

Opinion issued May 12, 2011.

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00564-CR
———————————
Brad Lyle Bokemeyer, Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the County Court at Law Number 1
Montgomery County, Texas

Trial Court Case No. 09-250823-CR
 

 
O P I N I O N
          A
jury convicted Brad Lyle Bokemeyer of driving while intoxicated.  See Tex. Penal Code Ann. § 49.04 (West
2003).  The trial court assessed his
punishment at 180 days’ confinement, probated for one year, and a $1000 fine.  On appeal, Bokemeyer contends that the trial
court erred in denying his motion for mistrial on the ground that the
prosecutor communicated with jurors in violation of article 36.22 of the Texas Code of
Criminal Procedure.[1]  See Tex. Code Crim. Proc. Ann. art. 36.22 (West
2006).  We hold that the trial court did
not abuse its discretion and therefore affirm. 

Background
          At
trial, while the defense counsel cross-examined a state trooper who testified
that he had stopped Bokemeyer, two jurors made audible comments disagreeing
with the defense counsel’s description of where the state trooper stood during
the traffic stop.  In response to these
comments, the prosecutor, who was seated near the jury box, made a “thumbs up”
gesture to the two jurors.  The defense
counsel objected to the communication between the jurors and the
prosecutor.  Subsequently, outside the
jury’s presence, the defense counsel moved for mistrial because the
communication violated article
36.22 of the Texas Code of Criminal Procedure.
          The prosecutor responded that he
offered no evidence through his communication to the jury, and the trial court
could remedy the situation with a curative instruction.  The trial court admonished the prosecutor but
denied the request for a mistrial, reasoning that the communication did not
jeopardize or prejudice Bokemeyer.  The
trial court instructed the jury:  
Before lunch . . . we were
in the midst of testimony and a matter came up . . . between the lawyers . . .
indicating . . . that [the prosecutor] had spoken to the jury, which would not
be proper.  He indicated that he had
not.  What transpired, actually, was the
jury accidentally spoke out.  And I’m not
fussing about that . . . . But [the prosecutor] apparently gave the two thumbs
up in agreement.  That is improper.  I have admonished [the prosecutor] that I
will not tolerate any communications between the lawyers and the jury, directly
or indirectly.  I realize some things
happen in the heat of battle.  I don’t
think it was something done maliciously with intent to try to harm, but it
happened.  And I will not tolerate
that[,] and I have explained that to all of the attorneys in the case.  Evidence only comes from that witness
stand.  It does not come from attorneys.  What they say is not evidence.  They ask questions.  They make statements.  They don’t give you evidence. The evidence
comes from the stand.  You are the
exclusive judges of the facts proved and of the credibility to be given to the
testimony . . . . I have sternly admonished [the prosecutor] about his
behavior, [and] and we’re going to proceed.
 
