Matthews, Eddie

Opinion

PD-0098-15

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

Transmitted 2/23/2015 9:06:16 PM No. PD-0098-15 Accepted 2/26/2015 3:09:56 PM ABEL ACOSTA

CLERK

IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

EDDIE MATHEWS

Petitioner

v.

The State of Texas

Respondent

On Appeal In Case Number 13,992 From the 21 st District Court of Bastrop County The Hon. Terry Flenniken, Presiding Judge Third Court of Appeals No. 03-13-00037-CR

Petition for Discretionary Review Submitted by:

The Law Offices of Ariel Payan 1012 Rio Grande Austin, Texas 78701 Tel. 512/478-3900

February 26, 2015 Fax: 512/472-4102

Ariel Payan

State Bar No. 00794430

Attorney for Petitioner

Oral Argument Requested

Table of Contents

Certificate of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Grounds for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

1) DOES TRAP 21.3 c AND g COVER INSTANCES WHERE A JUROR VOTES GUILTY EVEN THOUGH SHE BELIEVES THE STATE FAILED TO MEET ITS BURDEN OF PROOF, AND HOW DOES TRE 606(b) APPLY, IF AT ALL? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -3-

2) WHEN A JURY MISBEHAVES WHAT COMES FIRST THE CHICKEN, TRE 606(b) OR THE EGG, TRAP 21.3? . . . . . . . . . . . . . . . . . . . -6-

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-

Certificate of Delivery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-

i

Certificate of Parties

Pursuant to Rule 68, Rules of Appellate Procedure (“Tex.R.App.Pro.”), the following

is a complete list of the names and addresses of all parties to the trial court’s final judgment

and their counsel in the trial court, as well as appellate counsel.

Petitioner

Eddie Matthews

TDCJ-ID No. 01832718

Polunsky Unit 3872 FM 350 South Livingston, TX 77351

Appellate Counsel: Trial Counsel: PDR Counsel: Ariel Payan Jorge Sanchez 1012 Rio Grande Mark Sampson Austin, Texas 78701

State of Texas

Bryan Goertz 804 Pecan St. Bastrop, TX 78602

Appellate Counsel: Trial Counsel: Craig W. Cosper Brenda Cantu

State Prosecuting Attorney Mary Yvonne (Von) Bunn Lisa C. McMinn

Judge Terry Flennikan, retired.

ii

Index of Authorities

Federal Cases:

Chambers v. Mississippi, 410 U.S. 284, 294 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-

U.S. v. McCracken, 488 F.2d 406 (Tex. 5 th Cir. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . -6-

Texas Cases:

Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App. 1991) . . . . . . . . . . . . . . . . . . . . . . . -9-

Duncan v. State, 138 Tex.Crim. 172 (Tex.Cr.App. 1940) . . . . . . . . . . . . . . . . . . . . . . . . -5-

Gomez v. State, 991 S.W.2d 870, 871 (Tex.App. Houston [1st Dist.] 1999, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-

Guice v. State, 900 S.W.2d 387 (Tex.App.–Texarkana 1995), (pdr re’fd) . . . . . . . . . . . -9-

Hines v. State, 3 S.W.3d 618, 622 (Tex.App.-Texarkana 1999, pet. ref'd) . . . . . . . . -4-, -8-

Jennings v. State 107 S.W.3d 85 (Tex.App.–San Antonio 2003) . . . . . . . . . . . . . . . . . . -9-

Jennings v. State, 107 S.W.3d 85 (Tex.App. –San Antonio 2003) . . . . . . . . . . . . . . -5-, -6-

Malbrough v. State, 846 S.W.2d 926 (Tex.App.– Houston [1 st] 1993) . . . . . . . . . . . . . . -9-

Menard v. State, 193 S.W.3d 55, 59 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) . . . -4-

Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App. 2000) . . . . . . . . . . . . . . . . . . . . . . . -6-

Quinn v. State, 958 S.W.2d 395 (Tex.Cr.1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -9-

Reyna v. State, 846 S.W.2d 498 (Tex.App. – Corpus Christi 1993) . . . . . . . . . . . . . . . . -9-

Salazar v. State, 38 S.W.3d 141 (Tex.Cr.App. 2001), certiorari denied 534 U.S. 855 . . -9-

iii

Sanders v. State, 1 S.W.3d 885, 887 (Tex.App.-Austin 1999, no pet.) . . . . . . . . . . . . . . -8-

Stuhler v. State, 218 S.W.3d 706, 716 (Tex.Cr.App. 2007) . . . . . . . . . . . . . . . . . . . . . . -11-

Thomas v. State, 352 S.W.3d 95, 102 (Tex.App.Houston [14th Dist.] 2011, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-

Torres v. State, 961 S.W.2d 391, 393 n. 1 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-

Trinidad v. State, 312 S.W.3d 23, 26 & n. 16 (Tex.Cr.App. 2010) . . . . . . . . . . . . . . . . -11-

Texas Constitution:

Tex. Const. art. V, § 139 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-

Texas Statutes / Codes:

T.R.A.P. 21.3 ( c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-, -10-

T.R.A.P. 21.3 (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -6-, -10-

Tex.Code Crim. Proc. Ann. art. 36.29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -10-

Tex.R.App. P. 21.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -4-, -5-, -7--9-

Tex. R. Evid. 606(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -4-, -5-, -6-, -7-, -8-

iv

Statement Regarding Oral Argument

Oral Argument is Requested and would assist the Court in resolving the conflict in the lower courts and in answering any questions the Court has.

