Keldron Beard v. the State of Texas

NO. 12-22-00213-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KELDRON BEARD, § APPEAL FROM THE 145TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION
Keldron Beard appeals his conviction for aggravated robbery. In two issues, Appellant
asserts that he was entitled to a mistrial and that his trial counsel rendered ineffective assistance.
We affirm.

BACKGROUND
On the night of March 17, 2020, Appellant robbed the Lucky Stop convenience store in
Nacogdoches County, Texas, while carrying a handgun. Following an investigation, law
enforcement arrested Appellant. The State subsequently indicted Appellant for the offense of
aggravated robbery. Appellant pleaded “guilty” to the offense but elected to have a jury
determine his sentence. Thereafter, this matter proceeded to a jury trial on punishment.
On the second day of the punishment trial, defense counsel notified the court of two
incidents wherein jurors were overheard discussing the case outside of the deliberation room.
Defense counsel requested a hearing to 1) determine the nature and level of juror misconduct, if
any, and 2) seek an appropriate remedy from the trial court. At the hearing, the trial court heard
testimony about the two events. Defense counsel conceded, and the trial court held, that no juror
misconduct occurred related to the first incident. The second incident involved a conversation in
a stairwell between two jurors, Juror 2 and Juror 12, which an employee of another court
overheard. The two jurors each testified individually that they discussed the possible length of
the trial, but did not recall every detail of the conversation. The court employee testified that
while she did not hear either juror mention any facts of the case, one juror expressed being
“torn,” but leaning more toward the State, and the other juror answered, “I don’t really know
where I am.” The second juror further expressed to the first that he believed the conversation
was permissible because they were not “discussing anything specific.”
Defense counsel conceded that the stairwell conversation between Juror 2 and Juror 12
did not harm Appellant or constitute misconduct. Defense counsel instead moved for mistrial
because the two jurors’ respective testimony differed from the court employee’s testimony,
which he argued meant the jurors were untruthful to the court, which constituted misconduct.
The trial court denied the motion for mistrial, finding that the witness testimony was not wholly
inconsistent and none of the witnesses lacked candor. After the hearing, the trial court again
instructed the jury on its obligation not to discuss the case outside of deliberations.
Subsequently, at the end of the State’s case-in-chief, Juror 1 asked to speak with the trial
court. She expressed fear that she and her fellow jurors might be “sought after” by gang
members for serving on the jury and wanted to know how the court planned to protect her from
retaliation. Juror 1 also stated in a letter to the trial court that she was nervous for her own and
her family’s safety during and after the trial, as it was apparent from the evidence that Appellant
still had access to his cell phone and could potentially research the jurors. The judge asked Juror
1 whether her concerns and fears would inhibit her from “fully and fairly performing” the
functions of a juror, and rendering a verdict based on the law provided by the court. Juror 1 twice
stated that she would still be able to perform her duty as a juror despite her concerns. Defense
counsel asked only one question: whether Juror 1 would give the same answer if Appellant were
present in the courtroom. Juror 1 responded affirmatively. Defense counsel did not request that
the court remove Juror 1 as a juror or make any further objection to her continued presence on
the jury. The trial court found that Juror 1 was still able to fully and fairly perform her functions
as a juror and remained qualified to serve on the jury.
At the conclusion of trial, the jury assessed punishment of life imprisonment and a
$2,500.00 fine. This appeal followed.

