A Defense Attorney In The Heat Of Battle by John T.

Floyd
I feel that if I brought these people throughout and also talked to them individually, it might just
accentuate the problem ? I feel what I may well do can be instruct these again, you know, in a
selection of their responsibilities and trying to keep an empty thoughts as well as do that, which I?ve
attempted to do. State, 85 S.W.3d 217 (Tex.Crim.App. Your Texas Court involving Criminal Appeals
(?CCA?) offers extended held that will a new juror must base his/her choice in each the actual guilt
and also punishment phases of a criminal trial upon evidence presented within the courtroom as well
as the law as given from the trial judge. Throughout a quick recess, the attorney entered the
particular men?s restroom within the county courthouse. LEXIS 732 (Tex.Crim.App. Questioning
jurors whom allegedly taken portion in misconduct can always be a less drastic remedy than the
particular usual mistrial. Nearly All of the particular time we obtain it right; other occasions we
don?t. This would demonstrate being a high priced tactical decision with regard to his client,
although it could have been difficult, in the middle of this courtroom battle, for your attorney to have
foreseen its eventual damage.
While the trial judge inside the Ocon case has been involved in regards for you to the cell telephone
juror?s alleged misconduct, he wasn't convinced there ended up being clearly the sufficient basis for
any mistrial based solely on what the particular defense attorney had informed him. 9 the CCA
pointed for the subsequent exchange between defense counsel and furthermore the trial judge like a
cause for its finding/
Defense Counsel: As Well As my concern is this because?I mean, I know the Court needs for you to
inquire straight into it, but the sole method to inquire into it though, is to really carry those jurors
inside along with question them. As Well As which is my concern in the total thing.
The failure associated with Ocon?s attorney in order to request a Rule 606(b) inquiry, and his
awesome personal arguments that actually argued against this inquiry, precluded the actual juror
perform issue coming from being heard upon appeal along with prompted the following harsh
assessment through the CCA:
That the party alleging juror misconduct, not really the particular State nor the actual court, must
initiate juror questioning, is actually steady along with our rules involving error preservation. That
isn't necessarily an simple job to sift via an individual juror?s personality within the brief period of
time of time, along with with a restricted variety of questions, to identify along with isolate any
prejudices the particular juror may get against the defendant.
Ocon?s attorney conducted a new diligent as well as comprehensive voir dire of countless dozen
prospective jurors prior to twelve were chosen to listen to the situation against Ocon. That said that
rather than the actual State getting the responsibility throughout juror misconduct situations to end
up being able to initiate an inquiry regarding jurors, or even the particular trial court itself having a
duty for you to independently conduct this kind of inquiry, its precedents had always positioned the
responsibility in defense counsel to make a formal obtain dui law firms this inquiry in to jury
misconduct below Rule 606(b). June 3, 2009)
7/ Id.
8/ Id.
9/ Id.
10? Id.
By: Houston Criminal Attorney John Floyd and also Paralegal Billy Sinclair
. LEXIS 376 (Tex.App.-Eastland Jan. Ocon?s attorney didn?t obtain it right. Upon 4 different
occasions through the guilt phase of the trial he reminded the jurors which these were never to talk
about the case using anyone. Curative instructions frequently serve as efficient alternatives to the
intense remedy of the mistrial, where there isn't any indication that the 4 instructions subsequent
for the juror's misconduct failed for you to remedy the actual situation. I discuss it and I will, anyone
know, see if there?s something?I?ll think about it along with find out if there is certainly a few
method to remedy that the jurors, that they realize which there's a lot more to this then [sic] maybe
their particular sentiments in regards to become able to the case therefore far.
The trial judge stored his word. The Particular attorney found himself inside the proverbial ?damn in
the big event you do, damn if don?t? situation. Will this imply he ended up being ineffective in his
representation of Ocon? Certainly not. Ocon?s attorney appealed the conviction to the Eleventh
District Court regarding Appeals within Eastland. About January 17, 2008, the particular appeals
court reversed Ocon?s conviction, applying any presumption regarding injury to be able to
defendant, and ordered a manufacturer new trial. It asserted while questioning jurors with regards
to allegations associated with misconduct will be helpful in deciding whether any mistrial should be
granted, it just isn't required. That?s a new difficult nut in order to twist. The Actual judge obviously
believed, even so mistaken, that will these instructions really cured whatever bias the particular cell
telephone juror may have infected the jury with.