Statement of the Case

Pursuant to Tex.R.App.Pro. 68.4(d), the following is a brief general statement of the

case:

Petitioner, Eddie Matthews, was charged by indictment with the offense of continuous sexual abuse of a child, a felony, in Cause No. 13,992 in the 21 st District Court of Bastrop County, Texas. He was convicted in said cause and was sentenced to 50 years incarceration. The Court of Appeals held that there was no outside influence.

Statement of Procedural History Pursuant to Tex.R.App.Pro. 68.1(d), Petitioner would show the following:

The Third Court of Appeals denied Petitioner’s appeal on December 23, 2014.

The Third Court of Appeals has decided an important question of state and federal law that has not been, but should be, settled by this Court. The Third Court of Appeals has misapplied a statute in deciding this case; and,

v

Grounds for Review

Pursuant to Tex.R.App.Pro. 68.4(f), the following are the reasons this petition should be heard

1) DOES TRAP 21.3 c AND g COVER INSTANCES WHERE A JUROR VOTES GUILTY EVEN THOUGH SHE BELIEVES THE STATE FAILED TO MEET ITS BURDEN OF PROOF, AND HOW DOES TRE 606(b) APPLY, IF AT ALL?

2) WHEN A JURY MISBEHAVES WHAT COMES FIRST THE CHICKEN, TRE 606(b) OR THE EGG, TRAP 21.3?

vi

No. PD-0098-15

IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

EDDIE MATHEWS

Petitioner

v.

The State of Texas

Respondent

On Appeal In Case Number 13,992 From the 21 st District Court of Bastrop County The Hon. Terry Flenniken, Presiding Judge Third Court of Appeals No. 03-13-00037-CR

Petition for Discretionary Review TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

COMES NOW, Eddie Matthews, Petitioner in the above styled and numbered cause, by

and through Ariel Payan, his undersigned attorney of record, and respectfully files this

“Petition for Discretionary Review,” filed pursuant to Tex.R.App.Pro. 68.

3

Argument

1) DOES TRAP 21.3 c AND g COVER INSTANCES WHERE A JUROR VOTES GUILTY EVEN THOUGH SHE BELIEVES THE STATE FAILED TO MEET ITS BURDEN OF PROOF, AND HOW DOES TRE 606(b) APPLY, IF AT ALL?

Texas Rule of Appellate Procedure 21.3 states in pertinent part that a new trial must

be granted: (c) “when the verdict has been decided by lot or in any manner other than a fair

expression of the jurors' opinion; and, (g) when the jury has engaged in such misconduct that

the defendant did not receive a fair and impartial trial.” T.R.A.P. 21.3. If a juror has been

coerced, bribed or threatened by someone outside the jury then it is an ‘outside influence’

which will warrant testimony by a juror as to what occurred. See T.R.E. 606(b). When the

coercion, bribery or threat comes from within the jury no such investigation can occur, but

21.3 is still violated. The current state of the law does not allow for evidence to be presented

to effectuate TRAP 21.3c and g. To preserve error caused by juror misconduct, the defendant

must either move for a mistrial or move for a new trial supported by affidavits of a juror or

other person in a position to know the facts alleging misconduct, this is in direct opposition

to the current status of the law. See Menard v. State, 193 S.W.3d 55, 59 (Tex.App.-Houston

[1st Dist.] 2006, pet. ref'd); compare, Hines v. State, 3 S.W.3d 618, 622

(Tex.App.–Texarkana 1999, pet.ref’d).

Here a juror testified that she voted guilty only because of the threats and coercion of

another juror. (R.R. Vol. 7, pg. 18). The Third Court of Appeals held that because no

4

evidence was offered to show an ‘outside influence’ pursuant to TRE 606(b), no competent

evidence was presented for review. The appellate court never mentioned the multiple grounds

raised under TRAP 21.3. The analysis used by the lower court started and ended with the

restrictions contained in TRE 606(b).

This Court as well as some of the lower courts have allowed the admission of juror

testimony to prove a violation of a jury verdict by some manner other than a fair expression

of the jurors’ opinion. In Duncan v. State, 138 Tex.Crim. 172 (Tex.Cr.App. 1940), this

Court held that the “the statute is mandatory and directs that a new trial shall be granted:

‘Where the verdict has been decided by lot, or in any other manner than by a fair expression

of opinion by the jurors.’” In that case the Court reviewed the testimony of jurors in the trial

to determine that an improper method of sentencing had been used by the jurors, requiring

a reversal. The information, which is the basis of the Court’s decision, originated from

testimony provided by jurors in the case. The language of the statute in place during the

Duncan decision is virtually identical to the language contained in TRAP 21.3 c.

In Jennings v. State, 107 S.W.3d 85 (Tex.App. –San Antonio 2003), the court of

appeals held that it was reversible error for a jury to vote guilty when she believed that the

state failed to prove their case. The defendant in that case filed a motion for new trial, with

a supporting affidavit from a juror, wherein the juror stated that she changed her vote to guilty

even though she did not believe the defendant was guilty because the jury had made an

agreement. The agreement was that they would create two lists, one of factors that supported

5

a guilty verdict and one wherein they listed the reasons against, and then be bound by

whatever list was longer. This agreement denied the defendant a fair expression of the juror’s

opinion as to the weight of the evidence presented by the State, and such was harmful to the

defendant’s constitutional rights. The appellate court reversed and remanded for a new trial.

Jennings, 107 S.W.3d at 90.

A juror’s fair expression of their opinion and individual verdict of whether an

individual is guilty or not guilty is the cornerstone of all criminal trials. See, U.S. v.

