                                    NO. 07-00-0404-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                      MARCH 8, 2002

                          ______________________________


                        CHRISTOPHER WILLIAMS, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE


                        _________________________________

               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                  NO. B 13457-9906; HONORABLE ED SELF, JUDGE

                          _______________________________


Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


       Following his plea of not guilty, appellant Christopher Williams was convicted by a

jury of delivery of a controlled substance and punishment was assessed at two years

confinement in a state jail facility and a $1,000 fine. Presenting one point of error,

appellant contends the trial court erred in denying his motion for mistrial after the jury was
sworn and a member of the jury informed the court that he had withheld material

information. Based upon the rationale expressed herein, we affirm.


       Appellant does not challenge the sufficiency of the evidence. Thus, only the facts

necessary to our disposition of the appeal will be considered. After the trial judge

recessed the jury for lunch, a member of the jury, Paulo Posada, approached the judge

and informed him that when a witness for the State, Mr. Salazar, entered the courtroom to

be sworn, he recognized him by sight, but had not recognized his name when it was

mentioned with other witnesses during voir dire. Although Posada claimed to have known

Salazar for about 20 years, he nevertheless claimed he could be fair and impartial. When

the jury and counsel returned from lunch, the trial judge reported the events to counsel and

out of the jury’s presence, made a record of Posada’s conversation with him. Counsel for

the State declined to examine Posada and following examination by appellant’s counsel,

appellant moved for a mistrial which the trial court denied.


       Appellant’s sole contention on appeal is that he was deprived of an opportunity to

challenge the juror for cause or to exercise a peremptory challenge to the juror and that

the trial court erred in denying his motion for mistrial. We disagree. The State contends

that the record does not demonstrate that the juror withheld any information during voir

dire. The record reflects that Posada did contact the trial judge during the noon recess and

inform him that he recognized Salazar when he was sworn as a witness. The reporter’s

record also shows that the trial judge allowed appellant’s counsel to examine Posada out

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of the presence of the remaining members of the jury and that appellant’s motion for

mistrial was overruled. However, the reporter’s record does not include a transcription of

voir dire examination.


      In Bauder v. State, 921 S.W.2d 696, 698 (Tex.Cr.App. 1996), while discussing

mistrials and double jeopardy issues, the Court stated:


      At the outset, we emphasize that mistrials are an extreme remedy for
      prejudicial events occurring during the trial process.


Later, in Wood v. State, 18 S.W.3d 642, 648 (Tex.Cr.App. 2000), in discussing mistrials,

the Court noted:


       A mistrial is a device used to halt trial proceedings when error is so
       prejudicial that expenditure of further time and expense would be wasteful
       and futile. Thus, a trial court may properly exercise its discretion to declare
       a mistrial if an impartial verdict cannot be reached, or if a verdict of
       conviction could be reached but would have to be reversed on appeal due
       to an obvious procedural error. [Citations omitted]. The determination of
       whether a given error necessitates a mistrial must be made by examining the
       particular facts of the case. . . .


       In Evans v. State, 622 S.W.2d 866, 871 (Tex.Cr.App. 1981), the defendant asserted

that two jurors “falsely swore” that they did not know three of the State’s witnesses. The

record did not contain a transcription of the voir dire examination. The Court concluded

that absent a showing that the defendant questioned prospective jurors during voir dire




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regarding names of potential witnesses and that they withheld information, the contention

was without merit. Id.


       Although we must consider all matters that were before the trial court in the

underlying case to determine whether the trial court abused its discretion, matters

complained of that are not in the reporter’s record or in a bill of exception are not

preserved for appellate review. Tex. R. App. P. 33.1(a) and 33.2; Vaughn v. State, 634

S.W.2d 310, 312 (Tex.Cr.App. 1982). Given the record before us, we are unable to

determine that the trial court abused its discretion in overruling appellant’s motion for

mistrial. Appellant’s sole point of error is overruled.


       Accordingly, the judgment of the trial court is affirmed.




                                                  Don H. Reavis
                                                    Justice


Do not publish.




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