IN THE TENTH COURT OF APPEALS
No. 10-12-00210-CR
CEPHUS LOUIS JACKSON, JR., Appellant v.
THE STATE OF TEXAS, Appellee
From the 272nd District Court Brazos County, Texas Trial Court No. 11-04303-CRF-272
MEMORANDUM OPINION
In one issue, appellant, Cephus Louis Jackson Jr., challenges his conviction for
burglary of a vehicle with two or more prior convictions. See TEX. PENAL CODE ANN. §
30.04(a) (West 2011). Specifically, Jackson asserts that the trial court abused its
discretion by failing to grant a mistrial after nine venirepersons observed Jackson being
fingerprinted by a police officer. We affirm. I. BACKGROUND
Jackson was charged by indictment with burglary of a vehicle with two or more
prior convictions. The State subsequently filed a notice of enhancement, alleging four
enhancements that could increase punishment to either a second-degree or third-degree
felony. Thereafter, the State filed a motion to compel the fingerprinting of Jackson.
Prior to voir dire and the seating of the jury, Rebecca Wendt, a Crime-Scene
Investigator for the Bryan Police Department, fingerprinted Jackson at the front of the
courtroom. However, Investigator Wendt inadvertently took Jackson’s fingerprints in
front of eight venirepersons. One of the prosecutors noticed this and immediately
informed defense counsel, who objected to the process. Jackson was then “shuffled
back to the back room in front of the eight jurors.”
Defense counsel informed the trial judge of what had happened. Specifically,
defense counsel objected that the fingerprinting process in this case violated Jackson’s
right to have a randomly selected jury panel. Defense counsel then moved for a
mistrial. After consultation with defense counsel and the attorneys for the State, the
trial judge offered the following:
THE COURT: All right. Here’s what I’m going to do. I’m going to give you two choices, both of which will mean that you preserve your objection and your ruling on your motion.
Choice No. 1 is I overrule your motion and your objection, and we go forward with the panel as seated, including the—the eight.
Jackson v. State Page 2 Choice No. 2 is I overrule the objection and your motion, and we let the eight go and proceed with those that are left.
You pick which one you want and preserve your objections at the same time.
Jackson opted to “let the eight go.”
It was later discovered that a ninth venireperson witnessed the fingerprinting of
Jackson, and that individual was subsequently excused from jury service. The jury pool
was then shuffled pursuant to the State’s request. The parties conducted voir dire with
the remaining jurors in the panel. Neither side made a challenge for cause. After both
the State and Jackson submitted their strike lists, the trial judge asked Jackson if he had
any objections to the twelve venirepersons that constituted the jury. Jackson stated that
he did not have any objections, and the jury was eventually seated.1
Ultimately, the jury found Jackson guilty of the charged offense, concluded that
the enhancements were true, and sentenced Jackson to sixteen years’ incarceration in
the Institutional Division of the Texas Department of Criminal Justice. This appeal
followed.
II. STANDARD OF REVIEW
We review the denial of a motion for mistrial under an abuse-of-discretion
standard. Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007). Under this
standard, we uphold the trial court’s ruling as long as the ruling is within the zone of
reasonable disagreement. Id. “‘A mistrial is a device used to halt trial proceedings
1 The record indicates that the initial jury pool contained seventy-five people. However, after excusing the nine jurors who witnessed the fingerprinting and three jurors due to illness, the jury pool consisted of sixty-three.
Jackson v. State Page 3 when error is so prejudicial that expenditure of further time and expense would be
wasteful and futile.’” Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting
Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). It is appropriate only for “a
narrow class of highly prejudicial and incurable errors.” Id.; see Hawkins v. State, 135
S.W.3d 72, 77 (Tex. Crim. App. 2004). Therefore, a trial court properly exercise its
discretion to declare a mistrial when, due to the error, “an impartial verdict cannot be
reached” or a conviction would have to be reversed on appeal due to “an obvious
procedural error.” Wood, 18 S.W.3d at 648; see Ladd, 3 S.W.3d at 567.
