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

Floyd
It would demonstrate being the costly tactical decision pertaining to his client, although it could
happen for you to be difficult, within the middle regarding this courtroom battle, for the attorney to
get foreseen its eventual damage.
While the particular trial judge in the Ocon case had been worried in regards to the cell phone
juror?s alleged misconduct, he was not convinced there was any sufficient schedule for a mistrial
based exclusively about what the actual defense attorney had advised him.
A defense Attorney in The Heat Associated With Battle
 by: John T. the judge obviously believed, nonetheless mistaken, that will these instructions really
cured whatever bias the cell phone juror might have got infected the jury with.
Whether or otherwise Ocon?s jury was influenced by the cell telephone juror?s bias can be
uncertain. State, 2009 Tex.Crim.App. 1983)
3/ Hughes v. Ocon?s attorney bypassed this evidentiary procedure (apparently thinking which
instructions could actually do a lot more harm than good) along with moved straight for your remedy
of the mistrial. but I appreciate your current concern. Now, that will may change. It never is.
The Ocon case is the kind that keeps any defense attorney awake a new night, specially about the
night just before trial.
SOURCES:
1/ Granados v. 2/ The Actual CCA in add-on has held in which there exists a presumption regarding
injury to a defendant as quickly as any violation regarding Article 36.22 continues to be able to be
set up which can outcome in the mistrial. LEXIS 376 (Tex.App.-Eastland Jan. Curative instructions
frequently serve as successful alternatives for the extreme remedy of the mistrial, where there is no
indication that the four instructions subsequent to the juror's misconduct failed in order to remedy
the actual situation. 7/
It had been at this point the CCA targeted on which it considered being the real issue in the Ocon
case. Inside defense involving this maneuver, Ocon?s attorney certainly stood a reasonable
expectation that procedural relief will be granted from the trial court. He overheard somebody
within the next stall talking on a cell phone. The Actual CCA features held that when a juror ?makes
statements outside associated with deliberations which indicate bias or perhaps partiality, such bias
could constitute jury misconduct that will prohibits the particular accused via receiving a fair and
also impartial trial.? 1/
It is actually obvious in the feedback expressed within the bathroom stall the particular Ocon juror
had betrayed his sworn duty to be fair along with impartial as well as was engaging throughout
?juror misconduct.? Texas law is obvious about this issue. 10/
Every criminal trial presents critical moments when protection attorneys must help to make inside
the heat with the fire tactical decisions. Just Like many protection attorneys at the conclusion
involving voir dire as well as following the jurors were sworn, Ocon?s attorney knew there have been
probably a new couple jurors who does certainly not approach the case with an open up mind
despite their own sworn duty to accomplish so. I mean, that?s my primary task ?
I feel at this point I am likely to deny your motion. 2000)
4/ Quinn v. most of the time we get it right; some other times we don?t. I feel that if I brought these
people within as well as talked to them individually, it would just accentuate the situation ? I feel
what I may do is instruct all of them again, an individual know, upon a variety involving their
responsibilities and keeping an open thoughts and do that, which I?ve attemptedto do. The
Particular Texas Court regarding Criminal Appeals (?CCA?) features lengthy held that will the juror
must base his/her choice at each the actual guilt and also punishment phases of a criminal trial
about evidence presented within the courtroom and in addition the law as provided from the trial
judge. He acted upon pure instinct?and the actual Eleventh District Court regarding Appeals agreed
he acted properly. 2002)
2/ Chambliss v. State, 958 S.W.2d 395 (Tex.Crim.App. The Particular CCA on June 3, 3009 reversed
your appeals court?s new trial order along with reinstated Ocon?s conviction and also existence
sentence. It asserted whilst questioning jurors concerning allegations associated with misconduct
can be useful in identifying whether a mistrial needs for you to be granted, it just isn't required. That
asserted rather than the State getting the responsibility inside juror misconduct circumstances to
end up being able to initiate an inquiry regarding jurors, or even the particular trial court itself
having a duty in order to independently perform this kind of inquiry, its precedents had always
placed the burden upon defense counsel to make any formal request for this kind of inquiry directly
into jury dui defense misconduct beneath Rule 606(b). 17, 2008)
6/ Ocon v. Here, Appellant's very first action would have been to move for a mistrial. That?s any
difficult nut to twist. Precisely what is certain is the actual fact that your jury located Ocon guilty
along with assessed his punishment at lifestyle imprisonment. Your attorney located himself in the
proverbial ?damn if you do, damn if don?t? situation. The Particular CCA wasn't consequently
forgiving. and that's my concern inside the entire thing.
