Adolfo Perez v. the State of Texas ( 2023 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-23-00203-CR
ADOLFO PEREZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 181st District Court
Randall County, Texas
Trial Court No. 31901B, Honorable Titiana Frausto, Presiding
August 31, 2023
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
Pursuant to an open plea of guilty, Appellant, Adolfo Perez, was convicted by a
jury of manufacture or delivery of cocaine in an amount of four grams or more but less
than 200.1 Punishment was assessed at forty-five years’ confinement. By a sole issue,
he contends the trial court abused its discretion in denying him a mistrial based on juror
misconduct. We affirm.
1 TEX. HEALTH & SAFETY CODE ANN. § 481.1123(a), (d).
BACKGROUND
During the punishment phase, the trial court admitted several exhibits, without
objection, showing Appellant had prior convictions for minor in consumption. Appellant
testified to some of those convictions as well as others. At the end of the day, the trial
court announced it had been presented with a note from a juror stating she had been in
the room with other jurors when she asked about the meaning of “enhanced minor in
consumption.” She did not indicate whether any other jurors responded to her inquiry but
was concerned she had violated the trial court’s instructions. Defense counsel
recommended the trial court give further instructions not to discuss the case until both
sides had rested and closed. The State asked for the juror to be removed. The trial court
tabled the discussion until the following morning.
The next morning, without the jury present, the trial court questioned the juror
about her note. The juror admitted another juror responded to her inquiry, but no
discussion was had when another juror reminded them they were instructed not to engage
in discussions until deliberations.
Defense counsel asked the juror whether other jurors engaged in the discussion,
and she answered only one had responded but others were present during the exchange.
The trial court also made inquiries after which the juror was removed from the courtroom.
The State conceded the juror violated the trial court’s instructions but did not urge
disqualification noting the infraction was “minor, and it was stopped so quickly, we think
we’ll be fine going forward” and withdrew its request for removal of the juror.
2
Defense counsel countered with a motion for mistrial based on jury misconduct,
which the trial court denied noting the juror’s conduct was “a minor infraction” that did not
involve the merits of the case or punishment deliberations. Thereafter, the State again
offered to have the juror removed and defense counsel responded if she was removed,
the juror she spoke with would also need to be removed, leaving only eleven jurors
(including alternate). The trial court noted the proceedings could continue with eleven
jurors. Defense counsel reaffirmed he was not seeking disqualification of the juror and
the punishment phase continued.
ISSUE—DENIAL OF MISTRIAL BASED ON JUROR MISCONDUCT
Appellant contends the trial court’s denial of his motion for mistrial violated his due
process rights. We disagree.
We review the trial court’s denial of a motion for mistrial for abuse of discretion.
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). A mistrial is an extreme
remedy, to be sparingly used for a “narrow class of highly prejudicial and incurable errors”
committed during the trial process. Turner v. State, 570 S.W.3d 250, 268 (Tex. Crim.
App. 2018). It 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. Ladd v. State, 3
S.W.3d 547, 567 (Tex. Crim. App. 1999). Accordingly, a trial court would be required to
grant a mistrial only when the objectionable event is so inflammatory that curative
instructions would most likely be unsuccessful in preventing the jury from being unfairly
prejudiced against the defendant. Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App.
3
2004). We must uphold a trial court’s ruling if it is within the zone of reasonable
disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010).
An appellate court considers the following factors in determining whether a trial
court abused its discretion in denying a motion for mistrial: (1) the severity of the
misconduct, (2) curative measures, and (3) the certainty of punishment assessed absent
the conduct. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Regarding
the severity of the misconduct, Appellant posits he was harmed by improper deliberations
and the trial court’s inadequate curative measure in failing to interview other jurors. When
the trial court asked defense counsel for his thoughts on the juror’s conduct, he
responded, “I would just give them further instructions that they’re not to deliberate or
discuss any of the evidence until after both sides have rested and closed.” The State
asked for the juror’s removal which defense counsel found unnecessary. When the trial
court noted the proceedings could continue with eleven jurors, defense counsel rejected
the remedy and claimed the questionable juror to be “a fine juror, and we’re not asking to
have her disqualified.”
The State contends, and we agree, Appellant defaulted his claim of harm by not
accepting the less drastic alternative to mistrial such as removal of the juror or proceeding
with eleven jurors. Ocon v. State, 284 S.W.3d 880, 885 (Tex. Crim. App. 2009). The
burden was on Appellant as the moving party to request further inquiry of all the jurors
and not on the trial court as he intimates on appeal. Id. at 886.
Regarding the certainty of punishment, Appellant has not shown the juror’s
misconduct contributed to his sentence. The forty-five-year sentence was within the
4
statutory range and Appellant had an extensive criminal history. That history included his
inability to comply with conditions of community supervision on several occasions.
Based on the record before us, we cannot say the trial court abused its discretion
in denying the motion for mistrial. The trial court offered less drastic alternatives to mistrial
and Appellant did not demonstrate the misconduct was incurable by such alternatives.
Appellant’s sole issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Alex Yarbrough
Justice
Do not publish.
5