                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-15-00374-CR


SCOTT ALLEN HARPER                                                    APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1374876D

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

                                 I. INTRODUCTION

      Appellant Scott Allen Harper appeals his convictions for continuous sexual

abuse of a child under fourteen and indecency with a child. In two points, Harper

argues that the trial court abused its discretion by prohibiting him from presenting




      1
       See Tex. R. App. P. 47.4.
evidence of the complainant’s sexual orientation and by denying his motion for

mistrial that alleged juror misconduct. We will affirm.

                            II. FACTUAL BACKGROUND

      When the victim, Kelly,2 was in third grade, her mother (Mother) moved out

and left Kelly and her two younger brothers with their father, Harper. Kelly and

her paternal grandmother (Grandmother) raised her two younger brothers; Kelly’s

youngest brother, Cole, was one year old when Mother left.3           Kelly and her

brother Chad slept in Harper’s room during the summers because there was no

central air in the house and because it was easier to keep one room cool with a

window unit. Kelly slept in Harper’s bed, her brother Chad slept in a bed pushed

up against the wall in Harper’s bedroom, Harper slept on the couch in the living

room, and Cole slept on a bed near the front door.

      Kelly testified that sometime after third grade, on a night when she was

sleeping in Harper’s bed, he came in and thought she was asleep. Kelly was

wearing a tank top and underwear, and Harper started picking at her underwear

from behind her, causing it to lift off her bottom. Kelly testified that she was

scared, that she did not understand what was going on or why Harper was doing

this in the middle of the night while she was supposed to be asleep, that she laid


      2
       To protect the anonymity of the child victim, we will use an alias for her, as
well as for her brothers. See McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex.
Crim. App. [Panel Op.] 1982).
      3
       Kelly testified that Harper never had a girlfriend after Mother moved out.


                                         2
there and waited for Harper to stop, and that it did not last very long. Harper did

not speak while he was picking at Kelly’s underwear, and Kelly did not talk to him

about it afterwards.

      Kelly testified that she often watched shows on the computer with Harper

and that she would sit on his lap.       Sometime after the incident in Harper’s

bedroom, Harper began to touch Kelly while they watched shows on the

computer in the living room. The first time occurred while they were watching a

show on sharks when Kelly was about eleven or twelve years old; Harper put his

hands on Kelly’s stomach and moved his hand down into her underwear and

touched her labia. Kelly testified that she was panicking but did not say anything.

Harper moved his hand down, touched her lower labia, and left his hand there for

a little bit. Kelly eventually stood up and went to her room.

      Kelly testified that there were twenty to thirty other instances when Harper

touched her while they were watching shows on the computer and that she was

unable to distinguish between the events in her mind, except that there was at

least one occasion when Harper inserted his finger into her vagina. Kelly said

that Harper touched her at the computer from the time she was in fifth grade or

sixth grade until the time she was in eighth grade, that it did not happen every

time they watched shows on the computer, and that there was at least one

instance that occurred thirty days apart from another instance of abuse. Kelly

turned fourteen years old in December 2013 and testified that all of the instances

of sexual abuse occurred prior to that birthday.


                                         3
      Kelly testified that Harper also touched her inappropriately once when they

were “play wrestling” in the kitchen. Kelly said that Harper put her in a fake

choke-hold and held her breast in his hand.

      When Kelly got her own computer in seventh grade, she started seeing

news stories on the internet about sexual abuse and realized that what Harper

was doing to her was wrong. When Kelly realized that it was wrong, she started

wanting to move out. Kelly did not move out immediately because she did not

know what would happen to Cole. Several months before December 2013, Kelly

told Mother that she wanted to live with her, and Kelly moved to Mother’s house

on December 27, 2013.

      In January 2014, Kelly made an outcry to Mother and told Mother about

what Harper had done.4 Mother immediately called the police.

