Sneed v. State

670 S.W.2d 262, 1984 Tex. Crim. App. LEXIS 658

• Court: Court of Criminal Appeals of Texas
• Decided: May 23, 1984
• Docket: 008-82
• Status: Published

Opinions

OPINION ON COURTS’ OWN MOTION FOR REHEARING ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted of murder and his punishment was assessed by the jury at ten (10) years’ imprisonment.

On appeal the Amarillo Court of Appeals, 625 S.W.2d 761 (Tex.App. 7th Dist.1981), reversed the conviction on the basis of jury misconduct.¹ We granted the State’s petition for discretionary review to determine the correctness of the holding of the Court of Appeals that the jury discussion of the parole law was so detrimental as to deprive him of a fair and impartial trial in violation of Article 40.03, § 8, V.A.C.C.P.

Appellant’s ground of error was that the trial court erroneously overruled his amended motion for new trial, which was based in part on jury misconduct.

At the hearing on the amended motion for new trial three jurors testified as to the jury deliberations at the penalty stage of the trial² after the court had instructed the jury in its charge “... you will not consider the amount of time a defendant will have to serve under any sentence you may assess .... ”

Juror Rosemary Rock testified that after the first vote, in which she voted for five years’ imprisonment, someone “mentioned or asked if it was true that a prison year was only seven months.” No one answered the question, and the word “parole” as such was never used. No one purported to know what the law really was. Rock related she had common knowledge that inmates are released on parole. While she testified the “discussion” after the first vote influenced her verdict, she later stated that it was her common knowledge that caused her to vote for seven years, then eight and in the fourth vote for ten years.

Juror Alvin O’Quin believed about five votes were taken. He first voted for five years’ imprisonment, and after the first vote someone “brought it up” that the time probably would be cut in half. He confessed he could have raised the matter, but he didn’t know the law, that none of the jurors knew, and no one pretended to know the law. O’Quin guessed it was common knowledge that inmates were released before the full time assessed, but no one knew the exact time. He related there was no extensive discussion, “it was just mentioned.”

When asked about if any possible action by the Board of Pardons and Paroles was discussed, O’Quin replied the jurors had been instructed not to mention that, and he hoped they had followed the instructions. He testified that the “discussion” was “probably” why he raised his vote to ten years.

Juror Denise Carroll recalled six or seven votes. She voted first for probation just to insure discussion on the issue which she knew would be unacceptable. She testified “a bunch of people” raised the parole question three or four times during deliberations though the word “parole” was not used. She stated the discussions consumed some 30 to 45 minutes. Someone stated “out of ten it would be four or five,” that this was just speculation as no one professed to know the law, that the comment was not new to her as she knew inmates were released on parole. She stated, however, the comment caused her to change her mind.

Article 40.03, V.A.C.C.P. (Grounds for New Trial in Felony), provides in part:

“New trials, in cases of felony, shall be granted the defendant for the following causes, and for no other:

ÍÍQJ * * *

“(7) where the jury, after having retired to deliberate upon a case, has received other evidence; or ....

“(8) where, from the misconduct of the jury, the court is of the opinion that the defendant has not received a fair and impartial trial....”

In Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App.1975), the court reviewed many of the earlier cases which dealt with jury discussion of parole laws. The Heredia court found the earlier cases revealed an “inconsistency of standards.” Id. at p. 852. As the court stated:

“Authority may be cited for a standard requiring a showing that (1) a misstatement of the law (2) asserted as a fact (3) which is relied upon by other jurors (5) who for that reason change their vote to a harsher punishment; before reversible error is shown; but likewise authority may be cited which would require only a showing that a statement on the parole law was made and it was either untrue or it was harmful. Much distance lied between these extremes.”

Heredia made clear that cases involving jury discussion of parole laws may be analyzed as either the receipt of other evidence, prohibited by Article 43.03, § 7, V.A. C.C.P., or as jury misconduct, prohibited by Article 40.03, § 8, V.A.C.C.P.

In affirming the conviction, the Heredia court in effect rejected the above stated five-prong test derived from the earlier cases, and found no violations of either §§ 7 or 8 of said Article 43.03.³ It may have been the intention of Heredia to eliminate the inconsistency of standards, but it did not succeed. See Sanders v. State, 580 S.W.2d 349, 357 (Tex.Cr.App.1979) (dissenting opinion), and cases there cited; Munroe v. State, 637 S.W.2d 475 (Tex.Cr.App.1982). This may well be because, as Judge Roberts pointed out in his plurality opinion in Munroe, the Heredia “court did not affirmatively set out the proper standards to be used.”

