Opinion
NUMBER 13-17-00382-CR
08-02-2018
JESSIE RICHARD MARTZ, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 435th District Court of Montgomery County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Contreras
Appellant Jessie Richard Martz appeals from a conviction for burglary of a habitation with the intent to commit a felony, a first-degree felony. See TEX. PENAL CODE ANN. § 30.02 (West, Westlaw through 2017 1st C.S.). By one issue, appellant contends the trial court erred in denying his motion for mistrial after learning that an alternate juror was present during the jury's deliberations. We affirm.
I. BACKGROUND
This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2017 1st C.S.).
Appellant was indicted for the offense of burglary of a habitation with the intent to commit assault family violence. See id. §§ 22.01(b)(2), 30.02 (West, Westlaw through 2017 1st C.S.). He pleaded not guilty and chose to have punishment assessed by the judge.
At trial, the evidence showed that appellant broke into the home of an ex-girlfriend to rob her and that he assaulted her in the process. After the jury indicated it was ready to announce its verdict, but before the verdict was actually announced, the bailiff realized that an alternate juror had been sent back with the jury during their deliberations. After being notified of this, the trial court held a hearing outside the presence of the jury and clarified on the record that it was unknown whether the alternate juror had actually participated in the jury's deliberations. Neither party moved to question the alternate juror or any of the other jurors in any aspect, but appellant did move for a mistrial, which the trial court denied.
The jury was then brought in, the alternate juror was removed, and the trial court gave the jury the following instruction:
With that, I don't know what happened in your deliberations. No one here knows what happened in your deliberations. And what I am going to do is instruct you as an order of the Court to return to deliberating, and I am instructing you [that] you have to start your deliberations anew so to speak. You have to start them over. It has to be contained within the body of the jury only. So the alternate should not have been present, shouldn't have
been in the room, definitely should not have participated in the process. So that's an oversight, and I'll take full responsibility for that. So I'm going to ask that you return and that you start your deliberations anew, and if and when you reach a verdict please knock on the door. Thank you.
After retiring and deliberating a second time, the jury returned a guilty verdict, and the trial court subsequently sentenced appellant to ten years' incarceration at the Texas Department of Criminal Justice—Institutional Division. This appeal followed.
II. DISCUSSION
By his sole issue, appellant contends the trial court erred in denying his motion for mistrial after learning that an alternate juror was present during the jury's deliberations. Appellant's argument is two-fold: (1) the trial court erred because this was a violation of the Texas Constitution, and (2) the trial court erred because this was a statutory violation of article 36.22 of the Texas Code of Criminal Procedure.
A. Applicable Law and Standard of Review
"A mistrial is a device used to halt trial proceedings where error is so prejudicial that expenditure of further time and expense would be wasteful and futile." Guerrero v. State, 528 S.W.3d 796, 801 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). It is an appropriate remedy in extreme circumstances for a narrow class of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 886 (Tex. Crim. App. 2009). Because it is an extreme remedy, a mistrial should be granted only when residual prejudice remains after less drastic alternatives are explored. Id. at 884-85. "Less drastic alternatives include . . . questioning the jury 'about the extent of any prejudice,' if instructions alone do not sufficiently cure the problem." Id. at 885 (quoting Arizona v. Washington, 434 U.S. 497, 521-22 (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. Id.
We review the trial court's decision on a motion for mistrial for an abuse of discretion. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). We view the evidence in the light most favorable to the trial court's ruling, and we will uphold the ruling if it was within the zone of reasonable disagreement. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). A trial court abuses its discretion in denying a motion for mistrial only when no reasonable view of the record could support its ruling. Id.
B. Analysis
Appellant first argues that the trial court erred in not granting a mistrial because the jury was composed of more than twelve jurors in violation of the Texas Constitution.
Article V, section 13 of the Texas Constitution provides that "petit juries in the District Court shall be composed of twelve persons . . . ." TEX. CONST. art. V, § 13. In Trinidad v. State, the Texas Court of Criminal Appeals explained that the presence of an alternate juror in the jury room does not mean that the jury was composed of more than twelve persons, even if the alternate juror participated in deliberations but did not participate in voting. 312 S.W.3d 23, 28 (Tex. Crim. App. 2010); Castillo v. State, 319 S.W.3d 966, 970 (Tex. App.—Austin 2010, pet. denied); see also Piper v. State, No. 09-16-000-55-CR, 2017 WL 3081783, at *9 (Tex. App.—Beaumont June 19, 2017, no pet.) (mem. op., not designated for publication). Thus, the jury here was not "composed" of more than twelve jurors in violation of the Texas Constitution. See Trinidad, 312 S.W.3d at 27-28; Castillo, 319 S.W.3d at 970.
