Brewer v. State, 46681

• Decision Date: 24 October 1973
• Docket Number: No. 46681,46681
• Parties: James Charles BREWER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 509

500 S.W.2d 509

James Charles BREWER, Appellant, v. The STATE of Texas, Appellee.

No. 46681.

Court of Criminal Appeals of Texas.

Oct. 24, 1973.

Sam Burns and James B. Turner, Houston, for appellant.

Carol Vance, Dist. Atty., James C. Brough, I. D. McMaster, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The conviction is for rape; the punishment, life imprisonment.

Appellant contends there was jury misconduct during deliberation at the punishment phase of the trial requiring reversal of this case.

The record contains the affidavits of two jurors. Both affiants, as well as a third juror, testified at a hearing on the motion for new trial. The record shows there were statements made during deliberation (1) that the Board of Pardons and Paroles would be in a better position than the jury to determine the length of time the appellant should serve in confinement; (2) that the appellant would only serve eight to ten years of a life sentence; and (3) that appellant would serve more time on a definite term such as thirty years than on a life sentence. Several times during the deliberation the foreman read the Court's charge and warned the jurors not to discuss or consider parole laws or the length of time appellant would actually serve. On the motion for new trial the testimony of each one of the jurors was inconsistent with other parts of his testimony, and inconsistent with the affidavits. The record does not reflect that any juror purported to know the law in regard to parole or the length of time a defendant would serve; nor was any of the above matter discussed as a known fact. At one point during the jury's deliberations a note was sent to the trial judge which reads 'What is the meaning of a life sentence? Is it more lenient than for example, a 35 year sentence?' The questions were answered: 'Gentlemen, you have all of the law in the charge that I have already given you.' ¹ A juror testifying at the hearing on the motion for new trial said the jury then decided that 'when you said life it was life and thirty-five (35) years was thirty-five (35) years.' This record shows the jurors' statements in the jury room in connection with these matters were expressions of differing opinions.

This Court has held that a misstatement of the law concerning the effect of the parole laws asserted as a fact by jurors during deliberation is reversible error under Art. 40.03, Vernon's Ann.C.C.P. Scaling v. State, 499 S.W.2d 318 (1973); Meyers v. State, 418 S.W.2d 676 (Tex.Cr.App.1967). However, the mere expression of opinions concerning these matters is not reversible error. See Daniel v. State, 486 S.W.2d 944 (Tex.Cr.App.1972); Demolli v. State, 478 S.W.2d 554 (Tex.Cr.App.1972); Jones v. State, 462 S.W.2d 578 (Tex.Cr.App.1970); Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.1968). Moreover, a discussion of parole by a jury will not...