                           NUMBER 13-13-00500-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

GREGORY FONSECA,                                                        Appellant,

                                         v.


THE STATE OF TEXAS,                                                     Appellee.



                   On appeal from the 25th District Court
                       of Gonzales County, Texas.


                        MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Garza and Longoria
             Memorandum Opinion by Justice Longoria

      Appellant, Gregory Fonseca, appeals his jury convictions for two counts of

aggravated assault with a deadly weapon. The jury assessed a life sentence for count

one and a ninety-nine year sentence for count two. For each count, the jury assessed a
fine in the amount of $10,000. In this appeal, appellant contends that the trial court erred

by failing to declare a mistrial because of alleged juror misconduct. In addition, appellant

also contends, and the State agrees, that the trial court erred in ordering appellant to pay

$500 in attorney’s fees that were assessed as court costs for count one. Finally, appellant

complains, and the State agrees, that the trial court erred in entering a judgment stating

that the two $10,000 fines assessed against appellant are to run consecutively, instead

of concurrently. For the reasons set forth below, the Court modifies the trial court’s

judgment to delete the $500 in attorney’s fees assessed against appellant and included

as court costs in count one and to state that the two $10,000 fines imposed against

appellant shall run concurrently. The Court affirms the trial court’s judgment as modified.

                                      I. BACKGROUND

       During the testimony of Samantha Manning, a forensic scientist for the Texas

Department of Public Safety Laboratory, the trial court noticed that a juror appeared to

have fallen asleep. The trial court promptly recessed the trial. After the recess, the trial

court instructed the jurors that if they needed a break to stay alert to let him know and he

would give them a break. The testimony of Samantha Manning continued. She explained

to the jurors how she determined which samples should be taken and sent to the DNA

forensic scientist for analysis. Appellant did not object to the sleeping juror, did not ask

the trial court to inquire of the juror about testimony he or she may have missed, and did

not move for a mistrial.

       Later in the trial, the State announced that it had learned that members of

appellant’s family were possibly trying to contact one or more jurors and that two jurors

had shared something written on their notepad with each other. Appellant immediately



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moved for a mistrial. The trial court withheld its ruling and decided to speak with the jurors

to ensure the fairness of the proceedings.

       After speaking to the two jurors in chambers, the judge returned to the courtroom

with all parties present, outside the presence of the jurors, and explained that after talking

with both jurors he felt that there had been no impropriety. The trial court also stated that

he did not see any passing of notes between the jurors. Appellant moved for a mistrial

stating that he did not believe the jurors could be fair and that they may have felt pressure

from being singled out. The trial court stated that he handled the situation in a way so

that the jurors would not have felt intimidated and based on his conversations with them

he did not believe they felt intimidated by the inquiry. The trial court denied appellant’s

motion for mistrial. The following day, appellant renewed his request for a mistrial, this

time, appellant added that some of the jurors “couldn’t stay awake.” The court denied the

motion. The jury found appellant guilty of both counts of aggravated assault.

       Before the punishment phase began, appellant moved again for a mistrial, arguing

that there had been “serious misconduct on the part of the jury” because “[t]hey fell

asleep” and “[t]hey could not pay attention.” Appellant also argued that the jurors “were

intimidated by the Court.” The trial court denied the motion.

       During the second day of the punishment phase of trial, appellant’s sister, Agapita

Fonseca, asked to speak on the record, outside the presence of the jury. Ms. Fonseca

claimed that she witnessed a juror sleeping Monday, Tuesday, and Wednesday of the

guilt-innocence phase of trial. Ms. Fonseca claimed that after the verdict was read the

same juror smirked at her and she felt “disrespected.” When asked again by appellant’s

trial counsel if there had been any contact between her family members and the jurors,



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she said no; however, she indicated that she was Facebook friends with one of the jurors.

She then clarified that she and the juror have mutual friends through Facebook. Ms.

Fonseca claimed that one of the jurors was very close to a brother of hers. The trial court

asked Ms. Fonseca if there had been any contact between any jurors and her family

members prior to the verdict, and she answered that there had not been.

       In response to Ms. Fonseca’s statements, the trial court explained that he had

been observing the jurors throughout the entire trial and that there was only one time

during the trial when he found one juror asleep, a situation which he addressed by taking

a recess. The trial court noticed some jurors had their eyes closed during the testimony,

but he believed they were not asleep and instead were listening attentively to the

testimony. The trial court stated that the “integrity of the trial was not jeopardized as a

result of that juror [who he believed was asleep].” In response to Ms. Fonseca continuing

to argue with the trial court, he stated that “we did everything that we’re supposed to do

to make the trial fair.”

       The proceedings then resumed, and as set forth above, the jury gave appellant a

life sentence for count one and a ninety-nine year sentence for count two. The jury also

assessed a fine in the amount of $10,000 for each count. This appeal ensued.

                                        II. MISTRIAL

       In his first issue, appellant argues that the trial court erred by denying his requests

for a mistrial.

A. Applicable Law

       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. Ladd v. State, 3



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S.W.3d 547, 567 (Tex. Crim. App. 1999). 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. Id. The determination of whether a given error necessitates a mistrial

must be made by examining the particular facts of the case. Id.

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

of highly prejudicial and incurable errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim.

