Brown v. State, s. C14-89-0711-C

• Decision Date: 24 January 1991
• Docket Number: Nos. C14-89-0711-C,B14-89-0712-CR,s. C14-89-0711-C
• Citation: 804 S.W.2d 566
• Parties: Curtis Edward BROWN, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 566

804 S.W.2d 566

Curtis Edward BROWN, Appellant, v.The STATE of Texas, Appellee.

Nos. C14-89-0711-CR, B14-89-0712-CR.

Court of Appeals of Texas Houston (14th Dist.).

Jan. 24, 1991.

Rehearing Denied Feb. 14, 1991.

Discretionary Reviews Refused

May 15, 1991.

Tony Aninao, Houston, for appellant.

Alan Curry, Houston, for appellee.

Before PAUL PRESSLER, CANNON and ELLIS, JJ.

OPINION

CANNON, Justice.

In cause no. 524,277, appellant entered a plea of not guilty before the court to the offense of theft.TEX.PENAL CODE ANN. § 31.03(a).In cause no. 524,278, appellant entered a plea of not guilty before the court to the offense of burglary.TEX.PENAL CODE ANN. § 30.02(a)(1).He was convicted of both offenses by a jury.The court assessed punishment for each offense, enhanced under TEX.PENAL CODE ANN. § 12.42(d), at imprisonment for thirty years.The sentences were ordered to be served concurrently.We affirm in part and reverse and render in part.

On March 3, 1989, Francisco Bernal was working the 7:00 p.m. to 6:00 a.m. shift as a security guard for Marshall Investigation and Security.Bernal was driving the company patrol car sometime after midnight, when he received a dispatch to go to the complainant's garage at 1109 Holman.The complainant operated a business which repaired foreign cars.This was the second call that night to the garage.Bernal was familiar with the area and arrived at the garage within six or seven minutes.After his arrival, Bernal noticed that someone had opened the sliding gate to the sheet metal fence which provided access to a portion of the premises.The manager normally locked the gate and turned on the alarm system.Bernal notified the dispatcher of a forced entry and shortly after the police arrived, he radioed the dispatcher to notify the complainant.A short time later, the complainant arrived and the police asked him to check if anything was missing.At that time, the complainant determined that his B.M.W. was missing.

Houston Police Officer William J. Trapani was on patrol during the early morning of March 3, 1989, and was one of three H.P.D. officers who responded to the call regarding the burglar alarm at the complainant's garage.When he arrived, he noticed that someone had "jarred open" the sheet metal fence that "cornered off" approximately half of the building.He also observed that someone had cut the lock on the fence gate and pulled away the gate from the rest of the fencing material.Officer Ronald A. Rodriguez arrived while Officer Trapani was investigating the burglary.Officer Rodriguez "entered the building" through the point of forced entry in front of the building with both Officer Trapani and the complainant.At that time, they observed that someone had taken a radio from another car.

Officer Frank Donaldson was also on patrol during the early morning of March 3, 1989.Officer Donaldson received a call sometime after midnight regarding the burglar alarm at the complainant's garage.Officer Donaldson had responded to calls at the complainant's garage in the past and knew that the complainant repaired German automobiles.While en route to the complainant's garage, Officer Donaldson noticed a B.M.W. and suspected that it might be involved with the call.Using the computer in his patrol car, Officer Donaldson ran a check of the car's license plate number which revealed that it was registered to someone in another neighborhood.

After following the car for a short distance, Officer Donaldson observed appellant, the driver of the car, pull over and park beside a vacant lot.Appellant got out of the car and walked across the street leaving the car window down.According to Officer Donaldson, this was a strange location to leave a car because of the vacant lot and the many abandoned houses.Officer Donaldson pulled alongside appellant and asked him whose car he was driving.When appellant stated the car belonged to "Robert," Officer Donaldson asked appellant for his driver's license or proof of identification.When appellant was unable to produce any identification, Officer Donaldson asked appellant to sit in the back seat of his patrol car.Officer Donaldson then walked over to the B.M.W. at which time he noticed a large generator in the back seat and another car's radio in the front seat.Officer Donaldson radioed Officer Trapani, who transported the complainant to the location where the B.M.W. was stopped, some eleven or twelve blocks away from the complainant's garage.When the complainant arrived, he identified his car and noticed the generator and the car radio inside.A check of the glove compartment by the officers revealed papers confirming the car belonged to the complainant.The complainant drove the car carrying the property back to his garage.

