Munroe v. State

• Decision Date: 14 July 1982
• Docket Number: No. 026-82,026-82
• Parties: Martin Wayne MUNROE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 475

637 S.W.2d 475

21 A.L.R.4th 403

Martin Wayne MUNROE, Appellant, v. The STATE of Texas, Appellee.

No. 026-82.

Court of Criminal Appeals of Texas, En Banc.

July 14, 1982.

Jerry J. Loftin, Danny D. Burns, Fort Worth, for appellant.

Tim Curry, Dist. Atty. and C. Chris Marshall, Asst. Dist. Atty., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ROBERTS, Judge.

The petitioner pleaded guilty to the offense of aggravated robbery. He chose to have a jury assess punishment. The jury assessed punishment at confinement for ten years. This judgment was affirmed by the court of appeals. Munroe v. State, 624 S.W.2d 688 (Tex.App.-Fort Worth, 1981). We granted the appellant's petition for discretionary review in order to resolve conflicting standards for review among the various courts of appeals in cases involving allegations of jury misconduct. Compare Munroe v. State, supra, with Sneed v. State, 625 S.W.2d 761 (Tex.App.-Amarillo, 1981).

In Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App.1975), the court reviewed many of its earlier cases which dealt with jury discussion of parole laws. The court found that these cases revealed an "inconsistency of standards". Id. at 852. As the court stated:

"Authority may be cited for a standard requiring a showing that (1) a misstatement of the law (2) asserted as fact (3) by one professing to know the law (4) which is relied upon by other jurors (5) who for that reason change their vote to a harsher punishment, before reversible error is shown; but likewise authority may be cited which would require only a showing that a statement on the parole law was made and it was either untrue or it was harmful. Much distance lies between these extremes." Ibid.

In addition, the court held that cases involving jury discussion of parole laws may be analyzed as either the receipt of other evidence, prohibited by V.A.C.C.P., Article 40.03(7), or as jury misconduct, prohibited by V.A.C.C.P., Article 40.03(8).

Although the court rejected the State's contention that reversal would not be required without a showing by the defendant that a juror who misstates the terms of the parole law must profess to know the law, Id. at 850, the court did not affirmatively set out the proper standards to be used. Because our own cases since Heredia, and those of the courts of appeals, have continued to apply inconsistent tests for reversible error, we will now revisit the cases and set forth the proper test to be applied to the analysis of jury misconduct.

I.

Article 40.03(8)

V.A.C.C.P., Article 40.03 provides:

"New trials, in cases of felony, shall be granted the defendant for the following causes, and for no other:

(8) Where, from the misconduct of the jury, the court is of the opinion that the defendant has not received a fair and impartial trial. It shall be competent to prove such misconduct by the voluntary affidavit of a juror; and the verdict may, in like manner, be sustained by such affidavit...."

Our cases have clearly held that any discussion of the parole law by the jury constitutes jury misconduct. Jones v. State, 596 S.W.2d 134, 137 (Tex.Cr.App.1980); Sanders v. State, 580 S.W.2d 349, 351 (Tex.Cr.App.1978); Ashabranner v. State, 557 S.W.2d 774, 777 (Tex.Cr.App.1977); Moore v. State, 535 S.W.2d 357, 358 (Tex.Cr.App.1976); Heredia v. State, 528 S.W.2d 847, 853 (Tex.Cr.App.1975). The parole law is simply not to be considered by the jury during its deliberations. As we said in Sanders, supra:

"It would be improper for punishment to be based on an expectation that clemency powers would be exercised, and it would be unconstitutional to attempt to delay the exercise of the clemency powers or to avoid the possible granting of parole by increasing punishment in anticipation thereof. Article II, Sec. 1 of the Texas Constitution provides for the separation of governmental powers among the three distinct departments, the executive, legislative, and judicial. It is well established under this Article that:

'(A) power which has been granted to one department of government may be exercised only by that branch to the exclusion of the others. ... And any attempt by one department of government to interfere with the powers of another is null and void.' Ex parte Giles, Tex.Cr.App., 502 S.W.2d 774; Smith v. Blackwell, Tex.Cr.App., 500 S.W.2d 97. (Emphasis added).

"Clemency powers embodied in the parole system are beyond the reach of interference by the judicial branch, Art. IV, Sec. 11, Texas Const.; and any action by the judicial branch to frustrate or delay the exercise of the power by the executive branch is as much of an unconstitutional interference as is an attempted usurpation of that power. See, Ex parte Giles and Smith v. Blackwell, supra, for unconstitutional grants of authority to usurp clemency powers.

