Tarver, Detorius Torme v. State

• Court: Court of Appeals of Texas
• Decided: January 16, 2013
• Docket: 05-11-00415-CR
• Status: Published

Opinion

AFFIRM; Opinion issued January 16, 2013.

In The ~ourt of appealii jfiftb 1!liiitrirt·of ~exaii at !Ballaii No. 05-11-00415-CR

DETORIUS TORME TARVER, Appellant

v. THE STATE OF TEXAS, Appellee

On Appeal from t~e Criminal District Court No.3 Dallas County, Texas Trial Court Cause No. F10-52447-J

OPINION Before Justices O'Neill, FitzGerald, and Lang-Miers Opinion by Justice Justice O'Neill

Appellant appeals his jury conviction for aggravated robbery. After the jury found

appellant guilty, the trial court assessed punishment, enhanced by two prior felony convictions,

at forty years' confmement. In a single issue, appellant contends he received ineffective

assistance of counsel. For the following reasons, we affirm the trial court's judgment.

To prevail on an ineffective assistance of counsel claim, an appellant must prove by a

preponderance of the evidence that his attorney's conduct fell below an objective standard of

reasonableness, and there is a reasonable probability that but for the attorney's unprofessional

1 errors, the result of the proceeding would have been different. Strickland v. Washington, 466

U.S. 668, 688 (1984).

According to appellant, his trial counsel was ineffective for failing to file a motion for

new trial based upon juror misconduct. To support his claim, appellant relies upon trial

counsel's statements on the record following the verdict that a juror had told counsel that she

considered appellant's failure to testify against him. On appeal, appellant complains trial

counsel should have preserved a juror misconduct complaint by filing a motion for new trial

supported by that juror's affidavit.

A motion for new trial is the proper vehicle for preserving alleged jury misconduct for

appeal. Trout v. State, 702 S.W.2d 618, 620 (Tex. Crim. App. 1985). A motion for new trial

alleging jury misconduct must be supported by the affidavit of a jilror or other person who is in a

position to know the facts. /d. However, under rule of evidence 606(b), a juror may only testify

regarding outside influences improperly brought to bear upon a juror, or to rebut a claim the

juror was not qualified to serve. Tex. R. Evid. 606(b). A juror may not testify about matters

occurring during juror deliberations, or to the effect of anything on any juror's mind, emotions,

or mental processes. Tex.R. Evid. 606(b); McQuarrie v. State, 380 S.W.3d 145, 154 (Tex. Crim.

App. 2012).

Here, appellant contends trial counsel should have filed a motion for new trial supported

by a juror's affidavit concerning internal juror deliberations and her own mental processes. To

show such a motion for new trial should have been filed, appellant relies on cases that predate

1998 changes to rule 606(b) that made juror affidavits on such issues inadmissible. See, e.g.

Reyna v. State, 846 S.W.2d 498, 502-03 (Tex. App.-Corpus Christi 1993, no pet); Batres v.

State, 727 S.W.2d 83, 86 (Tex. App.-San Antonio 1987, pet dism'd); see also Hicks v. State, 15

2 S.W.3d 626, 630 (Tex. App.-Houston 14th 2000, pet. refd) (explaining 1998 change to rule

606(b)). Because a motion for new trial based on a juror affidavit concerning internal juror

deliberations or her own mental processes would have been improper, trial counsel's failure to

file such a motion did not fall below and objective standard of reasonableness. We resolve the

sole issue against appellant and affirm the trial court's judgment.

Do Not Publish TEX. R. APP. P. 47

110415F.U05

3 C!rourt of Appeals lf.iftq 11li.strid of wexa.s at 11lalla.s JUDGMENT

Detorius Tonne Tarver, Appellant On Appeal from the Criminal District Court No. 3, Dallas County, Texas No. 05-11-00415-CR V. Trial Court Cause No. Fl0-52447-J. Opinion delivered by Justice O'Neill. The State of Texas, Appellee Justices FitzGerald and Lang-Miers participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 16th day of January, 2013.