                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00210-CR

CEPHUS LOUIS JACKSON, JR.,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                         From the 272nd District Court
                              Brazos County, Texas
                        Trial Court No. 11-04303-CRF-272


                          MEMORANDUM OPINION


      In one issue, appellant, Cephus Louis Jackson Jr., challenges his conviction for

burglary of a vehicle with two or more prior convictions. See TEX. PENAL CODE ANN. §

30.04(a) (West 2011).    Specifically, Jackson asserts that the trial court abused its

discretion by failing to grant a mistrial after nine venirepersons observed Jackson being

fingerprinted by a police officer. We affirm.
                                     I.    BACKGROUND

        Jackson was charged by indictment with burglary of a vehicle with two or more

prior convictions. The State subsequently filed a notice of enhancement, alleging four

enhancements that could increase punishment to either a second-degree or third-degree

felony. Thereafter, the State filed a motion to compel the fingerprinting of Jackson.

        Prior to voir dire and the seating of the jury, Rebecca Wendt, a Crime-Scene

Investigator for the Bryan Police Department, fingerprinted Jackson at the front of the

courtroom. However, Investigator Wendt inadvertently took Jackson’s fingerprints in

front of eight venirepersons. One of the prosecutors noticed this and immediately

informed defense counsel, who objected to the process. Jackson was then “shuffled

back to the back room in front of the eight jurors.”

        Defense counsel informed the trial judge of what had happened. Specifically,

defense counsel objected that the fingerprinting process in this case violated Jackson’s

right to have a randomly selected jury panel.          Defense counsel then moved for a

mistrial. After consultation with defense counsel and the attorneys for the State, the

trial judge offered the following:

        THE COURT:          All right. Here’s what I’m going to do. I’m going to
                            give you two choices, both of which will mean that
                            you preserve your objection and your ruling on your
                            motion.

                                   Choice No. 1 is I overrule your motion and
                            your objection, and we go forward with the panel as
                            seated, including the—the eight.




Jackson v. State                                                                    Page 2
                                       Choice No. 2 is I overrule the objection and
                                your motion, and we let the eight go and proceed
                                with those that are left.

                                      You pick which one you want and preserve
                                your objections at the same time.

Jackson opted to “let the eight go.”

        It was later discovered that a ninth venireperson witnessed the fingerprinting of

Jackson, and that individual was subsequently excused from jury service. The jury pool

was then shuffled pursuant to the State’s request. The parties conducted voir dire with

the remaining jurors in the panel. Neither side made a challenge for cause. After both

the State and Jackson submitted their strike lists, the trial judge asked Jackson if he had

any objections to the twelve venirepersons that constituted the jury. Jackson stated that

he did not have any objections, and the jury was eventually seated.1

        Ultimately, the jury found Jackson guilty of the charged offense, concluded that

the enhancements were true, and sentenced Jackson to sixteen years’ incarceration in

the Institutional Division of the Texas Department of Criminal Justice. This appeal

followed.

                                    II.     STANDARD OF REVIEW

        We review the denial of a motion for mistrial under an abuse-of-discretion

standard. Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007). Under this

standard, we uphold the trial court’s ruling as long as the ruling is within the zone of

reasonable disagreement. Id. “‘A mistrial is a device used to halt trial proceedings

        1 The record indicates that the initial jury pool contained seventy-five people. However, after
excusing the nine jurors who witnessed the fingerprinting and three jurors due to illness, the jury pool
consisted of sixty-three.

Jackson v. State                                                                                 Page 3
when error is so prejudicial that expenditure of further time and expense would be

wasteful and futile.’” Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting

Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). It is appropriate only for “a

narrow class of highly prejudicial and incurable errors.” Id.; see Hawkins v. State, 135

S.W.3d 72, 77 (Tex. Crim. App. 2004). Therefore, a trial court properly exercise its

discretion to declare a mistrial when, due to the error, “an impartial verdict cannot be

reached” or a conviction would have to be reversed on appeal due to “an obvious

procedural error.” Wood, 18 S.W.3d at 648; see Ladd, 3 S.W.3d at 567.

                                      III.   ANALYSIS

        In his sole appellate issue, Jackson contends that the trial court abused its

discretion in failing to grant him a mistrial because nine venirepersons witnessed him

being fingerprinted by law enforcement.            In particular, Jackson asserts that

fingerprinting deprived him of the presumption of innocence; that the venire was

tainted; and the decision to excuse the nine jurors deprived him of a random jury.

A.      Applicable Law

        It is appellant’s burden to make a specific and proper objection and then call the

attention of the trial court to the specific complaint raised on appeal. Alvarado v. State,

822 S.W.2d 236, 239 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) (citing Little v.

State, 758 S.W.2d 551, 563 (Tex. Crim. App. 1988)). When a trial judge excuses jurors sua

sponte, appellant must establish that “‘he was tried to a jury to which he had a

legitimate objection.’” Id. (quoting Warren v. State, 768 S.W.2d 300, 303 (Tex. Crim. App.

