Opinion
No. 05-17-00816-CR
05-24-2018
RONNIE EDWARD PERSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Crim Ct No 5 Tarrant County, Texas
Trial Court Cause No. 1469345
MEMORANDUM OPINION
Before Justices Bridges, Brown, and Boatright
Opinion by Justice Brown
A jury convicted appellant Ronnie Edward Person of assault causing bodily injury to a family member, and the trial court assessed punishment at 180 days in county jail probated for twenty-four months. In a single issue, appellant contends the trial court erred in denying his motion for new trial based on juror misconduct.
See TEX. PEN. CODE ANN. § 22.01(a)(1) (West Supp. 2017).
BACKGROUND
Appellant was accused of assaulting his daughter Angela Jones by striking her in the mouth with his hand. At trial, Angela testified that extended family had gathered at appellant's sister Cynthia Smith's house for a celebration. Angela, her husband Brandee Jones, her uncle Barnett Person, Jr., and Barnett's girlfriend Pat Howell were sitting on a couch in the family room. Appellant approached and, in what Angela considered a disrespectful manner, asked Pat what they were discussing and why she was laughing. Brandee got up to leave, and appellant threatened to shoot Brandee and appeared to reach into a bag on his shoulder as if he were going to draw a weapon. Appellant pushed Angela, and Brandee, in her defense, punched appellant. Barnett tried to hold Brandee back, and Brandee went outside. Angela left the room to comfort her daughter, but subsequently encountered appellant again as she was making her way outside to find Brandee. Appellant and Angela had words, and appellant hit her in the lip with a closed fist. Angela reached for whatever was around and hit appellant over the head with a candlestick holder. Another of Angela's aunts, Bardine Skeete, pulled appellant afterward to make sure he "didn't come after [Angela]."
Other family members at the gathering also testified to the events that evening. Each witness testified to a physical altercation between appellant and Brandee in the family room and the altercation's chaotic aftermath, during which, according to some witnesses, appellant was driving recklessly and hit Brandee's parked car. Angela, Brandee, Barnett, and appellant's nephew Charles Smith testified to seeing appellant push or backhand Angela in the family room. However, defense witnesses Barnett Person, Sr., appellant's father, and Bardine testified that they did not see Angela in the room at the time. No weapon was located, and only Angela and Brandee testified to appellant appearing to reach for a weapon. Only Angela, Brandee, and Charles testified to hearing appellant threaten Brandee. And, Angela was the only witness to testify about appellant punching her in the lip subsequent to the altercation in the family room. No other witness observed the punch, but Barnett testified to hearing Angela yelling out to Brandee that appellant had hit her. Bardine testified that she had heard about Angela striking appellant with the candlestick, but she "wasn't actually involved in all of that." Fort Worth police officer Joseph Ellzey interviewed witnesses at the scene after receiving a domestic disturbance call. After looking at the totality of events and reading all the witness statements, Ellzey concluded appellant was the aggressor and arrested him. Ellzey took some photographs, including one of Angela with a "busted lip" that indicated some type of assault took place.
After deliberating, the jury returned a guilty verdict on one count of assault causing bodily injury to a family member. Later that day, a juror, Marie Saul, called the court coordinator to ask if it was a problem if a juror had "Googled" a witness. Appellant subsequently moved for a new trial, attaching an affidavit by Saul stating that, during deliberation, another juror made a statement to the jury "that he researched the background of one of the witnesses and found the statement made by this witness [Person, Sr.] about his military service to be false."
The State also charged appellant with terroristic threat, but the jury found him not guilty on that count.
Person, Sr., who was eighty-six years old at the time, had testified to serving in the Marine Corps for over twenty-eight years and being "pretty highly decorated" for combat action. According to Person, Sr., he received the Silver Star, two Purple Hearts, and the Congressional Medal of Honor. At a hearing on appellant's motion for new trial, juror Thomas Holmes testified he had used Google on his telephone to research Person, Sr.'s background. Holmes, who also had served in the military, thought it was "pretty awesome" that Person, Sr. was a Congressional Medal of Honor winner, so he "looked it up" for his "personal benefit." Holmes "could not find" Persons, Sr. and told members of the jury that Person, Sr. was not a Medal of Honor winner. Holmes did the research in the jury room, but could not recall if he did so prior to deliberations or after deliberations had begun. He further testified that his findings did not make a difference to him or matter to him when he found appellant guilty.
The trial court denied the motion for new trial and issued findings of fact and conclusions of law. Among other things, the trial court concluded the information that juror Holmes provided to other jury members was an "outside influence," but, under the objective reasonable person test, the information did not have a prejudicial effect on the hypothetical average juror.
