Case Summary - Johnny Ray Ocon v. State

Johnny Ray Ocon was charged with aggravated sexual assault of a child. On the second day of trial, defense counsel overheard one of the jurors talking on a cell phone to "Brenda" about the negative impact the trial was having on his scheduling. Defense counsel moved for a mistrial based upon a juror having an unauthorized conversation about the case. Defense counsel represented that the juror had said things to the effect "I would rather be on a double ax-murderer then [sic] this case", "It's dirty, disgusting," and "No, unless we convict the bastard today, then I'm kind of stuck here."

The trial court acknowledged the concern for the juror's behavior, but chose not to grant the mistrial. The trial court expressed reluctance to bring the jurors out individually because it would "accetuate the problem", and ultimately instructed them four separate times after that not to talk to anyone about the case. The jury convicted the bastard (no word on whether it was today), but the court of appeals reversed (in an unpublished opinion) because the trial court abused its discretion in denying the mistrial. [Here's a link to the court of appeals case info.]

The CCA reversed the court of appeals and affirmed the trial court's denial of the motion for mistrial. Judge Meyers, writing for a five-judge majority, held that the juror conversation "may" have violated Article 36.22 of the Code of Criminal Procedure, which prohibits conversing with a juror about the case on trial. Reporting the conversation created a rebuttable presumption of injury to the defendant, but the State rebutted that presumption by submitting that there was no way to verify defense counsel's account of the conversation and reminding the trial court that the jurors had been instructed not to talk about the case. The State was not required to move for questioning of the jurors to rebut the presumption of injury even though that would've been helpful. In fact, the person who moves for mistrial should be the one requesting juror questioning as the burden is on the movant. Ocon not only failed to move for juror questioning, he actually may have acted to prevent it by expressing empathy with the trial court's concern that questioning would only accentuate the problem. Finally, Ocon requested no alternative remedies besides mistrial and this was not one of those "extreme circumstances" that warranted a mistrial.

[Hunh? The defense is supposed to rebut itself?]

Presiding Judge Keller, along with Judge Price, concurred to say that without the conversation, the defense failed to establish a violation of Article 36.22. Had he established a violation, then it would've been up to the State to rebut the presumption of injury. However, they could not join the majority's holding that the defendant bears the burden of producing juror testimony on the question of harm. Judge Johnson also concurred to noted that there was no indication that "Brenda" had exerted an outside influence on the juror based upon the known part of the conversation. Judge Holcomb concurred without an opinion. [Here's a link to the CCA case info if you're interested.]