McCracken, 488 F.2d 406 (Tex. 5 th Cir. 1974). These cases cited above all deal with what

happens when a jury decides to render a verdict based upon something other than individual

determination of guilt. Because we no longer have a definition of beyond a reasonable doubt,

each juror must decide for themselves what that term means, and the courts must abide by

that determination. Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App. 2000). Allowing a

verdict to stand when a juror specifically has stated that the verdict does not reflect their

opinion is a violation of 21.3, which requires a mandatory reversal. By not allowing the

evidence from the juror to be reviewed the lower court has negated TRAP 21.3 c and g, and

misapplied TRE 606(b).

6

2) WHEN A JURY MISBEHAVES WHAT COMES FIRST THE CHICKEN, TRE 606(b) OR THE EGG, TRAP 21.3?

The chicken, Texas Rule of Evidence 606(b) provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or to the effect of anything on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

Tex.R. Evid. 606(b). The egg, the quintessential beginning, rule of appellate procedure

provide that a defendant must be granted a new trial or a new trial on punishment when

certain conditions are met. Tex.R.App. P. 21.3. Texas Rules of Appellate Procedure, Rule

21.3 provides:

The defendant must be granted a new trial, or a new trial on punishment, for any of the following reasons:

(a) except in a misdemeanor case in which the maximum possible punishment is a fine, when the defendant has been unlawfully tried in absentia or has been denied counsel;

(b) when the court has misdirected the jury about the law or has committed some other material error likely to injure the defendant's rights;

(c) when the verdict has been decided by lot or in any manner other than a fair expression of the jurors' opinion;

(d) when a juror has been bribed to convict or has been guilty of any other corrupt conduct;

7

(e) when a material defense witness has been kept from court by force, threats, or fraud, or when evidence tending to establish the defendant's innocence has been intentionally destroyed or withheld, thus preventing its production at trial;

(f) when, after retiring to deliberate, the jury has received other evidence;

when a juror has talked with anyone about the case; or when a juror became so intoxicated that his or her vote was probably influenced as a result;

(g) when the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial; or

(h) when the verdict is contrary to the law and the evidence.

T.R.A.P. 21.3. Appellate courts have determined that these two provisions do not conflict

with each other as it relates to ‘outside influence’. Rule 606(b) does not purport to redefine

juror misconduct, not does it alter the grounds for obtaining a new trial in criminal cases. See

Sanders v. State, 1 S.W.3d 885, 887 (Tex.App.-Austin 1999, no pet.). Rules 606(b) and

21.3(c) work together to define jury misconduct and how a defendant may prove the existence

of such conduct. Hines v. State, 3 S.W.3d 618, 622 (Tex.App.-Texarkana 1999, pet. ref'd).

Rule 606(b) defines what evidence is admissible in proving evidence of outside influences

improperly brought to bear on a juror, while rule 21.3 lists the permissible areas of whereby

a defendant must get a new trial.

In this analogy the chicken (606(b)), limits the potential of the egg. TRE 606(b) deals

with what evidence is permissible in proving only 21.3 (f), the other seven mandatory areas

of inquiry for a new trial are not contemplated by this rule of evidence.

8

There are many forms of jury misconduct recognized by Texas appellate courts. Jurors

commenting upon a defendant’s failure to testify can constitute misconduct under TRAP

21.3. Reyna v. State, 846 S.W.2d 498 (Tex.App. – Corpus Christi 1993). It is improper for

jurors to conduct experiments or demonstrations in jury room after beginning deliberations.

Guice v. State, 900 S.W.2d 387 (Tex.App.–Texarkana 1995), (pdr re’fd). Juror bias

expressed outside of voir dire context may constitute misconduct that will support grant of

new trial. Quinn v. State, 958 S.W.2d 395 (Tex.Cr.1997). Jury misconduct based on juror's

affidavit stating jury determined defendant's guilt by making a list of facts that made him

guilty and a list of facts that made him not guilty and then agreed to be bound to vote in

accordance with the longer of the two lists. Jennings v. State 107 S.W.3d 85 (Tex.App.–San

Antonio 2003). Jury misconduct when after retiring to deliberate, jury received other

evidence. Guice v. State 900 S.W.2d 387 (Tex.App.–Texarkana 1995), petition for

discretionary review refused. Jury's discussion of parole constitutes jury misconduct and

reversible error. Salazar v. State, 38 S.W.3d 141 (Tex.Cr.App. 2001), certiorari denied 534

U.S. 855. Jury misconduct where jury agrees to adopt and be bound by so-called “quotient

verdict,” or “verdict by lot,” defendant is entitled to new trial. Malbrough v. State, 846

S.W.2d 926 (Tex.App.– Houston [1 st] 1993), petition for discretionary review refused.

Boykin requires appellate courts to construe a statute in accordance with the plain meaning

of its literal text unless the language of the statute is ambiguous or the plain meaning leads

to absurd results. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App. 1991). This string of

9

cases show that Texas appellate courts have given meaning to the many of the other

provisions of 21.3 outside of 21.3(f). Most of which are not contemplated in the limits

contained in TRE 606(b).

Rule 21.3(c) requires a trial court to grant a motion for new trial “when the verdict has

been decided by lot or in any manner other than a fair expression of the jurors' opinion.” See,

T.R.A.P. 21.3 ( c). Rule 21.3(g) requires a trial court to grant a motion for new trial “when

the jury has engaged in such misconduct that the defendant did not receive a fair and

impartial trial.” See, T.R.A.P. 21.3 (g). To demonstrate jury misconduct, the defendant

must show that (1) the misconduct occurred and (2) the misconduct resulted in harm to the

movant. Thomas v. State, 352 S.W.3d 95, 102 (Tex.App.Houston [14th Dist.] 2011, pet.

ref'd); Gomez v. State, 991 S.W.2d 870, 871 (Tex.App. Houston [1st Dist.] 1999, pet. ref'd).

