ROBERT DEAN WILKINS v. THE STATE OF TEXAS--Appeal from 377th District Court of Victoria County

NUMBER 13-03-660-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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ROBERT DEAN WILKINS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 377th District Court

of Victoria County, Texas.

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MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, Robert Dean Wilkins, was indicted for felony driving while intoxicated with a deadly weapon as a repeat offender. // A jury returned a guilty verdict and assessed punishment at thirteen years in the Institutional Division of the Texas Department of Criminal Justice and a $10,000.00 fine. The trial court has certified that this is not a plea bargain case and that Wilkins has the right of appeal. See Tex. R. App. P. 25.2. By one point of error, Wilkins complains that the trial court erred when it overruled his motion for mistrial that was based on the non-residency of a juror. We affirm.

I. Background

As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.II. Analysis

By his sole point of error, Wilkins complains that the trial court erred in overruling his motion for mistrial, a motion based on a juror being a non-resident of Victoria County.

The juror in question prepared his questionnaire and handed it to the clerk before voir dire. The State and Wilkins received a copy of the questionnaire. The trial court informed the prospective venire persons that, "You must be a citizen of the State of Texas and a resident of Victoria County." See Tex. Code Crim. Proc. Ann. art. 35.16(a)(1) (Vernon 1989) (providing that venire person who does not live in the county is subject to challenge). The juror was present and did not respond negatively or approach the bench when invited to do so. Wilkins made no objections.

Approximately half way through the trial, after the State had presented two of its four witnesses, a question was raised regarding this juror's residency. The juror informed the trial court that although his questionnaire reflected his home address as Mission, Texas, his home was in Victoria at the time of the trial. The juror explained that he was planning to move to the Valley "later on." In response to Wilkins's request for a mistrial the trial court stated, "[T]he [c]ourt recognizes Mission, Texas, is not in Victoria County, but also recognizes that his residence is more or less a state of mind, and his state of mind is in Victoria at this time and, therefore, the court will overrule your Motion for Mistrial." See Heiselbetz v. State, 906 S.W.2d 500, 509 (Tex. Crim. App. 1995) (holding juror's residence was where he received mail and voted, and where he intended his permanent residence to be); see also Mills v. Bartlett, 377 S.W.2d 636, 637 (Tex. 1964) (explaining meaning of term "residence" depends on circumstances surrounding person involved and upon present intention of individual).

An appellant must make a challenge for cause that a juror is not a resident of the county where trial is held, or the point is waived. See Mayo v. State, 4 S.W.3d 9, 12 (Tex. Crim. App. 1999). Rather than challenging for cause, Wilkins moved for a mistrial. On appeal, he argues that this should be enough to preserve error. We disagree. Wilkins's failure to challenge the juror during voir dire examination waived the error for our review. See Gaona v. State, 733 S.W.2d 611, 617-18 (Tex. App. Corpus Christi 1987, pet. ref'd) (holding appellant waived any error by failing to inquire about juror's qualifications during voir dire examination and by failing to assert his challenge at that time). To hold otherwise would be to invite either the defendant or the State to wait until a propitious moment to challenge a juror and move for a mistrial. Furthermore, the incorrect information given on the juror's form was not material information likely to affect his verdict. Id. (citing Matthias v. State, 695 S.W.2d 736, 741 (Tex. App. Houston [14th Dist.] 1985, pet. ref'd)). Appellant's sole point of error is overruled.

III. Conclusion

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 9th day of June, 2005.