Carlos Flores v. The State of Texas--Appeal from 290th Judicial District Court of Bexar County

No. 04-99-00373-CR
Carlos C. FLORES,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-3286
Honorable Mark Luitjen, Judge Presiding(1)

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: August 23, 2000

AFFIRMED

Carlos C. Flores appeals his convictions for deadly conduct and murder, arguing the trial court erred in failing to declare a mistrial after a juror admitted to misconduct and erred in failing to hold a hearing on his motion for new trial. We disagree and affirm the trial court's judgment.

Factual and Procedural Background

Flores was indicted for deadly conduct and murder. At the guilt-innocence phase of the trial, three of Flores' friends testified on his behalf, each identifying another man as the actual killer. However, the jury found Flores guilty of both charges and heard testimony in the punishment phase before retiring for the night. While driving home that night, one juror recognized one of Flores' friends who had testified during trial. The witness stood among a group of men and exchanged glances with the juror. The juror proceeded down the street, noticing in his rear view mirror that the men were now following him. The juror arrived at his house, grabbed a gun, and called friends. When he went back outside, he noticed a car driving by his house that sped off as soon as he saw it. According to the juror, the car stopped at the same place where he had previously seen the group of men standing. The juror then called the police, who came by and took a report. After listening to the juror's story, the police officer went down to the house where the juror had seen the group of men standing and asked the men some questions. The officer's questioning revealed that one of the men was a witness in the trial and he did recognize the juror. At no time did the witness or anyone else in his group threaten the juror. The officer returned, and he and the juror discussed his conversation with the witness. When the juror returned to court the next day, he informed a bailiff about the incident and the bailiff in turn informed the trial judge. The judge then called the juror before the court and asked the juror about what had happened. After the juror detailed the events of the previous night, the following exchange took place between the judge and the juror:

COURT: Now, did you share this with any of the other jurors?

JUROR: No.

COURT: All right. And you won't?

JUROR: No.

COURT: You know, I can understand why you would be surprised and everything to see the witnesses and somewhat apprehensive. But you're not going to hold that against the defendant, are you?

JUROR: Oh, no. That wouldn't have nothing to do - like I said, that had nothing to do with the trial. It's just, like I said, I fear for my family. I don't want anything to happen to the house, my family or any of the vehicles that are parked around my house.

COURT: Well, if you can assure me that, number one, it's not going to influence the way you deliberate on the defendant's punishment?

JUROR: Yes, ma'am. No, it won't. It won't affect me.

COURT: And that you will assure me that you will not even discuss this information with any of the other jurors?

JUROR: I assure you of that.

COURT: All right. Then we should be okay.

JUROR: Okay.

COURT: Thank you.

DEFENSE COUNSEL: May we inquire, Your Honor?

COURT: No. Okay. Thank you. Yes, sir.

DEFENSE COUNSEL: Your Honor, at this time we would like to make a motion based on the preceding sequence of events. We have essentially the same information that was reported to me last night, approximately 10:00 o'clock. I don't know of anything else that occurred. I got the information second hand.

We would like to move at this time, Your Honor, for a mistrial because this individual obviously has testified that he feels he is - he fears for his own life and fears for the life of his family. And that is as a consequence of what has happened in this courtroom and his duties in performing in this courtroom.

The trial court denied Flores' motion for mistrial. After the punishment phase resumed and closing arguments were finished, the jury sentenced Flores to life in prison. Flores later filed a motion for new trial, arguing the jury engaged in misconduct under article 36.22 of the Texas Code of Criminal Procedure. The trial court denied the motion without a hearing. Flores appeals.

Mistrial

In his first two points of error, Flores argues the trial court erred in failing to grant a mistrial because a juror had an unauthorized conversation about his case in violation of article 36.22 of the Texas Code of Criminal Procedure and the Due Process Clause of the United States Constitution. We disagree.

Standard of Review

We review a trial court's denial of a motion for mistrial under the abuse of discretion standard. See Kipp v. State, 876 S.W.2d 330, 339 (Tex. Crim. App. 1994); Rousseau v. State, 855 S.W.2d 666, 684 (Tex. Crim. App.), cert. denied, 510 U.S. 919 (1993). Under this standard, we "view the evidence in the light most favorable to the trial court's ruling," giving the trial court almost total deference on its findings of historical fact supported by the record. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). However, if the resolution of the factual issues does not turn upon an evaluation of credibility or demeanor, we review the trial court's determination of the law, as well as its application of the law to the facts, de novo. Id.

