                                     NO. 07-08-0155-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL B

                                  OCTOBER 30, 2008
                           ______________________________

                              RONALD WAYNE HARRISON,

                                                                   Appellant

                                               v.

                                  THE STATE OF TEXAS,

                                                       Appellee
                         _________________________________

                FROM THE 271ST DISTRICT COURT OF JACK COUNTY;

                     NO. 4205; HON. JOHN H. FOSTEL, PRESIDING
                         _______________________________

                                Memorandum Opinion
                          _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Ronald Wayne Harrison appeals his conviction for indecency with a child by

asserting that 1) the evidence was legally insufficient, 2) the trial court abused its discretion

in overruling appellant’s objection to testimony from a deputy, and 3) the trial court erred

in failing to grant appellant’s motion for mistrial. We affirm the judgment.
       Issue 1 - Sufficiency of Evidence to Support Enhancement Finding

       In his first issue, appellant challenges the legal sufficiency of the evidence to support

the jury’s finding with respect to an enhancement paragraph in the indictment. Through

the indictment, the State alleged that appellant previously had been convicted of

burglarizing a habitation “on the 9th day of November, 1994, in cause number F-9430228-

MV in the 292nd Judicial District Court of Dallas County, Texas.” Appellant pled not true to

the allegation. The State then tendered evidence illustrating that he had indeed committed

the offense. However, reference to the county in which the conviction occurred changed

from Dallas to Tarrant in the jury charge. The jury, nonetheless, found the enhancement

paragraph to be true. Now appellant argues that because there was no proof that he was

convicted in Tarrant County, no evidence supports the finding. We overrule the issue.

       We test the legal sufficiency of the evidence via the standard set forth in Jackson

v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and against the allegations

contained in a hypothetically correct jury charge. Gollihar v. State, 46 S.W.3d 243, 252

(Tex. Crim. App. 2001); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

Moreover, these requirements apply irrespective of whether the appellant attacks the

sufficiency of the evidence underlying the current conviction or the establishment of the

allegations in an enhancement paragraph. Young v. State, 14 S.W.3d 748, 750 (Tex.

Crim. App. 2000) (stating that Malik’s principles apply equally to the affirmative findings

necessary to sustain the imposition of an enhanced punishment).

       Next, the hypothetically correct charge at bar would have asked whether the prior

offense was committed in Dallas as opposed to Tarrant County. Furthermore, the record



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is replete with evidence illustrating that the situs of the earlier crime was Dallas County, a

fact no one denies. So, upon applying Gollihar and Malik, we cannot but conclude that the

finding as to the enhancement paragraph enjoyed the support of legally sufficient evidence.

       Issue 2 - Testimony of Deputy

       Next, appellant questions whether the trial court erred in overruling his Rule 403

objection. That objection was directed at the testimony of a deputy sheriff who purportedly

heard appellant state, several months before trial, that if he could make eye contact with

the child victim, he would not be found guilty. We overrule the issue.

       The decision to admit evidence is reviewed under the standard of abused discretion.

Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). And, such an abuse occurs

only when the decision falls outside the zone of reasonable disagreement. Montgomery

v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (dealing with a Rule 403 objection).

       Next, Rule 403 of the Texas Rules of Evidence permits the exclusion of relevant

evidence when its probative value is substantially outweighed by the danger of unfair

prejudice. TEX . R. EVID . 403. Here, appellant argues that the evidence in question was

prejudicial and had little probative value. Yet, one can reasonably interpret the comment

overheard by the deputy as a threat of intimidation directed towards the child victim in effort

to prevent her from testifying. It has long been recognized that effort by a defendant to

prevent a witness from testifying is generally admissible as conduct showing a

consciousness of guilt, which conduct tends to prove commission of the offense.

