Quinn v. State
| Decision Date | 03 December 1997 |
| Docket Number | No. 1691-96,1691-96 |
| Citation | 958 S.W.2d 395 |
| Parties | Michael Dennis QUINN, Appellant, v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
Gary A. Udashen, Dallas, for appellant.
Tim Curry, Crim. Dist. Atty., Charles M. Mallin, David M. Curl, Anne E. Swenson, Asst. Crim. Dist. Attys., Matthew Paul, State's Atty., Austin, for State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of aggravated sexual assault of a child and indecency with a child. On appeal he contended, among other things, that (1) he should have been granted a new trial because a juror discussed his case with a person outside of the trial and (2) he should have been granted a new trial because that juror was biased. The Court of Appeals reversed the conviction on claim (1) on original submission. After the State filed a petition for discretionary review, the Court of Appeals issued a second opinion, which justified reversal of the conviction on claim (2). We will reverse the judgment of the Court of Appeals.
After the State had rested, but before the defense put on evidence during the guilt-innocence stage of the trial, a co-worker paged juror Thomas to determine if the juror could work any overtime. During the phone call, the following exchange took place:
[Co-worker]: You can't get there.
[Thomas]: uh, uh, (no), I got off early [today], last night we went to 7:00 p.m.
[Co-worker]: You are kidding.
[Thomas]: No, it is a nasty mess.
[Co-worker]: What kind of deal is it?
[Thomas]: Hold on just a second. (Caught another line).
[Thomas]: OK, Its a rape of a 5 year old, is that fun or what?
[Co-worker]: I don't envy you.
....
[Thomas]: ... Hell we stay in the Jury Room all of the time, I never did that before and don't care to do that again. That is the only case that ... If in fact the guy is guilty, then can you send a bastard like that to the pen to play drop the soap with the Butt Brothers?
[Co-worker]: Yea.
[Thomas]: You know because you can't kill them and the most you can give them is life or 99 years and that means they are out in 10.
[Co-worker]: Yea or sooner if they get too crowded.
[Thomas]: Yea, but, like I say, he needs to play drop the soap with the Butt Brothers, some of them boys that were rejects from the Houston Oilers.
[Co-worker]: Yea.
[Thomas]: I guess I will pass for the time being till that mess is kind over or drops down or something.
See Quinn v. State, No. 2-95-275-CR, slip op. at 2 (Tex.App.--Fort Worth, July 18, 1996)(unpublished). 1 Appellant filed a motion for new trial and alleged, among other things, that this conversation was an improper communication with an outside person about the case and that the communication showed bias rendering Thomas unfit as a juror and denying appellant a fair trial. 2
At a hearing on the motion for new trial Juror Thomas testified concerning this conversation. He repeatedly denied that the conversation had any effect on his deliberations, he maintained that he waited until he heard all the evidence before forming opinions as to guilt and punishment, and he denied repeating his conversation with the co-worker to any of the other jurors. This testimony included the following:
[Defense counsel]: And Mr. Thomas, did you say to Mr. Wilder, you know, because you can't kill them, the most you can give them is life or 20 years? Is that the way you felt when you had this conversation with Mr. Wilder on May 17th?
[Thomas]: No, because all the evidence, we hadn't even heard the Defense at that point.
....
[Defense counsel]: It's your testimony that you hadn't formulated any decision on this case until all the evidence was in; is that correct?
[Thomas]: That's correct.
....
[Prosecutor]: Were you objective in this case?
[Thomas]: Yes, ma'am.
[Prosecutor]: Were you open-minded in this case?
[Thomas]: Yes ma'am.
[Prosecutor]: Did you listen to all of the evidence and then decide the verdicts in each phase of the trial?
[Thomas]: Repeat that, please. I'm sorry.
[Prosecutor]: In other words, before reaching your verdict in each phase of the trial, did you wait until you heard all of the evidence and the Court read you the charge and you had listened to our arguments before you reached a decision?
[Thomas]: That's correct.
[Prosecutor]: Did you foreclose probation in this case?
[Thomas]: No. I mean, not till everything was in.
[Prosecutor]: Not till you had heard all of the evidence--
[Thomas]: Right.
[Prosecutor]:--by both the State and the Defense--
[Thomas]: Correct.
[Prosecutor]:--in the punishment phase? And then based on the facts, you didn't feel that was an appropriate punishment.