Discussion 
          On appeal, Bokemeyer complains that the
trial court should have granted his request for a mistrial.  
Standard of Review
          We review a
trial court’s denial of a motion for a mistrial for an abuse of discretion.  Ocon v.
State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009).  We view the evidence in the light most
favorable to the trial court’s ruling, considering only those arguments before
the court at the time of its ruling.  Wead
v. State, 129 S.W.3d 126,
129 (Tex. Crim. App. 2004).  We uphold
the ruling if it was within the zone of reasonable disagreement.  Id.
Mistrial
          A mistrial is an appropriate remedy in
extreme circumstances for a narrow class of highly prejudicial and incurable
errors.  Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App.
2000).  A mistrial halts 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).  The particular
facts of the case determine whether an error requires a mistrial.  Id.  Because
a mistrial is an extreme remedy, a trial court should grant it “only when
residual prejudice remains” after less drastic alternatives are explored.  Barnett v. State, 161 S.W.3d 128, 134 (Tex. Crim. App. 2005).  “Less drastic alternatives include instructing
the jury ‘to consider as evidence only the testimony and exhibits admitted through
witnesses on the stand,’ and, questioning the jury ‘about the extent of any
prejudice,’ if instructions alone do not sufficiently cure the problem.”  Ocon,
284 S.W.3d at 885 (quoting Arizona v. Washington, 434 U.S. 497, 521–22 (1978) (White, J., dissenting)).  Though requesting lesser remedies is not a
prerequisite to a motion for mistrial, when the movant fails to request a
lesser remedy, we will not reverse the court’s judgment if the less drastic
alternative could have cured the problem.  Ocon,
284 S.W.3d at 885; Young v. State,
137 S.W.3d 65, 70 (Tex. Crim. App. 2004); see also Wood, 18 S.W.3d at 648 (concluding that
trial court did not abuse its discretion in denying defendant’s motion for
mistrial when defendant had not requested less drastic remedy of continuance).  We generally consider instructions to the
jury to be sufficient to cure most improprieties that occur during a trial.  Gamboa
v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009).  And, we presume that a jury will follow the
judge’s instructions.  Id.; see
also Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App.
1998) (jury presumed to disregard parole during deliberation when so
instructed); Waldo v. State,
746 S.W.2d 750, 754 (Tex. Crim. App. 1988) (jury presumed to follow instruction
to disregard testimony regarding defendant’s post-Miranda silence); Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987) (jury presumed to
follow instruction after accomplice witness alluded to defendant’s previous
incarceration).
Contact with Jurors
          A juror must make decisions at the
guilt and punishment phases using information obtained in the courtroom: the
law, the evidence, and the trial court’s mandates.  Granados v. State, 85 S.W.3d 217, 235 (Tex. Crim. App.
2002).  “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. Proc. Ann. art. 36.22 (West
2006); see also Tex. R. App.  P. 21.3(f) (providing that defendant must
be granted new trial when juror has talked
with anyone about case).  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); cf. Gomez v. State, 991 S.W.2d
870, 872 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (holding that no
violation of article 36.22 existed where two jurors discussed case with each
other in public place).  “Therefore, if a
violation is shown, the effectiveness of possible remedies will be determined
in part by whether the conversation influenced the juror.”  Ocon,
284 S.W.3d at 884.  
          When a juror converses with an
unauthorized person about the case, “injury to the accused is presumed” and a
new trial may be warranted.  Robinson
v. State, 851 S.W.2d 216, 230
(Tex. Crim. App. 1991).  To invoke this
presumption, the defendant must show the communication involved matters
concerning the defendant’s trial.  Chambliss, 647 S.W.2d at 266.  We presume harm even when the communication
does not rise to the level of a full-blown conversation or discussion of the
specifics of a given case.  McIntire v. State, 698 S.W.2d 652, 659
(Tex. Crim. App. 1985).  However, the
State may rebut this presumption of harm by showing that the defendant has not
been injured, i.e., “that the case was not discussed or that nothing
prejudicial about the accused was said.” 
Green v. State, 840 S.W.2d 394,
406 (Tex. Crim. App. 1992); compare Gates
v. State, 24 S.W.3d 439, 443 (Tex. App.—Houston [1st Dist.] 2000, pet.
ref’d) (holding that State rebutted presumption, when victim’s son communicated
with juror prior to his testimony at trial, because only new information son
conveyed to juror was that he was witness in case), with Ites v. State, 923 S.W.2d 675, 676 (Tex.
App.—Houston [1st Dist.] 1996, pet. ref’d) (reversing trial court’s judgment
because State failed to rebut presumption of harm when defendant’s son ran in