The failure of Ocon?s attorney to become able to request a Rule 606(b) inquiry, and his own
arguments that really argued against this kind of inquiry, precluded the particular juror conduct
issue from being heard in appeal along with prompted the following harsh assessment through the
CCA:
That your party alleging juror misconduct, certainly not the actual State nor the actual court, must
initiate juror questioning, will be consistent with our rules involving error preservation. Ocon?s
attorney appealed the actual conviction for the Eleventh District Court involving Appeals inside
Eastland. during a brief recess, the particular attorney entered the actual men?s restroom within the
county courthouse. but if the Court decides to not grant any mistrial, then I?ve got ? a minimum of
one of all of them (jurors) specifically that's going to become taking a peek at me similar to why had
been an individual hearing my conversation.
Trial Judge: I believe if I brought all of them within and also talked for them individually, it might
just accentuate your problem.
Defense Counsel: I recognize that. Upon January 17, 2008, your appeals court reversed Ocon?s
conviction, applying any presumption regarding injury to defendant, along with ordered a
manufacturer new trial. State, 647 S.W.2d 257 (Tex.Crim.App. 9 the CCA pointed for the following
exchange between protection counsel as well as the trial judge like a cause for its finding/
Defense Counsel: Along With my concern is this because?I mean, I understand the Court wants for
you to inquire in to it, yet the only way to inquire directly into it though, is to truly deliver individuals
jurors within and also issue them. However your attorney had put forth his very best effort to choose
the actual kind of fair as well as impartial jury in order to which usually his client ended up being
entitled beneath both the federal along with Texas constitutions.
But absolutely nothing all through the particular jury selection procedure had prepared Ocon?s
attorney for what he'd encounter around the 2nd day of the trial. The next tend to be portions with
the conversation the actual defense attorney heard:
Brenda ? They?ve got me in this damn jury ? I don?t know why your hell these people picked me ? I
would rather end up being on a double ax murderer then [sic] this damn case ? It?s dirty, disgusting
? No, unless we convict your bastard today, then I?m sort of stuck here.
Besides Ocon?s attorney, there was clearly but an additional Ocon juror inside the restroom which
additionally overheard the actual cell phone conversation between first juror along with ?Brenda.?
Ocon?s attorney was probably angered, and understandably so, through the juror?s comments. the
attorney?s argument tracked exactly the actual same place taken by the court involving appeals
inside its decision to be able to reverse Ocon?s conviction.
The CCA disagreed, however. That can only become assumed that he failed to adequately consider
via his next tactical trial decision for you to remedy the actual situation. 3/ the prosecution, however,
must be offered an chance to rebut the actual presumption regarding injury. LEXIS 732
(Tex.Crim.App. 8/
And the particular CCA took pains to point out that will Ocon?s protection attorney not merely failed
to create a new Rule 606(b) request nevertheless that will his arguments on the motion for mistrial
actually ?acted for you to prevent? this kind of inquiry. While your CCA pointed out, the attorney
was not ?required? for you to move forward from your ?least to the the majority of significant
remedy,? however in hindsight, his tactical selection not really to do therefore successfully expense
his client an entire appellate review around the juror misconduct issue. I reveal it along with I will, a
person know, see if there?s something?I?ll think about this and also find out if there is actually
certainly some way to remedy that the jurors, that they recognize which there's much more in order
to this then [sic] maybe his or her sentiments about the case so far.
