Christopher Williams v. State of Texas--Appeal from 242nd District Court of Hale County
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NO. 07-00-0404-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MARCH 8, 2002
______________________________
CHRISTOPHER WILLIAMS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B 13457-9906; HONORABLE ED SELF, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
Following his plea of not guilty, appellant Christopher Williams was convicted by a
jury of delivery of a controlled substance and punishment was assessed at two years
confinement in a state jail facility and a $1,000 fine. Presenting one point of error,
appellant contends the trial court erred in denying his motion for mistrial after the jury was
sworn and a member of the jury informed the court that he had withheld material
information. Based upon the rationale expressed herein, we affirm.
Appellant does not challenge the sufficiency of the evidence. Thus, only the facts
necessary to our disposition of the appeal will be considered. After the trial judge
recessed the jury for lunch, a member of the jury, Paulo Posada, approached the judge
and informed him that when a witness for the State, Mr. Salazar, entered the courtroom to
be sworn, he recognized him by sight, but had not recognized his name when it was
mentioned with other witnesses during voir dire. Although Posada claimed to have known
Salazar for about 20 years, he nevertheless claimed he could be fair and impartial. When
the jury and counsel returned from lunch, the trial judge reported the events to counsel and
out of the jury’s presence, made a record of Posada’s conversation with him. Counsel for
the State declined to examine Posada and following examination by appellant’s counsel,
appellant moved for a mistrial which the trial court denied.
Appellant’s sole contention on appeal is that he was deprived of an opportunity to
challenge the juror for cause or to exercise a peremptory challenge to the juror and that
the trial court erred in denying his motion for mistrial. We disagree. The State contends
that the record does not demonstrate that the juror withheld any information during voir
dire. The record reflects that Posada did contact the trial judge during the noon recess and
inform him that he recognized Salazar when he was sworn as a witness. The reporter’s
record also shows that the trial judge allowed appellant’s counsel to examine Posada out
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of the presence of the remaining members of the jury and that appellant’s motion for
mistrial was overruled. However, the reporter’s record does not include a transcription of
voir dire examination.
In Bauder v. State, 921 S.W.2d 696, 698 (Tex.Cr.App. 1996), while discussing
mistrials and double jeopardy issues, the Court stated:
At the outset, we emphasize that mistrials are an extreme remedy for
prejudicial events occurring during the trial process.
Later, in Wood v. State, 18 S.W.3d 642, 648 (Tex.Cr.App. 2000), in discussing mistrials,
the Court noted:
A mistrial is a device used to halt trial proceedings when error is so
prejudicial that expenditure of further time and expense would be wasteful
and futile. Thus, a trial court may properly exercise its discretion to declare
a mistrial if an impartial verdict cannot be reached, or if a verdict of
conviction could be reached but would have to be reversed on appeal due
to an obvious procedural error. [Citations omitted]. The determination of
whether a given error necessitates a mistrial must be made by examining the
particular facts of the case. . . .
In Evans v. State, 622 S.W.2d 866, 871 (Tex.Cr.App. 1981), the defendant asserted
that two jurors “falsely swore” that they did not know three of the State’s witnesses. The
record did not contain a transcription of the voir dire examination. The Court concluded
that absent a showing that the defendant questioned prospective jurors during voir dire
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regarding names of potential witnesses and that they withheld information, the contention
was without merit. Id.
Although we must consider all matters that were before the trial court in the
underlying case to determine whether the trial court abused its discretion, matters
complained of that are not in the reporter’s record or in a bill of exception are not
preserved for appellate review. Tex. R. App. P. 33.1(a) and 33.2; Vaughn v. State, 634
S.W.2d 310, 312 (Tex.Cr.App. 1982). Given the record before us, we are unable to
determine that the trial court abused its discretion in overruling appellant’s motion for
mistrial. Appellant’s sole point of error is overruled.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
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