APPLICABLE LAW
We review a trial court's decision to deny a motion for new trial for an abuse of discretion. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014). The trial court abuses its discretion if no reasonable view of the evidence supports the ruling. Id. We view the evidence in the light most favorable to the court's ruling and presuming all reasonable factual findings against the losing party that could have been made were made against that party. Id. The trial court is the factfinder and sole judge of the witnesses' credibility; we determine only whether the trial court's decision was arbitrary or unreasonable. Id.
A trial court must grant a criminal defendant a new trial if the jury received "other evidence" after retiring to deliberate and the evidence is detrimental or adverse to the defendant. TEX. R. APP. P. 21.3(f); Bustamante v. State, 106 S.W.3d 738, 743 (Tex. 2003). In an inquiry into the validity of a verdict, Texas Rule of Evidence 606(b) generally precludes a juror from testifying about any statement made or incident that occurred during the jury's deliberations. TEX. R. EVID. 606(b)(1). However, an exception allows a juror to testify about whether an outside influence was improperly brought to bear on any juror. See id. 606(b)(2)(A). An outside influence is "something originating from a source outside of the jury room and other than from the jurors themselves." McQuarrie v. State, 380 S.W.3d 145, 154 (Tex. Crim. App. 2012). The exception allows evidence of "proof of external pressures that are likely to affect the verdict." Colyer, 428 S.W.3d at 125. Thus, to constitute an outside influence, information must be relevant to the issues at trial. Id.
An outside influence does not automatically result in a reversal. Ryser v. State, 453 S.W.3d 17, 41 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). Reversal is required only if the outside influence "has the effect of improperly affecting a juror's verdict in a particular manner—for or against a particular party." Id. (quoting Colyer, 428 S.W.3d at 129). A trial court may not delve into jury deliberations; therefore, its analysis of whether an outside influence was detrimental to the defendant must be objective and determine if "there is a reasonable possibility that it had a prejudicial effect on the 'hypothetical average juror.'" McQuarrie, 380 S.W.3d at 154-55.
ANALYSIS
Appellant maintains the information Holmes obtained from his internet research constituted an outside influence with a prejudicial effect on a hypothetical average juror because it impeached the credibility of Person, Sr., whose testimony was exculpatory for appellant. The State first responds that Holmes' internet research cannot be an outside influence because it was not conducted outside of the jury room. In doing so, the State relies on the following Texas Court of Criminal Appeals language regarding the scope of a rule 606(b) hearing: "[t]herefore, a [r]ule 606(b) inquiry is limited to that which occurs both outside the jury room and outside of the juror's personal knowledge and experience." See Colyer, 428 S.W.3d at 125; McQuarrie, 380 S.W.3d at 153. That language, however, refers not to what constitutes an outside influence but to the scope of a rule 606(b) hearing and the requirement that courts not delve into jury deliberations.
In McQuarrie, a defendant convicted of sexual assault argued he was entitled to a new trial because the jury, after retiring to deliberate, received other evidence not admitted at trial that was detrimental to his case. McQuarrie, 380 S.W.3d at 148. In affidavits, two jurors affirmed that a third juror had researched the effects of date rape drugs after the jury was released for the night and then relayed her findings to the rest of the jury the next morning. Id. Applying a "plain-meaning" interpretation of outside influence - "something originating from a source outside of the jury room and other than from the jurors themselves" - the Court of Criminal Appeals concluded the research was an outside influence. Id. Indeed, the Court noted the research, which occurred outside of deliberations and the jury room and originated from a source on the internet and not the jurors themselves, fell squarely within its interpretation of an outside influence. Id. at 154. Although the juror research at issue in McQuarrie did occur outside of the jury room, we do not read the opinion to necessarily exclude as an outside influence information from a source outside of the jury room simply because a juror happened to be in the jury room at the time they received or accessed the information.
We find support for our position in a subsequent Court of Criminal Appeals opinion. See Colyer, 428 S.W.3d 117. In Colyer, a defendant convicted of driving while intoxicated moved for a new trial based on a juror's testimony that his verdict was not a fair expression of his opinion due in part to receiving a worrying call from a doctor regarding his daughter's health during deliberations. Id. at 120-21. The defendant argued the information constituted an outside influence because if came from outside the jury room. Id. at 127. The Court disagreed, explaining that not everything coming from outside the jury room qualifies as an outside influence. Id. at 27. Instead information can be an outside influence for purposes of rule 606(b) only if it also relates to the issues at trial. Id. at 27. The telephone call, even though it came from outside the jury room and from a non-jury source, could not be an outside influence because it was unrelated to the trial in any manner. Id. at 128.