In his first two points of error, appellant complains the trial court committed error in overruling his motion for new trial without a hearing.Specifically, appellant contends he was entitled to a new trial because the jury committed misconduct by discussing appellant's failure to testify.As proof of jury misconduct, appellant attached a juror's affidavit to his motion for new trial.The affidavit stated in pertinent part:

Later on in the discussion, when it seemed like most of the jurors were getting impatient with my inability to see the case their way, the Foreman actually brought up a subject that wasn't even allowed to be discussed ... and that was the possible condition of [appellant] during the probable car theft and burglary.One of the jurors did stop him at that time.Although it was never spoken, right about this time is when I got the feeling that the fact that [appellant] did not defend himself, was definitely being used against him.

Appellant claims his motion for new trial and the attached affidavit established error as a matter of law because they proved the jurors discussed appellant's failure to testify and proved that this discussion affected the decision of one or more jurors.A motion for new trial which alleges jury misconduct on a matter outside the record must be supported by the affidavit of a juror or some other person who was in a position to know the facts.McIntire v. State, 698 S.W.2d 652, 658(Tex.Crim.App.1985).The purpose of the affidavit requirement is to limit the parameters of the hearing that is sought on the motion for new trial.Id.Hence, as a matter of pleading and as a prerequisite to obtaining a hearing, the affidavit must demonstrate that reasonable grounds exist for believing that jury misconduct occurred.Id.Accordingly, we note and appellant concedes that if the juror's affidavit is insufficient, appellant is not entitled to a hearing on his motion for new trial.

The juror's affidavit in the instant case does not demonstrate reasonable grounds for believing that jury misconduct occurred because it is not competent evidence under the Texas Rules of Criminal Evidence.Rule 606(b) states:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify as to any matter relevant to the validity of the verdict or indictment.Nor may his affidavit or evidence of any statement by him concerning a matter about which he precluded from testifying be received for these purposes.

TEX.R.CRIM.EVID. 606(b).

In other words, jurors are incompetent to impeach their verdict by affidavit or testimony about their mental processes during deliberations but may testify as to any matter that is relevant to the validity of the verdict or indictment.Hernandez v. State, 774 S.W.2d 319, 324-25(Tex.App.--Dallas1989, pet. ref'd).A matter is relevant to the validity of the verdict or indictment if it concerns an overt act which constitutes jury misconduct under TEX.R.APP.P. 30(b) and its predecessor TEX.CODE CRIM.PROC.ANN. art. 40.03. Id.

While a jury's discussion of an accused's failure to testify would constitute an overt act of misconduct, the jury in this case never discussed that topic.The juror's affidavit states only her "feeling" that the jury was using appellant's failure to take the stand against him.In fact, the juror admits that subject was never actually discussed.Consequently, the affidavit fails to show that the jury's actions rose to an overt act of misconduct and fails to demonstrate reasonable grounds for believing that jury misconduct occurred.Since the affidavit is insufficient, appellant was not entitled to a hearing on his motion for new trial.We overrule appellant's first and second points of error.

In his third point of error, appellant claims the evidence is insufficient to support both of his convictions.

If a defendant is found in possession of recently stolen property and at the time of the arrest fails to make a reasonable explanation showing his honest acquisition of the property, the factfinder may draw an inference of guilt.Hardesty v. State, 656 S.W.2d 73, 76(Tex.Crim.App.1983).Once the permissible inference arises, sufficiency of the evidence must still be examined according to applicable evidentiary standards of appellate review since the inference is not conclusive.656 S.W.2d at 77.

At the time of his arrest shortly after the police dispatch, appellant was driving the complainant's car some eleven or twelve blocks away from the complainant's garage.Inside the car was a another car's radio and a generator stolen from the complainant's premises.When he was asked who owned the car, appellant stated only that it belonged to "Robert" and made no effort to further explain his possession of the car or the other property.Since appellant's possession of the stolen property was personal,...