Moses, Shannon Eugene v. State

• Court: Court of Appeals of Texas
• Decided: January 20, 2004
• Docket: 14-99-00377-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed January 20, 2004

Affirmed and Memorandum Opinion filed January 20, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-99-00377-CR

SHANNON EUGENE MOSES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 785,631

M E M O R A N D U M   O P I N I O N

The jury found appellant guilty of bribery and the trial court assessed punishment at five years= confinement, probated for a period of five years, and an $800.00 fine.  In an unpublished opinion, this court sustained appellant=s first point of error and reversed the judgment of the trial court.  Upon discretionary review, the Court of Criminal Appeals reversed our decision and remanded for consideration of appellant=s remaining points of error.  On remand, we consider appellant=s remaining two points of error: (1) whether the trial court abused its discretion in denying appellant=s motion for a mistrial after the jury indicated it was deadlocked; and (2) whether the trial court abused its discretion in denying appellant=s motion for new trial based on newly discovered evidence.  We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

On May 12, 1998, appellant allegedly attempted to bribe a Harris County deputy constable in order to receive preferential treatment as a wrecker driver.^[1]  Later that month, appellant=s wife complained to a lieutenant that another wrecker driver had received preferential treatment, but she did not file a formal complaint.  On June 9, 1998, a charge was filed against appellant.  At trial, appellant denied that charge and contended that it had been fabricated in retaliation for his wife=s informal complaint.

During deliberations, the jurors indicated they were deadlocked.  The trial court gave the jurors an Allen charge  and sent them back for further deliberation.  They subsequently found appellant guilty of bribery.

After the trial, one of the jurors contacted the trial judge about a conversation she had overheard.  In the conversation, one of the constables who had testified against appellant reportedly said, A[R]evenge is sweet, isn=t it.@  The juror testified to this statement at a hearing on appellant=s motion for new trial, but the motion was denied.

ANALYSIS

I.        Jury deadlock.

In his first remaining point of error, appellant contends the trial court abused its discretion in denying his motion for a mistrial after the jurors indicated they were deadlocked.  The trial court instead gave them an Allen charge and ordered them to deliberate further.

A trial court may in its discretion discharge a jury Awhere it has been kept together for such time as to render it altogether improbable that it can agree.@  Tex. Code Crim. Proc.  art. 36.31.  The length of time a jury may be held for deliberations rests within the discretion of the trial court.  Montoya v. State, 810 S.W.2d 160, 166 (Tex. Crim. App. 1989).  AThe trial court is not bound to declare mistrial at the first sign of jury impasse.@  Howard v. State, 941 S.W.2d 102, 121 (Tex. Crim. App. 1996).

The testimony in this case spanned three days and lasted at least four and one-half hours.^[2]  The jury had deliberated for approximately eight hours and fifteen minutes before indicating that it was deadlocked.^[3]  After the Allen charge was given, the jury deliberated approximately another hour and fifteen minutes before reaching its verdict.  These times alone do not indicate any abuse of discretion by the trial court in ordering the jury to continue deliberations.

The evidence also indicated that further progress by the jury was possible.  Throughout deliberations, the jury made six requests to the trial court regarding disputed testimony.  These requests demonstrate that the jurors were not at a deliberate standstill but were actively considering the relevant evidence.  See Howard, 941 S.W.2d at 122.  The court was within its discretion in determining that the single note indicating deadlock did not render it improbable that the jury could reach a verdict.  See id. at 121; Tex. Code Crim. Proc. art. 36.31.  Appellant=s first remaining point of error is overruled.

II.       Newly discovered evidence.

In his second remaining point of error, appellant contends the trial court abused its discretion in denying his motion for new trial based on newly discovered evidence.  The new evidence consisted of the a juror=s testimony that she had overheard one of the constables who had testified against appellant state, A[R]evenge is sweet, isn=t it.@^[4]

The decision whether to grant a motion for new trial rests within the discretion of the trial court.  Jones v. State, 711 S.W.2d 35, 36 (Tex. Crim. App. 1986).  To obtain a new trial on grounds of newly discovered evidence, a defendant must establish (1) the evidence was unknown to him at the time of trial; (2) his failure to discover the evidence was not due to his lack of due diligence; (3) the evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the evidence is probably true and will probably bring about a different result in a new trial.  Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim. App. 2003).  Motions for new trial based on newly discovered evidence are generally not favored by the courts and are viewed with great caution.  Drew v. State, 743 S.W.2d 207, 225 (Tex. Crim. App. 1987).

The trial court would have been within its discretion in determining that the newly discovered evidence probably would not have brought about a different result.  The juror testified that she did not know the context of the statement or whether it even referred to the case against appellant.  Although she testified that she believed the statement should have been made known to the other jurors, she stated that it did not have any impact on her view of the evidence.  Further, the jury was unanimous in finding against appellant despite the juror=s repetition of the comment to two other jurors.

Appellant contends that his right to confront the witnesses against him was violated, but he was allowed to cross-examine the officer regarding his testimony at trial.^[5]  Although the newly discovered evidence might cast doubt on his testimony, evidence which is merely impeaching will not warrant a new trial.  See Wallace, 106 S.W.3d at 108.  Appellant=s second remaining point of error is overruled.

The judgment of the trial court is affirmed.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed January 20, 2004.

Panel consists of Justices Yates, Hudson, and Fowler.

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]  The facts underlying the bribery charge have been more fully recited in previous opinions.  See Moses v. State, 105 S.W.3d 622, 624B25 (Tex. Crim. App. 2003); Moses v. State, No. 14‑99‑00377‑CR, 2001 WL 931179, at *1B2 (Tex. App.CHouston [14th Dist.] Aug. 16, 2001) (not designated for publication), rev=d, 105 S.W.3d 622 (2003).  The additional facts are not pertinent to the issues involved here.

^[2]  The trial court=s docket omitted the starting times of two instances of testimony, so they are not included in the four and one-half hour calculation.  Based on the length of the transcript of those instances in the record, the actual time of testimony appears to be closer to six and one-half hours.

^[3]  The record is silent as to the exact time the jury indicated it was deadlocked.  The note appears to have been delivered at some point between 1:45 p.m., when the jury returned from lunch, and 4:20 p.m., when the note was file-stamped.  The possible variance of approximately two and one-half hours does not affect our decision.

^[4]  At the hearing on the motion for new trial, the juror testified,

A.         I, we were on a break and I came out of the jury room and I was walking down the hall to use the rest room and just before I approached the rest room, there were three officers sitting on the bench and there was one standing against the wall.

Q.         Now, were they officers connected with the trial of [appellant]?

A.         Yes.  Yes, they were all officers that are involved in this matter.  And I, the officers that were on the bench, one of the officers made the comment, revenge is sweet; isn=t it.

Q.         And who did he make that comment to if you know?

A.         To the other officers.

Q.         All right.  Go ahead.

A.         And as I came through and they realized that I was one of the jurors, the conversation seemed to stop. . . .

^[5]  The record indicates that the officer was a witness during the guilt-innocence phase of the trial, but the identity of the officer is not apparent from the record.  Without knowing the identity of the officer, it is not possible to determine to what extent the officer was actually cross‑examined as to retaliation.