Clark v. State, No. 09-06-230 CR (Tex. App. 2/27/2008), 09-06-230 CR.

CourtCourt of Appeals of Texas
PartiesMITCHELL EARL CLARK, JR., Appellant, v. THE STATE OF TEXAS, Appellee.
Docket NumberNo. 09-06-230 CR.,09-06-230 CR.
Decision Date27 February 2008

On Appeal from the 252nd District Court, Jefferson County, Texas, Trial Cause No. 97227.





A jury found appellant Mitchell Earl Clark, Jr. guilty of murder. See Tex. Pen. Code Ann. § 19.02(b)(1) (Vernon 2003). The jury determined Clark was a repeat felony offender and sentenced him to seventy years in the Texas Department of Criminal JusticeInstitutional Division.

Clark presents five issues on appeal. He first argues the trial court abused its discretion in denying him an oral hearing on his motion for new trial. Second, he states the evidence is factually insufficient to support the conviction. He also contends the trial court erred in failing to suppress any in-court identifications of him as the assailant. Next, he maintains the trial court abused its discretion when it limited his closing argument to sixteen minutes. Last, he asserts the trial court abused its discretion in admitting extraneous evidence of gang affiliation during the punishment stage.

"When an accused presents a motion for new trial raising matters not determinable from the record, upon which the accused could be entitled to relief, the trial judge abuses his discretion in failing to hold a hearing." Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993). "[A] defendant need only assert reasonable grounds for relief which are not determinable from the record in order to be entitled to a hearing." Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994). However, a trial court does not abuse its discretion in overruling a motion for new trial without a hearing unless the motion and supporting affidavits state facts that, if true, would entitle the defendant to a new trial. See Hernandez v. State, 952 S.W.2d 59, 74 (Tex. App.-Austin 1997), vacated on other grounds, 957 S.W.2d 851 (Tex. Crim. App. 1998). When a trial court does not conduct a hearing on a motion for new trial, an appellate court must determine whether the motion and affidavits show reasonable grounds that would entitle a defendant to a hearing of the motion. See Jordan, 883 S.W.2d at 665; Garcia v. State, 960 S.W.2d 329, 333 (Tex. App.-Corpus Christi 1997, no pet.); Sandoval v. State, 929 S.W.2d 34, 36 (Tex. App.-Corpus Christi 1996, pet. ref'd).

A hearing is not required if the matters raised in the motion for new trial are determinable from the record, or if the motion and supporting affidavits are not sufficient to put the trial court on notice that reasonable grounds for a new trial may exist. Jordan, 883 S.W.2d at 665; Reyes, 849 S.W.2d at 816. The grounds presented to the trial court in Clark's Motion for New Trial included his contention that a disqualified juror served on the jury, juror misconduct, alleged withholding of material evidence from Clark by the State, and the wrongful exclusion of a 911 audio tape from evidence before the jury by the trial court. Clearly, a trial court's ruling on the admissibility of evidence is determinable from the record and therefore, Clark has failed to show that the trial court abused its discretion in ruling upon that issue without the necessity of an oral hearing.

In another point of his motion for new trial, Clark complains film allegedly seized from his California residence by Los Angeles police in an unrelated matter was material evidence withheld from him in this case. The motion for new trial states the film "presumably" depicts Clark in California on the day of the murder. Clark attached the "search warrant and affidavit" which allegedly resulted in the seizure of the film. Although the affidavit relates to his allegation, it is not an affidavit "specifically showing the truth of the grounds" of his allegation. See McIntire v. Texas, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985). The attached inventory receipt from the search shows one roll of Kodak film was confiscated, but the affidavit itself does not mention the specific film he complains was withheld, or otherwise discuss the contents of the purported film. As a prerequisite to obtaining a hearing on a motion for new trial, the motion for new trial must be supported by affidavit, either of the accused or someone else specifically showing the truth of the grounds of attack. Reyes, 849 S.W.2d at 816 (citing McIntire, 698 S.W.2d at 658); see also Bearden v. State, 648 S.W.2d 688, 690 (Tex. Crim. App. 1983)(while the Code of Criminal Procedure has never required that a motion for new trial be verified, the court has continually held that without a supporting affidavit, a motion for new trial based on matters outside the record is insufficient as a pleading). The affidavit is not required to "reflect every component legally required to establish" relief, but the motion or affidavit must reflect that reasonable grounds exist for relief to be granted. Reyes, 849 S.W.2d at 816 (citing McIntire, 698 S.W.2d at 658). Thus, the motion for new trial was defective and insufficient as a matter of law and we find no abuse of discretion by the trial court in ruling without a hearing.

