Jesus Corrdero Romero v. The State of Texas--Appeal from 262nd District Court of Harris County (Opinion )

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State: Texas

Court: Texas Northern District Court

Docket No: 14-11-00928-CR

Case Date: 01/24/2013

Plaintiff: Jesus Corrdero Romero

Defendant: The State of Texas--Appeal from 262nd District Court of Harris County (Opinion )

Preview:Affirmed and Opinion filed January 24, 2013.

In the

Fourteenth Court of Appeals
NO. 14-11-00927-CR NO. 14-11-00928-CR JESUS CORRDERO ROMERO, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 1281646 & 1313451 OPINION Appellant Jesus Corrdero Romero was convicted of the felony offenses of indecency with a child and aggravated sexual assault of a child. Appellant seeks reversal of his convictions, complaining in four related issues that the trial court abused its discretion by removing a juror as disabled, thereby depriving appellant of his constitutional right to a unanimous jury verdict, and further abused its

discretion by refusing to grant a mistrial; and in two related issues that, by refusing to unseal personal juror information, the trial court violated article 35.29 of the Texas Code of Criminal Procedure and appellant's right to due process. We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant was charged with the felony offenses of aggravated sexual assault of a child and indecency with a child, alleged to have been committed on or about June 9, 2006, and June 1, 2007, respectively. At trial, the complainant D.L. testified that appellant is her stepfather, who married her mother when D.L. was very young. D.L. testified that she has an older sister, a younger sister, and one younger brother, and they all lived together growing up. According to D.L., the first instance of abuse occurred one weekend in 2006, when she was in the sixth grade. D.L., her mother, and her siblings were living at a house on Beaver Bend Road. Her mother and appellant were separated at the time, but on weekends appellant would watch the children at the house. Appellant entered D.L.'s bedroom and asked her what she was watching on TV. As appellant was talking to D.L., he put his hand under the blanket she had over her legs, inside her pants, and into her underwear. Appellant then started touching D.L. on her vaginal lips and directed his fingers inward. D.L. tried squeezing her legs together, but appellant managed to stick his fingers partway inside of her vaginal lips. D.L. testified that another incident occurred at the house on Beaver Bend. Appellant was sitting on the family nanny's bed when D.L. came in to ask for his help in fixing her desk. According to D.L., appellant then sat on top of her and caressed her breast. He then touched her vagina over her clothes. D.L. managed to
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push herself away from appellant. The final incident occurred the next summer when the family lived at a house on Marlene Street. D.L. was watching TV, when around noon appellant walked into her room and locked the door. He told her she looked tired and needed a massage. D.L. testified that appellant started massaging her shoulders and then moved downwards. He placed his hands on her buttocks beneath her underwear and then attempted to insert his finger into her vagina from the back. After the touching went on for five to ten minutes, appellant ejaculated on D.L.'s back. In 2010, when D.L. was a junior in high school, her mother and two aunts confronted her about missing school, and she eventually told them about the abuse. D.L. and one of her aunts then reported the abuse to police. At trial, appellant denied all the allegations against him. He acknowledged that when his mother and D.L's mother confronted him about whether he had ever abused D.L., he stated that if he was going to abuse anyone he would have abused D.L.'s older sister1 instead. This confrontation took place after D.L. told appellant's sister that D.L. caught appellant watching her while she was changing clothes for school one morning during her freshman year, and appellant's sister told her mother and D.L.'s mother. On the first afternoon of deliberations, the jury sent out two notes; one requesting trial exhibits and another requesting a portion of D.L.'s testimony. On the second day, the jury sent out additional notes: the first requesting a copy of D.L.'s forensic interview; the second indicating they were at a point suggesting they would be unable to reach a verdict, to which the court responded that they continue deliberations; and then two more notes requesting portions of testimony.
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D.L.'s older sister was twenty years old at the time. 3