Discussion

Under article 36.22 of the Texas Code of Criminal Procedure, "[n]o 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." Tex. Code Crim. Proc. Ann. art. 36.22 (Vernon 1981). When a juror converses with an unauthorized person about a case, "injury to the accused is presumed and a mistrial may be warranted." Robinson v. State, 851 S.W.2d 216, 230 (Tex. Crim. App. 1991), cert. denied, 512 U.S. 1246 (1994). However, the presumed injury may be rebutted. Id. When a juror who has had an unauthorized conversation testifies he did not tell any other jurors about the incident and would not allow the incident to influence him in reaching a decision, a trial court does not abuse its discretion in denying a motion for mistrial. See id.; Thomas v. State, 699 S.W.2d 845, 853 (Tex. Crim. App. 1985); Ites v. State, 923 S.W.2d 675, 677-78 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd).

Flores contends the juror's testimony revealed he had a discussion with a police officer about a witness in the case, and the evidence fails to rebut the presumption that he was harmed by this unauthorized conversation. We disagree. The juror testified he believed the incident had nothing to do with the trial, he would not hold the incident against the defendant, the incident would not affect him in the way he deliberated on Flores' punishment, and he had not and would not discuss the incident with the rest of the jury.(2) Furthermore, the trial court, and not this court, is in the best position to judge the credibility of the juror. See Robinson, 851 S.W.2d at 230. Under the evidence, we hold the trial court did not abuse its discretion in denying Flores' motion for mistrial. See id.; Thomas, 699 S.W.2d at 853-54; Ites, 923 S.W.2d at 677-78.

New Trial Hearing

Under his next two points of error, Flores argues the trial court erred in failing to hold a hearing on his motion for new trial. However, Flores did not request a hearing on the motion. Consequently, Flores cannot complain on appeal that the trial court erred in failing to hold a hearing on his motion for new trial. Tidmore v. State, 976 S.W.2d 724, 732 (Tex. App.--Tyler 1998, pet. ref'd); Martin v. State, 823 S.W.2d 395, 397 (Tex. App.--Texarkana), pet ref 'd, 830 S.W.2d 137 (Tex. Crim. App. 1992); Smith v. State, 797 S.W.2d 243, 250 (Tex. App.--Corpus Christi 1990, pet. ref'd), cert. denied, 502 U.S. 975 (1991).

We overrule Flores' points of error and affirm the trial court's judgment.

Sarah B. Duncan, Justice

Do not publish

1. While the Honorable Mark Luitjen signed the judgments in this case, the Honorable Sharon MacRae presided over the trial and ruled on Flores' motion for mistrial and motion for new trial.

2. Flores argues the trial court should not have considered this evidence because he did not have a chance to cross-examine the juror and the juror did not testify under oath. However, a trial court may conduct its own inquiry into a matter of jury misconduct during trial. See Norman v. State, 588 S.W.2d 340, 347 (Tex. Crim. App. 1979), cert. denied, 446 U.S. 909 (1980) (When a trial court believes a juror may have committed misconduct by having an unauthorized conversation about the case, "it [is] perfectly proper for the court itself to make inquiries into possible jury misconduct," and "[d]eterminations as to jury misbehavior are up to the discretion of the court."); see e.g., Hall v. State, 711 S.W.2d 108, 112 (Tex. App.--Houston [14th Dist.] 1986, pet. ref'd); Shanks v. State, 643 S.W.2d 150, 151-52 (Tex. App.--El Paso 1982), rev'd on other grounds, 710 S.W.2d 585 (Tex. Crim. App. 1986). Furthermore, to the extent Flores argues the trial court erred in failing to allow him to cross-examine the juror, he waived this argument by failing to make an offer of proof to show the facts that he could have proved had he been allowed to examine the juror. See Love v. State, 861 S.W.2d 899, 900-01 (Tex. Crim. App. 1993); Jenkins v. State, 948 S.W.2d 769, 775 (Tex. App.--San Antonio 1997, pet. ref'd). Moreover, while the juror's testimony about the incident and the effect it would have on his deliberations was not under oath, Flores failed to object to the juror's testimony on this ground. He has thus failed to preserve this issue for review. See Beck v. State, 719 S.W.2d 205, 212 (Tex. Crim. App. 1986).