At the motion for new trial, juror Lynn Carpenter testified. Carpenter testified that she

was one of the juror’s in Appellant’s case. (R.R. Vol. 7, pg. 15). She stated that the jury

deliberated for ten to twelve hours. (R.R. Vol. 7, pg. 17). Carpenter testified that one of the

jurors had threatened and coerced jurors to change their verdict. (R.R. Vol. 7, pg. 18).

Carpenter stated that she became afraid of a physical altercation in the jury room between two

of the jurors. This confrontation changed the jurors vote. (R.R. Vol. 7, pg. 19). The actions

of this juror caused her to change her vote.

Carpenter also testified that another juror had made representations of being an expert

in the area of Child Protective Services. (R.R. Vol. 7, pg. 21). The jurors were discussing

10

how CPS works, and that no evidence had been introduced that discussed this, or why the

children in this case had not been removed, and this particular juror interjected her beliefs

regarding CPS. The other jurors thanked this juror on clarifying the process and that

information was then used in their decision making process. (R.R. Vol. 7, pg. 21). Carpenter

testified that no one told this particular juror not to discuss it because it was not in evidence.

(R.R. Vol. 7, pg. 22-23). The jurors did discuss the jury charge which required them not to

discuss anything outside of the evidence presented at the trial. This particular juror ignored

the instruction and continued to discuss these issues to the jury as a whole. (R.R. Vol. 7, pg.

24)

Carpenter also stated that she had voted ‘not guilty’ the entire time, because she did not

believe the state had met its burden of proof. (R.R. Vol. 7, pg. 25). Carpenter testified that

she changed her vote only because of the ‘overwhelming’ pressure she felt from the

confrontational juror to change her vote. The other jurors kept telling her that they wanted

to go home and this also caused undue pressure on her to change her vote. (R.R. Vol. 7, pg.

25). The Texas Constitution requires that a jury verdict in a felony case be unanimous, and

under state statutes, unanimity is required in all criminal cases. Tex. Const. art. V, § 139;

Tex.Code Crim. Proc. Ann. art. 36.29; Stuhler v. State, 218 S.W.3d 706, 716 (Tex.Cr.App.

2007). From its inception in 1876, article V, section 13, has required that “petit juries in the

District Court shall be composed of twelve” members. Trinidad v. State, 312 S.W.3d 23, 26

& n. 16 (Tex.Cr.App. 2010) (citing Tex. Const. art. V, § 13). The coercion and misconduct

11

in the jury room denied Appellant’s right to a unanimous jury verdict. Finally, Carpenter

testified that one of the jurors discussed the appellate process during deliberations. (R.R. Vol.

7, pg. 28).

In addition, the affidavit of another juror Lance Etzel was reviewed by the trial judge.

Etzel’s affidavit supported the testimony of Ms. Carpenter. Etzel affirmed that one of the

female jurors was “quite abusive, domineering and overpowering.” Etzel, a Bastrop County

Sheriff, had to step in and ask her to step away from one of the other female jurors whom she

was physically intimidating. C.R. pg. 273. Etzel also spoke about the other juror who was

making representations of being an ‘expert’ in CPS matters. Etzel stated that the entire jury

relied upon her assertions and in the end this information helped sway the jury and “This

information ultimately affected the final verdict.” C.R. pg. 274. Etzel also stated that had

it not been for these jurors he would not have changed his verdict to guilty, and he would

have remained a not guilty vote. Due process includes the right to a fair opportunity to defend

against the State's accusations, including presenting, confronting, and cross-examining

witnesses. See Chambers v. Mississippi, 410 U.S. 284, 294 (1973). The evidence presented

inside the jury room violated Appellant’s due process rights, because it denied him the

opportunity to confront, cross and test the statements of the juror. The testimony of both

jurors was uncontroverted at the hearing.

There was in essence, four forms of misconduct by two different jurors which led to

a denial of the fair expression of the jurors' opinion and which led to Appellant not receiving

12

a fair and impartial trial. The first was the coercive, abusive, and intimidating actions of a

juror which forced at least one juror to change her verdict and nullify that jurors opinion of

the evidence and her decision that the State failed to meet its burden of proof. Even in

situations where a jury is deadlocked, and the trial court gives an Allen charge in an attempt

to reach a verdict, the jury is still specifically instructed not to ‘coerce’ another juror. See

Torres v. State, 961 S.W.2d 391, 393 n. 1 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd).

The second, was the actions of another juror in professing to be an expert and ‘testifying’ to

the other jurors about issues that were not brought up from the witness stand. This not only

violated Appellant’s rights to due process and equal protection but also to the right of

confrontation and cross examination of information considered by the jury during

deliberations. The third area, was the jurors failure to follow the jury instructions provided

to them. The jurors were specifically instructed not to discuss information not provided to

them from the witness stand, and this juror ignored the instruction and discussed the CPS

issues, which the jury ended up accepting as accurate and using in their deliberations. The

final area was the discussion of the appellate process, like erroneous discussions of parole

law, such issues are not proper fodder for deliberations. The Third Court of Appeals did not

review any of these issues.