      Stacy Henley, a sexual assault nurse examiner at Cook Children’s Medical

Center, testified that she examined Kelly on March 20, 2014. Kelly told Henley

that Harper had touched her with his hands underneath her clothes and in her

private area, that the touching had started when she was in the sixth grade and

had occurred every two to three weeks, and that the last touching had occurred




      4
       Kelly testified that the last incident of abuse occurred five or six months
before her outcry.


                                        4
five or six months prior to the exam. Kelly also told Henley that she had to touch

Harper’s penis5 and that he had touched her breasts under her clothes.

      Megan Peterson, an investigator with Child Protective Services, testified

that Kelly underwent a forensic interview at Alliance for Children on February 24,

2014. Peterson testified that Kelly’s forensic interview contained sensory details,

peripheral details, and correct information, which indicated that Kelly was telling

the truth. Peterson did not think that Kelly had been coached on what to say in

her interview.

      Grandmother testified that she quit her job and moved in with Harper when

Mother moved out. Grandmother did not want Cole, who was approximately one

year old at the time, to go to daycare, so she helped care for him until he was

four years old and could attend pre-K. Grandmother testified that Chad was “a

living room plant” who mostly stayed inside and that Cole also mostly played

inside the home.

      Harper testified that Mother left their marriage because she had decided

that she wanted to be with women and because she and Harper hated each

other and did not get along. Harper testified that he had dated a few times after

Mother left but that he had not discussed that with his children.



      5
       Although Kelly had previously said during a videotaped interview that she
had felt Harper’s penis when she sat in his lap, she testified at trial that she had
no recollection of that occurring and watching her videotaped interview did not
refresh her memory as to that event.


                                         5
      Harper testified that it would have been a rare situation for him to have

been alone with Kelly because he “was never really alone with any of the kids

individually.” Harper admitted that there were occasions when Chad and Cole

went outside to play baseball but said that there were always incidents when one

of the boys would run back in to tell Harper what the other boy had done. Harper

testified that he had never touched Kelly in any way or in any manner with the

intent to arouse or gratify his sexual desire and that he had never put his finger

inside Kelly’s vagina. Harper testified that Kelly had lied when she said that he

had come in one night and had picked at her panties. Harper testified that Kelly

was not lying when she testified that he had her sit in his lap at the computer and

that it was possible that he started feeling her stomach while he hugged her.

Harper testified that Kelly was lying when she said that his hand had gone from

her stomach to inside her panties and that she was lying when she said that

Harper had touched her breast while they were wrestling.

      After hearing the above evidence, the jury found Harper guilty of

continuous sexual abuse of a child under fourteen and of indecency with a child

and assessed his punishment at confinement for twenty-five years and two

years, respectively. The trial court sentenced Harper accordingly and ordered

the two sentences to run concurrently. Harper perfected this appeal.




                                        6
                  III. EXCLUSION OF SEXUAL-ORIENTATION EVIDENCE

      In his first point, Harper argues that the trial court abused its discretion by

prohibiting him from presenting evidence of Kelly’s sexual orientation as

evidence of her bias against him and her motive to falsely accuse him of sexually

abusing her. Harper argues that the excluded evidence was admissible under

Texas Rules of Evidence 412, 613, and 403 and that the exclusion of this

evidence violated his constitutional right to cross-examine Kelly and to present a

complete defense.

                             A. Standard of Review

      We review the trial court’s decision to exclude evidence under an abuse-

of-discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim.

App. 2000). A trial court does not abuse its discretion as long as the decision to

exclude the evidence is within the zone of reasonable disagreement.

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on

reh’g).

