Dugard v. State

• Decision Date: 17 April 1985
• Docket Number: No. 611-83,611-83
• Citation: 688 S.W.2d 524
• Parties: Robert Lee DUGARD v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 524

688 S.W.2d 524

Robert Lee DUGARD v. The STATE of Texas, Appellee.

No. 611-83.

Court of Criminal Appeals of Texas En banc.

April 17, 1985.

Terrence Gaiser, Houston, for appellant.

John B. Holmes, Jr., D.A. & Calvin Hartmann, Joe Magliolo, Larry Schreve & Karen Zellars, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON STATE'S MOTION FOR REHEARING ON STATE'S PETITION

FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted of aggravated rape and his punishment was assessed by the jury at 45 years' imprisonment.

On appeal appellant advanced three grounds of error. He contended the trial court erred in failing to afford him a hearing on his motion for new trial where it was shown by a juror's affidavit that the jurors discussed the parole law, that the court erred in overruling his motion when it was shown by affidavit that the parole law was discussed and one juror was influenced and voted for a harsher punishment denying him a fair and impartial trial. ¹ The Houston Court of Appeals (1st Dist.), after reviewing the circumstances, decided that it was unlikely the affidavit, without more, would have resulted in the granting of a new trial citing Munroe v. State, 637 S.W.2d 475 (Tex.Cr.App.1982), but speculated that on a hearing, evidence could be offered warranting a new trial on the grounds of jury misconduct. Upon the authority of Article 44.24(b), V.A.C.C.P., that the appellate court "may enter any other appropriate order as the law and nature of the case may require" the Court of Appeals abated the appeal and remanded the cause to the trial court for a belated hearing on the motion for a new trial.

On original submission we refused the State's Petition for Discretionary Review. We granted State's Motion for Rehearing in light of the arguments advanced there and the overruling of Munroe in Sneed v. State, 670 S.W.2d 262 (Tex.Cr.App.1984).

All three grounds of error relate to the motion for new trial process. The sequence of events thus becomes important. On January 22, 1982, appellant was sentenced. On February 22, 1982, two motions for new trial were filed. One was filed by appellant's trial counsel. It was signed and sworn to by the appellant. It alleged, inter alia, but simply "That the Jury was guilty of misconduct in that a juror conversed with a witness in regards to this case." No affidavit was attached to said motion. Attorney Walter Boyd, appellant's new counsel, also filed a motion for new trial on the same date. It was not signed and sworn to by the appellant. The motion alleged, inter alia, simply "5. There was jury misconduct." There was no affidavit attached.

On April 5, 1982, seventy-three days after sentencing, attorney Boyd filed "Defendant's Motion for a Hearing on His Motion for New Trial." Attached to this motion was the affidavit of a juror for the purpose of establishing jury misconduct. The affidavit stated in pertinent part:

"During the guilt phase of the [trial] one fo (sic) the jurors mentioned during jury deliberation that criminals do not serve more than 1/3 or 1/4 of their sentences or words to the effect. Then during the punishment phase, there were two women who were holding out for a punishment less than 45 years. One of these ladies stated that she would agree to a 45 year sentence because the defendant would be out in 10 or 15 years; or words to this effect. One of the jurors then said that we were not supposed to discuss this but then this lady nevertheless changed her mind and voted for 45 years. This lady who changed their mind was influenced for a shorter punishment because the defendant was a young man and had no prior criminal record."

On the same day (April 5, 1982), the court afforded the appellant a hearing on his motion requesting a hearing on his new trial motion. It does not appear the State was represented at the hearing. The record reflects:

"THE COURT: Several things come to the court's mind, Mr. Boyd. Number one, I think more than five days has elapsed from the verdict in this case, or from the time the sentence was imposed, number one. Number two, motion for new trial should be filed within 30 days of the date of sentence. I don't think this was filed timely. thirdly, if your motion had been filed timely, you've not brought it to the court's attention within ten days after you filed the motion. I don't think I have jurisdiction to hear your Motion for New Trial. Having said that, even if the court had jurisdiction to hear your Motion for New Trial, I find that it is wholly without merit in that your affidavit of your juror doesn't state any misconduct, if any, that influenced his decision. Just merely an allegation that some other person changed their mind allegedly because of misconduct, in this affidavit, it doesn't say where he keeps his crystal ball or how long he's been able to read minds. The court is not going to entertain your Motion for New Trial, but if it had, it would deny it because there's no substance to the Motion."

After colloquy between the court and attorney Boyd, the court stated:

"There's nothing properly before this court to deny. I have just given you a hearing because you want to get on the record and expound and I've given you that opportunity."

