Bearden v. State

• Decision Date: 13 April 1983
• Docket Number: No. 64148,64148
• Parties: Bobby Ray BEARDEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 688

648 S.W.2d 688

Bobby Ray BEARDEN, Appellant, v. The STATE of Texas, Appellee.

No. 64148.

Court of Criminal Appeals of Texas,

En Banc.

April 13, 1983.

William B. Smith, on appeal only, Midland, for appellant.

Leslie C. Acker, County Atty., Midland, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

This is an appeal from a misdemeanor conviction for driving while intoxicated; the punishment is three days confinement and a $200 fine.

The sufficiency of the evidence is not challenged. In his first ground of error, appellant contends that the trial court erred in overruling his motion for new trial because of jury misconduct.

On July 16 and 17, appellant was tried before a jury for the misdemeanor offense of driving while intoxicated. The jury convicted him and appellant elected to have the court set punishment. On July 26, 1979, appellant filed an original motion for new trial. In his motion for new trial, appellant complained of several errors including: "The jury was guilty of misconduct in that the jury considered evidence that was not admitted by the court." The original motion was not verified in any manner. On August 14, 1979, the trial court, by written order, granted appellant leave to file an amended motion for new trial. On that same day, appellant filed the amended motion in which he reasserted his complaint regarding the jury misconduct and made reference to an attached juror's affidavit. The amended motion was not sworn to by the appellant or his attorney. However, the affidavit of juror Johnny Mitchell was properly sworn to and attached to the amended motion for new trial. On August 23, 1979, at the hearing on the motion for new trial, Mitchell's affidavit was introduced into evidence by appellant. Mitchell also testified at the hearing. The State introduced three other jurors' affidavits. On August 31, 1979, the court overruled appellant's amended motion for new trial.

Before deciding the merits of appellant's claim, we must first deal with the State's assertion that the motions for new trial are fatally defective because neither is verified by appellant or his attorney. Appellant, at oral argument, conceded that the motions were not sworn to by appellant or his attorney, but asked us to "change the law" so that a motion for new trial can be verified by appellant, his attorney, or by a sworn affidavit from the juror. We think it appropriate to at least clarify the law.

Article 40.03, V.A.C.C.P. provides:

"New trials, in cases of felony, shall be granted the defendant for the following causes, and for no other:

* * *

* * * "(7) Where the jury, after having retired to deliberate upon a case, has received other evidence ...."

Article 40.04, V.A.C.C.P. provides that a new trial may be granted in a misdemeanor conviction for the same cause as stated in Article 40.03(7). ¹

Although the Code of Criminal Procedure has never required that a motion for new trial be verified, case law had long held that, without verification, a motion for new trial based on jury misconduct is insufficient as a pleading. In Hicks v. State, 75 Tex.Cr.R. 461, 171 S.W. 755 (Tex.Cr.App.1914) (on rehearing), the Court went to great lengths to explain and support the rule that when the grounds for new trial are outside of the record an appellant "must support it by his own affidavit or the affidavit of someone else specifically showing the truth of the grounds of attack." ²

"The rules of law above shown, wherein it is expressly required that any ground in a motion for new trial which is extrinsic the record, attacking the verdict of the jury, must and shall be supported by affidavit, in order to even raise the question as to authorize the lower court to consider it at all, is [sic] absolutely essential to the due administration of justice and the proper procedure in the trial of causes in the court below. Otherwise what a floodgate of mere 'fishing' with a dragnet would be turned loose, unsupported by affidavit or the record, or otherwise! ... The practice in the lower court has all the time been for an accused, or someone for him, who knows the facts, to swear to any extrinsic attack of the verdict, in order to have such ground considered." Hicks, 171 S.W. at 765-766.

In Vyvial v. State, 111 Tex.Cr.R. 111, 10 S.W.2d 83 (Tex.Cr.App.1928) (on rehearing), we further stated that a motion for new trial which points out extraneous matters which are necessarily hearsay as to the accused must have attached thereto the affidavit of some person who has knowledge of the facts or must name the source of defendant's information and belief that the misconduct occurred, or must state some reason or excuse for failing to produce the affidavits. See Stephenson v. State, 494 S.W.2d 900 (Tex.Cr.App.1973); Clark v. State, 163 Tex.Cr.R. 54, 289 S.W.2d 288 (Tex.Cr.App.1956); Vowell v. State, 156 Tex.Cr.R. 493, 244 S.W.2d 214 (Tex.Cr.App.1951); McCune v. State, 156 Tex.Cr.R. 207, 240 S.W.2d 305 (Tex.Cr.App.1951); Toms v. State, 150 Tex.Cr.R. 264, 200 S.W.2d 174 (Tex.Cr.App.1947); Hughes v. State, 106 Tex.Cr.R. 550, 293 S.W. 575 (Tex.Cr.App.1927)

"[T]o hold otherwise would authorize in every case the making of general indefinite motions for new trials upon information and belief without specific averment of fact or supporting affidavit, and in such form as that same would not support prosecutions for perjury, which would compel trial courts to order process for any and all parties that might be desired and to enable the parties thus convicted to go upon limitless fishing expeditions." Vyvial, 10 S.W.2d at 84-85.