In discussing the analysis of jury discussion of parole law under §§ 7 and 8 of Article 40.03, Heredia adhered to prior decisions that it is common knowledge that from time to time inmates of the Texas Department of Corrections are released on parole, see Taylor v. State, 420 S.W.2d 601 (Tex.Cr.App.1967), and cases there cited; Austin v. State, 531 S.W.2d 615, 618 (Tex. Cr.App.1975), and added “Consequently, the mere mention of this common knowledge would not constitute the receipt of other evidence, nor would a further discussion of it constitute receiving new evidence any more than discussion of any other matter of common knowledge by the jury.” (Emphasis supplied.)

Heredia also held, however, that discussion of the parole law, although common knowledge, would in every case constitute jury misconduct since the parole law is not for the jury’s consideration,⁴ but observed that not all such misconduct denies a fair and impartial trial.

Thus a mention or discussion of the common knowledge that inmates of the penitentiary are released on parole would not be the receipt of other evidence under said § 7, but would always be jury misconduct under said § 8. Whether the misconduct constitutes reversible error would depend upon the facts of each case.

In view of this seemingly incongruous situation, it is not surprising that most of the cases since Heredia have been decided under § 8 of Article 43.03.

Judge Roberts in Munroe reviewed some of these eases⁵ and concluded the test developed by these cases is now “... the defendant must show (1) that any discussion of the parole laws took place during the jury’s deliberations (thereby showing jury misconduct), and (2) that the discussion denied him a fair and impartial trial. The latter requirement can be met by showing that even a single juror voted for an increased punishment because of the discussion of the parole laws.” (Emphasis in the original.)

Judge Roberts in his plurality opinion also reviewed post-Heredia cases involving § 7 of Article 40.03 and concluded the case law did set forth a clear standard for review when the analysis is under said section. Judge Roberts concluded he would hold in the future that cases dealing with the jury’s discussion of the parole law would be analyzed only as jury misconduct under § 8 rather than under § 7 and overrule all cases to the contrary.⁶ In applying the test developed, Munroe was reversed.

In dissent Judge Dally stated:

“I cannot agree that a single juror’s vote for an increased punishment following any discussion of the parole laws denies a defendant of a fair and impartial trial such as would require the granting of a new trial. This is the rule announced by the majority.”

Judge Dally stated he would re-adopt the five-prong test discussed but rejected in Heredia.

Chief Justice Nye in a concurring opinion in Collins v. State, 647 S.W.2d 719 (Tex. App. 13 Dist.1982), stated:

“Since that decision [Munroe], this Court [Corpus Christi Court of Appeals] has seen with increasing frequency, cases alleging reversible error as the result of a jury’s discussion of parole ....

“The rules in other jurisdictions noted above are consistent with the rule in Texas. Nonetheless, I have been unable to find a single jurisdiction which follows the Texas rule requiring the reversal of a conviction where discussions between jurors in the sanctity of the jury room cause even one juror to vote for an increased punishment.

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“It is unrealistic that reversible error occurs only in Texas when this common knowledge manifests itself in an open expression or discussion of parole possibilities for the same harm befalls an accused when a juror votes for an increased punishment because he knows all about parole although parole has not been discussed by other members of the jury.”

It is undisputed that the “inconsistency of standards” have continued since Here-dia, and it makes little sense to say that, without more, any mention or discussion by jurors of the parole laws is always jury misconduct, although common knowledge, and will result in reversal if only one juror will later say he voted a harsher penalty at the penalty stage of the trial because of the mention or discussion of parole.

After further consideration, we readopt the five-prong test gleaned from pre-Heredia cases.

To show that a jury’s discussion of the parole law constitutes reversible error, it must be shown that there was

“(1) a misstatement of the law

“(2) asserted as a fact

“(3) by one professing to know the law

“(4) which is relied upon by other jurors

“(5) who for that reason changed their vote to a harsher punishment.”

Such test shall apply to cases under either §§ 7 or 8 of Article 43.03, supra. All cases to the contrary are now overruled.

Turning to the facts before us, we observe the juror Rock stated that after the first vote, there was an asked but unanswered question whether a prison year was only seven months. Juror O’Quin testified, after the first vote, someone said the time would probably be cut in half, but it was just mentioned. He did not recall any question or remarks about seven months equaling a prison year. Juror Carroll testified that someone said that “out of ten it would be four or five,” that it was just speculation, that the subject was brought up three or four times and the discussion lasted 30 or 40 minutes. All three agreed that no one knew or professed to know the law, or asserted any misstatement of law as a fact.

The three jurors could not agree as to what was said about parole. All three had different versions and there was a conflict as to how extensive the “discussion” was. Was there just an unanswered question, was the subject just mentioned or was there a 30 minute or so discussion? This, along with other facts earlier mentioned, was before the trial judge at the hearing on the motion for new trial before his ruling on the motion.