                                   B. Rule 412

      Harper asserts that evidence of Kelly’s sexual orientation was admissible

under rule 412 of the rules of evidence. Texas Rule of Evidence 412 is titled,

“Evidence of Previous Sexual Conduct in Criminal Cases” and provides, in

pertinent part:

            (a) In General. The following evidence is not admissible in a
      prosecution for sexual assault, aggravated sexual assault, or attempt
      to commit sexual assault or aggravated sexual assault:


                                         7
                   (1) reputation or opinion evidence of a victim’s past
            sexual behavior; or
                   (2) specific instances of a victim’s past sexual behavior.
            (b) Exceptions for Specific Instances. Evidence of specific
      instances of a victim’s past sexual behavior is admissible if . . . .

Tex. R. Evid. 412. Thus, under rule 412, in a sexual assault case, the following

evidence is not admissible: (1) reputation or opinion evidence of the victim’s past

sexual behavior or (2) specific instances of a victim’s past sexual behavior. Tex.

R. Evid. 412(a)(1), (2). But exceptions exist to rule 412’s prohibition concerning

the admission of specific instances of a victim’s past sexual behavior. Tex. R.

Evid. 412(b)(2)(C), (3).

                           C. The Excluded Evidence

      During his opening statement, Harper’s counsel stated that during the time

leading up to when Kelly moved in with Mother, Kelly “want[ed] to come out [as a

lesbian] and be like her mom.” The State objected, and the trial court sustained

the objection under rule 412.

      After Kelly testified and prior to cross-examining her, Harper’s counsel

requested a rule 412 hearing.      Harper’s counsel argued that he should be

permitted to question Kelly about her sexual orientation and to present testimony

that Kelly had told a girlfriend of Kelly’s mother that Kelly wanted to live with

Mother because Harper and Grandmother are “very anti-homosexual.” Harper’s

counsel argued that testimony about Kelly’s sexual orientation was admissible

under one of the specific-instances exceptions to rule 412 to show Kelly’s motive

and bias in making sexual assault allegations against Harper. Harper’s counsel


                                        8
argued that the jury had been left with the impression that Kelly did not want to

live with Harper because of the alleged sexual abuse and that testimony

regarding Kelly’s sexual orientation would show that the reason she moved to

Mother’s house was due to Kelly’s “coming out [as] a lesbian.” The trial court

ruled that defense counsel could not question Kelly about her sexual orientation.

      After cross-examining Kelly, Harper’s counsel requested that he be

allowed to ask Kelly whether there was another reason why she had wanted to

live with Mother, besides the allegations against Harper. The trial court allowed

defense counsel to ask Kelly this limited question.         The following cross-

examination of Kelly then took place:

      Q. . . . Beyond the reasons and the things you’ve testified at this
      point, have you ever told anyone of any other reason why you didn’t
      want to live with your father?

      A. Just we didn’t get along anymore and I didn’t want to live there.

      Q. I’m sorry. Can you speak up a little bit?

      A. We didn’t get along anymore and I didn’t want to live there.

      Q. Were there any particular reasons about that that you may have
      told someone?

      A. Why we didn’t get along anymore?

      Q. Yeah, I guess.

      A. I -- I was in my room too much. I wasn’t hanging with the family
      anymore. That’s it. We just didn’t get along because of that.

      After the State rested, Harper’s counsel called Grandmother to testify

outside the presence of the jury. Grandmother testified that Kelly is a lesbian


                                        9
and that Kelly had made statements about her sexual orientation on Facebook

and had attended several gay parades. Grandmother testified that Kelly knew

that Grandmother disapproved of homosexuality. Grandmother testified that she

had no knowledge about whether Kelly had gone to live with Mother because of

Kelly’s lesbianism; accordingly, Harper’s counsel stated that he would not pursue

this line of questioning with Grandmother in front of the jury. Defense counsel

also chose not to call the woman who had allegedly heard this explanation from

Kelly.