Clark further complains in his motion for new trial that a disqualified juror served on the jury. Clark alleges that Juror #32 had been convicted of attempted theft, and therefore, was a disqualified juror. See Tex. Code Crim. Proc. Ann. arts. 35.16(a), 35.19 (Vernon 2006). Clark did not include a sworn affidavit from the juror in question, but in support of this point relies solely upon his counsel's verification to the motion and unverified copies of documents apparently downloaded from the web sites of the Texas Department of Public Safety and Jefferson County Clerk's offices purporting to evidence a 1979 conviction for misdemeanor attempted theft, attached to his motion for new trial. The disqualification issue was not brought to the court's attention until after the verdict was entered and Clark maintains he is entitled to a new trial because, in addition to the other issues identified in his motion, a disqualified juror served during his trial.

Article 35.19 of the Texas Code of Criminal Procedure provides for an absolute disqualification from jury service, as "[n]o juror shall be impaneled when it appears that he is subject to the second, third or fourth cause of challenge in article 35.16, though both parties may consent." Id. at art. 35.19. Article 35.16 lists several reasons for challenges for cause. Id. at art. 35.16. The second of the listed reasons is "[t]hat the juror has been convicted of misdemeanor theft or a felony[.]" Id. A conviction for attempted misdemeanor theft is not expressly included in the enumerated disqualifying offenses.

Pursuant to Article 44.46(2), when the issue of an alleged disqualification is brought to the trial court's attention after the verdict is entered, a conviction cannot be reversed on appeal unless the defendant "makes a showing of significant harm by the service of the disqualified juror." Tex. Code Crim. Proc. Ann. art. 44.46(2) (Vernon 2006). A defendant's conviction and sentence does not alone constitute a showing of "significant harm" required by article 44.46. State v. Read, 965 S.W.2d 74, 77 (Tex. App.-Austin 1998, no pet.); Hernandez, 952 S.W.2d at 71. Instead, the record must demonstrate the defendant's alleged substantial harm is directly attributable to the service of the objectionable juror. See, e.g. Perez v. State, 11 S.W.3d 218, 221 (Tex. Crim. App. 2000); Ristoff v. State, 985 S.W.2d 623, 623-24 (Tex. App.-Houston [1st Dist.] 1999, no pet.).

Neither Clark's motion for new trial nor any supporting affidavit alleged any facts establishing a disqualifying conviction of misdemeanor theft or any facts relevant to the article 44.46(2) harm requirement. On appeal, Clark argues that due to Juror #32's failure to disclose his criminal history in response to questions on the juror information card and direct questioning during voir dire, he was not able to intelligently exercise his peremptory challenges or receive a fair trial. This argument was not presented to the trial court. Clark did not present a reasonable ground for relief. Because Clark's motion for new trial did not state facts that, if true, would entitle him to relief, the trial court did not abuse its discretion by overruling Clark's motion for new trial without a hearing. See Hernandez, 952 S.W.2d at 74.

Finally, Clark alleges in his motion that he is entitled to a new trial because Juror #29 provided sworn testimony in her attached affidavit that the jury considered during its deliberations (1) Clark's failure to testify, and (2) the effect of parole on Clark's sentence. Rule 606(b) of the Texas Rules of Evidence provides that, "[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or to the effect of anything on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment." Tex. R. Evid. 606(b). However, Rule 606(b) also provides that "a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve." Id. An "outside influence" is something outside of both the jury room and the juror. White v. State, 225 S.W.3d 571, 574 (Tex. Crim. App. 2007). Because the affidavit presents no evidence of any outside influence, the trial court may have properly disregarded it without an oral hearing. Tex. R. Evid. 606(b). The trial court did not abuse its discretion in failing to hold a hearing on Clark's motion for new trial. We overrule Clark's first issue.


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