2
MOTION FOR MISTRIAL
Appellant argues that the trial court erred when it denied his motion for mistrial because
the stairwell conversation between jurors Juror 2 and Juror 12 reflected their bias against
Appellant prior to the close of evidence, and that the jurors’ impartiality prejudiced Appellant.
Standard of Review and Applicable Law
A trial court’s denial of a mistrial is reviewed for abuse of discretion, and the trial court’s
ruling must be upheld if it was within the zone of reasonable disagreement. Coble v. State, 330
S.W.3d 253, 292 (Tex. Crim. App. 2010). We view the evidence in the light most favorable to
the trial court’s ruling. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Mistrial is
the appropriate remedy when error is so prejudicial that expenditure of further time and expense
would be futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). It is a remedy
intended for extreme circumstances when prejudice is incurable and less drastic alternatives have
been explored. Ocon, 284 S.W.3d at 884. Furthermore, instructions to the jury generally are
considered sufficient to cure improprieties that occur during trial, and we generally presume that
a jury will follow the judge’s instructions. See Gamboa v. State, 296 S.W.3d 574, 580 (Tex.
Crim. App. 2009). To warrant a mistrial based on juror misconduct, “the movant must establish
not only that jury misconduct occurred, but also that it was material and probably caused injury.”
Ryser v. State, 453 S.W.3d 17, 39 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (citing
Bogue v. State, 204 S.W.3d 828, 829 (Tex. App.—Texarkana 2006, pet. ref’d)).
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. Granados v. State, 85 S.W.3d 217, 235 (Tex. Crim. App. 2002), cert. denied, 538
U.S. 927 (2003). Although jurors must engage in some assessment of credibility and evaluation
of the evidence prior to the time the judge sends the jury to deliberate, where a juror’s statements
call into question whether he is biased, the trial court should inquire and determine the juror’s
intent when making the statement. Id. at 236; Quinn v. State, 958 S.W.2d 395, 403 (Tex. Crim.
App. 1997). When making this inquiry, the trial court retains discretion in determining whether
a juror is biased, and an appellate court reviews the trial court’s decision in the light most
favorable to its recorded findings. Granados, 8 S.W.3d at 235.

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Analysis
In this case, the trial court opted to examine the jurors about the allegations of
misconduct and heard conflicting testimony about the stairwell conversation. Juror 2 and Juror
12 both indicated that they recalled only discussing the possible length of the trial. But the court
employee stated that she heard one juror say he was torn about his decision, but was leaning
toward the State, and the other say that he had not formed an opinion. Both Juror 2 and Juror 12
affirmatively stated that they did not discuss any facts of the case, and the court employee
testified that she did not hear any such statements. Following this examination, the trial court
held that even if the conversation occurred as reported by the court employee, the discussion was
not material, and even if it were material, it did not prejudice Appellant.
As previously stated, we defer to the trial court’s findings, and we review the trial court’s
decision in the light most favorable to its findings. Granados, 85 S.W.3d at 236. The testimony
of the court employee, at worst, depicts two jurors who had not come to a final conclusion on the
evidence. In addition, the trial court was in a better position to determine the witnesses’
credibility and demeanor, and it had discretion to reconcile the conflicts in the evidence. See
Quinn, 958 S.W.2d at 402; see also Scales v. State, 380 S.W.3d 780, 784 (Tex. Crim. App.
2012). With these standards in mind, based on the evidence before the trial court and our review
of the record, we conclude the trial court could have, within its sound discretion, properly found
that the jurors’ conversation did not evidence bias or partiality. Moreover, curative instructions
frequently serve as effective, “less drastic” alternatives to the extreme remedy of a mistrial.
Hernandez v. State, 416 S.W.3d 522, 525 (Tex. App.—Eastland 2013, pet. ref’d) (citing Hill v.
State, 90 S.W.3d 308, 313 (Tex. Crim. App. 2002)); see Granados, 8 S.W.3d at 237. Following
the inquiry, the trial court admonished the jurors to obey the court’s previous instruction not to
discuss the case with anyone, including each other, until the end of the trial. The record does not
show that any of the jurors subsequently disobeyed this instruction or otherwise attempted to
improperly influence the deliberations, and we presume that the trial court’s instructions were
followed as presented. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998);
Harper v. State, No. 02-15-00374-CR, 2016 WL 4045203, at *7 (Tex. App.—Fort Worth July
28, 2016, no pet.) (mem. op., not designated for publication).
Accordingly, under these circumstances, we conclude that the trial court did not abuse its
discretion by denying Appellant’s motion for mistrial. We overrule Appellant’s first issue.

