Opinion
No. 11-03-00153-CR.
February 5, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Dallas County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
Opinion
The jury convicted J.P. Washington of the offense of possession of cocaine weighing 1 gram or more but less than 4 grams. Upon appellant's plea of true to the enhancement allegations, the trial court assessed his punishment at confinement for 35 years. We affirm. Appellant presents two related issues for review. In the first issue, appellant contends that his statutory and constitutional right to a unanimous verdict was violated. In the second issue, appellant complains of jury misconduct, asserting that the foreman falsely reported to the trial court that the verdict was unanimous. The record shows that appellant raised the issue of jury misconduct in his motion for new trial. In support of his motion, appellant filed the affidavit of Juror Shanta L. Green. Juror Green stated that she voted "not guilty" and never changed her vote to "guilty" throughout deliberations in appellant's trial. Juror Green insisted that she "was in the bathroom when the 'final vote' was taken by the foreman" and that neither Juror Green nor one other juror "ever" voted "guilty." Juror Green also stated that she was "too upset to speak up" when the trial court asked the jurors if each one had voted for the verdict of "guilty." The reporter's record reflects that, after the jury had been deliberating for quite some time, the jury came back with a verdict. The trial court read the verdict in open court and asked the presiding juror if that was the verdict of all of the jurors. The presiding juror answered affirmatively. The trial court then asked the members of the jury:
[M]ay I see by a show of hand or hands the hand of any juror whose verdict that is not? Anyone disagree with what I just read, please raise your handThe trial court noted for the record that none of the jurors raised their hand We hold that, pursuant to TEX.R.EVID. 606(b), appellant is precluded from challenging the validity of the verdict as announced in open court. As a general rule, a juror cannot impeach her own verdict. State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 202 n. 12 (Tex.Cr.App. 2003). A juror may not testify by way of testimony or affidavit as to any matter or statement occurring during the jury's deliberations. Rule 606(b); Hicks v. State, 15 S.W.3d 626, 630 (Tex.App.-Houston [14th Dist.] 2000, pet'n ref'd); Hines v. State, 3 S.W.3d 618, 621-22 (Tex.App.-Texarkana 1999, pet'n ref'd). Rule 606(b) lists only the following two exceptions to its general prohibition: a juror may testify (1) about matters of outside influence or (2) to rebut a claim that the juror was not qualified to serve. The content of Juror Green's affidavit did not fall within either of the exceptions. Moreover, the reporter's record reflects that the guilty verdict as read by the trial court in open court was the unanimous verdict of all of the jurors. See TEX. CODE CRIM. PRO. ANN. arts. 37.04 37.05 (Vernon 1981). No juror expressed otherwise when the trial court polled the jury. Appellant's first and second issues are overruled. The judgment of the trial court is affirmed.