All of these individual acts of misconduct separately and in combination led to a denial

of Appellant’s Constitutional rights. Appellant did not receive a fair and impartial trial due

13

to the actions of these two jurors, and he was harmed by these acts such that his case should

be reversed and remanded back to the trial court for a new trial.

Prayer

WHEREFORE, PREMISES CONSIDERED, EDDIE MATTHEWS, Petitioner in the above styled and numbered cause respectfully prays that this Court grant this Petition for Discretionary Review, set this cause for oral argument so that this Court may grant any and all relief to which Petitioner is entitled.

Respectfully submitted,

ARIEL PAYAN Attorney at Law 1012 Rio Grande Austin, Texas 78701 Tel. 512/478-3900 Fax: 512/472-4102

by: /s/ Ariel Payan Ariel Payan State Bar No. 00794430

Attorney for Petitioner

Certificate of Delivery

This is to certify that a true and correct copy of the above and foregoing “Petition for Discretionary Review” was hand-delivered, mailed postage pre-paid or transmitted via telecopier (fax) to the office of the District Attorney of Bastrop County, Texas, Attorney General’s Office, and to the State Prosecuting Attorney’s Office.

14

/s/ Ariel Payan

Ariel Payan

Certificate of Compliance

I hereby certify pursuant to T.R.A.P. 9.4(i)(3), the word count for this document, as determined by the word processing program is 2871 .

/s/ Ariel Payan

Ariel Payan

APPENDIX

Matthews v. State, Not Reported in S.W.3d (2014)

Before Chief Justice Jones, Justices 2014 WL 7466653 Pemberton and Rose Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS. MEMORANDUM OPINION

MEMORANDUM OPINION DO NOT PUBLISH Court of Appeals of Texas, Austin. J. Woodfin Jones, Chief Justice

*1 A jury found appellant Eddie Eddie Matthews, Appellant Matthews guilty of continuous sexual v. abuse of a young child for sexually The State of Texas, Appellee abusing his eight-year-old NO. 03–13–00037–CR | Filed: stepdaughter. See Tex. Penal Code § December 23, 2014 21.02(b), (c)(4). The trial court assessed appellant's punishment at confinement for 50 years in the Texas Department of Criminal Justice. See id. § 21.02(h). In two points of error on FROM THE DISTRICT COURT appeal, appellant complains about the OF BASTROP COUNTY, 21ST denial of his motion for new trial and JUDICIAL DISTRICT, NO. 13992, asserts that the evidence is insufficient THE HONORABLE TERRY L. to support his conviction. Because the FLENNIKEN, JUDGE PRESIDING parties are familiar with the facts of the case, its procedural history, and the Attorneys and Law Firms evidence adduced at trial, we do not recite them in this opinion except as Craig W. Cosper, Assistant Attorney necessary to advise the parties of the General, Austin, TX, for State. Court's decision and the basic reasons for it. See Tex.R.App. P. 47.1, 47.4.

Ariel Payan, The Law Offices of Ariel We affirm the trial court's judgment of Payan, Austin, TX, for Appellant. conviction.

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under the belief that [they] could not leave until a verdict either way was reached,” and they were tired and DISCUSSION wanted to leave. L.E. concluded his affidavit by averring that but for “these issues” “happening during the deliberations,” appellant would not Motion for New Trial have been found guilty.

Appellant filed a motion for new trial alleging juror misconduct.1 Attached to From the start, the State opposed the motion was the affidavit of juror appellant's motion for new trial. The L.E. In his affidavit, L.E. expressed State filed a Motion to Strike Juror “concern about several of the problems Affidavit and Deny Defendant's Motion that [he] witnessed during jury for New Trial, which asserted that deliberations.” He first described a L.E.'s affidavit did not raise claims of female juror who was “quite abusive, an outside influence and thus his domineering and overpowering,” and affidavit was impermissible jury he opined that she intimidated jurors testimony and should not be considered into changing their votes. L.E. also by the trial court. At the hearing on the recalled that another juror “shared her motion for new trial, appellant asked opinions continually” about “how CPS the court to take judicial notice of worked” based on knowledge she L.E.'s affidavit and called another apparently obtained through her juror, L.C., as his sole witness. Once employment at a juvenile facility. He again, the State opposed the motion, stated that “the entire jury including arguing that there was no legal basis [L.E.] ultimately relied and swayed in for a hearing because the evidence the direction of guilty based on her appellant sought to offer was not information,” viewing it as information evidence of an outside influence but “coming from an ‘expert.’ ” L.E. also only of what transpired during jury claimed that the jury “obviously deliberations and was thus prohibited misconstrued” the judge's instruction to by Rule 606(b) of the Texas Rules of keep deliberating after the jurors Evidence. The trial court impliedly informed the court that they were overruled the State's objection by deadlocked. He opined that the court's permitting the hearing to proceed, instruction, in connection with the “noting” L.E.'s affidavit, and allowing lengthy deliberations, “put increased L.C. to testify. pressure on jurors” because they “were

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Matthews v. State, Not Reported in S.W.3d (2014)