                          D. Analysis Under Rule 412

         Harper asserts that Kelly’s sexual orientation is not evidence of any

specific instance of sexual behavior under rule 412(a)(2) and therefore should

not have been excluded under rule 412. During trial, Harper’s counsel did not

elicit testimony—either in front of the jury or outside the jury’s presence—

detailing any specific instances of Kelly’s past sexual behavior. Consequently, in

the absence of evidence of a specific instance of sexual behavior, the exceptions

to rule 412(a)(2)’s automatic exclusion of specific instances of a victim’s past

sexual behavior are not triggered. See Tex. R. Evid. 412 (b)(1)–(3) (permitting

admission of specific instances of a victim’s past sexual behavior under certain

circumstances). That is, because no evidence of a specific instance of Kelly’s




                                       10
past sexual behavior was proffered, as a matter of law rule 412(b)’s exceptions to

exclusion of such evidence do not apply.6

      And rule 412(a)(1) provides that reputation or opinion evidence of a

victim’s past sexual behavior is not admissible in a prosecution for sexual

assault. See Tex. R. Evid. 412(a)(1). Grandmother’s testimony about Kelly’s

sexual orientation, which was excluded, constitutes reputation or opinion

evidence about a victim’s past sexual behavior that is not admissible. See Tex.

R. Evid. 412(a)(1); Rankin v. State, 821 S.W.2d 230, 233 (Tex. App.—Houston

[14th Dist.] 1991, no pet.) (holding witness’s testimony about victim’s sexual

behavior based on victim’s reputation was inadmissible under rule 412(a)); see

also Rouchon v. State, No. 04-99-00951-CR, 2001 WL 1265550, at *2 (Tex.

App.—San Antonio Oct. 24, 2001, pet. ref’d) (not designated for publication)

(holding that witness’s testimony as to victim’s bisexuality constituted reputation

or opinion evidence). No exceptions exist to rule 412(a)(1)’s automatic exclusion

of reputation or opinion evidence of a victim’s past sexual behavior. See Tex. R.

Evid. 412(b); Allen v. State, 700 S.W.2d 924, 940 n.9 (Tex. Crim. App. 1985)

(Clinton, J., dissenting) (stating that rule 412 excludes “reputation or opinion

evidence of the past sexual behavior of an alleged victim of such [prescribed]

crime,” but allows “evidence of specific instances of an alleged victim’s past

sexual behavior” if admitted in accordance with control provisions). Accordingly,

      Accordingly, we reject Harper’s alternative arguments that assume the
      6

excluded evidence constitutes specific-instance evidence.


                                        11
we hold that the trial court properly excluded evidence of Kelly’s sexual

orientation under rule 412(a)(1).7   See Tex. R. Evid. 412(a)(1); Rankin, 821

S.W.2d at 233; see also Rouchon, 2001 WL 1265550, at *2 (same).

   E. Rule 613, Rule 403, and Confrontation Clause Arguments Forfeited

      Harper argues that evidence of Kelly’s sexual orientation––through

Grandmother’s excluded testimony and through the prohibited questioning of

Kelly about it––should have been permitted under Texas Rules of Evidence 613

and 403 and that exclusion of the evidence violated his constitutional right to

cross-examine witnesses against him and to present a complete defense. At

trial, Harper argued that evidence of Kelly’s sexual orientation should not be

excluded under rule 412; he did not address rule 613, rule 403, or the

Confrontation Clause.



      7
        Although not briefed by the parties, evidence of Kelly’s sexual orientation
was also properly excluded on relevancy grounds. Throughout the rule 412
hearings held outside the jury’s presence, the trial court questioned the relevance
of such evidence and stated “you haven’t been able to establish the relevance for
me.” See Tex. R. Evid. 401, 402. Moreover, during cross-examination, Kelly did
not list her sexual orientation as a reason for wanting to move in with Mother;
Grandmother testified that she did not hear Kelly make that statement; and the
defense did not bring in the witness who had allegedly heard Kelly make that
statement. Thus, the trial court also did not abuse its discretion by excluding
evidence of Kelly’s sexual orientation on relevancy grounds. See Tex. R. Evid.
401, 402; In re O.O.A., 358 S.W.3d 352, 355, 357–58 (Tex. App.—Houston [14th
Dist.] 2011, no pet.) (holding evidence of victim’s sexual orientation inadmissible
as irrelevant because appellant did not show connection between victim’s sexual
orientation and motive for her testimony against appellant); see also Smith v.
State, 352 S.W.3d 55, 64, 68 (Tex. App.—Fort Worth 2011, no pet.) (recognizing
proponent of evidence of alleged bias must show relevancy).