III. ANALYSIS
In his sole appellate issue, Jackson contends that the trial court abused its
discretion in failing to grant him a mistrial because nine venirepersons witnessed him
being fingerprinted by law enforcement. In particular, Jackson asserts that
fingerprinting deprived him of the presumption of innocence; that the venire was
tainted; and the decision to excuse the nine jurors deprived him of a random jury.
A. Applicable Law
It is appellant’s burden to make a specific and proper objection and then call the
attention of the trial court to the specific complaint raised on appeal. Alvarado v. State,
822 S.W.2d 236, 239 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) (citing Little v.
State, 758 S.W.2d 551, 563 (Tex. Crim. App. 1988)). When a trial judge excuses jurors sua
sponte, appellant must establish that “‘he was tried to a jury to which he had a
legitimate objection.’” Id. (quoting Warren v. State, 768 S.W.2d 300, 303 (Tex. Crim. App.
1989)). “Merely asserting that appellant was tried to a jury to which he had a legitimate
Jackson v. State Page 4 objection is insufficient to establish harm.” Id. (citing Green v. State, 764 S.W.2d 242, 247
(Tex. Crim. App. 1989)). The Green Court established that, to preserve error and
establish harm in cases such as this, appellant must: (1) object to the excusal of the
juror; (2) at the conclusion of the voir dire claim that he is to be tried by a jury to which
he has a legitimate objection; (3) specifically identify the juror or jurors that he is
complaining about; and (4) exhaust all of his peremptory challenges and request
additional peremptory challenges. 764 S.W.2d at 247.
B. Discussion
Based on our review of the record, we do not believe that the trial court abused
its discretion in denying Jackson’s motion for mistrial. We first note that Jackson did
not preserve error and establish harm in accordance with the standard articulated in
Green. See id. Specifically, Jackson did not object to the jury that was ultimately sworn
in. See id. And though he initially objected, Jackson eventually agreed to the excusal of
the nine venirepersons. In any event, even if we were to conclude that he preserved
error, Jackson’s appellate arguments are unpersuasive.
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IN THE TENTH COURT OF APPEALS
No. 10-12-00210-CR
CEPHUS LOUIS JACKSON, JR., Appellant v.
THE STATE OF TEXAS, Appellee
From the 272nd District Court Brazos County, Texas Trial Court No. 11-04303-CRF-272
MEMORANDUM OPINION
In one issue, appellant, Cephus Louis Jackson Jr., challenges his conviction for
burglary of a vehicle with two or more prior convictions. See TEX. PENAL CODE ANN. §
30.04(a) (West 2011). Specifically, Jackson asserts that the trial court abused its
discretion by failing to grant a mistrial after nine venirepersons observed Jackson being
fingerprinted by a police officer. We affirm. I. BACKGROUND
Jackson was charged by indictment with burglary of a vehicle with two or more
prior convictions. The State subsequently filed a notice of enhancement, alleging four
enhancements that could increase punishment to either a second-degree or third-degree
felony. Thereafter, the State filed a motion to compel the fingerprinting of Jackson.
Prior to voir dire and the seating of the jury, Rebecca Wendt, a Crime-Scene
Investigator for the Bryan Police Department, fingerprinted Jackson at the front of the
courtroom. However, Investigator Wendt inadvertently took Jackson’s fingerprints in
front of eight venirepersons. One of the prosecutors noticed this and immediately
informed defense counsel, who objected to the process. Jackson was then “shuffled
back to the back room in front of the eight jurors.”
Defense counsel informed the trial judge of what had happened. Specifically,
defense counsel objected that the fingerprinting process in this case violated Jackson’s
right to have a randomly selected jury panel. Defense counsel then moved for a
mistrial. After consultation with defense counsel and the attorneys for the State, the
trial judge offered the following:
THE COURT: All right. Here’s what I’m going to do. I’m going to give you two choices, both of which will mean that you preserve your objection and your ruling on your motion.
