McQuarrie v. State

• Decision Date: 10 October 2012
• Docket Number: No. PD–0803–11.,PD–0803–11.
• Parties: Thomas McQUARRIE, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

380 S.W.3d 145

Thomas McQUARRIE, Appellant

v.The STATE of Texas.

No. PD–0803–11.

Court of Criminal Appeals of Texas.

Oct. 10, 2012.

Kimberly De La Garza, Seguin, for Appellant.

Michael A. Mark, Asst. District Atty., Seguin, TX, Lisa C. McMinn, State's Attorney, Austin, TX, for State.

OPINION

HERVEY, J., delivered the opinion of the Court in which MEYERS, JOHNSON, KEASLER, and ALCALA, JJ., joined.

Appellant, Thomas McQuarrie, was convicted of sexual assault. SeeTex. Penal Code § 22.011(a)(1)(A). The trial court denied Appellant's motion for new trial, which alleged that the jury, after having retired to deliberate, received other evidence not then admitted by the court that was detrimental to Appellant's case. The Thirteenth Court of Appeals affirmed, holding that the trial court properly excluded the jurors' affidavits and testimony pursuant to Texas Rule of Evidence 606(b) and that Rule 606(b) was constitutional. McQuarrie v. State, 2011 WL 1442335, 2011 Tex.App. LEXIS 2859 (Tex.App.-Corpus Christi Apr. 14, 2011) (mem. op., not designated for publication). We reverse the judgment of the court of appeals.

I. BACKGROUND

Appellant was indicted for the sexual assault of Lisetta Camarillo.¹SeeTex. Penal Code § 22.011(a)(1)(A). Appellant and Camarillo had known each other for a number of years and became related by marriage when Appellant's brother marriedCamarillo's mother. Both Appellant and Camarillo testified that Camarillo was homosexual and not bisexual. Appellant testified that they were very close and hung out every day. He also stated that they had discussed her sexuality, and although they “tried to beat around the bush about it a lot,” he believed that Camarillo was so comfortable with him that she wanted to “experiment.”

Camarillo testified that she and Appellant “were buddies” who “just hung out.” She stated that she never had a romantic interest in him and never flirted with him. She also denied discussing having sex with him. Camarillo additionally testified that she had been dating the same woman for four years, that it had been ten years since she had a sexual interest in a male, that she had not had a romantic relationship with a male since she was 14 or 15 years old, and that she was a virgin before the sexual intercourse with Appellant. Camarillo described the thought of having sex with a man as “[d]isgusting; nasty; just uncomfortable.”

On Friday, April 16, 2006, Camarillo spent all day at her aunt's house with family and friends. She explained that they were barbecuing and drinking. That afternoon, Appellant and his friend came over and invited her to Appellant's parents' house where they were staying.² Appellant, his friend, and Camarillo returned to Appellant's house at around 10:00 p.m. Appellant testified that all three individuals drank beer and shots, smoked marijuana, and used cocaine. However, Camarillo testified that she only drank a part of a beer at her aunt's house and then split a marijuana joint at Appellant's house. She explained that Appellant and his friends were drinking and using cocaine, but when the cocaine was offered to her, she declined. Camarillo also stated that the only thing she drank at Appellant's house was a glass of water—at around 12:30 or 1:00 a.m., she had asked Appellant for a drink, and he brought her a glass of water. Camarillo testified that, after she drank the water, she did not feel well and that her “stomach just felt real light.” Appellant denied giving her water.

After Camarillo went to sleep, Appellant laid down beside her. According to Appellant, Camarillo put her hand on his stomach, and they started kissing and rubbing each other. After about ten minutes of touching, Appellant got up, took his shorts off, and got a condom. Appellant testified that when he came back, he got on top of Camarillo, pulled her shorts to the side, and had sexual intercourse with her. He stated that Camarillo was awake and coherent throughout the encounter. During a later interview with police, Appellant admitted to having sexual intercourse with Camarillo and claimed it was consensual. He also denied giving Camarillo any date rape drugs.

In contrast, Camarillo testified that when she woke up, she “felt dirty,” and she “realized that there was only one cover, and [her] shorts and stuff were pushed over and up, and [she] just didn't feel ... right.” Camarillo testified that she did not remember anything occurring after she fell asleep, and she neither gave Appellant permission to have sex with her nor voluntarily had sex with Appellant.

