminal Procedure.8 The State countered *26that the appellants procedurally defaulted these claims by failing to assert them at trial. Even if the appellants did not forfeit them, the State further asserted, the claims have no merit because the trial court properly and constitutionally implemented the amendment to Article 38.011(b).

The court of appeals reversed both convictions.9 With respect to the forfeiture issue, the court of appeals held that Article V, Section 13’s guarantee of a twelve-member jury is a “waiver-only” right, under the rubric of Marin v. State.10 While such a right can be affirmatively waived, it can never be forfeited by inaction. Because the appellants did not affirmatively waive the right to a twelve-member jury, the court of appeals concluded, it could reach the merits of their claims though raised for the first time on appeal.11 On the merits, the court of appeals concluded that allowing the alternate jurors to participate in deliberations violated Article V, Section 13,12 and that this constitutional error was not harmless beyond a reasonable doubt.13

Alternatively, the court of appeals seems to have held that, even if the alternate juror in each case should not be considered an extra juror in violation of Article V, Section 13, the alternate jurors constituted “an outside influence” in contemplation of Article 36.22’s prohibition against non-jurors in the jury room during deliberations.14 With respect to this alternative, statutorily based holding, the court of appeals did not ask whether this claim also invokes an absolute prohibition or a waiver-only right under the Marin rubric, such that it was appropriate for the court of appeals to address it on the merits. Nor did the court of appeals undertake an analysis of whether its alternative, statutory basis for finding that the trial court erred was harmful under the standard that governs the reversibility of statutory error.15

ARTICLE Y, § 13

From its inception in the Texas Constitution of 1876, Article V, Section 13, has plainly required that “petit juries in the District Court shall be composed of twelve” members.16 Trial by jury in a felony case in Texas has long been thought to mean a verdict returned by exactly twelve jurors — no more and (unless up to *27three jurors should die or become disabled, subject to statutory regulation) no fewer. At least at the beginning, a felony conviction premised upon the verdict of a jury comprised of any number but twelve (at least where none of the twelve has died or become disabled during the course of the trial) was considered to be error of a fundamental nature in Texas, which could be vindicated even when raised for the first time on appeal.17 Soon after we decided Marin, we reiterated that Article V, Section 13’s requirement of a jury composed of twelve members “has been held to be non-waivable even with the consent of the State and the defendant.” 18 But two years later, in Hatch v. State,19 we revisited the issue and overruled Hernandez, essentially holding that, because the right to a jury trial is itself subject to express waiver, both constitutionally and statutorily,20 a defendant may also waive his statu*28tory right, under Article 36.29(a) of the Code of Criminal Procedure, to a jury-verdict rendered by a jury composed of twelve members.21 The court of appeals found in these cases that the constitutional requirement of a jury composed of exactly twelve members is a waiver-only provision in contemplation of Marin, which a defendant must expressly waive in the trial court before it can be said that he has lost it for appeal.

But we need not resolve that question today. Assuming that the court of appeals was correct to address the merits of the appellants’ constitutional complaints, we hold that it erred to conclude that the appellants suffered the verdict of a jury of more than twelve members in violation of Article V, Section 13. In neither of the appellants’ cases was the alternate juror allowed to vote on the ultimate verdict in the case, at either stage of trial. As long as only the twelve regular jurors voted on the verdicts that the appellants received, it cannot be said that they were judged by a jury of more than the constitutionally requisite number. That the alternate jurors were present in the jury rooms during deliberations, and may even have participated in all but the voting, does not mean that the jury was “composed” of more than twelve members for purposes of Article V, Section 13.22 The error in these cases, if any,23 in allowing the alternates to be present with the regular jurors during their deliberations is more usefully conceived of as an error in allowing an outside influence to be brought to bear on the appellants’ constitutionally composed twelve-member juries. As the court of appeals recognized, such error, if any, would be controlled by Article 36.22, which is the statute that expressly prohibits any outside “person” from being “with a jury while it is deliberating.” 24 As we have already noted, how*29ever, the court of appeals did not expressly address whether this statutory error was subject to forfeiture, consistent with Marin.

ARTICLE 36.22

Article 36.22 is couched in mandatory terms (“No person shall be permitted to be with the jury while it is deliberating ... ”).25 But this does not necessarily mean that the statute identifies an absolute prohibition or a waiver-only right that can be invoked for the first time on appeal under the Marin categories.26 Nothing else about Article 36.22 suggests that the Legislature regarded the requirement of a jury completely free of outside influence to be so indispensable to the fairness of trial that the system simply will not tolerate any conviction obtained under those circumstances, regardless of the will of the parties or how trivial the outside influence might be. The right to a jury verdict entirely untainted by any potential outside influence strikes us as properly categorized among the “[a]ll but the most fundamental rights [that] are thought to be forfeited if not insisted upon by the party to whom they belong.”27 We perceive no reason that a defendant should not be deemed to have forfeited the protections of Article 36.22 in the event that he becomes aware of its breach during the course of the trial but fails to call the transgression to the trial court’s attention so that the error may be rectified or, barring that, so that the defendant can make a timely record for appeal. For these reasons, we agree with former Presiding Judge Onion that a violation of Article 36.22 is subject to the contemporaneous objection rule28— at least so long as the violation comes to the attention of the defendant, as it did in these cases, in time for him to make an objection on the record.

In each of the instant cases, the trial court announced in open court on the record that it would permit the alternate juror to remain “with the jury while it is deliberating.” The appellants had every opportunity to object that the trial court’s attempts to comply with the recent amendment to Article 33.011(b) of the Code of Criminal Procedure,29 would run afoul of Article 36.22, but they did not do so. Under these circumstances, we sustain the State’s assertion that these appellants have procedurally defaulted their statutory arguments on appeal, and we hold accordingly that the court of appeals erred to reach the merits of their statutorily based claims.

CONCLUSION

We conclude that the court of appeals in these cases (1) erred to conclude that the trial court subjected each appellant to trial *30by a jury of more than twelve members, in violation of Article V, Section 18, and (2) erred to address the merits of each appellant’s argument that the presence of the alternate juror during deliberations violated Article 36.22. The judgments of the court of appeals are reversed, and the judgments of the trial court are reinstated.

concurring.

These cases are before the Court because of a missing piece in the statutory amendments to Article 38.011(b); what is the trial judge to do with the retained alternate jurors? The trial judge in this case apparently considered judicial economy and decided to have the alternate juror retire with the “real” jurors; if a juror became disabled after deliberations began and the alternate juror was not privy to the discussions up to that point, the jury would have to begin again so as to acquaint the alternate juror with the current status of the discussions. The later in deliberations that the disability of a juror occurred, the longer the catching-up would take.

An equally valid argument could be made that an alternate juror should remain outside of the jury room during deliberations unless, and until, a juror became disabled. The disability of a juror is an uncommon event, and having the alternate juror remain outside would avoid just the situation we address here.

In any event, we are left to discern, if we can, what the legislature intended. More concise language about what to do with the retained alternate juror would be most helpful.

I concur in the judgment of the Court.