Franks v. State , 961 S.W.2d 253 ( 1997 )

OPINION

TAFT, Justice.

This appeal involves a conviction for indecency with a child. The court sentenced the appellant, Gregory Andrew Franks, to nine years in prison and assessed a $5,000 fine. The complaints involved in this appeal center around exchanges between the appellant and three jurors during a recess in appellant’s criminal trial. In three points of error, the appellant asserts that the trial court abused its discretion in denying his motion for mistrial, for failing to order a separate competency hearing before a jury, and for failing to refer his motion for recusal to an administrative judge. The appellant also alleges that he was denied a fair trial guaranteed by the Texas Constitution because of ineffective representation and cumulative error.

Motion for Mistrial

In his first point of error, the appellant asserts that the trial court erred in denying his motion for mistrial. The appellant asserts that at least two of the three jurors he talked to received information clearly prejudicial to his defense. Furthermore, he asserts the trial court did not ask either of these jurors whether the information given them by appellant would affect their deliberations, nor did they explicitly claim that their encounter with the appellant would have no such effect. However, the judge did admonish each of the jurors that they were not to consider anything the appellant may have said in their deliberations, to which they agreed. In addition, the judge admonished the jurors not to divulge any information about their encounter with the rest of the panel.

During an early recess, the appellant approached juror Samford while he was waiting for the elevator. Before Samford realized what was happening, the appellant reached out and shook his hand and introduced himself. The appellant may have said something about meeting Samford the day before. Samford, upon realizing who the appellant was, stood by stonefaced and did not reply. The judge admonished Samford not to use this encounter in any part of his deliberations, and Samford agreed.

In another recess, the appellant entered the elevator with two other jurors. He attempted to exchange pleasantries with them, but the two stood by quietly not acknowledging him. The appellant then asked them how they felt about the trial’s progress and said something about alcohol or drug use. The two jurors continued to ignore him. They then got off the elevator and walked away from him. During the court’s examination of juror Tanner, the following colloquy occurred:

THE COURT: Okay. What was it that he said to you?

THE JUROR: He asked us how it was going, how we thought it was going, and made a remark about the alcohol and something about the drugs that was very— this part I am not even sure I even heard. Sounded like he just said Rosemary or basil or, you know, because I am not familiar with that kind of stuff; but, did refer to something like that. Okay.

THE COURT: Obviously, this is not to be any part of your deliberations?

THE JUROR: No, it has no—

THE COURT: Okay.

THE JUROR: I have no problem with that.

THE COURT: Okay. Great. If you would, please, when you go back to the jury room, please don’t discuss the fact that you and I have had this conversation outside the presence of the rest of the jury.

THE JUROR: In fact, I never said anything. Neither one of us said to the other jurors what was said to us. Just the one was spoken to and how we should handle it. (sic)

The court then examined juror Park. When asked whether there had been any conversation in the elevator between anybody about the case, Park replied that there had not been and that he had heard nothing about the case. He did relate that the appellant asked him what he thought, to which he did not reply. The court then admonished Park not to use this contact with the appellant in his deliberations and not to speak about it with any of the other jurors.

Article 36.22 of the Code of Criminal Procedure states “No 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. P. Ann. art. 36.22 (Vernon 1981). Rule 30 of the Rules of Appellate Procedure provides that a new trial shall be granted an accused where a juror has conversed with any other person in regard to the case. Tex.R.App. P. 30(b)(7). It appears no Texas ease has addressed the situation presented here involving a defendant who initiates unauthorized conversation with jurors.

The difficulty with treating a defendant initiating jury contact like other instances of unauthorized conversation with the jury is that it gives a defendant the power to create a mistrial by his own actions. The general rule is that injury is presumed whenever a juror receives information about the ease from an unauthorized source. Thus, if a defendant or his agent gives a juror information about the case it is impossible for the trial court to avoid granting a mistrial. A defendant who does not like the way the trial is going can deliberately cause a mistrial by engaging in such unauthorized conversation with jurors. By treating the error as reviewable, the foundation is laid for requiring a trial court to declare a mistrial whenever a defendant engages in a more blatant violation of article 36.22.

It is a well-settled principle of law that an accused cannot invite error and then complain of it. See Ex parte Guerrero, 521 S.W.2d 613, 614 (Tex.Crim.App.1975). The rule applies when a defendant is the “moving factor” creating the error. Id.

There is no question that the appellant was the moving factor creating the error in this case. Accordingly, we hold the rule of invited error applies here to preclude our review of point of error one.

The judgment is affirmed.

En banc review requested by TAFT, J., with respect to the first point of error. Tex.R.App. P. 100(f).

SCHNEIDER, C.J., and COHEN, MIRA-BAL, O’CONNOR, WILSON, HEDGES, TAFT and NUCHIA, JJ., voted for en banc review.

ANDELL, J., voted against en banc review. Joining in this portion of the opinion are SCHNEIDER, MIRABAL, COHEN, WILSON, HEDGES and NUCHIA, JJ.

ANDELL, J., concurring in the opinion on point of error one, joined by O’CONNOR and HUTSON-DUNN, JJ.