Court of Criminal Appeals of Texas Finds No Error In Trial Judge Doing Nothing When 4 Jurors Said They Feared the Defendant Would Hurt the Prosecutor Because He Gave Her a Dirty Look

What should a court do when jurors express fear for the prosecutor based upon the defendant giving her a dirty look during trial? According to the Court of Criminal Appeals of Texas in Irsan v. State, 2025 WL 610310 (Tex.Crim.App. 2025), the court doesn't abuse its discretion when it does nothing in such a situation. But I'm not at all sure that should be the case.

In Irsan, the appellant was charged with capital murder. During trial, "four jurors 'pulled [the bailiff] aside' and told him that they needed to bring something to his attention." The bailiff later told the trial judge what they had said to him:

THE COURT: All right. Let's take the first one. What did that person say about security or the prosecutor's safety?...

THE BAILIFF: She said she had never seen the look of that nastiness ever before. And as she was talking, he gave her a look and made a snapping finger as if he is breaking something, and she was scared.

THE COURT: Okay. She was scared for the prosecutor?

THE BAILIFF: That's the way I'm understanding it. I'm not sure if it's she scared for her or prosecutor, but she –

THE COURT: Okay. And did the second juror express a concern about the prosecutor's safety? THE BAIFLIFF: The second one said basically the same thing, except she just saw him just giving a dirty look and snapping.

THE COURT: So nothing about safety? THE BAILIFF: No. THE COURT: The third juror?

THE BAILIFF: He said -- I don't know, but it came to his concern and he was concerned and he felt like he needed to tell me.

THE COURT: Okay. And the fourth juror.

THE BAILIFF: The fourth one just said: I'm probably going to be telling you the same thing that everybody else saw. And I said: That's okay on that. She made a gesture.

Thereafter, the judge denied the defense's motions for a mistrial and to question these jurors individually. On appeal, the Court of Criminal Appeals of Texas found that this was proper, concluding as follows:

[We] conclude that, when a defendant engages in courtroom conduct that might undermine the jury's ability to render a fair verdict, the trial judge's decision whether to question the affected jurors should be reviewed only for an abuse of discretion. Cf. Kelly v. State, 60 S.W.3d 299, 304 (Tex. App.—Dallas 2001, no pet.) (applying the abuse of discretion standard to a claim that, after the defendant made a throat-slashing gesture at one of the jurors, the trial judge should have inquired into the juror's ability to remain impartial).

Meanwhile, a trial court's ruling on a motion for mistrial should be reviewed only for an abuse of discretion....Therefore, to resolve points of error twenty-seven through twenty-nine, we need only decide whether the trial judge abused her discretion in proceeding as she did.

We conclude that she did not. It is not uncommon for defendants to express frustration at questions or answers with which they take umbrage. Were we to hold that outbursts borne out of frustration or anger always call for a mistrial or an examination of the jurors, even when the trial judge in her discretion concludes otherwise, we would create an incentive for litigants to profit from their own misbehavior. We have declined to create that kind of incentive before, and we decline to do so now. See Chamberlain v. State, 453 S.W.2d 490, 492–93 (Tex. Crim. App. 1970) (overruling a contention that the trial judge should have granted a mistrial after the defendant “got into a scuffle” with the courtroom deputies because granting relief under those circumstances “would permit a defendant to take advantage of his own misconduct, and the attempted administration of justice would be reduced to a mockery”).

I feel like this ruling was a bit unfair to the defendant, depending on what was meant by the "snapping finger" gesture. The court cited to cases in which a defendant made a "throat-slashing gesture" and "got into a scuffle" with courtroom deputies to conclude that the appellant shouldn't "profit from [his] own misbehavior." But those two acts seem very different from merely giving an angry look at the prosecutor and snapping his finger(s) (unless this was a gesture like he was going to break her finger(s)).

It seems to be one thing to say that a defendant shouldn't profit from threatening behavior. It seems like something else entirely to say we shouldn't do anything when jurors fear that a defendant could harm the prosecutor based just on a dirty look.

-CM