Johnny Ray Ocon, Appellant v. the State of Texas

Summary

The Court of Criminal Appeals reversed the court of appeals, holding that the trial court did not abuse its discretion in denying Johnny Ray Ocon's motion for mistrial after defense counsel overheard a juror talking on a cell phone in the courthouse restroom, complaining about being stuck on the jury. Although the conversation likely violated Article 36.22 and triggered a rebuttable presumption of injury, the Court held that juror questioning is a permitted but not mandatory remedy that the movant—not the State or the trial court—must request, and the State rebutted the presumption without examining any juror. Because Ocon requested no less drastic remedy, the trial judge administered four curative instructions, and Ocon presented no evidence that the juror received outside information, the denial fell within the zone of reasonable disagreement and the cause was remanded for consideration of Ocon's remaining points of error. Presiding Judge Keller, joined by Judge Price, concurred in the result while disputing the burden allocation and locating Ocon's failure at the statutory-violation step; Judge Johnson concurred separately, concluding the juror's remarks were not a conversation 'about the case' at all; Judge Holcomb also concurred.