Calderon v. State

1

JOSE LUIS CALDERON, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-22-00091-CR

Court of Appeals of Texas, Sixth District, Texarkana

March 28, 2023

Do Not Publish

Date Submitted: February 27, 2023

On Appeal from the 54th District Court McLennan County, Texas Trial Court No. 2020-112-C2

Before Stevens, C.J., van Cleef and Rambin, JJ.

MEMORANDUM OPINION

JEFF RAMBIN, JUSTICE

After a jury found Jose Luis Calderon guilty of continuous sexual abuse of a child, he was sentenced to life in prison. In his sole issue on appeal, Calderon maintains that the trial court erred when it denied his motion for a mistrial. For the reasons below, we affirm the trial court's judgment.^[1]

I. Background

On the second day of the guilt/innocence phase of trial, Kenneth Zahirniak, the court bailiff, informed the trial court that a juror "had made a comment to him." In the presence of both parties, and after being sworn-in, Zahirniak stated,

Around 9:00, 9:10, the jurors requested to go to the bathroom. So I let them go to the bathroom. As they were going to the bathroom, I noticed [Jane Doe^[2] and her family were on the bench. And so I let the jurors -- the jurors were already walking by when I noticed it, so when [we] passed, I had the [Jane Doe] move -- her and her family move to the 414th jury room.

And about 9:22, Juror [R.L.] came to me and asked if he could give a gift to[Jane Doe] . . . . And I said, You can't. No contact with her. You know, after the trial, but right now you can't talk to her. You know, it's off limits. He said, Well, I have a website that I want to put her in touch with, and I have a $100 I want to give her. And then I came and notified the Judge. And I escorted him back to the jury room first.

The trial court inquired as to whether the other jurors had passed by Jane Doe and her family during the break, to which Zahirniak responded that they had. But Zahirniak also explained that none of the other jurors overheard his conversation with R.L and that he did not believe that R.L. had shared their conversation with any of the other jurors.

The trial court also swore-in R.L., who stated that he was alone when he spoke to Zahirniak and that nobody was within hearing distance of them during their conversation. R.L. then explained, "So I have a friend. He owns a company called One Spark. He's been raped over two-hundred-and-something times. And so I wanted to give the [wrist]band to [Jane Doe] because she can go to that website and see that he helps tremendous amount of people." R.L. also informed the trial court that he had not had any contact with Jane Doe and that he "wouldn't do anything to jeopardize anything." In addition, R.L. said that he had not made up his mind about the disposition of the case, and he assured the court that he had no intentions of sharing the information with any of the other jurors.

After hearing the testimony, Calderon orally moved for a mistrial, arguing,

I think that, first of all, the juror was not honest with us about his conduct. He did not state on the record when we questioned him that he offered a monetary donation. I think that is a clear indication that he has already decided what he wants to do in this case without even hearing the rest of the evidence.

Neither side in this case at this point has rested or closed. There is absolutely no indication to the jury that they have heard everything they are going to hear in this case. And I think that he has already made up his mind. I feel like his -- his decision alone and his actions alone have tainted this process to the point that there's no way that Mr. Calderon can get a fair trial from this jury. And for that reason, I am going to ask for a mistrial.

Asking the trial court to deny Calderon's motion, the State argued, among other things, (1) that R.L. had not discussed the information with any of the other jurors, (2) that he did not intend to do so, and (2) that he had not yet made up his mind about Calderon's guilt or innocence.

Calderon replied, asserting that R.L. had been dishonest when he explained the circumstances to the court and that Calderon had "problems believing anything else that [R.L.] said after that." Calderon continued, "I cannot in good faith feel like he has not already made up his mind." After hearing both parties' arguments, the trial court denied Calderon's motion for a mistrial.