[Thomas]: No. [Prosecutor]: Okay, but you did not begin discussing it until after the Court had admonished the jury and charged them and we had both given arguments and you returned to the jury room; is that correct?
[Thomas]: Correct. On Monday.
....
[Prosecutor]: And as you sit here under oath, having made the statements about what child molesters do in prison and what occurs to them in prison, can you tell this Court under oath that you did not foreclose probation?
[Thomas]: That's correct.
[Prosecutor]: So you still could consider the full range of punishment throughout the trial until you heard all of the evidence?
[Thomas]: That's correct.
....
[Prosecutor]: Did you ever make any comment to other members of the jury that you had talked about this case with anyone else.
[Thomas]: No.
[Prosecutor]: Did you ever make any comment in the jury room that, well, my friend thinks that they also ought to go to the penitentiary?
[Thomas]: No.
[Prosecutor]: Did you make any comment in the jury room that, well, my friend agrees with me, any friend or any other person, agrees with me that they ought to go to the penitentiary and play the butt game or kick the soap game?
[Thomas]: No.
[Prosecutor]: And was there any statement on the part of [the co-worker] that influenced your beliefs regarding this Defendant?
[Thomas]: No.
[Prosecutor]: Was there any statement that he made that affected your decision, either in guilt-innocence or punishment, regarding this Defendant?
[Thomas]: No.
....
[Prosecutor]: And Mr. Thomas, you did not bring any outside comments or evidence into that jury room with you, did you?
[Thomas]: No.
[Prosecutor]: And your decision was based on only the evidence that you heard in this courtroom; is that correct?
[Thomas]: That's correct.
[Prosecutor]: In both phases of trial?
[Thomas]: That's correct.
....
[Defense counsel]: When you use the words, sir, "he needs to," does not that indicate that you formulated an opinion?
[Thomas]: That's correct. I had not formulated an opinion.
[Defense counsel]: You had not or had?
[Thomas]: Had not.
[Defense counsel]: The word, "he needs to," says he had not, in your opinion? You hadn't formed an opinion?
[Thomas]: I believe when I made that statement, I prefaced it with "if he is guilty."
[Defense counsel]: That was made a little earlier, sir. "Yeah, or sooner if they get too crowded," and you respond what we've asked: ?
[Thomas]: All that was based on the fact that in my opinion, I had not received the information from the trial to decide if the Defendant was guilty or not.
....
[Court]: Did you afford this Defendant, Mr. Michael Quinn, the presumption of innocence?
[Thomas]: Oh, yes, sir.
[Court]: Did you fully and fairly listen to all his testimony presented in his defense with an open mind?
[Thomas]: Yes, sir.
[Court]: Did you listen to all the other information and evidence presented by counsel for the Defense and other witnesses on Mr. Quinn's behalf with an open mind?
[Thomas]: Yes, sir.
[Court]: I take it you listened to the State's information with an open mind?
[Thomas]: Listened to all information.
[Court]: Did you make a decision on what the verdict should be prior to going back in the jury room when you were sent back there by the Judge with the other jurors with the Court's charge with he instruction to reach a verdict and select a Presiding Juror? Did you make a decision in this case before you were sent back there with those instructions?
[Thomas]: No.
[Court]: You indicated that prior to assessing punishment, hearing the rest of the testimony, you had an open mind to probation; is that correct?
[Thomas]: Yes, sir.
....
[Defense counsel]: It's your testimony then, Mr. Thomas, that after what the Court's asked you, that you had an open mind and did not have your mind made up on this matter, even after your conversation with [the co-worker] May the 17th about 6:42 p.m.?
[Thomas]: I had made no decision on the case at that time.
....
[Court]: Is there anything about the conversation you had with [the co-worker] on May the 17th of 1995 which had any influence or impact, however slight, on your deliberations as a juror in this case?
[Thomas]: No, sir. None.
(Bracketed material substituted for original; ellipses inserted).
After Thomas' testimony, the State called the other eleven jurors. Every juror denied hearing Thomas make any reference to a conversation with a person outside the jury. The parties asked the jurors about various terms found in Thomas' conversation with his co-worker, including "drop the soap," "Butt Brothers," and "Houston Oilers" references. Every juror was not asked about every term, but with two exceptions, whenever questioned about such terms, the jurors testified that they had not heard the terms in question. Two jurors recalled the term "drop the soap." One juror could not be sure that anyone on the jury had used that term; the other juror, who was the presiding juror, remembered the term being mentioned in the jury room. Neither juror could recall whether...
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