Whether or otherwise not Ocon?s jury had been influenced from the cell phone juror?s bias is
actually uncertain. Yet in the big event the Court decides never to grant a new mistrial, then I?ve got
? a minimal of one of all of them (jurors) in particular that's likely to become considering me like why
had been an individual hearing my conversation.
Trial Judge: I consider if I brought these people in and talked for them individually, it could just
accentuate your problem.
Defense Counsel: I recognize that. Such As nearly all defense attorneys at the conclusion involving
voir dire and following your jurors were sworn, Ocon?s attorney knew there was most likely a couple
jurors who would not approach the truth by getting an open up thoughts despite their own sworn
duty to do so. the judge stated why he felt because he did:
I am reluctant ? in order to grant any mistrial along with assume in which they?re not necessarily
likely to adhere to virtually any instructions, you know, at this point. Article 36.22 with the Texas
Code associated with Criminal Procedure states that will ?no individual shall end up being permitted
to be able to converse having a juror in regards to the case upon trial except within the presence as
well as by the permission of the court.? Your CCA features held that the main purpose associated
with this law would always be to insulate jurors coming from outside influences. 8/
And the particular CCA took pains to suggest out that Ocon?s defense attorney not merely failed to
produce any Rule 606(b) request nevertheless which his arguments on the motion pertaining to
mistrial actually ?acted to become able to prevent? such an inquiry. That can only always be
assumed that he failed to adequately think through his subsequent tactical trial choice in order to
remedy the situation. 1983)
3/ Hughes v. 6/
Ocon?s attorney argued prior to become able to the CCA which in order for that State to effectively
rebut the presumption associated with injury for you to his client, the actual prosecution bore the
responsibility in order to issue jurors concerning any coverage to a biased influence in the likes with
the cell telephone juror, one thing the particular prosecution did not do. 3/ Your prosecution,
however, has for you to be provided an opportunity to rebut the particular presumption involving
injury. Individuals twelve jurors took a solemn oath to be fair and impartial. Floyd
Rule 606(b) of the Texas rules involving Evidence; Conducting Inquiry into Juror Misconduct
Johnny Ray Ocon ended up being placed on trial inside Ector County, Texas for the crime of
aggravated sexual assault of a child. 10/
Every criminal trial presents critical moments when defense attorneys must create within the heat
with the fire tactical decisions. The idea by simply no means is.
The Ocon case will become the kind in which keeps any protection attorney awake a night,
particularly around the night just before trial.
SOURCES:
1/ Granados v. Exactly what is certain is often that the actual jury discovered Ocon guilty and
assessed his punishment from existence imprisonment. State, 958 S.W.2d 395 (Tex.Crim.App. 7/
It had been at this point that the CCA centered about what it considered to become the particular
real issue within the Ocon case. Here, Appellant's very first action ended up being to move for a
mistrial. However I appreciate your own concern. defense attorneys has to be careful and also
thorough during the voir dire of prospective jurors to recognize virtually any hidden biases any juror
could harbor such cases. The Actual CCA about June 3, 3009 reversed your appeals court?s new trial
order and reinstated Ocon?s conviction and life sentence. He acted upon pure instinct?and the
Eleventh District Court of Appeals agreed he acted properly. An appellant that moves to acquire a
mistrial without 1st requesting the much less drastic alternative forfeits appellate review of this
class regarding events that will could are already cured by the lesser remedy. Appellant wasn't
required to progress sequentially coming from least for you to many significant remedy, even so we
will not reverse a trial court's judgment whenever a lesser, un-requested alternative, for example
juror questioning, could have got cured the particular problem.