"This is the constitutional basis for the established rule that discussion of the parole law is always jury misconduct...." 580 S.W.2d at 351-352.

However, although discussion of the parole law by the jury is always misconduct, that misconduct does not always constitute the denial of a fair and impartial trial. It is that standard which determines whether a defendant must be granted a new trial under the provisions of Article 40.03(8). In Heredia v. State, 528 S.W.2d 847, 853 (Tex.Cr.App.1975), we stated:

"For example, the mere mention of the parole law would not be such misconduct as would require a new trial. Likewise, a discussion of the parole law, followed by instructions that it should not be discussed, coming from the court in response to a message from the jury or coming from a juror, after which it is not further discussed, would not be such misconduct as to require a new trial.... What does constitute such degree of misconduct as to deny the defendant a fair and impartial trial must be determined upon the facts of the individual case."

Since Heredia, a number of our cases have dealt with contentions that the trial court erred in refusing to grant a new trial under the provisions of Article 40.03(8). We will examine first the cases which affirmed the judgment of the trial court.

In Austin v. State, 531 S.W.2d 615 (Tex.Cr.App.1975), we held that the record failed to show that the discussion of the parole law caused the punishment assessed by the jury to be increased.

In Ashabranner v. State, 557 S.W.2d 774 (Tex.Cr.App.1977), although one juror's affidavit indicated that he had ultimately voted for a higher punishment after the jury's discussion of the parole law, the affidavit did not clearly show that the juror's decision was caused by the discussion.

In McIlveen v. State, 559 S.W.2d 815 (Tex.Cr.App.1977), the evidence at the hearing on the defendant's motion for new trial did not show that any juror relied on or was influenced by the comments in the jury room concerning the parole law.

In Beck v. State, 573 S.W.2d 786, 791 (Tex.Cr.App.1978), the court held:

"Although it is obvious that the jury improperly discussed the parole law, we are unable to say that Richardson or any other juror changed his or her vote as a result of the discussion. Her testimony is conflicting and she could only speculate whether the discussion affected the other jurors. She was sure that she herself had not consciously relied upon the discussion.... The trial judge, having the right to accept or reject any part of her testimony, obviously accepted Richardson's statements that she did not know about the other jurors but that the discussion about parole did not influence her. We are unable to say that the trial judge abused his discretion in overruling appellant's motion for a new trial."

In Jones v. State, 596 S.W.2d 134 (Tex.Cr.App.1980), the lone juror who initially voted for a lesser term of years than that ultimately assessed testified that his eventual decision was "not the result of or in any way influenced by ... statements concerning how much time appellant would actually serve in prison." Id. at 137.

Each of these cases which affirmed the judgment of the trial court in the face of a challenge to the jury's misconduct based on Article 40.03(8) held that the defendant failed to show that the misconduct harmed him. That is, in each case the record did not show that the jury's ultimate decision on punishment was affected by its discussion of the parole laws.

Two cases since Heredia have reversed the judgment of the trial court because of jury misconduct under the provisions of Article 40.03(8). In Sweed v. State, 538 S.W.2d 119 (Tex.Cr.App.1976), the jury's discussion of the parole laws was extensive, and at least one of the jurors voted to increase the punishment after receiving information about the laws.

In Sanders v. State, 580 S.W.2d 349, 353 (Tex.Cr.App.1978), the court stated:

"We conclude from this record that the jury misconduct of discussion of the parole law was harmful and denied appellant a fair and impartial trial. The discussion was extensive and adversely affected two jurors' consideration of the probation issue."

These cases, decided under the provisions of Article 40.03(8), have consistently applied the same test for determining whether the trial court reversibly erred in refusing to grant the defendant a new trial. That test is: the defendant must show (1) that any discussion of the parole laws took place during the jury's deliberations (thereby showing jury misconduct), and (2) that the discussion denied him a fair and impartial trial. The latter requirement can be met by showing that even a single juror voted for an increased punishment because of the discussion of the parole laws.

The State argues that we should adopt the "five-prong" test alluded to in Heredia, supra. That test for reversible error would require the defendant to show (1) that a misstatement of the law (2) asserted as a fact was made (3) by someone professing to know the law (4) which was relied upon by other jurors (5) who for...