II. Discussion

A. A Portion of Calderon's Argument on Appeal Comports with His Objection at Trial

The State maintains that Calderon has waived his point of error because his objection at trial does not comport with his complaint on appeal. A "point of error on appeal must comport with the objection made at trial." Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). As stated in Resendez v. State, 306 S.W.3d 308 (Tex. Crim. App. 2009),

Rule 33.1(a) of the Texas Rules of Appellate Procedure provides that a complaint is not preserved for appeal unless it was made to the trial court "by a timely request, objection or motion" that "stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context."

Id. at 312 (quoting Tex.R.App.P. 33.1(a)(1)(A)). "The purpose of requiring a specific objection in the trial court is twofold: (1) to inform the trial judge of the basis of the objection and give him the opportunity to rule on it; [and] (2) to give opposing counsel the opportunity to respond to the complaint." Id.

Although there are no technical considerations or forms of words required to preserve an error for appeal, a party must be specific enough so as to "let the trial judge know what he wants, why he thinks himself entitled to it, and do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it."

Id. at 312-13 (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)).

The State points out correctly that, at trial, Calderon argued that a mistrial was appropriate because R.L. had already determined that Calderon was guilty prior to the close of evidence,^[3] but on appeal, he argues that a mistrial should have been granted because R.L. failed to disclose relevant information during jury voir dire. We agree with the State that Calderon did not bring the latter portion of his argument to the trial court's attention, and therefore, we are unable to consider it on appeal. See Tex. R. App. P. 33.1(a)(1)(A).^[4]

At trial, Calderon argued that his motion for a mistrial should have been granted because R.L. attempted to give Jane Doe a monetary gift, which showed that he "ha[d] already made up his mind" that Calderon was guilty. On appeal, he makes a similar argument, maintaining that the trial court abused its discretion when it denied his motion for a mistrial because R.L. was "actually biased, demonstrated by [his] articulated desire to give the complainant monetary and sentimental gifts[,]" which deprived Calderon "of his constitutional right to an impartial jury." Accordingly, that portion of Calderon's point of error has been preserved for our review.

B. Standard of Review

"A mistrial is appropriate only when the record reveals highly prejudicial and incurable error." McBurnett v. State, 629 S.W.3d 660, 662 (Tex. App.-Fort Worth 2021, pet. ref'd) (quoting Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003)). "A mistrial halts trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile." Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) (citing Ladd v. State, 3 S.W.2d 547, 567 (Tex. Crim. App. 1999)). "Whether an error requires a mistrial must be determined by the particular facts of the case." Id.

We review a trial court's denial of a mistrial under an abuse of discretion standard. Id.; Sanders v. State, 387 S.W.3d 680, 687 (Tex. App.-Texarkana 2012, pet. struck). We consider "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." Ocon, 284 S.W.3d at 884 (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). If the ruling was within the zone of reasonable disagreement, it must be upheld. Id.; Sanders, 387 S.W.3d at 687.

C. Analysis

"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 mandate." Ocon, 284 S.W.3d at 884 (citing Granados v. State, 85 S.W.3d 217, 235 (Tex. Crim. App. 2002)). A juror is required to keep an open mind as to a defendant's guilt until he has heard all of the evidence. Quinn v. State, 958 S.W.2d 395, 403 (Tex. Crim. App. 1997). If a juror makes "statements outside of deliberations that indicate bias or partiality, such bias can constitute jury misconduct that prohibits the [defendant] from receiving a fair and impartial trial." Granados v. State, 85 S.W.3d 217, 235 (Tex. Crim. App. 2002) (citing Quinn, 958 S.W.2d at 402)).

A juror's disqualification based on bias is not usually appropriate unless the bias stems from an extrajudicial source. Quinn, 958 S.W.2d at 402. "[I]t defies common sense and human nature to require that a juror have no impressions or opinions until the judge sends the jury to deliberations. Jurors must necessarily engage in at least some assessment of credibility and evaluation of the evidence as the proceedings occur." Id. at 403. Consequently, we do not require a juror to remain completely void of an opinion relating to the defendant throughout the trial; instead, we require that he set aside that bias and remain fair and impartial...