*2 In her testimony, L.C. described an evidence presented by appellant simply incident in which a juror who was “so demonstrated “buyer's remorse,” and overbearing,” “upset,” and “loud” reasserted that none of the evidence physically confronted another juror related to an improper outside who disagreed with her. L.C. indicated influence and w as, therefore, that the confrontation “definitely” inadmissible juror testimony. See changed the second juror's vote. L.C. Colyer v. State, 428 S.W.3d 117, 124 also testified about another juror who (Tex.Crim.App.2014) ( “The most worked with juveniles in some capacity common, but disallowed, means to who brought up information about impeach the jury's verdict is the “how CPS works.” She said that other ‘disgruntled juror.’ ”). The trial court jurors expressed appreciation about this denied the motion for new trial without juror's clarification of the CPS process comment. In his first point of error, and relied on “her expertise” to help appellant argues that the trial court them “determine what they needed to.” abused its discretion in denying his L.C. also indicated that at some point motion. “the appellate process” was referenced during deliberations. Finally, L.C. testified that she was the hold-out We review a trial court's denial of a juror, the last to change her vote from motion for new trial for an abuse of “not guilty” to “guilty,” and said that discretion. Colyer, 428 S.W.3d at 122; she changed her vote (even though she Salazar v. State, 38 S.W.3d 141, 148 believed appellant was not guilty) (Tex.Crim.App.2001). In conducting because the pressure she felt was our review, we may not substitute our “overwhelming to [her]” and “they judgment for that of the trial court; were all waiting for me.” On rather, we decide only whether the trial cross-examination, L.C. conceded that court's decision was arbitrary or she did ultimately vote to find appellant unreasonable. Colyer, 428 S.W.3d at guilty and that she sat silent when the 122; Holden v. State, 201 S.W.3d 761, verdict was announced in open court, 763 (Tex.Crim.App.2006). A trial not contradicting it. court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could The State objected to the content of support the trial court's ruling. Colyer, L.C.'s testimony multiple times 428 S.W.3d at 122; Holden, 201 throughout her testimony based on S.W.3d at 763. Rule of Evidence 606(b). After L.C. testified, the State maintained that the

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A motion for new trial alleging jury described in the affidavit and testimony misconduct must be supported by the emanated from inside the jury. “[A]n affidavit of a juror or other person who ‘outside influence’ is ‘something is in a position to know the facts. Trout originating from a source outside of the v. State, 702 S.W.2d 618, 620 jury room and other than from the (Tex.Crim.App.1985); see Castillo v. jurors themselves.’ ” Colyer, 428 State, 3 1 9 S.W .3 d 966, 970 S.W.3d at 125 (quoting McQuarrie, (Tex.App.–Austin 2010, pet. ref'd). 380 S.W.3d at 154). The Under Rule of Evidence 606(b), outside-influence exception does not however, a juror may only testify include influences such as coercion by r e g a r d i n g o u t s i d e i n f lu e n c e s a fellow juror or the discussion of a improperly brought to bear upon a juror's own personal knowledge. Id. juror or to rebut a claim the juror was The affidavit and testimony offered by not qualified to serve. Tex.R. Evid. appellant relate exclusively to events 606(b). A juror may not testify about and conversations that took place in the matters occurring during juror jury room and among the jurors deliberations, or to the effect of themselves, to how individual jurors anything on any juror's mind, felt “pressured” or believed other jurors emotions, or mental processes. Id.; felt pressured, and to the jurors' McQuarrie v. State, 380 S.W.3d 145, personal understanding (or 154 (Tex.Crim.App.2012). “Thus, a misunderstanding) of the deliberations juror is not permitted to testify about process and the court's instructions. any events or statements occurring They do not allege the exertion of any during jury deliberations, any of the “outside influence” as interpreted by jurors' mental processes, or how an the Texas Court of Criminal Appeals. improper outside influence actually Consequently, L.E.'s affidavit and affected the jurors.” 2 Colyer, 428 L.C.'s testimony were inadmissible S.W.3d at 123 (emphasis added). under Rule 606(b). See Tex.R. Evid.

606(b) (“Nor may a juror's affidavit or any statement by a juror concerning *3 Here, L.E.'s affidavit and L.C.'s any matter about which the juror would testimony at the hearing were be precluded from testifying be composed solely of impermissible juror admitted in evidence for any of these testimony. Neither the affidavit nor the purposes.”); Colyer, 428 S.W.3d at in-court testimony established the 125 (“Except for (1) an ‘outside requisite outside influence to support a influence’ as defined in McQuarrie claim of juror misconduct. All of the that is (2) ‘improperly brought to bear’ events, statements, and processes upon a juror, Rule 606(b) continues to

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prohibit juror testimony to impeach a 319; Rabb, 434 S.W.3d at 615; Brooks verdict.”). v. State, 323 S.W.3d 893, 899 (Tex.Crim.App.2010). We review all the evidence in the light most favorable Because appellant did not offer any to the verdict and assume that the trier competent evidence in support of his of fact resolved conflicts in the argument that juror misconduct testimony, weighed the evidence, and occurred, we cannot say that the trial drew reasonable inferences in a manner court's decision to deny the motion for that supports the verdict. Jackson, 443 new trial was arbitrary or unreasonable. U.S. at 318; see Laster v. State, 275 Accordingly, we overrule appellant's S . W . 3 d 5 1 2 , 5 1 7 first point of error. (Tex.Crim.App.2009). We consider only whether the jury reached a rational decision. Isassi v. State, 330 S.W.3d 633, 638 (Tex.Crim.App.2010) (“Our Sufficiency of the Evidence role on appeal is restricted to guarding against the rare occurrence when a In his second point of error, appellant factfinder does not act rationally.” challenges the sufficiency of the (quoting Laster, 275 S.W.3d at 518)). evidence to support his conviction for continuous sexual abuse of a young child. As exclusive judge of the facts, the jury is entitled to weigh and resolve conflicts in the evidence and draw Due process requires that the State reasonable inferences prove, beyond a reasonable doubt, therefrom.Clayton v. State, 235 every element of the crime charged. S . W . 3 d 7 7 2 , 7 7 8 Jackson v. Virginia, 443 U.S. 307, 313 (Tex.Crim.App.2007); see Tex.Code (1979); Rabb v. State, 434 S.W.3d Crim. Proc. arts. 36.13, 38.04. The jury 613, 616 (Tex.Crim.App.2014). When is also free to accept or reject any or all reviewing the sufficiency of the of the evidence presented by either evidence to support a conviction, we side. See Lancon v. State, 253 S.W.3d consider all of the evidence in the light 699, 707 (Tex.Crim.App.2008); most favorable to the verdict to Wesbrook v. State, 29 S.W.3d 103, 111 determine whether any rational trier of (Tex.Crim.App.2000). Thus, when the fact could have found the essential record supports conflicting inferences, elements of the offense beyond a we must presume that the trier of fact reasonable doubt. Jackson, 443 U.S. at resolved any such conflicts in favor of