                                        12
      To avoid forfeiting a complaint on appeal, the party must “let the trial judge

know what he wants, why he thinks he is entitled to it, and to do so clearly

enough for the judge to understand him at a time when the judge is in the proper

position to do something about it.” Pena v. State, 285 S.W.3d 459, 464 (Tex.

Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim.

App. 1992)). Making an objection or proffer under the rules of evidence does not

preserve constitutional issues that are not raised.     See Reyna v. State, 168

S.W.3d 173, 179 (Tex. Crim. App. 2005).

      Because Harper requested the trial court to rule on the admissibility of the

testimony solely under rule 412, we hold that Harper’s argument at trial did not

preserve for appeal his rule 613 argument, his rule 403 argument, or his

Confrontation Clause argument. See Tex. R. App. P. 33.1(a)(1)(A); Reyna, 168

S.W.3d at 179 (holding Confrontation Clause issue was not preserved for appeal

because appellant’s trial arguments regarding witness’s credibility reflected

argument that evidence was not excludable under rule 412(b)); Lubojasky v.

State, No. 03-10-00780-CR, 2012 WL 5192919, at *5 (Tex. App.—Austin Oct. 19,

2012, pet. ref’d) (mem. op., not designated for publication) (holding that appellant

did not preserve for appellate review his complaints regarding exclusion of

evidence under rule 613(b) and Confrontation Clause).

      Accordingly, we overrule Harper’s first point.




                                        13
                        IV. DENIAL OF MOTION FOR MISTRIAL

      In his second point, Harper argues that the trial court abused its discretion

by denying his motion for mistrial alleging juror misconduct occurred when

certain jurors engaged in a pre-deliberation hallway conversation that Harper

contends showed their bias against him.

            A. Standard of Review and Law on Motions for Mistrial

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

standard.    Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009).

Determinations of historical fact and assessment of witness credibility and

believability are left almost entirely to the discretion of the trial judge, and where

there is conflicting evidence, there is no abuse of discretion if the motion for

mistrial is overruled. Hughes v. State, 24 S.W.3d 833, 842 (Tex. Crim. App.),

cert. denied, 531 U.S. 980 (2000). The trial court’s ruling must be upheld if it is

within the zone of reasonable disagreement. Ocon, 284 S.W.3d at 884.

      A mistrial is an appropriate remedy in “extreme circumstances” for a

narrow class of highly prejudicial and incurable errors. Id. Because it is an

extreme remedy, a mistrial should be granted “only when residual prejudice

remains” after less drastic alternatives are explored. Id. at 884–85. Less drastic

alternatives include questioning the jury “about the extent of any prejudice,” if

instructions alone do not sufficiently cure the problem.        Id. at 885 (quoting

Arizona v. Washington, 434 U.S. 497, 520–22, 98 S. Ct. 824, 838–39 (1978)

(White, J., dissenting)). Though requesting lesser remedies is not a prerequisite


                                         14
to a motion for mistrial, when the movant does not first request a lesser remedy,

we will not reverse the trial court’s judgment if the problem could have been

cured by the less drastic alternative. Id. (citing Young v. State, 137 S.W.3d 65,

70 (Tex. Crim. App. 2004)).