The Court's decision did not turn on the fact that the juror received the information during jury deliberations or while in the jury room. To the contrary, the Court acknowledged that, had the juror and doctor discussed the trial and, for example, the doctor had stated that he was treating the DWI defendant for alcoholism, then the contents of the phone call would constitute an outside influence because the information would have come from outside the jury room and from a non-juror and would have concerned a factual or legal issue in the trial. Id. at 128 n. 63. Under those circumstances, the juror could testify to the conversation at a rule 606(b) hearing, but would not be permitted to testify to the conversation's impact on the deliberations. Id. Accordingly, we agree with appellant that the information Holmes obtained from the internet search and shared with jury members was "something originating from a source outside of the jury room and other than from the jurors themselves." Because it also related to appellant's trial, we conclude it was an outside influence. See, e.g., id.
The State next contends that, even if the research constituted an outside influence, there was no evidence Holmes improperly brought the information to bear in an effort to influence the verdict. See TEX. R. EVID. 606(b). When asked if he conducted the internet search because he was curious or if he thought Persons, Sr. was lying, Holmes responded that he did it for his personal benefit because having a Congressional Medal of Honor winner in the room with you is "pretty impressive." There is no evidence that Holmes intended to use the information to persuade any juror to decide the case in a particular manner. See Colyer, 428 S.W.3d at 128-29.
Further, we disagree with appellant's assertion that, had Person, Sr.'s credibility not been impeached, his testimony would have required a non-guilty verdict because it established that appellant was merely defending himself from unprovoked attacks by Angela and Brandee. At trial, Person, Sr. testified to observing the altercation between Brandee and appellant. He did not know "what started" the altercation, but Brandee, unprovoked, suddenly got up, picked appellant up around the neck and threw appellant against the kitchen wall. Person, Sr. also testified that appellant did not make threats or push Angela; Person, Sr. did not see Angela at the time because she had gone "towards the door or went somewhere to do something." Appellant "got his head cleared," went outside and came back in, but Person, Sr. did not know what happened after that.
Even if the jury believed Person, Sr.'s testimony in full, his testimony would not have precluded the jury from finding that appellant assaulted Angela in a subsequent encounter in the house that evening. Nor is it likely that the eighty-six-year-old witness's misstatement about receiving a military honor, even a Congressional Medal of Honor, would cause a hypothetical average juror to discount all of that witness's testimony on the relevant issues at trial. Here, seven family members testified at trial; four were called by the State, and three were called by the defense. Each account of the altercation in the family room varied, but there was ample evidence that the conduct of both appellant and Brandee was overly-aggressive that evening and had been on other occasions as well. Police were called to the scene, and Officer Ellzey, after investigating, concluded that appellant had been the aggressor. Considering all the evidence before the jury, we cannot conclude the trial court erred in determining the outside influence in this case would not have a prejudicial effect on a hypothetical average juror. Therefore, the trial court did not abuse its discretion in denying appellant's motion for new trial on the basis of juror misconduct. Accordingly, we overrule appellant's sole issue.
In a footnote, appellant points out that the correct analysis is "the objective 'reasonable person' test as to whether the outside influence had a prejudicial effect on the 'hypothetical average juror'" and notes the trial court included in its findings of fact that (1) Homes testified that the information he obtained did not affect his verdict, and (2) there was no evidence that it influenced Saul's verdict. At the hearing, Holmes responded "no" when the State asked, "Did it matter to you? Is that what made you find him guilty?" The State also attempted to ask what Holmes relied upon in reaching his verdict, but the trial court stopped the questioning. Despite the two specific findings, the trial court's "Findings of Fact, Conclusions of Law and Order Regarding Defendant's Motion for New Trial" indicates the trial court applied the correct test, both setting out the correct analysis and reciting "The Court concluded that while the information obtained by Juror Thomas Holmes was an outside influence, using the objective 'reasonable person' test, it did not have a prejudicial effect on the hypothetical average juror." We also have not considered Holmes's response, which is inadmissible under Rule 606(b).
We affirm the trial court's order denying appellant's motion for new trial.
/Ada Brown/
ADA BROWN
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 170816F.U05
JUDGMENT
On Appeal from the County Crim Ct No 5, Tarrant County, Texas
Trial Court Cause No. 1469345.
Opinion delivered by Justice Brown; Justices Bridges and Boatright participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 24th day of May, 2018.