Considering in which Appellant requested zero alternative remedies, he must have been happy that
the trial judge aggressively utilized the actual remedy in the curative instruction. State, 647 S.W.2d
257 (Tex.Crim.App. 2000)
4/ Quinn v. Yet the particular attorney had place forth his very best effort to select the particular
type of fair along with impartial jury in order to which in turn his client ended up being entitled
below each the particular federal and Texas constitutions.
But absolutely nothing throughout the particular jury choice process had ready Ocon?s attorney for
what he'd encounter about the second day of the trial. The following are usually portions with the
conversation the particular defense attorney heard:
Brenda ? They?ve got me about this damn jury ? I don?t understand why the particular hell these
people picked me ? I would rather always be on the double ax murderer then [sic] this damn case ?
It?s dirty, disgusting ? No, unless we convict the bastard today, then I?m kind of stuck here.
Besides Ocon?s attorney, there had been clearly but an additional Ocon juror within the restroom
whom also overheard your cell phone conversation temecula dui attorney in between 1st juror and
?Brenda.?
Ocon?s attorney was probably angered, and also understandably so, by the juror?s comments. 4/
But just before a new defense attorney constitutes a motion to find a mistrial based on jury
misconduct, that is considered any drastic remedy of final resort, Rule 606(b) with the Texas
Guidelines associated with Evidence supplies a more gentle alternative remedy which allows the
trial court to be able to conduct an inquiry together with jurors in regards to the specific allegations
associated with misconduct to determine when the misconduct is often curable together with
instructions. State, 2009 Tex.Crim.App. 1997)
5/ Ocon v. The Particular attorney?s argument tracked dui lawyer in Lancaster exactly the particular
same position taken by the court involving appeals throughout its choice to reverse Ocon?s
conviction.
The CCA disagreed, however. I mean, that?s my principal job ?
I believe only from that point I am likely to deny the motion. 2/ The Particular CCA in add-on has
held in which there's a presumption associated with injury to some defendant once the violation
associated with Article 36.22 may be established which may outcome in a mistrial. My principal
concern is to make certain your own client receives any fair trial. Now, in which might change.
Ocon?s attorney bypassed this evidentiary procedure (apparently trusting that will instructions could
truly do a lot more hurt compared to good) and also moved directly for the remedy of your mistrial.
State, 2008 Tex.App. Sex offense cases involving youngsters are probably the most challenging for
any criminal defense attorney to always be able to try. 5 The Actual appeals court furthermore
bypassed thought of the Rule 606(b) alternative, which in turn lent professional credence in order to
Ocon?s attorney?s tactical selection for you to motion straight to find a mistrial.
The State sought, as well as had been granted, discretionary review prior for you to the CCA.
A Protection Attorney Inside The Heat Associated With Battle
by: John T. 2002)
2/ Chambliss v. 17, 2008)
6/ Ocon v. He moved for a mistrial as quickly because the trial judge reconvened your trial. in
defense associated with this maneuver, Ocon?s attorney certainly had a reasonable expectation that
this procedural relief could be granted from the trial court. Because your CCA pointed out, the
attorney had certainly not been ?required? to be able to carry on from your ?least to the most
significant remedy,? in hindsight, his tactical choice not really to accomplish so efficiently cost his
client a complete appellate review about the juror misconduct issue. Following the incident ended up
being brought for the court's attention, the particular trial judge issued four separate instructions
for the jurors through the guilt phase, warning these people never to discuss the truth with anyone
rather than to be able to form or perhaps express just about any opinions relating to your case.
State, 24 S.W.3d 833 (Tex.Crim.App. Your CCA provides held that whenever a juror ?makes
statements outside associated with deliberations that indicate bias or even partiality, such bias can
easily constitute jury misconduct that will prohibits the accused via receiving any fair along with
impartial trial.? 1/
It will be obvious from your remarks expressed within the bathroom stall your Ocon juror had
betrayed his sworn duty to become fair and also impartial and also has been engaging inside ?juror
misconduct.? Texas law is actually obvious upon this issue. He overheard someone within the next
stall talking on the cell phone. The Actual CCA was not thus forgiving. ?Our case law does not
establish juror questioning like a mandatory remedy,? the CCA said, ?nor perform the Texas
Guidelines of Evidence? in juror misconduct situations