There was no request that the affidavit be considered as attached to the motion for new trial, nor was it introduced into evidence. Nevertheless, the court was familiar with the same as indicated by the record.

On April 7, 1982, seventy-five days after sentencing, the motion for new trial was overruled by operation of law.

In 25 Tex.Jur.3rd, Criminal Law, § 3455, p. 312, it is stated:

"... The right to move for a new trial in a criminal case is purely statutory; it is not part of the common law engrafted on the Texas system of jurisprudence. The remedy must be pursued in the manner prescribed by statute." (Emphasis supplied.) See also Banks v. State, 79 Tex.Cr.R. 508, 186 S.W. 840 (1916).

Chapter 40 of the 1965 Code of Criminal Procedure deals with "New Trials." "A 'new trial' is the rehearing of a criminal action, after verdict, before the judge or another jury." Article 40.01, V.A.C.C.P. A motion for new trial can be granted only on the motion of the defendant, not of the State. Article 40.02, V.A.C.C.P. Castro v. State, 42 S.W.2d 779 (Tex.Cr.App.1931). And no authority exists for the court to grant a new trial on its own motion. Zaragosa v. State, 588 S.W.2d 322 (Tex.Cr.App.1979); Stevenson v. State, 600 S.W.2d 307 (Tex.Cr.App.1980); Ex parte Ybarra, 629 S.W.2d 943 (Tex.Cr.App.1982). See also Ramirez v. State, 587 S.W.2d 144 (Tex.Cr.App.1979).

A defendant in a criminal case must establish the truth of the allegations contained in his motion for new trial. King v. State, 502 S.W.2d 795 (Tex.Cr.App.1973).

The statutory time to apply or move for a new trial and to amend such motion is set forth in Article 40.05, V.A.C.C.P., as amended in 1981, which provides:

"(a) A motion for new trial, if filed, shall be filed prior to or within 30 days after the date the sentence is imposed or suspended in open court.

"(b) One or more amended motions for new trial may be filed without leave of court before any preceding motion for new trial filed by the movant is overruled and within 30 days after the date the sentence is imposed or suspended in open court.

"(c) In the event an original or amended motion for new trial is not determined by written order signed within 75 days after the date the sentence is imposed or suspended in open court, it shall be considered overruled by operation of law on expiration of that period.

"(d) It shall be the duty of the proponent of an original or amended motion for new trial to present the same to the court within 10 days after the same is filed. However, at the discretion of the judge, an original motion or amended motion for new trial may be presented or hearing thereon completed after such 10-day period. Such delayed hearing shall not operate to extend the 75-day time limit within the original or amended motion must be determined.

"(e) Within the time limits prescribed in this article, a motion for new trial may be filed after the expiration of the term at which the date the sentence was imposed or suspended in open court, either during a new term of court or during vacation, and a motion for new trial may be determined in vacation or at a new term of court, and need not be determined during the term at which filed." (Amended by Acts 1981, 67th Leg., p. 803, ch. 291, § 107, eff. Sept. 1, 1981.)

In the instant case the appellant contends he was entitled to a new trial because of jury misconduct. It is well established that a motion for new trial alleging jury misconduct must be supported by the affidavit of a juror or some other person who was in a position to know the facts, or must state some reason or excuse for failing to produce the affidavits. Procella v. State, 395 S.W.2d 637 (Tex.Cr.App.1965); Mason v. State, 459 S.W.2d 855 (Tex.Cr.App.1970); Howard v. State, 484 S.W.2d 903 (Tex.Cr.App.1972); Story v. State, 502 S.W.2d 764 (Tex.Cr.App.1973); Ward v. State, 505 S.W.2d 832 (Tex.Cr.App.1974); Bearden v. State, 648 S.W.2d 688, 690 (Tex.Cr.App.1983), and cases there cited.

An issue of jury misconduct cannot be raised by a motion for new trial without a specific affidavit stating facts, not mere suspicions. Vyvial v. State, 10 S.W.2d 83 (Tex.Cr.App.1928).

Thus a new trial motion alleging jury misconduct in order to be sufficient as a pleading must be supported by a proper affidavit. Procella v. State, supra; Mason v. State, supra.

Failure to grant a new trial because of alleged misconduct is not error where no affidavit of juror is attached to the motion. Barrera v. State, 371 S.W.2d 881 (Tex.Cr.App.1963); Procella v. State, supra. And certainly if the motion for new trial is not verified and no affidavits are filed to support it, the...