Texas Courts of Appeals
No. 02-11-00473-CR 01/17/13
Should a trial court have granted a motion for new trial where the foreperson received a telephone call during deliberations that his daughter had been diagnosed as seriously sick and reached a guilty verdict only so that he could tend to her?
Yes. The foreperson’s testimony established without dispute that an outside influence caused him to vote differently than he otherwise would have.
No, the telephone call was not an outside influence but “a personal pressure” exerted on the foreperson. Thus, the foreperson’s testimony was inadmissible under TRE 606(b).
“Ladies and gentlemen, you are our jurors in the case. Please turn off your cell phones and other electronic devices and give them to the bailiff.” Is anyone doing that? Maybe you should. This opinion is concerning in several respects. The communication in question was not about the case. Article 36.22, by contrast, prohibits communication with a juror “about the case on trial.” Should we grant new trials because someone yells in the courthouse hallway “Jay Z and Beyoncé broke up!” or “The Rangers won the pennant! The Rangers won the pennant!”? These statements have nothing to do with the case on trial, just as the news the foreman’s daughter was sick had nothing to do with the case on trial. Rather than show jury misconduct, the evidence merely shows how the foreman could have been considered disabled such that an alternate could be seated or the jury proceed with fewer members by the agreement of the parties. This case is also of concern because the record presented the trial judge with two competing versions of events that the judge was required to resolve. During trial, the foreman twice told the judge the verdict was unanimous. During the new trial, the foreman testified that he felt compelled to vote guilty because he learned his daughter was sick. Is it not possible the trial judge chose to disbelieve the foreman’s testimony at the hearing on the motion for new trial? These are interesting questions the Court of Criminal Appeals might visit. Prosecutors should also learn from this opinion what has been called the “futility rule”—we must object each and every time a party offers evidence we believe to be inadmissible if we want to complain about it on appeal. The State may also request a running objection, but the trial court is not required to grant it. Because the prosecutor did not object every time, key testimony that appeared to violate Rule 606(b) leaked through.
No. 08-11-00293-CV 01/16/13
Should the trial court have granted the State’s motion to modify an expunction order—based on its late notice of the expunction order—filed 36 days after the expunction had been granted?
No. The State was not entitled to relief under TRCP 306a(5) because it failed to prove in the trial court on a sworn motion and with notice: both 1) the date it received notice or actual knowledge of the signing; and 2) that this date was more than 20 but less than 91 days after the judgment was signed. The trial court’s plenary power to modify had expired.
Civil procedure rules are often strictly enforced, and the State was the victim here.