                           NUMBERS 13-14-00728-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

QUINTON MOODY,                                                              Appellant,

                                            v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 130th District Court
                         of Bexar County, Texas.


                         MEMORANDUM OPINION
              Before Justices Rodriguez, Garza and Longoria
                Memorandum Opinion by Justice Longoria

      A jury found appellant Quinton Moody guilty of the felony offense of retaliation.

See TEX. PENAL CODE ANN. § 36.06 (West, Westlaw through Chapter 46, 2015 R.S.). His

punishment range was enhanced for being a habitual felony offender; the jury sentenced

him to thirty years in prison. See id. § 12.42(d) (West, Westlaw through Chapter 46, 2015

R.S.). In one issue on appeal, Moody argues that the trial court abused its discretion in
denying his motion for a mistrial and motion for new trial because the bailiff engaged in

an unauthorized conversation with a juror while the jury was deliberating. We affirm.

                                                I. BACKGROUND1

        On May 18, 2013, Officer Carl Davis was dispatched to a reported family

disturbance. The disturbance report stated that the suspect was threatening others with

a knife. When Davis arrived at the scene, the suspect was no longer present. Davis

testified that while he waited outside of a convenience store nearby to see if the suspect

walked by, he saw Moody. Davis noted that Moody fit the description of the suspect in

the family disturbance. Davis approached Moody, placed him in handcuffs, and sat him

in the back of the police car to ascertain his identity. Davis testified that this process took

only two or three minutes. After Davis verified that Moody was not the suspect he was

looking for, Davis removed the handcuffs and told Moody he was free to leave. However,

instead of leaving, Davis asserts that Moody began to argue with him, claiming that Davis

must have been part of the “old school mafia.” Davis testified that Moody opened the

back door of the police car and told Davis to take him to jail. Davis responded by placing

handcuffs on Moody and telling him to calm down. A few minutes later, Davis released

Moody from the handcuffs and again told him to leave. However, according to Davis,

Moody walked towards Davis, holding his arms up in an aggressive fashion, and

challenging Davis to a fight. Davis testified that he was under the impression that Moody

was threatening to harm him so he arrested him for retaliation and placed him in the patrol




        1This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio pursuant
to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through Ch. 46, 2015 R.S.).

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car. On the way to jail, Davis asserts that Moody commented that “once he gets out of

jail, that [Officer Davis’s] wife would be pushing up daisies.”

       The bailiff told the State and defense counsel that he had a conversation with a

juror during the jury deliberation of the guilt/innocence phase of the trial. According to the

bailiff, a juror approached the bailiff and asked what would happen if the jury was split

eleven to one and could not reach a decision. The bailiff responded that the jury could

either continue to deliberate or, in the alternative, the jury might be sequestered. The

bailiff then explained that sequestering means that the jury could be held there overnight

or longer. Defense counsel filed a motion for mistrial; the trial court denied the motion.

The jury eventually found Moody guilty of retaliation and further found Moody guilty of

being a habitual felony offender. The jury sentenced Moody to thirty years in prison.

Moody filed a motion for new trial, which the trial court denied. This appeal followed.

                                           II. DISCUSSION

       In one issue, Moody argues that the trial court abused its discretion in denying

both his motion for a mistrial and his motion for a new trial. He argues that the trial

court should have granted the motions because a juror had a conversation with the

bailiff during jury deliberation about sequestration.

a.     Applicable Law

       We review a trial court’s refusal to grant a mistrial or new trial for abuse of

discretion. See Colyer v. State, 428 S.W. 3d 117, 122 (Tex. Crim. App. 2014); Hawkins

v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) (en banc). Under this standard, we

review the evidence in the light most favorable to the trial court’s ruling and uphold the

trial court’s ruling if it is within the zone of reasonable disagreement. Webb v. State, 232



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S.W. 3d 109, 110 (Tex. Crim. App. 2007). We limit our review to whether the trial court

abused its discretion—we do not perform a harm analysis. See Benefield v. State, 389

S.W.3d 564, 571 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd). Mistrial should only

be granted in “extreme circumstances” where the prejudice to a party is completely

incurable. Hawkins, 135 S.W.3d at 77.

