NO. 07-00-0404 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A MARC H 8, 2002

______________________________ CHRISTOPHER WILL IAMS, APP ELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE242 ND DISTRICT COURT OF HALE COUNTY; NO. B 13457-9906; HONORAB LE ED S ELF, JUDGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Following hi s p l ea of

no t g ui l ty , a pp el l an t C hr i st op he r W i l l i ams was convicted by a jury of deli very of

a cont rolled substance an d punishm ent w as ass essed a t two years co nfinement

in a state ja il facili ty and a $1,000 fine. P resenting one point of e rror , appellant con ten ds t he t rial cour t er red in den ying hismotion for mistrial after the j ury was2

sworn an d a me mber of the ju ry informed t he court that he had withheld material information. B ased upon the rationale express ed herein, we affirm
. Appellantdoes not challenge the sufficiency of the evidence. Thus, only the fac ts necess aryto our disp osition of the appeal will be considered. After the trial j udge recessed the jury

for lunch, a m ember of the j ury, Pau lo Pos ada, approached the j udge and informed himthat wh en a witness f or the State, M r. Salazar, entered the courtroom to be sworn, h e recognized hi m b y sight, but had not recognized his nam e when it w as ment ioned with other w itnesses during voi r di re . Although Posada cl aimed to have kno wn Salazar for about 20 years, he nevertheless claimed he could be fair and impartial. When the jury and counsel returned fromlunch, the trial judge reported the events to counsel and outof the jur y’ s p re se nc e, mad e a re co rd of Po sa da ’s co nv er sa ti on wi th hi m. Counsel for the State declined to exam ine Posada and fo llowing exam inati on by appell ant’s cou nse l, appellant moved for a mistrial which the t rial court denied. Appella nt’s solecon ten tion on a ppe al isthathe was deprived of an opportunity to challenge the juror for

cause or to ex

ercise a perem ptory challenge to the juror and that the trial court erred in denying his motion for m istrial. W e disagree. The State conten ds thatthe record does not dem onstrate that the j uror withheld any inform ation during voi r dire
. The record reflects that Pos ada did contact the trial judge d uring the noon recess and inform himthat he recognized Salazar w hen he was sworn as

a witness. The report er’s record also shows that the trial judge allowed ap pellant’s counsel to exam ine Posada out3

of the presence of the r emaining mem bers o f the jury and that appellant’s m otion for mistrial was overruled. However, the repo rter’s record does not include a transcription of voi r di re exam ination. In Bauder v. State, 921 S.W .2d 696, 698 (T ex.Cr.App. 1996), while di scu ssi n g mistrials and double j eopardy issues, the Court stated: Atthe outset, w

e em phasize that m istrials are an extrem e reme dy for prejudicial events occurri ng durin g the trial process. Later, in W ood v. State, 18 S.W.3d 642, 648 (Tex.Cr.App. 2000) , in discu ssing mistrial s, the Court noted: A mistr i al is a de vice used to hal t trial proceedi ngs when error is so prejudicial th at exp en di tu re of fu rt he r t i me and expense w ould be wasteful and futile. Thu s, a trial court m ay prope rly exercise its discretion to declare a mistrial if an impartial verdict cannot be reac hed, or if a verdict of conviction cou ld be reached but w ould have to be reversed on appeal due to an o bvio us p rocedu ral e rro r. [ Cit atio n s om itted]. The determ ination of whether a given err or necessita tes a mistrial mustbe m ade by exam ining the particular facts of the case. .
. . In Evans v. S tate, 622 S.W.2d 866, 871 (Tex.C r.App. 1981), the def endantasserted that twojurors “falsely sw ore” that they did not know three of the State’s witnesses. The record did not contain a transcription of the voi r di re exam ination. The Court concluded thatabsent a show ing t hat the defendant questioned prospective j urors during voi r di re4

regarding nam es of potential witnesses and that the y w ithh eld information, the contention was without merit. Id. Although we m ust consider all matters that were b efore the trial court in the underlying case to determine whether the tri al co urtabused its discre tion, m atters com plained of that are not in the reporter’s record or

in a bill of exception are not preserved for appellate review. Tex. R. App. P. 33.1(a) and 33.2; Vaughn v. S tate, 634 S.W.2d 310, 31 2 (Tex.Cr .Ap p. 1982)
. Given the record before us, w e are unable to determ ine th at th e t ri al co ur t a bu se d i ts di sc re ti on i n o ve rr ul i ng ap pe l l an t’ s mo tio n for mistrial. Appellant’s sole point of error is overruled. Accordingly, the j udgme nt of the trial court is affirmed.

Don H. Reavis Justice Do not publish.