Roderick Simons v. The State of Texas--Appeal from 203rd District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Opinion

Roderick Simons

Appellant

Vs. Nos. 11-01-00378-CR and 11-01-00379-CR -- Appeals from Dallas County

State of Texas

Appellee

The jury convicted Roderick Simons of murder, and the trial court assessed his punishment at confinement for 50 years.[1] After the punishment hearing in that case, the trial court granted the State=s motion to adjudicate guilt in an earlier case, adjudicated appellant guilty of aggravated robbery, and assessed his punishment at confinement for 25 years and a $750 fine.[2] We modify and affirm.

Issues Presented

Appellant filed one brief for both appeals, raising two issues for appellate review. First, he argues that the trial court erred in the aggravated robbery case by including a $750 fine in its written judgment because the fine was not included when the trial court orally pronounced a sentence of 25 years imprisonment. Then, appellant argues that the trial court erred in the murder case by not declaring a mistrial when one of the jurors, after the jury was impaneled, approached the bench and stated that he did not Afeel like@ he should serve on the jury.

The $750 Fine

After the jury returned its verdict that appellant was guilty of murder, the trial court accepted appellant=s plea of Atrue@ to the allegation of one prior felony offense and assessed the punishment in Cause No. F01-00588-SP at confinement for 50 years. At the conclusion of that proceeding and before appellant and the attorneys were excused from the courtroom, the reporter=s record shows the following proceedings:

THE COURT: Now, we still have the probation violation. Any argument? He plead true to it, to at least portions of it. Any argument on that?

[DEFENSE COUNSEL]: Judge, we would ask the Court to consider to have the sentence of the murder case and the probation case run concurrently.

THE COURT: Yes, I=ll do that. Any argument on the probation violation?

[PROSECUTOR]: Your Honor, just procedurally [the State would] ask the Court to take judicial notice of the contents of the entire court=s file.

[DEFENSE COUNSEL]: And we have no objection to that.

THE COURT: Yes, I=ll judicially notice all matters in the file, and I=ll hear any arguments or testimony on the probation violation.

* * *

THE COURT: It=s the Order, Judgment, Decree of the Court you be taken by the Sheriff of Dallas County, by him safely kept, turned over to an authorized receiving agent of the Department of Corrections, where you will be confined in Cause No. F93-25662, where you will serve a sentence of twenty-five years beginning today, [and with credit for] any time you=ve got in jail, and it will be concurrent with the murder conviction. (Emphasis added)

The first issue for appellate review is sustained. The judgment of the trial court in Cause No. F93-25662-IP, 203rd District Court of Dallas County (our Cause No. 11-0100379-CR) is modified to eliminate the fine. We agree with the Dallas Court of Appeals=s holding on the identical issue in Abron v. State, 997 S.W.2d 281, 282 (Tex.App. - Dallas 1998, pet=n ref=d):

Where a conflict exists between the oral pronouncement and [the judgment], the oral pronouncement controls. The record shows the trial court did not assess a fine as part of appellant=s sentence following adjudication of guilt. We have the power to modify incorrect judgments when the necessary data and information is available to do so. See TEX.R.APP.P. 43.2(b). (Citation omitted)

See also McCoy v. State, 81 S.W.3d 917 (Tex.App. - Dallas 2002, pet=n filed).

The Reluctant Juror

After the voir dire examination of the jury panel, the trial court called the names of the jurors who were chosen, administered their oath, and gave them preliminary instructions. When the court recessed for the day, the record shows that one of the jurors approached the bench. Relevant portions of the reporter=s record read as shown:

THE COURT: What=s your problem?

JUROR: I don=t think I can serve. I never had an opportunity to express myself. I don=t feel like that I can serve from what I=ve heard so far.

THE COURT: The jury is gone. I want the lawyers to hear what you=ve got to say. Go ahead and speak up so we can all hear you.

JUROR: I just feel like I=ve built a bias as far as just hearing the case to this point, you know, just from the way the prosecution is presented compared to the way - -

THE COURT: You=ve developed a bias.

JUROR: I think that I have and I don=t know, it=s hard for me to come up here and say that, but there was never an opportunity when we were talking about everything to say that really. I wasn=t going to say oh, I couldn=t give somebody ninety-nine years sentence or understand motive. There was no issue I could really pinpoint and say I=ve got a problem with that or that.

THE COURT: You=re saying you=ve developed a bias. Towards whom? Who is your bias towards?

JUROR: I don=t think that=s relevant.

THE COURT: Well, if you=re not biased toward the Defendant or biased toward the State - -

JUROR: I=m definitely biased towards one because I can see kind of where the case is going, kind of what the Defense is going to be, what the prosecution is going to be. That=s just - -

THE COURT: Well, you haven=t heard any testimony yet.

JUROR: I can just tell you the way I feel and it=s probably not right, but I didn=t think it would be fair to the Court for me to sit over there.

THE COURT: I can=t let you go now. You=re asking me to let you go and I can=t do it.

JUROR: Then you=re probably going to have a juror that already has a tendency.

[DEFENSE COUNSEL]: Could we find out what his tendency is?

[PROSECUTOR]: Objection, Your Honor, to the Defense attorney even talking to him right now.

THE COURT: He=s been sworn as a member of the Jury, and I wish you would have said something earlier.

JUROR: It=s awkward....

THE COURT: Well, you=re a member of the Jury and I=m just going to ask you to keep an open mind and listen to the testimony, listen to the lawyers and do the best you can. That=s all I can tell you now. We=ll see you in the morning.

Before testimony began the next morning, the trial court gave both sides an opportunity to move for mistrial. Appellant=s attorney said: AHaving consulted with our client, Your Honor, the client wants to proceed with the trial.@ The jury then came into the courtroom, and the State called its first witness.

The State cites Brown v. State, 907 S.W.2d 835, 839 (Tex.Cr.App.1995), where the court discusses a problem similar to the one before us:

Despite a trial judge=s discretion in declaring a mistrial based on manifest necessity, the trial judge is required to consider and rule out Aless drastic alternatives@ prior to granting a mistrial. Thus, prior to granting a mistrial based on manifest necessity, the trial judge must review the alternative courses of action and choose the one, which, in light of all the circumstances, best preserves the defendant=s Aright to have his trial completed before a particular tribunal.@ Where a trial judge grants a mistrial despite the available option of less drastic alternatives there is no manifest necessity and we will find an abuse of discretion. (Citations omitted)

In the case before us, the trial court gave appellant the opportunity to move for mistrial before the first witness was called. Appellant wanted to proceed to trial before the jury which had been selected. We hold that the trial court did not err in proceeding with trial. Further, any claim of error was waived by appellant=s refusal to file a motion for mistrial. See TEX.R.APP.P. 33.1. The second issue for appellate review is overruled.

This Court=s Ruling

The judgment of the trial court in Cause No. 11-01-00378-CR is affirmed. The judgment of the trial court in Cause No. 11-01-00379-CR is modified to delete the fine and, as modified, is affirmed.

BOB DICKENSON

SENIOR JUSTICE

November 21, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Wright, J., and

McCall, J., and Dickenson, S.J.[3]

[1]Cause No. F01-00588-SP in the 203rd District Court of Dallas County (our Cause No. 11-01-00378-CR).

[2]Cause No. F93-25662-IP in the 203rd District Court of Dallas County (our Cause No. 11-01-00379-CR).

[3]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.