Rule 606(b) of the Texas Rules of Evidence; Conducting Inquiry into Juror Misconduct

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair


Johnny Ray Ocon was put on trial in Ector County, Texas for the crime of aggravated sexual assault of a child. Sex offense cases involving children are the most difficult for a criminal defense attorney to try. Defense attorneys must be very careful and thorough during the voir dire of prospective jurors to identify any hidden biases a juror may harbor in such cases. It is not always easy to sift through an individual juror’s personality in the short period of time, and with a limited number of questions, to identify and isolate any prejudices the juror may have against the defendant.


Ocon’s attorney conducted a diligent and comprehensive voir dire of several dozen prospective jurors before twelve were chosen to hear the case against Ocon. Those twelve jurors took a solemn oath to be fair and impartial. Like most defense attorneys at the conclusion of voir dire and after the jurors were sworn, Ocon’s attorney knew there were probably a couple jurors who would not approach the case with an open mind despite their sworn duty to do so. But the attorney had put forth his best effort to select the kind of fair and impartial jury to which his client was entitled under both the federal and Texas constitutions.


But nothing throughout the jury selection process had prepared Ocon’s attorney for what he would encounter on the second day of the trial. During a brief recess, the attorney entered the men’s restroom in the county courthouse. He overheard someone in the next stall talking on a cell phone. The following are portions of the conversation the defense attorney heard:

Brenda – They’ve got me on this damn jury … I don’t know why the hell they picked me … I would rather be on a 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 was yet another Ocon juror in the restroom who also overheard the cell phone conversation between first juror and “Brenda.”


Ocon’s attorney was probably angered, and understandably so, by the juror’s comments. It can only be assumed that he did not adequately think through his next tactical trial decision to remedy the situation. He moved for a mistrial as soon as the trial judge reconvened the trial. In defense of this maneuver, Ocon’s attorney certainly had a reasonable expectation that this procedural relief would be granted by the trial court. The Texas Court of Criminal Appeals (“CCA”) has long held that a juror must base his/her decision at both the guilt and punishment phases of a criminal trial on evidence presented in the courtroom and the law as given by the trial judge. The CCA has held that when a juror “makes statements outside of deliberations that indicate bias or partiality, such bias can constitute jury misconduct that prohibits the accused from receiving a fair and impartial trial.” 1/


It is obvious from the comments expressed in the bathroom stall the Ocon juror had betrayed his sworn duty to be fair and impartial and was engaging in “juror misconduct.” Texas law is clear on this issue. Article 36.22 of the Texas Code of Criminal Procedure states that “no person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court.” The CCA has held that the primary purpose of this law is to insulate jurors from outside influences. 2/


The CCA has also held that there is a presumption of injury to a defendant once a violation of Article 36.22 has been established which may result in a mistrial. 3/ The prosecution, however, must be given an opportunity to rebut the presumption of injury. 4/


But before a defense attorney makes a motion for a mistrial based on jury misconduct, which is considered a drastic remedy of last resort, Rule 606(b) of the Texas Rules of Evidence provides a less severe alternative remedy that allows the trial court to conduct an inquiry with jurors about the specific allegations of misconduct to determine if the misconduct can be cured with instructions. Ocon’s attorney bypassed this evidentiary procedure (apparently believing that instructions could actually do more harm than good) and moved directly for the remedy of a mistrial. It would prove to be a costly tactical decision for his client, although it would have been difficult, in the middle of this courtroom battle, for the attorney to have foreseen its eventual damage.


While the trial judge in the Ocon case was concerned about the cell phone juror’s alleged misconduct, he was not convinced there was a sufficient basis for a mistrial based solely on what the defense attorney had told him. The judge stated why he felt as he did:


I am reluctant … to grant a mistrial and assume that they’re not going to follow any instructions, you know, at this point. Now, that may change. I think that if I brought them in and talked to them individually, it would just accentuate the problem … I think what I might do is instruct them again, you know, on some of their responsibilities and keeping an open mind and do that, which I’ve tried to do. My main concern is to make sure your client receives a fair trial. I mean, that’s my main job …

I think at this point I am going to deny your motion. But I appreciate your concern. I share it and I will, you know, see if there’s something—I’ll think about it and see if there is some way to remedy that the jurors, that they realize that there is more to this then [sic] maybe their sentiments about the case so far.


The trial judge kept his word. On four different occasions during the guilt phase of the trial he reminded the jurors that they were not to discuss the case with anyone. The judge obviously believed, however mistaken, that these instructions actually cured whatever bias the cell phone juror may have infected the jury with.


Whether or not Ocon’s jury was influenced by the cell phone juror’s bias is uncertain. What is certain is that the jury found Ocon guilty and assessed his punishment at life imprisonment. Ocon’s attorney appealed the conviction to the Eleventh District Court of Appeals in Eastland. On January 17, 2008, the appeals court reversed Ocon’s conviction, applying a presumption of injury to defendant, and ordered a new trial. 5 The appeals court also bypassed consideration of the Rule 606(b) alternative, which lent professional credence to Ocon’s attorney’s tactical decision to motion directly for a mistrial.