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the verdict and defer to that resolution. Jackson, 443 U.S. at 326; Anderson v. State, 4 1 6 S.W .3 d 8 8 4 , 888 • causes the anus of a child to contact (Tex.Crim.App.2013). the mouth, anus, or sexual organ of another person, including the actor;

A person commits the offense of continuous sexual abuse of a young • causes the mouth of a child to child if (1) during a period that is 30 or contact the anus or sexual organ of more days in duration, the person another person, including the actor; commits two or more acts of sexual abuse; and (2) at the time of the commission of each of the acts of • and the child is under 14 years of sexual abuse, the actor is 17 years of age. age or older and the victim is a child younger than 14 years of age. Tex. Penal Code § 21.02(b). An “act of Id. § 22.021(a)(1)(B)(i)-(v), (2)(B). In sexual abuse” is an act that violates one this case, the indictment alleged that on or more specified penal laws, including more than one occasion during a period section 22.021, entitled “Aggravated of 30 days or more between January 6, Sexual Assault.” Id. § 21.02(c)(4). A 2009 and January 31, 2010, appellant person commits the offense of intentionally or knowingly (1) aggravated sexual assault if the person penetrated J.W.'s sexual organ with his intentionally or knowingly penis, (2) caused J.W.'s sexual organ to contact his penis, (3) penetrated J.W.'s *4 • causes the penetration of the mouth with his penis, and (4) caused anus or sexual organ of a child by J.W.'s sexual organ to contact his any means; mouth. The indictment also alleged that during these acts appellant was 17 • causes the penetration of the mouth years of age or older and J.W. was a of a child by the sexual organ of the child younger than 14 years of age. actor;

• causes the sexual organ of a child to J.W. was 11 years old at the time of contact or penetrate the mouth, anus, trial. She testif ied that or sexual organ of another person, appellant—whom she called “Daddy” including the actor; because he married her mother when

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Matthews v. State, Not Reported in S.W.3d (2014)

she was very young and was the only J.W. was under 17 years of age at the father she knew—“raped [her]” when time of the incidents, her testimony she was eight. She explained that alone is sufficient to support appellant's appellant would wake her up at night conviction for continuous sexual abuse when she was asleep in her room and of a young child. See Tex.Code Crim. “put his private in [her] privates,” Proc. art. 38.07(a), (b)(1); Martinez v. which hurt. She clarified that by his State, No. 10–14–00035–CR, 2014 “private” she was referring to WL 5094104, at *3 (Tex.App.–Waco appellant's penis and her “private” was Oct. 9, 2014, pet. filed) (mem. op., not her vagina. When asked how many designated for publication) (“The times this happened, J.W. said, “A lot.” testimony of a child victim alone is She said that when appellant would do sufficient to support a conviction for this, he “would get stuff on her” that continuous sexual abuse of a child.”); came from his private that she had to see also Williams v. State, 305 S.W.3d wash off. J.W. also testified that 886, 890 n.7 (Tex.App.–Texarkana appellant “put his private in [her] 2010, no pet.) (finding evidence to be mouth,” which made her feel legally sufficient to support finding that “uncomfortable,” and asked her “to two or more acts of sexual abuse suck” it. She said that appellant occurred over span of 30 days or more showed her “nasty pictures” of “other when child said she was abused “more people's privates” (privates touching than once,” and noting that child privates) on his phone.3 J.W. testified victim's inability to articulate exact that on one of the occasions when dates of abuse is precisely situation appellant put his private in her private, legislature considered when it enacted her mother walked into her room and section 21.02 of Texas Penal Code). saw them. She said that after that, However, other evidence at trial appellant stopped “for a long time” but combined with J.W.'s testimony to started again after her birthday on support the jury's verdict of guilt. January 6th. Thus, J.W. described multiple instances in which appellant committed acts of sexual abuse as *5 J.W. told the sexual assault nurse alleged in the indictment. See Tex. examiner (SANE) who examined her Penal Code §§ 21.02(b); that appellant had “touched [J.W.] in a 22.021(a)(1)(B). She provided specific place where [she's] not supposed to be facts and sensory details when touched.” The nurse testified that J.W. testifying about what happened, where explained that appellant put his private it happened, and (in general terms) inside her privates more than once. The when it happened. Arguably, because nurse also testified that J.W. described

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appellant ejaculating, and told her that and that the last time was in January appellant showed her pictures on his 2010. phone.