                               B. Law on Juror Bias

      “A juror must . . . use the law, the evidence, and the trial court’s mandates

as his ultimate guides in arriving at decisions as to guilt or innocence and as to

punishment.” Granados v. State, 85 S.W.3d 217, 235 (Tex. Crim. App. 2002),

cert. denied, 538 U.S. 927 (2003). When a juror “makes statements outside of

deliberations that indicate bias or partiality, such bias can constitute jury

misconduct that prohibits the accused from receiving a fair and impartial trial.” Id.

Although “it defies common sense and human nature to require that a juror have

no impressions or opinions until the judge send[s] the jury to deliberations,”

where a juror’s statements or conduct raise a question as to whether he is

biased, “an inquiry is appropriate to determine the juror’s intent when making the

statement.” Id. at 236. On such an inquiry, the trial court retains discretion in

determining whether a juror is biased, and we will review the trial court’s decision

in the light most favorable to its recorded findings. Id.

                   C. Evidence of Alleged Juror Misconduct

      On the second day of the trial, out of the jury’s presence, Harper’s counsel

reported to the trial court that Harper’s aunt and uncle had overheard three jurors

discussing the case in a manner that indicated the jurors had concluded that


                                         15
Harper was guilty before hearing all of the evidence. The trial court conducted a

hearing on the alleged juror misconduct and heard testimony from Harper’s aunt

and uncle.

      Harper’s uncle testified that when he returned from lunch the previous day

of the trial, he heard three jurors (a Caucasian man, a man who was Caucasian

or Hispanic, and an African-American woman) discussing the case in the hallway

of the courthouse where approximately eight other jurors were seated. One man

stated that he did not believe Harper’s counsel’s statement during voir dire about

Harper being a free man because if he were free, he would not be in court. The

other two jurors acknowledged the statement.        When the jurors recognized

Harper’s uncle and aunt as Harper’s relatives, they said that they had better be

quiet. Harper’s uncle testified that he did not hear the word “guilt” being used

and did not believe that the jurors were making an assertion of Harper’s guilt or

innocence. Harper’s uncle further testified that he believed that other jurors in

the hallway could have possibly overheard the conversation.

      Harper’s aunt testified that she had overheard the conversation in the

hallway and that it “had something to do with some of the jurors saying that

[Harper’s] not free or he wouldn’t be here” but that they did not say anything

about guilt or innocence. Harper’s aunt said that she was reading a book, that

she was not paying attention to the hallway conversation, and that she could not

testify with any accuracy to the comments that were made. Harper’s aunt did not

believe that the statement had any bearing on the case.


                                       16
      After hearing testimony from Harper’s aunt and uncle, the trial court

questioned each of the jurors individually in response to defense counsel’s

request. Juror No. 14 testified that he had told a group of jurors that he knew the

trial judge did not like it when he (the juror) had asked a question during voir dire

about whether Harper was free.8 Each of the remaining jurors denied or did not

recall participating in or overhearing a conversation about Harper’s freedom after

lunch the prior day. At the end of each interview, the trial court instructed the

juror not to discuss any of the matters that were asked about and reminded the

juror to follow the other instructions that the trial court had given. The trial court

then made its ruling as follows:

             The Court hereby denies the Defense motion for a mistrial on
      the following grounds: After interviewing the respective jurors, the
      jurors that are in question have denied or stated that the
      conversation that was believed to have a comment concerning the
      Defendant and his freedom also is associated and could be
      mistaken with regard to his ability to move during the voir dire
      selection.

            In fact, one of the jurors had to be reminded of the -- of the
      incident because he was confused, and he confirmed that there

      8
        During voir dire, defense counsel asked the venire panel about whether
they had changed their minds about being able to consider all of the evidence
before deciding whether Harper was guilty or not. In response, an unidentified
prospective juror asked, “In your opening statement, you said we all came in here
free people, we’re all going to leave as free people. Can Mr. Harper leave today
free?” The trial court interjected that it was not going to allow defense counsel to
respond to the question. The trial court further stated, “Just understand there’s a
presumption of innocence in every case. Everybody’s presumed innocent until
and if the State ever proves their case beyond a reasonable doubt. With regard
to whether he’s free to go or not go, that’s -- that’s not material . . . for the
purpose of the voir dire.”