1989)). “Merely asserting that appellant was tried to a jury to which he had a legitimate

Jackson v. State                                                                     Page 4
objection is insufficient to establish harm.” Id. (citing Green v. State, 764 S.W.2d 242, 247

(Tex. Crim. App. 1989)).     The Green Court established that, to preserve error and

establish harm in cases such as this, appellant must: (1) object to the excusal of the

juror; (2) at the conclusion of the voir dire claim that he is to be tried by a jury to which

he has a legitimate objection; (3) specifically identify the juror or jurors that he is

complaining about; and (4) exhaust all of his peremptory challenges and request

additional peremptory challenges. 764 S.W.2d at 247.

B.      Discussion

        Based on our review of the record, we do not believe that the trial court abused

its discretion in denying Jackson’s motion for mistrial. We first note that Jackson did

not preserve error and establish harm in accordance with the standard articulated in

Green. See id. Specifically, Jackson did not object to the jury that was ultimately sworn

in. See id. And though he initially objected, Jackson eventually agreed to the excusal of

the nine venirepersons. In any event, even if we were to conclude that he preserved

error, Jackson’s appellate arguments are unpersuasive.

        Jackson first argues that his fingerprinting in the front of the courtroom violated

the presumption of innocence at trial. In making this argument, Jackson equates his

fingerprinting with a trial judge allowing a defendant to be in shackles during trial. We

do not find this analogy to be relevant to this situation for several reasons. In the

instant case, the jury had not been seated, nor had voir dire commenced. However, in

the shackling cases cited by Jackson, a seated jury observed a defendant in shackles

during trial—facts that did not transpire in this case. See, e.g., Long v. State, 823 S.W.2d

Jackson v. State                                                                       Page 5
259, 282-83 (Tex. Crim. App. 1991); Wiseman v. State, 223 S.W.3d 45, 49-52 (Tex. App.—

Houston [1st Dist.] 2006, pet. ref’d). Furthermore, the jurors who observed Jackson

being fingerprinted were excused from serving on the jury, leaving the remaining jurors

presumably unaware of the fingerprinting event.

        Jackson also contends that the fingerprinting tainted the venire. There is no

evidence in the record to suggest that the jury that was ultimately empaneled observed

or knew about the fingerprinting incident. The jurors that did observe the incident

were promptly removed, thus confining any possible taint to those jurors that were

excused. Therefore, besides Jackson’s own speculation, there is nothing in the record to

support any suggestion of jury tainting.

        And finally, Jackson asserts that the excusal of the nine jurors deprived him of a

random jury. In support of this contention, Jackson fails to direct us to authority or

record citations. See TEX. R. APP. P. 38.1(i). Regardless, it is noteworthy that Jackson

was posed with a choice with regard to the fingerprinting incident. The trial judge

allowed Jackson to choose to either proceed with the nine venirepersons in the jury pool

or to excuse the nine venirepersons. Jackson chose to exclude the nine venirepersons.

Had he chosen to proceed with the nine venirepersons, Jackson could have asked

questions during voir dire to determine whether challenges for cause or peremptory

challenges should be used on the nine venirepersons. He could have also requested

additional peremptory challenges to strike the nine venirepersons.         See Green, 764

S.W.2d at 247.      In addition, with a jury shuffle, it was possible that the nine

venirepersons would never have been within the strike zone.           Additionally, it is

Jackson v. State                                                                    Page 6
noteworthy that, after the excusals, the jury pool contained sixty-three venirepersons

from which to choose.

        Moreover, the Texas Court of Criminal Appeals has stated that: “[A] defendant

has no right that any particular individual serve on the jury. The defendant’s only

substantial right is that the jurors who do serve be qualified. The defendant’s rights go

to those who serve, not to those who are excused.” Jones v. State, 982 S.W.2d 386, 393

(Tex. Crim. App. 1998). Jackson does not assert that the jurors who served on the panel

were unqualified, and the record does not support Jackson’s contention that he did not

receive a fair and impartial trial.

        Therefore, based on the foregoing, we do not believe that Jackson has satisfied

his burden in demonstrating that the trial court’s denial of his motion for mistrial was

an abuse of discretion. See Archie, 221 S.W.3d at 699-700; see also Wood, 18 S.W.3d at 648.

Accordingly, we overrule Jackson’s sole issue on appeal.

                                      IV.   CONCLUSION

        Having overruled Jackson’s sole issue on appeal, we affirm the judgment of the

trial court.




                                                AL SCOGGINS
                                                Justice




Jackson v. State                                                                     Page 7
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed June 20, 2013
Do not publish
[CR25]




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