J.W.'s mother, J.S., also testified at The forensic interviewer from the trial. She described the occasion when children's advocacy center testified as she walked into J.W.'s room one the outcry witness. See Tex.Code morning and saw appellant with her Crim. Proc. art. 38.072. She said that daughter. She testified that her J.W. was “very, very emotional” as she daughter was lying on her bed wearing described appellant “touching her in only her pajama top with her legs bent the wrong places.” The interviewer over the side of the mattress (but her testified that J.W. identified private feet did not reach the ground because places on a body drawing, and said that she was not tall enough). Appellant when she was eight appellant put his was standing naked between J.W.'s private (which he called his “dick”) in legs with his underwear down around her privates (which appellant called her his ankles. J.S. said that appellant “had “pussy”). J.W. told the interviewer that his hand holding his penis and it was this happened “a lot of times.” She erected [sic] and he was rubbing it up disclosed that appellant asked her to and down in between her—her—her “rub his balls” while he put his private privates.” She testified that this in her private, and talked about incident happened on October 14, 2009 appellant “using his tongue on her and that J.W. was eight years old. J.S. pussy.” She also told the forensic also said that when she caught interviewer that her mother saw it appellant in this compromising position happen one morning. In addition, with her daughter, he pulled up his during the interview J.W. gave a underwear and left the room. As he demonstration of appellant's hand passed her, he threw his hands up in actions on his private when he was the air and said, “You caught me. And putting it in her privates, mimicking I'm glad you caught me, and it's over appellant masturbating. J.W. also with.” According to J.S., during the reported that appellant had shown her conversation that followed, appellant pictures on his phone “of adult men admitted that he began sexually and women where she could see their abusing J.W. in January 2009. He privates.” The interviewer testified that admitted to her that “he had put it in J.W. said that the abuse stopped for her mouth and that he had ejaculated five weeks but then started back up, on her and that he had just rubbed it on her.”

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noted previously, the jury, as exclusive judge of the facts, was free to reject Although J.W. was not able to provide any or all of the evidence presented by exact dates during her testimony of the defense. See Lancon, 253 S.W.3d when appellant put his private in her at 707; Wesbrook, 29 S.W.3d at 111; privates or when appellant put his see also Tex.Code Crim. Proc. arts. private in her mouth, based on her 36.13, 38.04. When the record mother's testimony about the date she supports conflicting inferences, as it discovered appellant with her daughter does here, we must presume that the (October 14, 2009) and J.W.'s trier of fact resolved any such conflicts testimony at trial (and statements to the in favor of the verdict and defer to that forensic interviewer) that the abuse resolution. See Jackson, 443 U.S. at stopped after the incident her mother 326; Anderson, 416 S.W.3d at 888. witnessed but resumed after her Accordingly, we presume that the jury birthday (January 6, 2010), the jury rejected appellant's manipulation could have reasonably concluded that defense. appellant perpetrated two or more acts of sexual abuse against J.W. over a span of 30 days or more. Viewing the Also in his brief, appellant suggests evidence summarized above in the light that the evidence is insufficient to most favorable to the jury's verdict, we support his conviction for sexually conclude that a rational trier of fact abusing J.W. because the record could have found the essential elements demonstrates that “the state had failed of this offense beyond a reasonable to meet its burden of proof as to at least doubt. two jurors at trial,” referring to the affidavit and testimony of two jurors that appellant relied on to prove juror *6 In his brief, appellant reiterates the misconduct as alleged in his motion for defense at trial that J.W. “was new trial. See discussion supra at 2–3. tampered with” by her mother, and Appellant's contention is without merit. cites to evidence at trial concerning The sufficiency of the evidence to possible motives of J.S. for falsely support a conviction is not dependent accusing appellant, including her on, or related to, how individual jurors mental-health issues, her infidelity in feel about their guilty verdict after the her marriage to appellant, and her fact. Evidence is sufficient to support a desire to “hurt” appellant and have conviction when, based on the leverage to maintain custody of their evidence and reasonable inferences children in the divorce.4 However, as therefrom, any rational fact-finder

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could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Anderson, 416 S.W.3d at 888. As we have concluded, based on the evidence presented at trial, a rational trier of fact could have found that appellant committed two or more acts of sexual abuse against his stepdaughter over a span of 30 or more days. Therefore, the evidence is sufficient to support appellant's conviction. We overrule appellant's second point of error.

CONCLUSION

Finding no abuse of discretion in the trial court's denial of appellant's motion for new trial, and finding the evidence sufficient to support his conviction for continuous sexual abuse of a young child, we affirm the trial court's judgment of conviction.

Footnotes

1 In his motion, appellant also asserted that “[t]he verdict [was] contrary to the law and the evidence.” This ground was not raised at the hearing on the motion for new trial or addressed by the trial court. Nor does appellant raise this argument in his complaint about the trial court's denial of his motion for new trial.

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2 Testimony about the existence of an outside influence would be permissible under the rule. See Tex.R. Evid. 606b) (“[A] juror may testify whether any outside influence was improperly brought to bear upon any juror.”). However, testimony about the particular effect such an outside influence had on any particular juror is improper. See Colyer v. State, 428 S.W.3d 117, 129–30 (Tex.Crim.App.2014) (“Courts use the objective ‘reasonable person’ test to decide what effect the particular ‘outside influence’ in a case would have on the hypothetical average juror. We do not allow testimony about the effect had upon [a] particular juror.” (footnotes omitted)).

3 Evidence at trial showed that a computer forensics examination of appellant's cell phone revealed portions of a deleted pornographic video of two adults engaging in sexual intercourse that was on the phone in November 2009. The analyst testified that when paused the video depicts an image that appears on the phone as a picture.

4 The record reflects that in addition to J.W. and her sister, who were not appellant's biological daughters, appellant and J.S. had two sons together.

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