The jury foreman then sent out a note indicating that "juror 31" had become ill, was throwing up due to stress, and did not feel that she could render a clear decision. The jury requested they be allowed to end deliberations early and resume the next day. The trial court recessed for the day. The next morning, the bailiff, Deputy Kaminski, received a phone call from juror 31, who stated that she was still sick and did not think she could make it in to court. Kaminski told juror 31 that if she could not appear, she needed a doctor's note. Juror 31 appeared in court at 9:15 a.m., and the jury continued deliberations. About an hour later, the jury sent out a note indicating that juror 31 wanted to be released because she did not feel she could make a decision based on the evidence presented. The trial court questioned Kaminski. According to Kaminski, the previous afternoon, he had seen juror 31 leaving the bathroom covering her mouth and holding her stomach. Then after the jury was released early, juror 31 returned to the bathroom and threw up. That morning, when Kaminski asked juror 31 how she was doing, she initially stated that she was doing okay. Later, when the jury foreman and juror 31 stepped out to hand Kaminski the latest note, juror 31 informed him that she had not slept well, she was "so stressed" and "just could not handle it," and she was not feeling well. Based on Kaminski's testimony, the prosecutor requested that the trial court exercise its discretion to add more to the record regarding juror 31's disability and that the court then find juror 31 disabled and replace her with the alternate juror. Appellant moved for mistrial, arguing that juror 31 was not disabled but had stated she could not make a decision based on the evidence presented, which indicated the jury was hung. After the court denied appellant's motion for mistrial, the prosecutor requested that juror 31 be questioned about physical illness. Appellant
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objected, but the trial court proceeded to question juror 31 in chambers. The trial court asked juror 31 how she was feeling and if she believed that she could continue deliberating. She responded, "I don't believe I am able to go on. I feel sick to my stomach, headaches, haven't been able to sleep the past couple of days. I feel stressed out. This is affecting me physically now." She also indicated that she was having "physical nausea" and had a headache. When defense counsel asked juror 31 whether she was feeling sick "because of pressure in the back," meaning deliberations in the jury room, she responded, "Definitely pressure but I just feel really sick. I'm stressed out." Juror 31 indicated that she just felt "overstressed out" because "just being back there deliberating is stressing." She stated that deliberations have stressed her "up to the point that it's becoming physically affected [sic] to my own well-being." She agreed that she "cannot make a decision based on deliberations." She indicated that she had vomited the day before during deliberations and stated, "I feel emotionally sick, and that is carrying over to physical sickness." Although juror 31 stated that she was "not disabled," when asked by the court--"Just so we're clear, by the term `disabled,' do you feel like you can continue?"--she answered, "I don't think that I can physically continue. It's not letting me sleep. It's not letting me live a normal life. It's affecting my family. It's affecting my daughter. It's affecting me physically now, I can't." She continued, "Well, I am feeling too much pressure back there to doing [sic] something that I'm not willing to do. And I can't sleep at night just thinking here--I am sick. I mean, I am physically sick at this point." Juror 31 indicated that she became physically ill the day before, was physically sick the previous afternoon "[a]nd today," and had called in physically ill that morning. When the court asked her whether she physically was able to listen and render a decision, juror 31 responded: "I think given that I am physically feeling
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stuff right now, I don't think that I am able to make a decision at all even after deliberations. I just--no." After juror 31 exited chambers, the trial court noted for the record that juror 31 "appeared to be nauseous as she was sitting here in the chair. We did have, I think, a trash can in front of her; but she was heaving several times. She was tearful and appears to be-- . . . [p]hysically distressed and also grabbed her head and said that her head was hurting." The court then decided to release juror 31 and replace her with alternate juror 39. Appellant resubmitted his motion for mistrial. The court met with juror 39--who had been told to remain available and had returned to court that morning--and confirmed she had been given instructions the previous day that she was still a juror and had continued to follow the admonitions not to conduct any research about or discuss the case. The court ordered the jury to restart deliberations with replacement juror 39. After the jury retired, the court denied appellant's motion for mistrial. The jury found appellant guilty of both offenses. The jury sentenced him to ten years' confinement for the offense of indecency with a child and to twenty years' confinement for the offense of aggravated sexual assault of a child, the sentences to run concurrently. Appellant then filed a motion for new trial as well as three motions to unseal the information sheets on the jurors who deliberated during the guilt-innocence phase. The third motion to unseal included: (1) an affidavit from attorney Michael McLane, who averred that a juror in appellant's case told him that she was released from jury service because she became physically ill due to intimidation by the other jurors about her "not guilty" vote, and (2) an affidavit from a private investigator, who stated that he could not locate the jurors based on their names without additional personal information. The trial court denied all of appellant's
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motions. On appeal of both his convictions, appellant raises six issues. First,