App. 2009). 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 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. Id. at 885. Although requesting lesser remedies is not a prerequisite to a motion

for mistrial, when the movant does not first request a lesser remedy, we will not reverse

the court’s judgment if the problem could have been cured by the less drastic alternative.

Id.

B. Standard of Review

       A trial court’s denial of a mistrial is reviewed for an abuse of discretion. Id. at 884.

An appellate court views the evidence in the light most favorable to the trial court’s ruling,

considering only those arguments before the court at the time of the ruling. Id. The ruling

must be upheld if it was within the zone of reasonable disagreement. Id.




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C. Discussion

        Appellant argues that all of the “facts taken together place into question whether

there was juror misconduct in the trial of this case.” We will examine each contention in

turn.

        The parties agree that a contemporaneous objection is required to preserve error

with respect to a sleeping juror. See Thieleman v. State, 187 S.W.3d 455, 458 & n.3

(Tex. Crim. App. 2005). Appellant did not make a contemporaneous objection to the

sleeping juror. Accordingly, error was not preserved. See id.

        Furthermore, “a court has considerable discretion in deciding how to handle a

sleeping juror.” Menard v. State, 193 S.W.3d 55, 60 (Tex. App.—Houston [1st Dist.] 2006,

pet. ref’d) (quoting United States v. Freitag, 230 F.3d 1019, 1023 (7th Cir. 2000)). Even

if appellant had properly preserved this issue for appellate review, he has not

demonstrated that the trial court’s finding that the integrity of the trial was not jeopardized

as a result of the sleeping juror or that the trial court’s actions to remedy the situation by

taking a recess were outside the zone of reasonable disagreement. See Ocon, 284

S.W.3d at 885. The same is true with respect to the jurors who were listening with their

eyes closed. No abuse of discretion has been shown.

        Next, appellant argues that the trial court erred by denying his request for a mistrial

because there were allegedly communications between appellant’s family and one or

more of the jurors. See TEX. CODE CRIM. PROC. ANN. art. 36.22 (West, Westlaw through

2013 3d C.S.) (“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.”). “When a juror converses

with an unauthorized person about the case, injury to the accused is presumed, and a



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new trial may be warranted.” Hughes v. State, 24 S.W.3d 833, 842 (Tex. Crim. App.

2000). However, appellant has the burden of proving the allegation of juror misconduct.

Id. In this case, there are allegations of juror misconduct, but there is no evidence to

prove that any misconduct actually occurred or to support such a finding. Accordingly,

the trial court did not abuse its discretion by denying appellant’s request for a mistrial

based on alleged juror misconduct involving alleged communications with members of

appellant’s family. See id.

       Finally, appellant contends that he was entitled to a mistrial because two jurors

allegedly passed notes to each other. 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

is overruled. Id. In this case, the State brought the alleged note-passing incident to the

trial court’s attention. The prosecutor told the trial court:

       In addition, your Honor, we have been made aware that during the Court’s
       admonishment to the Jury about not having contact with any parties, or third
       parties, that particular juror made a communication on his notepad with the
       juror sitting next to him. They both grinned and looked over at the Fonseca
       family. And then when the Bailiff – and when they saw the Bailiff watching,
       they put the notebook away.

       Ultimately, the judge rejected the allegations of note-passing: “I was keeping

something of an eye on the jurors myself when I gave that admonition after lunch, and I

didn’t see anything that looked like note passing to me. Of course, I could’ve missed it. I

miss things from time to time, but I didn’t see it.” In addition, the trial court’s determination

was based on his interview of the two jurors in chambers, during which one of the jurors

assured the court that he had merely written his own name on his notepad. The trial court

found no impropriety had occurred. This is an issue of fact, and the trial court’s finding is

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supported by the record. Accordingly, we will defer to the trial court’s resolution of this

matter. See id. Again, no abuse of discretion has been shown.

       Appellant’s first issue is therefore overruled.

                                    III. ATTORNEY’S FEES

       In his second issue, appellant argues that the trial court erred by assessing $500

in attorney’s fees against him and including that amount as court costs in count one of

the judgment because there is no evidence that his status as an indigent defendant

changed after the court’s initial determination. See TEX. CODE CRIM. PROC. ANN. art.

26.05(g) (West, Westlaw through 2013 3d C.S.); Mayer v. State, 309 S.W.3d 552, 556

(Tex. Crim. App. 2010) (holding that no objection at trial is necessary to preserve this

issue). The State concedes the point of error and agrees that the order of attorney’s fees

assessed in the judgment should be deleted. Accordingly, the Court sustains appellant’s

second issue.

                                          IV. FINES

       In his third issue, appellant argues that the trial court erred by assessing fines in

the amount of $20,000. Again, the State concedes the error. Because the offenses arose

out of the same criminal episode, the $10,000 fines assessed for the two counts must run

concurrently, not consecutively. See State v. Crook, 248 S.W.3d 172, 174 (Tex. Crim.

App. 2008). Appellant’s third issue is sustained.

                                      V. CONCLUSION

       The Court modifies the trial court’s judgment (1) to delete the $500 in attorney’s

fees assessed against appellant and included as court costs in count one of the judgment




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and (2) to state that the $10,000 fines imposed against appellant are to run concurrently.

The trial court’s judgment is affirmed as modified.




                                                 NORA L. LONGORIA
                                                 Justice

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

Delivered and filed the
13th day of November, 2014.




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