Ocon v. State

• Decision Date: 03 June 2009
• Docket Number: No. PD-0297-08.,PD-0297-08.
• Citation: 284 S.W.3d 880
• Parties: Johnny Ray OCON, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

284 S.W.3d 880

Johnny Ray OCON, Appellant v. The STATE of Texas.

No. PD-0297-08.

Court of Criminal Appeals of Texas.

June 3, 2009.

Robert A. Leahey, Odessa, for Appellant.

Lisa C. McMinn, First Asst. State's Atty., Jeffrey L. Van Horn, State's Atty., Austin, for State.

OPINION

MEYERS, J., delivered the opinion of the Court in which WOMACK, KEASLER, HERVEY, and COCHRAN, JJ., joined.

Appellant, Johnny Ray Ocon, was charged with aggravated sexual assault of a child. On the second day of trial, defense counsel overheard one of the jurors talking on a cell phone in the men's restroom. The juror spoke negatively about the trial and its effect on his schedule. In addition to the talking juror and defense counsel, another juror was also in the restroom at the time of the conversation. Defense counsel moved for a mistrial, but the court denied the motion. The jury found Appellant guilty and assessed his punishment at life imprisonment. On appeal, Appellant cited four points of error. The first stated that the trial court erred by denying his motion for mistrial. On that point, the court of appeals reversed the trial court's judgment. We will reverse the court of appeals.

I. Facts

On the second day of proceedings, out of the jury's presence, defense counsel reported to the trial judge that while he was in the men's restroom, he heard someone in the stall say the following:

Brenda.

They've got me on this damn jury.

I don't know why the hell they picked me.

I would rather be on a double ax murderer then [sic] this damn case.

It's dirty, disgusting.

No, unless we convict the bastard today, then I'm kind of stuck here.

In addition to defense counsel and the juror who was speaking on the phone to someone named Brenda, there was also another juror in the restroom. Defense counsel moved for a mistrial. The trial judge acknowledged concern for the juror's behavior but ultimately denied defense counsel's motion, stating:

I am reluctant ... to grant a mistrial and assume that they're not going to follow my instructions, you know, at this point. Now, that may change. I think that if I brought them in and talked to them individually, it would just accentuate the problem.

* * *

I think what I might do is instruct them again, you know, on some of their responsibilities and keeping an open mind and do that, which I've tried to do. My main concern is to make sure your client receives a fair trial. I mean, that's my main job.

* * *

I think at this point I am going to deny your motion. But I appreciate your concern. I share it and I will, you know, see if there's something—I'll think about it and see if there is some way to remedy that the jurors, that they realize that there is more to this then [sic] maybe their sentiments about the case so far.

After this ruling, the judge reminded the jurors on four separate occasions during the guilt phase that they were not to talk about the case with anyone. The jury found Appellant guilty of aggravated sexual assault of a child and assessed his punishment at life imprisonment.

On appeal, Appellant argued four points, the first of which addressed the denial of his motion for mistrial. Ocon v. State, No. 11-06-00036-CR, 2008 WL 187932, at *1, 2008 Tex.App. LEXIS 376, at *1 (Tex. App.-Eastland Jan.17, 2008, pet. granted) (not designated for publication). The court of appeals reversed the judgment, concluding that the trial court abused its discretion by not granting the motion for mistrial. Id. 2008 WL 187932, at *1, 2008 Tex.App. LEXIS 376, at *4.

In response to the State's petition, we granted the following two grounds for review: (1) if a juror is overheard talking on a telephone in vague terms about his jury duty, may an appellate court assume he is receiving an unauthorized communication from an outside source, and (2) is it proper to presume harm from a certain category of non-constitutional error and to place a burden on the State to rebut that presumption. We will consolidate these points by discussing the burdens and presumptions raised by juror misconduct within the procedural context of a motion for mistrial.¹

II. Juror Communication

A juror must make decisions at the guilt and punishment phases using information obtained in the courtroom: the law, the evidence, and the trial court's mandates. Granados v. State, 85 S.W.3d 217, 235 (Tex.Crim.App.2002). When a juror "makes statements outside of deliberations that indicate bias or partiality, such bias can constitute jury misconduct that prohibits the accused from receiving a fair and impartial trial." Id.

