Quinn v. State

958 S.W.2d 395, 1997 Tex. Crim. App. LEXIS 103, 1997 WL 742331
CourtCourt of Criminal Appeals of Texas
DecidedDecember 3, 1997
Docket1691-96
StatusPublished
Cited by180 cases

This text of 958 S.W.2d 395 (Quinn 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.

Bluebook
Quinn v. State, 958 S.W.2d 395, 1997 Tex. Crim. App. LEXIS 103, 1997 WL 742331 (Tex. 1997).

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

KELLER, Judge,

delivered the opinion of the Court

in which McCORMICK, Presiding Judge, and BAIRD, MANSFIELD, PRICE, HOLLAND and WOMACK, Judges, joined.

Appellant was convicted of aggravated sexual assault of a eliild and indecency with a child. On appeal he contended, among other things, that (1) he should have been granted [397]*397a new trial because a juror discussed his case with a person outside of the trial and (2) he should have been granted a new trial because that juror was biased. The Court of Appeals reversed the conviction on claim (1) on original submission. After the State filed a petition for discretionary review, the Court of Appeals issued a second opinion, which justified reversal of the conviction on claim (2). We will reverse the judgment of the Court of Appeals.

1. Facts

After the State had rested, but before the defense put on evidence during the guilt-innocence stage of the trial, a co-worker paged juror Thomas to determine if the juror could work any overtime. During the phone call, the following exchange took place:

[Co-worker]: You can’t get there.
[Thomas]: uh, uh, (no), I got off early [today], last night we went to 7:00 p.m.
[Co-worker]: You are kidding.
[Thomas]: No, it is a nasty mess.
[Co-worker]: What kind of deal is it?
[Thomas]: Hold on just a second. (Caught another line).
[Thomas]: OK, Its a rape of a 5 year old, is that fun or what?
[Co-worker]: I don’t envy you.
[[Image here]]
[Thomas]: ... Hell we stay in the Jury Room all of the time, I never did that before and don’t care to do that again. That is the only case that ... If in fact the guy is guilty, then can you send a bastard like that to the pen to play drop the soap with the Butt Brothers?
[Co-worker]: Yea.
[Thomas]: You know because you can’t kill them and the most you can give them is life or 99 years and that means they are out in 10.
[Co-worker]: Yea or sooner if they get too crowded.
[Thomas]: Yea, but, like I say, he needs to play drop the soap with the Butt Brothers, some of them boys that were rejects from the Houston Oilers.
[Co-worker]: Yea.
[Thomas]: I guess I will pass for the time being till that mess is kind over or drops down or something.

See Quinn v. State, No. 2-95-275-CR, slip op. at 2 (Tex.App.—Fort Worth, July 18, 1996)(unpublished).1 Appellant filed a motion for new trial and alleged, among other things, that this conversation was an improper communication with an outside person about the case and that the communication showed bias rendering Thomas unfit as a juror and denying appellant a fair trial.2

At a hearing on the motion for new trial Juror Thomas testified concerning this conversation. He repeatedly denied that the conversation had any effect on his deliberations, he maintained that he waited until he heard all the evidence before forming opinions as to guilt and punishment, and he denied repeating his conversation with the coworker to any of the other jurors. This testimony included the following:

[Defense counsel]: And Mr. Thomas, did you say to Mr. Wilder, you know, because you can’t kill them, the most you can give them is life or 20 years? Is that the way you felt when you had this conversation with Mr. Wilder on May 17th?
[Thomas]: No, because all the evidence, we hadn’t even heard the Defense at that point.
[[Image here]]
[Defense counsel]: It’s your testimony that you hadn’t formulated any decision on this case until all the evidence was in; is that correct?
[Thomas]: That’s correct.
[[Image here]]
[Prosecutor]: Were you objective in this case?
[Thomas]: Yes, ma'am.
[Prosecutor]: Were you open-minded in this case?
[Thomas]: Yes ma'am.
[398]*398[Prosecutor]: Did you listen to all of the evidence and then decide the verdicts in each phase of the trial?
[Thomas]: Repeat that, please. I’m sorry.
[Prosecutor]: In other words, before reaching your verdict in each phase of the trial, did you wait until you heard all of the evidence and the Court read you the charge and you had listened to our arguments before you reached a decision?
[Thomas]: That’s correct.
[Prosecutor]: Did you foreclose probation in this case?
[Thomas]: No. I mean, not till everything was in.
[Prosecutor]: Not till you had heard all of the evidence—
[Thomas]: Right.
[Prosecutor]:—by both the State and the Defense—
[Thomas]: Correct.
[Prosecutor]:—in the punishment phase? And then based on the facts, you didn’t feel that was an appropriate punishment. [Thomas]: No. [Prosecutor]: Okay, but you did not begin discussing it until after the Court had admonished the jury and charged them and we had both given arguments and you returned to the jury room; is that correct?
[Thomas]: Correct. On Monday.
[[Image here]]
[Prosecutor]: And as you sit here under oath, having made the statements about what child molesters do in prison and what occurs to them in prison, can you tell this Court under oath that you did not foreclose probation?
[Thomas]: That’s correct.
[Prosecutor]: So you still could consider the full range of punishment throughout the trial until you heard all of the evidence?
[Thomas]: That’s correct.
[[Image here]]
[Prosecutor]: Did you ever make any comment to other members of the jury that you had talked about this case with anyone else.
[Thomas]: No.
[Prosecutor]: Did you ever make any comment in the jury room that, well, my Mend thinks that they also ought to go to the penitentiary?
[Thomas]: No.
[Prosecutor]: Did you make any comment in the jury room that, well, my Mend agrees with me, any Mend or any other person, agrees with me that they ought to go to the penitentiary and play the butt game or kick the soap game?
[Thomas]: No.

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Bluebook (online)
958 S.W.2d 395, 1997 Tex. Crim. App. LEXIS 103, 1997 WL 742331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quinn-v-state-texcrimapp-1997.