Clearly, a juror's affidavit, or an explanation for its absence, is required. The question is whether the juror's affidavit without the appellant's verification can be sufficient. The State, in answering this question in the negative, relies on Wilson v. State, 171 Tex.Cr.R. 573, 352 S.W.2d 114 (Tex.Cr.App.1961), and Carruthers v. State, 143 Tex.Cr.R. 45, 156 S.W.2d 988 (Tex.Cr.App.1941). Wilson held that the "unverified motion and juror's affidavit, taken before appellant's counsel, ³ were insufficient to require a hearing thereon, hence the court's action in overruling the motion is not before us." Wilson, 352 S.W.2d at 117. The State does not contend that the juror's affidavit sub judice is defective. ⁴ Thus, Wilson is distinguishable on its facts. See also, Elder v. State, 131 Tex.Cr.R. 150, 97 S.W.2d 203 (Tex.Cr.App.1936).

Carruthers, 156 S.W.2d at 988, simply stated, "The motion relied upon is not verified by either appellant or his counsel. Such a motion is fatally defective." See, Coleman v. State, 135 Tex.Cr.R. 229, 118 S.W.2d 600 (Tex.Cr.App.1938); Holloway v. State, 133 Tex.Cr.R. 359, 111 S.W.2d 251 (Tex.Cr.App.1937); Glossup v. State, 135 Tex.Cr.R. 645, 101 S.W.2d 251 (Tex.Cr.App.1937). Certainly if the motion for new trial alleging jury misconduct is not verified and no affidavits are filed to support it, the trial court is justified in overruling the motion. Boone v. State, 156 Tex.Cr.R. 327, 242 S.W.2d 380 (Tex.Cr.App.1951); Yarborough v. State, 130 Tex.Cr.R. 315, 94 S.W.2d 179 (Tex.Cr.App.1936); Hicks v. State, 75 Tex.Cr.R. 461, 171 S.W. 755 (Tex.Cr.App.1914). Carruthers, supra, is silent as to whether a properly sworn juror's affidavit was attached to the motion for new trial. Because of this silence, we can only assume that no affidavits were attached and the issue we have before us today was not raised. Therefore, Carruthers, like Wilson, supra, is distinguishable on its facts.

At oral argument, the State also directed our attention to an opinion decided after appellant's trial. In Cartwright v. State, 612 S.W.2d 609 (Tex.Cr.App.1981), ⁵ a three judge panel held that the defendant's attempt to verify the amended motion for new trial alleging jury misconduct was not effective because the verification was sworn to before her attorney. ⁶ Cartwright then went one step further and specifically held:

"Although there is a juror's affidavit attached to the motion that was sworn to before a notary public other than her attorney, it need not be considered when it is not attached to nor incorporated in a properly verified motion. Martin v. State, 169 Tex.Cr.R. 423, 334 S.W.2d 796 (1960); Ferguson v. State [159 Tex.Cr.R. 169, 261 S.W.2d 721] supra; Cartwright v. State, 158 Tex.Cr.R. 344, 255 S.W.2d 878 (1953); Burnett v. State, 73 Tex.Cr.R. 477, 165 S.W. 581 (1914)." Cartwright, 612 S.W.2d at 610.

We think it appropriate to closely examine the authorities used as support for Cartwright's holding. The juror's affidavit in both Ferguson v. State, 159 Tex.Cr.R. 169, 261 S.W.2d 721 (Tex.Cr.App.1953), and Burnett, supra, were sworn to before the defendant's attorney and, unlike the defendant in Cartwright, were fatally defective in and of themselves. ⁷ In addition, Burnett, as well as Martin, supra, and Cartwright, 158 Tex.Cr.R. 344, 255 S.W.2d 878 (Tex.Cr.App.1953), the other two cases used as support in the Cartwright opinion, involved motions for new trial based on newly discovered evidence.

A motion for new trial based on newly discovered evidence calls for the proof of matters known only to the appellant, i.e., that the evidence is newly discovered and that there has been no lack of diligence by appellant in discovering same. Watkins v. State, 438 S.W.2d 819 (Tex.Cr.App.1969). "We cannot accept the allegations in the motion [for new trial] or in the bill relating to appellant's diligence as proof of such fact." Cartwright, 255 S.W.2d at 879. An attached affidavit of a newly discovered witness alone cannot suffice to establish what is known only to appellant. Watkins, supra.

By contrast, a juror's affidavit is the best means of establishing jury misconduct and of preventing the endless "fishing" expeditions so decried in Hicks, supra. Thus, the requirements for a motion for new trial based on newly discovered...