Article 36.22 of the Code of Criminal Procedure states, "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." CODE CRIM. PROC. ANN. art. 36.22 (Vernon 2006). The primary goal of Article 36.22 is to insulate jurors from outside influence. Chambliss v. State, 647 S.W.2d 257, 266 (Tex.Crim.App.1983). Therefore, if a violation is shown, the effectiveness of possible remedies will be determined in part by whether the conversation influenced the juror.

A violation of Article 36.22, once proven by the defendant, triggers a rebuttable presumption of injury to the accused, and a mistrial may be warranted.² Hughes v. State, 24 S.W.3d 833, 842 (Tex. Crim.App.2000); Moody v. State, 827 S.W.2d 875, 899-900 (Tex.Crim.App.1992); Robinson, 851 S.W.2d at 230. When determining whether the State sufficiently rebutted the presumption of harm, we view the evidence in the light most favorable to the trial court's ruling and defer to the trial court's resolution of historical facts and its determinations concerning credibility and demeanor. Quinn, 958 S.W.2d at 401-02.

III. Mistrial

A mistrial is an appropriate remedy in "extreme circumstances" for a narrow class of highly prejudicial and incurable errors.³ Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004); Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). A mistrial halts trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999). Whether an error requires a mistrial must be determined by the particular facts of the case. Id.

A trial court's denial of a mistrial is reviewed for an abuse of discretion. Id. An appellate court views the evidence in the light most favorable to the trial court's ruling, considering only those arguments before the court at the time of the ruling. Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App.2004). The ruling must be upheld if it was within the zone of reasonable disagreement. Id.

Because it is an extreme remedy, a mistrial should be granted "only when residual prejudice remains" after less drastic alternatives are explored. Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim.App.2005). Less drastic alternatives include instructing the jury "to consider as evidence only the testimony and exhibits admitted through witnesses on the stand," and, questioning the jury "about the extent of any prejudice," if instructions alone do not sufficiently cure the problem. Arizona v. Washington, 434 U.S. 497, 521-22, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978) (White, J., dissenting). Though requesting lesser remedies is not a prerequisite to a motion for mistrial, when the movant does not first request a lesser remedy, we will not reverse the court's judgment if the problem could have been cured by the less drastic alternative. Young v. State, 137 S.W.3d 65, 70 (Tex.Crim.App.2004); see also Wood, 18 S.W.3d at 648 (concluding that the trial court did not abuse its discretion in denying the appellant's motion for mistrial when the appellant had not requested the less drastic remedy of a continuance).

IV. Analysis

The communication at issue may have constituted juror misconduct in violation of Article 36.22, which prohibits conversing with a juror about the case on trial.⁴ However, a violation of Article 36.22 does not automatically warrant a mistrial. Moody, 827 S.W.2d at 899. Reporting the conversation to the trial judge raised the rebuttable presumption of injury to Appellant. But we conclude that the State rebutted the presumption of harm by submitting that there was no way to verify defense counsel's account of the conversation and by reminding the judge that the jurors had been instructed not to talk about the case.⁵

Both the court of appeals and Appellant misinterpret the State's burden to rebut, specifically with regard to the issue of juror questioning. Ocon, 2008 WL 187932, at *2, 2008 Tex.App. LEXIS 376, at *3. Appellant's brief to the court of appeals stated:

However, this presumption may be rebutted by the prosecutor, as it was in Robinson, by questioning the juror and having the trial court determine the juror's impartiality and whether an unauthorized communication was disclosed to other jurors. [Robinson, 851 S.W.2d at 229.] However, no examinations of jurors [X] and [Y] were conducted by either the trial court or the prosecutors.

Appellant asserts that for the State to effectively rebut the presumption of injury, it had to initiate an inquiry of the jurors: "The presumption of harm in Appellant's case was not rebutted. No juror was questioned...." The court of appeals apparently agreed, as it cited the lack of questioning and the State's failure to rebut before reversing the trial court. Ocon, 2008 WL 187932, at *1-2, 2008 Tex.App. LEXIS 376, at *3-6.

But while questioning jurors about allegations of misconduct is a helpful tool for measuring the necessity for a mistrial, it is not required. Our case law does not establish juror questioning as a mandatory remedy, nor do the Texas Rules of Evidence.⁶ Rule 606(b) permits, but does not require, juror testimony relating to improper outside influence or qualification to serve.⁷ TEX.R. EVID. 606(b). And, contrary to Appellant's assignment of the burden to the court and the State, if jurors are...