Roberto J. Morales v. The State of Texas--Appeal from 229th Judicial District Court of Duval County

No. 04-00-00054-CR

Roberto MORALES,

Appellant

v.

STATE of Texas,

Appellee

From the 229th Judicial District Court, Duval County, Texas

Trial Court No. 6011

Honorable Alex W. Gabert, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed. December 6, 2000

AFFIRMED

Appellant Roberto Morales pled guilty to aggravated sexual assault. The jury sentenced Morales to fifteen years imprisonment and a $10,000 fine. On appeal, Morales complains the trial court erred in denying his motion for new trial based on jury misconduct. Finding no error, we affirm.

Background

Morales was charged with aggravated sexual assault involving a child younger than 14 years of age. Jury trial began on September 27, 1999. After the jury was impaneled, Morales pled guilty and waived his right to a jury on the issue of guilt or innocence. Following a trial on punishment, the jury sentenced him to fifteen years imprisonment and a $10,000 fine. Morales filed a timely motion for new trial. Although an evidentiary hearing was held, no order was signed and the motion for new trial was deemed denied by operation of law.

 During jury voir dire, prior to Morales=s guilty plea, Morales=s trial attorney asked Juror Ester Morin Garza whether the ages of her grandchildren would prejudice her against Morales based on the offense charged. She answered no. After the trial concluded, Joe Edward Carrillo, Morales=s investigator, filed an affidavit detailing statements allegedly made to him by Juror Garza. According to Carrillo, Juror Garza stated she thought of her grandchildren throughout the trial, she was mad at Morales, and if he had committed the offense on her grandchildren she would kill him. Carrillo confirmed the statements in testimony at the hearing on the motion for new trial. However, Juror Garza testified she did not make the statements.

 During the State=s general jury voir dire, Juror Faustino Soliz did not affirmatively indicate he was related to the victim. During the State=s direct voir dire of Juror Soliz, he answered negatively when asked whether he was related to either the victim or Morales. After the trial concluded, Morales learned Juror Soliz=s grandmother and the victim=s grandmother were sisters. Gloria Garcia, Morales=s witness and neighbor of Juror Soliz=s grandmother, also testified to this relationship at the motion for new trial. However, Juror Soliz testified he did not know about the relationship at the time of the trial.

Discussion

 In his only point of error, Morales complains the trial court erred in denying his motion for new trial based on jury misconduct. In general, the denial of a motion for new trial is reviewed under an abuse of discretion standard. Bolden v. State, 634 S.W.2d 710, 712 (Tex. Crim. App. 1982). This standard also applies to cases in which the motion for new trial is overruled by operation of law. See Sweeten v. State, 686 S.W.2d 680, 682-83 (Tex. App. BCorpus Christi 1985, no pet.). Abuse of discretion occurs when the Atrial court=s decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.@ Oliver v. State, No. 04-99-00203-CR, 2000 WL 1389677, at *5 (Tex. App.BSan Antonio Sept. 27, 2000, no pet. h.).

1. Juror Ester Morin Garza

The Texas Rules of Evidence limit the testimony a juror may give when the validity of a verdict or indictment is questioned:

[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.

Tex. R. Evid. 606(b). However, a juror may testify to Aoutside influences@improperly bearing on the juror. Id. This rule favors the Afinality of judgments, the privacy of the jury deliberation process, and [the prevention of] jury tampering.@ Hines v. State, 3 S.W.3d 618, 622 (Tex. App.BTexarkana 1999, pet. ref=d).

 Morales contends Juror Garza=s thoughts about her grandchildren during deliberations constituted jury misconduct and a material misrepresentation during voir dire. However, a juror=s injection of personal experiences or mental processes is not considered an Aoutside influence@ under Rule 606(b). See Hines, 3 S.W.3d at 623 (citing Soliz v. Saenz, 779 S.W.2d 929, 932 (Tex. App.BCorpus Christi 1989, writ denied)).

 In order to sustain a motion for new trial based on jury misconduct, there must be a juror=s affidavit alleging Aoutside influence@ affecting the jury decision. Hines, 3 S.W.3d at 623. Here Juror Garza testified she did not make the alleged statements. When there is conflicting evidence as to the influences upon or actions of jurors, issues of fact as to the alleged misconduct are the province of the trial judge. Campbell v. State, 18 S.W.3d 914, 919 (Tex. App.BBeaumont 2000, no pet. h.); Gilbert v. State, 840 S.W.2d 138, 141 (Tex. App.BHouston [1st Dist.] 1992, no pet.); Bratcher v. State, 771 S.W.2d 175, 188 (Tex. App.BSan Antonio 1989, no pet.). When a trial judge exercises judgment as to the credibility of witnesses, there is no abuse of discretion in overruling a motion for new trial. Reyes v. State, 3 S.W.3d 623, 626 (Tex. App.BHouston [1st Dist.] 1999, no pet.). Because the trial court could reasonably have believed Juror Garza=s testimony rather than the testimony of the investigator, it was not an abuse of discretion for the trial court to allow the motion for new trial to be overruled by operation of law. Morales=s complaint of jury misconduct by Juror Garza is overruled.

2. Juror Faustino Soliz

 In general, a party is allowed challenge for cause if a prospective juror is related to the victim. Tex. Crim. Proc. Code Ann. art. 35.16(c)(1) (Vernon Supp. 2000). This rule protects a defendant=s right to a fair trial by an impartial jury. See Armstrong v. State, 897 S.W.2d 361, 368 (Tex. Crim. App. 1995). Morales argues Juror Faustino Soliz gave false information concerning his relationship to the victim during voir dire examination.

 Morales claims Juror Soliz did not honestly answer the question of relationship to the victim, denying Morales his right to strike Soliz from the jury list. However, even though there was no Alack of diligence on part of Morales=s counsel,@ there was no fault on the part of Juror Soliz either. See Von January v. State, 576 S.W.2d 43, 45 (Tex. Crim. App. 1978). Unlike the situation in Von January in which the juror knew he had a relationship during jury voir dire, Juror Soliz testified he did not know he was related to the victim until after the trial concluded. Although Morales asserts a correct answer to voir dire would have led to further questioning of Juror Soliz, this was impossible given Soliz=s lack of knowledge.

 There is no proof Juror Soliz violated his oath to give Atrue answers@ at voir dire. See Tex. Crim. Proc. Code Ann. art. 35.02 (Vernon 1989). Based on Juror Soliz=s testimony at the hearing on the motion for new trial, the trial court could have concluded Juror Soliz did not intentionally withhold information regarding his relationship to the victim during jury voir dire. Because Soliz was unaware of the relationship, the mere existence of a family connection does not lead to an inference of bias on the part of the juror. Because we find no abuse of discretion, we overrule Morales=s claim of misconduct as to Juror Soliz.

Conclusion

Because we hold the trial court did not abuse its discretion by allowing Morales=s motion for new trial to be overruled by operation of law, we overrule Morales=s point of error and affirm the judgment of the trial court.

PAUL W. GREEN

JUSTICE

DO NOT PUBLISH