Choice No. 1 is I overrule your motion and your objection, and we go forward with the panel as seated, including the—the eight.
Jackson v. State Page 2 Choice No. 2 is I overrule the objection and your motion, and we let the eight go and proceed with those that are left.
You pick which one you want and preserve your objections at the same time.
Jackson opted to “let the eight go.”
It was later discovered that a ninth venireperson witnessed the fingerprinting of
Jackson, and that individual was subsequently excused from jury service. The jury pool
was then shuffled pursuant to the State’s request. The parties conducted voir dire with
the remaining jurors in the panel. Neither side made a challenge for cause. After both
the State and Jackson submitted their strike lists, the trial judge asked Jackson if he had
any objections to the twelve venirepersons that constituted the jury. Jackson stated that
he did not have any objections, and the jury was eventually seated.1
Ultimately, the jury found Jackson guilty of the charged offense, concluded that
the enhancements were true, and sentenced Jackson to sixteen years’ incarceration in
the Institutional Division of the Texas Department of Criminal Justice. This appeal
followed.
II. STANDARD OF REVIEW
We review the denial of a motion for mistrial under an abuse-of-discretion
standard. Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007). Under this
standard, we uphold the trial court’s ruling as long as the ruling is within the zone of
reasonable disagreement. Id. “‘A mistrial is a device used to halt trial proceedings
1 The record indicates that the initial jury pool contained seventy-five people. However, after excusing the nine jurors who witnessed the fingerprinting and three jurors due to illness, the jury pool consisted of sixty-three.
Jackson v. State Page 3 when error is so prejudicial that expenditure of further time and expense would be
wasteful and futile.’” Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (quoting
Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). It is appropriate only for “a
narrow class of highly prejudicial and incurable errors.” Id.; see Hawkins v. State, 135
S.W.3d 72, 77 (Tex. Crim. App. 2004). Therefore, a trial court properly exercise its
discretion to declare a mistrial when, due to the error, “an impartial verdict cannot be
reached” or a conviction would have to be reversed on appeal due to “an obvious
procedural error.” Wood, 18 S.W.3d at 648; see Ladd, 3 S.W.3d at 567.
III. ANALYSIS
In his sole appellate issue, Jackson contends that the trial court abused its
discretion in failing to grant him a mistrial because nine venirepersons witnessed him
being fingerprinted by law enforcement. In particular, Jackson asserts that
fingerprinting deprived him of the presumption of innocence; that the venire was
tainted; and the decision to excuse the nine jurors deprived him of a random jury.
A. Applicable Law
It is appellant’s burden to make a specific and proper objection and then call the
attention of the trial court to the specific complaint raised on appeal. Alvarado v. State,
822 S.W.2d 236, 239 (Tex. App.—Houston [14th Dist.] 1991, pet. ref’d) (citing Little v.
State, 758 S.W.2d 551, 563 (Tex. Crim. App. 1988)). When a trial judge excuses jurors sua
sponte, appellant must establish that “‘he was tried to a jury to which he had a
legitimate objection.’” Id. (quoting Warren v. State, 768 S.W.2d 300, 303 (Tex. Crim. App.
1989)). “Merely asserting that appellant was tried to a jury to which he had a legitimate
Jackson v. State Page 4 objection is insufficient to establish harm.” Id. (citing Green v. State, 764 S.W.2d 242, 247
(Tex. Crim. App. 1989)). The Green Court established that, to preserve error and
establish harm in cases such as this, appellant must: (1) object to the excusal of the
juror; (2) at the conclusion of the voir dire claim that he is to be tried by a jury to which
he has a legitimate objection; (3) specifically identify the juror or jurors that he is
complaining about; and (4) exhaust all of his peremptory challenges and request
additional peremptory challenges. 764 S.W.2d at 247.
