Trevino v. State

409 S.W.2d 853, 1966 Tex. Crim. App. LEXIS 1146

• Court: Court of Criminal Appeals of Texas
• Decided: June 8, 1966
• Docket: 39679
• Status: Published

Opinions

OPINION

McDONALD, Presiding Judge.

The offense is unlawful possession of the narcotic drug, marijuana; the punishment, 30 years in the penitentiary.

Appellant plead guilty to the offense, and the sole issue before this court is whether or not certain remarks by one juror, made during deliberation as to punishment, constitute jury misconduct.

All twelve jurors testified at the hearing on appellant’s motion for new trial.

Juror Dale Hall testified that he had favored a 10-year sentence until juror Merlin Gary stated that if the jury gave the defendant 30 years he would only have to serve 10 years; that he was influenced by this statement; and that he thereafter agreed to a 30-year sentence.

On the witness stand, juror Robert Sramek controverted his own affidavit in which he had sworn that such a statement had been made. He testified that the statement actually made was that “if he got 30 years he might get out in 8 or 10 years and we might see him out on the streets.” He testified that the statement was made as “more of a probability” than a definite assertion that appellant would serve only 10 years.

Nine jurors did not hear the statement which juror Hall attributed to juror Gary.

Juror Gary testified that “to the best of my knowledge I said if we agree on a 30 year sentence that he will probably be out in 8 or 10 or possibly 12 years.”

We find no abuse of discretion in the trial court’s overruling of appellant’s contention that the statement of juror Gary constituted jury misconduct which deprived him of a fair trial. Mandujano v. State, 170 Tex.Cr.R. 166, 339 S.W.2d 528; Salcido v. State, 167 Tex.Cr.R. 173, 319 S.W.2d 329; Montello v. State, 160 Tex.Cr.R. 98, 267 S.W.2d 557; Plasentilla v. State, 152 Tex.Cr.R. 618, 216 S.W.2d 187.

We further observe that no statement of facts relating to the trial before the jury accompanies the record and there are no formal bills of exception, in the absence of which this court is not in position to appraise the claim that the remarks of certain jurors constituted “other testimony”.

The judgment is affirmed.