4
INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant argues that trial counsel rendered ineffective assistance by failing to request
that the court excuse Juror 1 prior to deliberations, object to her continued presence on the jury,
and move for a mistrial.
Standard of Review and Applicable Law

In reviewing an ineffective assistance of counsel claim, we follow the United States
Supreme Court’s two-pronged test found in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App.
1986). Under the first prong of the Strickland test, an appellant must show that counsel’s
performance was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25
S.W.3d 707, 712 (Tex. Crim. App. 2000). A deficient performance occurs when “counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an
appellant must show that counsel’s representation fell below an objective standard of
reasonableness. Id., 466 U.S. at 688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.
Under the second prong, an appellant must affirmatively show that counsel’s deficient
performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Mitchell v.
State, 989 S.W.2d 747, 748 (Tex. Crim. App. 1999). The appellant must prove that his
attorney’s errors, judged by the totality of the representation and not by isolated instances of
error, denied him a fair trial. Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.—Texarkana
2000, pet. ref’d). It is not enough for the appellant to show that the errors had some conceivable
effect on the outcome of the proceedings; he must show that there is a reasonable probability
that, but for his attorney’s errors, the extent of his punishment would have been less. See id.; see
also Bone v. State, 77 S.W.3d 828, 837 (Tex. Crim. App. 2002). The appellant must prove both
prongs of the Strickland test by a preponderance of the evidence to prevail; failure to make the
required showing of either deficient performance or sufficient prejudice defeats the
ineffectiveness claim. Tong, 25 S.W.3d at 712; Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999).
Review of trial counsel’s representation is highly deferential. Tong, 25 S.W.3d at 712.
We begin with a “strong presumption” that counsel’s conduct falls within the wide range of

5
reasonable professional assistance and was motivated by sound trial strategy. Jackson v. State,
877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The appellant bears the burden to overcome this
presumption by presenting evidence showing why trial counsel did what he did. Id.; Tong, 25
S.W.3d at 712. An appellant cannot meet this burden if the record does not affirmatively
demonstrate the alleged ineffectiveness. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.—
Houston [1st Dist.] 1994, pet. ref’d) (a record that specifically focuses on the conduct of trial
counsel is necessary for a proper evaluation of an ineffectiveness claim). Before being
condemned as unprofessional and incompetent, defense counsel should be given an opportunity
to explain his actions. See Bone, 77 S.W.3d at 836. When the record is silent regarding the
reasons for counsel’s conduct, a finding that counsel was ineffective would require
impermissible speculation by the appellate court. Gamble v. State, 916 S.W.2d 92, 93 (Tex.
App.—Houston [1st Dist.] 1996, no pet.).
Analysis
Appellant argues that Juror 1 was clearly biased and unable to fully and fairly perform
the functions of an impartial juror. Appellant further argues that if defense counsel had objected
to Juror 1 remaining on the jury or moved for a mistrial on this basis, the trial court would have
granted either, and as a result, Appellant would not have received a life sentence and a $2,500.00
fine. But the record is silent regarding the reason(s) underlying counsel’s defensive strategy or
the reasoning for his decisions not to request Juror 1’s removal or move for a mistrial, and we
may not speculate as to those reasons. Generally, a silent record cannot defeat the strong
presumption that counsel was effective. See Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim.
App. 2007), but see Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (appellate
court should not find deficient performance from undeveloped record unless challenged conduct
“so outrageous that no competent attorney would have engaged in it”); Andrews v. State, 159
S.W.3d 98, 102-03 (Tex. Crim. App. 2005) (reversing conviction “in a rare case” on basis of
ineffective assistance of counsel).
In Andrews, the same prosecutor who filed a motion to cumulate the sentences in four
counts of sexual abuse later argued to the jury, “You give him 20 years in each case, it’s still just
20 years. It’s still not 80. You can give different amounts if you want. You can give 20, 10, 10,
five, it’s still just 20.” Andrews, 159 S.W.3d at 100. The appellant’s trial counsel did not object
to the prosecutor’s misstatement of the law, and the trial court ultimately granted the State’s