It is well established that issues of fact as to jury misconduct raised at a hearing on motion for new trial are for the determination of the trial judge, and where there is conflicting evidence there is no abuse of discretion where the motion for new trial is overruled. McCartney v. State, 542 S.W.2d 156, 162 (Tex.Cr.App.1976), and cases there cited; Beck v. State, 573 S.W.2d 786, 791 (Tex.Cr.App.1978). See also Appleman v. State, 531 S.W.2d 806, 810 (Tex.Cr.App.1975).

Applying the five-prong test to the instant case, it is observed that while the unanswered question or statements made were not accurate, they were not misstatements of the law giving the impression the appellant would be eligible for parole or released earlier than the law permits. Article 42.12, § 15(a), V.A.C.C.P., provides, inter alia, an inmate of the Department of Corrections may be released on parole, who has served one-third of the maximum sentence imposed.⁷ Further, there was no assertion of a misstatement of the law as a fact by anyone professing to know the law. The first three prongs of the test are missing.

Under the test applied, there was no reversible error. The trial court did not abuse its discretion in overruling the amended motion for new trial under either Article 40.03, § 7 or § 8, V.A.C.C.P.

The judgment of the Court of Appeals is reversed, and the cause is remanded to said court to consider the remaining grounds of error.⁸

1 . The court also determined that the evidence was sufficient to sustain the murder conviction. It pretermitted a discussion of the other grounds of error.

2 . All three jurors were called by the appellant. The State did not call the other jurors or attempt to controvert the testimony offered by appellant, which is all too typical of cases involving claimed jury misconduct.

3 . In Heredia one of the jurors stated a life sentence meant only 17 years. The jury foreman admonished the jurors they were not to consider extraneous information communicated to them. The matter was not thereafter discussed. The court had properly charged the jury not to consider in deliberations on punishment how long he would be required to serve in order to satisfy the penalty assessed. One may well wonder why Heredia, in view of the facts, was chosen as a vehicle to change the case law as to jury discussion of parole laws.

4 .Since Heredia see Jones v. State, 596 S.W.2d 134, 137 (Tex.Cr.App.1980); Sanders v. State, 580 S.W.2d 349, 351 (Tex.Cr.App.1978); Ashabranner v. State, 557 S.W.2d 774, 777 (Tex.Cr.App.1977); Moore v. State, 535 S.W.2d 357, 358 (Tex.Cr.App.1976).

5 . See Sweed v. State, 538 S.W.2d 119 (Tex.Cr.App.1976), and Sanders v. State, 580 S.W.2d 349, 353 (Tex.Cr.App. 1978).

6 . This plurality expression was overruled in Diaz v. State, 660 S.W.2d 93 (Tex.Cr.App.1983).

7 . In Cooper v. State, 509 S.W.2d 565 (Tex.Cr.App.1974), the affidavit of Juror Stormer stated Juror Gooden related in the jury room that her nephews had been to the penitentiary and the law was a prisoner had to serve only seven months and a few days for each prison year. Juror Gooden testified she had no knowledge of the law and spoke only of her experience with her nephews. Stormer's affidavit also reflected the jurors discussed Cooper would serve "only a little over one-half of the time of any sentence before he would be released ... providing good behavior....”

This court in Cooper said:

"When we consider jurors’ testimony as well as the affidavit, together with the effect of Article 42.12, Sec. 15, V.A.C.C.P. (Adult Probation and Parole Law), we conclude that the jury’s discussion was not a misstatement of the law. In Roberson v. State, 160 Tex. Cr.R. 381, 271 S.W.2d 663, we noted that where the law provided for the release of the accused in less time than that discussed by the jury, reversible error was not reflected by the jury’s discussion of the parole law.”

In Monroe v. State, 644 S.W.2d 540, 543 (Tex.App. 5th Dist.—1982), the Dallas Court of Appeals wrote:

"The statement concerning good time credit, allowing one to serve a year in seven months is consistent with common knowledge and is generally the practice followed by the administration of the Texas Department of Corrections. Therefore, it is not a misstatement of the common practice.

"The statement that he is a good prisoner 'he wouldn’t serve his full time’ or 'would be off in a third of the time’ given is a fairly accurate statement of the parole law as expressed. Tex.Code Crim.Proc.Ann. art 42.12, Sec. 15(b) (Vernon 1979).’’

In Jones v. State, 462 S.W.2d 578, 580 (Tex.Cr.App.1970), the court said:

“A discussion of parole by a jury will not constitute reversible error, even where it is shown that the one or more jurors changed his or their votes as a result thereof, unless it be shown that the statement was a misstatement of the law.” See also Johnson v. State, 418 S.W.2d 834 (Tex.Cr.App.1967); De La Rosa v. State, 167 Tex.Cr.R. 28, 317 S.W.2d 544 (Tex.Cr.App.1958); Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.1968).

In Demolli v. State, 478 S.W.2d 554, 555 (Tex.Cr.App.1972), the court stated there was no reversible error since "there is no showing ... that a juror professed to know the parole law and made a misstatement of the same.”

8 . See footnote # one.