B. Discussion
Based on our review of the record, we do not believe that the trial court abused
its discretion in denying Jackson’s motion for mistrial. We first note that Jackson did
not preserve error and establish harm in accordance with the standard articulated in
Green. See id. Specifically, Jackson did not object to the jury that was ultimately sworn
in. See id. And though he initially objected, Jackson eventually agreed to the excusal of
the nine venirepersons. In any event, even if we were to conclude that he preserved
error, Jackson’s appellate arguments are unpersuasive.
Jackson first argues that his fingerprinting in the front of the courtroom violated
the presumption of innocence at trial. In making this argument, Jackson equates his
fingerprinting with a trial judge allowing a defendant to be in shackles during trial. We
do not find this analogy to be relevant to this situation for several reasons. In the
instant case, the jury had not been seated, nor had voir dire commenced. However, in
the shackling cases cited by Jackson, a seated jury observed a defendant in shackles
during trial—facts that did not transpire in this case. See, e.g., Long v. State, 823 S.W.2d
Jackson v. State Page 5 259, 282-83 (Tex. Crim. App. 1991); Wiseman v. State, 223 S.W.3d 45, 49-52 (Tex. App.—
Houston [1st Dist.] 2006, pet. ref’d). Furthermore, the jurors who observed Jackson
being fingerprinted were excused from serving on the jury, leaving the remaining jurors
presumably unaware of the fingerprinting event.
Jackson also contends that the fingerprinting tainted the venire. There is no
evidence in the record to suggest that the jury that was ultimately empaneled observed
or knew about the fingerprinting incident. The jurors that did observe the incident
were promptly removed, thus confining any possible taint to those jurors that were
excused. Therefore, besides Jackson’s own speculation, there is nothing in the record to
support any suggestion of jury tainting.
And finally, Jackson asserts that the excusal of the nine jurors deprived him of a
random jury. In support of this contention, Jackson fails to direct us to authority or
record citations. See TEX. R. APP. P. 38.1(i). Regardless, it is noteworthy that Jackson
was posed with a choice with regard to the fingerprinting incident. The trial judge
allowed Jackson to choose to either proceed with the nine venirepersons in the jury pool
or to excuse the nine venirepersons. Jackson chose to exclude the nine venirepersons.
Had he chosen to proceed with the nine venirepersons, Jackson could have asked
questions during voir dire to determine whether challenges for cause or peremptory
challenges should be used on the nine venirepersons. He could have also requested
additional peremptory challenges to strike the nine venirepersons. See Green, 764
S.W.2d at 247. In addition, with a jury shuffle, it was possible that the nine
venirepersons would never have been within the strike zone. Additionally, it is
Jackson v. State Page 6 noteworthy that, after the excusals, the jury pool contained sixty-three venirepersons
from which to choose.
Moreover, the Texas Court of Criminal Appeals has stated that: “[A] defendant
has no right that any particular individual serve on the jury. The defendant’s only
substantial right is that the jurors who do serve be qualified. The defendant’s rights go
to those who serve, not to those who are excused.” Jones v. State, 982 S.W.2d 386, 393
(Tex. Crim. App. 1998). Jackson does not assert that the jurors who served on the panel
were unqualified, and the record does not support Jackson’s contention that he did not
receive a fair and impartial trial.
Therefore, based on the foregoing, we do not believe that Jackson has satisfied
his burden in demonstrating that the trial court’s denial of his motion for mistrial was
an abuse of discretion. See Archie, 221 S.W.3d at 699-700; see also Wood, 18 S.W.3d at 648.
Accordingly, we overrule Jackson’s sole issue on appeal.
IV. CONCLUSION
Having overruled Jackson’s sole issue on appeal, we affirm the judgment of the
trial court.
AL SCOGGINS Justice
Jackson v. State Page 7 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed June 20, 2013 Do not publish [CR25]
Jackson v. State Page 8