Ryan Shea Blakeney v. The State of Texas--Appeal from County Court of Real County

MEMORANDUM OPINION
No. 04-03-00040-CR
Ryan Shea BLAKENEY,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court, Real County, Texas
Trial Court No. 02-05-1361-CR
Honorable W.B. Sansom, Jr., Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 8, 2003

AFFIRMED

Ryan Shea Blakeney ("Blakeney") appeals his conviction of furnishing alcohol to a minor. The sole issue Blakeney raises on appeal is that the trial court erred in denying his motion for mistrial based on statements made by a potential juror during a recess in voir dire. We overrule Blakeney's contention and affirm the trial court's judgment.

During a recess in voir dire, one of the potential jurors commented that she was aware of the circumstances underlying the case, but she did not comment on Blakeney's guilt or provide specific information regarding the circumstances. The juror who made the comments, and another potential juror who stated that the comments made her biased were struck for cause. Instead of moving to strike the remaining jurors for cause, Blakeney's counsel moved for a mistrial, which was denied. Blakeney's counsel used a peremptory strike to remove a potential juror who others identified as possibly being present but who denied hearing anything that was discussed. Blakeney did not request any additional peremptory challenges.

"Mistrial is a remedy appropriate for a narrow class of highly prejudicial and incurable errors." Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000). A trial court's denial of a mistrial is reviewed under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). "Determinations of historical fact and assessment of witness credibility and believability are left almost entirely to the discretion of the trial judge, and where there is conflicting evidence, there is no abuse of discretion if the motion [for mistrial] is overruled." Hughes v. State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000).

The proper procedure to follow if a defendant believes some fact renders a potential juror incapable or unfit to serve on the jury is to challenge the potential juror for cause. Tex. Code Crim. Proc. Ann. art. 35.16 (Vernon 1989). If a challenge for cause is erroneously denied, a defendant can only demonstrate harm when he: (1) exercises his peremptory challenge on the venire member whom the trial court erroneously failed to excuse for cause; (2) exhausted his peremptory challenges; (3) was denied a request for additional peremptory challenges; and (4) identified an objectionable juror who sat on the case. Johnson v. State, 43 S.W.3d 1, 5-6 (Tex. Crim. App. 2001).

In this case, Blakeney did not challenge the jurors who potentially overheard the conversations for cause, Blakeney did not request any additional peremptory challenges, and Blakeney has failed to identify an objectionable juror who sat on the case. Although Blakeney exercised one of his peremptory strikes to remove a potential juror who was identified as having been present when the statements were made, the trial court could have believed the potential juror's testimony that she did not have any knowledge of those statements, and such a determination would not constitute an abuse of discretion in view of the conflicting evidence. Hughes, 24 S.W.3d at 842. In view of the foregoing, we hold that the trial court did not abuse its discretion in denying Blakeney's motion for mistrial.

Alma L. L pez, Chief Justice

DO NOT PUBLISH