On Saturday morning, Camarillo left Appellant's house and went to her aunt's house. She explained that she “really didn't know what happened,” but she “knew something was wrong.” Several witnesses testified to Camarillo's distraught emotions and her explanation of what happened. At the urging of family and friends, Camarillo eventually reported the sexual assault to the police.

A patrol officer testified that he thought it was “kind of strange” that a female who only drank a little bit of beer and smoked a joint of marijuana would stay asleep during sexual intercourse. He also testified that it was possible that Camarillo had been drugged and that such drugs go out of the system quickly, making them difficult to test for.

At trial after both sides rested, the charge was read to the jury. The jury had been instructed at the outset of the trial that “[t]he evidence you can consider in this case will only be testimony which you hear in court and any physical exhibits which are offered and admitted into evidence before you.” This was reiterated in the jury charge:

During your deliberations in this case, you must not consider, discuss, or relate any matters not in evidence before you. You should not consider or mention any personal knowledge or information you may have about any fact or person connected with this case which is not shown by the evidence.

At the end of the first day of deliberations, the jurors sent a note indicating that they were split nine votes to three in favor of guilt. The court gave the jurors the option of continuing their deliberations that night or returning in the morning. When they decided to resume deliberations in the morning, the court instructed them that “[i]t's very important that you remember my instructions not to discuss this case among yourselves, nor allow anyone else to discuss it with you.” The court also emphasized that the next morning, “When there's 12 of you [in the jury room], you can start deliberating. Can't deliberate until there's 12 of you there.”

The jurors returned the next morning and deliberated for an hour before finding Appellant guilty. The court assessed Appellant's punishment at four years' confinement in the Institutional Division of the Texas Department of Criminal Justice.

Subsequently, Appellant filed a motion for new trial, arguing that he was entitled to a new trial because the jury, after having retired to deliberate, received other evidence not then admitted by the court that was detrimental to his case. See Tex.R.App. P. 21.3(f) & (g). At the hearing on the motion, Appellant offered the affidavits of two jurors, Kevin LaFleur and Frank Jiral, who affirmed that a third juror had researched the effects of date rape drugs when the jury was released for the night and that she had relayed that information to the rest of the jury the next morning. LaFleur stated that the third juror, Opal Touchard, informed the jury that the date rape drugs would last up to 72 hours and that the side effects would last for up to a week. Jiral stated that he was still undecided when they returned for deliberations on the second day, and the information provided by the third juror, who he identified as the only woman on the jury, changed his mind. Jiral also stated that the information had changed the mind of the third juror. The trial court determined that the affidavits did not show an outside influence ³ and refused to consider them pursuant to Rule 606(b). Accordingly, the trial court denied the motion for new trial.

II. COURT OF APPEALS

On direct appeal, Appellant argued, inter alia, that he was deprived of his rights to due process and to an impartial jury “by a juror who conducted independent research on the internet during an overnight recess and conveyed that information to the other jurors during deliberations the next morning.” The Thirteenth Court of Appeals disagreed and affirmed the trial court's judgment. McQuarrie, 2011 WL 1442335, 2011 Tex.App. LEXIS 2859.

The court of appeals held that the trial court properly excluded the jurors' affidavits and testimony under Rule 606(b). Id. at *5–6, 2011 Tex.App. LEXIS 2859, at *15–17. Relying on its prior decision in Soliz v. Saenz, 779 S.W.2d 929 (Tex.App.-Corpus Christi 1989, pet. denied), the court reasoned that the jurors' affidavits showed no evidence of outside influence because the information was gathered by a juror and introduced to the other jurors by that juror. The court of appeals also held that the application of Rule 606(b) was constitutional and did not violate Appellant's right to a fair trial. McQuarrie, 2011 WL 1442335, at *6–7, 2011 Tex.App. LEXIS 2859, at *17–19. The court presumed that the rules approved by the Supreme Court and the Court of Criminal Appeals are constitutional. Id. at *6, 2011 Tex.App. LEXIS 2859, at *17 (citing Luquis v. State, 72 S.W.3d 355, 365 (Tex.Crim.App.2002)).

We granted Appellant's petition for discretionary review to analyze whether the court of appeals violated his federal and state “constitutional trial rights to confrontation and cross-examination by upholding the trial court's exclusion, pursuant to Rule 606(b) Tex.R. Evid., of juror testimony and affidavits offered for purposes of [Appellant's] motion for new trial on the ground that a juror conveyed to other jurors harmful information obtained from her internet research during an overnight break in deliberations.”

III. ...