Shapreal James Arceneaux v. State ( 2009 )

  Opinion issued March 5, 2009

In The  

Court of Appeals

For The  

First District of Texas

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NOS. 01-08-00058-CR

01-08-00059-CR

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SHAPREAL JAMES ARCENEAUX, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause Nos. 1123648 & 1123649

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MEMORANDUM OPINION

A jury convicted appellant, Shapreal James Arceneaux, of the offenses of aggravated kidnapping, ⁽¹⁾ and aggravated sexual assault of a child. ⁽²⁾ Both charges were enhanced with one prior felony conviction. The jury found appellant guilty of both charges; appellant pleaded true to the enhancements; and the trial court assessed punishment at 40 years' confinement on each charge. We affirm.

In his sole point of error on appeal, appellant contends the trial court erred by refusing to sua sponte grant a mistrial after appellant pointed out that one of the jurors may have been sleeping. During the testimony of a nurse who examined the victim, the following exchange took place:

[Appellant]: The testimony that the prosecution is bringing is vital. I think one of the jurors is possibly falling to sleep.

[Trial Court]: Can you nudge him? I don't know how much he's heard and how much he hasn't. He may just be resting his eyes.

[Appellant]: I hope because I don't want to offend him.

[Trial Court]: He looks awake to me. Alright.

After this exchange, the testimony resumed. Appellant made no objection, nor did he request a mistrial. Generally, to preserve error for appellate review, an appellant must have made a timely objection in the trial court, even if the error is "incurable" or "constitutional." See Tex. R. App. P. 33.1; Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Deener v. State, 214 S.W.3d 522, 527 (Tex. App.--Dallas 2006, pet. ref'd). Appellant concedes that he did not object, but nonetheless argues that the trial court should have acted sua sponte and declared a mistrial. However, appellant cites no authority for this assertion. In fact, there is authority holding to the contrary. See Thieleman v. State, 187 S.W.3d 455, 456 (Tex. Crim. App. 2005) (error regarding sleeping juror preserved by noting fact that juror slept and then moving for mistrial); Menard v. State, 193 S.W.3d 55, (Tex. App--Houston 2006, pet. ref'd) (point of error regarding sleeping juror waived by failure to object, request a mistrial, or file a motion for new trial). We are aware that appellant represented himself at trial, but a pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. See Johnson v. State, 760 S.W.2d 277, 279 (Tex.Crim.App.1988).

Because appellant did not object or request a mistrial, his point of error regarding the juror who was "possibly" sleeping is waived. We overrule appellant's sole point of error and affirm the judgments of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).

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