       To show that a mistrial is warranted on these grounds, “[t]he complaining party

must establish that a communication occurred between a juror and someone else, that

the communication involved the specific case at trial, and that it consisted of more than

an innocuous, unrelated comment or exchange.” Alexander v. State, 919 S.W.2d 756,

767 (Tex. App.—Texarkana 1996, no pet.); see TEX. CODE CRIM. PROC. ANN. art. 36.22

(West, Westlaw through Chapter 46, 2015 R.S.) (“No person shall be permitted to be with

a jury while it is deliberating. 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.”). However,

“[a]n appellant who moves for a mistrial without first requesting a less drastic alternative

forfeits appellate review of that class of events that could have been cured by the lesser

remedy.” Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005).

b.     Analysis

       Reviewing all the evidence in the light most favorable to the trial court’s ruling, we

conclude that the trial court did not abuse its discretion in denying the motion for mistrial

and motion for new trial. See Alexander, 919 S.W.2d at 767. It is undisputed that a juror

engaged in conversation with the bailiff. And the question involved the case at hand, in

general. See id. However, Moody has not established that the conversation consisted

of more than merely innocuous remarks. See id. (observing that “there is no error when



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the bailiff communicates to the jury on logistical matters”). Moody argues that the bailiff’s

comments to the juror about sequestration were akin to an Allen or “dynamite” charge,

unfairly coercing the jurors into reaching a hasty conclusion. See Allen v. United States,

164 U.S. 492, 501 (1896).

       However, the record does not support this conclusion.           The bailiff gave no

instruction that the jurors should work together to reach a consensus to avoid mistrial; the

juror simply asked about the consequence of a hung jury, and the bailiff responded,

accurately, about the potential results. The bailiff did not say anything that could be

construed as coercing the juror to reach a conclusion; the bailiff gave no charge or

instruction in connection with his explanation of sequestration that would pressure the

juror or the jury. There is no evidence that the juror returned to the jury room with “new

information about the case.” See Ocon v. State, 284 S.W.3d 880, 887 (Tex. Crim. App.

2009); see also Sandoval v. State, 409 S.W.3d 259, 278 (Tex. App.—Austin 2013, no

pet.) (“The paramount issue is whether appellant received a fair and impartial trial;

therefore, the analysis must focus on whether the juror was biased as a result of the

improper conversation.”). Knowing the consequences of a hung jury does not bias a juror.

       Furthermore, Moody did not request jury questioning to establish the alleged jury

misconduct. See Barnett, 161 S.W.3d at 134 (holding that the trial court did not abuse its

discretion in denying a motion for mistrial when appellant only moved for mistrial without

requesting the lesser alternative of jury questioning to prove jury misconduct). Without

questioning the jury, there is no evidence in the record to establish that the bailiff’s

comments had an unfair and incurably prejudicial effect on the jury. However, even if the

bailiff-juror conversation was inappropriate, the trial court could have reasonably



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concluded that this was not an “extreme circumstance” that required a new trial. See

Hawkins, 135 S.W.3d at 77; cf. Alexander, 919 S.W.2d at 766 (holding that a mistrial

should have been granted when the bailiff conversed with a juror, passed the question

along to the prosecution without consulting the judge, and then, as a result of the question,

the prosecution recalled a witness). The trial court could have reasonably concluded that

the conversation between the juror and the bailiff was innocuous enough to not warrant

the extreme remedy of mistrial. See Ocon, 284 S.W.3d at 887. Thus, the trial court did

not abuse its discretion in denying Moody’s motion for mistrial and his motion for new trial.

We overrule Moody’s sole issue.

                                         III. CONCLUSION

       We affirm the trial court’s judgment.




                                                   NORA L. LONGORIA
                                                   Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
31st day of August, 2015.




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