Rodriguez v. State, 577 S.W.2d 491, 492-93 (Tex. Crim. App. 1979). Being evidence of

a consciousness of guilt, appellant’s utterance was both relevant and probative, especially



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since the conviction rested in large part on the testimony of the victim he proposed to

intimidate. And, while the statement is prejudicial, it is not unfair. That is, it does not give

rise to the type of prejudice contemplated by Rule 403, such as prejudice arising from

emotion or bias. Karnes v. State, 127 S.W.3d 184, 191 (Tex. App.–Fort Worth 2003, no

pet.). Rather, the chance of harm it posed is no different than the harm posed by any other

admissible evidence illustrating guilt.           So, after considering it within the framework

discussed in Montgomery v. State, supra, we cannot say that the trial court’s decision to

admit the statement fell outside the zone of reasonable disagreement.

       Issue 3 - Motion for Mistrial

       In his last issue, appellant complains of the trial court’s failure to grant his motion

for mistrial. That motion was made after the judge revealed to the parties that a juror had

approached and informed him that the juror believed he may know someone who may be

a witness.1 In lieu of asking for opportunity to examine the juror in effort to determine

       1
           The substance of the exchange between the court and counsel follows:

                          COURT: Let the record reflect the Court has advised the attorneys
                 that during the break one of the jurors approached m e and stated that the
                 prosecution had asked whether they knew one of the nam es of one of the
                 prosecution’s witnesses, that he didn’t recognize the nam e. That he knew
                 and that he had seen a witness, that he thought he did know. And he
                 basically said I don’t know if I can m ake a good juror. W hereupon, the
                 Court advised him that he had already been qualified and he was on the
                 jury.

                 Prosecution?

                 [STATE]: No questions or com m ents.

                 [DEFENSE]: Your Honor - -

                 COURT: Defendant?

                 [DEFENSE]: Your Honor, I appreciate the Court bringing that inform ation to
                 m y attention. The Defendant m oves for m istrial at this tim e.



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whether the relationship would impact his ability to be fair and impartial, appellant simply

asked for a mistrial. The latter was denied. We overrule the issue.

          Like questions regarding the admission of evidence, those concerning decisions to

deny mistrial are reviewed under the standard of abused discretion. Archie v. State, 221

S.W.3d 695, 699 (Tex. Crim. App. 2007). Furthermore, we note that when a juror

withholds material information during voir dire, mistrial may be appropriate. Franklin v.

State, 138 S.W.3d 351, 353-54 (Tex. Crim. App. 2004). When the information withheld is

immaterial and the record does not show that the defendant was denied an impartial jury

or a fair trial, denying mistrial is not error. Decker v. State, 717 S.W.2d 903, 907-08 (Tex.

Crim. App. 1986). Additionally, a juror’s mere familiarity with a witness is not necessarily

material information. Franklin v. State, 12 S.W.3d 473, 478 (Tex. Crim. App. 2000);

Decker v. State, 717 S.W.2d at 907. Its materiality depends upon whether the nature of

the relationship carries with it a potential for bias or prejudice sufficient to warrant the

juror’s     exclusion from the panel.            Sypert v. State, 196 S.W.3d 896, 900 (Tex.

App.–Texarkana 2006, pet. ref’d).




                COURT: All right. I’m - - I’m going to deny your m otion for m istrial.

                The Court finds that the - - based upon the conversation, he did not
                recognize a nam e and did not purposely withhold that inform ation from the
                Court.

                It was upon viewing an individual which m ay or m ay not be a juror in the
                case - - I m ean, witness in the case. I don’t know if he would know whether
                or not it was or was not but at any rate, that’s the Court’s ruling.

                Thank you.

                [DEFENSE]: Thank you, Judge.

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       Here, all we have before us is evidence that a juror recognized someone in the hall

outside the courtroom. Missing is evidence illustrating whether the individual actually was

a potential witness or merely a spectator. Undoubtedly, that could affect our analysis of

the issue. So too do we lack any record developing the extent of the juror’s relationship

with that person. That too could influence how we view the impact, if any, of the

relationship upon the juror’s deliberations. Again, appellant simply asked for a mistrial.

Neither litigant made effort to investigate or develop the situation, according to the record

before us. Given this, we cannot say that appellant illustrated the relationship in question

was material in any way.

       Accordingly, the judgment of the trial court is affirmed.



                                                 Brian Quinn
                                                 Chief Justice



Do not publish.




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