The State sought, and was granted, discretionary review before the CCA. The CCA on June 3, 3009 reversed the appeals court’s new trial order and reinstated Ocon’s conviction and life sentence. 6/+


Ocon’s attorney argued before the CCA that in order for the State to effectively rebut the presumption of injury to his client, the prosecution bore the burden to question jurors about any exposure to a biased influence from the likes of the cell phone juror, something the prosecution did not do. The attorney’s argument tracked the same position taken by the court of appeals in its decision to reverse Ocon’s conviction.+


The CCA disagreed, however. It said that while questioning jurors about allegations of misconduct is helpful in determining whether a mistrial should be granted, it is not required. “Our case law does not establish juror questioning as a mandatory remedy,” the CCA said, “nor do the Texas Rules of Evidence” in juror misconduct situations. 7/


It was at this point that the CCA focused on what it considered to be the real issue in the Ocon case. It said that rather than the State having the burden in juror misconduct situations to initiate an inquiry of jurors, or even the trial court itself having a responsibility to independently conduct such an inquiry, its precedents had always placed the burden on defense counsel to make a formal request for such an inquiry into jury misconduct under Rule 606(b). 8/


And the CCA took pains to point out that Ocon’s defense attorney not only failed to make a Rule 606(b) request but that his arguments on the motion for mistrial actually “acted to prevent” such an inquiry. 9


The CCA pointed to the following exchange between defense counsel and the trial judge as a basis for its finding/

Defense Counsel: And my concern is this because—I mean, I know that the Court needs to inquire into it, but the only way to inquire into it though, is to actually bring those jurors in and question them. But if the Court decides not to grant a mistrial, then I’ve got … at least one of them (jurors) in particular that is going to be looking at me like why were you listening to my conversation.


Trial Judge: I think if I brought them in and talked to them individually, it would just accentuate the problem.

Defense Counsel: I realize that. And that is my concern in the whole thing.


The failure of Ocon’s attorney to request a Rule 606(b) inquiry, and his own arguments that actually argued against such an inquiry, precluded the juror conduct issue from being heard on appeal and prompted the following harsh assessment by the CCA:


That the party alleging juror misconduct, not the State nor the court, should initiate juror questioning, is consistent with our rules of error preservation. Questioning jurors who allegedly participated in misconduct is a less drastic remedy than a mistrial. An appellant who moves for a mistrial without first requesting a less drastic alternative forfeits appellate review of that class of events that could have been cured by the lesser remedy. Here, Appellant’s first action was to move for a mistrial. Appellant was not required to progress sequentially from least to most serious remedy, however we will not reverse a trial court’s judgment when a lesser, un-requested alternative, such as juror questioning, could have cured the problem.

Considering that Appellant requested no alternative remedies, he must have been satisfied that the trial judge aggressively utilized the remedy of the curative instruction. After the incident was brought to the court’s attention, the trial judge issued four separate instructions to the jurors during the guilt phase, warning them not to discuss the case with anyone and not to form or express any opinions regarding the case. Curative instructions frequently serve as effective alternatives to the extreme remedy of a mistrial, and there is no indication that the four instructions subsequent to the juror’s misconduct failed to remedy the situation.


Every criminal trial presents critical moments when defense attorneys must make in the heat of the fire tactical decisions. Most of the time we get it right; other times we don’t. Ocon’s attorney didn’t get it right. Does this mean he was ineffective in his representation of Ocon? Certainly not. As the CCA pointed out, the attorney was not “required” to proceed from the “least to the most serious remedy,” but in hindsight, his tactical decision not to do so effectively cost his client a full appellate review on the juror misconduct issue. That’s a hard nut to twist. The attorney found himself in the proverbial “damn if you do, damn if don’t” situation. He acted on pure instinct—and the Eleventh District Court of Appeals agreed that he acted properly. The CCA was not so forgiving. It never is.


The Ocon case is the kind that keeps a defense attorney awake a night, particularly on the night before trial.




1/ Granados v. State, 85 S.W.3d 217 (Tex.Crim.App. 2002)
2/ Chambliss v. State, 647 S.W.2d  257 (Tex.Crim.App. 1983)
3/ Hughes v. State, 24 S.W.3d 833 (Tex.Crim.App. 2000)
4/ Quinn v. State, 958 S.W.2d 395 (Tex.Crim.App. 1997)
5/ Ocon v. State, 2008 Tex.App. LEXIS 376 (Tex.App.-Eastland Jan. 17, 2008)
6/ Ocon v. State, 2009 Tex.Crim.App. LEXIS 732 (Tex.Crim.App. June 3, 2009)
7/ Id.
8/ Id.
9/ Id.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair