Opinion
No. 05-06-00421-CR.
Opinion Filed February 1, 2007. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the County Criminal Court No. 3 Dallas County, Texas. Trial Court Cause No. MB04-37693-C.
Before Justices FITZGERALD, RICHTER, and FRANCIS.
OPINION
A jury convicted Ashley Channing Knox of driving while intoxicated, and the trial court assessed punishment at 180 days in jail, probated for two years, and a $1000 fine. In a single point of error, appellant complains the trial court abused its discretion in failing to grant a mistrial based on jury misconduct. We affirm. Paul Barnett testified he was traveling through an intersection on a green light when appellant made a left turn in front of him, causing a collision. Barnett approached appellant, smelled alcohol, and called the police. Appellant left the scene before the police arrived. Dallas police officer Joseph Boyle was dispatched to a hit-and-run accident and found appellant nearby trying to change the tire on his car. Boyle arrested appellant. Boyle's car had a video recorder, which taped appellant at the scene and while being transported to the police station. The tape was played for the jury during Boyle's testimony. Once Boyle concluded his testimony, the State rested its case, and the trial court recessed briefly. When the proceedings resumed some minutes later outside the presence of the jurors, defense counsel notified the court that jurors had been discussing the case during the break. The trial court brought the jury back into the courtroom long enough for the defense to rest and both sides to close. The trial court sent the jurors to lunch and instructed them not to discuss the case. The trial court then heard testimony from co-defense counsel Pamela Sue Fernandez that she had overheard jurors discussing the videotape and repeated specific comments that were made. Fernandez testified she recognized the voices of two jurors but said more than two participated in the discussion. Appellant moved for a mistrial, asserting the following:
There are two problems — there are two problems with jurors deliberating; one, it's a direct violation of their oath; two, you can't calculate the harm; but, three, because we are obligated, as officers of the Court, to bring this information to the Court's attention as soon as we are aware of it — and just for what it's worth, Judge, I've been practicing 30 years and have never had it happen this way. I've had other instances of jury misconduct, but not under these circumstances.
But, obviously, the other thing is, because we are obligated to bring it to the Court's attention, then — so it's like everybody now knows what the important issues are for them, are issues they've already deliberated on. . . .The trial court denied the motion. The next morning, the proceedings resumed with defense counsel again seeking a mistrial. Counsel asked the trial court "to take whatever action it deems necessary" and suggested "maybe the Court should question the jurors or do something else. I don't know." Counsel argued appellant had been irreparably harmed because the prosecution "now knows what they need to talk to the jury about." The State, however, responded that the defense was also "in a much better position in what they need to argue and close." No jurors were questioned about the discussions. On appeal, appellant complains about specific comments overheard by co-defense counsel that he asserts (1) show bias against him and (2) improperly place the burden of proof on him. Neither of these objections, however, were made below in the trial court. In fact, appellant never addressed the substantive content of the jurors' conversation. Because appellant's complaint on appeal does not comport with his objections in the trial court, we conclude it is waived. See Tex. R. App. P. 33.1; Swain v. State, 181 S.W.3d 359, 367 (Tex.Crim.App. 2005). We overrule the sole point of error. We affirm the trial court's judgment.