holding that while requesting lesser remedies is not a prerequisite to a motion for mistrial, when the movant does not first request a lesser remedy, a reviewing court will not reverse a trial court’s judgment if the problem could have been cured by the less drastic alternative.
How later courts described this case
- holding that while requesting lesser remedies is not a prerequisite to a motion for mistrial, when the movant does not first request a lesser remedy, a reviewing court will not reverse a trial court’s judgment if the problem could have been cured by the less drastic alternative.
- holding that the appellant forfeited appellate review concerning jury misconduct when he moved for a mistrial without asking to question the juror about the misconduct because questioning the juror would have been a "less drastic alternative” to a mistrial
- concluding the presumption of harm was rebutted by the fact that the jurors had been instructed not to discuss the case, the conversation could not be verified, and noting questioning of the jurors should have been at the defense’s behest
- holding that no indication existed that curative in structions failed to remedy situation where juror had phone call in presence of another juror in which he described defendant as “bastard” and case as “dirty, disgusting”
Written by the judges who cited it.
The opinion
*890 JOHNSON, J.,
filed a concurring opinion.
I concur in the judgment of the Court. Article 36.22 of the Code of Criminal Procedure states that “[n]o 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.” The bone of contention is what “about the case” means. The half of the conversation that was overheard by defense counsel certainly evidenced the juror’s frustration with being required to perform one of his duties as a citizen: “They’ve got me on this damn jury. I don’t know why the hell they picked me.” The juror clearly did not like the subject matter of the case: “I would rather be on a double ax murderer th[a]n this damn case. It’s dirty, disgusting.” And he could be seen as biased against the defendant: “No, unless we convict the bastard today, then I’m kind of stuck here.” But I do not believe that the content of that half of the conversation is properly called conversing “about the case on trial.”
As the Court’s opinion notes, the primary goal of Article 36.22 is to insulate jurors from outside influence. Chambliss v. State, 647 S.W.2d 257, 266 (Tex.Crim. App.1983). Based on the content of the known half of the conversation at issue and its apparent brevity, we may assume that “Brenda” had little, if anything, to say “about the case,” which was described to her, by inference, only as not being a double ax-murder. Nor, realistically, could she have done so. The juror did not name the defendant, state the offense alleged, name the court in which the case was being tried, or reveal anything about the testimony presented. These are not the circumstances that the legislature wanted to prevent. Mere whining about personal inconvenience does not constitute conversing “about the case.” Because I conclude that there was no violation of Article 36.22, I concur only in the judgment of the Court.