Castaneda v. State

340 S.W.2d 489, 170 Tex. Crim. 323, 1960 Tex. Crim. App. LEXIS 2200

• Court: Court of Criminal Appeals of Texas
• Decided: November 9, 1960
• Docket: 32007
• Status: Published

Opinions

WOODLEY, Judge,

Concurring.

I concur in the opinion prepared by Commissioner Belcher, but would add the following.

If the question were before us, the facts do not show that the trial judge abused his discretion, but show that he resolved a disputed fact issue and found no jury misconduct.

Appellant’s motion alleged that a new trial should be granted : “Because of the misconduct of the jury in failing to follow the instructions of the court in its charge and in giving purported law by the foreman of said jury to the rest of the jury and leading them into channels of error in conflict with the laws of the State of Texas, the charge of the court and in violation of the fundamental rights of the defendants, including both statutory and constitutional law. See affidavit hereto attached, marked Exhibit A, and made a part of this motion * * * .”

Exhibit A is the affidavit of Mrs. Crain, one of the jurors, in which she averred “The foreman of the jury made the statement that the judge had the right and power to suspend the sentence. We of the jury panel believed him and therefore voted for a conviction in this case. I believe he should have a new trial herein because of the misleading statement of the foreman as herein set out.”

The evidence heard on the motion for new trial was to the effect that a question arose in the jury room which resulted in an inquiry to the trial judge as to whether, if a sentence was given, the judge could reduce that sentence to a shorter term or a suspended sentence.

The court informed the jury in writing that he could not answer the question at the time and instructed the jurors to follow the charge.

There was ample evidence that all of the jurors understood that the court referred them back to the charge, and there was no further discussion on the question of the court’s authority to suspend sentence after the note was sent to the judge.

Foreman Cooper testified that no one ever made a positive statement that he knew one way or the other. It was just a question.

The trial judge was warranted in concluding from this evidence that the jury foreman did not give “purported” law to the jury and lead them into channels of error in conflict with the law and the court’s charge, as claimed by appellant in his motion for new trial.