Kingston v. State

Court of Criminal Appeals of Texas

Kingston v. State

390 S.W.2d 752

CourtCourt of Criminal Appeals of Texas

DecidedApril 28, 1965

DocketNo. 38151

StatusPublished

Cited by3 cases

This text of 390 S.W.2d 752 (Kingston v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Kingston v. State, 390 S.W.2d 752 (Tex. 1965).

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MORRISON, Judge.

The offense is driving while intoxicated as a second offender; the punishment, two years in the Department of Corrections.

[753]*753In view of our disposition of this case a recitation of the facts will be deemed unnecessary. Attached to appellant’s motion for new trial is the affidavit of Juror Patton, who swore that during their deliberations as to the punishment to he assessed, “at least one juror was very strong for giving the defendant one year in the State Penitentiary. * * * We had quite a bit of discussion on the matter and finally I believe all of us on the jury would have agreed that one year and six months would be a suitable verdict. But someone specifically pointed out that the penitentiary punishment could be only in ‘years’ and not in years and months.” Following this, the affidavit recites that in order to resolve this dispute the jury sent a note to the Judge inquiring if they might assess appellant’s punishment at a year and months, but the Court declined to answer the note other than to state “Refer you to the Court’s charge.” Following this, the jury discussed the possibility of their verdict being “thrown out” if they set appellant’s punishment at one year and six months. It was at this time that the juror who felt strongly that one year was the proper punishment changed his vote to two years.

At the hearing on the motion for new trial Juror Patton testified to substantially what was set forth in his affidavit, and the State filed no controverting answer to the motion and upon the hearing called no witnesses to testify.

The proposition stated in the jury room that “penitentiary punishment could be only in years and not in years and months” was clearly a misstatement of the law and at least one juror voted for a greater punishment after the statement was made. Farias v. State, 167 Tex.Cr.R. 546, 322 S.W.2d 281.

In Rogers v. State, 158 Tex.Cr.R. 8, 252 S.W.2d 465, we said:

“Since this testimony as to what occurred in the jury room was not controverted, no issue of fact was raised for the trial court’s determination.

“Under this state of the record, it became the duty of the trial court to grant appellant’s motion for new trial.”

See also Davis v. State, 168 Tex.Cr.R. 399, 328 S.W.2d 315 and Adams v. State, 172 Tex.Cr.R. 130, 354 S.W.2d 147.

The judgment is reversed and the cause remanded.

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MORRISON, Judge.

The offense is driving while intoxicated as a second offender; the punishment, two years in the Department of Corrections.

[753]*753In view of our disposition of this case a recitation of the facts will be deemed unnecessary. Attached to appellant’s motion for new trial is the affidavit of Juror Patton, who swore that during their deliberations as to the punishment to he assessed, “at least one juror was very strong for giving the defendant one year in the State Penitentiary. * * * We had quite a bit of discussion on the matter and finally I believe all of us on the jury would have agreed that one year and six months would be a suitable verdict. But someone specifically pointed out that the penitentiary punishment could be only in ‘years’ and not in years and months.” Following this, the affidavit recites that in order to resolve this dispute the jury sent a note to the Judge inquiring if they might assess appellant’s punishment at a year and months, but the Court declined to answer the note other than to state “Refer you to the Court’s charge.” Following this, the jury discussed the possibility of their verdict being “thrown out” if they set appellant’s punishment at one year and six months. It was at this time that the juror who felt strongly that one year was the proper punishment changed his vote to two years.

At the hearing on the motion for new trial Juror Patton testified to substantially what was set forth in his affidavit, and the State filed no controverting answer to the motion and upon the hearing called no witnesses to testify.

The proposition stated in the jury room that “penitentiary punishment could be only in years and not in years and months” was clearly a misstatement of the law and at least one juror voted for a greater punishment after the statement was made. Farias v. State, 167 Tex.Cr.R. 546, 322 S.W.2d 281.

In Rogers v. State, 158 Tex.Cr.R. 8, 252 S.W.2d 465, we said:

“Since this testimony as to what occurred in the jury room was not controverted, no issue of fact was raised for the trial court’s determination.

“Under this state of the record, it became the duty of the trial court to grant appellant’s motion for new trial.”

See also Davis v. State, 168 Tex.Cr.R. 399, 328 S.W.2d 315 and Adams v. State, 172 Tex.Cr.R. 130, 354 S.W.2d 147.

The judgment is reversed and the cause remanded.

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