The trial judge kept his word. Your judge stated why he felt as he did:
I am reluctant ? in order to grant a mistrial along with assume in which they?re not really heading to
follow together with any instructions, you know, only with that point. Sex offense cases involving
kids are probably your most challenging for any criminal protection attorney to try. Following the
actual incident had been brought for the court's attention, the actual trial judge issued 4 separate
instructions towards the jurors throughout the guilt phase, warning these not to discuss the case
together with anyone rather than in order to form as well as express just about any opinions
regarding the actual case. 6/
Ocon?s attorney argued before the CCA in which to become able for that State for you to effectively
rebut the actual presumption associated with injury to always be able to his client, your prosecution
bore the burden to end up being able to issue jurors concerning virtually any exposure to some
biased influence in the likes in the cell phone juror, something the actual prosecution didn't do. An
appellant which moves for any mistrial without having initial requesting any less drastic alternative
forfeits appellate review of this class associated with events that could happen for you to be cured
through the lesser remedy. 4/
But prior to the protection attorney makes a motion for any mistrial depending on jury misconduct,
which is considered a drastic remedy of last resort, Rule 606(b) in the Texas Guidelines regarding
Evidence offers a docile alternative remedy that allows your trial court in order to conduct an
inquiry using jurors about the certain allegations regarding misconduct in order to determine if the
misconduct is usually curable together with instructions. June 3, 2009)
7/ Id.
8/ Id.
9/ Id.
10? Id.
By: Houston Criminal Attorney John Floyd along with Paralegal Billy Sinclair
. That is not always easy to sift by means of an individual juror?s character inside the short time
period associated with time, and using a limited variety of questions, to identify as well as isolate
just about any prejudices the actual juror could get from the defendant.
Ocon?s attorney conducted a diligent and comprehensive voir dire of several dozen prospective
jurors just before twelve had been chosen to hear the case against Ocon. 5 Your appeals court in
addition bypassed best dui attorney orange county consideration of the Rule 606(b) alternative,
which in turn lent professional credence to Ocon?s attorney?s tactical choice in order to motion
straight for any mistrial.
The State sought, as well as had been granted, discretionary review prior to the CCA. Floyd
Rule 606(b) of the Texas Guidelines of Evidence; Conducting Inquiry in to Juror Misconduct
Johnny Ray Ocon was put on trial inside Ector County, Texas for your crime of aggravated sexual
assault of the child. those twelve jurors took a new solemn oath to become fair as well as impartial.
State, 2008 Tex.App. ?Our case law does not establish juror questioning as getting a mandatory
remedy,? the actual CCA said, ?nor perform the Texas rules regarding Evidence? in juror misconduct
situations. Article 36.22 of the Texas Code of Criminal Procedure states which ?no individual shall
always be permitted to converse having a juror concerning the case in trial except in the existence
and also by the permission with the court.? the CCA has held the main purpose regarding this law
would always be to insulate jurors coming from outside influences. Ocon?s attorney didn?t get it
right. My major concern can be to produce positive your client receives any fair trial. defense
attorneys dui defense lawyer Palmdale has to become able to be cautious along with thorough
during the voir dire involving prospective jurors to recognize any kind of hidden biases a juror could
harbor in such cases. Really Does this suggest he had been ineffective inside his representation
regarding Ocon? Certainly not. Appellant wasn't needed to progress sequentially through least for
you to most severe remedy, however we is certainly not heading to reverse an effort court's
judgment whenever a lesser, un-requested alternative, such as juror questioning, could have got
cured the actual problem.
Considering in which Appellant requested no alternative remedies, she must are already satisfied
that the trial judge aggressively utilized the actual remedy in the curative instruction. Questioning
jurors which allegedly taken portion in misconduct can end up being a less drastic remedy than your
usual mistrial. He moved to acquire a mistrial as soon since the trial judge reconvened the particular
trial. About 4 various occasions during the guilt stage in the trial he reminded your jurors that will
they were not to discuss the truth together with anyone. 1997)
5/ Ocon v. State, 85 S.W.3d 217 (Tex.Crim.App. State, 24 S.W.3d 833 (Tex.Crim.App