Gomez v. State

• Decision Date: 04 February 1999
• Docket Number: No. 01-96-01119-CR,01-96-01119-CR
• Citation: 991 S.W.2d 870
• Parties: Cruz Armondo GOMEZ, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 870

991 S.W.2d 870

Cruz Armondo GOMEZ, Appellant, v. The STATE of Texas, Appellee.

No. 01-96-01119-CR.

Court of Appeals of Texas Houston (1st Dist.).

Feb. 4, 1999.

Published in Part Pursuant to Tex. R. App. P. 90.

James Butler, Houston, for appellant.

John B. Holmes, Houston, Kimberly Aperauch Stelter, Houston, for appellee.

Panel consists of Justices MIRABAL, WILSON, and TAFT.

OPINION ON MOTION FOR REHEARING

MIRABAL, J.

We overrule appellant's motion for rehearing, partially grant appellant's motion to publish, withdraw our opinion issued October 22, 1998, and substitute this opinion in its stead. We vacate, set aside, and annul our judgment of October 22, 1998.

A jury found appellant, Cruz Armondo Gomez, guilty of manslaughter and assessed punishment at two years confinement. We affirm.

In his first point of error, appellant asserts the trial court erred in denying his motion for a new trial due to jury misconduct, and subsequent judicial error. In his second point of error, appellant asserts he was denied his right to a fair trial, in violation of the United States and Texas constitutions, by the misconduct of the jury and the material judicial error that followed.

A new trial shall be granted an accused when the court finds the jury has engaged in such misconduct that the accused has not received a fair and impartial trial. TEX.R.APP.P. 21.3(g). A movant for a new trial based on jury misconduct must prove that (1) the misconduct occurred and (2) the misconduct resulted in harm to the movant. Garza v. State, 630 S.W.2d 272, 274 (Tex.Crim.App.1981). The issue of whether jury misconduct took place is determined by the trial court. Stowe v. State, 745 S.W.2d 568, 569 (Tex.App.--Houston [1st Dist.] 1988, no pet.). The finding of the trial court that no jury misconduct occurred is binding on the reviewing court and will be reversed only where a clear abuse of discretion is shown. Id.

On September 4, 1996, Sharon Cook, official court reporter for the 263rd District Court, was riding in the elevator located in the Harris County Criminal Courts Building, when she heard two female passengers, who were wearing juror badges from the 232nd District Court-Judge Mary Lou Keel, discussing issues related to a criminal case. She could not remember the exact words of their conversation, but she did recall the two women discussing prior convictions and other matters. ^{1 1} The next day, September 5, 1996, Cook informed the 232nd District Court about the conversation. Later that day, the jury returned a verdict on appellant's punishment and was released by the court. Judge Keel then informed appellant's counsel that earlier in the day she had been informed by Cook that two jurors had been overheard discussing the case in an elevator.

Appellant filed a motion for new trial alleging jury misconduct. In support of his motion, appellant attached two affidavits: his trial attorney's and Cook's. Cook's affidavit stated:

(3.) On September 5, 1996, I was one of several people in the public elevator located in the Harris County Criminal Courts Building located at 301 San Jacinto, Houston, Texas. I clearly heard two (2) of the female passengers discussing issues related to a criminal case. I do not recall the exact words of the two women, but I did hear the women discussing prior convictions and other matters related to a criminal case. I clearly saw that both women were wearing juror badges from the 232nd District Court, Judge Mary Lou Keel.

(4.) A short while later that same day, I informed Arlene Webb. Arlene Webb is the Official Court Reporter for the 232nd District Court. When I told Arlene Webb what I had heard the two women discussing in the elevator, she said it did sound like the case which was currently in trial in the 232nd District Court--The State of Texas vs. Cruz Armondo Gomez.

Appellant's trial attorney's affidavit restated the information in Cook's affidavit. Appellant did not support his motion with testimony or affidavits from any of the jurors.

Article 36.22 of the Code of Criminal Procedure states:

No person shall be permitted to be with a jury while it is deliberating. No person shall be permitted to converse with a juror about the case on trial except in the presence and by the permission of the court.

TEX.CODE CRIM.P.ANN. art. 36.22 (Vernon 1981). The purpose of article 36.22 is to prevent an outsider from saying something that might influence a juror. Ites v. State, 923 S.W.2d 675, 677 (Tex.App.--Houston [1st Dist.] 1996, pet. ref'd). Therefore, when a juror communicates with an unauthorized person about the case at trial, there is a presumption that the defendant was injured. Quinn v. State, 958 S.W.2d 395, 401 (Tex.Crim.App.1997). This presumption is rebuttable, and a new trial is not required unless there has been injury to the accused. Alba v. State, 905 S.W.2d 581, 587 (Tex.Crim.App.1995).

Appellant asserts the jury engaged in misconduct when two jurors discussed, with each other, elements of a case in a public forum. Appellant relies on cases where a jury received outside evidence or where a third party spoke to a juror. Here, the jurors did not discuss evidence with anyone outside the jury nor has it been shown that the jurors discussed inadmissable or outside evidence.

In support of his motion for new trial, appellant relied on the solitary statement from Cook's affidavit stating that she could not remember the exact words of the jurors conversation, but sh...