Opinion
No. 11-06-00036-CR
Opinion filed January 17, 2008. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 70th District Court Ector County, Texas Trial Court Cause No. A-31,766.
OPINION
Johnny Ray Ocon appeals his conviction by a jury of the offense of aggravated sexual assault of a child. The jury assessed his punishment at life imprisonment in the Texas Department of Criminal Justice, Institutional Division. Ocon presents four points of error on appeal in which he contends that the trial court erred in denying him a mistrial when a juror heard an unauthorized person speak disparagingly about him, in failing to allow him to examine the victim regarding animosity between Ocon and the victim's mother, in refusing to permit him to present testimony by a witness who could testify about hostility between Ocon and the victim's mother, and in denying him a new trial for prosecutorial misconduct in failing to timely disclose potentially exculpatory evidence. We reverse and remand for further proceedings. Ocon contends in point one that the trial court erred in denying him a mistrial when a juror heard an unauthorized person speak disparagingly about him. When a juror converses with an unauthorized person about the case, injury to the person is presumed and a new trial may be warranted. Quinn v. State, 958 S.W.2d 395, 401 (Tex.Crim.App. 1997). However, the State may rebut the presumption of harm. Id. In determining whether the State rebutted the presumption of harm, appellate courts should defer to the trial court's resolution of the historical facts and its determinations concerning credibility and demeanor. Id. They should afford the same amount of deference to the trial court's rulings on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those ultimate questions turns upon an evaluation of credibility and demeanor. Id. During a recess in the trial, counsel for Ocon reported that, upon entering the men's restroom at the courthouse, he heard someone say, "Brenda." Naturally, there was no one named "Brenda" in the men's room. He then heard the person, who was apparently talking on a cell phone while using the restroom's facilities, say, "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 than this damn case." The caller continued talking, saying, "It's dirty, disgusting." Shortly thereafter, the caller said, "No, unless we convict the bastard today, then I'm kind of stuck here." Ocon's counsel indicated that another juror was in the restroom while the caller was having this conversation. He reported that the restroom was so small that one could not help but overhear everything. Defense counsel also emphasized that someone in the restroom can hear when someone walks in or is using a urinal. Defense counsel sought a mistrial. After hearing from defense counsel, the trial court indicated its reluctance to interview the involved jurors individually because it would accentuate the problem or to grant a mistrial because that would assume that the jury would not follow its instructions "at this point." The trial court also expressed the desire that the defendant receive a fair trial. The trial court denied the motion for mistrial but stated that the court would look for some way to make the jurors realize that there is "more to this than maybe their sentiments about the case so far." The two jurors were not questioned as to the conversation, whom it was with, or whether it was communicated to any other juror. Much later, near the conclusion of all testimony, the trial court repeated its instruction to the jury concerning the importance of not discussing the case even among themselves, not forming or expressing any opinion, and keeping an open mind. No evidence was presented rebutting the presumption that the unauthorized communication by one of the jurors was harmful to Ocon. There is no indication that the trial court's ruling turned on the trial court's evaluation of credibility or demeanor. We hold that the trial court abused its discretion by not granting Ocon's motion for mistrial. In addition to speculation concerning to whom the caller was talking and to what the caller might later have said in the jury room during deliberations, the State relies upon the cases of Rousseau v. State, 855 S.W.2d 666, 683 (Tex.Crim.App. 1993), and Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App. 1996). We find both cases to be distinguishable. In Rousseau, the bailiff testified he could hear someone in the jury room making some comment about the defendant not testifying. Rousseau, 855 S.W.2d at 682. The State pointed out that for all anyone knew it could be someone reading the portion of the court's charge that admonished the jury not to consider the defendant's failure to testify. Id. at 683. The trial court overruled the defendant's motion for mistrial that was based on the bailiff's testimony. Id. At the hearing on the defendant's motion for new trial, the State presented the affidavit of a juror who said that no one mentioned the defendant's failure to testify, other than reading the court's charge, and that the verdict was based on the evidence that was heard. Id. The juror swore that the defendant's failure to testify was not considered as evidence in any form or fashion at any stage of the deliberations. Id. The court held that, due to the speculative nature of the bailiff's testimony and in light of the proper charge instructions addressing the issue, the trial court did not abuse its discretion in refusing to disrupt the jury during deliberations in order to re-instruct the jury on an issue already included in the charge. Id. In the case at bar, the testimony concerning the misconduct was clear, not speculative. Also, in the case at bar, no evidence was ever presented as to whom the juror was talking or to what extent the juror's comments might have been passed on to other jurors. In Bauder, the court held that ordinarily, when a party seeks to introduce objectionable evidence, a mistrial being an extreme remedy for prejudicial events occurring during the trial process, a sustained objection and instruction to disregard are sufficient remedies for residual prejudice remaining after objections are sustained and curative instructions given. Bauder, 921 S.W.2d at 698. Unlike Bauder, the case at bar involves jury misconduct, not evidence introduced at trial. We do not consider the State's speculation about to whom the caller might have been talking or to what the caller might later have said during deliberations to be evidence rebutting the presumption of harm to Ocon resulting from the jury misconduct. We sustain point one. In view of our determination of this point, we need not consider the remaining points presented by Ocon. We reverse the judgment and remand for further proceedings.