front of jurors saying that if he had to spend an hour with his father, he
would kill himself; defendant was being tried for aggravated sexual assault of
his daughter, and son had been sworn as witness).  “If evidence is in the record that rebuts the
presumption of harm, it should be considered, whether presented by the State or
the defense.”  Alexander v. State, 919 S.W.2d 756, 767 (Tex. App.—Texarkana 1996,
no pet.).  When determining whether the
State sufficiently rebutted the presumption of harm, we view the evidence in
the light most favorable to the trial court’s ruling and defer to the trial
court’s resolution of historical facts and its determinations concerning
credibility and demeanor.  Quinn v.
State, 958 S.W.2d 395, 401–02
(Tex. Crim. App. 1997).  
Analysis
          Here, two
jurors disagreed with the defense counsel about where the state trooper was
standing during the traffic stop.  It is
undisputed that the prosecutor responded to the two jurors by giving them two
thumbs up—a hand gesture indicating
approval of their disagreement with the defense counsel.  Thus, we conclude that the prosecutor made a
statement in the jury’s presence that pertained to Bokemeyer’s trial without
the permission of the court.  See McIntire, 698 S.W.2d at 659 (holding that
defendant put forth sufficient evidence to establish presumption of harm, where
juror allegedly told unauthorized person that he was in certain judge’s
courtroom and nodded in response to unauthorized person’s question about
whether he was juror in defendant’s case); cf.
Chambliss, 647 S.W.2d at 266 (holding
that no violation of article 36.22 would exist where unauthorized person
reinforces juror’s feelings simply by making eye contact).  The prosecutor’s conduct raises the
presumption that the communication between the two jurors and the prosecutor
harmed Bokemeyer.  See Robinson, 851 S.W.2d at 230.  A violation of article 36.22,
however, does not automatically warrant a mistrial.  Moody
v. State, 827 S.W.2d 875, 899–900 (Tex. Crim. App. 1992).  The burden shifted to the State to
rebut the presumption of harm.  At the
trial court, the State contended that the jurors did not receive any
information about the case through the prosecutor’s communication with them,
and that a curative instruction would remedy the situation.  The trial court agreed. 
          We hold that the
trial court did not abuse its discretion in denying Bokemeyer’s request for a
mistrial.  On this record, the trial
court reasonably could have concluded that the conduct did not establish an
extreme circumstance warranting a mistrial. 
See Hawkins, 135
S.W.3d at 77.  The two jurors did not
gain any new information about the case from the communication with the
prosecutor and did not respond to the prosecutor’s hand gesture.  No evidence exists that the gesture
influenced the two jurors, or that any other jurors even saw the prosecutor
make the gesture.  See Robinson,
851 S.W.2d at 230 (trial court did not abuse discretion in denying mistrial
when juror received evidence outside record but did not share it with other
jurors and said information would not influence her in reaching verdict).  Also, based on the record before us, the fact
of where the trooper was standing appears from the record not to be significant
to the decision as to whether or not Bokemeyer was driving while intoxicated,
and counsel has not pointed out any special significance.[2]  See Tex. R. App. P. 44.2(b) (“Any other
[than constitutional] error, defect, irregularity, or variance that does not
affect substantial rights must be disregarded.”).  The trial court admonished the prosecutor and
gave the jury a detailed curative instruction after the defense counsel brought
the incident to its attention; no indication exists that the subsequent
instruction failed to remedy the situation. 
See Ocon, 284 S.W.3d at 883,
887 (holding that no indication existed that curative instructions 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”); see also Gamboa, 296 S.W.3d at 580 (jury
presumed to follow instruction to disregard after family member of murder
victim shouted in open court, “You did this for 200 dollars?”).
Conclusion
          We
hold that the trial court did not abuse its discretion in denying counsel’s
motion for a mistrial.  We therefore
affirm the judgment of the trial court.
 
 
                                                                   Jane
Bland
                                                                   Justice

 
Panel
consists of Chief Justice Radack and Justices Alcala and Bland.
Publish.  Tex. R. App. P. 47.2(b).
 




[1]           The Texas Supreme Court transferred
this appeal from the Court of Appeals for the Ninth District of Texas.  Misc. Docket No. 10-9105 (Tex. July 16, 2010);
see Tex.
Gov’t Code Ann. § 73.001 (West 2005) (authorizing transfer of cases).


[2]
          We
note that Bokemeyer submitted only a small excerpt of the reporter’s record of
his trial.  See Tex.
R. App. P. 34.6(c)(4); Diaz
Galvan v. State, 942
S.W.2d 185, 186 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (citing former
Rule 50(d)).  
 


