Green v. State

754 S.W.2d 687, 1988 Tex. Crim. App. LEXIS 148, 1988 WL 71489

• Court: Court of Criminal Appeals of Texas
• Decided: July 13, 1988
• Docket: 69578
• Status: Published

Opinions

OPINION

DUNCAN, Judge.

The appellant was convicted of capital murder, V.T.C.A. Penal Code, § 19.03(a)(2). The jury then made affirmative findings to the special issues required by Art. 37.-071(b)(1) and (2), V.A.C.C.P., and accordingly punishment was assessed by the trial court at death. Appellant’s cause is now before us on direct appeal pursuant to Art. 4.04, § 2, V.A.C.C.P.

In two related points of error, the appellant contends that the trial court abused its discretion in overruling the appellant’s motion for new trial on the grounds that jurors spoke to an unauthorized person about the case. The appellant urges this Court to reverse the appellant’s conviction and remand the cause for a new trial. In the alternative, the appellant requests a remand of the cause for a hearing on his motion for new trial.

After sentencing, the appellant timely filed and presented to the court a sworn, written motion for new trial to which was attached the affidavit of Denise Green, the appellant’s sister. Rule 31(c)(1) Tex.R.App. Pro. Attached to the motion for new trial was a proposed order setting a date for a hearing on the motion. A written notation on the proposed order indicates that it was presented to the trial judge on October 15, 1985; thereby putting the trial court on notice that the appellant desired a hearing so that he could be afforded the opportunity to present evidence in support of his motion for new trial.

According to the attached affidavit, on September 11, 1985, during a trial recess, Ms. Green allegedly overheard three female jurors discussing the case with the deceased’s mother. The affidavit states:

I went to the women’s restroom on the second floor of the courthouse and was just about to open the door to enter when I heard a discussion from inside, after I had just opened the door a few inches. I recognized the discussion as pertaining to the case so I stopped and listened. I heard three female jurors discussing the fact that they thought my brother was guilty and they also discussed the television and newspaper coverage of the trial. At that point the mother of the deceased, MR. TIM ADAMS, spoke to the jurors and told them the case had not been covered in that morning’s paper but had been on the morning news on television.

The State filed no controverting affidavits. The appellant’s motion was overruled by operation of law¹ without a hearing.

The State argues that since the appellant’s motion was overruled by operation of law and the affidavits were not introduced into evidence there was no evidence to support the appellant’s contentions. The State has apparently confused the burden of proving up jury misconduct with the prerequisites necessary to obtain a hearing on a motion for new trial. This Court has never held that before a hearing is required the affidavits accompanying the motion for new trial must “reflect every component legally required to establish a claim of jury misconduct.” McIntire v. State, 698 S.W.2d 652, 658 (Tex.Cr.App.1985). On the contrary, in McIntire, id., we held:

As a matter of pleading and as a prerequisite to obtaining a hearing, keeping in mind that the purpose of the affidavit requirement is to limit the parameters of the hearing that is sought, we hold that an affidavit is sufficient if it demonstrates that reasonable grounds exist for believing that jury misconduct occurred, ... or a juror conversed with an unauthorized person regarding the case. Id. [emphasis added]

We find that the affidavit submitted in this case is sufficient to show that reasonable grounds exist for believing that jurors “conversed with an unauthorized person regarding the case.” Id. Consequently, the appellant was entitled to a hearing on his motion for new trial with regard to the issue raised in Green’s affidavit.²

Appellant’s appeal is therefore abated and this cause is remanded to the trial court for a hearing on the appellant’s motion for new trial with regard to the incident described in Green’s affidavit.

1 . Art. 40.05(c), V.A.C.C.P., repealed and replaced by Rule 31(e)(3) Tex.R.App.Pro.

2 . The appellant’s motion for new trial was based on several grounds. On appeal, the appellant is complaining only of the incident which Ms. Green describes. Moreover, this was the only allegation within the motion for new trial supported by an affidavit.