appellant argues that the trial court's removal of juror 31 was a structural error that deprived him of his constitutional right to a unanimous jury verdict under the Sixth and Fourteenth Amendments. Second, he argues the court's removal of juror 31 was a structural error that violated his right to a unanimous jury verdict under article V, section 13, of the Texas Constitution. Third, appellant contends that the trial court abused its discretion in finding juror 31 disabled under article 36.29(a) of the Texas Code of Criminal Procedure.2 Fourth, he argues that the court

violated section 35.29 of the Code of Criminal Procedure by refusing to unseal juror information sheets upon a showing of good cause. Fifth, he contends that the court's refusal to unseal the jurors' personal information violated his due process rights under the Fifth and Fourteenth Amendments. Finally, appellant asserts that the court abused its discretion by refusing to grant a mistrial. II. STANDARD OF REVIEW

The trial court has discretion to determine whether a juror has become
Article 36.29(a) applies in cases where a juror "as determined by the judge, becomes disabled from sitting at any time before the charge of the court is read to the jury." TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (West 2012). In this case, subsection (c) applies: After the charge of the court is read to the jury, if a juror becomes so sick as to prevent the continuance of the juror's duty and an alternate juror is not available, or in any accident of circumstance occurs to prevent the jury from being kept together under circumstances under which the law or the instructions of the court requires that the jury be kept together, the jury shall be discharged, except that on agreement on the record by the defendant, the defendant's counsel, and the attorney representing the state 11 members of a jury may render a verdict and, if punishment is to be assessed by the jury, assess punishment. If a verdict is rendered by less than the whole number of the jury, each member of the jury shall sign the verdict. Id. art. 36.29(c). 7
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disabled under article 36.29 of the Code of Criminal Procedure and to seat an alternate juror under article 33.011 of the Code of Criminal Procedure.3 Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012). "[T]he trial court is the sole fact-finder and judge of the credibility of the testifying jurors," and we review its decision for an abuse of discretion. Id. at 784. Absent such an abuse of discretion, we will not find reversible error. Id. (citing Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999)); Ponce v. State, 68 S.W.3d 718, 721 (Tex. App.-- Houston [14th Dist.] 2001, pet. ref'd) (same). Thus, the trial court must make a sufficiently supported finding that the juror was disqualified or unable to perform the duties of a juror. Scales, 380 S.W.3d at 784. It is not our role to substitute our own judgment for that of the trial court, but rather to assess whether, after viewing the evidence in the light most favorable to the trial court's ruling, the ruling was arbitrary or unreasonable. Id. (citing Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995)). We must uphold the trial court's ruling if it falls within the zone of reasonable disagreement. Id. (citing Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009)). Similarly, we review a trial court's denial of a mistrial for an abuse of

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Article 33.011 provides:

Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury renders a verdict on the guilt or innocence of the defendant and, if applicable, the amount of punishment, become or are found to be unable or disqualified to perform their duties or are found by the court on agreement of the parties to have good cause for not performing their duties. Alternate jurors shall be drawn and selected in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, security, and privileges as regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury has rendered a verdict on the guilt or innocence of the defendant and, if applicable, the amount of punishment. TEX. CODE CRIM. PROC. ANN. art. 33.011(b) (West 2012). 8

discretion, viewing the evidence in the light most favorable to the ruling, and deferring to the court's resolution of historical facts and its determinations concerning credibility and demeanor. Benefield v. State, --S.W.3d--, No. 14-1100452-CR, 2012 WL 5450717, at *3 (Tex. App.--Houston [14th Dist.] Nov. 8, 2012, no. pet. h.) (citing Ocon 284 S.W.3d at 884

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