6
motion to cumulate the sentences and imposed a combined prison sentence of seventy-eight
years. Id. The reviewing court concluded that the argument left the jury with the incorrect
impression that the appellant’s sentences could not be stacked and that the appellant would serve
no more than twenty years in prison for all four counts. Id. at 103. Therefore, the court held
that, under the “extremely unusual circumstances of [the] case,” the record contained all of the
information it needed to conclude that there could be “no reasonable trial strategy for failing to
object” to the prosecutor’s misstatement of the law. Id.
The “extremely unusual circumstances” present in Andrews are not present in the case at
hand. Counsel’s reasons in Andrews, if any, were unnecessary to resolve the ineffective
assistance of counsel claim. See Trevino v. State, No. 12-18-00186-CR, 2019 WL 2119666, at
*5 (Tex. App.—Tyler May 15, 2019, no pet.) (mem. op., not designated for publication). But
counsel’s failure to object to a misstatement of the law that is detrimental to one’s client is quite
different from counsel’s determination of whether to object to a juror’s continued service or
move for a mistrial as a matter of trial strategy. See Melonson v. State, 942 S.W.2d 777, 782
(Tex. App.—Beaumont 1997, no pet.) (appellant required to provide authority in support of
argument that objections would have been meritorious, which he did not do); Valdes–Fuerte v.
State, 892 S.W.2d 103, 112 (Tex. App.—San Antonio 1994, no pet.).
Having reviewed the record in the instant case, we conclude that the facts before us are
distinguishable from the facts in Andrews and Appellant’s trial counsel’s alleged deficient
conduct is not “so outrageous that no competent attorney would have engaged in it.” See
Menefield, 363 S.W.3d at 593. Thus, we decline to hold that the record before us contains all of
the information needed for us to conclude that there could be no reasonable trial strategy for trial
counsel’s alleged unprofessional acts.
Even if Appellant could show that his trial counsel rendered deficient representation, he
cannot make the requisite showing for the second prong of Strickland—Appellant must do more
than show that trial counsel’s errors had some conceivable effect on the outcome of the
punishment assessed. Ex Parte Rogers, 369 S.W.3d 858, 863 (Tex. Crim. App. 2012).
Appellant contends, with no analysis or citations to relevant law, that (1) if trial counsel had

7
objected to Juror 1’s continued service as a juror, the trial court would have excused her, 1 and (2)
had counsel moved for a mistrial based on the trial court’s failure to excuse Juror 1, the trial
court would have granted that motion. Appellant then assumes, again without any substantive
argument or analysis, that had Juror 1 not been on the jury, the outcome of Appellant’s
punishment hearing would have been different. 2 These conclusory statements are insufficient to
demonstrate that, but for trial counsel’s allegedly deficient representation, there existed a
reasonable probability that the extent of Appellant’s punishment would have been more
favorable. See Ex parte Cash, 178 S.W.3d 816, 818–19 (Tex. Crim. App. 2005). Such a finding
in this case would therefore be based only on conjecture and speculation. Id.
We conclude that Appellant has not met either prong of Strickland and, as a result,
cannot overcome the strong presumption that his counsel performed effectively. For this reason,
we overrule Appellant’s second issue.

DISPOSITION
Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.

GREG NEELEY
Justice

Opinion delivered April 20, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

1
If the trial judge believed Juror 1 was disabled from serving, the trial court had the ability to excuse her on
its own motion, without a request from defense counsel; instead, the trial court affirmatively found that despite her
concerns, Juror 1 could still properly serve as a juror. Scales v. State, 380 S.W.3d 780, 783 (Tex. Crim. App. 2012).
2
After the verdict was announced, Appellant’s trial counsel requested that the jury be polled. Each juror
affirmed that the sentence imposed was his or her individual verdict.

8
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

APRIL 20, 2023

NO. 12-22-00213-CR

KELDRON BEARD,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 145th District Court
of Nacogdoches County, Texas (Tr.Ct.No. F2226277)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.