Nevertheless, appellant argues that, unlike Trinidad, there is no evidence in the record here that the trial court gave the alternate juror a specific instruction not to vote on the verdict. See Trinidad, 312 S.W.3d at 25. As a result, according to appellant, "it stands to reason that, in the absence of an instruction to the contrary, all persons present in the jury room would have voted on the verdict." We disagree. Here, after removing the alternate juror from the jury, the trial court gave instructions to the jury to return to the jury room and start their deliberations over, and we generally presume the jury followed the trial court's instructions. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (en banc); see Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (noting that the jury is presumed to follow an instruction to disregard evidence); Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996) (noting that the jury is presumed to follow the court's instructions as given in the jury charge). Although this presumption is rebuttable, appellant has pointed to no evidence in rebuttal which indicates that the alternate juror voted on the verdict. See Colburn, 937 S.W.2d at 490; Castillo, 319 S.W.3d at 971. Appellant could have moved to question the alternate juror or other members of the jury, but he failed to do so, and he never objected or informed the trial court—nor does he present an argument on appeal—of why the instruction given to the jury was erroneous or did not cure any error. See Castillo, 319 S.W.3d at 970. Thus, only twelve members of the jury voted on the verdict after the trial court removed the alternate juror and gave curative instructions. Accordingly, we conclude the trial court did not abuse its discretion in denying appellant's motion for mistrial based on the alleged constitutional violation. See Trinidad, 312 S.W.3d at 28 ("As long as only the twelve regular jurors voted on the verdict . . ., it cannot be said that [the defendant was] judged by a jury of more than the constitutionally requisite number.").
Appellant also argues that the trial court erred in denying his motion for mistrial because the presence of the alternate juror was a violation of article 36.22 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 36.22 ("No person shall be permitted to be with a jury while it is deliberating. 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."). Appellant argues that "when an unauthorized person is allowed to converse with the jury, injury to the accused is presumed and a new trial may be warranted." See Quinn v. State, 958 S.W.2d 395, 401 (Tex. Crim. App. 1997) (en banc); see also TEX. R. APP. P. 21.3(f) ("The defendant must be granted a new trial . . . when, after retiring to deliberate, the jury has received other evidence [or] when a juror has talked with anyone about the case . . . ."). However, appellant has the burden of proving his allegation of juror misconduct, Kelson v. State, 167 S.W.3d 587, 595 (Tex. App.—Beaumont 2005, no pet.); see Ocon, 284 S.W.3d at 884; Hughes v. State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000), and a violation of article 36.22 does not automatically warrant a mistrial. Ocon, 284 S.W.3d at 885.
In the case at hand, appellant did not carry his burden of proving an allegation of juror misconduct—i.e., there is no testimony nor any evidence in the record that any improper communication occurred. See Hughes v. State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000); Quinn, 958 S.W.2d at 401; Robinson v. State, 851 S.W.2d 216, 229 (Tex. Crim. App. 1991) (en banc); Benefield v. State, 389 S.W.3d 564, 570 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd). As mentioned above, appellant did not seek to question the jurors or the alternate as to any conversation between them or about any possible influence exerted by the alternate juror. Thus, on this record, there is no evidence raising a presumption of harm to appellant. See Ocon, 284 S.W.3d at 887 (noting that appellant presented no evidence that the juror received information as a result of a phone conversation); Castillo, 319 S.W.3d at 972-73 (concluding the defendant was not harmed by any violation of article 36.22 where the defendant "made no showing that the alternate jurors conversed with the regular jurors regarding the case in violation of the district court's instructions[,]" the defendant failed to meet his initial burden, and the presumption of harm did not arise); see also Piper, 2017 WL 3081783 at *9 (noting the record lacked evidence that the alternate juror participated or was present during jury deliberations); Jones v. State, No. 09-15-00092-CR, 2015 WL 6998971, at *6 (Tex. App.—Beaumont Nov. 12, 2015, pet ref'd) (mem. op., not designated for publication) ("We need not determine whether the trial court committed reversible error by allowing the alternate juror to remain with the jury during deliberations in the guilt phase of the trial because Jones presented no evidence that the alternate juror 'participated' through verbal or non-verbal means with the jurors, and therefore, he has not met his initial burden in showing harm."). Accordingly, we conclude the trial court did not abuse its discretion in denying appellant's motion for mistrial based on the alleged statutory violation.
Finally, we note that appellant did not exhaust the less drastic remedies available to him in addition to the remedy of a mistrial. "An appellant who moves for a mistrial without first requesting a less drastic alternative forfeits appellate review of that class of events that could have been cured by the lesser remedy." Ocon, 284 S.W.3d 886-87. Questioning the jury about the extent of any prejudice is a remedy less drastic than a mistrial. Id. at 885. Requiring the party alleging juror misconduct, not the State nor the court, to initiate juror questioning is consistent with our rules of error preservation. Id. at 886; see Hughes, 24 S.W.3d at 842; Robinson, 851 S.W.2d at 229. Here, appellant's first and only action was to move for a mistrial. Although appellant was not required to progress sequentially from least to most serious remedy, we will not reverse a trial court's judgment when a lesser, un-requested alternative, such as juror questioning, could have cured the problem. Ocon, 284 S.W.3d at 887.
Appellant's sole issue is overruled.
III. CONCLUSION
We affirm the trial court's judgment.
DORI CONTRERAS
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 2nd day of August, 2018.