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Moore v. State2/20/2002
APPEAL FROM THE 114TH JUDICIAL DISTRICT COURT OF SMITH COUNTY, TEXAS
Bryant Moore ("Appellant") appeals his sentence of confinement for seven years following his plea of guilty to a charge of aggravated assault. Appellant raises two issues on appeal. We affirm.
Background
Appellant pleaded "guilty" to aggravated assault under the trial court's timely pass for plea plan. The trial court sentenced Appellant to imprisonment for eight years and fined Appellant $5,000.00. Appellant elected not to accept the trial court's eight year sentence under the pass for plea plan. Appellant pleaded guilty and chose to have his punishment assessed by the jury. On February 6, 2001, the jury assessed Appellant's punishment at confinement for seven years.
On February 7, 2001, Ginger Elrod ("Elrod") a juror in Appellant's case, contacted Appellant's counsel and claimed that the jury foreman had made racially-motivated, derogatory statements during deliberation and that the jury had considered certain aspects of parole law in reaching its decision. Appellant filed a motion for new trial. The sole evidentiary support for Appellant's motion for new trial was Elrod's affidavit. The trial court struck Elrod's affidavit, and overruled Appellant's motion for new trial.
Jury Misconduct
Appellant contends that the trial court erred in overruling his motion for new trial because Appellant was denied a fair trial due to outside influences on the jury. Specifically, Appellant contends that the jury foreman's racially-motivated, derogatory remarks and another juror's statement regarding the effect parole law would have on the amount prison time Appellant would serve denied Appellant his right to a fair trial. A new trial must be granted when the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial. See Tex R. App. P. 21.3(f). We review a trial court's denial of a motion for new trial for abuse of discretion. See Thomas v. State, 699 S.W.2d 845, 854 (Tex. Crim. App. 1985).
The sole evidentiary support for Appellant's motion for new trial was the affidavit testimony of Elrod. Texas Rule of Evidence 606(b), which governs the admissibility of juror testimony, provides:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or to the effect of anything on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve. Tex. R. Evid. 606(b).
Although Appellant categorizes his allegations as outside influences, he also relies on the test set forth in Sneed v. State, 670 S.W.2d 262 (Tex. Crim. App. 1984), and followed by Buentello v. State, 826 S.W.2d 610 (Tex. Crim. App. 1992). However, the 1998 version of Texas Rule of Evidence 606(b) overrules the holdings in Sneed, Buentello, and their progeny. See Hines v. State, 3 S.W.3d 618, 623 (Tex. App.-Texarkana 1999, pet. ref'd). Thus, considering the guidelines set forth in Texas Rule of Evidence 606(b), we consider whether the activities of which Appellant complains constitute "outside influences."
While case law has not clearly identified what constitutes an outside influence, it has clearly rejected certa
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