                                         17
      were no other conversations regarding the Defendant’s ability to
      move about.

             And, furthermore, during the voir dire process, a -- an
      additional peremptory strike was agreed to by the State and granted
      by the Court with regard to the potential juror that would have been
      seated and was excluded on that basis in an abundance of caution,
      and furthermore, the Court did believe that that juror did make some
      comment to that effect.[9]

             The Court concludes that Mr. Harper, the uncle, is -- also has
      a concern about his nephew and potentially may have some motive
      not necessarily to lie but to be hypervigilant or less than accurate.
      His wife did not hear such a conversation, and fragments of it were
      not clear for her to be of any credibility as well.

              Accordingly, the Court, after considering the information that
      was presented by the Defense, the respective witnesses that
      testified, interviewing the respective juror -- the respective jurors that
      are assigned to this case, the Court hereby concludes that the
      Defense motion should be and is hereby denied.

                                     D. Analysis

      Here, conflicting testimony exists on the content of the jurors’ conversation.

Harper’s uncle testified that three jurors had a conversation about Harper not

being a free man because he was in court, and Harper’s aunt testified that


      9
         During a break in voir dire, it was brought to the trial court’s attention that
two members of the venire panel had been talking, and one stated, “I don’t think
anyone thinks he’s still innocent; if it were me, I’d offer him 15 years and be done
with it.” The venire member who had overheard the conversation identified the
two venire members who were involved in the conversation and said that the
remaining members of the panel were approximately eight feet away or across
the hall when the conversation occurred. Because the venire member who had
made the statement was slated to be seated on the jury, the trial court granted
the defense an additional peremptory strike. Neither the venire member who
overheard the conversation, nor the venire member who was involved in the
conversation were seated on the jury.


                                          18
although she was also present in the hallway at the time of the conversation, she

was not paying attention to it and could not testify with any accuracy as to the

comments that were made. Eleven of the twelve jurors testified that no such

conversation had occurred the previous day or that they could not recall a

conversation from the previous day about Harper being a free man; the

remaining juror testified only that he had made a comment that the trial judge did

not like when he (the juror) had asked during voir dire whether Harper was free to

leave. Moreover, both Harper’s uncle and aunt testified that the conversation

they overheard did not include a premature assertion that Harper was guilty.

Deferring to the trial court’s assessment of the witnesses’ credibility and

believability, it was within the trial court’s sound discretion to determine that none

of the jurors had made a statement indicating bias or partiality. See id. (holding

that trial court’s inquiry was sufficient to determine that juror was not biased

against appellant). Moreover, the trial court reminded the jurors to follow his

instructions,10 and there is no indication that any of the jurors disobeyed those

instructions   or   otherwise   attempted     to   improperly   influence   the   jury’s

deliberations. See id. Accordingly, we hold that the trial court did not abuse its

discretion by denying Harper’s motion for mistrial. See id. (holding that trial court

did not abuse its discretion by denying appellant’s motion for mistrial based on

      10
        The instructions previously given to the jury included the following: “[D]o
not even discuss the case among yourselves until after you have heard all of the
evidence, the Court’s Charge, the attorneys’ arguments[,] and until I have sent
you to the jury room to consider your verdict.”


                                         19
alleged juror bias); Barrow v. State, No. 14-14-00680-CR, 2016 WL 280196, at *5

(Tex. App.—Houston [14th Dist.] Jan. 21, 2016, pet. filed) (mem. op., not

designated for publication) (same). We overrule Harper’s second point.

                                 V. CONCLUSION

      Having overruled Harper’s two points, we affirm the trial court’s judgment.



                                                  /s/ Sue Walker
                                                  SUE WALKER
                                                  JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 28, 2016




                                       20
