State v. Scott

819 S.W.2d 169, 1991 Tex. App. LEXIS 1652, 1991 WL 116600
CourtCourt of Appeals of Texas
DecidedJune 28, 1991
DocketNo. 12-90-00120-CR
StatusPublished
Cited by8 cases

This text of 819 S.W.2d 169 (State v. Scott) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Scott, 819 S.W.2d 169, 1991 Tex. App. LEXIS 1652, 1991 WL 116600 (Tex. Ct. App. 1991).

Opinion

COLLEY, Justice.

On March 14, 1990, a jury convicted ap-pellee of arson, the intentional burning of her Jeep Cherokee (hereinafter sometimes called the “vehicle”). On March 30, 1990, the trial judge assessed appellee’s punishment at seven years’ confinement, but suspended imposition of sentence and placed appellee on probation for a period of seven years.

Appellee filed a timely motion and an amended motion for new trial. On April [170]*17012, 1990, the court orally granted Appel-lee’s amended motion for new trial.1

The State argues one point of error, contending that the court “committed reversible error by granting Appellee’s [amended] motion for new trial.”

Appellee claims by one cross point, that the “trial court erred by failing to grant Appellee’s motion for new trial on the ground that there was no evidence, or legally insufficient evidence to sustain the jury’s verdict of guilty.”

Appellee alleged two grounds in her amended motion for new trial, (1) that the evidence was insufficient to support her conviction, and (2) that she did not receive a “fair and impartial trial due to ... misconduct of the jury.” Under her second contention, appellee claimed that a member of the jury “injected new evidence into the case....”

The State limits its appellate arguments to the contention that “[t]here was no other evidence received by the jury [during their deliberations] that was either adverse or detrimental to [appellee].”

Under the state of this record, we presume that the trial court’s grant of the new trial was grounded solely on jury misconduct under Tex.R.App.P. 30(b) which, in part, reads:

(b) Grounds. A new trial shall be granted an accused for the following reasons:
(7) Where after retiring to deliberate the jury has received other evidence;
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As the State points out, the trial court may grant a new trial in criminal cases where “other” evidence is “received” by the jury, and that evidence is harmful to the defendant. Stephenson v. State, 571 S.W.2d 174, 176 (Tex.Cr.App.1978); Alexander v. State, 610 S.W.2d 750, 752-53 (Tex.Cr.App.1980). However, the law is well settled that, if the court determining that “other” evidence adverse to the defendant was received by the jury during its deliberations, that is, evidence or testimony not properly before the jury at trial, then the courts will not speculate on the probable effect of that evidence. Alexander, 610 S.W.2d at 753; see also Garza v. State, 630 S.W.2d 272, 274 (Tex.Cr.App.1981); McGary v. State, 658 S.W.2d 673, 674 (Tex.App.—Dallas 1983, pet. ref’d); and Shivers v. State, 756 S.W.2d 442, 444 (Tex.App.—Houston [1st Dist.] 1988, no pet.).

The gist of the State’s argument is the assertion that the character of the jury testimony complained of amounts only to “a rehashing of the disputed evidence presented at trial.” The State claims that juror Starkey’s testimony was only a discussion of the expert electrical testimony at trial and that Starkey, an electrician, was merely explaining “how electricity worked.” The State also argues that Starkey “basically corroborated the testimony of [the State’s expert witness, Tim Willing-ham].” (Emphasis added.) Furthermore, the State alleges in its brief that the “character of the evidence received in the case at bar was almost identical to the evidence that was received during trial” and that such evidence was neither “adverse [n]or detrimental to [appellee].”

Appellee, quoting from Rogers v. State, 551 S.W.2d 369 (Tex.Cr.App.1977), argues that, since it is virtually undisputed that the jury received “other evidence,” the order granting the new trial must stand “if the evidence was adverse to the defendant.” Rogers, 551 S.W.2d at 370.

The record reveals that appellee, an employee of Bonar Packing Co., walked to and entered her vehicle during her lunch break. A State’s eyewitness testified that while appellee was standing outside the vehicle with the driver’s side door open, a flame shot upward in the front seat area, near the center of the vehicle. The fire was short lived and within minutes went out for lack of oxygen. In the meanwhile, appellee [171]*171shut the car door and walked back toward the company building.

Tim Willingham, a captain of the Tyler Fire Department and arson investigator, testified at trial that he examined the interior of the vehicle, found no flammable liquid residues and concluded that the small fire did not start because of an electrical accident or short. Willingham also opined that the fire was intentionally set. He stated that he found that “the location of [the origin of the] fire is inconsistent ... with any ... accidental cause that [he] normally attribute[s] to vehicles.” Willing-ham said the fire was “an open flame fire that started fast and burned out fast.” He said these facts indicate “an intentionally set fire.”

Willingham admitted that he could not say “what actually caused the fire[,]” explaining that he did not know whether the fire was started by “a match or a lighter.” The record shows that the plastic lens cover from a dome light in the front of the vehicle was partially burned and fell to the floorboard of the vehicle during the fire. Willingham testified, however, that there was no electrical wiring located at the point of origin of the fire. On cross-examination, he stated that there was no evidence of an electrical arc in the overhead dome light fixture, and that the headliner was clean and the dome light fixture was undamaged.

After the State rested, appellee called her expert witness, Jim McClenden, who was self-employed in the trim shop, auto upholstery and glass business and was qualified as an expert on electricity. He related that he had been employed by ap-pellee’s insurance carrier to repair the vehicle after the fire. McClenden described the wiring harness of the vehicle and testified that he had carefully examined it. He stated that he believed a metal screw holding the plastic molding on the vehicle’s door post had “shorted the wiring harness out.” He opined that, because of this electrical short, the dome light caught fire and ignited the fabric headliner on the roof of the vehicle.

The State recalled Willingham on rebuttal. Willingham gave expert testimony contradicting McClenden’s testimony that an electrical short in the wiring harness of the vehicle had started the fire by shorting out. Willingham said, in effect, that if the screw had caused a short in the wiring, the current would have flowed back to the fuse box on the vehicle or to the ’12-volt battery and would not have gone to the dome light fixture. Willingham repeated his earlier testimony indicating that he found no evidence of an electrical fire (arc) at the door post terminal.

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Cite This Page — Counsel Stack

Bluebook (online)
819 S.W.2d 169, 1991 Tex. App. LEXIS 1652, 1991 WL 116600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-scott-texapp-1991.